Monday, 28 May 2018

You’re The Expert! Ontario’s Top Court Says Tradespeople Can’t Sue Homeowners Under Occupiers’ Liability Act

If a skilled tradesperson injures himself in the course of his employment, can he sue the homeowners of the property on which he was working pursuant to the provisions of the Ontario Occupiers’ Liability Act, R.S.O. 1990, c. O.2?

In the case of Osmond v. Watkins, 2018 ONCA 386, Ontario’s top court affirmed that the answer to that question is “no.”

Facts

Christopher and Jasmine Watkins, hired the appellant, Tony Osmond, to complete the construction of a two-story front porch at their residence. Mr. Osmond fell from the roof of the porch while performing the work and was seriously injured.

Mr. Osmond sued the Watkins alleging negligence, breach of duty of care, and breach of their duty under s. 3(1) of the Occupiers’ Liability Act, to “take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” His primary allegation was that the homeowners, as the occupier of the premises on which the construction work was performed, were negligent in failing to provide him with safety equipment.

The Watkins successfully moved for summary judgment dismissing Mr. Osmond’s case. Mr. Osmond appealed.

Decision

The Court of Appeal (Benotto, Brown and Miller JJ.A.) dismissed Mr. Osmond’s appeal, giving the following reasons:

[5] The motion judge [the Honourable Justice David A. Broad of the Superior Court of Justice] adopted, as the applicable standard of care in the circumstances, that stated by the Alberta Court of Appeal in Mahe v. Boulianne, 2010 ABCA 32, 474 A.R. 223, at paras. 11, 12 and 15:

When the plaintiff visitor is a trained professional or tradesman who is retained by the occupier to provide skilled work, the duty of the occupier only encompasses the safety of the premises, but does not extend to telling the visitor how to practice his occupation.

It must be remembered that where a lay customer engages a professional or tradesman, it is presumed that the tradesman knows how to do the work. Any advice respecting the work is presumed to come from the tradesman to the lay customer, not from the lay customer to the tradesman. If the tradesman fails to do the work properly or safely, he cannot blame his customer on the basis that the customer should have known better.

The appellant’s duty, as the occupier of the premises, was to ensure that the premises were reasonably safe. He had no overriding duty to monitor whether the practices followed by the professional electrician respondent were safe. The work had certain inherent and obvious risks, particularly the risk of falling, which were well-known to the respondent. [Citations omitted.]

[6] The appellant does not submit the motion judge erred in adopting those principles, nor does he point to any other case that sets a different standard of care for such circumstances. Nor did the appellant offer any authority for the proposition that knowledge of a lack of experience on the part of the plaintiff would override or negate the principles of law stated by the Alberta Court of Appeal in Mahe.

[9] The motion judge made several key findings of fact: (i) there was no evidence the appellant’s fall was caused by any defect in or lack of repair affecting the premises or any hazardous conditions associated with the premises themselves; (ii) there was no dispute the appellant was performing the renovation work for valuable consideration; (iii) there was no basis for a contractual claim that the respondents had failed to furnish the appellant with safety equipment; (iv) there was no evidence the appellant was inexperienced in performing roofing work or working at heights; and (v) the evidence did not support a finding that the respondents were aware the appellant lacked the necessary experience to carry out the project.

In short, the decision was solid and the case was dismissed.

Commentary

Like everyone else, I possess a certain number of skills. Lacking among the skills that I possess is much in the way of heights and home repair. My father-in-law puts up our Christmas lights and he takes them back down again. If he did not, my Christmas lights would appear lower. Much lower… Given this reality I am somewhat comforted by the fact that if I hire an experienced tradesperson to undertake a home repair I needn’t worry about telling the visitor how to practice his occupation – which is likely best for all concerned anyway.

Takeaways for Employees with Labour Pains

The takeaway for this case for employees is that if you are going to be working at heights, you are going to want to ensure that you have obtained appropriate insurance coverage to protect you in the event that you get injured while working.

Takeaways for Employers with Labour Pains

It is important for anyone hiring a contractor to understand their rights and responsibilities when it comes to employment law obligations. Practically all contractors in the construction industry will require WSIB coverage. However, an exemption applies with respect to “independent operators and sole proprietors who perform no construction work other than exempt home renovation work.” (Workplace Safety and Insurance Act, 1997, subsections 12.2(1) and (8).)

If you intend on hiring a contractor to complete some construction for you and you are unsure about your responsibilities, probably best to speak with a lawyer first. (Plus, it might not hurt to get that contract reviewed before you sign it.) The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Contact Me

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

To subscribe to Labour Pains enter your email address:

Delivered by FeedBurner

--

As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

(c) istock/ginosphotos

No comments:

Post a Comment