Waldick et al. v. Malcolm et al., (1991) 125 N.R. 372 (SCC)

• Judge: McLachlin, Stevenson and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 26, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 125 N.R. 372 (SCC);[1991] 2 SCR 456;125 NR 372;[1991] SCJ No 55 (QL);8 CCLT (2d) 1;83 DLR (4th) 114;1991 CanLII 71 (SCC);[1991] RRA 560;3 OR (3d) 471;47 OAC 241;27 ACWS (3d) 922;JE 91-1054

Waldick v. Malcolm (1991), 125 N.R. 372 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Marvin Malcolm, Roberta Malcolm, Betty Stainback and Harry Hill (appellants) v. Norman Edward Waldick and Janet Marie Waldick (respondents)

(No. 21781)

Indexed As: Waldick et al. v. Malcolm et al.

Supreme Court of Canada

La Forest, Sopinka, Gonthier, Cory,

McLachlin, Stevenson and

Iacobucci, JJ.

June 27, 1991.

Summary:

The plaintiff visitor Waldick suffered per­sonal injuries in a fall on the icy parking lot of farm premises rented by the Malcolms from Stainback and Hill. The visitor and his wife sued the Malcolms and the landlords for damages for personal injuries. The action against the landlords and their cross-claim against the Malcolms was dismissed on consent, since the landlords were not occu­piers of the property.

The trial judge, in a decision reported in 61 O.R.(2d) 624; 43 D.L.R.(4th) 693, allowed the action and held the Malcolms liable as the occupiers of the property pur­suant to the Occupiers' Liability Act. By agreement, the assessment of damages was deferred until liability was determined. The Malcolms appealed.

The Ontario Court of Appeal, in a decision reported in 35 O.A.C. 389; 70 O.R.(2d) 717; 63 D.L.R.(4th) 583; 2 C.C.L.T.(2d) 22, dismissed the appeal. The Malcolms appealed.

The Supreme Court of Canada dismissed the appeal.

Evidence - Topic 2256

Judicial notice - Custom - General - The Supreme Court of Canada held that only in the rarest and most patently obvious of cases will the courts take judicial notice of a custom, and even this is a "dangerous practice" - See paragraph 33.

Torts - Topic 3503

Occupiers' liability for dangerous premises - Duty of occupier - General - Section 3(1) of the Ontario Occupiers' Liability Act imposed on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking rea­sonable care to protect such persons from reason­able harm - The Supreme Court of Canada stated that the intention of the Act was to replace, revive and harmonize the common law duty of care owed by occu­piers of premises to visitors on those premises - See paragraph 39.

Torts - Topic 3503

Occupiers' liability for dangerous premises - Duty of occupier - General - Section 3(1) of the Ontario Occupiers' Liability Act imposed on occupiers a duty to make their premises reasonably safe for persons entering them by taking reasonable care to protect such persons from reasonable harm - The Supreme Court of Canada held that the factors relevant to an assessment of what constituted reasonable care will nec­essarily be specific to each fact situation - One such circumstance is whether the nature of the premises is rural or urban - Another is local custom, the proof of which is on the party alleging that custom is in effect - However, the court held that the existence of customary practices which are themselves unreasonable or unaccept­able to courts in no way ousts the duty of care owed under s. 3(1) - See paragraphs 32 to 36.

Torts - Topic 3505

Occupiers' liability for dangerous premises - Duty of occupier - To visitors - Section 4(1) of the Ontario Occupiers' Liability Act absolved from liability those occupiers whose visitors "willingly assumed" the risk - A visitor to rural premises slipped on an icy parking lot which was not salted or sanded, fell and suffered personal injuries - The visitor wore proper footwear, was not hurrying, was aware the parking lot was treacherous (he had crossed it twice without mishap), was watching as best he could in the darkened conditions and parked in a reasonable spot - The Supreme Court of Canada affirmed that the visitor did not willingly assume the risk and was not barred from recovery under s. 4(1) - See paragraphs 37 to 48.

Torts - Topic 3708

Occupiers' liability for dangerous premises - Invitees - Liability of particular occu­piers - Parking lot - The occupiers of rural premises failed to salt or sand their laneways or parking areas - The parking lot had been slippery for four days when a visitor to the premises slipped, fell and suffered personal injuries - The Supreme Court of Canada affirmed that by doing nothing, the occupiers failed to meet the standard of reasonable care required of them under the Ontario Occupiers' Liabili­ty Act, and were liable for the visitor's damages - See paragraphs 27 to 36.

Torts - Topic 3724

Occupiers' liability for dangerous premises - Invitees - Duties of occupier - Duty to act reasonably - Section 3(1) of the Ontario Occu­piers' Liability Act imposed on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from reasonable harm - The Supreme Court of Canada stated that the intention of the Act was to replace, revive and harmonize the common law duty of care owed by occupiers of premises to visitors on those premises - See paragraph 39.

Torts - Topic 3724

Occupiers' liability for dangerous premises - Invitees - Duties of occupier - Duty to act reasonably - Section 3(1) of the Ontario Occupiers' Liability Act imposed on occupiers a duty to make their premises reasonably safe for persons entering them by taking reasonable care to protect such persons from reasonable harm - The Supreme Court of Canada held that the factors relevant to an assessment of what constituted reasonable care will necessarily be specific to each fact situation - One such circumstance is whether the nature of the premises is rural or urban - Another is local custom, the proof of which is on the party alleging that custom is in effect - However, the court held that the existence of customary practices which are them­selves unreasonable or unacceptable to courts in no way ousts the duty of care owed under s. 3(1) - See paragraphs 32 to 36.

Torts - Topic 6611

Defences - Contributory negligence - Knowledge of premises or dangerous premises - A visitor to rural premises slipped on an icy parking lot which was not salted or sanded, fell and suffered personal injuries - In an action against the occupiers, the trial judge held that the visitor was not contributorily negligent, where he was wearing proper footwear, was not hurrying, was aware that the parking lot was treacherous (he had crossed it twice without mishap), was watching as best he could in the darkened conditions and parked in a reasonable spot - The Supreme Court of Canada found no justification for interfering with the trial judge's conclusion - See paragraph 49.

Torts - Topic 6733

Defences - Consent - Assumption of risk - Implied consent - Dangerous premises - [See Torts - Topic 3505 ].

Words and Phrases

Risks willingly assumed - The Supreme Court of Canada discussed the meaning of the phrase "risks willingly assumed" as found in s. 4(1) of the Occupiers' Liability Act, R.S.O. 1980, c. 322 - The court affirmed that s. 4(1) codified the doctrine of volenti non fit injuria - Accordingly, in addition to knowledge of the risk, there must be a waiver of any legal claim which the visitor might have against the occupier in the event of injury - See paragraphs 37 to 47.

Cases Noticed:

Preston v. Canadian Legion, Kingsway Branch No. 175 (1981), 29 A.R. 532; 123 D.L.R.(3d) 645, refd to. [para. 10].

Dube v. Labar, [1986] 1 S.C.R. 649; 68 N.R. 97, refd to. [para. 14].

Donoghue v. Stevenson, [1932] A.C. 562, refd to. [para. 19].

Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186; 86 N.R. 241, refd to. [para. 24].

Dorion v. Roberge et autre (1991), 124 N.R. 1, refd to. [para. 34].

James v. River East School Division No. 9 (1975), 64 D.L.R.(3d) 338 (Man. C.A.), refd to. [para. 34].

Drewry v. Towns (1951), 2 W.W.R.(N.S.) 217, refd to. [para. 35].

Beatty v. Brad-Lea Meadows Ltd. (1986), 39 A.C.W.S.(2d) 334, refd to. [para. 41].

London Graving Dock Co. v. Horton, [1951] A.C. 737, disapprvd. [para. 42].

Bunker v. Charles Brand & Son Ltd., [1969] 2 All E.R. 59, refd to. [para. 43].

White v. Blackmore, [1972] 3 All E.R. 158, refd to. [para. 43].

Mitchell v. Canadian National Railway Co., [1975] 1 S.C.R. 592; 1 N.R. 344, refd to. [para. 44].

Statutes Noticed:

Negligence Act, R.S.O. 1980, c. 315, generally [para. 17].

Occupiers' Liability Act, R.S.O. 1980, c. 322, sect. 2 [paras. 9, 39-40]; sect. 3(1) [paras. 9-11, 13-14, 24, 27, 36]; sect. 4(1) [paras. 9, 14-16, 22-24, 37-39, 41, 43, 47-48]; sect. 9(3) [paras. 9, 17].

Occupiers' Liability Act, 1957 (U.K.), 5 & 6 Eliz. 2, c. 31 [paras. 23, 43].

Occupiers' Liability Act, 1984 (U.K.), c. 3, sect. 1(6) [para. 43].

Authors and Works Noticed:

Di Castri, Occupiers' Liability, p. 229 [para. 44].

Fleming, The Law of Torts (7th Ed. 1987), pp. 437 [para. 42]; 450 [para. 19].

Linden, A., Custom in Negligence Law (1968), 11 Can. Bar J. 151, pp. 153 [para. 30]; 154 [para. 34]; 162 [para. 35]; 167 [para. 33].

Ontario Law Reform Commission, Report on Occupiers' Liability (1972), pp. 14-15 [para. 12]; 634 [para. 15].

Counsel:

Earl A. Cherniak, Q.C., and Kirk F. Stevens, for the appellants;

R. Keith Simpson and Robert S. Fuller, for the respondents.

Solicitors of Record:

Lerner & Associates, Toronto, Ontario, for the appellants;

Brimage, Tyrrell, Van Severen & Hemeniuk, Simcoe, Ontario, for the respondents.

This appeal was heard before La Forest, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci, JJ., of the Supreme Court of Canada on February 26, 1991. The decision of the Supreme Court was delivered in both official languages on June 27, 1991, by Iacobucci, J.