C.A. Confirms that Occupiers Are Not Insurers

In Doyle v. Petrolia, released a few minutes ago, the Court of Appeal has reaffirmed the principle, that occupiers of property are not insurers. The Occupier’s Liability Act does not require that occupiers of property guard against every possible risk, only those in the category of contingencies normally to be foreseen.

In this case, a town councillor observed someone running in a park. The runner attempted to hurdle a park bench. He damaged it in the course of doing so and left it upended. Later, someone returned the bench to its original position, making it impossible for the plaintiff to see that the bench was damaged.

The trial judge had held the municipality liable for failure to have adequate on-site security and for the failure on the part of the councillor (who had seen the original damage to the bench, but apparently not its restoration to an upright position) to report the condition of the bench.

The Court of Appeal reversed the ruling, holding that the trial judge had applied the wrong test. It noted:

The actions of the “hurdler” in causing damage to the bench were not the cause of Ms. Doyle’s [the plaintiff’s] injuries. Had nothing more been done after the “hurdler” incident, the bench would have remained in its upended position and it would have been obvious to all that the bench was not useable. The problem here arose because someone, after Mr. Vanderwal’s [the councillor’s] observations, returned the bench to its upright position. To do so, it was necessary to take a broken park bench and return it to its normal upright position in such a way that it made the bench appear like all the other benches in the park. This occurrence was not, in our view, sufficiently probable to be included in the category of contingencies normally to be foreseen by the Town, as required by the test in Alchimowicz

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