Case: Saisho v. Loblaw Companies Limited, 2015 ONCA 172

Keywords: negligence, occupier liability, standard of care, duty of care

Synopsis: The plaintiff, now deceased, was injured in an accident at a bulk item grocery store. He was 90 years old at the time and was struck by another customer’s overloaded shopping cart while walking slowly with a cane to his car. The evidence was that “cashiers do not assist customers in loading their own purchases into their carts”. The plaintiff brought an action against the store alleging it breached the duty of an occupier to keep its premises reasonably safe. The trial judge dismissed the action. The C.A. dismissed the appeal.

Importance: This case is a reminder of the somewhat blunt nature of the law and that even where there are very sympathetic facts for a plaintiff, all the elements of a tort must be present in order to find a defendant negligent. Despite the tragic outcome, the store’s conduct was “reasonable in all the circumstances and the law requires nothing more.” (para. 25)

Section 3 of the Occupiers’ Liability Act imposes a duty on the occupier of premises to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe while on the premises. The C.A. confirmed what would satisfy the standard of care required of a store. A store must take reasonable care and the store in this case had a written store policy which provided:

“10. Be on the alert for potentially dangerous activities by patrons; those carrying leaking containers, drinks, broken bags or failing to control their children, etc. If they are creating a hazard for others I must ask them to stop. If they will not, I must contact my supervisor or store manager immediately.”

Employees were expected to be diligent if they saw something dangerous occurring, but the standard did not require the store to take steps to specifically address the problem of overloaded carts. The Court stated that such a standard would “be to require a standard of perfection and that is not what the law requires.” Key to this case appears to have been the fact that the accident occurred “in a matter of seconds” and the nearest cashier was unaware of the overloaded cart.

Counsel for the AppellantPaul Pape & Joanna Nairn (Pape Barristers, Toronto)

Counsel for the RespondentsChantal Brochu (Buset & Partners LLP, Thunder Bay)

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