Case: Osmond v. Watkins, 2018 ONCA 386 (CanLII)
Keywords: Roof; Negligence; Tradespersons; Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
The Respondents hire the Appellant, Mr. Osmond, to complete the construction of a two-story front porch at their house. The Appellant falls from the roof while performing the work and is seriously injured.
The Appellant alleges the Respondents failed to provide him with safety equipment. He sues for damages in negligence and breach of duty under s. 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
The Respondents move for summary judgment and the Appellant’s action is dismissed. The Appellant appeals on the basis that, since material facts and the credibility of the parties are disputed, there are genuine issues for trial. The Court of Appeal is not persuaded and the appeal is dismissed.
The decision is important because the Ontario Court of Appeal adopted the applicable standard of care in these circumstances from an Alberta Court of Appeal decision: Mahe v. Boulianne, 2010 ABCA 32 (CanLII). The Court reproduced paras. 11, 12 and 15 of that decision as follows:
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.]
This raises an interesting question: to what extent is an occupier responsible to ensure the safety of trained professionals or tradespersons retained to provide skilled work on their property? For the Court of Appeal, there was no authority for the Appellant’s submission that “…knowledge of a lack of experience on the part of the plaintiff would override or negate” the basic duty imposed on the Respondents. (See para. 6). For the Appellant, additional obligations arose from the fact he was not particularly experienced – but was there evidence the Respondents knew? Does it matter, in any event, whether they did?
The Court of Appeal was not persuaded the Motions Judge’s key findings required a full trial before they could be made. The Court of Appeal noted there was no evidence the Appellant was inexperienced in performing roofing work and no evidence the Respondents were aware he lacked the necessary experience. (See para. 9).
On the other hand, there was evidence the Respondents did not exercise any form of supervision or control over the Appellant and that he had been directed to leave roofing work for the roofer (specifically hired to do this portion of the job). (See para. 10).
The Court of Appeal determined both that the Motion Judge did not err in deciding the case by way of summary judgment, and that there was no basis to intervene in the decision itself. (See para. 11). For the Court of Appeal, all one need do in these circumstances is ensure the premises are “reasonably safe” as per Mahe v. Boulianne – there was no obligation to monitor the Appellant, as a professional tradesperson, or ensure that he conducted himself safely and appropriately. (See para. 5).
Counsel for the Appellant: Daniel D’Urzo (Grillone Bekiaris LLP, Mississauga)
Counsel for the Respondents: Derek Zulianello (Buset & Partners LLP, Thunder Bay)