MacPherson v. Strait Regional Center for Education, 2023 NSSC 167 (CanLII)
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By: Alexandre Doucet (Articled Clerk)
This matter concerned what is known as “occupiers’ liability”, a duty of care on the property’s occupier to ensure that all visitors are reasonably safe. MacPherson (hereinafter the “Plaintiff”) tripped and fell in a washed-out rut on the exterior grounds of the St. Andrews Consolidated School (hereinafter the “School”) in Antigonish County, Nova Scotia.
Occupiers’ liability is a unique duty of care in Canada and is not legislated in all provinces; as of the date of publication, provinces where it is legislated include Nova Scotia, Ontario, British Columbia, and Alberta. In contrast, New Brunswick abolished occupiers’ liability legislation (see Law Reform Act, RSNB 2011, c 184), which means that liability for a slip and fall in New Brunswick is determined on general negligence principles, not occupiers’ liability (although this does not mean owners are absolved from maintaining reasonably safe premises).
In this Nova Scotia case, the Honourable Justice Jeffrey R. Hunt first dealt with listing the relevant provisions of the Occupiers’ Liability Act, S.N.S. (1996) c. 27 (hereinafter the “OLA”). Per subsection 4(1) of the OLA, an occupier of the premises owes a duty to take such care as is reasonable so that those brought onto the premises or property are reasonably safe while on it. This duty of the occupier extends to the condition of the premises, activity on the premises and the conduct of third parties on the premises (OLA, s. 4(2)).
Immediately after his fall, the Plaintiff emailed the School to explain that the area where he fell was not lit. The Plaintiff had been on a shortcut when he fell, just metres shy of a well-lit path maintained by the School. Justice Hunt found that it was unreasonable to expect the shortcut to be lit. He cited case law on the OLA which makes it clear that the duty to make the premises “reasonably safe” does not mean that there must be “constant surveillance and immediate response” or that one must “remove every possibility of danger” [para 82]. As the standard of care is reasonableness, not perfection, and because the Plaintiff sought out the unlit shortcut path instead of the safer one made available to him, Justice Hunt found that the Plaintiff failed to carry his burden of proof in this matter.