Court File and Parties

Citation: Beaux Properties v. Karren Lynn Revoy, 2012 ONSC 6963 Divisional Court File No.: 53/12 Date: 2012-12-07 Superior Court of Justice – Ontario Divisional Court

Re: Beaux Properties, Appellant/Defendant And: Karren Lynn Revoy, Respondent/Plaintiff

Before: Pardu J.

Counsel: Michael T. Ross, for the Appellant Cameron R.B. Fiske, for the Respondent

Heard: December 4, 2012

Endorsement

[1] Beaux Properties, the owner of a parking lot, appeals from a Judgment of the Small Claims Court finding it liable for damages for injuries sustained by the Respondent Karren Revoy when she walked through the parking lot at night. The parking lot was poorly lit; a number of the light bulbs had burnt out but not been replaced. The Respondent tripped over a double asphalt curb. It was difficult to see because it matched the surface of the parking lot. The double curb was an unusual feature that made the area more hazardous.

[2] The trial judge found that the Appellant had failed to take reasonable care to ensure that persons entering the premises are reasonably safe while on the premises.

[3] The Appellant submits that the trial judge erred in failing to conclude that Revoy was a trespasser and that she had willingly assumed any risks of injury when she entered the parking lot.

[4] Revoy lives in the area and has for about 20 years routinely cut across the parking lot, about 5 times a week. Many others did the same. The area is not fenced and one posted sign indicates that parking was for authorized vehicles only and that unauthorized vehicles would be towed.

[5] This sign does not clearly apply to pedestrians, and was posted near one of the entrances to the parking lot.

[6] The trial judge accepted that the plaintiff was unaware that walking across the parking lot was not authorized and found that the appellant knew that pedestrians used the parking lot as a shortcut to various locations, including the subway.

[7] He found that the Appellant knew that pedestrians crossed the parking lot and never took any steps to prevent them from doing so.

[8] Section 3(1)(b) of the Trespass to Property Act, R.S.O. 1990 c.T. 21 provides that "Entry on premises may be prohibited by notice to that effect" and that "entry is prohibited where property is enclosed in a manner that educates the occupier's intention to keep persons off the premises".

[9] Section 5(1) provides that notice under the Act may be given orally or in writing or "by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies".

[10] The parking lot was not fenced. The one sign at one of the entrances to the parking lot did not explicitly forbid entry to pedestrians. There were 3 other sides to the parking lot which permitted access to pedestrians crossing the lot. The one sign said,

Private property Authorized Parking Only Unauthorized vehicles will be tagged and/or towed away at owners expense

[11] In light of the factual findings she made, which were reasonably open to her on the evidence, the trial judge did not err in concluding that this sign was not effective to bar entry to pedestrians like the Plaintiff.

[12] S. 4(1) of the Occupiers' Liability Act, R.S.O. 1990 c.O.2 provides that the duty of care under that Act does not apply "in respect of risks willingly assumed by the person who enters on the premises".

[13] The Appellant submits that the Plaintiff knew this was private property and must be assumed to have assumed the risks of crossing a poorly lit parking lot at night and the risks passing between vehicles properly parked there.

[14] This defence has been narrowly construed in Waldick v. Malcolm, 1991 71 (SCC), [1991] 2 S.C.R. 456 at para. 48 Iacobucci J. said,

In my view, the legislature's intention in enacting s. 4(1) of the Act was to carve out a very narrow exception to the class of visitors to whom the occupier's statutory duty of care is owed. This exception shares the same logical basis as the premise that underlies volenti, i.e."that no wrong is done to one who consents. By agreeing to assume the risk the plaintiff absolves the defendant of all responsibility for it": per Wilson J. in Crocker, supra at p. 1201. Rare may be the case where a visitor who enters on premises will fully know of and accept the risks resulting from the occupier's non-compliance with the statute. To my mind, such an interpretation of s. 4(1) accords best with general principles of statutory interpretation, is more fully consonant with the legislative aims of the Act, and is consistent with tort theory generally.

[15] The trial judge made no palpable and overriding error in concluding that the Plaintiff had not "willingly assumed all risks" of entering the parking lot.

[16] Accordingly, the appeal is dismissed with costs to the Plaintiff, Respondent in appeal in the agreed upon amount of $3,000.

Pardu J.

Date: December 7, 2012