Court of Appeal for Ontario

Date: 2018-04-19 Docket: C64477

Justices: Benotto, Brown and Miller JJ.A.

Between

Tony Leo Osmond Plaintiff (Appellant)

and

Christopher Charles Watkins and Jasmine Catherine Watkins Defendants (Respondents)

Counsel

Daniel D'Urzo, for the appellant

Derek Zulianello, for the respondents

Heard and Released

Heard and released orally: April 17, 2018

On appeal from: the order of Justice David A. Broad of the Superior Court of Justice, dated September 27, 2017, with reasons reported at 2017 ONSC 5729.

Reasons for Decision

Facts and Background

[1] The respondents, Christopher and Jasmine Watkins, hired the appellant, Tony Osmond, to complete the construction of a two-story front porch at their residence. The appellant fell from the roof of the porch while performing the work and was seriously injured.

[2] The appellant sued the respondents alleging negligence, breach of duty of care, and breach of their duty under s. 3(1) of the Occupiers' Liability Act, R.S.O. 1990, c. O.2, to "take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises." His primary allegation was that the respondent homeowners, as the occupier of the premises on which the construction work was performed, were negligent in failing to provide him with safety equipment.

Motion Judge's Decision

[3] The respondents moved for and obtained summary judgment dismissing the appellant's action. The appellant appeals. His main argument is that since material facts were in dispute and the credibility of the parties was in issue, the motion judge erred in concluding there were no genuine issues requiring a trial.

[4] We are not persuaded by the appellant's submission.

Applicable Standard of Care

[5] The motion judge adopted, as the applicable standard of care in the circumstances, that stated by the Alberta Court of Appeal in Mahe v. Boulianne, 2010 ABCA 32, 474 A.R. 223, at paras. 11, 12 and 15:

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.]

[6] The appellant does not submit the motion judge erred in adopting those principles, nor does he point to any other case that sets a different standard of care for such circumstances. Nor did the appellant offer any authority for the proposition that knowledge of a lack of experience on the part of the plaintiff would override or negate the principles of law stated by the Alberta Court of Appeal in Mahe.

Factual Disputes and Palpable Error

[7] The appellant contends the motion judge made two fact-related errors: (i) he determined the case in the face of contested material facts; and (ii) he made palpable and overriding errors of fact. The errors, according to the appellant, relate to the issue of whether the appellant or the respondents controlled and directed the renovation work.

[8] We are not persuaded by this submission. Before the motion judge was evidence from each of the parties, together with an affidavit from a non-party witness, Rolind Okerlund, who was part of the work crew assembled by the appellant to perform the work.

[9] The motion judge made several key findings of fact: (i) there was no evidence the appellant's fall was caused by any defect in or lack of repair affecting the premises or any hazardous conditions associated with the premises themselves; (ii) there was no dispute the appellant was performing the renovation work for valuable consideration; (iii) there was no basis for a contractual claim that the respondents had failed to furnish the appellant with safety equipment; (iv) there was no evidence the appellant was inexperienced in performing roofing work or working at heights; and (v) the evidence did not support a finding that the respondents were aware the appellant lacked the necessary experience to carry out the project.

[10] The appellant has not persuaded us that any of those key findings amounted to a palpable and overriding error of fact or required a full trial before they could be made. As well, it is significant that in his affidavit Mr. Okerlund – who was the only independent witness and who was not cross-examined – deposed that: (i) the respondents did not exercise any form of direct supervision or control over the appellant; (ii) a roofer had been hired to do the roofing portion of the job; and (iii) on the day of the fall, Mr. Okerlund had told the appellant he should leave the roofing work for the roofer.

Conclusion

[11] Accordingly, we are not persuaded that the motion judge erred in deciding the case by way of a summary judgment motion or that there is any basis for appellate intervention in the judgment he granted.

[12] The appeal is dismissed.

[13] Based on the agreement of the parties, the respondents are entitled to their costs of the appeal fixed at $8,500, inclusive of disbursements and applicable taxes.

"M.L. Benotto J.A." "David Brown J.A." "B.W. Miller J.A."