Court File and Parties

Peterborough Court File No.: CV-18-00000205-00 Date: 2025-09-22 Ontario Superior Court of Justice

Between:

JOHN HUDSON and LYNN HUDSON, Plaintiffs

– and –

WAYNE DRAIN, HEATHER DRAIN and TODD DRAIN, Defendants

Counsel:

• William Wolfe and Michael Wolfe, for the Plaintiffs
• Robert Zochodne and Brad Zochodne, for the Defendants, Wayne and Heather Drain
• R. Steven Baldwin and Daniel Baldwin, for the Defendant, Todd Drain

Heard: September 8-12, 15-17, 2025

Reasons for Decision Re: Jury Questions

CHARNEY J.:

Introduction

[1] This action arises out of an injury sustained by the Plaintiff John Hudson when he fell out of a deer blind while hunting deer on a property owned by the Defendants Wayne and Heather Drain (Wayne and Heather[1]).

[2] The action was tried before a jury. Following the hearing of evidence and the closing of the Defendants' cases, an issue arose regarding the questions to be asked of the jurors. I heard argument on Friday September 12, 2025, and provided my bottom-line ruling on Monday September 15, 2025, with brief oral reasons and a copy of the jury questions which I considered appropriate based on that Ruling. I indicated that full written reasons would follow after the case was over. These are my Reasons.

Facts

[3] The undisputed facts of the case are that some time prior to November 4, 2016, Mr. Hudson was invited by his son-in-law, the Defendant Todd Drain (Todd), to go hunting on November 4, 2016, and to stay over at the hunting cabin that Todd was building on his property. On November 4, 2016, Mr. Hudson had lunch at Todd's cabin. Todd decided not to go hunting that day and remained in his cabin. Todd did not accompany Mr. Hudson when Mr. Hudson left to go hunting a few hours after lunch.

[4] Mr. Hudson, who was an experienced hunter, went hunting for deer on Wayne and Heather's 100 acre farm property, which is across the road from Todd's farm. Wayne and Heather are Todd's parents.

[5] The deer blind was a wooden structure constructed by unknown persons for a hunter to remain concealed while hunting. Todd left apples near the deer blind to attract deer and maintained trail cameras to monitor animal activity around the property.

[6] The deer blind was located in a spruce tree in the 15 acre wood lot in a corner of Wayne and Heather's property. The floor of the deer blind was about 12 – 15 feet off the ground.

[7] Mr. Hudson was alone. He climbed the ladder attached to the spruce tree and got into the blind using branches from the spruce tree. He put his gear in the blind first, and then pulled himself in through the opening on the north side. After sitting in a folding chair for about 1 ½ to 1 ¾ hours, his legs were stiff, so he stood up to stretch his legs, and somehow fell out of the blind, although he does not know how it happened. He testified that he believes he slid out of the blind feet first and that the floor of the deer blind was wet. Mr. Hudson was seriously injured in the fall.

Statement of Claim

[8] The Statement of Claim was issued on August 1, 2018. It set out allegations in relation to Wayne and Heather and separate allegations in relation to Todd.

[9] The allegations against Wayne and Heather were that they were "responsible for the care, control and maintenance of the premises" on which the Plaintiff suffered his injuries. The Plaintiff's allegations included that Wayne and Heather failed to maintain the premises in a safe condition for guests, wrongfully permitted the continued presence of a hazard on the premises, failed to maintain the deer blind to ensure that it would not break or give way, and allowed the hazard to constitute an unusual danger or trap for guests.

[10] The Plaintiff alleged that Wayne and Heather "breached their statutory duty as an occupier of the premises" and gave several particulars of that allegation. The reference to their "statutory duty as an occupier of the premises" is a reference to their duties as occupiers under the Occupiers' Liability Act, R.S.O. 1990, c. O-2 (the "OLA").

[11] Initially, the allegations against Todd did not expressly reference the OLA or his duty as an "occupier". The Plaintiff alleged that Todd instructed him to go to the deer blind on the Defendants' property. He claimed, inter alia, that Todd was negligent in the construction of the deer blind, failed to maintain the deer blind in a safe condition, wrongfully permitted the deer blind to constitute a hazard, failed to properly inspect the deer blind for the existence of possible danger, and failed to warn the Plaintiff of possible dangers. He also alleged that Todd "knew or ought to have known that the surface was unsafe and/or dangerous."

[12] There was no express allegation that Todd was an "occupier" or that the OLA applied to him in this case.

Amendment to the Statement of Claim

[13] On July 30, 2025, the Plaintiff brought a motion seeking to amend their Statement of Claim to allege that, at all material times, the Defendant, Todd Drain, was an "occupier" of the premises as defined by the OLA and was "responsible for and had control over the conditions of the deer blind or tree stand and the activities carried out thereon and control over the persons allowed to enter and use the premises."

[14] Todd opposed the amendment, arguing that any claim under the OLA was statute barred by operation of the Limitations Act, S.O. 2002, c. 24 because the amendment requested was a brand-new fact and a brand-new cause of action.

[15] The motion was heard by Christie J., who granted the motion to amend: Hudson v. Drain, 2025 ONSC 4499. Christie J. summarized the issues as follows, at paras. 21 and 22:

The Plaintiff submits that Todd Drain meets the definition of "occupier". This court provides no comment on whether it would agree with this proposition or not. This motion does not require this court to come to such a conclusion. The question on this motion is whether this amendment seeks to rely on facts which have been substantially pleaded in the initial Statement of Claim. If so, a new cause of action is not asserted. If not, a new cause of action is asserted – one that is statute barred.

In the view of this court, on this request to amend, the original Statement of Claim contained all the pleaded facts necessary to come to the legal conclusion that Todd Drain may be liable in negligence for breach of a duty of care, or liable for breaching his duty of care as an "occupier" in the OLA … The allegation that Todd Drain is an "occupier" is not a new cause of action but rather a legal conclusion that flows directly from the facts and allegations as originally pleaded.

[16] At para. 29 of her Reasons, Christie J. noted that the Defendant Todd Drain had already anticipated this argument in his Statement of Defence, where he stated:

This defendant was not an owner or occupier of the premises in question.

[17] Finally, Christie J. permitted the Defendants to serve and file an Amended Statement of Defence within 20 days of receiving the Amended Statement of Claim.

[18] The Plaintiffs amended the Statement of Claim on August 1, 2025. The amendment did two things: first, it struck out the allegation that Todd was responsible, in whole or in part, for the construction of the deer blind. By this point in time, the Plaintiff had determined that the deer blind was not built by Todd, but by some unknown person at some unknown time.

[19] Second, the Plaintiff amended para. 5 of the Statement of Claim to plead that Todd was an "occupier" within the meaning of the OLA. The amended Claim read:

Todd… was at all material times an "occupier" of the premises as defined by the Occupiers' Liability Act … Todd was responsible for and had control over the conditions of the deer blind or tree stand and the activities carried out thereon and control over the persons allowed to enter and use the premises. [Emphasis added.]

[20] It is significant for the purposes of my analysis below that the Plaintiffs' amendment to the Statement of Claim tracked directly the definition of "occupier" in s. 1 (b) of OLA, which defines "occupier" as:

1(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises;

[21] In response, Todd amended his Statement of Defence (Wayne and Heather were separately represented and had a separate Statement of Defence). As indicated in Christie J.'s Reasons, Todd's Statement of Defence already asserted that he was not "an owner or occupier of the premises at which the deer stand was located". The amendment added that the property was a "rural property" and that the parties had gathered there "for the recreational purpose of deer hunting".

[22] The following paragraphs were also added to Todd's Statement of Defence:

17. If this defendant was an occupier of the premises within the meaning of the Occupiers' Liability Act …which is expressly denied, then this defendant took such care as in all the circumstances of the case was reasonable to see that persons, including the plaintiff, were reasonably safe while on the premises.

18. This defendant pleads and relies upon the provisions of the Occupiers' Liability Act …

Withdrawal of the Amendment to the Statement of Claim

[23] On the first day of trial, counsel for the Plaintiff advised that the Plaintiff wanted to withdraw the amendment to the Statement of Claim, and was no longer alleging that Todd was an "occupier" within the meaning of the OLA. The Plaintiff was still continuing with his claim in negligence, but was no longer alleging that Todd was an "occupier", and that portion that was added to para. 5 of the Statement of Claim relating to Todd being an occupier (quoted at para. 19, above) would be deleted. Counsel stated:

Paragraph 5 clearly states that the allegation against Todd Drain in that paragraph is as an occupier under the Occupiers' Liability Act, so the allegation that he is an occupier, and those facts surrounding that, supporting that, are being withdrawn because there is no allegation his being an occupier anymore. No one is withdrawing the allegation of negligence, they are two separate things…so clearly para. 5, by withdrawing the occupiers allegation doesn't automatically delete all the allegations of negligence under the common law.

[24] The Plaintiff reaffirmed that he was not alleging that Todd had constructed the deer blind.

[25] The Plaintiff's request to withdraw the recently made amendment took Todd's lawyers by surprise.

[26] Todd's lawyer took the position that, with the Plaintiff's acknowledgment that Todd did not construct the deer blind, and now with the withdrawal of the allegation that Todd was an "occupier" withing the meaning of the OLA, there was no basis in the remaining pleadings to find Todd liable because there was no basis to argue that Todd owed the Plaintiff a duty of care. Once the OLA was removed, there was no claim left at common law negligence.

[27] After hearing argument from both sides, I permitted the Plaintiff to make the proposed amendment to his Statement of Claim, as he is presumptively entitled to do under Rule 26.01. All references to the OLA and the allegation that Todd was an "occupier" within the meaning of the OLA were deleted.

[28] There was no prejudice to Todd, since Todd already took the position that he was not an occupier under the OLA. Todd did not seek to amend his Statement of Defence in response to the Plaintiff's withdrawal of the amendment.

[29] As to the effect of the withdrawal of the amendment, and whether Todd owed any duty of care to the Plaintiff now that both parties agreed that Todd did not construct the deer blind and was not an "occupier" under the OLA, I ruled that would have to wait until all of the evidence was in, and I would hear argument and decide what, if anything, remained for the jury to decide.

Decision on the Jury Questions – Positions of the Parties

[30] Following the Defendants closing their case, I heard submissions from the parties regarding the questions that should be put to the jury. The issue revolved around the question of whether Todd owed Mr. Hudson a duty of care. The parties agreed that whether Todd owed the Plaintiff a duty of care is a question of law for the court to determine before the matter went to the jury: Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 16, at para. 19; Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at para. 24.

[31] First, the Plaintiff argued that Todd owed him a duty of care because Todd was the "organizer" of the hunt. Todd invited Mr. Hudson to go hunting on November 4, 2016. As the organizer of the hunt, Todd exercised control over it: Todd could invite guests and grant them permission to go on his parents' property. Todd also had control over the activity as illustrated by the fact that he left apples near the deer blind to attract deer and maintained trail cameras to monitor animal activity around the property. This relationship imposed a duty on Todd to take positive action to protect Mr. Hudson from harm.

[32] Second, the Plaintiff alleged that Todd had a duty of care based on the allegation that Todd went to the deer blind a couple of weeks before the hunt and removed a green carpet from the floor of the deer blind. This act of removing the green carpet caused the floor of the deer blind to be wet and slippery, creating a hazard. Removing the green carpet was an act of misfeasance.

[33] In making the first argument, the Plaintiff relies on the Supreme Court of Canada's decision in Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 SCR 1186. In that case, the principal issue was whether a ski resort (Sundance) had a positive duty at law to take certain steps to prevent a visibly intoxicated person from competing in the resort's dangerous "tubing" competition.

[34] The first issue was whether the ski resort owed the Plaintiff a duty of care. In finding a duty of care in this case, the Supreme Court stated, at paras. 23 and 24:

Sundance set up an inherently dangerous competition in order to promote its resort and improve its financial future. Sundance employees were in charge of the way in which the event was to be conducted. Sundance provided liquor to Crocker during the event and knew of Crocker's inebriated and injured condition before the start of the second heat. Sundance officials were well aware that Crocker's condition heightened the chance of injury. Both Beals and Durno questioned Crocker's ability to continue. It is clearly not open to Sundance to characterize itself as a stranger to Crocker's misfortune. The nexus between Sundance and Crocker is much too close for that. Sundance must accept the responsibility as the promoter of a dangerous sport for taking all reasonable steps to prevent a visibly incapacitated person from participating.

It would seem a fortiori that when a ski resort establishes a competition in a highly dangerous sport and runs the competition for profit, it owes a duty of care towards visibly intoxicated participants.

[35] Having found a duty of care, the Supreme Court then found that the ski resort had a duty to take reasonable steps to protect the plaintiff from injury. The Court concluded that the ski resort failed to meet that standard of care.

[36] The Plaintiff argues that his case is analogous to Crocker in that Todd organized an inherently dangerous activity (hunting in a deer blind in a tree) and Todd was in charge of the way the activity was conducted. Even though it was not organized for personal profit, the Plaintiff argues that there is sufficient proximity to give rise to a duty of care.

[37] The Defendant argues that, even assuming the Plaintiff's allegations to be true (and they were disputed at trial), the Plaintiff has simply described the relationship defined as "occupier" in s. 1 (b) of the OLA. Having disavowed any reliance on the OLA, the Plaintiff cannot rely on the same relationship to found an argument in common law negligence, because, by its express terms, the OLA applies in place of the common law.

[38] The Defendant notes that the accident at issue in Crocker occurred in the winter of 1980, a few months prior to the Occupiers' Liability Act, SO 1980, c. 14 receiving royal assent on May 20, 1980. As such, the case was decided exclusively on the basis of the common law, and no reference was made by any of the courts to the OLA.

Occupiers' Liability Act

[39] In order to understand the Defendant's position, it is necessary to first review some of the provisions of the OLA.

[40] The history and purpose of the OLA is summarized by the Court of Appeal in Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640, at para. 22:

At common law, persons entering an occupier's premises were traditionally defined as invitees, licensees or trespassers, and the duty of care owed by the occupier to such persons was determined on this basis. In 1980, the legislature enacted the Occupiers' Liability Act, S.O. 1980, c. 14… with the intention of replacing, refining and harmonizing the duty of care owed by occupiers to visitors on their premises…

[41] Section 1 of the OLA includes two definitions of the word occupier:

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises.

[42] Wayne and Heather fall within s. 1(a) of the Act, and the Plaintiff's short-lived amendment alleged that Todd fell within s. 1(b).

[43] Section 2 of the OLA is the section that expressly provides that the OLA applies in place of the common law for the purposes of determining the occupier's liability in law. It states:

Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier's liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.

[44] As the Court of Appeal explained in Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, at paras. 25 and 26, the legislature's intention, made clear by s. 2, was to make the OLA "exclusive and comprehensive, in so far as the liability of occupiers is concerned". The Court concluded in Schnarr, at para. 60:

In my view, the OLA was therefore intended to be an exhaustive scheme at least in relation to the liability of occupiers to entrants on their premises flowing from the maintenance or care of the premises.

[45] As in Schnarr, two critical sections of the OLA for the purpose of this case are ss. 3 and 4, which establish different levels of duty of care depending on the context.

[46] Section 3 establishes the general duty of care applicable to most occupiers. It provides:

3(1) An occupier of premises owes a duty 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.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier's duty.

[47] This is the duty of care that applies in the common "slip and fall" cases in which a customer slips on an icy parking lot at the shopping mall or is injured while grocery shopping.

[48] Section 4(1) provides for a lesser duty of care in the specific circumstances and types of premises set out in subs. 4(3) and (4). The relative passages of s. 4 provide as follows:

4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

(3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1),

(c) where the entry is for the purpose of a recreational activity and,

(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and

(ii) the person is not being provided with living accommodation by the occupier.

(4) The premises referred to in subsection (3) are,

(a) a rural premises that is,

(i) used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,

(ii) vacant or undeveloped premises,

(iii) forested or wilderness premises;

[49] Thus, where a person enters a rural premises used for agricultural purposes, including woodlots and forested premises, and the entry is for recreational purposes and no fee is paid, the person is deemed to have willingly assumed all risks, and the occupier's legal duty is "to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property".

[50] The Court of Appeal has described the duty of care established by s. 4(1) as a "lesser duty of care" than the duty of care established by s. 3(1): Schneider at para. 14. "Where s. 4(1) applies, it does in fact dislodge the duty of care imposed by s. 3(1) and imposes on an occupier a lesser duty than the duty imposed in s. 3(1)": Schneider at para. 37.

[51] The Court has also explained that the legislative policy for including s. 4 in the OLA is "to encourage private landowners to voluntarily make their property available for recreational activities by limiting their liability": Schnarr at para. 28.

Application of the OLA to the Present Case

[52] There was no dispute in this case that Wayne and Heather's property qualified as a rural property used for agricultural purposes under s. 4, and that Mr. Hudson entered the Drain property for recreational purposes and did not pay any fees. Mr. Hudson was therefore "deemed to have willingly assumed all risks" and Wayne and Heather owed the lesser duty of care "to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property".

[53] There was no allegation that Wayne and Heather created a danger with deliberate intent – they did not even know that the deer blind was on their property – and so the first question for the jury was whether Wayne and Heather acted "with reckless disregard" of the presence of Mr. Hudson.

[54] If Todd were an "occupier" under the OLA, s. 4 would also apply to him, and he would be subject to the lesser duty of care in s. 4(1). Section s. 4(1) would "dislodge the duty of care imposed by s. 3(1) and imposes on an occupier a lesser duty than the duty imposed in s. 3(1)". Moreover, if Todd is an occupier and s. 4(1) applies, Mr. Hudson is "deemed to have willingly assumed all risks". If Todd is not an occupier under the OLA, then Todd has the burden of proving that Mr. Hudson willingly assumed all risks.

[55] It is for this reason that the Plaintiff withdrew the allegation that Todd was an "occupier" under the OLA, and sought to base his case exclusively on Todd's common law duty to take reasonable care – a duty that is substantially identical to the higher s. 3(1) OLA duty of care.

[56] The fundamental flaw in the Plaintiff's position, however, is s. 2 of the OLA, which provides that the OLA "applies in place of the rules of the common law". If Todd is an "occupier" within the meaning of s. 1 (b) of the OLA, then the common law duty does not apply.

[57] Moreover, I agree with counsel for Todd that once the Plaintiff withdraws his allegation that Todd is an "occupier" within the meaning of s. 1 (b), he can no longer claim that Todd owes a common law duty of care by virtue of Todd's "responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises". If that were the basis for Todd's duty of care, we would be back into the OLA, because, as the Court of Appeal concluded in Schnarr, the OLA is intended to be (at para. 23) "exclusive and comprehensive, in so far as the liability of occupiers is concerned" and (at para. 60): "the OLA was therefore intended to be an exhaustive scheme at least in relation to the liability of occupiers to entrants on their premises flowing from the maintenance or care of the premises".

[58] The Plaintiff cannot evade the OLA by withdrawing the allegation that Todd is an "occupier" – defined as a person with responsibility over the conditions of the premises or activities carried on or control over the persons allowed to enter the premises - but still assert that Todd owes a common law duty of care by virtue of Todd's alleged responsibility over the conditions of the premises or activities carried on or his alleged control over the persons allowed to enter the premises.

[59] The result of the Plaintiff's withdrawal of the amendment and his counsel's statement that "the allegation that [Todd] is an occupier, and those facts surrounding that, supporting that, are being withdrawn because there is no allegation his being an occupier anymore", combined with Todd's consistent position that he was not an occupier, meant that both parties agree that Todd is not an occupier. If the parties agree that Todd is not an occupier, Todd can owe no duty of care by virtue of being an occupier.

[60] The Plaintiff made two arguments in response to this conclusion.

[61] The first was that the OLA applies in place of the common law only with respect to "occupiers" as defined in s. 1 (a) of the OLA, and not occupiers as defined in s. 1 (b). The Plaintiff argues that a person suing a s. 1 (b) occupier has the choice to proceed under either the common law or the OLA. Mr. Hudson has chosen to proceed under the common law.

[62] This argument is without textual foundation in the OLA and is contrary to the principles of statutory interpretation that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. There is simply nothing in the scheme of the OLA that could lead to the conclusion that "occupiers" as defined by s. 1 (b) are to be treated differently under the OLA than "occupiers" as defined by s. 1 (a).

[63] The Plaintiff's second argument relates to s. 9(1) of the OLA, which does provide an exception to s. 2. Section 9(1) provides:

9 (1) Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of,

(a) innkeepers, subject to the Innkeepers Act;

(b) common carriers;

(c) bailees.

[64] The Plaintiff argues that since the common law imposes a higher duty of care than the OLA, the common law overrides OLA.

[65] This argument is rejected for two reasons.

[66] First, this interpretation would effectively nullify s. 4(1) of OLA, and is inconsistent with the interpretation of s. 9(1) adopted by the court of Appeal in Schnarr, at para. 54:

Section 9(1) of the OLA provides that the statute does not restrict the imposition of a higher liability or standard of care upon occupiers. It provides innkeepers, common carriers, and bailees as examples of where a higher liability or standard of care would apply even if those classes of persons are simultaneously occupiers. The class of persons is not exhaustive in s. 9(1). However, in my view, the type of situations that would impose a "special liability or standards of care" on occupiers under s. 9(1) should be read ejusdem generis and be restricted to situations that are similar to the enumerated examples.

[67] There is no higher standard of care imposed by "virtue of any enactment or rule of law" in the circumstances of this case. This is not a situation that is similar to the enumerated examples. No "class of persons" – apart from the general class of "occupiers" – has been identified that could support the application of s. 9(1) to this case.

[68] Second, and perhaps more importantly, s. 9(1) only applies to "occupiers" under the OLA. Because the Plaintiff withdrew the amendment and the allegation that Todd is an occupier, s. 9(1) of the OLA can have no application to this case.

Conclusion #1

[69] Accordingly, to the extent that the Plaintiff's claim is based on the allegation that Todd owes a common law duty of care by virtue of his alleged responsibility over the conditions of the premises or activities carried on or his alleged control over the persons allowed to enter the premises, I held that the Plaintiff's withdrawal of the allegation that Todd was an "occupier" under the OLA meant that these questions could not be put to the jury. This eliminated all allegations relating to nonfeasance, since allegations of nonfeasance are based on Todd being under a duty of care as an "occupier" as defined by s. 1 (b) of the OLA.

Allegation of Misfeasance

[70] Todd argues that the withdrawal of allegations that he was an occupier under the OLA should bring an end to the Plaintiff's case against him, because there is no other basis on which he can be found to owe a duty of care to the Plaintiff.

[71] In my view, one viable allegation unrelated to the OLA remains. This is the Plaintiff's allegation that Todd removed a green artificial turf carpet from the floor of the deer blind a couple of weeks before the November 4, 2016 accident. The Plaintiff argues that the removal of the green carpet was an act of misfeasance that resulted in the floor of the deer blind being wet and slippery, and that this caused Mr. Hudson to fall from the blind.

[72] If Todd removed the green carpet from the deer blind, it is arguable that Todd owed any future users of the blind a duty of care regardless of Todd's status or lack of status as an occupier under the OLA. The argument here is that Todd, by a positive act, made the deer blind less safe for future users. If this allegation is true, then Todd owed a duty of care to future users even if Todd was a complete stranger. Since there is no longer any allegation that Todd was an "occupier", Todd's liability for allegedly damaging the deer blind would be based on the common law. It would then be open to the jury to decide whether Todd's action in removing the artificial turf fell below the conduct of a reasonably prudent or reasonably careful person, and whether the removal of the artificial turf caused Mr. Hudson to fall or slip from the deer stand.

Conclusion #2

[73] Accordingly, I ruled that the Plaintiff could ask the jury questions relating to Todd's potential negligence for allegedly removing the green carpet.

Green Carpet Questions

[74] The Defendant argued that questions concerning the removal of the green carpet should not be put to the jury because there was no factual foundation for the allegation that Todd had removed it.

[75] The Statement of Claim alleges that Todd "knew or ought to have known that the surface [of the deer blind] was unsafe and/or dangerous."

[76] In his examination for discovery in 2019, Mr. Hudson testified that the green carpet was not on the floor of the deer blind when he entered it on November 4, 2016.

[77] In July 2020 Mr. Hudson's lawyer wrote to Todd's lawyer to "correct" an answer Mr. Hudson had given in his examination for discovery in 2019. The "correction" indicated that the wood floor of the deer blind was wet and slick, a statement that Mr. Hudson had forgotten to make in his examination for discovery.

[78] The Plaintiff served the Defendants with an expert report dated January 12, 2021. The report, from a forensic structural engineer, stated:

Additionally, Mr. Hudson reported that the plywood platform was wet and slick on the date of the incident. Although wood is generally considered to be slip resistant material, it can become slippery when expose to moisture due to algae and mould growth. As we understand, green turf carpeting was originally placed on the plywood platform of the treestand; however it had been removed at some time prior to the date of loss and was lying on the ground beside the tree when Mr. Hudson arrived at the tree stand. Had the treestand platform been covered with an anti-slip material such as the turf material, it would have provided an additional safety measure…to limit the likelihood of a slip and fall.

[79] Thus, since at least 2021, the Defendants have known that the Plaintiff was alleging that he fell or slipped out of the deer blind because the floor was wet and slick and that this was caused by the removal of the green carpet.

[80] In his examination in chief at trial, Mr. Hudson testified that when he went into the blind that evening the green carpet on the plywood floor had been removed and was at the bottom of the tree. He did not know when it was removed or who removed it. After sitting in the folding chair for about 1 ½ to 1 ¾ hours, his legs were stiff so he stood up to stretch his legs, and somehow fell out of the blind, although he does not know how it happened. He testified that he believes he slid out of the blind feet first. He was "pretty sure" that he slipped because the floor was wet.

[81] The forensic structural engineer also testified at the trial. Her testimony was the same as her January 2021 report.

[82] Todd Drain testified that he went to the deer blind a couple of weeks before the accident and installed a folding chair. While he was there, he noticed racoon feces on the deck, and kicked it away with his boot. He stated that the green carpet was still on the floor when he came to the deck that day. He expressly denied removing the green carpet when the allegation was put to him in cross-examination. He also testified that the green carpet was there when he went to see the site after the accident.

[83] The Plaintiff argued that there were sufficient facts at trial to put the green carpet questions to the jury. In particular, although Todd expressly denied removing the carpet, the evidence was that he had been to the deer blind two weeks before the incident. If the jury believed Mr. Hudson that the green carpet was not on the floor of the deer stand on November 4, 2016, it was open to them to draw an inference that the carpet must have been removed by Todd.

Conclusion #3

[84] In my view, there were sufficient facts to put these questions to the jury.

Jury Questions – Todd Drain

[85] After consultation with counsel, the following jury questions were put to the jury in relation to Todd Drain[2]:

7. On the balance of probability, was the artificial turf on the floor of the deer stand on November 4, 2016?

Answer: Yes or No Answer:________

8. If the answer to Question 1 is No: On the balance of probability, did Todd Drain remove the artificial turf from the floor of the deer stand?

Answer: Yes or No Answer:________

9. Did John Hudson voluntarily assume the risk of injury when he climbed into the deer blind on November 4, 2016?

Answer: Yes or No Answer:________

10. If the answer to Question 9 is No: Did Todd Drain's action in removing the artificial turf fall below the conduct of a reasonably prudent or reasonably careful person?

Answer: Yes or No Answer:________

11. If the answer to Question 10 is Yes: Did the removal of the artificial turf cause Mr. Hudson to fall or slip from the deer stand?

Answer: Yes or No Answer:________

12. Did John Hudson's own negligence on November 4, 2016 contribute to his injuries?

Answer: Yes or No Answer:________

13. If the answer to Question 12 is Yes: Provide particulars of how Mr. Hudson's negligence contributed to his injuries.

[86] Counsel for Todd objected to the first two questions, arguing that they focused too much attention on the green carpet. Counsel for Todd argued that the jury should be asked the following more general questions that make no reference to the green carpet:

7. Did the Defendant Todd Drain fail to meet a standard of care required by him that caused injury to John Hudson on November 4, 2016?

8. If your answer to #7 is yes, provide particulars of the failure of Todd Drain to meet the standard of care required by him that caused injury to John Hudson on November 4, 2016.

[87] I rejected these proposed questions for two reasons. First, Todd's proposed question 7 is a compound question that combines standard of care and causation into one question, even though they are two distinct questions. In my view, it would unduly confuse a jury to combine these two separate issues into a single question. The Court of Appeal has stated that the jury should not be asked compound questions: Sacks v. Ross, 2017 ONCA 773, at para. 62.

[88] More importantly, in my ruling on the withdrawal of the OCL amendment, I concluded that the only allegation of negligence that survived the withdrawal of the amendment was the allegation relating to the alleged removal of the green carpet.

[89] In Sacks, at para. 62, the Court of Appeal stated:

The required characteristics of jury questions are plain enough. They should be tailored to the specific findings of fact necessary to decide the case. Jury questions should respond to the facts in issue and be logically sequential. They should be expressed as simply and clearly as possible…

[90] Since the only allegation that had to be considered related to the alleged removal of the green carpet, the questions I proposed were "tailored to the specific findings of fact necessary to decide the case." This was made clear in my instructions to the jury:

157. For legal reasons that I am not going to explain, you must make two factual findings before you can consider Todd Drain's liability in this case. These factual findings do not mean that Todd Drain is liable, but they are findings that you must make before you can consider the issue of Todd Drain's liability.

158. Question 7: The first factual finding is whether you find, on a balance of probabilities, that the green artificial turf was on the floor of the deer stand when the accident occurred on November 4, 2016.

159. Question 8: If you find that the artificial turf was not on the floor of the deer stand on November 4, 2016, the second factual finding is whether you find, on a balance of probabilities, that it was Todd Drain who removed the artificial turf.

160. It is only if you answer yes to this last question – that, on a balance of probabilities it was Todd Drain who removed the artificial turf prior to November 4, 2016, that you will go on to consider the next questions. If you are not persuaded, on the balance of probabilities, that it was Todd Drain who removed the artificial turf, then your deliberations in relation to Todd Drain will be at an end.

[91] In the final result, the jury answered yes to the first question, finding that the artificial turf was on the floor of the deer stand on November 4, 2016. Given that answer, it was not necessary for them to consider any of the other questions, and the action against Todd Drain was dismissed.

Justice R.E. Charney

Released: September 22, 2025

Footnotes

[1] Since the three defendants have the same last name, I will refer to them by their first name in these Reasons.

[2] The jury questions relating to Wayne and Heather were questions 1 - 6, so the questions relating to Todd began at #7.