Carfra Lawton LLP | Victoria BC

    Court of Appeal confirms there is only one occupier’s standard of care in BC

    Charlie v. Canada Safeway Limited, 2011 BCCA 202

    Neil Carfra acted for Safeway before the BC Court of Appeal

    Neil Carfra acted for Safeway before the BC Court of Appeal

    BC’s highest court recently dismissed the appeal of a Canada Safeway customer who fell in one of its stores and, in the same judgment, clarified occupier liability law in this province.  The plaintiff asked the trial judge to draw an inference that she fell due to water on the floor.  He refused to do so, holding that that was just speculation.

    The BC Court of Appeal agreed and dismissed the appeal.  In doing so, it grappled with the plaintiff’s contention that there are two types of occupier liability cases in BC:

    [18]         The plaintiff says, further, that the chambers judge erred in finding that the sweep and inspection policies of the store were adequate to meet the requirements of the Occupiers Liability Act. She contends that there are two types of occupiers’ liability cases:  “due diligence cases” and “unsafe conditions cases”. She accepts that in “due diligence” cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an “unsafe condition”, there is a greater duty to take care to protect visitors to the premises from risk. In support of this argument, she cites Elder v. Westfair Foods Ltd., 2001 ABPC 94 and Stonechild v. Westfair Foods Ltd., 2001 SKQB 466.

    The court rejected this notion, stating:

    [19]         I do not agree with the plaintiff’s contention that different standards of care apply to different types of hazards on an occupier’s premises. The Occupiers Liability Act establishes a single standard of care, “a duty to take that care that in all the circumstances of the case is reasonable to see that a person … will be reasonably safe in using the premises.”  While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier’s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care.

    This is an important decision because of the Court’s affirmation that in BC there is only one standard of care: the one set out in the Occupiers Liability Act.  It also suggests the peril that exists if one relies on occupier liability law from other jurisdictions where the common law still applies or where occupier legislation is essentially a codification of the common law.

    Neil Carfra, one of the partners with Carfra Lawton LLP, represented Canada Safeway in this matter.  Please feel free to contact him if you have occupier liability concerns.