Week 6: JORDAN HOUSE v. MENOW AND HONSBERGER
JORDAN HOUSE v. MENOW AND HONSBERGER
An occupier is an occupier of land, and includes a person who owns or leases
land. An occupier owes a duty of care to anyone who enters his or her land.
Occupier’s liability, together with the law of negligence, is an expanding area of
law. It would be hard to deny the impact of the availability of insurance proceeds
on this area of law. This is not to say that courts are finding defendants liable
because they are insured, but there is no doubt that injured plaintiffs are far more
likely to sue when they know there is a deep pocket to pay their claims.
Homeowners are usually insured, many residential tenants are insured, most
business occupiers as tenants or owners of land are insured. In reality, in a
typical “slip-and-fall” case at the mall, a plaintiff could be suing the store
proprietor, the entity holding the commercial lease, the actual land owner, and
potentially the municipality, to name but a few.
This area of law applies to taverns, hotels, and even private parties.
At common law, there are three categories of persons entering lands not their
own, and the occupier owes varying duties of care to each one. The categories
are: Trespasser, Licensee, Invitee.
1. trespassers - lowest duty owed – to avoid deliberate injury,
- an exception - persons with swimming pools, small children are trespassers,
still have duty to protect them, - under statute
- trespassers assume all risks, occupier has no duty to warn except of "traps" or
devices, eg. beware of dog
- if occupier knows of trespassers use, and acquiesces, implies consent = duty to
warn of any dangers
2. licensees - with express or implied consent of the owner, usually for own
- duty to to protect licensee from concealed dangers occupier knows about
3. invitees - highest duty, invited onto lands, usually for benefit of the owner
- customers of stores, theatres etc., invitation to enter * Occupier's Liability Act R.S.O. 1990, abolished the distinction between
invitees and licensees, the same duty is owed to both.
Now the Act sets out obligations and liabilities of occupiers and persons entering
- duty to take reasonable care to ensure safety of persons
- note the obligations to trespassers
Section 3 of the Act also incorporates the defence of what has traditionally been
referred to as:
Volenti Non Fit Injuria: The voluntary assumption of risk.
This defence to a negligence claim is comprised of two elements:
a) the plaintiff knew about the risks on the land or associated with the activity,
b) the plaintiff voluntarily assumed the risks
This was one of the defences in Crocker v Sundance, unsuccessful in that case.
Here is a link to the web site for the Ontario Government, this one is a direct link
to the Occupier’s Liability Act.
Pay attention to the reference to statute in this case. The defendant tavern will
try to argue that a liquor licensing statute prescribes the only liability that can
exist, the judgment refers to this statute but argues it is qualified by the common
law. I don’t find any reference to occupier’s liability legislation, but there is a
reference to the common law. This should help to clarify the simple point: the
relationship between statute law and the common law in Ontario is not clear.
Statutes are created ad hoc, as situations arise, and they help to patch up or
reform what are perceived problems in the common law as it exists. Sometimes
statutes will expressly state that they are abolishing a common law rule. For
example, the Tenant Protection Act abolishes a residential landlord’s common
law right to confiscate property for rent owing. But the vast majority of statutes
co-exist with the common law, and this case is a fine example of the extra work
generated for lawyers and judges to sort it all out. The Case:
Facts: M attended at bar (def) on regular basis, hotel knew he was a drunk, told
staff not to serve if on his own
1. M came to bar with employer, had a few drinks
2. Employer left, M stayed behind, drinking
3. Alone but not drunk at 7:00 P.M., drunk by 10:00 P.M., bar staff told him to
4. He left to walk home on the highway, was hit by a car, (staggering down
the middle of the road)
5. Sued the hotel in negligence for tossing him and letting him walk home
alone when he was drunk
1. 2 grounds for finding a duty: 1) under Liquor License Act, duty not to serve
2. 2) under same Act, allowed to throw them out, but to do so not in such a
way as to subject them to danger
3. Act supported proposition of common law duty, evidence of a breach of
standard of care
4. Even though entitled to throw him out, right qualified by a common law
duty to make sure you don’t harm him doing so – this is because the
plaintiff is an invitee, tavern invitor – common law of occupier’s liability
Held on appeal:
- again, for π, breach of common law duty of care, the common law duty of care
was the one imposed by the common law in relation to an occupier’s liability
1. s.67 of the Act sets out exclusive and only liability
2. other party giving ride was a new fact that removed π from scope of their
3. the second argument is a Novus Actus Intervieniens defence
4. court rejected these arguments
Supreme Court of Canada
1. Act evidence of common law duty of care owed, Liquor License Act does
not describe a statutory right to sue, (if it did, this would be limiting)
2. Common law duty arises from foreseeable risk, and risk unreasonable to
3. Foreseeable risk - guy was drunk, def knew about propensity to drink,
knew where he lived, knew drunk on that occasion, hotel on a highway,
knew π took highway to get home = foreseeable risk 4. Reasonable to run the risk: look at Bolton & Stone: not reasonable
5. A) likelihood of injury high
6. B) cost or “burden” of avoidance is low when compared to potential
severity of injury
7. Could have called a cab, the police, someone to give him a ride, gave him
a room, lots of opportunity
Voluntary Assumption of Risk * no - too drunk to be aware of the risk, lacked
capacity to agree to it
Contributory Negligence : all three def’s equally neg
DOBSON V DOBSON
If the common law is “doctrinal”, or ultimately positivist as Wienrib in his essay
claims, we should strive to stay within the confines of the body of rules. Of
course we have seen some flexibility and incremental creativity in the judgments
of the courts, but our sense of the austere edifice of reason that comprises the
law common law tells us it is built on sound legal tradition and principle – we
don’t make it up as we go along.
But, it is not difficult to see that as meticulously as judges might craft the law and
discover principle, legal principle can still yield a result that is counter-intuitive.
We follow the rules, as prescribed, but we stand back and find an answer that
must be wrong. It just doesn’t seem fair, or, more to the point, it just doesn’t
The persistent paradox:
And so we find the paradox inherent in much legal discourse. The essential
tension of a paradox involving two contradictory premises comes from our
equally strong commitment to both premises. If we were not strongly committed
to both premises, then to resolve the tension, we could simply dispense with one
premise and get on with our lives.
Here we see the law as a set of rational principles. We commit both to the
principles and the “system” that generates them. We expect rationality and not
sympathy or some other extraneous factor to determine the legal outcome, and
we expect the legal outcome will be justice.
If our proper legal reasoning gives us a result that is unfair, or “counter-intuitive”
(we “feel” that it is wrong), then there must be something wrong with either the reasoning, or the result. But they both look right. We are committed to the rules,
and we are committed to the just result, they are incompatible.
In the Dobson case, we have a pregnant woman, negligently driving, the
negligent driving causes a car accident, which causes injury to her potential
The principles are simple enough:
1. A child, once born alive, can sue a stranger for injuries caused prior to birth.
2. A child can sue its’ parents (there is no bar to a child suing its parents).
3. The infant plaintiff can sue his mother for injuries sustained in the car accident
when she was pregnant.
Does our conclusion seem counterintuitive?
Just to make things more interesting, the child is suing while he is too young to
sue, so he is being assisted by his grandparents acting as litigation guardian (his
mother’s parents are helping her child sue her).
So this seems like a big happy family doesn’t it? The grandparents are helping
the child sue the mother for a car accident that happened before the child was
Now, our conclusion could seem unfair or counterintuitive, because we might
think that this is very divisive of family relationships. We might also wonder how
an unborn child can have a cause of action (this means have a legitimate law
So we have two problems. We might feel the mother should not be sued by her
child, although we don’t know just why, we might feel premise 1 and 2 should not
lead us to number 3.
Traditional tort rules may lead us to a counterintuitive result. Does traditional tort
analysis let us down? Mind you, the dissenting