Case Commentary: Macpherson v Strait Regional Center for Education, 2023 NSSC 167

A recent decision from the Supreme Court of Nova Scotia on the issue of occupiers’ liability provided further confirmation that an ‘Occupier’ is not guarantor or insurer of the safety of the persons permitted to be on its premises, and that the applicable standard for occupiers’ duty to take care for the safety of such people is one reasonableness, not perfection.

In Macpherson v Strait Regional Center for Education, 2023 NSSC 167, the Plaintiff suffered a fall while taking a short cut between the defendant school’s property and a nearby community centre. It was dark and his path took him down a slope and over some uneven ground. He sued the school for compensation for his injuries, alleging that the area where he fell should have been better lit and that the school’s system of inspection and maintenance was inadequate.

The parties had agreed to separate the issues of liability and damages, so the Court’s decision only concerned liability.

At trial, the school gave evidence that there was a maintained path that was reasonably lit only a few meters further on from where the Plaintiff opted to start crossing into a darkened area with varied terrain and footing. They also presented evidence regarding their inspection and maintenance procedures.

In determining the issue of liability, the Court summarized its considerations at paragraph 82, stating:

[82]         Under the Occupiers’ Liability Act, occupiers have an affirmative duty to take reasonable care for the safety of persons of those who are permitted on the premises.  Case law is clear however that the duty to make the premises “reasonably safe” does not mean that there must be “constant surveillance and immediate response”, “constant dedicated supervision”, or that the occupier must “remove every possibility of danger”.  See Swagar v. Loblaws, 2014 ABQB 58 at para 58.  The standard of care is reasonableness, not perfection.

In applying the standard of reasonableness, the Court found that the Plaintiff had failed to establish a prima facie case of negligence, but that even if he had done so, the school had an adequate inspection and maintenance in place. In reaching this decision, the Court noted:

  • The fall occurred on a route that was not a known or commonly used path, that the Plaintiff had never before taken.
  • At the time of the fall, it was dark enough outside that the plaintiff was not able to see the ground at his feet.
  • There was an alternate route nearby, which still had darkened areas but better lit, more level, and better maintained.
  • While there were areas of wash out that had appeared on the school property, repair work was arranged in a reasonable fashion.
  • The area where the Plaintiff fell was not a high traffic path for people moving between the school and community centre. It was an area of mixed grass and gravel where the younger school children played with school provided toy trucks during recess.

The Court concluded that to find liability against the school in these circumstances would be to effectively render them an insurer of safety and reiterated that the standard is one of reasonableness not perfection.

The claim was dismissed with costs to be agreed upon.