By Phoenix Howe, Student
In the recent Alberta Court of Queen’s Bench decision of Westerveld v Cineplex Entertainment Corp, 2022 CarswellAlta 920, Master Mattis explained the affirmative duty on an occupier under the Occupiers' Liability Act (OLA) in relation to foreseeable risks. The Master also discussed section 7 of the OLA which deals with risks willingly accepted by visitors.
Master Mattis reviewed the Alberta Court of Appeal decision in Wood v Ward which summarized the duties imposed on an occupier in relation to foreseeable risks of injury. According to this case, a foreseeable risk creates a duty to visitors, but it is still necessary to show negligence on the part of an occupier to impose liability. The duty on an occupier ends when the risk or conduct of the visitor becomes reasonably unforeseeable. Contributory negligence of a visitor is not foreclosed by negligence on the part of an occupier; visitors are required to consider their safety.
Master Mattis also reviewed section 7 of the OLA which absolves an occupier of their duty of care in relation to risks willingly accepted by a visitor. However, this section will generally not absolve an occupier of liability for hidden dangers. As stated in the Alberta Court of Appeal decision in Lorenz v Ed-Mon Developments Limited, visitors are expected to act with ordinary diligence.
Based on this framework, Cineplex was required to act reasonably to ensure visitors would be reasonably safe, whereas the plaintiff was required to act with ordinary diligence to ensure her safety. Cineplex was able to demonstrate it discharged its duty, and was therefore not held liable for the injuries of the plaintiff.
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