Occupiers, Don't Turn A Blind Eye To Your Tradesperson!

In February 2015, the plaintiff, a 66-year old contractor, fell from a ladder while working at premises leased by the defendant corporation, Crème. The fall resulted in him suffering catastrophic injures and requiring round-the-clock care at a care facility. Medical experts opined that the plaintiff's life expectancy was shortened to 3.7 years (as of January 2019) and that he was in a permanent vegetative state.

After coming to Canada in 1990, the plaintiff worked through a sole proprietorship under the name "Sam's Construction" until 2013, when a new company was incorporated ("Incircle") with the assistance of his son, Stefan. The plaintiff was initially the sole director but by January 2015, Stefan was appointed as director in place of the plaintiff. At the time of the February 2015 incident, the plaintiff was essentially retired but assisted Stefan on a voluntary, unpaid basis

In 2012, the principals of Crème were introduced to Stefan by a friend. Stefan secured the lease for the first outlet of the business and, soon thereafter, developed a business arrangement with the principals. While he was not made an officer, director or shareholder, he was a de facto owner and partner of the defendant corporation. He participated in profit sharing (50%) and was involved in all key decision-making.

He was given the title "Director of Business Development" and was responsible for seeking out opportunities for new locations, negotiating leases and overseeing any renovation/construction work. At each of the four sites he opened, he acted as the general contractor while the plaintiff did most of the construction work. There were never any written contracts between Sam's Construction / Incircle and Crème.

The trial judge determined that Stefan was carrying out the construction work on the premises and, in doing so, acting in his capacity as an owner/partner of Crème as well as its agent, rather than an independent, arm's length contractor. The judge held that pursuant to the Workers Compensation Act, the absence of a written contract and direct relationship between Stefan and Crème led to the conclusion that Crème, through Stefan, supervised the renovation work at the premises. As such, the trial judge found Crème to be the occupier of the premises for the purposes of the Occupier's Liability Act (OLA) thereby owing a duty of care to the plaintiff. Neither Incircle nor the plaintiff were found to be independent contractors.

The plaintiff retained a...