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Torts - Negligence - Duty to Warn. T.C.O. Agromart Ltd. v. Sutton Farms (Nacona) Ltd.
In T.C.O. Agromart Ltd. v. Sutton Farms (Nacona) Ltd. (Ont CA, 2026) the Ontario Court of Appeal allowed an OLA-negligence appeal, this brought against the dismissal of an action where the court held that "the owner of the land owed no duty to warn users" - here to "stay in the centre of the bridge".
Here the court considers OLA s.3(1) ['Occupier’s duty']:[28] As noted above, s. 3(1) of the OLA states that “[a]n occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises and the property brought on the premises by those persons are reasonably safe while on the premises”.
[29] This court considered that provision in Waldick v. Malcolm (1990), 70 O.R. 2(d) 717 (C.A.) (“Waldick (ONCA)”), at p. 723, aff’d 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456:A similarly worded statement of an occupier's duty occurs in all other Occupiers' Liability Acts. All courts have agreed that the section imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. The section assimilates occupiers' liability with the modern law of negligence. The duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take "such care as in all the circumstances of the case is reasonable". The trier of fact in every case must determine what standard of care is reasonable and whether it has been met. [30] On appeal, the Supreme Court affirmed the above principles in Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456 (“Waldick (SCC)”), at p. 472, emphasizing that:[T]he statutory duty on occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change, but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation -- thus the proviso “such care as in all circumstances of the case is reasonable”. [Emphasis in original.] [31] The Supreme Court recognized that the goals of occupier liability statutes such as the OLA are to “promote, and indeed, require where circumstances warrant, positive action on the part of occupiers to make their premises reasonably safe”: Waldick (SCC), at p. 477.
[32] However, as previously stated by this court in Nolet v. Fischer, 2020 ONCA 155, 2020 I.L.R. I-6231, at para. 37, the duty of care is not absolute:The duty of care owed by an occupier to a person who enters on the premises is “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises … are reasonably safe well on the premises.” The duty is to take reasonable care – it is not absolute. [33] The duty of care does not require an occupier to guard against every possible accident that might occur: Alchimowicz v. Schram (1999), 1999 CanLII 2655 (ON CA), 116 O.A.C. 287, at para. 13, leave to appeal refused, [1999] S.C.C.A. No. 127. It requires neither perfection nor unrealistic or impractical precautions against known risks: Lyng v. Ontario Place Corporation, 2024 ONCA 23, 493 D.L.R. (4th) 302, at para. 25; Kerr v. Loblaws Inc., 2007 ONCA 371, at para. 19.
[34] The standard of care is one of reasonableness in the circumstances: Kerr, at para. 28. Accordingly, there is no duty on the occupier to warn of obvious and self-evident dangers on their premises: Winters v. Haldimand (County), 2015 ONCA 98, 33 M.P.L.R. (5th) 1, at para. 16.
[35] However, the trier of fact should consider the absence of warnings when determining whether an occupier has met the standard of care under s. 3(1) of the OLA if the particular circumstances of the case before the court so warrant: see e.g. Lyng, at paras. 28-29; Campbell v. Bruce (County), 2016 ONCA 371, 349 O.A.C. 302, (“Campbell (ONCA)”) at para. 19, leave to appeal refused, [2016] S.C.C.A. No. 325; and Woods v. Ontario (Ministry of Natural Resources) (2003) 2003 CanLII 15637 (ON CA), 170 O.A.C. 88, at paras. 20-21.
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[44] In this case, the respondent was an occupier of premises to whom s. 3 of the OLA applied. It follows that the respondent owed a duty of care, defined in that statutory provision as the duty to keep its premises “reasonably safe”.
[45] The relevant question is whether, in order to make the premises reasonably safe for the appellant and its employees in these circumstances, the respondent had a duty to warn them about the unsupported overhang of the bridge: see Kennedy v. Waterloo County Board of Education (1999), 1999 CanLII 3746 (ON CA), 45 O.R. (3d) 1 (C.A.), at p. 23, leave to appeal refused, [1999] S.C.C.A. No. 399. In my view, the answer to that question is yes.
[46] The authorities cited by the trial judge in her analysis are distinguishable: Epp v. Ridgetop Builders Ltd. (1978), 1978 CanLII 752 (AB SCTD), 94 D.L.R. (3d) 505; Paul Porchak v. Pizza Pizza Limited, 2016 ONSC 4551. In those cases, the danger was plain and obvious and therefore no warning could be expected or required of the occupier.
[47] It follows that it was open to the trier of fact in those cases to find that a failure to warn about the danger was not the cause of the injury. That is not the case here because the danger was not plain and obvious. Because of the hidden danger here, an appropriate duty to warn arose. The issue then is what that duty to warn was required to include.
[48] I agree with the finding of the trial judge that a warning to Mr. Denyes to stay in the centre of the bridge was not relevant. There was no issue on the record that Mr. Denyes knew and understood that it was important to drive the sprayer down the centre of the bridge. His evidence was to the effect that he knew this as a matter of common sense.
[49] However, the error of the trial judge was in concluding that the duty to warn was limited to a warning to stay in the centre of the bridge. In the circumstances of this case, the duty to warn necessarily included the disclosure of the hidden danger that lurked beneath: the fact that the outer three feet on either side of the bridge (six feet in total) were completely unsupported by the steel beams below.
[50] That was the relevant information. Absent the adequate warning, the appellant and its employees lacked the requisite knowledge to make an informed decision about whether to accept the risks of crossing the bridge with the sprayer. In my view, the standard of care imposed on an occupier by s. 3(1) of the OLA in the particular circumstances of this case required such a warning.
[51] The evidence is clear that the respondent took no steps to warn the appellant (or anyone “entering on the premises”) of the risk that the outer three feet of the bridge on either side were unsupported and that they were unsafe for wide equipment.
[52] It follows that the respondent breached its duty to warn and breached its duty under s. 3(1) of the OLA to keep its premises reasonably safe. . North v. Bayerische Motoren Werke AG
In North v. Bayerische Motoren Werke AG (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal from a class proceeding certification decision, where the central issue was "the type of losses recoverable at law in a negligence action involving an allegedly defective product".
Here the court considers the negligence 'duty to warn':[82] In Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634, at para. 20, the Supreme Court described the duty to warn imposed on manufacturers as a “duty in tort to warn consumers of dangers inherent in the use of its product of which it has knowledge or ought to have knowledge”. That duty is a continuing one, “requiring manufacturers to warn not only of dangers known at the time of sale, but also of dangers discovered after the product has been sold and delivered”: Hollis, at para. 20. Warnings must be reasonably communicated and describe any specific dangers that arise from the ordinary use of the product. . Price v. Lundbeck
In Price v. Lundbeck (Div Court, 2023) the Divisional Court considered (and dismissed) an appeal of a denial of a class action certification, here in a tort ('duty to warn') pharmaceutical case:[2] For the reasons set out below, this appeal is dismissed. The Class Proceedings Judge applied the correct legal principles, and his expertise, and denied certification.
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[19] The Class Proceedings Judge employed the legal principles for certification, including that there was no preliminary review of the merits of the claim. The plaintiffs only had to show “some basis in fact” for each of the certification criteria other than the requirement that the pleadings disclose a cause of action. And “some basis in fact” is a low evidentiary standard. The court could not resolve conflicting facts and evidence at the certification stage or opine on the merits of the plaintiffs’ claim.
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[20] The Class Proceedings Judge noted the court’s important gate-keeping function, as underscored by the Supreme Court of Canada in Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477.
[21] In Pro-Sys, at para. 103, the Supreme Court emphasized “the importance of certification as a meaningful screening device.” Further, the Court held, at para. 104, that there is “limited utility in attempting to define “some basis in fact” in the abstract. Each case must be decided on its own facts. There must be sufficient facts to satisfy the [judge] that the conditions for certification have been met to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage”.
[22] The Class Proceedings Judge reviewed the applicable law on the commonality requirement, which had been approved of in the first Divisional Court decision. Among other principles, to meet the common issue criterion, the proposed issue had to be a “substantial ingredient” of each class member’s class and not be semantically manufactured by overgeneralizing.
[23] As he cited from Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, at para. 29: “It would not serve the ends of either fairness or efficiency to certify an action on the basis of issues that are common only when stated in the most general terms. Inevitably such an action would ultimately break down into individual proceedings.”
[24] The Class Proceedings Judge considered the first step of the proposed common issue: “Is or may Celexa® be teratogenic?” He found a lack of the needed commonality. The requirement that the proposed common issue advance the litigation in a meaningful way was not met. He found that even if the proposed common issue that Celexa® “is or may be” teratogenic was decided in the plaintiffs’ favour, no class member’s case would be advanced because each claim, to be successful, would have to show that it caused the specific congenital malformation experienced in that instance.
[25] The Class Proceedings Judge considered other pharmaceutical cases relied on by the plaintiffs, but in those cases, the courts narrowed the common issue to a specific defect before certifying: Bartram (Litigation guardian of) v. GlaxoSmithKline Inc., 2012 BCSC 1804, aff’d 2013 BCCA 462, Miller v. Merck Frosst Canada Ltd., 2013 BCSC 544, aff’d, 2015 BCCA 353, leave to appeal refused, [2015] S.C.C.A. No. 431. He found that the option of narrowing the issue was not available to the court. There were hundreds of potential congenital malformations. The proposed common issue seized on superficial commonality, as cautioned against in Rumley.
[26] The Class Proceedings Judge also considered the second step of the proposed common issue, regarding the duty to warn, in view of the leading case of Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634 and other authorities including Adam v. Ledesma-Cadhit, 2021 ONCA 828, leave to appeal refused, [2022] S.C.C.A. No. 13. He followed Hollis, under which a duty to warn must arise from specific risks, which must also be material. In turn, the risk is relevant to the other issues surrounding the duty to warn, including whether a defendant ought to have reasonably foreseen that the plaintiff might suffer a loss, the question of what warning would be found sufficient, and the question of whether or not the plaintiff would have declined the drug.
[27] The Class Proceedings Judge found as follows, paras. 155, 159-60:There are hundreds of congenital malformations, some of which might be material and others which may not. The patient receiving a general warning of teratogenicity from a doctor would have no basis to assess the specific risk and make an informed decision as to whether to take Celexa® to help protect both the mother and the baby from potential risks arising from depression, or to choose not to do so. This informed consent is the raison d’être of the duty to warn, and it could not be effected under the [second step in the proposed common issue].
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“Teratogenicity” is not the harm suffered, but instead a term that relates to the possibility of hundreds of congenital malformations, only some of which (if any) might have been reasonably foreseeable. If it were found that the defendants ought to have known that citalopram is a teratogen because it can cause clubfoot, it may not have been the case that the defendants ought to have known (or known at the same time) that citalopram is a teratogen because it can cause craniosynostosis. The etiologies and evolving epidemiological data differ for each congenital malformation.
The reasonable foreseeability of any particular congenital malformation would require analysis of the etiology for each such malformation, which will vary. Not every congenital malformation would be, or could have been, reasonably foreseeable based on the etiology and epidemiological studies available at a particular time. Consequently, there could be no commonality under the proposed terms of the [second step in the proposed common issue]. [28] The Class Proceedings Judge concluded that to establish a duty to warn, there would need to be a specific material risk. In contrast, the duty to warn step of the proposed common issue was based on general causation – whether Celexa® “is or may be teratogenic”. He found that the duty to warn step could not stand on its own terms, separate from the first step.
[29] The Class Proceedings Judge therefore concluded that the plaintiffs had not met the low threshold to show some basis in fact that either step was a common issue that should be certified under s. 5(1)(c) of the Act. Although this was sufficient to dismiss the certification motion, he went on to consider the other issues.
[30] On the preferrable procedure requirement in s. 5(1)(d) of the Act, the Class Proceedings Judge stated the applicable legal principles, including as set out by Strathy C.J.O. in Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572, 387 D.L.R. (4th) 603. At para. 62, Strathy C.J.O. noted that “it is not enough for the plaintiffs to establish that there is no other procedure which is preferable to a class proceeding. The court must also be satisfied that a class proceeding would be fair, efficient and manageable.”
[31] The Class Proceedings Judge followed the Supreme Court of Canada decision in Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158. In Hollick, at paras. 29-31, McLachlin C.J. held that even though the Act requires only that a class action be the preferrable procedure for the resolution of the common issues, the question of preferability “must take into account the importance of the common issues in relation to the claims as a whole”.
[32] As with the claim in Hollick, the Class Proceedings Judge found that even if the proposed common issues were found to advance the litigation (which he did not find), any such advance would be peripheral and minor. The individual issues would overwhelm any benefit. He also considered the proposed litigation plan, concluding as follows, at para. 211:The present case lacks a workable way forward. It will break down into potentially thousands of individual trials, all with every liability and damages issue to be proven, including general causation of the particular congenital malformation, since the class does not purport to certify such an issue. . Burr v. Tecumseh Products of Canada Limited
In Burr v. Tecumseh Products of Canada Limited (Ont CA, 2023) the Court of Appeal considered the negligence duty to warn:2. No duty to warn the Burr-Callisters
[83] As noted by the Supreme Court in Hollis v. Down Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634, at paras. 20-29, the principles governing the duty to warn include the following:i. There is a duty to warn of dangers inherent in the use of a product;
ii. The duty is ongoing and continues after the product is delivered;
iii. Warnings must be clear and specific to the dangers that arise from ordinary use; and
iv. The duty varies with the level of danger associated with ordinary use of the product. See also Rivtow Marine Ltd. v. Washington Iron Works, 1973 CanLII 6 (SCC), [1974] S.C.R. 1189, at p. 1200.
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