Case Law Research and Writing - Laws 17995 Winter 2018

This article discusses the legal memorandum format for Assignment #3 of Case Law Research and Writing - Laws 17995 Winter 2018. It covers the cases Kerr v Loblaws Inc., 2007 ONCA 371 and Harris v Loblaw Companies Ltd., 2015 ONSC 4572 and the statute Occupiers’ Liability Act, 1990. The article provides answers to the questions set out in Assignment #3 and also discusses the duty of care owed by the owner of a premises to ensure the safety of the occupiers who enter the premises.

CASE LAW RESEARCH AND WRITING – LAWS 17995 Winter 2018
Assignment #3 – Short Memo of Law (25%) Prof. R. Lof
Legal Memorandum Format -- ASSIGNMENT #3
MEMORANDUM
TO: Professor …
FROM:
COURSE:
DATE:
RE:
_____________________________________________________________________________________
__
You have asked me to read the following three cases and statute in order to answer the questions set
out in
Assignment #3. The responses to those questions follow.
Cases read: Kerr v Loblaws Inc., 2007 ONCA 371; Harris v Loblaw Companies Ltd., 2015 ONSC
4572

1CASE LAW RESEARCH AND WRITING – LAWS 17995 Winter 2018
Assignment #3 – Short Memo of Law (25%) Prof. R. Lof
Statute read: Occupiers’ Liability Act, 1990
Kerr v Loblaws Inc., 2007 ONCA 371
Answer 1:
Ms. Kerr slipped on a grape and suffered injuries on the floor of the Zehrs’ grocery store
owned by the Loblaws. According to the floor manual of the store the produce section floors
were sufficiently secured to avoid accidents (with the use of carpets) and additionally there was a
provision for frequent floor inspections and maintenance which was logged. However, no such
floor mats were available in this particular section and neither was the scheduled inspections
undertaken at regular intervals.
Records showed that inspections were conducted prior to and shortly after the fall
however no produce was found. Further, Ms. Kerr claims that despite undergoing surgery her leg
still has symptoms and the same can be attributed to the fall at the grocery store. The Loblaws on
the other hand attribute it to pre-existing medical conditions and state that they have no liability
for the same (Morrell, Foster & Hay, 2015).
Answer 2:
Paragraph 45 of the Judgment lays down the ratio decidendi of the Judgment. The judge
inferred that there was no reason to deduce that the jury had been subject to any sort of
misleading or undue influence by the reference made to Ms. Kerr’s position at the time of the
incident (Handford & McGivern, 2015). The same dictates that the conclusion reached by the

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Assignment #3 – Short Memo of Law (25%) Prof. R. Lof
jury was not influenced by causation arguments and thus was valid. Hence the appeal was
dismissed. It was further stated in paragraph 44 that the case relied upon the duty of care owed
by the Loblaws and if such a duty was breached.
Answer 3:
I am in complete agreement with the stand taken by the Judge due to the following
reasons which are also set out in various ways in the judgment:
As stated in paragraph 47 of the judgment the crux of this case was whether the duty of
care owed by the Loblaws to customers transacting in their grocery store was breached (Zuker,
2014).
It has been established that beyond the mandated inspections employees at the grocery
store were instructed to keep a keen eye on such conditions at all times. Ms. Kerr herself had
stated that the floor was clean and tidy that morning and it can be safely assumed that the
employees of the store adhered to standard of cleanliness they were asked to maintain. Thus, the
stores obligation was observed.
Further, the jury observed that the floor mats were not present before the grape section
but the weightage of the same was to be determined by the jury and it observed that such an
omission was minute.
Harris v Loblaw Companies Ltd., 2015 ONSC 4572
Answer 4:
The nature of this proceeding was a summary judgment. This meant disposal of the
matter before commencement of trial. It was based on the ground that the dispute did not have a
specific issue which needed to be dealt with in trial and hence was liable to be dismissed before
it was moved to trial.

3CASE LAW RESEARCH AND WRITING – LAWS 17995 Winter 2018
Assignment #3 – Short Memo of Law (25%) Prof. R. Lof
Answer 5:
Section 3(1) of the Occupiers’ Liability Act, 1990 lays down that the owner of a premises
has a duty of care to ensure the safety of the occupiers who enter the premises. This duty of care
extends till the time they are within the confines of the premises. This is the standard of care that
would be applicable in this case and the Loblaws would have to establish that they observed the
duty of care owed to the plaintiff and that none of their obligations have been breached. The
burden of proof to establish such an observance of obligations lies on the defendant (Sanscartier,
2015).
Answer 6:
Paragraph 42 of the judgment lays down the precautions (which were suggested by the
Judge) that could have avoided the incident in question. The water running in the produce section
which lead to the fall could have been better highlighted to ensure customers were more aware of
the situation. These precautions were:
Warning signs and pylons could be put up around the store to make sure customers were aware
of the running water in the produce section.
Guard rails could also be installed to ensure that the no customer slips on the water/ice on the
ground (as was installed after the incident).
Answer 7:
The Judge in this case observed that there was an issue that warranted trial. The issue
being the standard of care to be observed by the defendant and if it had done so as required. The
standard of care required under the Occupiers’ Liability Act, 1990 is one of reasonableness and
hence does not demand perfection. There was the existence of a hazard and this hazard was
frequent and quite conspicuous. Furthermore, there were conflicts in evidence regarding the

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Assignment #3 – Short Memo of Law (25%) Prof. R. Lof
training standards of the employees and their observance of the regulations put in place relating
to inspection. This clearly lead to a situation where the degree of care observed by the store
could not be determined prima facie and required a trial to determine the adequacy of the
evidence produced (Kennedy, 2017). The allegation that the hazard was frequent was rebutted by
the defendants and hence warranted closer scrutiny of the issue.
Answer 8:
Taking the given facts into consideration it can be seen that Leo and Katya entered the
tent voluntarily and proceeded to fall asleep within the tent. This lead to them staying back in the
premises past the stores working hours. Leo slipping and damaging himself also occurred after
the working hours of the store and cannot be attributed to the stores omission to observe its duty
of care for the following reasons:
Section 3(1) of the Occupiers’ Liability Act, 1990 imposes a duty of care on the owners
of a premises that are subject to occupants. This duty demands that the owner ensure the safety
of these occupants while within the premises. However section 3 (2) states that section 3 (1) only
applies in situations where the risk of harm comes from a condition of the premises or an activity
carried out within the premises (Channing, 2013). None of these apply to the current situation at
hand and thus exclude the application of the duty of care.
Secondly, Section 3 (3) lays down that the duty of care defined in section 3 (1) does not
apply to cases where a risk has been assumed by the occupier himself. In this case entering the
tent and remaining in the store past business hours was a risk undertaken by the plaintiff himself
and thus the application of the duty of care is again excluded in this case.

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Assignment #3 – Short Memo of Law (25%) Prof. R. Lof
Reference list:
Channing, J. (Ed.). (2013). Safety at work. Routledge.
Handford, P., & McGivern, B. (2015). Two problems of occupiers' liability: Part one-the
occupiers' liability acts and the common law. Melb. UL Rev., 39, 128.
Kennedy, G. J. (2017). Jurisdiction Motions and Access to Justice: An Ontario Tale.
Morrell, J., Foster, R., & Hay, G. (2015). Local authority liability. Jordans.
Sanscartier, M. (2015). Food Fit for Royalty: Corporate Cohesion, Power, and the Decline of
Canadian Food Sovereignty. Undergraduate Journal of Sociology, 2.
Zuker, M. A. (2014). JUSTICE AND EQUITY IN EDUCATIONAL PROVISION: THE CASE
OF ONTARIO. Decision Making in Educational Leadership: Principles, Policies, and
Practices, 183.