Fridays with Rogers Partners

At our weekly meeting, Amanda Chiu discussed the recent decision of the Ontario Court of Appeal inT.C.O. Agromart Ltd. v. Sutton Farms (Nacona) Ltd., 2026 ONCA 371. The decision clarifies when an occupier may be liable for failing to warn about a hidden structural hazard, even where the injured party was experienced and knew generally to proceed with caution.

Facts and Procedural History

T.C.O. Agromart’s employee drove a crop sprayer across Sutton Farms’ private farm bridge, which appeared to be sixteen feet wide but was supported by steel beams only across the centre ten feet, leaving three feet of unsupported wooden overhang on each side. The sprayer drifted onto the unsupported overhang, the bridge gave way, and the sprayer fell into the Napanee River. The trial judge dismissed the action, finding that the accident was caused by the driver veering too far to the right and that no warning was required because he already knew, as a matter of common sense, to stay centred on the bridge.

Analysis

The Court of Appeal held that the trial judge defined the duty to warn too narrowly. The issue was not whether Sutton Farms had to warn the driver to stay in the centre of the bridge, but whether it had to warn users that the outer three feet on each side were completely unsupported. Under s. 3(1) of the Occupiers’ Liability Act, an occupier must take reasonable care in all the circumstances to ensure that persons entering the premises, and property brought onto them, are reasonably safe.

Relying on Waldick v. Malcolm, 1991 CanLII 71 (SCC), and distinguishing obvious-risk cases, the Court confirmed that occupiers are not insurers of safety and need not warn of every possible accident or obvious danger. However, the Court emphasized that this was a hidden danger case because the bridge appeared wider than its actual structural support and reasonable care required a warning about the unsupported overhangs so users could decide whether and how to cross with wide, heavy equipment.

On causation, the Court applied the “but for” test from Clements v. Clements, 2012 SCC 32, and found factual causation established because knowledge of the unsupported overhangs would have affected the driver’s decision to cross the bridge with the sprayer. The Court also found legal causation, relying on foreseeability principles from Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19.

Sutton Farms knew about the unsupported overhangs, knew it was unsafe to drive too far to either side, and used an alternate bridge for some wide equipment. Thus, the Court held that the risk was reasonably foreseeable, and the absence of prior accidents did not eliminate foreseeability.

Conclusion and Takeaways

The Court of Appeal allowed the appeal, set aside the trial judgment, and granted judgment for the appellant in the amount assessed at trial, plus appeal costs. This decision underscores that prior safe use, an experienced operator, and a general awareness to be careful may not defeat liability where the occupier failed to warn about a specific hidden danger that was known to the occupier but not apparent to the user.