Does a property owner owe a higher duty of care to a child trespasser in Ontario?
Often yes, in substance, even though Ontario does not use a separate, formally named "attractive nuisance" doctrine the way some other jurisdictions do. Courts applying the Occupiers' Liability Act's reduced duty toward trespassers still take into account that children may not appreciate certain risks the way an adult would, and that particular features on a property - a pool, machinery, an unsecured excavation - can foreseeably draw a child onto a property even without any express invitation to enter.
This context can genuinely affect whether an occupier's conduct amounts to reckless disregard for safety, even where identical conduct toward an adult trespasser might not meet that bar, since a court can find it reckless to leave a known, foreseeably attractive hazard unsecured when the occupier knows or should know children are likely nearby. Practically, this means occupiers with features that could foreseeably attract children are generally expected to take reasonable steps - fencing, securing access points, or otherwise limiting the hazard - particularly where they have reason to know children frequent the area, rather than relying entirely on the reduced trespasser standard.
Key takeaways
- Ontario does not have a separate formal attractive nuisance doctrine, but courts consider a child's reduced ability to appreciate risk.
- Features that foreseeably draw children onto a property can affect the reasonableness of an occupier's precautions.
- This can raise the practical duty owed even under the reduced trespasser standard.
- Occupiers with foreseeably attractive hazards are expected to take reasonable steps like securing access.