battery of her. Given my conclusions on the negligence claim, I do
not need to consider the claim for gross negligence.
 In order to recover from the M.s for negligence, Jane must
(a) they owed her a duty of care;
(b) they breached that duty; and
(c) Jane sustained injuries and damages as a result of the M.s’
(a) Did the M.s owe Jane a duty of care?
 Jane contends that the M.s owed her a duty of care under
the Occupier’s Liability Act,8 because N.M.s’ assault and battery
against her took place at their house.
 Under s. 1 of the OLA, an occupier includes “a person who
has responsibility for and control over the condition of premises
or the activities there carried on, or control over persons allowed
to enter the premises”. Under s. 3(1), an occupier
owes a duty to take such care as in all the circumstances of the case is rea-
sonable to see that persons entering on the premises, and the property
brought on the premises by those persons are reasonably safe while on the
 This duty is subject to an exception in s. 4(1) of the OLA.
Under that section, an occupier does not have a duty of care with
respect to risks willingly assumed by persons who enter the prem-
ises. This exclusion has not been interpreted liberally.9 A plaintiff
will be found to have willingly assumed a risk only where
. . . knowing of the virtually certain risk of harm, in essence bargained away
his right to sue for injuries incurred as a result of any negligence on the
defendant’s part. The acceptance of risk may be express or may arise by nec-
essary implication from the conduct of the parties, but it will arise . . . only
where there can truly be said to be an understanding on the part of both par-
ties that the defendant assumed no responsibility to take due care for the
safety of the plaintiff, and that the plaintiff did not expect him to.10
7 Mustapha v. Culligan of Canada Ltd.,  2 S.C.R. 114,  S.C.J.
No. 27, 2008 SCC 27, at para. 3.
8 R.S.O. 1990, c. O.2 (the “OLA”).
9 Waldick v. Malcolm (1989), 70 O.R. (2d) 717,  O.J. No. 1970 (C.A.), affd
 2 S.C.R. 456,  S.C.J. No. 55 (“Waldick”), at para. 39, citing J.
Victor Di Castri, Occupier’s Liability (Toronto: Carswell, 1981), at 229.
10 Dubé v. Labar,  1 S.C.R. 649,  S.C.J. No. 29, at para. 6.