Individuals who injure themselves because of an unsafe condition or activity carried out at the property of another person or business may advance a claim under the Occupiers’ Liability Act against the defendant occupier. Where individuals are injured on a public municipal roadway or sidewalk, they usually must proceed with a claim under the Municipal Act, which is a separate and distinct legislative regime from the Occupiers’ Liability Act. This article focuses on claims under the Occupiers’ Liability Act.
The most common types of claims advanced under the Occupiers’ Liability Act include slip & fall claims on ice or a wet substance on a floor, trip and fall claims over uneven surfaces, or injuries sustained due to faulty construction (ie… falling objects or collapsing staircases/floors) that was not properly inspected and/or remedied by the property owner. These injuries can arise at another person’s home or at a business’ property such as a store, office space, or adjacent parking lot.
The purpose of this article is to outline “who” may be considered an “occupier,” and the duty of care an occupier owes to persons entering their property. This article also offers some tips to individuals who have been injured on the property of another.
Who is an Occupier?
Occupiers owe a duty of care to members of the public that enter their premises. As such, it is first necessary to determine who is an occupier.
Section 1 of the Occupiers’ Liability Act defines an Occupier as:
A person who is in physical possession of premises, or
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.
Premises are defined as lands and/or structures and includes,
(a) water
(b) ships and vessels
(c) trailers and portable structures designed or used for residence, business or shelter
(d) trains, railway cars, vehicles and aircraft, except while in operation
Physical possession of a premises involves more than mere ownership of the property. It typically involves physical presence on the property (MacFayden v. MacFayden, 2014 ONSC 6589). For example, an absentee landlord who owns and rents a property to a tenant that is obliged to maintain the property may not be an occupier, although the tenant who is physically present at the property will be the occupier.
Additionally, any person or business exercising control over the property will likely be captured by the definition of occupier.
There may be more than one occupier of a property/premises.
The Occupiers’ Liability Act replaces the common law rules of negligence that previously applied to claims against occupiers. However, if a party has created an unsafe condition on a property but may not meet the definition of occupier in the Act, then such a claim may be advanced against the party under the common law rules of negligence. Alternatively, if the culprit exercises some degree or control over the property, then a claim should be advanced under the Occupiers’ Liability Act.
The Act places obligations upon occupiers to keep persons entering their property reasonably safe.
What Duty Does An Occupier Owe to Members of the Public?
Section 3(1) of the Occupiers Liability Act states that occupiers owe a duty to take care that is reasonable in the circumstances to see that persons entering their premises, and any property brought on the premises by those persons, are reasonably safe while on the premises.
The words “reasonable” and “reasonably safe” qualify the duty. Occupiers are not required to adhere to a standard of perfection, but one of reasonableness.
Where an occupier fails to take reasonable care to prevent harm to a person entering their property, the occupier will be found liable under the Act for any damages caused by the occupier’s failure to take reasonable care.
What constitutes reasonable care depends on the circumstances of each case. The duty of care has been defined by caselaw (previous court decisions):
The Occupiers’ Liability Act does not impose strict liability, and the presence of a hazard does not in itself lead inevitably to the conclusion that the occupier has breached its duty to take such reasonable care to see that persons on the premises are reasonably safe while on the premises. The standard of care for occupiers is one of reasonableness and occupiers are not required to take unrealistic or impractical precautions against known risks. The measure of what is reasonable depends on the facts of each case including foreseeability of harm, the gravity of the possible harm, the burden of the cost of preventive measures, industry practice, custom, and regulatory standards applicable to the circumstances (Gohm v. York, 2013 ONSC 7118).
If a plaintiff is injured on premises, to succeed in an occupier’s liability claim, the plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury (Gohm v. York, 2013 ONSC 7118).
In many slip & fall cases occurring in stores where a spilt substance becomes a slipping hazard, or in business parking lots where ice accrues, a common issue is whether the defendant occupier had an adequate system of inspection in place to monitor slipping hazards.
In Manning v. 3980 Investments Ltd., 2003, CanLII 2906 (ONSC), which was a slip and fall case in an icy parking lot, the court found the defendants liable for several reasons, one of which was for failing to have an up-to-date inspection system. There was no system in place to ensure salting or sanding. There was no system in place to ensure when and by whom it was being carried out. There was no system in place for follow-up, particularly when conditions became treacherous. This failure to monitor the formation of ice was found to cause the Plaintiff’s slip & fall on ice.
The failure of a defendant to have a reasonable system of inspection to monitor for ice or other hazards is one example where a finding of liability may be made against the defendant/occupier under the Occupiers’ Liability Act – assuming there is a causal connection between this breach and the plaintiff’s injuries and damages. Essentially, the Act imposes a positive duty on Occupiers to take reasonable steps. In some circumstances, however, the duty is less onerous.
A Less Onerous Duty: Where Risks Are Willingly Assumed
In certain limited situations, an occupier’s duty may be much less onerous. In such cases, an occupier must merely avoid creating a danger with the deliberate intent of doing harm or damage to the person and must not act with reckless disregard of the person. In such cases, the occupier is not required to take reasonable steps to ensure the safety of a person entering the premise. They must merely avoid creating dangers with the intention of causing harm or acting with reckless disregard for a person. This less onerous duty applies where the person entering the property has willingly assumed the risks.
As such, it is important to understand when a person may be found to have willingly assumed the risks.
A person who enters a premise or property to commit a criminal act (ie… break and enter for the purpose of theft) will be deemed to have willingly assumed all risks. As such, the owner of the premise/home will have met their duty under the Act if they have not created a danger with the deliberate intent of doing harm/damage to the person entering their home or acting with a reckless disregard for the person entering their home.
Further, a person will be found to have willingly assumed the risks where the person enters the property in one of the following circumstances, and the property is one of the following types of premises:
Circumstances of Entry
Entry is prohibited under the Trespass to Property Act;
Where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or
Where the entry is for the purpose of a recreational activity and,
No fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-recreation club; and
The person is not being provided with living accommodations by the occupier.
Where a person enters the property in the above circumstances, the less onerous duty will apply if the property also falls into one of the below categories:
Types of Premises
(a) A rural premise that is used for (i) agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds (ii) vacant or undeveloped premises, (iii) forested or wilderness premises;
(b) golf courses when not open for playing;
(c) utility rights-of-way and corridors, excluding structures located thereon;
(d) unopened road allowances;
(e) private roads reasonably marked by notice as such;
(f) recreational trails reasonably marked by notice as such; and
(g) portage routes.
Thus, even where a person trespasses on a property, they will not be deemed to have willingly assumed the risks unless the property is one of the types listed above. If an Occupier’s duty is restricted and the less onerous duty applies, then the Plaintiff will have a very challenging case.
Notice Periods
Recent amendments to the Occupiers Liability Act require the Plaintiff to give written notice of the date, time, and location of the incident, via registered mail, to the occupier within 60 days after the occurrence of the injury if it was caused by ice or snow, failing which, the Plaintiff’s claim may be barred. This notice period does not apply if the Plaintiff has died as a result of the incident, or if the Plaintiff has a “reasonable excuse” for failing to provide notice within the 60-day deadline. As a matter of practice, Plaintiffs should promptly retain counsel who will provide notice within the 60-day deadline.
Does Hiring Independent Contractors Absolve Occupiers of their Duty?
The short answer, is that hiring an independent contractor, on its own, is not enough for an occupier to absolve itself of its duty under the Occupiers' Liability Act.
Occupiers routinely hire independent contractors (who are typically co-occupiers) to maintain their property (ie… snow and ice removal). In such cases, an occupier may not be liable for the negligence of the contractor if the occupier “had acted reasonably” in entrusting the work to the independent contractor and the occupier took reasonable steps to ensure that the work was being completed properly. However, where an occupier fails to monitor a contractor, the occupier will be unable to shift all blame to the contractor and escape liability. In this regard the court has stated:
There remains a responsibility on each party to ensure that the property was being maintained in a proper manner. The court cannot allow an occupier to avoid its responsibilities under the O.L.A. (Occupiers’ Liability Act) by not paying attention to the maintenance practices of a co-occupier. To qualify for the defence under s. 6(1) of the O.L.A., the defendant should have done more to satisfy itself that the co-defendant was acting in a proper and competent manner. A mere assignment of a responsibility to maintain the parking lot is not enough to discharge an occupier of its responsibility to patrons (Soomre v. P.A. Ramey Enterprises LTD. et al, 2012 ONSC 782).
WSIB?
In some cases, the Workplace Safety Insurance Act may prohibit a claimant from advancing a claim under the Occupier’s Liability Act if the individual was in the course of his/her employment at the time of injury. In such cases, a claimant will be precluded from advancing a claim against other WSIB-covered employees or employers. However, individuals who injure themselves while in the course of their work duties at another person’s home may still have a claim against the homeowner (for example a delivery driver slipping on ice at someone’s home). The interaction of the WSIB regime must be considered in the context of an Occupiers’ Liability Act claim.
Tips If You Have Been Injured on Someone Else’s Property
Individuals who have injured themselves on another’s property should consider the following steps:
Take photos of the hazardous condition (immediately or as soon as possible) that caused the individual’s injuries;
Report the incident to someone who appears in control of the premises (immediately if possible);
Preserve footwear that was worn at the time of the incident, as this is relevant evidence in any subsequent lawsuit;
Accurately and truthfully report the incident to medical practitioners;
Confirm if there are any witnesses to the fall and obtain their contact information;
Check to see if there is a video camera that may have captured the incident (immediately if possible); and
Promptly retain legal counsel who will investigate the circumstances giving rise to any potential claim and place the correct parties’ on notice of a potential lawsuit within the 60 day deadline.
Conclusion
If you have been injured as a result of a dangerous condition or activity that occurred on another’s property, it is essential to retain legal counsel who will protect the relevant notice and limitation periods, identify the correct occupiers against whom to commence an action, and collect evidence to prove the occupier failed to adhere to their statutory duty under the Occupiers Liability Act.
Hillier & Hillier specializes in representing and obtaining meaningful compensation for individuals who have been injured as a result of slip and fall incidents. If you have been injured while on another person’s property, call Hillier & Hillier for a free consultation.
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