Holiday Safety Part Two: Occupier’s Liability

Last week on the OTLA blog, we posted about how to keep your home safe for holiday visitors. This week, we’ll take a more in-depth look not only at the obligations that apply to homeowners, but also those which extend to commercial property owners.

The obligations of a property owner are outlined in the Occupiers Liability Act (“the Act”). An “occupier” is defined as “a person in physical possession of a premises… or a person who has responsibility for and control over the condition of the premises…” The definition of “premises” is fairly broad and will include many of the places that most of us will frequent over the holiday season such as shopping malls, restaurants, and event venues.

Section 3 (1) of the Act states that occupiers have a duty to take reasonable steps to ensure their property is reasonably safe for visitors and patrons. Although occupiers are not expected to maintain their properties to a standard of perfection, the Act does impose a positive duty on occupiers to take reasonable action. What is reasonable will depend on the particular circumstances of each case. Some efforts that homeowners may consider are clearing snow, salting, or sanding, as discussed in last week’s post. Commercial property owners may be expected to make further efforts such as implementing inspection protocols, maintaining maintenance records, properly training maintenance staff, or hiring an independent contractor.

That said, simply hiring a contractor to perform winter maintenance will not discharge an occupier of their duty to keep their premise reasonably safe. The occupier has an ongoing obligation to ensure that the contractor is competent, qualified to perform the work, and must exercise reasonable care in the supervision of the contractor [see s. 6(1) of the Act, Manning v. 3980 Investments Ltd., 2003 CanLII 2906 (ONSC), and Soomre v. P.A. Ramey Enterprises Ltd. et al., 2012 CanLII 782 (ONSC)].

With winter weather on its way, we should all to do our part not only to minimize hazardous conditions on our own property but to take care as pedestrians when we find ourselves in less than ideal conditions.

From a liability perspective, in addition to considering an occupier’s conduct, the Court will also look at the actions of the Plaintiff to determine whether they contributed to the cause of their fall. If so, a Plaintiff’s damages may be reduced for contributory negligence. The Court may consider whether the person was wearing their prescription eyeglasses, appropriate footwear, or had an obstructed view. They may also consider whether the person was intoxicated, was in a hurry, or had their hands full.

As explained above, if an occupier can demonstrate that they were proactive and acted reasonably in keeping their property safe, the Court may find that the occupier was not negligent. If the occupier is found to have met their standard of care, the Plaintiff would not be entitled to recovery.

If you are injured on a property due to hazardous conditions, here are some important steps to follow:

  • Report the incident to the property owner or property management;
  • Create an incident report;
  • Get the names and contact information of any witnesses;
  • Preserve footwear;
  • Take photographs of the exact location and conditions that contributed to the fall; and
  • Contact a personal injury lawyer who can explain your rights.

While this time of year is hectic for most of us, it is important to keep safety on our minds as we scramble to get ready for the holidays.

This blog post was contributed by Michael Giordano, OTLA Member and Associate Lawyer with Sal Guzzo LL. B.

 

Michael Giordano
Written by

Michael Giordano is a founding partner of Avanessy Giordano LLP. Prior to establishing his own practice, he was a partner of a prominent Mississauga personal injury firm.

He completed his law degree at the University of Ottawa. Prior to law school, Michael studied English and Law & Society at York University.

Michael is an active member of the Ontario Trial Lawyers Association and is the current Vice-Chair of the New Lawyers Division. He is a regular contributor to the OTLA blog and has also written for The Litigator.