What is Occupier’s Liability?

Find out about the action in negligence against owners and occupiers of real property by persons and some recent examples (in grey)

1- General background

Occupiers’ liability is the area of law about the duty of care owed by the owners and occupiers of real property (i.e. land) to those who enter their property. This area of law is set out in the Occupier’s Liability Act (“OLA”), R.S.O. 1990, c. O.2, as well as the common law (i.e. case law).

An “occupier” of real property is either a) someone who is in physical possession of the premises or b) someone who has responsibility and control over the condition of the premises or the activities there carried on or control over persons allowed to enter the premises.[1]

“Premises” include lands and structures, or either of them, including water, ships, vessels, trailers and portable structures designed or used for residence, business or shelter and trains, railway cars, vehicles and aircraft, except while in operation.[2]

2- Duty of care (breach of which = negligence)

The duty of care is set out in s. 3 of the OLA: “An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons[,] are reasonably safe while on the premises”.[3]  The OLA does not impose strict liability.[4] The occupier must take reasonable care to ensure safety but is not held to a standard of perfection.[5]

In Hosseinkhani v. QK Fitness, the plaintiff alleged she was injured when she tripped and fell on a dumbbell during a gym class at the defendant’s gym and that her injury was caused by the gym (occupier’s) breach of its duty of care. The Court dismissed her claim. The Court noted that the law is clear that the OLA does not impose strict liability. The dumbbells were not being used in an unusual fashion or for a purpose for which they were not intended. The risk that a round dumbbell might roll is an obvious risk, and occupiers do not have to warn adults about obvious risks.[6]

Whether an occupier met the required standard of care is reviewed on an objective test of a reasonable person.[7] Occupiers can successfully defend a claim “by demonstrating that they had in place a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what is practical in the circumstances and what is commensurate with reasonably perceived potential risks to those lawfully on the property …”.[8]

In Harris v. Loblaw Co. Ltd., the plaintiff alleged that she slipped and fell on water and/or ice near the broccoli located in the produce section of the grocery store and that her injury was caused by Loblaws’ (occupier’s) breach of its duty of care. The Court referred to the following factors as being relevant to an OLA claim in this context: notice, pylon, mats, lighting, guarding, maintenance, existence and following of safety measures, whether the store manager read the floor care policy manual and instructed personnel on the manual/policy, etc. This case was sent to trial.[9]

The duty of care “applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises”.[10] This means that a person who entered onto the premises and suffered damages has a cause of action on two grounds: 1) the condition of the premises was dangerous and caused their damages; or 2) an activity carried on on the premises was dangerous and caused their damages.

The duty of care “applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty”.[11] This allows for a mechanism by which the occupier can partially or completely avoid liability by passing it on to another person (e.g. if the occupier asked the person entering to sign a waiver of liability as a condition of entering onto the premises).

3. Lowered duty of care (breach of which = gross negligence)

The duty of care “does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property”.[12]

In Arif v. Li, the plaintiff attended a rock-climbing course at a conservation area and, while climbing up a wall, lost his grip, fell and injured his leg. The plaintiff was held to be bound by the release he signed and his claim was dismissed. The Court established a general rule that a person is bound by a signed release unless one of the following circumstances exists: non est factum, fraud, misrepresentation, lack of consensus ad idem, unconscionability, or public policy.[13]

For instance, in the medical negligence context, rules about waivers/exclusions from liability are different because of public policy issues, including that medical practitioners have a professional obligation to do no harm and that patients reasonably expect medical practitioners to do no harm.[14]

A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the lowered duty of care.[15] The same is true for those who enter rural premises, closed golf courses, utility rights-of-way and corridors, unopened road allowances, private roads, recreational trails and portage routes either where entry is prohibited pursuant to 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 but no fee is paid for the entry or activity and the person is not being provided with living accommodation by the occupier.[16]

4. Duty to inform

The occupier has a duty to inform: “Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed”.[17]

For example, in Arif v. Li, the Court was inclined to give effect to the assumption of risk because:

• a notice was posted at the entrance that those who enter assume all risk of personal injury or death on the premises;
• an identical notice was printed on the back of the plaintiff’s entrance ticket;
• the titles of the waivers were clearly marked in bold uppercase letters at the tops of pages;
• the plaintiff had taken 3-5 minutes to review the waiver before signing.[18]

5. Independent contractors

Whether an occupier is liable for the negligence of an independent contractor depends on three factors, namely, whether “the occupier had acted reasonably in entrusting the work to the independent contractor”, whether the occupier had taken reasonable steps “to be satisfied that the contractor was competent and that the work had been properly done”, and whether “it was reasonable that the work performed by the independent contractor should have been undertaken”.[19]

[1] Occupier’s Liability Act (“OLA”), R.S.O. 1990, c. O.2, s. 1 (“Occupier”)

[2] Ibid, s. 1 (“Premises”).

[3] Ibid, s. 3.

[4] Gohm v. York, 2013 ONSC 7118.

[5] Miltenberg v. Metro Inc., 2012 ONSC 1063, 212 A.C.W.S. (3d) 1081, para. 33.

[6] Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70 (Can LII).

[7] O’Leary v. Rupert, 2010 BCSC 240 (Can LII), para. 33.

[8] Canada (Attorney General) v. Ranger, 2011 ONSC 3196, para. 33.

[9] Harris v. Loblaws Co. Ltd., 2015 ONSC 4572 (Can LII), paras. 12 and 13.

[10] OLA, s. 3(2).

[11] Ibid, s. 3(3).

[12] OLA, s. 4(1).

[13] Arif v. Li, 2016 ONSC 4579, para. 50.

[14] Rush v. De Ruiter, 2018 ONSC 1210 (Can LII), para. 40.

[15] Ibid, s. 4(2).

[16] Ibid, ss. 4(3) and (4).

[17] Ibid, s. 5(3).

[18] Supra, paras. 10-19.

[19] OLA, s. 6(1).