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Occupiers’ Liability – A Summary

If a person in Ontario is injured while on a property they may be able to sue the occupier of that property for damages. This area of law is known as “occupiers’ liability” and in such a case liability is proved by establishing a breach of the Occupiers’ Liability Act(“OLA”). For the injured party to have a successful claim, they must establish that their injury was caused by the occupier’s failure to take reasonable care to ensure that conditions, while the person was on the property, were satisfactory.

The law establishes separate levels of proof for different classes of persons. A person who is invited is entitled to expect the occupier to use reasonable care to prevent damage from an unusual danger that they knows or ought to know exists; this same level of duty of care is owed to licensees. Trespassers, the however, can only successfully sue an occupier if they were injured by a willful act involving something more than the absence of reasonable care. This would include a deliberate act designed to harm the trespasser or something done with reckless disregard as to the presence of the trespasser.

Toward the contractual entrant an occupier has been seen to owe a duty to make the premises as safe as reasonable care and skill on the part of anyone can make them. The difference in duties owed to the various categories of entrants made the selection of a category particularly important. The inflexible nature of the categories was such the courts caused themselves no ends of worries.

The Act also establishes a general duty owed by an occupier to those persons entering their premises. This duty, which essentially requires that one take reasonable care to see that persons and property on premises are reasonably safe, is similar to the ordinary duty of care one encounters in the law of negligence. The duty is based on an objective test of reasonableness.

The statutory duty set out by OLA  is far-reaching and applies in most situations in Ontario. However the OLA contains a few notable exceptions to the general duty. The OLA  includes a provision that allows for entrants to willingly assume a risk when entering onto property. In such a case the occupier only owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person, and to not act with reckless disregard for the presence of the person. Persons who have entered onto a property with the deliberate intention of committing a criminal act are deemed to have willingly assumed all risks and are subject to this lower duty of care.

This lower standard of care applies in cases of trespassers under the Trespass to Property Act  and to person entering rural and certain other types of property for the purpose of recreational activity, and who have not paid an entrance fee. Section 10(2) excludes application of the OLA to any municipal corporation or the Crown in respect of public highways and public roads, including sidewalks.

While the introduction of the OLA  certainly streamlined the law in this area and made it more predictable, it did not end the evolution of the law in Ontario regarding occupiers’ liability. Indeed, one area that the OLA  did not address was that of causation.

The OLA  does, however, leave some room for interpretation of several areas of the Act, including provisions relating to independent contractors (s. 8 – OLA)  and those who are alleged to have willingly assumed the risk on entry (s. 5 – OLA)

Nicholson Gluckstein Lawyers

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