Occupier Liability

We have a social contract with other people in our community - it is one of the very foundations of our legal system. In this social contract, we agree to take reasonable care of ourselves and our personal property so that we do not unduly harm others. In exchange, we expect other people to do the same.

When one person is negligent in fulfilling this obligation and another person is hurt as a result, the injured person has access to some legal remedies. For example, an injured person can file a tort claim to recover actual and anticipated losses caused by a negligent person’s actions or inaction. If the injury-causing accident occurred on property owned and/or occupied by the negligent person, the tort claim is known as an occupier’s liability claim.

There are several areas of law that deal with occupier’s liability: the Occupier’s Liability Act, also known as (“OLA”), Trespass to Property Act, provincial and federal statutes concerning a government property’s operational maintenance, and social host liability case law. Knowing which laws and limitations apply to the accident that caused your injury can be confusing.

If you or a loved one has suffered an injury on someone else’s property due to their negligence, Gluckstein Personal Injury Lawyers can be counted on to guide you through this challenging time. With expertise in occupier’s liability cases, our knowledgeable, experienced, and trusted advocates are ready to help you make a claim for the compensation you deserve.

When is a property owner/occupier liable for a person’s injuries?

Occupier’s liability and the duty of care.

If a person is injured while on someone’s property, whether invited or not, they may be able to sue the occupier of that property (the person who may be responsible for the property’s upkeep) for damages, and others who may also have responsibilities for the safety of the premises. In many cases, liability is proved by establishing a breach of the OLA. To successfully claim damages, the injured party must establish that their injury was caused by the occupier’s failure to take reasonable care to ensure that conditions were reasonably safe while the person was on the property.

The statutory duty set out by OLA is far-reaching and applies in most situations, including injuries sustained in/on:

• Private dwellings and properties.
• Businesses and commercial properties.
• Municipal properties (including sidewalks, parks, and recreational facilities).
• Provincial and federal properties (such as parks and attractions).

It is important to note that courts have found the standard of care to be flexible and established based on the specific facts in a case. For example, if there is a higher risk of spills causing slippery floors in some commercial spaces over others, the occupier responsible for the former will need to be more vigilant than the occupier responsible for the latter. An experienced occupier’s liability lawyer can investigate the circumstances surrounding your accident, research relevant case law precedents and build a case for compensation and damages.

Limitations of occupier’s liability.

Although the occupier of a property has a responsibility to keep the space reasonably safe for visitors, there are limits to this duty in practice. Usually, a person visiting a property is either an invited guest or has a lawful reason for being on the property. Sometimes, however, a person may be trespassing on a property or on the property with the intent to commit an unlawful act. In these cases, the occupier only owes a duty to the person to avoid creating a danger with the deliberate intent of doing harm or damage and to not act with reckless disregard for the presence of the person.

This lower standard of care applies in cases of trespassers under the Trespass to Property Act, persons entering rural and certain other types of property for the purpose of recreational activity, and those who have not paid an entrance fee.

An occupier who is aware of a hazard or unsafe space may take steps to draw attention to the deficiency. While this does not remove the occupier’s responsibility to provide reasonable safety, it could mitigate damages if a person becomes injured because they ignored things like warning signs or caution tape.

Municipal governing bodies responsible for upkeep of extensive infrastructure are also held to a different standard. Recognizing the difficulty of maintaining such expansive properties to the same degree as occupiers of more contained spaces, the law provides that in certain types of cases a municipality must be found to have been grossly negligent - negligent to the point of recklessness - before it can be held liable for a person’s injuries.

Contributory negligence.

Even if an owner/occupier’s negligence caused or contributed to a visitor’s injuries, the injured person is not absolved of their own responsibility to act in a reasonably safe manner. For example, if a person is distracted by their cell phone and trips on an uneven walkway, the injured party may be considered contributorily negligent. If the occupier was negligent in not fixing or drawing attention to a hazardous sidewalk, they may be liable for some of the injured party’s losses. However, in any court proceeding or settlement agreement, the injured party’s own actions will be taken into account to make the damages proportional to their own negligence.

Common premises liability claims.

Property owners/occupiers who are negligent in the upkeep of their premises may be liable for injuries caused by:

• Broken or missing handrails.
• Dysfunctional escalators and elevators.
• Broken steps.
• Inadequate lighting.
• Icy, slippery and/or crumbling walkways.
• Debris left in walkways.
• Potholes.
• Lack of signage on a slippery surface.
• Falling objects.
• Sudden or unexpected changes in elevation without notice.
• Tripping hazards.
• Swimming pool accidents.
• Poorly maintained equipment.

But, there is no definitive list of hazards within statutes. Any serious injury caused by another person’s negligent disregard for a guest/visitor’s reasonable safety may be grounds for a lawsuit for damages and losses.

Some occupier’s liability scenarios.

Private dwellings and properties.

Days after a snow and ice storm, a homeowner has failed to shovel the walkway and stairs leading to their door causing a build up of slick ice. A delivery person taking appropriate care to avoid the hazard still slips and falls sustaining broken bones and a traumatic brain injury.

• If the homeowner had sufficient time to remove the hazard by breaking up the ice or putting salt or grit to reduce the risk of slipping, (s)he may be liable for the delivery person’s injuries.
• If snow removal is contracted out or if the home is rented and a tenant’s lease stipulates they are responsible for seasonal maintenance, some or all of the liability may be transferred to another party.
• If the accident occurred during an open house, a realtor may bear some of the responsibility for inviting people onto the property without ensuring it was reasonably safe for visitors.

A court would take into account the facts of the case when assessing the proportion of liability and the extent of damages.

For example, an owner/occupier living in the home would have had more opportunity to identify and remedy the hazard than if the incident occurred at a seasonal cottage in which they did not reside and where they would not anticipate foot traffic. 

Businesses and commercial properties.

If a similar accident occurred in a commercial space, the liable person could be:

• The business owner.
• The property owner.
• A property manager.
• A contractor providing maintenance.
• A tenant (including a sublease tenant).
• Another person who has assumed temporary control over the premises (for example, a realtor or auctioneer). 

Municipal properties.

Section 44(1) of the Municipal Act mandates that a municipality must keep highways (including roads, bridges, streets, sidewalks and laneways) in a state of repair that is reasonable in the circumstances. Under Section 44(2) of the Municipal Act they would be held liable for a failure under 44(1) that resulted in an injury-causing slip and fall accident. Yet, accepting that keeping sidewalks free from snow and ice to the same degree as private walkways is unfeasible, the municipality would only be liable for an injury if it had been “grossly negligent” in its duty to maintain it.

Provincial and federal properties (such as parks and attractions).

If negligence management of a government owned park or campground, trail system, or other attraction leads to a personal injury, the government ministry responsible for the property could be deemed liable. For example, according to the Provincial Parks and Conservation Reserves Act, the Ministry of Natural Resources and Forestry is responsible for maintenance of provincial parks and their campgrounds and outlines. 

Social host liability.

While a host/occupier has a duty to maintain reasonably safe premises for visitors and guests, the law extends a duty of care under some circumstances. On rare occasions, a social host may be liable for injuries a guest has sustained even after they have left the premises.

Recent case law has confirmed that individuals who host social gatherings where intoxicating substances are consumed (such as alcohol and marijuana) could be found liable if the intoxicated guest injures theirself or other people after leaving the property. The duty of care for a commercial host (for example, a restaurant or bar serving alcohol) is substantially higher than for social hosts; however, the Supreme Court of Canada has noted that there may be unique circumstances or evidence of extreme negligence where a social host could be found to have a duty of care to guests following a gathering.

How long do I have to file a claim?

Generally, a person who has suffered an injury from the negligent actions or inaction of a host/occupier has two years from the date of the accident to begin legal proceedings. However, there are some important and consequential exceptions. 

According to the Municipal Act, a person injured on municipal property must provide written notice by registered mail to the municipal clerk within 10 calendar days of their injury. 

If this notice period is missed, a claim for damages can still be made; however, a judge must be satisfied that the injured person had a valid reason for failing to give proper notice and the failure does not prejudice the municipality from defending itself.

The court will consider a variety of factors when assessing whether a late claim that meets these criteria can proceed, including:

• The severity of injury and extent of treatment.
• A delay in recognizing the severity of the injury and the length of said delay.
• Whether the injured person was capable of deciding to sue within the notice period.

Changes to the OLA in 2020 also reduced the time limit to provide notice for injuries occurring on private property due to snow and ice. An injured person must now send notice of a claim to the occupier, or to any independent contractor employed by the occupier to remove snow and ice, within 60 days of the accident. Exceptions are made for fatal injuries or instances where a person can satisfy a judge there were reasonable grounds for delay that would not prejudice the defendant.

Gluckstein Personal Injury Lawyers can help.

Deciding when to file a claim (and being aware of deadlines and limitations) are important considerations. Contacting a knowledgeable and experienced personal injury law firm with expertise in occupier’s liability cases as soon as possible can be immensely helpful when you are unsure of your rights.

When you call us for a no obligation, free consultation, we listen to what has happened with an empathetic ear. In addition to explaining your various options, if a preliminary investigation leads us to believe we stand a good chance of helping you receive compensation and damages for your losses, we will agree to be your representative in a civil suit.

As your tireless advocate, both during and after the life of a case, you can trust a Gluckstein Personal Injury Lawyer in Toronto, Ottawa, Niagara, and Barrie to give you the full circle care you need and deserve as you journey toward recovery.