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What is Occupiers’ Liability?

In Ontario, the Occupiers’ Liability Act governs all claims relating to occupiers’ liability. Anyone who is in physical possession of a property, or has responsibility for and control over a property (the “occupier”) owes a duty of care to take reasonable precautions to ensure that all persons are reasonably safe while on their property. This duty of care applies both to the condition of the property and activities carried out on the property.

It should be noted that the duty of care does not apply to risks willingly assumed by persons who enter a property. An occupier is also subject to a modified duty of care when someone enters a property with the intention of committing a crime or is trespassing. In both of these situations, however, an occupier still owes a duty to not create a danger with the deliberate intent of injuring someone or to act with reckless disregard of the presence of the person on his or her property.

As can be seen above, there are a number of situations where a duty of care may be owed under the Occupiers’ Liability Act. Some common cases in which occupiers’ liability claims arise are discussed below.

Injured At a Home

Generally, anytime you are a guest in someone’s house they owe you a duty of care. This means that they must do what is reasonable and in their power to ensure that you are safe while on their property and protect you from foreseeable harm. This duty of care applies to both inside the house and the yard. A common scenario where homeowners are found liable for injuries in Ontario is the failure to properly clear snow and ice from walkways in the wintertime.

The issue of who owes a duty of care can be more contentious in the case of rented properties where there is a landlord tenant relationship. Courts will look to the lease agreement between the parties, as well as consider the conduct of the parties with respect to maintenance to determine who owes a duty of care. As it is often the landlord who is responsible for maintenance, they are more commonly found to owe a duty of care under the Occupiers’ Liability Act. However, in many cases both parties (landlord and tenant) will be held liable for the plaintiff’s injuries.

Injured At the Mall or Supermarket

The duty of care under the Occupiers’ Liability Act also applies to commercial businesses. It requires these places to take reasonable care to ensure their customers are safe while at their place of business. In the case of a mall or grocery store, the owner must ensure that all areas are safe including: parking lots, entrances, common areas, and washrooms. Periodical hazards, such as when a wet floor after it has been cleaned, should be marked by visible warning signs placed in the area. If there is an area being renovated, then it should be barricaded off to prevent customers from gaining access to the area. The individual stores in a mall may also owe a duty of care to customers depending on the nature of their lease agreement with the owner.

Injured At the Bar

As the Occupiers Liability Act applies to commercial businesses, it also to applies bars, nightclubs and restaurants. This means that these places have a responsibility for the activities carried out by their customers. As bars owe their patrons a duty of care they must monitor their client’s consumption of alcohol and level of inebriation to ensure that they do not endanger themselves or other persons at the bar. The Liquor License Act states that no person will sell or supply liquor to any person who appears to be intoxicated. The Liquor License Act also specifically allows either the injured intoxicated patron, or a person injured by the intoxicated patron to recover compensation for their injuries from the owner of a bar, restaurant or nightclub. There have been numerous cases where bars have been found liable for injuries to intoxicated patrons or injuries caused by intoxicated patrons. Indeed, bars may even be held to a modified standard of care as what may not pose any danger to a reasonable person may pose a danger to highly intoxicated individuals.

Conclusion

Falls, slips and trips can result in serious, permanent and life changing injuries. Who bears legal responsibility for the injuries sustained in these types of situations is never straightforward. The factors which are relevant to the assessment of what constitutes reasonable care under the Occupiers’ Liability Act are very fact specific and turn on the individual circumstances of each case.

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