Under the Ontario Occupiers’ Liability Act, an occupier of premises owes a duty to reasonably ensure the safety of those who enter said premises. If the occupier does not take reasonable care to ensure others’ safety on the premises, and someone sustains an injury. As a result, the injured party may have a claim for compensation.
This article reviews premises liability and determines what constitutes an occupier for the purposes of the Occupiers’ Liability Act. The broad definition of “occupier” opens up a potential route for personal injury victims to obtain compensation.
Occupiers owe a duty of care to see that people are reasonably safe while on premises
Section 3 of the Occupiers’ Liability Act imposes a duty on an occupier of premises to take such care as is reasonable in the circumstances to see that persons entering the premises are reasonably safe while there. This is specified to apply whether the danger is caused by the condition of the premises or by an activity carried on there.
There are several qualifications for this duty. Firstly, just because someone is injured on a commercial, residential or municipal property does not automatically make the occupier liable. The occupier must only take reasonable care to see that the person is reasonably safe.
Secondly, the Occupiers’ Liability Act contains several exceptions. For example, the duty of care applies except when the occupier is “free to and does restrict, modify or exclude” it. It also does not apply to risks willingly assumed by the person on the premises. In these cases, the occupier only owes a duty to not create a danger with the deliberate intent of doing harm and to not act with reckless disregard.
What constitutes an “occupier” under the Act?
The Occupiers’ Liability Act states that:
““occupier” includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises”.
Based on this definition, a person does not need to be the owner of the premises to be covered by the statutory duty. Regardless of ownership, an “occupier” includes the person with possession or control of the premises. This is because the occupier is the person(s) that holds the ability to exercise care for the safety of those who visit the premises.
Plaintiff was injured in a slip and fall accident on municipally owned property
The recent decision of the Ontario Superior Court of Justice in Cornwall v. Al Bloushi demonstrates the potential breadth of the concept of an “occupier” under the Occupiers’ Liability Act. It shows that someone may be liable for personal injury under the Occupiers’ Liability Act, even in less obvious circumstances.
The plaintiff fractured her shoulder when she slipped and fell on broken glass that was in a paved area of municipally-owned property in the City of London. At the time of the incident, she was walking from her car to a donation bin to drop off clothes. It was a clear and dry day, and the glass was on the ground in front of the donation bin.
Plaintiff sued the owner of the donation bin
The plaintiff sued the owner of the donation bin and the City, amongst others. The bin’s owner had put the bin on the property without the City’s knowledge or permission.
By the time of trial, the bin’s owner had its statement of defence struck out. It did not appear at the trial and was deemed by the Court to admit all allegations of fact contained in the plaintiff’s statement of claim. The action was also in the process of being dismissed against the City.
As a result of these procedural matters, a key issue for determination was whether the bin’s owner was an occupier under the Occupiers’ Liability Act.
An occupier does not need exclusive possession and control
At trial, Justice Mitchell confirmed that a single property can have more than one occupier and that an occupier did not need to have exclusive possession and control of the relevant premises. Her Honour cited prior case authority for the proposition that:
“… wherever a person has a sufficient degree of control over premises that he ought to realize that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an “occupier” and the person coming lawfully there is his “visitor”.”
The donation bin owner was an occupier in the circumstances
Justice Mitchell decided that the bin owner’s conduct was sufficient to make it an “occupier.” It placed the bin on the property without permission and implicitly invited the public to the property to access the bin. It assumed responsibility for maintaining the area by employing independent contractors to inspect the premises. The City’s ownership of the property did not negate the bin owner’s status as an occupier.
Court awarded substantial compensation to the injury victim
Her Honour determined that the bin owner failed to meet the statutory duty of care for the reasons alleged in the plaintiff’s statement of claim. These reasons included the fact that the bin’s owner failed to monitor the property’s condition and implement a proper procedure for the upkeep of the property. This breach caused the plaintiff to slip and sustain a significant injury.
Based on the evidence presented about the plaintiff’s limitations and income loss, the Court awarded the plaintiff almost $500,000 in damages.
Contact the Personal Injury Lawyers at Campbell Litigation for Advice on Premise Liability Claims
The experienced personal injury lawyers at Campbell Litigation in Waterloo have the resources and knowledge to help you recover the compensation you deserve if someone else negligently caused you an injury. We will identify the correct defendant(s) and advocate for your position in negotiations, mediation, arbitration or in court. To arrange a free initial consultation to discuss your injury and potential claim, call us at 519-886-1204 or contact us online.
