Documentation:Torts/Negligence Occupiers

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TORT LAW
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Property Torts
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Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
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Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
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Index
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Negligence of occupiers of premises
Occupiers' liability is an area of law that concerns personal injuries suffered due to unsafe property conditions.[1] An occupier is generally a person or business who has physical possession over a building or land.[2] For example, a business that rents store space is considered an occupier. Under some circumstances, an occupier may also be the owner of the premises, depending on whether that person has responsibility for and control over the condition of such premises.[2]

The development of occupiers' liability

Common law

A black post with a red and white "private property, no trespassing" sign at a park.

Where a jurisdiction does not have overriding legislation, the area of occupiers' liability is governed by the common law,[3] the principles of which have been described as "archaic, cumbersome, and often unfair".[4]

The common law historically classified property visitors into different categories: invitees, licensees, trespassers, and contractual entrants.[5][6] An occupier owed the greatest duty of care to an invitee. This duty required the occupier to take reasonable care to prevent injury to the invitee from unusual dangers of which the occupier was or ought to have been aware.[6] An occupier owed a more limited duty to a licensee, which was described as a duty to warn of hidden dangers of which the occupier was aware.[6] With respect to a trespasser, an occupier only needed to avoid wilfully injuring them or behaving in reckless disregard of their presence.[7] In the case of a contractor, the duty owed was determined by the contract.

Over time, the common law of occupiers' liability has evolved to resemble more closely ordinary negligence law principles.[8] For example, invitees, licensees, and contractual entrants may all be classified as lawful visitors and owed the same duty of care.[9] This duty requires an occupier to take reasonable care to prevent foreseeable risk of harm from any unusual dangers on the premises of which the occupier knew or ought to have known in the circumstances.[10] Although the duty of care owed by an occupier to a visitor is premised on negligence and foreseeability of harm, it is considered less onerous than the burden imposed by the ordinary law of negligence.[11]

In jurisdictions that are solely governed by the common law, there is still some lingering uncertainty as to whether the courts should follow the old common law approach consisting of different duties to different types of visitors.[12] The complicated state of the Canadian common law of occupiers' liability has been referred to as "a mess."[13]

Occupiers' liability statutes

In the news
21 year-old woman sues school board for injuries incurred at age 5
A row of green monkey bars at a playground.
A woman, 21, is suing the Delta Board of Education for an injury she sustained while falling off the monkey bars at her elementary school when she was 5 years old.[14] The claim alleges a violation of the Occupiers Liability Act.[14]

Most provinces in Canada, including British Columbia, Ontario, Alberta, Manitoba, Nova Scotia, and Prince Edward Island have enacted occupiers' liability statutes that simplify the position prevailing at common law. Under such legislation, invitees and licensees are collectively placed in the class of visitor.[15] Legislation also imposes an affirmative duty on occupiers, requiring them to take reasonable care for the safety of people allowed onto the premises.[15] The statutes discard the common law position that an occupier is only liable for unusual dangers of which the occupier was aware or ought to have been aware. Additionally, while at common law an occupier might escape liability by giving notice of the dangers, language in legislation mandates that an occupier must actively make their premises reasonably safe.[15]

The standard of care provided by occupiers' liability statutes is one of reasonableness and not perfection.[16][17] This means that "occupiers are not required to take unrealistic or impractical precautions against known risks, nor are they required to protect against every possible danger."[18]

Notably, Saskatchewan is still governed by the common law.[19] And although New Brunswick's Law Reform Act[20] abolishes the law of occupiers' liability, the province does not have a statute that expressly imposes a duty on occupiers or prescribes a standard of care.[21] Consequently, liability is based on the ordinary rules of negligence.[21]

Legislation
Alberta: Occupiers’ Liability Act, RSA 2000, c O-4, ss 1(d), 5-7.
British Columbia: Occupiers Liability Act, RSBC 1996, c 337, s 3.
Manitoba: The Occupiers’ Liability Act, CCSM c O8, ss 1, 3(1)-(3), 3(5).
New Brunswick: Law Reform Act, RSNB 2011, c 184, s 2.
Nova Scotia: Occupiers’ Liability Act, SNS 1996, c 27, ss 2(b), 4, 5.
Ontario: Occupiers’ Liability Act, RSO 1990, c O.2, ss 1, 3, 4.
Prince Edward Island: Occupiers’ Liability Act, RSPEI 1988, c O-2, ss 1(b), 3, 4.
Saskatchewan: The Trespass to Property Amendment Act, 2019, SS 2019, c 26, s 11.

Defences to occupier's liability claims

Contributory negligence

Put simply, contributory negligence is a person's carelessness in looking after their own safety.[22] It is based on the principle that everyone has a duty not only to prevent injury to others but also injury to themselves.[22] Where contributory negligence is successfully proven by a defendant occupier, some of the damages may be apportioned to the plaintiff accordingly.[23] This applies both under the common law tort[24] and under occupier's liability statutes.[25]

For example, in Dhaliwal v. Premier Fitness Clubs Inc., the plaintiff sued for an injury he sustained as a result of slipping on one of the defendants' workout machines.[26] The plaintiff claimed the slippage was due to the fact that he had stepped into a puddle that the defendants had failed to clean up.[27] The Ontario Supreme Court apportioned the damages equally between the plaintiff and defendants, finding that the defendants' negligence did cause the plaintiff to get water on his shoes, but the plaintiff was negligent in using the workout machine without taking reasonably prudent steps to dry his shoes first.[28]

Assumption of risk

A white sign with red ink stating "PRIVATE ROAD KEEP OUT", with two houses in the background.

Assumption of risk, also known as volenti non fit injuria, bars a plaintiff from claiming compensation if they knowingly took on the risk of injury.[29] The defence should be construed narrowly and requires the plaintiff to have actually waived the right of action.[30] Specifically, "there must have been an express or implied bargain between the parties whereby the plaintiff gave up his right of action for negligence."[30] Occupiers' liability statutes have been held to be a codification of these common law principles.[31]

In Uggenti v. Hamilton (City), the plaintiff sued the city of Hamilton for an injury he sustained while tobogganing on the City's property.[32] The plaintiff hit the edge of a snow-covered ditch on the slope and was thrown off his toboggan.[33] The Ontario Superior Court upheld the Arbitrator's finding that assumption of risk was not a valid defence here because the plaintiff had not been aware of the risk he was assuming, and one must be aware of the existence of a risk in order to voluntarily assume it.[34]

Discussion questions

  • What are the advantages and disadvantages to plaintiffs of relying solely upon the common law of negligence rather than specific legislation in claims against occupiers of premises?
  • What purpose do occupiers’ liability statutes serve?
  • Does the standard of care in relation to the statutory occupiers’ liability duty differ from the ordinary negligence standard applied in other contexts?


  1. ↑ Jiwa, Farouk (2 April 2022). "What is Occupiers' Liability in BC?". Jiwa Law.
  2. ↑ 2.0 2.1 Warnett, Paul (April 2021). "If you slip and fall". People's Law School.
  3. ↑ Kozmeniuk v. Zellers Inc., 2001 SKQB 114 at para 39.
  4. ↑ Stacey v. Anglican Churches of Canada, 1999 CanLII 18933 (NLCA) at para 28.
  5. ↑ Musselman et al v. 875667 Ontario Inc. et al, 2010 ONSC 3177 at para 171.
  6. ↑ 6.0 6.1 6.2 Alexander, E R (1971). "Occupier's Liability: Alberta Proposes Reform". Alberta Law Review. 9 (1): 89.
  7. ↑ Herbert v Auto Connection (1993) Ltd., 2017 SKQB 110 at para 131 citing Prosko v. Regina Qu'Appelle Regional Health Authority, 2008 SKQB 144 at para 23.
  8. ↑ Klar, Lewis N (1991). "Recent Developments in Canadian Law: Tort Law". Ottawa Law Review. 23 (1): 247–248.
  9. ↑ Stacey v. Anglican Churches of Canada, 1999 CanLII 18933 (NLCA) at paras 26, 38.
  10. ↑ Stacey v. Anglican Churches of Canada, 1999 CanLII 18933 (NLCA) at para 26.
  11. ↑ Fridman, GHL (1990). The Law of Torts in Canada. Toronto: Carswell. p. 24.
  12. ↑ Herbert v. Auto Connection (1993) Ltd., 2017 SKQB 110 at para 127.
  13. ↑ Linden, Allen M (1988). Canadian Tort Law. Toronto: Butterworths. p. 599.
  14. ↑ 14.0 14.1 Lazaruk, Susan (9 May 2023). "Woman, 21, sues Delta school board for injuries on monkey bars at age 5". Vancouver Sun.
  15. ↑ 15.0 15.1 15.2 Hatty v. Reid, 2005 NBCA 5 (§19.8.1) at para 17.
  16. ↑ Lyng v. Ontario Place Corporation, 2024 ONCA 23 at para 25.
  17. ↑ Ball v. GAP (Canada) Inc., 2001 BCSC 1106 at para 25.
  18. ↑ Lyng v. Ontario Place Corporation, 2024 ONCA 23 at para 25 citing Waldick v. Malcolm, 1991 CanLII 71 (SCC) at 470–472.
  19. ↑ Casbohm v. Winacott Spring Western Star Trucks, 2019 SKQB 44 at para 24.
  20. ↑ Law Reform Act, RSNB 2011, c 184.
  21. ↑ 21.0 21.1 Hatty v. Reid, 2005 NBCA 5 (§19.8.1) at para 21.
  22. ↑ 22.0 22.1 Herbert v. Auto Connection (1993) Ltd., 2017 SKQB 110 at para 198.
  23. ↑ Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711 at paras 86–87.
  24. ↑ See e.g. Hale v. Westfair Foods Ltd., 1995 CanLII 5780 (SKKB).
  25. ↑ See e.g. Waldick v. Malcolm, 1991 CanLII 71 (SCC).
  26. ↑ Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711.
  27. ↑ Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711 at para 3.
  28. ↑ Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711 at para 87.
  29. ↑ Villeneuve, Justin (6 October 2023). "Understanding Elements of Negligence Ontario Law". WVGB Law Group.
  30. ↑ 30.0 30.1 Williams, Glanville (1951). Joint Torts and Contributory Negligence. Stevens & Sons Ltd. pp. 307–308.
  31. ↑ Waldick v. Malcolm, 1991 CanLII 71 (SCC).
  32. ↑ Uggenti v. Hamilton (City), 2013 ONSC 6162.
  33. ↑ Uggenti v. Hamilton (City), 2013 ONSC 6162 at para 12.
  34. ↑ Uggenti v. Hamilton (City), 2013 ONSC 6162 at para 16.
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