Occupier’s Liability
I have just completed a heart-wrenching trial on behalf of a young man who sustained a brain injury when his wheelchair flipped over backwards on a ramp. The ramp, at a public mall, was not built according to the building code. As winter approaches, it is worth taking a moment to reflect on the liability imposed by our law on any occupier of land for the safety to users of property.
Your liability as a property owner is set out in The Occupier’s Liability Act. That act states that liability extends not only to owners but to lessees and other occupiers of land. Any occupier of land is responsible to ensure that anyone using the property is not exposed to unreasonable risks. This obligation affects private owners of residences ö not just large commercial property owners, like shopping malls.
This law sounds like common sense and appears simple enough. However, the application of this law can be difficult under certain circumstances. For example, not too many years ago such a claim went all the way to the Supreme Court of Canada where a visitor to a dwelling slipped on and icy path and where the occupier had not taken steps to salt. The occupier defended the claim, arguing that there was ice everywhere on this particular occasion and that it was virtually impossible to salt every place where someone might walk. The defense failed.
What is the standard of care? Essentially we are required to take positive steps to learn about and eliminate unreasonable risks. For example, if you are away on vacation and your Examiner carrier slips on an icy path this winter and injures herself or himself, what is your liability? In all probability you would be liable for failing to ensure that steps are taken to eliminate the danger. The standard is a high one. My advice is to protect yourself with adequate liability coverage. If you do operate a public building, check to ensure that all entrances comply with the Ontario Building Code. Your insurance broker will advise you concerning reasonable limits and sell such coverage as part of your homeowner policy whether you rent or own. When a large claim materializes insurance is worth the price.
