Are there exceptions to my liability under occupiers’ liability?
Occupiers’ Liability Claims
The purpose of occupiers’ liability claims is to hold someone responsible for any injuries or damages that occur to individuals or their property while on a premises (i.e. land and/or structure). Such claims are brought against persons who physically possess a premises or who have responsibility for and control over the condition of the premises, the activities carried thereon, or the people allowed to enter the premises. While property owners typically come to mind as the responsible party, occupiers’ liability claims can also be initiated against independent contractors, landlords, and even tenants.
The occupier’s duty is broadly defined in section 3(1) of the Ontario Occupiers’ Liability Act (“the Act”) as “a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises.” In other words, an occupier has a duty to reasonably ensure that people on their premises – and the belongings of those people – are reasonably safe while on the premises. This duty can take the form of mopping up slipping hazards in grocery stores, clearing accumulated ice and snow from parking lots, and fixing broken handrails in stairways.
That said, there are situations where this duty of care does not apply. Where a person willingly assumes the risks of entering a premises, section 4(1) of the Act replaces the duty established by section 3(1) and substitutes a lesser duty on the occupier “to not create a danger with the deliberate intent of doing harm or damage” and “to not act with reckless disregard” with respect to the person or their property. The Supreme Court of Canada has found that section 4(1) of the Act creates a very narrow exception to the class of visitors to whom the occupier’s statutory duty of care is owed.
The exception applies to persons on a premises who are committing a criminal act or have the intention of committing a criminal act; to trespassers; to visitors where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; and to visitors entering for the purpose of a recreational activity where no fee is paid for the entry or activity, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and the person is not being provided with living accommodation by the occupier. This last scenario is only applicable with respect to the following premises:
(a) a rural premises that is,
(i) used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,
(ii) vacant or undeveloped premises,
(iii) forested or wilderness premises;
(b) golf courses when not open for playing;
(c) utility rights-of-way and corridors, excluding structures located thereon;
(d) unopened road allowances;
(e) private roads reasonably marked by notice as such;
(f) recreational trails reasonably marked by notice as such; and
(g) portage routes.
Essentially, the principle espoused by the exception is that no wrong is done to one who consents. By agreeing to assume the risk, the visitor absolves the occupier of all responsibility.
