Winter Maintenance Woes: What are an occupier’s responsibilities?

As we find ourselves in the thick of winter, it is important to keep in mind what a homeowner’s obligations are with respect to dangerous weather conditions. During this time of year, driveways and walkways on private property are hazards waiting to happen. But what is the law in Ontario when it comes to one’s duties to ensure their property is maintained for safe conditions?

In Ontario, the governing legislation is the Occupiers Liability Act[1], which defines what an occupier is and what their duties are.

An occupier is an individual who has physical possession of a premises. This does not just refer to property owners but people who are in control of maintaining the property as well, such as a snow removal service, or a maintenance company, etc.

An occupier of a premises has the duty to take reasonable steps to ensure that persons entering on the premises are safe from foreseeable dangers.

The case law tells us that when an injury occurs on private property, a wide variety of factors must be considered in order to define what is “reasonable” and will determine liability. For example, what were the weather conditions at the time when someone fell? What were the occupier’s practices of maintaining their walkway or driveway? Did they clean it on a regular basis or did they only do it once over a 12 hour period? An occupier could certainly be found liable if they only cleared their property once during a heavy blizzard that lasted for 24 hours.

However, if the occupier can show that they engaged in a regular practice of cleaning their property on an hourly basis or half hour basis then the courts will usually not find them liable for damages.

The action or lack thereof taken by an occupier was illustrated in Dogan v. Pakulski[2] In this case, the court found the property owner to be liable after a tenant living on the property slipped in the driveway near the entrance of his basement apartment. The owner was found liable because they had not cleared the property of ice and snow for several days after a heavy storm created freezing rain.

An injured person may claim against a property owner who is an occupier after falling on their property where the occupier had hired a snow removal or maintenance company to keep the walkways or driveways safe. In these circumstances, the owner will be inclined to deflect liability to these third parties. The courts have demonstrated that the owner will not be found 100% liable in these circumstances and liability will usually be split between all parties.

Another factor to take into consideration is contributory negligence. Contributory negligence is when the occupier is not found to be 100% liable by the court because of some factor originating from the injured party. For example, if a person slipped and fell on private property that was covered in ice and he or she was wearing flip flops, contributory negligence would likely be found because this person was partially at fault for wearing inappropriate footwear based on the weather conditions. Contributory negligence would result if the injured person was high or drunk when he or she fell.

Something else to consider is, just what was the person doing on the property in the first place? Were they trespassing? For example, were they trying to break into someone’s home and then they fell on that person’s driveway? Or was there a “No Trespassing” sign posted by the owner and a person entered the property anyway and fell? If this is the case, then the person who fell will likely not have a claim against the occupier because, in trespassing situations, a person assumes all the risks of traversing a property when he or she was never authorized to be on the property to begin with. A trespasser would only have a claim against an occupier if an occupier committed a blatant act that would cause gratuitous harm to a trespasser, such as setting up unnecessary hazards or traps or inflicting intentional harm against a trespasser.

The main takeaway from this issue if you are a property owner and thus, an occupier, is to use your common sense during these winter months. If you see your walkway or driveway accumulating ice or snow and it is getting slippery, take the initiative to clear it or put salt down as quickly as possible. If harsh weather conditions continue to persist over a prolonged period, implement a regular system to eliminate all safety hazards. Hire a company to assist you or you can always do it yourself. Don’t become the next defendant the courts make an example of!

[1] Occupiers’ Liability Act, R.S.O. 1990, c. O.2
[2] Dogan v. Pakulski, 2007 CanLII 17027 (ON SC)