By Gary A. Richard
With winter comes the risk of ice and snow covered parking lots, and business entrance areas constantly wet and slippery from foot traffic. People will fall and they will get hurt; but who is to blame when someone slips and falls under those circumstances?
Until 1996, the liability of property owners or occupants was a matter entirely governed by case law. Essentially, the test was whether or not the occupant had allowed an ‘unusual danger’ to exist that resulted in the injury to a person or to property.
The Occupiers’ Liability Act, S.N.S. 1996, c. 27 (OLA) substantially replaced the common law developed to that point with a list of statutory duties imposed upon occupiers, and also a list of limitations on those duties.
It defined “occupant” to include building or premises owners, landlords, or tenants. The definition also makes it clear that, for the purposes of accident liability, there may be more than one owner of a given premises.
The definition of “premises” is broad: it includes land and structures, water, ships and vessels, virtually any structure used as a residence, as well as aircraft, vehicles and rail cars while not in operation.
The Nova Scotia Court of Appeal recognized that the duty created under the OLA (and similar, but not identical, to the duty imposed by the common law previously) amounted to an obligation “…to take such care as in all the circumstances of the case is reasonable to see that each person entering on the premises and the property brought on that premises by that person are reasonably safe while on the premises.” (Miller v. Royal Bank of Canada, 2008 NSCA 118)
So, the upshot of the OLA is that an occupant is required to take reasonable care to ensure that their premises are reasonably safe.
The Court of Appeal has noted that this is not a higher standard than that imposed before the enactment of the OLA. It is, however, a more generic duty of care; it is easier to comprehend and more consistent with the broad concepts of tort law.
The reference to “in all the circumstances” in the quote excerpted above means what qualifies as reasonable care will be adapted or adjusted to reflect the individual circumstances of the case.
The analysis a court will go through in determining whether or not an occupant is liable for an accident starts with the injured plaintiff proving it is more likely than not that their injury was caused by a failure of the occupant to take reasonable steps to ensure the reasonably safe condition of the premises.
If the Plaintiff can prove this point, the Defendant occupant can still escape liability by establishing through evidence that it had in place a program or policy that involved regular and appropriate monitoring, inspection and maintenance of the premises.
The extent or rigour of the Defendant occupant’s program in such case should represent a balance between what the risk may be, in both likelihood and magnitude, and what is a practical response in the circumstances to reduce or eliminate that risk.
The fact that an accident and injury occurs is not evidence in itself that the program was deficient. In this regard, the occupant is not required to guarantee the safety of visitors, nor insure their safety.
This article is for information only and is not intended to be legal advice. If you have any questions or would like further information, you should consult a lawyer.