When Injuries Happen Is It the Landlord or Tenant That Should Be Sued?

Generally, Owners, Tenants, and Others Such as Contractors, As Persons With Care and Control of Premises May Be Liable For Injuries.

In Ontario, it is the Occupier's Liability ActR.S.O. 1990, c. O.2 that governs, with some exceptions, who may be legally liable for personal injuries or property damage arising from the activities conducted upon premises as well as the condition of the premises.  The Occupier's Liability Act codifies into statute law much of the common law relating to principles of negligence; such as, for example, prescribing that when a person slips or falls due to slippery snow and ice conditions the owners or occupiers as well as others who were hired to care for the premises may be liable.  Specifically, the Occupier's Liability Act states:

Definitions

1 In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises;

Occupier’s Duty

3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

It is notable that per s. 4 of the Occupier's Liability Act, occupier's are without liability owed to those who willingly accept the risks related to the conditions of premises or the activities carried out upon the premises.  With this said, it is important to appreciate that awareness or knowledge of a unsafe condition fails to suffice as willing acceptance of the risks associated with those conditions or activities. Such was stated by the Supreme Court within the case of Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 SCR 456 where it was said, "... Rare may be the case where a visitor who enters on premises will fully know of and accept the risks resulting from the occupier's non-compliance with the statute ...".  This viewpoint was subsequently followed in the case of van Staveren v. Coachlite Roller Gardens Inc., 2012 ONSC 5941 where it was said:

[58]  The evidence of the defendant is that there were signs posted in the premises which stated “Skate at your own risk”.  Neither the plaintiff nor his wife had any recollection of seeing these signs.  However, both acknowledged that falling is an inherent risk of roller skating.  I accept this as a basic principle.  Like many other activities in life, roller skating does have inherent risk.  People who engage in these activities understand and accept those risks.  However, I do not believe that this extends to an acceptance of risks caused by the negligence of the defendant in creating a hazardous condition on the skating floor.

Is An Occupier Liable Even If a Contractor Was Hired For Maintenance?

If An Occupier Was Reasonably Diligent When Hiring a Contractor to Perform Maintenance, Then the Occupier May Be Protected From Liability.

It is also notable that per s. 6 of the Occupier's Liability Act, an exemption from vicarious liability exists for matters arising where an occupier, with reasonable diligence, outsourced work to an independent contractor where it is said:

6 (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.

Furthermore, per s. 6(2), where an occupier, with the required reasonable diligence, outsources to an independent contract, the benefits provided by  s. 6(1) are provided to all occupiers.

Is the Landlord or Tenant Liable When Conditions Upon the Premises Cause Injuries to Others?

The Law Differs For Residential Landlords and Commercial Landlords. For Residential Premises, Generally, Landlords Are Responsible.

Another interesting section deserving special attention in applicable cases is s. 8 which addresses issues affecting the landlord as occupier (a technical occupier whether actually present upon the premises or otherwise).  In this regard, it is specifically said:

8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

The Occupier's Liability Act provisions within s. 8 are especially important to understand and appreciate when read in conjunction with other statutory mandates, such as the duty of repair and maintenance found within s. 20 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, which states:

20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.

It is also important to appreciate that the landlord is unable to use terms within a lease to delegate the maintenance responsibility to a residential tenant; however, a landlord may, using terms that are within a separate agreement, or perhaps in some circumstances terms that are viewed as 'severable' from terms within the lease, delegate the maintenance responsibility to a contractor who is the tenant.  In ways, this simply ends up as a legal play on words whereas such a contractor and tenant would be the same person; however that same person is viewed, legally, in different contexts.  Simply said, one agreement, being a tenancy agreement, would be between the landlord and tenant.  The other agreement, being maintenance agreement, would be between the landlord and contractor (and the contractor is the same person as is also the tenant).  Essentially, in this situation, the person who is the tenant and contractor must be viewable as wearing distinctively different hats).  These principles were addressed and highlighted in the cases of Montgomery v. Van, 2009 ONCA 808Miaskowski v. Persaud, 2015 ONCA 758, and Taylor v. Allen, 2010 ONCA 596, among others.

Summary Comment

Occupier liability issues are addressed both by the Occupier's Liability Act as well as the common law, and especially those cases alleging negligent maintenance of premises.  Additionally, the Occupier's Liability Act may have interplay with other statutes such as the Residential Tenancies Act, 2006, or vice versa.  Furthermore, contract law issues involving 'waiver of liability' and the agreements established with independently contractors such as indemnity clauses, among others, may all be intertwined as issues within litigation that alleges injuries sustained due to the condition of, or activities upon, various types of premises.

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