In 2011, Statistics Canada published a report on injuries using information from the 2009 to 2010 Canadian Community Health Survey. It found that falls were the leading cause of injury in Canada. Among adolescents, these typically occurred while playing sports. But among seniors, falls usually occurred while walking or doing household chores.
When those injuries — or any injuries — occur in an apartment, apartment complex, or plaza, can the owner or occupier be held liable?
Answering that question may involve one of two statutory regimes — or even both, in some cases. The first is the Residential Tenancies Act, which requires landlords to maintain a residential complex in a good state of repair and fit for habitation, and to comply with other health, safety, housing, and maintenance standards.
However, today, we’re going to focus on the other statutory regime involved in apartment injuries: premises liability. Originally, premises liability was governed by a complex set of rules established at common law. But since 1980, the Occupiers’ Liability Act (OLA) has governed such claims in Ontario. Let’s take a closer look at both.
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Premises Liability at Common Law
Under the common law, premises liability claims were analyzed under a two-step process: (1) The injured visitor would be classified into one of three (or more) categories; and (2) the owner’s or occupier’s duty to the visitor would depend on which category the visitor belonged to.
The common law’s three basic categories for visitors were:
- Invitees: Those who were invited to enter another’s property and had some common interest with the invitor. For example, a customer visiting a business would be an invitee. An owner or occupier of land would be liable to an invitee for dangers on the premises about which he or she was aware or should have been aware.
- Licensees: People who entered another’s property without a common interest between them. Owners and occupiers were only liable to licensees for dangers about which they actually knew.
- Trespassers: One who entered another’s property without permission. The owner or occupier was only liable to a trespasser for harms intentionally or recklessly caused.
In its 1972 Report on Occupiers’ Liability, the Ontario Law Reform Commission pointed out that even these three categories were not necessarily exhaustive. Rather, “[b]ecause of judicial confusion or otherwise, some judges spoke in terms of ‘licensees with an interest’, ‘bare licensees’, and ‘permittees,’” and special rules were developed for child trespassers.
In the 1991 Supreme Court of Canada case Waldick v. Malcolm, these common-law rules were referred to as “somewhat obtuse.” To streamline the law of premises liability and bring it more in line with general principles of negligence, the Legislative Assembly of Ontario enacted the OLA in 1980.
Apartment-Injury Claims under the Occupiers’ Liability Act
In Ontario, the OLA has supplanted the common law of premises liability. The statute begins by defining “occupier.” It does so broadly, so that the term includes:
- Any person in physical possession of the premises; and
- Any person with responsibility for and control over the condition of the premises, activities on the premises, or persons allowed to enter the premises.
This definition is broad enough to include not only landlords, but also, e.g., tenants and property managers. Unsurprisingly, given the breadth of this definition, the OLA specifically states that a property may have more than one occupier.
Occupiers’ Duties under the OLA
In general, the OLA collapses the multi-tier duties imposed by the common law into one overriding requirement: Occupiers must take reasonable care to ensure that people entering their premises (and any property they bring with them) are reasonably safe. This obligation extends to both conditions on the property and activities carried out there.
Exceptions under the OLA
However, there are some exceptions that complicate the OLA’s general requirements. Specifically:
- A visitor who willingly assumes the risks of entering a property cannot hold the occupier liable except for injuries that the occupier intentionally or recklessly causes.
- A person who enters the property intending to commit, or in the process of committing, a crime is deemed to have willingly assumed all risks.
- For certain specific types of property, the following kinds of visitors are also treated as if they willingly assumed all risks of entering the property:
—Trespassers — i.e., those whose entry violates the Trespass to Property Act.
—Recreational users, who enter the property for a recreational activity, pay no fee for entry or the activity, and are not provided with living accommodations by the occupier.
—An occupier is not liable for injuries caused by an independent contractor if the occupier acted reasonably in entrusting the work to the contractor, had reasonably investigated the contractor’s competence, and it was reasonable for the contractor to do the work it was hired to do.
Additionally, these claims are subject to the Negligence Act. Section 3 of that act requires courts to determine the extent to which a plaintiff’s own negligence contributed to his or her damages, and reduce any recovery proportionally. In other words, an occupier can escape liability under the OLA to the extent that a plaintiff was at fault in causing his or her own injuries.
Protecting Yourself after a Toronto Apartment Injury
Although the law of premises liability in Ontario is no longer as “obtuse” as it had been under the common law, it remains complex. Ontarians injured while on the property of another, including in an apartment or apartment building, should consult an experienced Toronto apartment-injury lawyer from Preszler Law Firm. We will help you understand your rights, develop your case, and assert your claim so that you can receive the compensation you deserve.