The Occupiers' Liability Act 1990
Ontario's Occupiers' Liability Act, R.S.O. 1990, c. O.2 (OLA) replaced the common law distinctions between invitees, licensees, and trespassers with a single statute governing the duty of care owed by occupiers to persons entering their premises. The OLA applies to all injuries suffered on premises in Ontario as a result of the state of the premises or activities on the premises.
Who is an "Occupier"?
Section 1 of the OLA defines "occupier" to include: (a) a person who is in physical possession of premises; and (b) a person who has responsibility for and control over the condition of premises or the activities carried on there, or control over persons allowed to enter the premises. A single premises may have multiple occupiers simultaneously — for example, a property owner and a tenant who leases the property.
What are "Premises"?
"Premises" is defined broadly in s.1 to include: (a) land and structures on it; (b) water and ships and vessels; and (c) trailers and portable structures used as residences. The OLA applies to all these types of premises.
The Common Duty of Care: Section 3
Section 3(1) of the OLA establishes the primary duty of care owed by an occupier to all entrants to the premises: an occupier must take such care as in all the circumstances is reasonable to see that persons entering the premises and property brought on the premises are reasonably safe while on the premises.
The s.3 duty is objective — the occupier must take positive steps to make the premises reasonably safe. Relevant factors in assessing whether the occupier met the standard include: the likelihood of harm; the severity of the potential harm; the cost and practicality of taking precautions; the purpose of the entry (business or social); and the vulnerability of the entrant.
The s.3 duty encompasses:
- The condition of the premises — ice, defects, lighting;
- Activities carried out on the premises — machinery, construction;
- The conduct of third parties on the premises.
Scope: All Entrants
Unlike the common law, which imposed different duties depending on the category of entrant, the OLA imposes a single duty of reasonable care on all entrants, with specific exceptions for trespassers and recreational activity entrants under s.4. This includes invited guests (invitees), social guests, customers, and others who enter with permission.
Reduced Duty to Trespassers and Criminal Activity: Section 4
Section 4(1) provides that, despite s.3, the duty of an occupier to trespassers and persons entering the premises as a result of criminal activity is limited to not acting with reckless disregard for the person's presence on the premises.
"Reckless disregard" is a higher threshold than mere negligence. The occupier must be aware of a risk and consciously disregard it. An occupier who is unaware of the trespasser's presence will generally not be liable under s.4(1).
Child Trespassers: Section 4(2)
Despite s.4(1), the s.3 duty of care applies to a child trespasser where: (a) the occupier has reasonable grounds to believe that the particular kind of trespass or premises creates a risk of harm to the particular type of child; and (b) the premises are a particular risk to the child greater than to adults.
The child trespasser exception recognizes that children may not appreciate risks that adults would avoid. Common examples include swimming pools, excavations, and machinery that may attract children onto otherwise private property.
Recreational Activities on Rural and Natural Premises: Section 4(3)
Section 4(3) provides that where a person enters rural premises for certain recreational activities — including hunting, fishing, trapping, camping, hiking, skiing, snowshoeing, and other outdoor recreational activities — the occupier owes only the s.4(1) reckless disregard duty, not the s.3 duty, unless: (a) the occupier charges a fee for entry; or (b) the occupier expressly invites the entrant. The recreational activity exception encourages landowners to open natural and rural lands for recreational use without exposing themselves to full occupiers' liability.
Independent Contractor Liability: Section 6
Section 6 addresses the liability of occupiers for the negligence of independent contractors. An occupier is not liable for damage caused by the negligence of an independent contractor retained to carry out work on the premises if the occupier exercised reasonable care in selecting the contractor and, where appropriate, in supervising the work.
Where the occupier retains a contractor for inherently dangerous work — work that requires specialist skill or creates risk of serious harm — the courts may impose a higher standard of inspection and oversight. The occupier cannot completely delegate the duty of care to a contractor for hazardous operations.
Modification of Duty by Agreement: Section 3(3)
Section 3(3) permits an occupier to restrict, modify, or exclude the duty of care by agreement with a visitor, provided the restriction or exclusion is brought to the visitor's attention. A waiver of liability or exclusion clause on a ticket, sign, or contract may be effective in Ontario if: the entrant had reasonable notice of the clause before entering; the clause is clear in its terms; and the clause covers the specific risk that materialized.
Courts scrutinize exclusion clauses narrowly and will not give effect to a clause that purports to exclude liability for the occupier's own fraud or gross negligence.
Contributory Negligence
A plaintiff's contributory negligence reduces the damages recoverable from an occupier. Under the Negligence Act, R.S.O. 1990, c. N.1, contributory negligence results in apportionment of fault between the plaintiff and defendant, not a complete bar to recovery. The trier of fact apportions fault on a percentage basis; the plaintiff's damages are reduced by their share of fault.
Common contributory negligence arguments in slip and fall cases include: failure to wear appropriate footwear; failure to watch where one was walking; failure to use available handrails; prior knowledge of the condition; and entry at an inappropriate time.
Municipal Liability
Municipalities in Ontario may be occupiers of public sidewalks, roads, and parks subject to OLA claims. However, the Municipal Act, 2001, S.O. 2001, c. 25, s.44 provides a specific statutory framework for claims against municipalities for non-repair of highways (including sidewalks).
Under s.44(3), a municipality is not liable for non-repair of a highway unless it had knowledge of the non-repair or the non-repair was of such a nature that the municipality ought to have had knowledge and failed to take reasonable steps to prevent the harm.
Critical procedural requirement: s.44(10) requires that a person who intends to bring an action against a municipality for highway non-repair must give notice to the municipality within 10 days of the loss. Failure to give notice may defeat the claim unless the court finds sufficient reason for the failure. Ontario civil litigation lawyers handling municipal slip and fall claims must immediately advise clients of the 10-day notice requirement.
Practice Points for Ontario Personal Injury Lawyers
- Send written notice of the claim to the municipality within 10 days of the incident for all municipal sidewalk and road claims — missing this deadline may defeat the client's claim.
- Photograph the scene of the fall as soon as possible and obtain weather and maintenance records from the municipality or property owner.
- Identify all occupiers — both the property owner and any tenants or contractors who may have shared responsibility for the condition.
- Where the defendant relies on a waiver or exclusion clause, scrutinize whether the clause was adequately communicated before entry and whether its terms are clear enough to cover the specific accident.
- For child trespasser cases, assess whether the premises contained a feature that would attract children (an "attractive nuisance") and whether the occupier had reasonable grounds to anticipate the child's presence.