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Occupiers Liability Act – What is “Reasonably Safe”?

by | Friday, August 3, 2018

The Occupiers’ Liability Act provides that there are certain specified duties of an occupier, namely that the occupier must take care, as is reasonable to the circumstances, to ensure people on the premises are reasonably safe while on the property.

In answering this question, and determining if the occupier did in fact take reasonable care to ensure safety of property and persons on the premises, the court will often look to and consider things such as maintenance standards, inspection logs, the size and use of the building, number of employees (at a commercial property), and weather conditions. In some situations, if there as been an act or omission which is contrary to regulations (safety, or otherwise), this may be considered in determining reasonableness. It is important to recognize though, that simply because a statue or regulation has been breached, it does not necessarily amount to negligence and liability. Furthermore, compliance with relevant statutes/regulations does not necessarily absolve the occupier of liability. They are merely additional considerations in the determination of the overall reasonableness.

In Waldick v Malcolm[1], the Supreme Court of Canada considered the scope of occupier’s liability. While the court considered this specifically in relation to the Ontario legislation, it has been applied by the Nova Scotia courts. In this case, a defendant had a long driveway, and following an ice storm they failed to sand or salt the driveway either in part or in full. The court upheld the decision of the Court of Appeal and found that failure to sand or salt the driveway, at least in part, was a breach of the standard of care. Among the reasons for this determination, was that the cost on the Defendants to salt would have been minimal, and it was foreseeable that the icy conditions could result in a fall. The Defendants argued that the neighbourhood custom was not to sand/salt, but the court rejected the proposition that the presence of such a custom justifies the Malcom’s omissions as reasonable in the circumstances.

A commonly cited case in more recent decision in Nova Scotia is the decision from the NS Court of Appeal (NSCA) in Miller v Royal Bank[2]In this case, the NSCA upheld the trial decision, following Waldick v Malcolm in applying the principle that what is reasonable, and thus what is the relevant standard of care/the requisite actions to satisfy the occupier’s duty, is to be determined in consideration of the specific circumstances. The Court found that defendant bank was not liable for injuries sustained when the plaintiff slipped on the wet floor. The bank employees would mop as needed, and while at the time of the fall there was some moisture on the floor, there were no puddles. The actions of the bank satisfied the standard of care, as the trial judge held that their actions need not be perfect but rather reasonable in the circumstances.

Occupiers’ duties may be extended or restricted by express agreement, stipulation, or notice, provided it is reasonable in the circumstances. A common example of this is a sign posted with large print in several places in plain sight in a parking garage that the owners/operators of the garage are not responsible for damage to vehicles or stolen property. Similarly, these sorts of signs are often posted in locker rooms to reduce the occupier’s liability in the event of theft or damage to property.

An occupier may also be relieved of liability in instances when the injured party is deemed to have willingly assumed the risk of injury. An individual may be deemed to have willingly assumed the risk if they are on the premises without permission for the purposes of committing an offence. Further, an individual who enters the following premises may be deemed to willingly assume risk: land used primarily for agriculture or forestry purposes, vacant or undeveloped land, forested land/wilderness, closed recreation facilities, utility rights-of-way, certain highways, mines, private roads, and recreational trails.

[1] Waldick v Malcom, [1991] 2 SCR 456, 125 NR 372.

[2]  Miller v Royal Bank, 208 NSCA 118, 272 NSR (2d) 179.

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