It's tough being an occupier in Ontario. As if keeping a
premises 'reasonably safe' was not hard enough, you must do
so 'in all the circumstances' often while it feels like
even the weather is conspiring against you. This is particularly
true when someone slips and falls on ice on your premises. The
soon-to-be plaintiff, and eventually her lawyer, will exclaim
'you should have known ice was a possibility in this weather,
you should have taken better precautions, and if you had, the fall
would not have occurred'.
While this post hoc logic has some appeal, perhaps it
is too cute. It is true, the Occupiers' Liability Act
imposes a positive obligation on an occupier to maintain the
premises in a state of reasonable safety, as set out in subsection
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.
However, as the courts have held on several occasions, the
imposition of a positive duty does not create strict liability (see
Lortie v. Hastings, 2008 CanLII 54319 (Ont.
S.C.J.)1) and does not render an occupier an insurer of
each person who enters onto its premises (see Waldick v.
Malcolm, 1989 CanLII 4286 (Ont. C.A.)2). So then,
what do we make of the ice on the occupier's premises?
As Justice Mitchell held in Salman v. Desai, 2015 ONSC
878, the standard of care for occupiers is "one of
reasonableness. It requires neither perfection nor unrealistic or
impractical precautions against known risks". In granting the
defendant's summary judgment motion and dismissing the
plaintiff's claim, Justice Mitchell accepted the argument of
our own Nawaz Tahir3 that plaintiff had failed to prove
that the defendant motel operators were negligent.
While the facts and reasons are set out in more detail below,
the key finding was that the plaintiff slipped on a relatively
small patch of ice on a much larger property. This finding then fed
into Justice Mitchell's conclusion that the standard imposed by
the Act was not "the removal of every possible danger",
but to have in place a reasonable system of maintenance. Indeed, as
we can see from the review of Mr. Desai's snow removal program
in the reasons, that system of maintenance does not have to be
particularly sophisticated or scientific. If it can be shown that
the occupier had a system in place, that the system was followed,
and that system was a reasonable one, then the simple existence of
a single patch of ice on the premises, despite the occupier's
efforts to eradicate it, ought not give rise to the occupier's
Perhaps just as important as the affirmation of the applicable
standard of care for winter maintenance is the affirmation that
summary judgment on the issue of liability remains a viable option
in slip and fall cases; an option which, if the evidence from the
discovery process is strong, can avoid a six-week trial through a
single long motion attendance.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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