Bear alert

A very large bear seen east of the top of maple hill.  Also, tracks along the side of the road leading to mill hill.

Occupier's Liability Act

Several cottagers have asked about liability when someone comes onto their property and this results in legal action against the owner.  This Act seems to answer this situation.  It seems that if the owner does not create a dangerous situation, the person who enters the property takes the risk themselves.

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Occupiers’ Liability Act

R.S.O. 1990, Chapter O.2

Consolidation Period:  From December 31, 1990 to the e-Laws currency date.

No amendments.

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; (“occupant”)

“premises” means lands and structures, or either of them, and includes,

    (a)  water,

   (b)  ships and vessels,

    (c)  trailers and portable structures designed or used for residence, business or shelter,

   (d)  trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”)  R.S.O. 1990, c. O.2, s. 1.

Common law duty of care superseded

   2.  Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.  R.S.O. 1990, c. O.2, s. 2.

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.

Idem

   (2)  The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

Idem

   (3)  The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.  R.S.O. 1990, c. O.2, s. 3.

Risks willingly assumed

   4.  (1)  The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

Criminal activity

   (2)  A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1).

Trespass and permitted recreational activity

   (3)  A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1),

    (a)  where the entry is prohibited under the Trespass to Property Act;

   (b)  where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or

    (c)  where the entry is for the purpose of a recreational activity and,

           (i)  no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and

          (ii)  the person is not being provided with living accommodation by the occupier.

Premises referred to in subs. (3)

   (4)  The premises referred to in subsection (3) are,

    (a)  a rural premises that is,

           (i)  used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,

          (ii)  vacant or undeveloped premises,

         (iii)  forested or wilderness premises;

   (b)  golf courses when not open for playing;

    (c)  utility rights-of-way and corridors, excluding structures located thereon;

   (d)  unopened road allowances;

    (e)  private roads reasonably marked by notice as such; and

    (f)  recreational trails reasonably marked by notice as such.  R.S.O. 1990, c. O.2, s. 4.

Restriction of duty or liability

   5.  (1)  The duty of an occupier under this Act, or the occupier’s liability for breach thereof, shall not be restricted or excluded by any contract to which the person to whom the duty is owed is not a party, whether or not the occupier is bound by the contract to permit such person to enter or use the premises.

Extension of liability by contract

   (2)  A contract shall not by virtue of this Act have the effect, unless it expressly so provides, of making an occupier who has taken reasonable care, liable to any person not a party to the contract, for dangers due to the faulty execution of any work of construction, maintenance or repair, or other like operation by persons other than the occupier, employees of the occupier and persons acting under the occupier’s direction and control.

Reasonable steps to inform

   (3)  Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed.  R.S.O. 1990, c. O.2, s. 5.

Liability where independent contractor

   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.

Idem

   (2)  Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises.

Idem

   (3)  Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor.  R.S.O. 1990, c. O.2, s. 6.

Application of ss. 5 (1, 2), 6

   7.  In so far as subsections 5 (1) and (2) prevent the duty of care owed by an occupier, or liability for breach thereof, from being restricted or excluded, they apply to contracts entered into both before and after the commencement of this Act, and in so far as section 6 enlarges the duty of care owed by an occupier, or liability for breach thereof, it applies only in respect of contracts entered into after the 8th day of September, 1980.  R.S.O. 1990, c. O.2, s. 7.

Obligations of landlord as occupier

   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.

Idem

   (2)  For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.

Definitions

   (3)  For the purposes of this section, obligations imposed by any enactment by virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy, an implied tenancy and any contract conferring the right of occupation, and “landlord” shall be construed accordingly.

Application of section

   (4)  This section applies to all tenancies whether created before or after the commencement of this Act.  R.S.O. 1990, c. O.2, s. 8.

Preservation of higher obligations

   9.  (1)  Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of,

    (a)  innkeepers, subject to the Innkeepers Act;

   (b)  common carriers;

    (c)  bailees.

Employer and employee relationships

   (2)  Nothing in this Act shall be construed to affect the rights, duties and liabilities resulting from an employer and employee relationship where it exists.

Application of Negligence Act

   (3)  The Negligence Act applies with respect to causes of action to which this Act applies.  R.S.O. 1990, c. O.2, s. 9.

Act binds Crown

   10.  (1)  This Act binds the Crown, subject to the Proceedings Against the Crown Act.

Exception

   (2)  This Act does not apply to the Crown or to any municipal corporation, where the Crown or the municipal corporation is an occupier of a public highway or a public road.  R.S.O. 1990, c. O.2, s. 10.

Application of Act

   11.  This Act does not affect rights and liabilities of persons in respect of causes of action arising before the 8th day of September, 1980.  R.S.O. 1990, c. O.2, s. 11.

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Power outage

Hydro One has a planned outage, Thursday May 28, 9 am to 3 pm.

Drying out

The lower maple hill is looking better.  Some drainage still happening.  

Road names

This weekend

     A number of people are planning on arriving this weekend.  The road is very passable.  But two areas are a bit of a challenge, but should not prevent vehicles from passing.
     The lower maple hill has some washouts, but the area is becoming compacted and one should be able to take small vehicles around the washout areas.  Still some drainage and too soft for gravel trucks.
     The bottom of Clarke Road before the 90 degree turn had a wet area.  It seems to be passable and fairly drained.

Road Inspection

     Donny Bamford has toured the complete association roadway and made a list of repairs and upgrading to be done.  The most difficult area is the lower maple hill.  It is badly washout out and will need to be built up.  Donny suggests 2 inch minus stone topped up with A gravel.
     Sections of the road are too wet to bring in heavy equipment and will need some time to dry.  We would like to have work done by the long weekend but further damage to the road has to be avoided.
     Several trucks have travelled down Clarke Road and steer around the washed out areas of maple hill.
   

Blackflies

Say no more.

Lower Clarke Road