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.
file:///Users/johnjamieson/Desktop/Occupiers%20Liability%20Act%20Ontario.doc
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Common law duty of care superseded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.
____________________
