( Disponible en anglais seulement )
As another winter slowly draws
to a close, slip and fall claims seem to be becoming more and more
frequent. These include claims involving
ice and snow on sidewalks, parking lots and stairways as well as wet and
slippery interior floors and carpets.
This brief article touches on the interplay with respect to the
liability exposures of both owners and contractors.
The primary duty falls to the
owner/occupier of the premises, under Section 3 of the Occupier’s Liability Act, to take reasonable care “to see that
persons entering on the premises … are reasonably safe”.
It is immediately evident from
this provision that occupiers are not insurers liable for any damages suffered
by anyone who falls down. Occupiers are
not to be held to a standard of perfection.
They are not required to maintain constant surveillance or remove every
possible danger.
Also, there is certainly strong
case law supporting the argument for contributory negligence on the part of the
Plaintiff to keep a proper lookout and take special care while stepping on
sidewalks and parking lots in winter seasons as “snow is a fact of life during
Canadian winters.”
The Occupier’s Liability Act affords the owner/occupier the opportunity
to push some liability exposure down to a contractor under Section 6 of the Act.
This section essentially says that the occupier is not liable for the
contractor’s negligence if the occupier has taken reasonable steps to satisfy
itself that “the contractor was competent and that the work has been properly
done”.
As
can be seen from my paraphrasing and brief quote from Section 6, there still
appears to be two affirmative duties on the part of the owner/occupier before
this Section can provide complete protection.
Owners/occupiers have to lead evidence that they have done some
reasonable due diligence by making inquiries about the contractor’s
competence. Importantly, on a day-to-day
basis, they most certainly must have a system in place for keeping an eye on
the contractor’s work and checking to make sure that the work is being
performed and contractual terms are being
fulfilled.
Depending upon their level of
sophistication, many contracts will include indemnity/hold harmless
provisions. Generally speaking, such
provisions only afford protection to the owner/occupier vis-à-vis potential
liability exposure flowing from the contractor’s negligence. The owner/occupier would still have potential
liability exposure flowing from the affirmative duty imposed by Section 3, as
tempered by Section 6, as discussed above.
With the above principals as a
framework, each one of these cases will be decided on its own facts, with
particular reference to the specificity versus vagueness of the contractual
terms, the clarity of instructions given to the contractor and the evidence of
supervision and monitoring of conditions.
The court will obviously favour a regimented system of regular
monitoring as opposed to an ad hoc
basis. The preparation of Log Sheets by
the person doing the maintenance can be very helpful evidence. What is required is evidence of sufficient
observations and action throughout business hours to prevent dangerous
situations from being created and prolonged.
Apportionment of liability
obviously depends upon the factual circumstances of each case and while it
might be generally asserted that the contractor may have a higher exposure in
many cases, it will be a rare situation where an owner/occupier can escape
liability completely.
These
brief comments were drawn from more extensive research into various owner/
contractor scenarios, which can be made available upon request.