If you’ve suffered an injury on someone else’s property in Ontario, it’s essential to understand how to protect your rights.
What is Occupiers’ Liability?
When you visit a property – whether it’s a grocery store, a friend’s house or a public park – you have the right to expect that the space is safe.
The Occupiers’ Liability Act is a law in Ontario that outlines the legal responsibility and obligations imposed on those who are responsible for a property, ensuring that they take reasonable steps to keep it safe for the people who access it. This law applies to homeowners, business owners, landlords and even tenants who over see a space.
Occupiers are required to maintain their properties in a way that prevents injuries, such as addressing hazards or warning visitors about potential dangers. Clearing icy walkways, repairing broken stairs or indicating slippery floors are all examples of reasonable measures an occupier should take. Failure to do so can make them liable if someone were to injure themselves while lawfully on their property.
Notably, the law also considers context. The level of responsibility varies depending on all the circumstances, such as whether the visitor was invited, entered for business purposes or was trespassing. By establishing clear guidelines the Occupiers’ Liability Act balances the rights of those in control of a property with the safety expectations of those who enter their spaces.
Who is Considered an Occupier Under the Law in Ontario?
An occupier or “occupier of premises” is basically any person, corporation or government entity that owns or has control of a property.
An occupier is someone who has both physical possession of premises and control of a property, whether they own it or manage it. There can be more than one occupier sharing responsibilities for the same premises. Common examples of occupiers include:
Property Owners
- Individuals or entities who own the property and oversee its care
Tenants
- People or businesses renting or leasing the property and managing its day to day use
Property Managers
- Professionals or companies hired to handle the upkeep, safety and administration of the property
Businesses or Organizations
- Companies opening on the property, such as stores, restaurants or offices
Landlords
- Owners of rental properties who retain some responsibility for common areas or certain safety measures
Government Entities
- Municipalities or public agencies responsible for public spaces like parks, sidewalks or recreational facilities
Types of Properties Covered under the Occupiers’ Liability Act
The Act applies to almost all types of properties, including:
Private properties
- Homes, cottages and apartments
Properties owned or managed by a government agency
Commercial properties
- Stores, restaurants, shopping malls and offices
Public spaces
- Parks, recreational facilities and public buildings
Common areas
- Hallways, staircases or shared spaces in condos or apartment buildings
Land used for recreational activities
- Such as hiking trails, skating rinks, beaches and forested or wilderness premises commonly visited for leisure
Rural premises
- Including undeveloped premises, agricultural properties and forested areas
Moving structures
- Boats, trailers, railway cars or elevators
Portable structures
- designed for use as residences, businesses or shelters
Who is protected by the Occupiers’ Liability Act?
The Act protects most persons allowed to enter an occupier’s property (premises) including visitors, guests, and to a limited extent, trespassers.
A person entering the premises will be covered by the Occupiers’ Liability Act if the premises owes them a duty of care through its occupier to ensure their safety.
Duty of Care: The Basic Responsibility
The duty of care is a legal obligation requiring occupiers to take reasonable steps to ensure that visitors to their premises do not suffer harm while on the property. This duty applies to anyone the occupier could reasonably expect to enter the property, including guests, customers, and, yes, even trespassers. The duty of care, however, does not extend to risks willingly assumed by individuals who enter the premises.
Common examples of people who are owed a duty of care can include:
- Customers at a store or shopping mall
- Guests at someone’s home
- Workers or delivery people who visit a property
- Visitors to a recreational facility, like a swimming pool, skateboard park or ski hill
- Trespassers are somewhat protected by the Act, but the rules are less strict for them
Standard of Care: How Careful Must an Occupier Be?
The standard of care refers to the level of caution or carefulness the law expects from occupiers. While the occupier is not required to guarantee absolute safety, the they must demonstrate reasonable care in all circumstances to ensure the safety of persons entering the premises. Such care can include:
- Cleaning up spills in a timely manner and placing a “Wet Floor” sign
- Repairing broken stairs or railings, or warning people of the danger until repairs are completed
- Clearing snow and salting icy walkways in winter to reduce the risk of slips and falls
The standard of care changes depending on both the category of person accessing the premises (such as a trespasser or lawful entrant) and the specific characteristics or purpose of the premises.
Different Categories of People
The Act outlines the occupier’s responsibilities based on the type of person entering the property:
Visitors (Lawful Entrants)
This includes guests, customers or anyone on the property with permission. These individuals are owed the highest level of care.
Trespassers
People who enter without permission are owed a lower standard of care. The standard of care requires the occupier to avoid intentionally or recklessly causing harm to the trespasser.
This means that a homeowner cannot set a trap to harm trespassers or a business owner is not required to light or maintain areas that are clearly off limits, for example.
Recreational Users
This category of people are individuals who use land or premises for recreational activities such as hiking, biking or skiing, without paying a fee for entry. They often access private or public lands that are not maintained for commercial purposes.
Different Categories of Premises
The Occupiers’ Liability Act in Ontario outlines different standards of care for occupiers based on the type of premisesand the purpose of the visit. Below is a breakdown of these standards:
General Premises:
Standard of Care → Reasonable Care
For most premises (homes, businesses, public spaces), occupiers must take reasonable precautions to ensure the safety of lawful visitors including guests, customers, delivery personnel and anyone invited or permitted to enter the property.
The occupier must address hazards they know about (or should know about) and warn visitors of dangers that cannot be fixed immediately. For example, homeowners must address hazards like icy walkways, loose stairs or exposed electrical wiring.
Recreational Premises (Used Without Payment):
Standard of Care → Avoid Deliberate Danger or Reckless Disregard
For premises used for recreational activities (hiking, skiing or skating) where no fee is charged, the occupier has a reduced duty of care. Occupiers must avoid deliberate harm or reckless disregard.
This means, for example, a trail owner does not need to remove fallen branches or natural obstacles but cannot dig hidden pits or create unmarked hazards. Likewise, the owner of a skating pond does not need to test ice thickness but must avoid recklessly allowing access to known unsafe areas.
Rural and Wilderness Premises:
Standard of Care → Avoid Deliberate Danger or Reckless Disregard
Rural properties (farms, forests or wilderness premises) are treated similarly to recreational premises when the public uses them for activities such as hiking, hunting or snowmobiling. Occupiers are not expected to maintain the land as safe for visitors but must refrain from intentionally creating dangers and acting recklessly.
Natural hazards like uneven terrain or wildlife are often considered inherent risks, however, a landowner cannot set traps or fail to warn of hidden barbed wire that they are aware of.
Special Premises (Waivers or Assumptions of Risk)
Standard of Care → Modified or Reduced to the Terms of the Waiver or Assumption of Risk
For certain premises or activities, occupiers may limit their liability through waivers or by requiring visitors to assume the risks of the activity.
If a person willingly agrees to accept the risks associated with entering or using the premises (signing a waiver), the occupier may not be liable for injuries resulting from those risks.
For instance, waivers are commonly used in commercial recreational settings such as gyms and ski resorts. A ski resort can require participants to sign a waiver acknowledging the inherent risks of skiing and a gym often requires its members to accept the risks associated with exercise equipment.
Occupiers cannot exclude liability for gross negligence, reckless disregard or intentional harm – and, a waiver must be clear and legally enforceable.
What Should I Do if I am Injured on Someone Else’s Property?
Seek Immediate Medical Attention
Prioritize your health. Ensure that you receive any necessary medical treatment right away. Call emergency services if the injury is severe or see a doctor as soon as possible.
Document the injury. Ask your healthcare provider(s) to keep detailed records of the injuries and treatments. These records will be valuable if you decide to pursue a claim.
Report the Incident
Inform the property owner, occupier or manager of the injury without delay. If applicable, request a written incident report, in a store or business setting, and ask for a copy.
Document the Scene and Preserve Evidence
If you are able to, take photographs and videos, or have someone else do so for you. Capture images of the accident site, the hazard that caused the injury and any visible injuries.
Collect names and contact information from anyone who witnessed the accident.
Keep any items involved in the incident (shoes, clothes, belongings) in their post-accident condition, especially if they are damaged or show evidence of the injury.
Save receipts or invoices if you incurred any costs related to the injury (medical bills, transportation, etc).
Know Your Legal Notice Obligations After an Injury
a) Notice Requirement for Municipal Property (10-Day Rule)
Under Ontario’s Municipal Act, 2001, if you slip and fall on property owned by a municipality—such as a sidewalk—you must give written notice of your claim within 10 days of the incident.
Failing to meet the 10-day deadline can severely limit or eliminate your right to compensation. A court may excuse a late notice if you have a “reasonable excuse”, however it is always best practice to provide notice promptly.
It is important to note that the Limitations Act, 2002, still applies, meaning that you have two years from the date of injury to commence legal action, even if you meet the 10-day notice requirement.
b) Notice Requirement for Private Property (60-Day Rule)
Under recent amendments to Ontario’s Occupiers’ Liability Act (sometimes referred to as Bill 118), if you slip and fall on private property due to snow or ice, you need to provide written notice within 60 days of your fall to the property owner or occupier and any independent contractor employed to remove snow or ice (if applicable).
Failing to give this notice within 60 days may bar you from bringing a claim unless you can show a reasonable excuse for the delay. This notice is separate from the general two-year limitation period to file a lawsuit.
Contact a Personal Injury Lawyer as Soon as Possible
If you are injured on someone else’s property, hiring a personal injury lawyer is essential to understand and protect your legal rights.
Determining liability under laws like the Occupiers’ Liability Act can be complex, and a skilled lawyer can evaluate whether the property owner or occupier failed to meet their duty of care. They will gather and analyze evidence, such as photo of the hazard, witness statements and maintenance records, to build a strong case.
If the injury occurred on municipal property, a lawyer can ensure compliance with notice requirements under the Municipal Act to avoid jeopardizing your claim.
A personal injury lawyer also navigates the challenges of dealing with insurance companies, which often aim to minimize payouts or deny claims. The lawyers at Fosters Law understand how to negotiate fair settlements that account for both economic damages (medical bills, lost wages, etc) and non-economic damages, like pain and suffering.
Without a lawyer’s expertise, you may risk undervaluing your claim or falling into pitfalls like missing key deadlines or unintentionally weakening your case.
In addition to legal and financial expertise, a lawyer provides peace of mind by managing the entire process, allowing you to focus on recovery. Whether through skilled negotiation or courtroom representation, they ensure that your interests are protected and that you receive the compensation that you deserve.
Having a knowledgeable advocate levels the playing field against property owners and insurers, giving you the best chance at a fair outcome.