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 Actimposes a positive obligation on an occupier to maintain the premises in a state of reasonable safety, as set out in subsection 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.
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.)) 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.)). 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 Tahir 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 liability.
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.