Pursuant to section 3 of Ontario’s Occupier’s Liability Act, liability may arise from a failure of an occupier “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.” An “occupier” includes a person who is in physical possession of premises, a person who has responsibility for and control over the condition of premises or the activities carried on there, or control over persons allowed to enter premises. Having a right to use land, does not mean one is an occupier.

On January 25, 2013, the decision of the Ontario Court of Appeal in Haliburton (County) v. Gillespie, 2013 ONCA 40 (CanLII) was released.Mr. Gillespie was stopped at a RIDE program held in a common area of Harcourt Park, and charged as a result of not wearing a helmet while riding an ATV.At issue in the appeal was whether he was an “occupier” and therefore exempt from the obligation to wear a helmet while operating an ATV, pursuant tothe Off Road Vehicles Act.The definition of “occupier” in the Off Road Vehicles Act is similar to its definition in the Occupier’s Liability Act.

Harcourt Park is private property to which the public is not permitted entry except on invitation from a leaseholder.Mr. Gillespie is one of about 540 leaseholders and in addition to possession of his own parcel shares the right to use the common areas. By exemptions in the Act, where an ATV is used on land“occupied” by the owner of the vehicle some requirements imposed on owners and drivers of off-road vehicles do not apply.These include the requirements for a permit, insurance, a helmet, as well as for operators to be at least 12 years of age.

It was submitted that he was exempt as an“occupier” because only lessees and their guests are allowed on the common area of Harcourt Park, and that he therefore fit the test of having control over persons allowed to enter the land.In rejecting this submission, it was held that when used in conjunction with“occupier”, the word “control” suggests, at a minimum, the capacity to determine who may and who may not be on the property.It was determined that Mr. Gillespie did not have that capacity in any meaningful sense as there are approximately 540 lessees, each of whom is entitled to have family members on the common area and to invite two guests at a time to be on the common area.

It may be said that this decision reinforces the principle that a tenant’s use of common areas is to be seen as separate and distinct from the tenant’s rights and obligations regarding its own leased premises.As helpfully pointed out in the reasons, previous cases have determined that a tenant’s use of a parking lot to allow customers to park, or even a tenant voluntarily paying for and organizing snow removal, has not been found to be sufficient evidence of control to make such a tenant an “occupier”.A tenant’s right to invite guests or use a common area in such circumstances does not necessarily give rise to duties or liabilities as an “occupier”.

See: Haliburton (County) v. Gillespie, 2013 ONCA 40 (CanLII)