When an injury occurs on the property of a business, the business is frequently included as a defendant in the lawsuit. In the case of injuries relating to slip and falls, the business – as the commercial occupier of the premises – may be the only party named as a defendant. Accordingly, it is important for these organizations to take preventative steps to limit exposure to liability in these contexts.
Commercial occupiers’ liability
The Occupiers’ Liability Act, RSA 2000, c O-4 sets out the law in Alberta relating to the duty that an occupier of a premises owes to its visitors. In a commercial context, the entity operating the business located on the premises is generally an occupier of that premises, and a person who is on the premises to attend the business is a visitor.
If a risk of injury is reasonably foreseeable, the occupier will owe a duty of care to prevent visitors from being injured. This duty of care applies in relation to the condition of the premises, the activities on the premises, and the conduct of third parties on the premises. The standard of care required of occupiers, as set out in section 5 of the Occupiers’ Liability Act, is to take reasonable steps so the visitor will be reasonably safein using the premises for the purposes for which the visitor is invited.
When a claim pursuant to the Occupiers’ Liability Act is made, a fact-specific analysis will be conducted to analyze whether the steps the occupier took were reasonable.
While the legal burden of proving all elements of a claim under the Occupiers’ Liability Act rests on the plaintiff, if the plaintiff establishes an initial case, the evidentiary burden could shift to the occupier to show that it took reasonable care. To meet this burden, the occupier must show that it put into place a reasonable scheme or system to keep the premises safe for its visitors, and that it followed that system.
No policy in place
When a commercial occupier does not have any policies in place to protect its visitors from a reasonably foreseeable risk, the occupier will be liable for injuries that arise as a result of that risk.
For example, in Saunders v. Calgary (City), 2007 ABQB 743, a patron slipped and fell on a snow-covered parking lot and pathway while walking towards the Community Association. The Community Association had no written policies or procedures for snow removal, even though the risk of an unclear and icy pathway and parking lot posed to visitors was reasonably foreseeable. The Community Association was held liable for the injuries sustained by the patron.
Insufficient policy in place, or policy not followed
In the case where a commercial occupier does have policies in place, the analysis turns to whether the policies were reasonable.
In Heard v. Canada Safeway Ltd., 2008 ABQB 439, a visitor sustained injuries when she slipped and fell on a puddle of yogurt in the dairy section of Safeway. Safeway indicated it had a policy that required a sweep of the store to be conducted at least once every two hours. However, in this incident, the court held that a two-hour check was inadequate, as the dairy section was one of the most travelled areas of the store, there were frequent spills in that area, and the time the incident occurred was a typically busy time in the store. It was determined that Safeway was liable for the visitor’s injuries, because the policy in place was insufficient to keep the premises reasonably safe from foreseeable harm.
The Courts have also held that even if a commercial occupier has reasonable policies in place, if the policies were not followed at the time an injury occurred, the occupier will still be liable.
Liability for independent contractors
Many commercial occupiers contract out the provision of various maintenance services, rather than having employees perform the work. The Occupiers’ Liability Act provides protection to commercial occupiers when damage is due to the negligence of an independent contractor engaged by the occupier in certain circumstances. Section 11 of the Occupiers’ Liability Act states that where an occupier exercised reasonable care in the selection and supervision of the independent contractor, and it was reasonable in all the circumstances that the work the independent contractor was engaged to do should have been undertaken, then the occupier will not be liable.
The issue of a commercial occupier’s liability when maintenance services were to be performed by independent contractors was considered in the cases of Moens v. Homberg LP Management Inc., 2009 ABQB 35, and Chouhan v. Canada Safeway Ltd., 2012 ABQB 7. In these cases, visitors slipped and fell on ice located on the occupiers’ premises, but the occupiers had contracted snow and ice removal to independent contractors. The courts noted several common factors in finding the commercial occupiers not liable. First, the occupiers both hired contractors who were experienced in snow removal. Second, the contracts with the independent contractors contained terms that were reasonable standards for snow removal. Third, the commercial occupiers had staff who monitored the performance of the independent contractors to ensure performance of contractual obligations was being completed satisfactorily. Fourth, both commercial occupiers had staff who inspected the premises, rather than solely relying on the independent contractors to determine when snow removal was necessary. As a result of these efforts, the commercial occupiers were not held liable for the visitors’ injuries.
Takeaway
Commercial occupiers need to ensure they have reasonable policies in place to protect visitors from reasonably foreseeable risks. What is reasonable will depend on the facts and circumstances of each particular case. Commercial occupiers must also ensure employees are following these policies, or will still be held liable for injuries that occur as a result. Exposure to liability may be limited where an independent contractor has been engaged, but the commercial occupier must still take steps to ensure the independent contractor is performing the work satisfactorily.
For more information, please contact Pablo Retamozo or another member of Dentons’ Insurance group.
A special thank you to Kendal Allemekinders (student-at-law) for her assistance with this article.
