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The Law of Occupiers’ Liability
Authors: Alan Preyra and Emily Unrau
General Editors: Barbara Legate and Deborah Berlach
Foreword: The Honourable Darla A. Wilson of the Ontario Court of Appeal
Publisher:Emond Publishing
Publication Date:December 2025
ISBN: 978-1-77462-745-7
Page Count: 500
Regular Price: $139 (print), $125 E-book
Excerpt: “Chapter 7, Common Occurrences in Occupiers’ Liability, “II. Slips, Trips, and other Falls”
The most common types of claims brought under the occupiers’ liability acts in each of Ontario, British Columbia, and Alberta involve slips, trips, and other types of falling accidents. The ubiquitous “slip and fall” is the classic case that comes to mind when thinking of an occupiers’ liability claim.
Slips, trips, and falls can be loosely sorted into several categories. First are claims involving slipping accidents on snow and ice. Given Canada’s harsh winters, these make up a large portion of slip and fall cases advanced under the provincial occupiers’ liability acts. Next are trips and falls on a feature or defect in the landscape, hardscape, or buildings on premises, such as uneven stairs, unexpectedly uneven ground, and loose carpeting. The final category involves slips or trips on spills and other errant objects, including rainwater tracked into premises, other spills involving liquids or dropped food, and other objects creating hazards as a result of their unexpected location on a premises.
A. Ice and Snow
Any discussion of occupiers’ liability in the context of ice and snow should begin with reference to the holding of Blair J in the Ontario Court of Appeal’s seminal decision in Waldick v Malcolm:1
I can find no fault with the conclusion of the trial judge as to the duty imposed on the appellants by s. 3(1) at p. 631 O.R., p. 700 D.L.R.:
I consider also the fact that in the defendant Mrs. Malcolm’s own words salt is not expensive. Nor, in my view, is the size of the defendants’ parking area so large as to make the cost of sanding or salting dangerous areas prohibitive. While I am not prepared to find that the defendants ought to have cleared or salted or sanded every square inch of their parking area, it would have been reasonable to set aside a portion of their lot next to the entrance for treatment. I accept that icy conditions during Ontario winters are a fact of life. I accept as well that occupiers are not insurers and that it is reasonable to expect that visitors will take reasonable care for their own safety. However, by virtue of s. 3(1) of the Act an affirmative duty rested upon these defendants to see that visitors such as the plaintiff were reasonably safe on their premises. Doing nothing at all under the circumstances was not reasonable care and I find them in breach of s. 3(1) of the Occupiers’ Liability Act.2
- 1991 CanLII 8347 (ONCA) [Waldick (ONCA)], aff’d in Waldick v Malcolm, 1991 CanLII 71 (SCC) [Waldick (SCC)].
- Waldick (ONCA), ibid at para 28.
The following comment made by Cory J in Brown v British Columbia (Minister of Transportation and Highways) is frequently cited by defence counsel in slip and fall cases involving ice and snow:[1]
Ice is a natural hazard of Canadian winters. It can form quickly and unexpectedly. Although it is an expected hazard it is one that can never be completely prevented. Any attempt to do so would be prohibitively expensive.[2][3]
This is not to say that occupiers’ liability claims involving accidents on ice and snow are necessarily bound to fail. Quite the contrary. The general principles of tort law, discussed in Chapters 2 and 5, require that the plaintiff first establish the existence of an objectively unreasonable risk of harm that caused their injuries. It then falls to the defendant to adduce evidence that they took such steps as in all of the circumstances of the case were reasonable to ensure that persons on the premises and their property were reasonably safe.
This does not impute a standard of perfection on the occupier. There is no expectation that an occupier must keep their premises in a state of perfection. The expectation and the legal requirement are that the occupier must keep the premises in reasonable condition, which is a subjective determination made on all of the facts of the case.
As the case law demonstrates, the reasonableness of an occupier’s winter maintenance is still predicated on what the occupier knew or reasonably ought to have known. The character of the premises, the persons using it, and the activities carried out thereon inform the scope of the standard of maintenance and repair. This balance is precisely what the statutes were intended to address, and it has resulted in the generally fair and consistent approach adopted by courts in all three provincial jurisdictions.
1. Standard of Maintenance and Inspection
As discussed in O’Leary v Rupert,5 the standard to which an occupier is held varies based on the purpose to which the premises is put. The Court found that what is reasonable varies depending on the nature of the premises. In making this observation, the Court held that different standards apply where the premises is a residential home as opposed to an apartment building, a shopping centre, or a parking lot “where the standards and procedures established by the landlord in response to winter conditions are designed to accommodate greater volumes of personal traffic” and would therefore “likely be more rigorous or exacting.”[4]
O’Leary involved a slip and fall by a tenant on the icy driveway of the apartment she rented in the basement of her landlord’s home. The Court found the occupier landlord to be liable, even after applying a less stringent standard applicable to an individual landlord as opposed to an apartment building or commercial premises.
The Court concluded that the premises were frequently slippery and unreasonably unsafe despite regular shoveling by the landlord. In reaching this conclusion, the Court found that “with little effort and at modest expense the conditions on the driveway could have been much improved,”[5] particularly through lighting on a timer or motion detector, which would have provided for better illumination on the driveway, and through the use of salt or sand as traction, which would have remedied the icy condition of the sloped driveway.[6][7] These preventative steps were reasonable in the circumstances of this case.
In Saunders v Calgary (City),9 where the Court considered the standard of care applicable for a busier public premises foreseeability was at the heart of the decision. The plaintiff slipped and fell in an area between a parking lot and community centre occupied by the Brentwood Community Association. The surface of the parking lot at the point where the plaintiff exited her vehicle was icy and dangerous, as was the larger area around her. The plaintiff therefore determined that the safest path into the building would be to cut across the grass lawn, but after taking one step forward, she fell and suffered a fractured ankle.
The plaintiff argued that the occupier had breached its duty of care in failing to clear snow and ice, leading to the hazardous conditions that caused her injury. For its part, the occupier provided evidence as to maintenance practice and decisions regarding snow and ice removal, noting that it did not have any written policies or procedures for snow removal. The occupier admitted to not clearing one of the pathways the plaintiff could have used to access the building, believing it was not commonly used, and admitted to knowing about but not taking steps to prevent people from taking shortcuts across the grassy areas. The occupier argued that the plaintiff failed to take a potentially safer route that was open to her, and thus she failed to take ordinary care for her own safety and ought to be found contributorily negligent for her accident.
The Court found that the defendant ought to have foreseen the risk posed by the uncleared ice and snow at the premises. The Court also found that the defendant failed to clear snow and ice from the parking lot and a pathway, and failed to provide barriers or other warnings as to the conditions, thereby breaching its standard of care under the Alberta Occupiers’ Liability Act. The Court did not find the plaintiff to be contributorily negligent, since her actions did not demonstrate a failure to exercise ordinary care for her own safety.
As can be seen from the decisions discussed above, the court’s consideration of whether an occupier has developed and implemented appropriate standards for snow removal often involves a common sense analysis. What constitutes a reasonable system of maintenance depends on the type of premises at issue, the frequency and number of visitors to the premises, the frequency and degree to which ice and snow develop at the premises, and the effort and expense involved in the steps required to prevent ice and snow from building up.
2. Contracting Third-Party Winter Maintenance
Occupiers of commercial premises often hire a dedicated contractor to provide snow and ice removal services on their behalf. Given the often large and complex scope of these operations, doing so helps ensure a consistent and dependable system of maintenance and repair. The delegation of the duty of care in this context is significant from a liability perspective, and each of the provincial occupiers’ liability acts contains provisions allowing the occupier to delegate the duty of care. In addition, the occupier can avoid liability where damages are caused by the negligence of their independent contractor provided that certain statutory requirements are met.
In Ontario, section 6(1) of the Occupiers’ Liability Act[8] allows an occupier to avoid liability
if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.
In British Columbia, section 5(1) of the Occupiers Liability Act[9] allows an occupier to avoid liability where:
a) the occupier exercised reasonable care in the selection and supervision of the independent contractor, and
b) it was reasonable that the work that the independent contractor was engaged to do should have been undertaken.
In Alberta, section 11(1) of the Occupiers’ Liability Act[10] provides that an occupier can escape liability where:
a) the occupier exercised reasonable care in the selection and supervision of the independent contractor, and
b) it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken.
Notwithstanding the delegatory provisions, any higher duty, such as that owed by a landlord occupier to their tenant or by a commercial occupier to their contractual entrant, is preserved as against the occupier.[11] In any circumstance, the occupier must not act with a reckless disregard for the safety of the person on the premises, act with the intent to do them harm, or be exonerated for liability outside the scope of the retainer with the contractor.[12][13]
PRACTICE TIP 7.1
Counsel for both the plaintiff and the defendant should gather as much information as possible about the existence of a third-party winter maintenance contract, the scope of the services engaged, the degree of delegation, and the role of the contractor and occupier.
Considerations include whether the occupier can demonstrate that it met the conditions for the delegation of the duty and whether there was a breakdown in the system of maintenance and repair within or outside the scope of the contract. For their part, plaintiff’s counsel should include the contractor as a defendant, and the defendant occupier should ensure that it has either a cross-claim or third-party claim against the contractor, asserting a claim for contribution and indemnity.
If an occupier is unable to avoid liability entirely through their selection and supervision of a contractor, there will often be a question of apportionment of liability as between the occupier and the snow removal contractor hired to perform work at the premises. In order to properly assess whether one party, both parties, or neither party is liable, the court must consider the terms of the contract between the parties and the work actually undertaken.
In Radovanovic v Dubensky,15 the Court considered the selection and supervision of a snow removal contractor in a residential context. The plaintiff, a health care worker in the process of providing services to the defendant homeowner, slipped and fell on what she alleged was ice covered by fresh snow on the steps to the occupier’s home. The homeowner had retained a snow removal contractor to clear ice and snow from her premises.
The plaintiff ultimately discontinued her claim against the snow removal contractor because both her employer and the contractor were employers as defined by the Workers’ Compensation Act16 and were statutorily barred from suing one another. However, she continued her claim against the homeowner, who was not a scheduled employer and against whom she had a right of action.
In terms of the condition of the premises, the Court found that the stairs where the plaintiff had fallen were slippery and unsafe, and that it was reasonably foreseeable that the plaintiff would use them. The issue as between the plaintiff and homeowner occupier was whether, despite the presence of snow and ice on the stairs, the homeowner had taken reasonable care to make them safe.
In its analysis of reasonable care, the Court found that the occupier had contracted snow and ice removal services from an experienced contractor recommended to her by a neighbour. She also reached a verbal agreement with the contractor as to reasonable terms for snow removal and the use of ice melt. The Court also found it reasonable that the elderly occupier, who was not capable of clearing snow and ice herself, hired a contractor to do so.
Thus, even though the plaintiff established both that an icy hazard existed on the premises and that it was reasonably foreseeable that she would use the stairs in their hazardous condition, the occupier was still able to escape liability by virtue of her reasonable selection and supervision of an independent snow removal contractor.
Chouhan v Canada Safeway Limited17 provides a strong discussion of the factors to be considered in terms of what constitutes a reasonable system of snow removal and what is necessary to establish reasonable care in the selection and supervision of an independent contractor.
In Chouhan, the plaintiff slipped on an icy sidewalk on the premises of a Safeway just before 8:00 a.m. She sued Safeway under the Alberta Occupiers’ Liability Act, and she sued McNeice Landscaping & Maintenance Ltd, the snow removal contractor employed by Safeway, for negligence.
The contract between Safeway and McNeice required the latter to clear all storefronts, walks, and city sidewalks once per day before 8:00 a.m. when a skiff or more of snow was present, and to apply ice melt to all icy areas. The representatives for Safeway provided evidence that they were generally pleased with the snow and ice removal performed by McNeice and did not recall any customer complaints.
The Court found that McNeice was not negligent in performing snow removal and did so in a reasonable and appropriate manner in accordance with its contract with
Safeway. However, the Court also found that McNeice’s lack of negligence did not
- RSA 2000, c W-15.
- 2012 ABQB 7.
necessarily mean that Safeway would also escape liability. The Court indicated that Safeway’s liability analysis turned on whether it had imposed on McNeice appropriate terms for snow removal. At particular issue was whether Safeway’s direction to McNeice that snow be removed from walkways by 8:00 a.m. was appropriate despite knowing that some customers, including the plaintiff, would regularly attend its premises before 8:00 a.m. to wait for the doors to open.
The Court ultimately concluded that Safeway did not breach its duty as occupier on the bases that:
- Canada Safeway hired an experienced and competent snow removal contractor in McNeice.
- The snow removal contract contained reasonable terms that required walks and storefronts to be cleared once a day prior to 8:00 a.m., whenever there was a skiff or more of snow present and to place ice melt on icy areas. Additional snow clearing could be requested by Canada Safeway if required.
- Canada Safeway staff monitored the performance by McNeice of its contractual obligations to ensure it was satisfactory.
- Canada Safeway staff were responsible for inspecting snow conditions on the site periodically throughout the day and for requesting additional snow clearing during the day if needed.
- While requiring snow removal to be completed by 7:45 a.m., rather than by 8:00 a.m., may have improved Canada Safeway’s snow removal program, it was not a necessary requirement for a finding that its snow removal program was reasonable.[14]
The Court therefore dismissed the plaintiff’s claims against both McNeice and Safeway.
This decision provides a helpful discussion of the standard of reasonableness and its application in the context of winter maintenance operations, as well as a clear illustration of how an occupier can avoid liability through the proper retention and supervision of a snow removal contractor.
B. Features of Landscape, Buildings, and Other Structures
In the occupiers’ liability context, hazardous features of landscaping or buildings on premises can pose significant risk to visitors, potentially leading to liability for the occupier. Common hazards include uneven or deteriorating walkways, loose or crumbling stairs, poorly secured railings, and inadequate lighting, all of which can create tripping or falling hazards.
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[1] [1994] 1 SCR 420, 1994 CanLII 121.
[2] Ibid at 439.
[4] Ibid at para 43.
[5] Ibid at para 44.
[6] Ibid at paras 44-45.
[8] RSO 1990, c O.2.
[9] RSBC 1996, c 337.
[10] RSA 2000, c O-4.
[11] Ontario Occupiers’ Liability Act, ss 8, 9.
[12] Musa v Carleton Condominium Corporation No 255, 2022 ONSC 1030; Hanis v Teevan, 2008 ONCA 678.
[14] Ibid at para 26.
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