By: Robert Kennaley


Part I: INTRODUCTION

Not everyone who slips and falls on some else’s property is entitled to compensation for his or her injuries. Further, the responsibility to guard against a slip and fall starts with the “occupier” of the premises in question, pursuant to the Occupier’s Liability Act. It is only in certain circumstances under the Act that occupiers are allowed to contract out some of their responsibilities to independent contractors.

     The extent to which the contractor assumes the occupier’s responsibilities will depend on the terms of the contract. Landscape Ontario’s (LO) Maintenance Commodity Group recently formed a committee (including legal and insurance representatives) to develop a standard form snow maintenance contract to assist in this regard. Contractors must understand, however, that standard contract terms (of any origin) will not in and of themselves be enough to protect them.

     First, understanding the occupier’s obligations is essential so the contractor can understand the extent to which he is assuming these obligations. Second, the standard form cannot detail the work to be performed, as this will vary from property to property. Third, managing the contract during its performance is at least as important as the contract terms. So long as maintenance contracts are appropriately worded and managed, however, independent contractors should be responsible to perform only their contractual scope of work. In this way, the independent contractor can avoid liability for the slip and fall. All of these issues are discussed below.

PART II: LIABILITY FOR THE SLIP AND FALL

(i) The “Occupier” and the Occupier’s Liability Act
Pursuant to the Occupier’s Liability Act, R.S.O. 1990 c.O.2 (the “Act”), an “occupier” is a person who:

1. is in physical possession of a premises;
2. has responsibility for and control over the condition of the premises or the activities there carried on; and
3. has responsibility for and control over persons allowed to enter the premises.

     There can be more than one occupier of a premises. Owners, landlords, tenants and property management companies may all fall under the definition. The occupiers’ duties to those who enter upon a premises are determined by the Act.

(ii) The Duties of Occupiers under the Act
Under the Act, the responsibility to manage the risk of a slip and fall lies with the occupier. As discussed below, an independent contractor who assumes some of these responsibilities should be liable only if he fails to fulfill those responsibilities in accordance with his contract. Accordingly, it is important the contractor understand the occupier’s responsibilities.

     Pursuant to s.3(1) of the Act, the occupier owes a duty to take reasonable care to see that persons entering the premises are reasonably safe. This does not mean the occupier will be liable to anyone who slips and falls on snow or ice on the premises. First, snow and ice are a fact of life during Canadian winters. Visitors to premises in winter conditions are expected to be on the lookout for their own safety and to be wearing proper winter footwear. Courts may hold those who slip and fall responsible for some or all of their own damages.

     Further, the law recognizes that it is unrealistic to expect occupier’s to ensure that all parking lots and sidewalks are completely free of snow and ice. As Justice Then stated in Bogoroch v. Toronto (City), [1991] OJ 1032 (Gen Div),
     “… the general approach I take to this issue is to recognize that the presence of snow and ice on sidewalks in Canada is a common occurrence in the month of February and that accordingly, the occupier is not an insurer required at all times to keep his premises absolutely free of snow and ice but rather the standard of care required is that the occupier take reasonable steps to keep his premises safe in the circumstances.”

     In relation to commercial (as opposed to residential) premises, the reasonable steps require that the occupier have a reasonable system in place to address the risks of snow and ice. As Justice McCartney stated for the Ontario Court in Britt v. Zagio Holdings Ltd., [1996] O.J. No. 1014, the system need not be full-proof:
     “In cases involving commercial properties of this kind, the question of liability inevitably turns on what kind of system the owner had put in place to meet the statutory duty to keep the premises reasonably safe. It is important to emphasize, as all the decided cases emphasize, that the owner is not the guarantor or insurer of the visitor’s safety, and hence, does not have to set up a full-proof standard, nor does the owner’s system have to be a model of perfection. The standard is reasonableness.”

     In most circumstances, a reasonable system will involve some program for the inspection of the premises. The expectation in this regard was discussed by the Court in Britt, for example, where Mr. Justice McCartney had this to say about the system employed by the occupier:
     “I must, then, conclude on the evidence that the so-called system used by the defendants was deeply flawed in that it contained no reasonable daily or even regular inspection or checking system to ensure that the heavily trafficked parking area was, in fact, reasonably safe for users. In this context, it is not inappropriate to point out that the defendants kept no records whatsoever as to how their so-called system was working on a day-to-day basis, and did not even bother to have written contracts or written directions for the superintendents… or the independent contractors.”

     What constitutes a reasonable system will vary, depending on the circumstances. The Courts have at various times, however, suggested that a reasonable system will:

1. pay special attention to known problem areas;
2. provide for the blocking-off of particularly dangerous areas until they are safe;
3. anticipate water run-off from eavestroughs or neighbouring property; and
4. involve special procedures to deal with spring “freeze and thaw cycles.”

The system must also work properly. As the Ontario Court stated in Gardiner v. Thunder Bay Regional Hospital, [1999] O.J. No. 833,
     “… the system must be functioning properly. If a plaintiff can establish on a balance of probabilities that such a system is not in place, or is not working properly, then he will succeed, otherwise he will fail.”

     Accordingly, where the occupier has a system in place that is reasonable and has worked properly, liability for a slip and fall is avoided. This was apparent in Przelski v. Ontario Casino Corp., [2001] O.J. No. 301:
     “After considering the weather, the time of year, the size and usage of the Lot and the inspection and maintenance program practised by the defendants and those employed by them, I am unable to find any liability on their part. In the circumstances of this case, the presence of a small patch of ice does not amount to a breach by the defendants of the duty set out in s.3(1).”

     We now turn to the manner in which the occupier’s responsibilities CAN BE transferred to independent contractors under the Act.

(iii) Occupier’s Liability and the Winter Maintenance Contractor
     The Act allows the occupier to avoid liability if a slip and fall is the fault of a contractor he has properly retained. Section 6(1) of the Act provides that the occupier will not be liable for damages to person or property caused by the negligence of an independent contractor, so long as:

1. the occupier had acted reasonably in entrusting the work to the independent contractor;
2. 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
3. it was reasonable that the work performed by the independent contract should have been undertaken.

     The Courts have allowed the occupier to “transfer” liability to an independent contractor where each of the conditions of s.6(1) of the Act are met. It is important to remember that this includes the requirement that the contractor be negligent.

     Negligence requires the breach of a duty owed to a person. In general, the law imposes on all of us a duty to take reasonable care not to injure others. In most slip and fall cases, a contractor will be negligent only if he is found to have breached the terms of his contract. In other words, in most cases, the only duty owed by the contractor to anyone who slips and falls is to properly perform his contract. (A further duty might arise in particular circumstances where the contractor becomes aware of a clear and obvious danger beyond the scope of his contract but fails to remove the hazard or warn the occupier.)

     The point is that absent of such special circumstances, the Occupier’s Liability Act will make an independent contractor liable for a slip and fall only if he fails to perform in accordance with his contract. As discussed below, contractors should accordingly not:

1. assume liability in contract for more than the work they agree to perform;
2. enter into vague or ambiguous contracts that do not specify in detail the work they agree to perform; or
3. find themselves unable to prove, if necessary, that they performed their work.

     Occupiers will often ask contractors to sign “hold-harmless” agreements, which require the contractor to indemnify the occupier from claims relating to a slip and fall. Some of these clauses can be very broad: the Snow Committee has seen contracts that require the contractor to indemnify for slip and falls that occur inside the premises. Hold harmless and indemnity clauses thus often require the contractor to provide something beyond the physical work for which he is not being paid. Contractors should therefore be wary of these clauses and review them with a lawyer if they have any concerns.

     Another common problem faced by independent contractors and their insurers is the vague and ambiguous contract. While LO is in the process of developing a standard form contract, this standard form will not solve the problem. This is because the standard form will not define the contractor’s scope of work. The contract should clearly describe what the contractor’s responsibilities will be, so that if a problem arises he can take the position that he met his duty to properly perform the contract. (If it is not clear what the contractor was going to do, it is difficult for a Court or insurance company to determine whether or not the contractor failed to perform these duties.)

     Contractors should also make sure the scope of work described in the contract is not broader than intended. Many occupiers will expect the contractor to assume all of their obligations under the Act. First, this is not possible, given the requirements of s. 6(1). Second, contractors who agree to perform all of the physical work associated with snow clearing and ice melter applications should ensure they fully understand what those responsibilities are (see above). They should also ensure they are being properly compensated.

     A contractor who agrees to perform at his sole discretion all of the physical work associated with winter maintenance must be prepared to engage the reasonable system anticipated by the Act, complete with inspections, on a 24-hour basis. If the contractor intends only to inspect, clear snow or apply melting products at certain times or in certain circumstances, the contract should say so. The contract can then allow the occupier/owner to request the performance of additional work. This will put an onus on the occupier/owner to do his own inspections and will allow the contractor to know exactly what he needs to do to meet his obligations under the contract.

     Limiting the contract to what is intended also requires detailed descriptions of the work. Contract terms such as “Salt As Required” should be avoided, as these leave open the question: “Required to do What?” (Some might argue that this means: “Required to ensure that all ice is melted and there are no slips and falls”.)

     Finally, the contractor should keep detailed and accurate records of the work performed. Courts will rely on Environment Canada reports to determine the temperature and amount of snowfall that occurred prior to a slip and fall. If a contractor is to show he performed his contract in these conditions, he will need records to back up his claim. These records should include the time of the performance, the details of the work performed and the names of the workers doing the work.

     A prudent contractor would also have records of the training he has provided to his workers, to assist him in showing that the work was done properly. These training records would preferably speak to how particular problem areas of a site would be dealt with. Having the workers sign off on a job description and work policy, after training, is also worthwhile.

PART III: MANAGING THE SLIP AND FALL CLAIM

The contract should provide that the occupier give the contractor reasonable notice of a slip and fall claim. A Contractor who receives such notice and who believes he has met his contractual obligations should inform his insurer, in writing, that he is not liable and that he wishes the insurer to defend the claim on his behalf. The insurer should be provided with a copy of the contract, along with the documentation the contractor would rely on to show he performed his work as required.

     Insurers generally have the right to settle a claim on behalf of the insured. It is therefore important that the contractor make the insurer aware of his position at the earliest possible moment. Otherwise, and absent any evidence to the contrary, an insurer may accept the occupier’s advice that the contractor was responsible. In order to respond to notice of a slip and fall claim on a timely basis, the contractor must be sure to open correspondence from the occupier and the insurer promptly.

PART IV: SUMMARY AND CONCLUSION

The standard form contract will provide only one part of the contractor’s slip and fall risk management strategy. Care must be taken to develop a reasonable system to meet the responsibilities assumed from the occupier, to detail those responsibilities in the contract, to avoid descriptions of work that are too broad, vague or ambiguous and to keep detailed records of the performance of the work. It might be wise for a contractor to take the time to develop, and perhaps review with a lawyer, the terms and conditions they intend to use in describing the work. In the end, if a claim is made, the contractor must act promptly to assert his position. The extent to which the contractor has a defence will, of course, in turn depend on the extent to which the contract is clear and unambiguous and that the contractor can show his contractual obligations were met.


Robert Kennaley is a member of Landscape Ontario (LO) and a former landscape design build contractor who now practices Construction Law in Toronto. He is a member of the Maintenance Commodity Group’s Snow Committee and took the lead role in drafting the Standard Form Winter Services Contract. Robert speaks regularly at LO workshops and at Congress and can be reached directly at (416) 368-8280.