A. INTRODUCTION
The winter months in Canada are the high season for slip
and fall injuries. Snow and ice on parking lots and sidewalks, and wet floors
inside buildings, increase the risks of injuries occurring. Sometimes those
injuries result in claims and lawsuits. Charities and not-for-profits which
own or lease premises are not immune from such claims, and the liability risks,
while heightened during winter, are not limited to this time of the year. In
the recent Ontario Court of Appeal decision Farias v. Peel District School
Board, the Court of Appeal affirmed a trial judgment which found the respondent School
Board not liable for injuries suffered by an individual on one of the School
Board’s properties. The Court held that the School Board had not breached its
duty under the Occupiers’ Liability Act (the “Act”) and that the Appellant was personally responsible for her injuries. This Charity
Law Bulletin explains the above decision, discusses the Act and suggests
ways for charities and not-for-profits to limit their liability risk for slip
and fall injuries.
B. THE FACTS
On a summer weekend, Rebecca Farias was
walking, in “flip-flop” sandals, on an asphalt walkway on the grounds of a Brampton
public school, when she caught her foot in a hole and fell on her knee. The school yard was
quite large (960,000 square feet) and the hole, located by a sewer grate at the
side of a walkway, was small (about the size of a toe box of a running shoe).
The Facilities Manager at the school
testified that in the summer the grounds did not get used as much as during the
school year (he estimated it at 80% less usage), so the maintenance and
inspection program in place only concentrated on the high use areas, such as
the climbing areas of the playground. The manager also testified that the
custodians did not “inspect the grounds to the same degree” as they did during
the school year, and mainly concentrated on the paved areas closer to the
school building (whereas the walkway in question received very little travel
during the summer).
Given these circumstances, the Court of Appeal upheld the lower court’s judgment,
and stated that the School Board had taken reasonable care to ensure the safety
of individuals on the school property, that the standard of care was not
breached and that Ms. Farias was responsible for her own injury.
C. ONTARIO’S OCCUPIERS’ LIABILITY ACT
The common law duty of care for slip and
fall accidents is superseded in Ontario, by the Occupiers’ Liability Act. The Act states that “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.” This duty applies to the condition of the property, as well as to
any activity that takes place on the premises.
The duty of care does not apply “in respect of risks willingly assumed
by the person who enters on the premises.”
In such cases, though, the occupier owes a duty to “not create a danger with
the deliberate intent of doing harm or damage to the person or his or her
property and to not act with reckless disregard of the presence of the person
or his or her property.”
D. HOW TO REDUCE THE LIABILITY RISK
The duty of care is not absolute,
as injuries do not automatically result in liability. The standard of
reasonableness that occupiers must adhere to “requires neither perfection nor
unrealistic or impractical precautions against known risks,” but
occupiers are “duty-bound to take such care as in all of the circumstances of
the case is reasonable.”
It is important to note, however, that even if an individual
has knowledge about a hazard, this does not release the occupier of their
liability under the law.
The best method to ensure that reasonable
care has been taken is for a charity or not-for-profit to implement reasonable
policies and procedures for the inspection and maintenance of their property,
and ensure that those policies and procedures are regularly followed. An
example for this time of year would be to have a snow shovelling and de-icing
schedule in place such that the grounds around the organization’s
premises are consistently looked after, so that any foreseeable slip and falls
do not take place. Organizations should have set times for these cleanings and
inspections to occur, and should have a procedure in place in order to confirm
that they are completed properly and on a regular basis. Additional procedures
should also be in place when large snow or ice storms are forecast, in order to
reduce the chance that a judge or jury might find that the organization
breached their duty of care, should an injury occur despite the precautions.
It is also important to maintain an accurate written log
book of the dates and times that property maintenance was performed. These log
books are important evidence in the defence of any claims. Also, if your
organization has a third party performing property maintenance, insist on
receiving a copy of its liability insurance certificate. In the event of an
accident, its insurer will be required to defend the claim, in addition to the
charity or not-for-profit’s own insurer.
E. CONCLUSION
Owners and occupiers of premises, including charities and
not-for-profits, have a duty of care to volunteers and others permitted on
their premises to ensure that the premises are reasonably safe. Having policies
and procedures in place to maintain safe premises should be part of an
organization’s overall risk management plan. Charities and not-for-profits should
also remember to maintain adequate liability insurance, so if an
incident does occur, the organization will not be facing the prospect of having
to defend, and potentially pay, a substantial claim from its own resources.