Joint and Several Liability for OLA Slip and Fall Cases: The “1% Rule”
In 1980, the Ontario government instituted the Occupiers’ Liability Act (“OLA”) in order to replace the more complicated common law system with a statutory scheme that governs all claims that occur after individuals are injured on another’s property. These are called Occupiers’ Liability claims (“OLA Claim”).
What is Occupier’s Liability?
The first step in an OLA Claim is to establish a breach of the statutory duty of care. The Act establishes a statutory duty that occupiers owe to all individuals entering their premises, which includes land, structures, bodies of water, marine vessels, and other types of transport while not in operation (i.e. trains). According to section 3(1) the Act:
s. 3(1) 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.
Occupiers’ Liability Act, s. 3(1).
An occupier is anyone who has physical possession of the premises or has responsibility for and control over the condition of premises, including activities carried on there. Therefore, there may be multiple occupiers of the same premise and each of them owe duties to the attendees. For instance, if both the tenant and landlord retain some responsibility for property maintenance, then they owe duties to their customers. If these duties are breached, section 3(1) may give rise to occupiers’ liability.
The standard of ‘reasonable safety’ is specific to each case and it is open to occupiers to argue that they met their duty under the Act by demonstrating the ways in which they provided a reasonably safe environment for persons entering their premises. In Waldick v Malcolm,2 SCR 456, the Supreme Court of Canada stated that occupiers have the affirmative duty to make their premises “reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm.”
Where risks are ‘willingly assumed’ by visitors who have full knowledge of the risk, the standard of care is lowered. However, the occupier still owes dual duties not to (1) “create a danger with the deliberate intent of doing harm to the person” or (2) “act with reckless disregard of the presence of the person.”
Joint and Several Liability in OLA Cases
After a breach of the duty of care is proven, the Plaintiff must then prove that this transgression caused their injuries. The test for causation was established in Kamin v Kawartha Dairy, 79 O.R. (3d) 284 (2006), where the Ontario Court of Appeal confirmed that the plaintiff must show on a balance of probabilities that the injuries were caused by a breach of the duty of care.
However, the causation analysis becomes complex where two or more causes contribute to an indivisible injury (i.e. cannot tell which wrong doer caused it). Section 1 of the Negligence Act states that:
“s. 1. Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.”
Negligence Act, s. 1.
This concept is called joint and several liability and states that where two or more Defendants or occupiers cause an indivisible injury (i.e. cannot separate individual causes to the injuries) to a Plaintiff, they are jointly and severally liable for the injury and each are liable for the full extent of the injuries stemming from the tortious act (Blackwater v. Plint, 2005 SCC 58 (CanLII)). In other words, a Plaintiff can seek the total damages from one of them. For example, if a Plaintiff obtains monetary judgement for $1,000,000 against a party that is 1% at-fault, all joint and several defendants become indivisibly liable for the whole injury. The court will not apportion liability and costs between Defendants, as it is up to them to seek contribution from the other at-fault defendants.
In Singer v. Corporation of the City of Hamilton, 2007 CanLII 46251 (ONSC), a Plaintiff fell into a ditch in a construction area manned by Dufferin Construction while walking on a City of Hamilton sidewalk. The court found that the both Defendants, Dufferin Construction and the City of Hamilton, breached their affirmative duties under section 3(1) of the OLA, as the work site was “disorderly, substandard, and hazardous from a pedestrian safety perspective.” Their failures to post signs, define a clear pathway, and erect barriers was a breach of their standards of care and, since the injury was indivisible, the Defendants were held jointly and severally liable for the damages suffered.
Where two or more occupiers’ negligent acts contribute to a Plaintiff’s injury, each are independently liable for the total loss suffered.
The personal injury lawyers at Littlejohn Barristers have significant experience representing clients who are injured in slip-and-falls or other instances. If you have been injured while on another’s premises, contact our Barrie office at 705-725-7355 to see if we can help.