The importance of control, rather than ownership, as a trigger to find a party liable as an “occupier” was center stage in this recent decision holding an owner of a donation bin placed on City property liable for slip and fall personal injury damages.
Prior to the trial, the Plaintiff agreed to release the City from the claim, presumably on the theory that the City had no role in approving or permitting the placement of the donation bin on their land.
Even though the owner of the donation bin (herein “Donation Co.”) did not defend the claim, and was noted in default, the judge still undertook a very detailed analysis on whether Donation Co. was an “occupier” under section 2 of the Occupiers Liability Act (the “OLA”). In coming to the conclusion that Donation Co. was an occupier, the court relied on the following factors:
- Section 1 of the OLA defines an “occupier” as a person who has responsibility for and control over: a) the condition of premises, b) the activities that are carried on the premises, and/or c) the persons allowed to enter the premises;
- The imposition of occupier liability depends on control more so than title to (or ownership of) a property;
- One’s status as an occupier does not require exclusive possession and/or control, and a single property may have more than one occupier;
The penultimate paragraph in the decision dealing with how the judge rationalized finding Donation Co. to be an occupier, is found in paragraph 34 of the decision, which reads as follows:
“Here, … [Donation Co.] … placed the donation bin on the Property without the City’s permission and invited members of the public onto the Property to access the bin. Moreover, … [Donation Co.] … assumed responsibility for maintaining the bin and the area around the bin by employing independent contractors tasked with inspecting the premises around the bin on a regular basis (daily, or every other day). [Donation Co.] … responded to complaints regarding the condition and maintenance of the area around their bins. Last, … [Donation Co.] … placed a decal on the bin which read “Our Bins are Maintained By: …[Donation Co.]….”.
Further, in paragraph 34, the judge continued with the recognition that Donation Co. “advertised their services, (implicitly) invited customers to donate, and claimed responsibility for the area’s maintenance…”
Cornwall v. Al Bloushi, 2022 ONSC 6388
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc6388/2022onsc6388.html