Property owners must be proactive to ensure premises remain safe

By Tony Poland, LegalMatters Staff • Property owners must be constantly vigilant to ensure premises are safe for visitors, says Barrie-area litigator M. Steven Rastin.

“Under Ontario’s Occupiers’ Liability Act those controlling a property must do what is reasonable to ensure that all visitors are safe,” says Rastin, senior counsel at Rastin Gluckstein. “The Act applies to municipalities, homeowners, malls, restaurants, grocery stores, or any occupier of a property.

“Any situation where someone is the occupier of a property and they fail to do something that they ought to do creates the potential for danger,” he tells LegalMattersCanada.ca. “That is why proactively checking for hazards and addressing problems as they arise is so important.”

Legislation mandates that the duty of care is reasonableness but not perfection, which is why some property owners may not be doing all they can to keep visitors safe from harm, Rastin says.

‘Tendency to let things slide’

“People typically give thought to safety standards when something is built or renovated,” he says. “But that focus lapses. What seems to happen, in my respectful view, is that when property owners’ lives are busy there is a tendency to let things slide.

“It is a matter of due diligence. Your car has a warning light that comes on when it is time for an oil change,” Rastin adds. “However, there is no warning light to alert a property owner to a broken step on a stairway or a missing handrail.”

He says a penny’s worth of prevention is worth a pound of cure.

“Things break down over time,” Rastin says. “Nothing in this world is forever, but some people tend to assume that because structures on their premises were fine yesterday they are good today. I do not believe there is enough emphasis on maintenance programs. Some people are good at it, but many fall short.”

“And the question is, what is the cost of avoidance? A simple repair can save thousands of dollars in a lawsuit.”

When it comes to occupiers’ liability, many people tend to think of slips and falls on a homeowner’s icy sidewalk. But accidents are common occurrences at residential, commercial and municipal properties, he says.

Rastin says he has litigated claims where the owner of a boating dock failed to put rails on a ramp and someone was injured in a fall. He has seen instances where a stairwell was compliant with the building code but poor lighting led to someone being seriously injured when they tripped, he says.

Roads and sidewalks can fall into disrepair

Accidents occur on city streets when roads and sidewalks fall into disrepair or at restaurants due to spills, Rastin says.

“Spills are a common occurrence. The produce department of any grocery department requires frequent employee inspections,” he says. “But in the age of cutbacks where fewer workers are expected to do more, inspections may no longer be the priority they once were.”

The consequences of failing to properly design or maintain a property can be catastrophic, Rastin says.

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“I represented a minor who was hit so hard by a taxi during a rainstorm that she was knocked out of her shoes,” he recalls. “We discovered that the street at the site of the accident had light poles but one pole only had a transformer on it.

“The lack of that one light created a black spot in the middle of the road,” Rastin explained. “Engineers found the amount of time that the cabbie would have had to see this girl crossing the road, especially in poor conditions, was significantly diminished because of that missing light.”

While a property owner may not be the direct cause of an accident, they are still responsible for what happens on their premises, he says.

‘Their duty to customers was clear’

“I had a case at a department store where the condenser on a vending machine that dispensed drinks was working overtime, creating a huge puddle,” Rastin says. “A woman walking out of the store slipped and was seriously injured. The store owner did not own the vending machine that caused the puddle but they failed to mop the water up. Their duty to customers was clear.”

Untangling who is ultimately responsible for an injury can present problems, he says.

“It can be tricky dealing with shopping malls, for example,” Rastin says. “Is it the store that is responsible for cleaning the sidewalk of snow in front of their doors, or is it the mall? Is the snow removal company liable if someone breaks their leg in a fall?”

He notes that after being hurt in an accident, people may be further victimized by the province’s notice periods.

“In my opinion, Ontario has completely unfair punitive requirements for notice,” he says. “You must provide a municipality notice of failure to properly maintain premises within 10 days under the Municipal Act. Failing to do that could be potentially fatal to your case.”

Must serve notice within 60 days

A few years ago, the Ontario government introduced an amendment requiring victims of slip and fall accidents on private properties to serve notice within 60 days.

“This concept of the 60-day notice period really hasn’t been litigated yet but I expect that to change,” says Rastin. “Reasonable people don’t get hurt then get up and say, ‘I’m going to hire a lawyer.’ Most will try and recover. Perhaps they are hospitalized or need an operation.
“It might be a month or two before their doctor can tell them with some certainty that their injury is never going to properly heal and they will need ongoing physiotherapy.

“It is then that they decide to hire a lawyer and we might be able to move forward with their claim. However, since the 60 days to file a lawsuit has elapsed, they are now at a risk of their case being dismissed,” he adds. “These notice period provisions have the potential to cause significant harm. They have the potential to allow for a miscarriage of justice.”

Rastin says the average person is not aware of notice periods, which is why it can make sense to seek legal advice immediately after an accident.

He also urges caution when visiting any premises.

“Whether you are on private property or public property, you should always remain alert to potential dangers,” says Rastin. “As for property owners, we can all agree that so much human suffering could be alleviated if we just turned our minds to safety issues before somebody gets hurt. Again, a property owner doesn’t have to be perfect, but you need to take some steps to be reasonable.”