3) Legislative Reform

Six provinces - Alberta, [Note 49: Occupiers' Liability Act, R.S.A. 1980, c. O-3.] British Columbia, [Note 50: Occupiers Liability Act, R.S.B.C. 1996, c. 337.] Manitoba, [Note 51: Occupiers' Liability Act, R.S.M. 1987, c. O8.] Nova Scotia, [Note 52: Occupiers' Liability Act, S.N.S. 1996, c. 271.] Ontario, [Note 53: Occupiers' Liability Act, R.S.O. 1990, c. O.2.] and Prince Edward Island [Note 54: Occupiers' Liability Act, R.S.P.E.I. 1988, c. O-2.] - have opted for a fresh start in occupiers' liability law by replacing the common law with Occupiers' Liability Acts. Only New Brunswick [Note 55: Law Reform Act, S.N.B. 1993, c. L-1.2, s. 2.] has taken the more radical step of abolishing a discrete occupiers' liability tort, thereby permitting the general principles of negligence to apply.

The Occupiers' Liability Acts are not identical but the central purpose of each is to replace the common law with a duty of reasonable care to almost all visitors. Brief consideration is given here to a representative Act, that of British Columbia. It illustrates the general approach of the other Acts and flags the kind of issues that the legislation of the other provinces address. Each Act, however, requires careful and independent analysis. [Note 56: See Linden, above note 4 at 651-73 for a discussion of the Occupiers' Liability Acts.]

The British Columbia Occupiers Liability Act was passed in 1974 and was modelled on the Uniform Occupiers' Liability Act proposed by the Conference of Commissioners on the Uniformity of Legislation in Canada.

The scope of the Act and the boundary between occupiers'liability law and negligence law are drawn by the definitions of "occupier" and "premises." "Occupier" is defined as a person with physical possession of the premises or responsibility for, and control over, the condition of the premises, the activities conducted on the premises, and the persons allowed on the premises. The central idea is that with control comes responsibility. Where control rests with more than one person, there may be more than one occupier. "Premises" is given an extended meaning and includes not only land and buildings but also ships, mobile homes, trains, vehicles, and aircraft when they are not in operation. There is quite a lot of consistency among the various Acts on these definitions.

The centrepiece of the British Columbia Act is section 3, which replaces the common law with a general standard of reasonable care. The occupier owes a duty of reasonable care to see that visitors, their property, and the unaccompanied property of visitors on the premises are reasonably safe. The Act also removes the static defect limitation of the common law, extending the occupier's obligation of care to his activities on the premises and to the conduct of third parties on the premises. The effect of this language, which is consistent with other Acts, is to impose the same standard of care as that found in the tort of negligence. It increases the level of care owed to trespassers and licensees and reduces that owed to contractual entrants. The standard of care is applied with reference to the foreseeability of damage, the degree of risk of injury, the gravity of the threatened injury, the kind of premises, the burden of preventive measures, the practice of other occupiers, and the purpose of the visit. The cases deal with a range of situations, including "slip and fall," walking or running into structures, falling objects, bar- room brawls, and swimming-pool accidents. Occupiers continue to be subject to other Acts or rules of law that impose a higher standard of care in respect of any particular class of person or kind of premises.

A difficult issue in occupiers' liability law is whether or not certain classes of visitors should be excluded from the protection of the general duty of care. The issue arises primarily in respect of trespassers. In British Columbia, the general duty of care is not owed to trespassers with criminal intent or to trespassers on certain agricultural and rural land. The only duty owed to them is not to injure them intentionally and not to act in reckless disregard for their safety. This, of course, is the old common law standard of care in respect of trespassers. The exception for rural and agricultural trespassers may be justified on the ground that they often enter land at unpredictable times, at remote locations, and with varying degrees of frequency. A duty of reasonable care may, therefore, impose too great a burden on landowners. Most of the other Acts also lower the standard of care for certain categories of trespassers. In British Columbia, the same low standard is applied to some lawful entrants on certain agricultural and rural land for recreational purposes and to those visitors who have willingly accepted risks on the land. Most of the other Acts treat the assumption of risk as a complete defence. [Note 57: The defence has been interpreted in a manner that is consistent with the narrow definition of the defence of voluntary assumption of risk in negligence law. See Waldick v. Malcolm, [1991] 2 S.C.R. 456.] The partial defence of contributory negligence is available under all the Acts.

Section 4 of the British Columbia Act allows occupiers to restrict, modify, or negate the statutory duty of care by express agreement or notice. There are, however, several qualifications to this power. Reasonable notice must be given of the alteration of the normative standard, and those who are not privy to an express agreement for this purpose are not bound by it. The statutory duty cannot be excluded or modified with respect to those who are empowered to be on the land without the occupier's consent. Finally, where the occupier is bound by the terms of a contract to permit persons who are not parties to the contract to enter upon the land, those entrants are owed the usual standard of care notwithstanding exclusionary or modifying words in the contract. These specific qualifications are unique to the British Columbia Act but all of the Acts have similar provisions. Some require that the exclusion itself be reasonable and some also permit the parties to elevate the statutory standard of care.

At common law, there was some uncertainty about the liability of an occupier for the acts of independent contractors such as those employed to maintain or repair premises. Section 5 of the Act clarifies the situation in British Columbia. The occupier is not liable for the acts of an independent contractor provided that it was reasonable to have retained an independent contractor to do the work in question and reasonable care was taken in the selection and supervision of the independent contractor. This provision is common to the other Acts.

At common law, the landlord was immune from liability to the visitors of his tenants. There was no contractual liability because the visitors were not parties to the lease, there was no occupiers'liability because the landlord (an owner out of possession) was not the occupier of the leased premises, and no duty of care was owed in negligence since it was an occupier's liability issue. Section 6 of the Act changed this position in respect of landlords who have a duty to repair and maintain the premises under the lease. The landlord, in those circumstances, is treated as an occupier in respect of all persons on the premises. It must, however, be shown that the plaintiff was injured by the landlord's failure to repair under the terms of the lease.

The remaining provisions further fine-tune the scope of the Act. It does not apply to, or affect, the liability of an employer to an employee, a person subject to the Hotel Keepers Act, a person subject to a contract of bailment, or persons subject to a contract for the hire of, or for the carriage of persons or property in, any vehicle, vessel, aircraft, or other means of transportation. The provincial Crown is bound by the Act but it does not apply to public highways and roads or to some private roads.

The Act is clearly an improvement on the common law but it produces its own set of problems including the interpretation of statutory language and the construing of the boundaries between occupiers' liability, negligence, and other areas of the law. In retrospect, it may have been better to adopt the New Brunswick reform and simply to abolish the common law rules of occupiers' liability and allow negligence principles to govern.

CHAPTER 3, SPECIAL TOPICS IN NEGLIGENCE