Authors: Tristan Culham, Tava Burton
COVID-19 Liability Series: Minimizing Risk of Injury Claims
As provincial governments continue to lift restrictions on their economies, the prospect that a new outbreak of COVID-19 could be traced back to the doorsteps of particular business raises special concerns under the law of occupiers’ liability. Failure of a business to take reasonable care to control its spread may ultimately expose that business to liability as an occupier.
In this second installment of COVID-19 Liability Series: The Effect of COVID-19 on Businesses’ Obligations to Prevent Harm, we address some of the new legal risks posed by COVID-19 when others enter your place of business and highlight possible ways to create a safer environment for customers, workers and contractors.
What is Occupiers’ Liability?
An occupier has a duty to take reasonable steps to protect visitors on its premises against known or foreseeable risks of harm. An “occupier” is not limited to the owner of the premises and can be any person who is responsible for and has control over the premises, the condition of the premises, and the persons permitted to enter the premises. This duty is contextual and it is the circumstances of any given situation that govern what the occupier must do to see that those on its premises will be reasonably safe. As a result, occupiers must remain vigilant to ensure that the policies and procedures at their places of business are responsive to the most current health risks.
Occupiers’ liability may arise from several different sources. In Saskatchewan, the duty exists at common law. In Manitoba, Alberta, and British Columbia, it is found in provincial occupiers’ liability legislation. These provincial statutes, while broadly similar, are not identical and differ yet again from the common law. Therefore, it is important for businesses to pay close attention to the source of their duties and how they differ depending on the province in which they are operating.
Two of the most common types of visitors who may legally enter a place of business and to whom a duty of care is owed are ‘invitees’ and ‘contractual entrants.’ This distinction is relevant as the level of care required will vary depending on the category of visitor in question.
Duties Owed to Invitees
An ‘invitee’ is someone who comes to a business with a view to making a purchase, such as a customer at a store or at a restaurant. If an invitee is harmed or injured at a place of business, the law of occupiers’ liability normally asks the following questions:
- Was there an “unusual danger” on the business’ premises?
- If so, was it one that the business knew or ought to know?
- Did the business use reasonable care to prevent damage to the plaintiff from the unusual danger?
“Unusual danger” has been traditionally defined to mean any danger that is not usually found in carrying out the task or fulfilling the function which the invitee is attending to. What is unusual will vary with the reasons for which the invitee has entered the premises: Beaman v Canada Safeway Ltd. (1993), 115 Sask R 100 (QB) at para 5 [Beaman], aff’d (1994), 123 Sask R 244 (CA). Some dangers that have been considered by courts to be “unusual” include water on the floor of a grocery store or an icy patch on a sidewalk immediately outside the main exit of an inn.
The existence of an unusual or hidden danger on the premises may trigger a duty on the occupier to warn visitors that they are entering a situation of danger. In Singer (Litigation Guardian of) v Hamilton (City), 2009 ONCA 559, for example, a 78-year old woman fell into a four-foot trench at an unmarked construction zone. The absence of any clear warning sign made it impossible for the plaintiff to appreciate the risk before she could willingly assume it. Conversely, in Criss v Sutherland Hotel Inc., 2013 SKQB 311, the defendant hotel was not held liable for a slip and fall on its premises where its employee had put out signs advising of a wet floor.
The question of whether a risk of exposure to COVID-19 constitutes an unusual danger has not yet been decided by courts but is likely to be a fact-specific inquiry. If a danger is so obvious and apparent that any reasonable person would be aware of it, then there is likely no duty to warn. However, if policies at a business do not exist or are not in line with COVID-19 health recommendations, an occupier might be said to be creating an unusual danger for its customers and staff.
Duties Owed to Contractual Entrants
A ‘contractual entrant’ is someone who has paid money or provided other consideration to obtain entry to and use of the premises. Examples of contractual entrants may include a resident at a nursing home, a college student, or a patron of a hotel, theatre, sports arena, airport, or a health club.The duty of care owed to contractual entrants is higher than that owed to invitees. In contrast with invitees, an occupier’s responsibility to a contractual entrant is not limited to “unusual dangers.” This is particularly so when using the premises is the primary purpose of the contract, such as in the case of a hotel, a long-term care facility, or a gym.
In these circumstances, the law will require the occupier to ensure that the premises are as safe as reasonable care and skill can make them. It will also typically require the occupier to supervise or control the conduct of persons whose activities on the premises are likely to endanger the contractual entrant: McTaggart v Commonwealth Hospitality Ltd., 1997 CanLII 11203 (Sask QB). In the case of nursing homes or long-term care facilities, a particularly high duty of care may be imposed on occupiers to prevent the spread of COVID-19 such as active and regular screening of all staff, residents and essential visitors, adopting universal masking, and ensuring proper implementation of other outbreak control measures.
It should be noted that an occupier may not always owe a duty of care to a visitor if the risks were willingly accepted by the visitor in question. The issue of whether and to what extent a business can contractually restrict or exclude its liability for harm suffered by entrants on its premises, or more generally for those who use its services, will be discussed in an upcoming installment of this series.
What Informs Whether a Business Used Reasonable Care?
Businesses are held to a standard of reasonableness – not perfection. What is reasonable will vary depending on the seriousness of the danger itself. The policies and procedures a grocery store needs to take to prevent slip hazards on the floor will not be the same as the precautions required to safely perform dental surgery or to cut someone’s hair.
For example, in Beaman, a grocery store was sued for injuries suffered by a customer from slipping on grapes. The Court focused on the maintenance policy and housekeeping procedures that the grocery store implemented. These policies and procedures involved regular floor cleaning and to take care of spills once they were detected. The Court concluded that the policy and procedures were adequate to prevent the danger in question. The store was not required to undertake constant surveillance of its customers and to follow each customer and immediately sweep up after those who spill items. In the case of COVID-19, however, businesses may need to consider monitoring the number of customers and staff entering and exiting the premises at any given time and whether other measures are sufficient to ensure physical distancing.
Occupiers’ Liability and COVID-19
COVID-19 is a potentially deadly virus that is invisible and can spread easily and quickly. The very nature of COVID-19 creates immense difficulties for businesses trying to prevent its spread at their premises.
However, the mere fact that a customer contracts the virus after going to a business will not necessarily mean that the business has failed to meet its standard of care. A business is not required to be an insurer of the safety of its customers. Rather, courts will consider whether the business has taken steps to alert invitees to potential dangers at the business, and will look to the business’s cleaning and sanitation policies, the steps taken to enforce those policies, and the particular facts on the day any spread of infection is alleged to have occurred.
What is adequate for each individual business will vary. Businesses should be evaluating how the risks presented by COVID-19 can be mitigated in the context of their particular circumstances. To take one example, personal care services permitted to open in Saskatchewan may see an influx of customers from other jurisdictions where such services are still closed. Such businesses may need to consider whether they are creating an increased risk of exposure to COVID-19 at their premises by allowing themselves to become a hotspot for out-of-province travellers.
At a minimum, it is critical to stay up-to-date with public health advisories and ensure that any applicable recommendations are being implemented.
Other steps that businesses should consider taking include:
- developing and implementing policies related to enhanced cleaning and hygiene;
- regularly enforcing and ensuring compliance with COVID-19 specific policies, including monitoring and keeping a record of compliance throughout the day;
- posting clear markers and signs that promote physical distancing of customers and staff; and
- taking steps to minimize commonly contacted areas and surfaces and to disinfect and sanitize such areas.
We recognize the challenges that businesses face in staying up-to-date on what is required of them. MLT Aikins encourages any business to contact us for industry-specific advice regarding meeting the standard of care and for assistance with related matters.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice of opinion. Readers should consult a legal professional for specific advice in any particular situation.