Property Maintenance with Robert Gabor - Diamond and Diamond Lawyers
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Property Maintenance with Robert Gabor

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Living in a large urban centre, I encounter no shortage of hazards on a regular basis as I engage in my travels around town. Having spent over 20 years representing victims of accidents caused by poorly maintained properties, I find myself acutely aware of the many common defects we all come across as we are simply out and about in the city each and every day. It is that sensitivity which causes me to regularly be astonished at the lack of attention paid to property maintenance by certain owners and occupiers whom, given their financial resources and experience in property management, should be both well aware of their obligations in law, and be economically equipped to maintain their properties appropriately.  When I see missing pieces of interlocking brick at the entrance to a building going unrepaired for months, or a parking lot at a strip mall covered with ice for days on end, I can’t help but wonder, are these property owners really not aware of their duties under the Occupiers’ Liability Act, or are the inevitable lawsuits caused by these examples of poor property maintenance simply a cost of doing business which has been accepted by them?

In Ontario, an occupier owes a duty to take such care as 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. This duty is clearly set out in the Occupiers’ Lability Act, and is at the heart of all claims commenced by persons who have sustained injuries as a result of defects to properties they were legally entitled to enter or use. In order to fulfil the duty, an occupier must have a proper system of inspection and maintenance in place, and must properly carry out that system. Property owners and occupiers will often have inadequate systems for monitoring the conditions of their property and addressing maintenance needs. Even when a system is in place, in many instances, for one reason or another, the system is not properly adhered to or not executed consistently. In any of these scenarios, the occupier will potentially be liable for losses suffered by an invitee as a result of the lack of maintenance. It is therefore crucial for owners and occupiers to be aware of their obligation to have a proper system of maintenance in place and to ensure that the system designed is implemented on a consistent basis.

When determining whether a property owner fulfilled their duty under the Occupiers’ Liability Act, we consider a number issues including:

  1. Did the owner or occupier develop a system for inspecting the property on a regular basis to ensure that it was reasonably safe for persons entering the premises?
  2. Did they regularly inspect the property in accordance with the system that they developed?
  3. Did they develop a system for properly performing maintenance and necessary repair work at the premises?
Did they in fact maintain the property on a regular basis and in a proper fashion or were defects and hazards allowed to exist for prolonged periods of time?Did they allocate adequate funds and resources to the inspection and maintenance of the premises?Did the occupier assign adequate personnel to inspection and maintenance of the property?Were those responsible for inspection and maintenance properly trained?Did they have adequate equipment on-site to properly maintain the premises?Was the owner or occupier failing to rectify defects on the property despite being aware of their existence?
  1. Did they provide any warning of dangers on the property?
  2. Did the owner or occupier take adequate steps to protect persons on the property from the defects or hazards?

If the answers to any or all of the above questions are no, the owner or occupier may well have breached their duty under the Occupiers’ Liability Act and be responsible for injuries sustained as a result of the property defect. 

An owner or occupier is not held to a standard of perfection, only a standard of reasonableness, however, those who ignore their duty to design and implement a proper system of inspection and maintenance do so at their own peril.  

If you have sustained an injury due to a suspected lack of proper maintenance on a property, you should consult with a lawyer and have the matter investigated, as the owner or occupier may very well be responsible for your losses.

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