The Occupiers' Liability Act

The Occupiers' Liability Act, C.C.S.M. c. O8 bilingual version (HTML) Table of Contents Section 1 Definitions 2 Common law rules abolished 3 Occupiers' duty 4 Extension, restriction, etc. of duty 5 Damage caused by independent contractor 6 Duty of care of landlord 7 Application of Tortfeasors and Contributory Negligence Act 8 Crown bound 9 Exemption for municipalities 9.1 Regulations 10 Transitional HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: Definitions 1(1) In this Act "minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« ministre ») "occupier" means an occupier at common law and may include (a) a person who is in physical possession of premises, or (b) a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises or the persons allowed to enter the premises; (« occupant ») "off-road vehicle" means an off-road vehicle as defined in The Off-Road Vehicles Act ; (« véhicule à caractère non routier ») . "premises" includes (a) land and structures or either of them, except portable structures and equipment other than those described in clause (d), (b) water, (c) ships and vessels, (d) trailers and portable structures designed or used for a residence, business or shelter, and (e) railway locomotives, railway cars, vehicles and aircraft while not in operation; (« lieux ») "recreational trail" means land that (a) is available for multi-purpose recreational use by the public free of charge, and (b) is marked reasonably clearly as a recreational trail by the Manitoba Recreational Trails Association Inc. or another non-profit organization designated in the regulations. (« sentier récréatif ») More than one occupier 1(2) For the purposes of this Act, there may be more than one occupier of any premises. S.M. 1989-90, c. 13, s. 32 ; S.M. 2005, c. 4, s. 2 . Common law rules abolished 2 The common law rules respecting (a) the duty of care owed by an occupier of premises to persons entering on the premises or to persons, whether on or off the premises, whose property is on the premises; and (b) the liability of an occupier of premises for the breach of that duty; are no longer the law of Manitoba except for the purposes of determining who is or is not an occupier for the purposes of this Act and the provisions of this Act apply in place of those common law rules. Occupiers' duty 3(1) An occupier of premises owes a duty to persons entering on the premises and to any person, whether on or off the premises, whose property is on the premises, to take such care as, in all circumstances of the case, is reasonable to see that the person or property, as the case may be, will be reasonably safe while on the premises. Application of duty 3(2) The duty referred to in subsection (1) applies in respect of (a) the condition of the premises; (b) activities on the premises; and (c) the conduct of third parties on the premises. Assumption of risk 3(3) Notwithstanding subsection (1), an occupier of premises owes no duty of care to a person entering on the premises or whose property is on the premises in respect of any risks willingly assumed by that person. Limited duty of care 3(4) Despite subsection (1), in any of the circumstances set out in subsection (4.1), an occupier of premises owes only the duty (a) not to create a danger with deliberate intent of doing harm or damage to the person or the person's property; and (b) not to act with reckless disregard to the presence of the person or the person's property. When limited duty of care applies 3(4.1) An occupier of premises owes the duty of care described in subsection (4) to the following persons: (a) a person who is driving or riding on an off-road vehicle, or is being towed by an off-road vehicle, or is riding on or in a conveyance being towed by an off-road vehicle, on the premises without the consent or permission of the occupier; (b) a person who is 12 years of age or older and has entered on the premises without the permission of the occupier with the intention of, or for the purpose of, committing a criminal act; (c) a person who is 12 years of age or older and has entered on any of the following premises without the permission of the occupier of the premises: (i) premises used for agricultural purposes, including land under cultivation, (ii) premises used for forestry or grazing purposes, (iii) vacant or undeveloped land, (iv) a forested area or wilderness area, (v) a recreational trail, (vi) a golf course when not open for playing, (vii) a private road, (viii) a utility right-of-way or utility corridor, not including a structure on the right-of-way or corridor. Higher standard of care 3(5) Nothing in this section relieves an occupier of premises of any duty to exercise, in a particular case, a higher standard of care which, in that case, is required of the occupier by virtue of any Act or rule of law imposing special standards of care on particular classes of occupiers or in respect of particular classes of premises. S.M. 1988-89, c. 13, s. 32 ; S.M. 2005, c. 4, s. 3 ; S.M. 2021, c. 54, s. 7 . Extension, restriction, etc. of duty 4(1) An occupier may, by express agreement or by express stipulation or notice, (a) extend or increase the duty referred to in subsection 3(1); or (b) restrict, modify or deny the duty referred to in subsection 3(1) subject to any prohibition or limitation imposed by this or any other Act of the Legislature against or on the restriction, modification or denial of the duty. Restriction, etc. to be reasonable 4(2) No restriction, modification or denial of the duty referred to in subsection 3(1), whether by agreement, stipulation or notice, is valid or binding against any person unless in all the circumstances of the case it is reasonable and, without limiting the circumstances to be considered in any case, in determining the reasonableness of any restriction, modification or denial of the duty, the circumstances to be considered shall include (a) the relationship between the occupier and the person affected by the restriction, modification or denial; (b) the injury or damage suffered and the hazard causing it; (c) the scope of the purported restriction, modification or denial; and (d) the steps taken to bring the restriction, modification or denial to the attention of the persons affected thereby. Notice of restriction, etc. 4(3) Subject to subsections (4) and (5), where an occupier restricts, modifies or denies the duty referred to in subsection 3(1), the occupier shall take reasonable steps to bring the restriction, modification or denial to the attention of the person to whom the duty is owed. General limitation on restriction, etc. 4(4) An occupier of premises shall not restrict, modify or deny the duty referred to in subsection 3(1) with respect to a person who is empowered or permitted under the law to enter or use the premises without the consent or permission of the occupier. Application to former contracts 4(5) This section applies to express agreements entered into before October 1, 1983 as well as to those entered into on or after that date. Damage caused by independent contractor 5(1) Notwithstanding subsection 3(1), where damage is caused to persons or property on premises solely by the negligence of an independent contractor engaged by the occupier of the premises, the occupier is not on that account liable under this Act if, in all the circumstances, (a) the occupier exercised reasonable care in the selection and supervision of the independent contractor; and (b) it was reasonable that the work that the independent contractor was engaged to do should have been done. Liability imposed under other Acts 5(2) Subsection (1) does not restrict, modify or deny the liability imposed by any other Act of the Legislature on an occupier of premises for the negligence of independent contractors engaged by the occupier. Application of subsection (1) where more than one occupier 5(3) Where damage is caused to persons or property on premises by the negligence of an independent contractor engaged by an occupier of the premises, and there are two or more occupiers of those premises, each of those occupiers may rely on subsection (1). Duty of care of landlord 6(1) Where under a lease of premises a landlord is responsible for the maintenance or repair of the premises, the landlord owes the same duty to persons entering on the premises and to any person, whether on or off the premises whose property is on the premises, as is owed by the occupier of the premises. Application to subleases 6(2) Where premises are sublet, subsection (1) applies to any landlord who is responsible for the maintenance and repair of the premises. Default must be actionable by occupier 6(3) For the purposes of this section, a landlord of premises is not in default of the duty described in subsection (1) unless the default is such as to be actionable at the suit of the occupier of the premises. No restriction on other duties 6(4) Nothing in this Act relieves a landlord of any duty imposed on landlords under any other Act or law. Application to statutory leases, etc. 6(5) For the purposes of this section, obligations imposed on a landlord by any Act or law shall be deemed to be imposed under the lease and "lease" includes any statutory lease or any contract or statutory provision conferring the right of occupation of premises on a person who is not the owner thereof and "landlord" shall be construed accordingly. Application of section to existing leases 6(6) This section applies to leases entered into before October 1, 1983 as well as to leases entered into, on or after that date. Application of Tortfeasors and Contributory Negligence Act 7 The Tortfeasors and Contributory Negligence Act applies to and in respect of damages arising from a breach of the duties imposed under this Act. Crown bound 8(1) Subject to subsection (2), the Crown is bound by this Act. Exceptions for Crown 8(2) Sections 3, 4, 5 and 6 do not apply to the Crown where the Crown is the occupier (a) of a public highway or a public road; or (b) of drainage works; or (c) of a river, stream, watercourse, lake or other body of water except those areas thereof that have been specially developed by the Crown for recreational swimming or for the launching and landing of boats; or (d) a recreational trail. S.M. 2005, c. 4, s. 4 . Exemption for municipalities 9(1) Sections 3, 4, 5 and 6 do not apply to a municipality where the municipality is the occupier of a public highway, public road, public walkway or sidewalk, or recreational trail. General exceptions 9(2) Sections 3, 4, 5 and 6 do not apply to or affect (a) the liability or duties of an employer to employees of the employer; (b) the liability or duties of any person arising under a contract for the hire of, or for the carriage for reward of persons or property in, any vehicle, vessel, aircraft or other means of transportion; (c) the liability or duties of any person under The Hotelkeepers Act ; or (d) the liability or duties of any person by virtue of a bailment. S.M. 2005, c. 4, s. 5 . Regulations 9.1 The minister may make regulations designating non-profit organizations for the purpose of the definition "recreational trail" in subsection 1(1). S.M. 2005, c. 4, s. 6 . Transitional 10 Subject to subsections 4(5) and 6(6), this Act applies only in respect of a cause of action arising after September 30, 1983.