ENH 121 Unit 7B - Environmental Health Law Property Law PDF 2024

Environmental Health Law ENH 121 Unit 7B – Property Law Daniel Huynh BASc School of Occupational and Public Health Toronto Metropolitan University From slides by Dr. Peter Strahlendorf 2024 Uni...

Environmental Health Law ENH 121 Unit 7B – Property Law Daniel Huynh BASc School of Occupational and Public Health Toronto Metropolitan University From slides by Dr. Peter Strahlendorf 2024 Unit 7 Property Law 1  Unit 7B - Contents 1. Property Law 2. Occupiers’ Liability Act 3. Trespass to Property Act Unit 7 Property Law 2 1. Property Law Unit 7 Property Law 3  Property Law Most of property law is concerned with ownership, buying and selling and inheritance Our concern is with the liability of the owner for accidents to the “entrant”, and with the status of being a “trespasser” and the liability that follows. Unit 7 Property Law 4  OHS Concern OHS statutory law does not (usually) cover people who are not workers, e.g. Ontario. But an OHS Act can cover non-workers in some jurisdictions – if term “person” is used instead of “worker” or “employee” Unit 7 Property Law 5  OHS Concern Today, we’re not concerned with OHS statutory law. The OHS Manager is usually responsible for ensuring that occupiers’ liability is taken care of by the organization’s management system. Unit 7 Property Law 6  OHS Concern What kinds of workplace accidents can harm what kinds of non-workers? Activities and physical conditions. – Ex. Dropping a wrench on a visitor’s head – Ex. Loose floor tile slip and fall Customers, patients, students, kids Especially vulnerable are shops, arenas, schools, hospitals, municipalities, recreational parks. Unit 7 Property Law 7  OHS Concern John Deere Case Two teenagers came to the John Deere plant in St. Catharines for “bring your kids to work” day. They were allowed to drive a “gator vehicle” around the plant. Crashed and died. Who can sue who? Occupier’s liability the parent’s can sue the company and supervisor Unit 7 Property Law 8  Public Health Concern To what extent do PHIs have jurisdiction over “public safety” as opposed to “public health”? We will examine the definition of “health hazard” under the HPPA. In the Ramada case, the PHI’s order to shut down a hotel’s water slide because it was unsafe was upheld. Assume all these safety concerns are health issues Unit 7 Property Law 9  Public Health Concern PHIs routinely inspect restaurants, pools, schools, day cares, residential institutions. What do you do if you see an unsafe condition or unsafe activity? Can you issue a section 13 HPPA order? Can you advise occupier of duty of care of occupier under Occupiers’ Liability Act? Does the occupier owe the PHI a duty of care? yes Unit 7 Property Law 10 2. Occupiers' Liability Act R.S.O. 1990, CHAPTER O.2 Last amendment: 2020, c. 33. Downloaded: September 2023 Unit 7 Property Law 11  Occupiers' Liability Act Definitions 1 In this Act, “occupier” includes, (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 or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises; Unit 7 Property Law 12  Occupiers' Liability Act “premises” means lands and structures, or either of them, and includes, (a) water, (b) ships and vessels, (c) trailers and portable structures designed or used for residence, business or shelter, (d) trains, railway cars, vehicles and aircraft, except while in operation. Unit 7 Property Law 13  Occupiers' Liability Act Common law duty of care superseded 2 Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons. Common law (what was decided in court) we do not look at cases prior to 1980 Unit 7 Property Law 14  Occupiers' Liability Act Occupier’s duty 3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case 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. Unit 7 Property Law 15  Occupiers' Liability Act (2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises. (3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. Unit 7 Property Law 16  Occupiers' Liability Act Risks willingly assumed 4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property. Unit 7 Property Law 17  Occupiers' Liability Act Criminal activity 4 (2) A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1). Unit 7 Property Law 18  Occupiers' Liability Act Trespass and permitted recreational activity 4 (3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1), (a) where the entry is prohibited under the Trespass to Property Act; (b) where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or (c) where the entry is for the purpose of a recreational activity and, (i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and (ii) the person is not being provided with living accommodation by the occupier. Unit 7 Property Law 19 Same 4 (3.1) For greater certainty, the following do not constitute a fee for entry or activity of the person for the purposes of subclause (3) (c) (i): 1. A fee charged for a purpose incidental to the entry or activity, such as for parking. 2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency. 2016, c. 8, Sched. 3, s. 1 (1). Unit 7 Property Law 20  Occupiers' Liability Act 4 (4) The premises referred to in subsection (3) are, (a) a rural premises that is, (i) used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds, (ii) vacant or undeveloped premises, (iii) forested or wilderness premises;golf courses when not open for playing; Unit 7 Property Law 21  Occupiers' Liability Act (b) golf courses when not open for playing; (c) utility rights-of-way and corridors, excluding structures located thereon; (d) unopened road allowances; (e) private roads reasonably marked by notice as such; and (f) recreational trails reasonably marked by notice as such. (g) portage routes. R.S.O. 1990, c. O.2, s. 4; 2016, c. 8, Sched. 3, s. 1 (2). Unit 7 Property Law 22  Occupiers' Liability Act Employer and employee relationships 9 (2) Nothing in this Act shall be construed to affect the rights, duties and liabilities resulting from an employer and employee relationship where it exists. Application of Negligence Act (3) The Negligence Act applies with respect to causes of action to which this Act applies. Unit 7 Property Law 23  Occupiers' Liability Act Act binds Crown 10 (1) This Act binds the Crown, subject to the Proceedings Against the Crown Act. Exception 10 (2) This Act does not apply to the Crown or to any municipal corporation, where the Crown or the municipal corporation is an occupier of a public highway or a public road. Unit 7 Property Law 24 3. Trespass to Property Act R.S.O. 1990, CHAPTER T.21 Last amendment: 2016, c. 8, Sched. 6. Downloaded: September 2023 Unit 7 Property Law 25  Trespass to Property Act Trespass to Property Act (TPA) is both: 1. a regulatory regime – prosecutions (fine) 2. civil liability regime (1 v 1) Unit 7 Property Law 26  Trespass to Property Act The TPA is in part a regulatory regime: prosecution by the state fine is max $10,000, going to state. function is deterrence no need to show harm to occupier Unit 7 Property Law 27  Trespass to Property Act The TPA is in part a codified private law (civil liability) regime: occupier sues trespasser occupier must show the trespass caused harm no longer a maximum $ for damages … open-ended function is compensation Unit 7 Property Law 28  Trespass to Property Act Definitions 1 (1) In this Act, “occupier” includes, (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 or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; Unit 7 Property Law 29  Trespass to Property Act “premises” means lands and structures, or either of them, and includes, (a) water, (b) ships and vessels, (c) trailers and portable structures designed or used for residence, business or shelter, (d) trains, railway cars, vehicles and aircraft, except while in operation. Unit 7 Property Law 30  Trespass to Property Act Trespass an offence (Regulatory) 2 (1) Every person who is not acting under a right or authority conferred by law and who, (a) without the express permission of the occupier, the proof of which rests on the defendant, (i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or (b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $10,000. R.S.O. 1990, c. T.21, s. 2 (1); 2016, c. 8, Sched. 6, s. 1. [$2000 to $10,000 in 2016] Unit 7 Property Law 31  Trespass to Property Act Colour of right as a defence 2 (2) It is a defence to a charge under subsection (1) in respect of premises that is land that the person charged reasonably believed that he or she had title to or an interest in the land that entitled him or her to do the act complained of. Unit 7 Property Law 32  Trespass to Property Act Prohibition of entry 3 (1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises, (a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or (b) that is enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises. Unit 7 Property Law 33  Trespass to Property Act Implied permission to use approach to door 3 (2) There is a presumption that access for lawful purposes to the door of a building on premises by a means apparently provided and used for the purpose of access is not prohibited. Not trespassing, unless there is a sign (maybe) Unit 7 Property Law 34  Trespass to Property Act Limited permission 4 (1) Where notice is given that one or more particular activities are permitted, all other activities and entry for the purpose are prohibited and any additional notice that entry is prohibited or a particular activity is prohibited on the same premises shall be construed to be for greater certainty only. Limited prohibition (2) Where entry on premises is not prohibited under section 3 or by notice that one or more particular activities are permitted under subsection (1), and notice is given that a particular activity is prohibited, that activity and entry for the purpose is prohibited and all other activities and entry for the purpose are not prohibited. Unit 7 Property Law 35  Trespass to Property Act Method of giving notice 5 (1) A notice under this Act may be given, (a) orally or in writing; (b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies; or (c) by means of the marking system set out in section 7. Substantial compliance (2) Substantial compliance with clause (1) (b) or (c) is sufficient notice. Unit 7 Property Law 36  Trespass to Property Act Form of sign 6 (1) A sign naming an activity or showing a graphic representation of an activity is sufficient for the purpose of giving notice that the activity is permitted. (2) A sign naming an activity with an oblique line drawn through the name or showing a graphic representation of an activity with an oblique line drawn through the representation is sufficient for the purpose of giving notice that the activity is prohibited. Unit 7 Property Law 37  Trespass to Property Act Red Markings 7 (1) Red markings made and posted in accordance with subsections (3) and (4) are sufficient for the purpose of giving notice that entry on the premises is prohibited. Yellow markings (2) Yellow markings made and posted in accordance with subsections (3) and (4) are sufficient for the purpose of giving notice that entry is prohibited except for the purpose of certain activities and shall be deemed to be notice of the activities permitted. Unit 7 Property Law 38  Trespass to Property Act Size 7 (3) A marking under this section shall be of such a size that a circle ten centimetres in diameter can be contained wholly within it. Posting (4) Markings under this section shall be so placed that a marking is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies. Unit 7 Property Law 39  Trespass to Property Act Arrest without warrant on premises 9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. Unit 7 Property Law 40  Trespass to Property Act Delivery to police officer 9 (2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. Unit 7 Property Law 41  Trespass to Property Act Deemed arrest 9 (3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. Unit 7 Property Law 42  Trespass to Property Act Arrest without warrant off premises 10 Where a police officer believes on reasonable and probable grounds that a person has been in contravention of section 2 and has made fresh departure from the premises, and the person refuses to give his or her name and address, or there are reasonable and probable grounds to believe that the name or address given is false, the police officer may arrest the person without warrant. Unit 7 Property Law 43  Trespass to Property Act Motor vehicles and motorized snow vehicles 11 Where an offence under this Act is committed by means of a motor vehicle, as defined in the Highway Traffic Act, or by means of a motorized snow vehicle, as defined in the Motorized Snow Vehicles Act, the driver of the motor vehicle or motorized snow vehicle is liable to the fine provided under this Act and, where the driver is not the owner, the owner of the motor vehicle or motorized snow vehicle is liable to the fine provided under this Act unless the driver is convicted of the offence or, at the time the offence was committed, the motor vehicle or motorized snow vehicle was in the possession of a person other than the owner without the owner’s consent. Unit 7 Property Law 44  Trespass to Property Act Damage award 12 (1) Where a person is convicted of an offence under section 2, and a person has suffered damage caused by the person convicted during the commission of the offence, the court shall, on the request of the prosecutor and with the consent of the person who suffered the damage, determine the damages and shall make a judgment for damages against the person convicted in favour of the person who suffered the damage. R.S.O. 1990, c. T.21, s. 12 (1); 2016, c. 8, Sched. 6, s. 2. Unit 7 Property Law 45  Trespass to Property Act Damages and costs in addition to fine 12 (3) A judgment for damages under subsection (1), or an award of costs under subsection (2), shall be in addition to any fine that is imposed under this Act. Unit 7 Property Law 46  Trespass to Property Act Civil action 12 (4) A judgment for damages under subsection (1) extinguishes the right of the person in whose favour the judgment is made to bring a civil action for damages against the person convicted arising out of the same facts. Idem 12 (5) The failure to request or refusal to grant a judgment for damages under subsection (1) does not affect a right to bring a civil action for damages arising out of the same facts. R.S.O. 1990, c. T.21, s. 12 (5) Unit 7 Property Law 47  Trespass to Property Act Enforcement 12 (6) The judgement for damages under subsection (1), and the award for costs under subsection (2), may be filed in a small claims court and shall be deemed to be a judgement or order of that court for the purposes of enforcement. Unit 7 Property Law 48