Strict / Absolute / Vicarious Liability & Negligence
By: Quintin Johnstone, Founder & CEO Samsonshield Inc. / Riskboss Inc.
At Riskboss, we often come across situations where Board members and property managers find themselves in unfortunate situations that they never anticipated. Riskboss usually gets calls after something bad happens, requesting us to conduct impendent studies into such incidents to prevent them in the future. More often than not, the situations we analyze are both predictable and avoidable. What appears obvious to Riskboss experts does not to most outside observers and can lead to corporations, their property managers and service providers being sued.
The purpose of this article is to assist property managers and board members in maneuvering through the traps of Snakes and Ladders when faced with negligence issues and how to be prepared before such incidents happen.
Television and social media advertising are proliferated with legal firms that claim, “Call for a free consultation,” “We will come to you,” and “You pay nothing unless we win”. For those condo owners and their guests who see an opportunity to take these lawyers up on their offer, it seems like a no brainer because they, “Have nothing to lose and everything to gain.”
Riskboss has regular interactions with insurance firms dealing with claims such as personal injury. Riskboss hears the horror stories where corporations must defend these nuisance actions. The claims invariably do not settle until the insurance company determines settlement is cheaper than fighting.
Once you are on that train, you cannot get off it until you reach the final destination, which usually takes years.
So, what does this all mean, and why is this important? Property managers and Board members are burdened with a lot of responsibilities, often outside of their skillset, knowledge, training, and control. Property managers have a multitude of things that they are responsible for, primarily the health and safety of residents and their guests, maintaining order and ensuring site integrity. They are also faced with the task of spending as little money as possible on experts and professionals, forcing them to be a jack of all trades.
The pressures to act can be overwhelming, sometimes leading to poor decisions. Everyone in the business has either witnessed or experienced the overzealous resident that demands property management and the Board act immediately, not realizing the implications of doing so. Without realizing it, their actions could lead to unintentional liability for not only themselves but also the corporation.
In Canadian law, prosecutors are required to prove three basic elements in most criminal and civil proceedings:
- Details of the act or omission;
- Why something occurred; and
- Was there intent (or Mens Rea).
In some circumstances, intention is irrelevant. This usually comes in the form of negligence claims. Strict, absolute, and vicarious liability are legal terms that every property manager and board member should know about. Some people throw these terms around in conversations often misunderstanding the operational relevance.
Highway Traffic offences and Human Rights claims are examples of strict and absolute liability offences in Ontario, as are Ministry of Labour issues, the Occupier’s Liability Act related to slip and falls, dog bite and animal attack laws found in The Dog Owners’ Liability Act, and the list goes on.
Strict Liability in Ontario law means that you can be held responsible for the consequence of your actions even if you did not have the intent to act or omit to act, or were negligent. A person’s intention does not matter and is more than getting the team to salt the ice and snow on the sidewalk to prevent slips and falls. To be free from strict liability, you must show that you acted as a reasonable person under similar circumstances. Clearly defined processes, procedures and training will meet the Reasonable Person Test in most circumstances.
This means that if, for example, you have a duty of care and neglected it, forgot to do something, or did something that had unfortunate and unintended consequences, you may still be held accountable and possibly liable. Dog bites and animal attacks are examples of strict liability offences.
Duty of Care – The ‘Reasonable Person Test’
The duty of care under law is determined by analyzing what occurred measured against what a ‘reasonable’ person would do under similar circumstances. In circumstances where board members and property managers feel that opinions are outside of their role and scope of expertise, it is always recommended to get advice from those qualified to provide it.
In fact, as Condolawyer Gerry Miller advises, the Condominium Act requires it. It is important for property managers and directors to document your efforts in seeking such advice by, for example, emailing yourself a note and keeping it for future reference. That would assist in meeting the Reasonable Person Test.
Absolute Liability in Ontario law means that regardless of intent or actions to mitigate something occurring, you may still be held accountable and possibly liable. In these circumstances you may even be held responsible by the actions of others under your control. This may occur even if you are found not to be personally negligent or at fault. Usual defences such as intent, necessity, due diligence and unintentional accident are irrelevant in absolute liability offences.
Vicarious Liability
Vicarious liability refers to the legal principle where a person or business can be held legally liable for the negligence or wrongful acts of someone else, typically an employee or an agent. It can also occur where there is some other legal relationship.
This extends, for example, to in-house employees such as security, cleaning staff and the building superintendent. This can be true even if the employer had no prior control or knowledge of the incident(s). Simply put, employers are vicariously liable for the actions of their employees so that employers cannot claim ignorance, thereby avoiding responsibility.
Joint and Several Liability
This legal term has been around in common law for centuries. It refers to the outcome(s) of actions, against persons or corporations. Depending on the circumstances the defendants to an action may have to share the burden of paying an award, and on a scale that is proportional to the finding of fault.
By Act or Omission
People can not only be held responsible for what they do (An act) but also, by omission (A failure to do something that you are required to do).
Occupiers
Condominium corporations are “occupiers” under The Ontario Occupier’s Liability Act and, as such, responsible for their common elements. Corporations have a clear duty to take reasonable precautions to keep their premises reasonably safe for all residents, guests, and anyone else in attendance. Slip and fall cases are classic examples of occupier’s liability.
Staying In Your Lane
Making Sure Site Employees Do the Same
Property managers and board members are protected when they stay in their lanes. It is also important to note that site employees and contractors must do the same. There are countless cases in Ontario where employees overreached and in doing so, made the corporation accountable.
Circumstances that may lead to trouble include but are not limited to:
X Going beyond and outside of your roles
X Ignoring the corporate by-laws and rules
X Ignoring the advice of experts
X Ignoring obvious health and safety issues
X Criminal activity (Theft, fraud, requesting/receiving bribes)
X Engaging in obvious conflict of interest situations
X Prejudging and acting before all the facts are in
X Acting on unaccredited expert advice
X Hiring unlicensed contractors for the corporation
X Physically ejecting unwanted guests and trespassers
Preventing Problems in the First Place
Riskboss has conducted independent and comprehensive risk assessments of over 65 condominiums in the GTA over the past decade. Best practices have been collected through the years that improve risk mitigation for residents and guests.
Riskboss recommends that you start with a comprehensive risk assessment to determine where your risk gaps are. Implement the higher risk, lower cost recommendations as the next step. Work with your risk mitigation provider to develop processes and training to get you where you need to be.
And lastly, always make the call to experts when in doubt. You will be glad and relieved that you did. Needless to say, that this is not the time to go it alone on decision making outside of your expertise or extend past what is corporately required and necessary.
To learn more about how to get risk assessment or to have one of our senior analysts conduct a free/no obligation 30- minute tour of your site, contact us at: