Possible Amendments to The Occupiers' Liability Act
Since the Occupiers’ Liability Act (OLA) was first passed in 1983, Manitoba land owners/occupiers have had, in general, a statutory duty to all persons entering on their property to take such care as, in all circumstances, is reasonable to see that the person will be reasonably safe while on the property.
However, there are two exceptions to that general duty of reasonable care:
- persons who operate an off-road vehicle on a property without consent
- persons who are on a recreational trail
In each of those cases, the duty of care is reduced to a minimum standard of not creating a danger with the deliberate intent of doing harm or damage to the trespasser or their property, and the duty to not act with reckless disregard of the safety of a trespasser or their property.
However, given the recent concerns about rural crime and unlawful trespassing on rural and farm properties, it is necessary to consider whether changes to the OLA should be made to provide landowners/occupiers with greater protection from civil liability for death, injuries or property damage suffered by persons who are on their property without their knowledge or consent.
In that regard, it is necessary to strike a balance between competing interests in terms of protecting both the person who entered the property without lawful excuse or permission, and the owner/occupier who had no idea that the person would be on the property and no opportunity to intervene, to warn or stop them before they were injured.
Some provinces have taken different approaches from Manitoba to achieve that balance.
British Columbia and Ontario's approach
British Columbia and Ontario take the approach of providing a common duty of reasonable care for all entrants onto property, except for those who:
- willingly assume safety risks,
- persons who intend to commit or commit criminal activity (criminal trespassers),
- and trespassers on certain specified land (e.g. agricultural, unpaid recreational trail use, or utility right of way), all of whom are only allowed the minimum duty of care.
Saskatchewan and Alberta's approach
Saskatchewan has recently reduced the general civil liability of land owners/occupiers to all trespassers, to the minimum duty that Manitoba has established for persons operating off-road vehicles and on recreational trails, which is also the minimum duty of care that was required for all trespassers at common law.
Alberta has reduced that minimum standard even further for criminal trespassers, who are defined according to a complex set of circumstances.
Classes of trespassers
There may be compelling policy reasons to treat some classes of trespassers differently based upon the circumstances surrounding the trespass.
It may not be reasonable to hold land owners/occupiers to the existing Manitoba general duty of care for persons who enter their property to commit criminal acts or enter property without permission where the size of the land makes it impossible for the land owner to know that they will be on the property and warn them of or remove potential hazards (i.e. off-road vehicle operators and persons on recreational trails are already subject to the lower minimum duty of care).
In addition, the natural curiosity of children coupled with their lack of understanding of danger, might be such that they should be accorded the existing general duty of care.
Similarly, it may be that innocent trespassers who have merely lost their way ought to be provided with that same general duty of care.
