A mediation I conducted not long ago involved a condominium corporation facing a slip-and-fall claim. The corporation relied squarely on the “competent contractor” defence under the Occupiers’ Liability Act^[1], pointing to its snow removal contractor as the party responsible. At the table, it was not the condominium corporation driving the defence but the contractor’s insurer, which had assumed carriage under a hold harmless clause in the maintenance agreement. The occupier’s role was almost incidental, shielded by the contract’s indemnity language. I have seen similar arrangements in municipal contracts, where contractors eager to secure lucrative maintenance work agree to defend and indemnify the municipality in any lawsuit. This shifting of responsibility—sometimes complete, sometimes only partial—was on full display in that condominium case and serves as the inspiration for this blog.

That mediation reminded me that, while indemnity clauses and insurer participation can shift who is defending the claim, they do not rewrite the statutory framework. The Occupiers’ Liability Act still governs whether the occupier can escape liability altogether. Section 6(1) codifies what is often raised in these disputes as the “competent contractor” defence.

The Statutory Foundation

Ontario’s Occupiers’ Liability Act provides a statutory defence for owners and managers who hire independent contractors. Section 6(1) states:

“An occupier of premises is not liable for damage or injury caused to any person by the negligence of an independent contractor employed by the occupier if, in all the circumstances, (a) it was reasonable to entrust the work to the contractor; (b) the occupier took reasonable steps to satisfy itself that the contractor was competent and that the work was properly done; and (c) it was reasonable in the circumstances that the work be undertaken by the contractor.”

The section makes clear that an occupier does not escape liability simply by outsourcing. The defence is available only when the occupier proves that outsourcing was reasonable, that the contractor was competent, and that steps were taken to ensure the work was actually done.

When the Defence Works

A leading decision is Lebko v. Toronto Standard Condominium Corp. 1862, 2019 ONSC 1602^[2]. The plaintiffs alleged that an elevator in their condominium mis-leveled, causing a serious fall. Justice Brown reviewed the extensive evidence, including the condominium’s contracts with its elevator contractor, thyssenkrupp, and its security provider, G4S. The records showed that the condominium had a comprehensive monthly maintenance contract in place, that thyssenkrupp was licensed and Code-compliant, and that the elevator had been taken out of service when issues arose on April 2 and was not put back into operation until a licensed technician attended on April 4. Justice Brown held:

“I am satisfied that TSCC and Del fulfilled their duty of care as in all of the circumstances of the case, persons entering on the premises were reasonably safe… An occupier is not held to a standard of perfection, but rather to a standard of reasonableness. Further, occupiers are not insurers against all possible risks on their premises.” (at paras. 91–92)

On this basis, Justice Brown granted summary judgment in favour of the condominium corporation and its property manager, finding that they had a reasonable system in place and could rely, as necessary, on the statutory defence in section 6 of the Occupiers’ Liability Act.

When the Defence Fails

The decision in Allen v. Lawrence Avenue Group Ltd., 2003 CanLII 43571 (ON SC), illustrates how section 6(1) will not protect an occupier when the contract and oversight are inadequate. Dr. Allen, a dentist, slipped on ice at the foot of a stairway in a plaza owned by Lawrence Avenue Group. The occupier had a written contract with Lipani Contractors to plow snow, but the agreement was silent on when and how salting should be done. Justice Cameron found that while the contractor had attended the site, there was “no evidence whether the ice formed before or after Mr. Lipani’s departure on January 2,” and crucially, “Lawrence retained the residual responsibility for ice that was not apparent, either by notifying Mr. Lipani or salting itself. Lawrence must bear the responsibility for melt from snow which it chose to leave near a pedestrian walkway rather than pay to remove it” (paras. 54–55).

The court concluded that “Lawrence has failed to establish a duty on Mr. Lipani, either in contract or in negligence, to remove the ice at the foot of the stairs. In the circumstances of this case I find Lawrence wholly responsible for the liability to Dr. Allen. Section 6(1) of the Occupiers’ Liability Act is not applicable” (para. 55).

Ontario courts make it clear that occupiers cannot depend solely on contracts with snow contractors. In Britt v. Zagjo Holdings Ltd., 1996 CarswellOnt 1186 (Gen. Div.), [1996] O.J. No. 1014, Justice McCartney scrutinized a condominium’s maintenance system, which had retained two independent contractors for snow clearing and sanding. The issue wasn’t just residual ice—it was a fundamentally incoherent system.

As Justice McCartney stated:

“I must, then, conclude on the evidence that the so‑called system used by the defendants was deeply flawed in that it contained no reasonable daily or even regular inspection or checking system to ensure that the heavily trafficked parking area was, in fact, reasonably safe for users … the defendants kept no records whatsoever as to how their so‑called system was working on a day‑to‑day basis, and did not even bother to have written contracts or written directions for the superintendents … or the independent contractors.”^[3]

As a result, the condominium corporation was held liable. Despite having independent contractors, the occupier’s failure to confirm competence or maintain a meaningful oversight system caused the statutory defence to collapse. The arrangement was labeled “deeply flawed,” underscoring the risk of relying on systems devoid of structure or documentation.

Why It Matters at Mediation

These cases demonstrate the evidentiary divide that often determines outcomes. For occupiers, success depends on producing evidence of diligence—contracts that cover the real risks, logs of salting and plowing, weather records, and oversight notes. For plaintiffs, the task is to expose contract gaps, highlight disorganized systems, or undermine the supposed competence of the contractor.

At mediation, these documents are often more decisive than the statute itself. An occupier who comes prepared with evidence of inspections and follow-up has leverage. One who relies only on the bare assertion “we hired a competent contractor” has very little.

Mediator’s Reflection

In my experience, these disputes rarely turn on abstract legal principles. They turn on the paper trail—or the lack of it. Occupiers who can demonstrate that they asked the right questions before hiring, required the right safeguards in the contract, and checked that the work was actually done, come into mediation with a real defence. Those who cannot usually face strong settlement pressure, regardless of how favourable the statute might look in theory. Section 6(1) may offer a shield, but unless the occupier has built it out of diligence and oversight, it can prove to be little more than a mirage.