This blog syncs with one I wrote last summer, ‘The Winter Maintenance Puzzle: Recent Decisions on Municipal and Contractor Responsibility.”^[1]

Slip-and-fall cases in residential winter conditions are rarely straightforward, but when artificial ice accumulation caused by a building defect is added to the mix, liability becomes a moving target.

The scenario is a common one in Canada, and one I saw many times while in practice and now in mediations. A tenant slips on ice that had not formed solely from natural snowfall, but allegedly as a result of some defective infrastructure discharging water repeatedly onto the front steps or driveway, creating an icy condition when the temperature drops. Despite this, the owner and property management company still maintain that because the lease expressly required the tenant to salt and maintain the steps or driveway, the tenant remains responsible even where the hazard originated from a building defect.

This position — that contractual maintenance obligations override special circumstances of artificial hazard — sets the stage for a familiar yet highly contested battleground in Ontario occupiers’ liability litigation in Ontario.

Understanding “See That Persons Are Reasonably Safe” Under the OLA

Section 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2^[2] imposes on every occupier — including landlords and property managers — a duty “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe.” Courts have repeatedly confirmed that “see” in this context does not mean literal, continuous physical observation. There isn’t an “eyes-on at all times” obligation. Instead, the section has been interpreted to mean establishing and carrying out a reasonable system of inspection and maintenance that responds to foreseeable hazards.

In Waldick v. Malcolm, 1991 CanLII 71 (SCC)^[3], a visitor slipped on an ice-covered rural driveway after freezing rain, and the occupiers—who had no sanding/salting regime and relied on local practice of not sanding—were found liable because that custom did not meet the statute’s reasonableness standard. The Supreme Court of Canada held that the duty is one of reasonableness, not perfection, and that occupiers are not insurers of safety, but must be able to show that they had a real, functioning system for identifying and addressing risks as they arise.

In Tondat v. Hudson’s Bay Company, 2018 ONCA 302^[4], a shopper entered a Hudson’s Bay on a rainy day, stepped off the vestibule mat onto a wet tile floor and fell. The Court of Appeal upheld liability because the defendants could not demonstrate a meaningful inspection or maintenance program responsive to the wet conditions at the store entrance. A general policy was not enough. The Court required proof of active, condition-specific oversight, not just theoretical procedures.

By contrast, in Martin v. AGO et al., 2022 ONSC 1923^[5], a lawyer slipped on a small, transient puddle in a courthouse hallway (likely from a wet umbrella). The Court reaffirmed that occupiers meet the standard when they can show affirmative steps were taken to monitor and respond to conditions in the specific area where the hazard formed. The duty to “see” that the premises are safe is therefore not a command to watch every step, but rather a directive to anticipate and catch foreseeable hazards through a system that actually touches the ground, not just on paper.

Where defective infrastructure, such as a misdirected or leaking downspout for example, causes recurring ice in a specific location, courts will find that this can heighten what is considered “reasonable” in the circumstances, because the risk becomes foreseeable and site-specific. Lyng v. Ontario Place Corporation, 2024 ONCA 23^[6] is instructive on this. Ontario Place had closed the safe pedestrian bridge, funnelling concertgoers down a wet, slippery hill without barriers or warnings, creating a site-specific hazard it knew or ought to have known required active intervention. The Court of Appeal held that once a specific risk pattern is known or ought to have been known, the occupier’s duty expands beyond general winter maintenance and requires a targeted response that shows actual engagement with that hazard.

The Lease and the First Line of Defence

Where tenants are required by lease to clear and salt their own entrance, defendants often assert that the tenant is an occupier under section 1 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2^[7], and thus bears primary responsibility. The Court of Appeal reaffirmed in Taylor v. Allard, 2019 ONCA 107^[8] that the key factor in occupier status is control, not ownership — and where a tenant is expressly obligated to maintain the area, courts will often treat them as a primary occupier. Even when the lease does not contemplate defective infrastructure that exacerbates the hazard, property managers may still argue in mediation that contractual obligations still prevail even in such circumstances.

Artificial Hazards and the Duty Beyond “Natural Accumulation”

Ontario courts distinguish between ordinary weather-related hazards (like snow or ice forming naturally) and hazards that are artificial or infrastructure-related (for instance, water from a malfunctioning downspout freezing on steps). Where an occupier’s own building component, drainage system or other infrastructure actively contributes to the creation of the hazard, the standard of care under the Occupiers’ Liability Act rises. For example, in Lyng, the Court found that when a blocked access route forced visitors down a slippery, rain-saturated hill, the occupier’s duty required a “targeted response” to that known hazard — not simply standard winter salting or general lawn maintenance.

Property Management and the “Knowledge and Reporting” Argument

Despite the defective infrastructure being the alleged origin of the ice, I have seen on mediations that a property management company will often argue that a tenant—by virtue of possession and day-to-day control—is best placed to observe and report problems and to salt as needed. Ontario courts, however, assess the duty under s. 3(1) of the Occupiers’ Liability Act through a reasonableness lens. Occupiers must have and follow a system of inspection and maintenance that responds to foreseeable, site-specific risks, not perfection.

When the occupier’s own configuration or infrastructure creates or funnels a hazard (e.g., drainage or access arrangements that predictably cause a slick surface), the duty can require a targeted response to that known pattern, beyond generic winter routines. That’s the reasoning in Lyng.

Maintenance Contractors and Scope of Duty in the Face of Defective Conditions

Where a winter maintenance contractor is retained under a limited scope of work — such as clearing common walkways but not the steps to individual townhouse units — that contractor typically argues that it is not an “occupier” within the meaning of the Occupiers’ Liability Act for hazards arising outside its contractual control.

In MacKay v. Starbucks Corporation, 2017 ONCA 350^[9], a Starbucks customer slipped on an adjacent municipal sidewalk at the opening to a fenced Starbucks patio, and because Starbucks had created and maintained a designated pathway there (clearing/salting and directing customer traffic), the Court held it had assumed control of that precise sidewalk area and was therefore an occupier. The Court of Appeal confirmed that control, not the mere existence of a contract, defines who is an occupier, and liability turns on whether a party actually assumed responsibility for the precise area where the hazard formed.

That principle aligns with the Supreme Court’s reasoning in Waldick, where the Court held that liability under the Act arises not from abstract contractual language, but from the existence of a real, functioning maintenance system covering the hazard area in question. If a contractor denies responsibility for a particular zone, yet no other party implemented a responsive system over that same hazard location, the court may still scrutinize whether any occupier exercised meaningful control over the risk.

Owners and the Limits of Delegation in Defective Infrastructure Cases

Landlords frequently rely on lease clauses and maintenance contracts to argue that day-to-day responsibility for winter hazards has been delegated to tenants or third-party contractors. However, Ontario courts have made it clear that statutory responsibility under the Occupiers’ Liability Act cannot be fully subcontracted away where the hazard arises from the property’s own infrastructure or configuration.

In MacKay, the Court of Appeal confirmed that multiple parties may simultaneously be “occupiers” under the Act, and that delegation does not remove the owner’s duty where control is still exercised over design, structure, or overall safety management of the premises.

Mediation in the Shadow of Defective Infrastructure and Contract Allocation

For me as a mediator, these cases become a study in competing narratives, one focused on contractual allocation of maintenance, the other grounded in infrastructure failure. Each defendant arrives with a legal theory allowing them to occupy the moral low ground.

“We were not responsible for the ice because someone else had primary control.”

The real work of mediation lies in shifting focus from theoretical absolution to practical exposure under the Negligence Act^[10], where even a minor percentage of liability can justify a contribution payment. When artificial hazards and layered contracts collide, the mediator must navigate not just the law, but the psychology of parties determined not to be the “last occupier standing.”