Occupant (TPA)

Miaskowski v. Persaud, 2015 ONSC 1654 (CanLII)

[111] In Wheat v. E. Lacon & Co. Ltd. [1966], 1 All E.R. 582 (H.L.) at p. 593, Lord Denning described the word “occupier" as “a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who come lawfully onto the premises.” The Act defines occupier to include: (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 premises.

[112] The Act in s. 1 provides that there may be more than one occupier of the same premises.

[113] Typically, a tenant will qualify as an occupier of his or her leased premises. And there is case law that establishes that where a tenant controls or has responsibility over adjoining property (i.e., property not leased to the tenant), the tenant may also be an occupier of that property. See: Slumski v. Mutual Life, [1994] O.J. No. 301 (Div. Ct.); Pammett v. McBride Corp., 2013 ONSC 2382.

Trespass to Property Act, R.S.O. 1990, c. T.21

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; (“occupant”)

“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. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1).

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.