By: Tobin Horton (Partner) and Blake Parker (Summer Law Student)
In Sprowl v. First Capital, 2025 ONSC 3628, an 80-year-old woman (the “Plaintiff”) slipped and fell on a patch of ice in the parking lot of a retail Plaza in Waterloo. As a result of the fall, she suffered a hip fracture which required surgery.
The Plaintiff brought an action against the plaza owner, (the “occupier”), and the winter maintenance contractor tasked with maintaining the parking lot of the plaza.
The Court concluded that the winter maintenance contractor fell short of the required standard of care in maintaining the Plaza parking lot. The court found that the winter maintenance contractor used inadequate methods for plowing, salting, and inspection. In particular, the contractor failed to properly salt and inspect areas between or around parked vehicles. Emails revealed the contractor was aware of the dangers posed by ice in these areas and chose not to address them.
The reason of interest in this case is that the Court went on to find that the property owner also failed to meet its standard of care. Even though they had delegated the plaza’s winter maintenance duties to the winter maintenance contractor, the Court stressed that occupiers cannot simply pass responsibility to third parties and absolve themselves of all oversight. This duty is found in section 6 of the Occupier’s Liability Act which reads:
6(1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.
The property owner was held liable despite the Court’s finding that it had acted reasonably in initially entrusting the winter maintenance of the Plaza to the contractor. However, it was the property owner’s failure to take reasonable steps to ensure that the contractor’s work was properly carried out that resulted in the breach of the Occupier’s Liability Act.
Signaling Stricter Duties for Occupiers
This decision emphasizes that anyone who hires a third party to maintain their property has a continuing obligation to actively monitor the work and ensure it is performed to a reasonable standard. Even when a property owner or other occupier hires a competent contractor and their agreement contains comprehensive contractual standards, as seen by Sprowl decision, the law asks more from the property owner.
This obligation presents a significant dilemma. Occupiers frequently outsource specialized tasks, such as winter maintenance, that lie beyond their own expertise or capacities. Many people ordinarily presume a contractor’s competency based on word of mouth or a business’ reputation alone. It seems unrealistic to expect property owners to have the technical knowledge needed to judge whether a contractor’s work meets the standards required under section 6 of the Occupiers’ Liability Act. For many, this imposes an onerous burden which exposes occupiers to considerable liability risks, even when they have hired reputable contractors.
Practical Steps to Minimize Exposure
An occupier should implement systems to be well-informed on the work of their contractors and promptly respond to red flags where work appears substandard. Occupiers should maintain records of their recurring due diligence as they may serve as vital pieces of evidence indicating an occupier’s reasonable oversight.
Some examples of measures occupiers can take to limit potential liability include:
Ultimately, the evolving jurisprudence signals that courts could demand proactive engagement from occupiers when delegating responsibilities to contractors. Property owners and other occupiers should be prepared to demonstrate not only that they hired competent contractors, but also that they maintain an active role in verifying the work is appropriately performed to keep their premises safe for occupants.
Before You Indemnify: Critical Insights for Contractors and Insurers
One of the most significant takeaways from this decision concerns the implications for a contractor’s duty to defend and indemnify a property owner.
In this case, at some point before the liability-only trial, the winter maintenance contractor agreed to both defend and indemnify the property owner, a common arrangement in winter maintenance liability disputes, likely due to an additional insurance clause. However, in this case, it appears that the contractor had not fully considered the property owner’s independent obligations under the lease, namely the duty to inspect and approve that the work was being done properly.
In this decision, the court held the property owner partially liable for breaches of its duty, a duty that was entirely independent of the contractor’s responsibilities. By agreeing to defend and indemnify the property owner without reservation, the contractor unnecessarily assumed exposure for liability that was not its to bear. In accordance with Seidel v. Markham, a party who has agreed to defend and indemnify another entity cannot subsequently look to that party for an apportioned contribution towards the judgment.
A more prudent approach would have been for the winter maintenance contractor’s insurer to agree to defend the property owner by paying the defence counsel’s fees and maintaining separate counsel, while expressly reserving the right to later argue that any liability apportioned to the property owner should be the property owner’s own to bear. Instead, since the contractor chose to defend and indemnify outright, there was no opportunity to seek contribution or indemnity from the property owner or the insurer after judgment.
This case demonstrates the importance of thorough due diligence by contractors before agreeing to defend and indemnify property owners. Counsel for contractors who are considering providing defence and indemnity to another party should thoroughly review the contract between the two entities in order to ensure that the party seeking indemnity does not have any obligations under the lease for the issues in dispute.
If the contract contains positive obligations, like those in this case, a prudent course of action may be to agree to defend and cover legal costs, but to withhold indemnification pending the trial outcome. This preserves the right to later seek recovery from the party seeking indemnity.