Common Issues

August 11, 2021 Published by Huronia Chapter - By Ashley Winberg

Water Safety and your Condo

From the CCI Huronia Summer 2021 Newsletter

Residing in a condominium that is situated on a lake or has hot tub, pool and/or pond is a huge perk in the summer months, however, this perk comes with a significant amount of risk and exposure to potential liability.

Under Sections 26 and 117 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), a condominium corporation has a duty to ensure that no condition exists or activity is conducted on its common elements that is likely to damage the property or cause injury to an individual, and should an accident occur on a condominium corporation’s common elements the condominium corporation would be deemed to be the “occupier” for liability purposes. Accordingly, a condominium corporation that has a body of water on its common elements has an obligation to ensure that the presence of the body of water and use of same does not result in an increased risk of personal injury or property damage since the condominium corporation could be held liable for any damages and/or injuries sustained as a result of same.

A condominium corporation’s duty as the occupier of its common elements is set out in Section 3 of the Occupier’s Liability Act, 1990, R.S.O. 1990, c. O-2 (the “OLA”), which provides, as follows:

1. An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
2. The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises.
3. The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.

Section 3 of the OLA imposes an affirmative duty on a condominium corporation to ensure that its common elements are reasonably safe by taking reasonable care to protect persons while on the common elements from foreseeable harm. The standard of care expected of a condominium corporation as the occupier of the common elements is one of reasonableness, not perfection. Thus, a condominium corporation does not owe a duty to provide safety in all circumstances, but rather a duty to use reasonable care to prevent injury and damage from danger, which is known or ought to be known.

The obvious foreseeable injury associated with any body of water is drowning, however, it is also foreseeable that a body of water and/or the area surrounding it could cause other water-related injuries, such as spinal cord injuries, concussions, traumatic brain injuries and fractures. For example, diving in shallow water could cause a person to hit their head on the bottom of the body of water, which could result in spinal injury. At the same time, running and slipping on a pool deck could result drowning as well as a concussion. Accordingly, in order to comply with the Act and the OLA, a condominium corporation that has a body of water on its common elements should take reasonable steps to protect individuals from the foreseeable risks associated with the body of water and surrounding area by, at a minimum:

• prominently posting “No Diving” signs in the vicinity of any shallow areas;
• preventing individuals from diving off of any docks that are situated in shallow water by posting “No Diving” signs and erecting a barrier at the end of the dock to prohibit diving;
• posting “No Running” signs throughout a pool deck or a dock; and
• if the body of water does not require lifeguard supervision, posting “Caution” signs that comply with the requirements set out in any applicable municipal and/or provincial codes, by-laws, statutes and/or regulations.

In addition to the obligations set out under the Act and the OLA, most municipalities have by-laws that specify safety features that must be implemented by property owners around any bodies of water on their property, such as a fence of a certain height with a specific gate closure. Furthermore, Ontario Reg. 565: Public Pools made under the Health Protected and Promotion Act, 1990, R.S.O. 1990, C. H.7 also stipulates safety, supervision, notice and occupancy requirements for public pools, which include pools at condominiums that have six or more dwelling units.

Accordingly, before the temperatures rise and residents flock to a condominium corporation’s pool or lake to cool down, it is imperative that the condominium corporation ensure that its operation, maintenance and use of the body of water complies any applicable municipal and/or provincial requirements, and that it takes preventative steps to protect all persons on the premises from the foreseeable risks associated with the body of water and the surrounding area.

Ashley Winberg Elia Associates - Condominium Lawyer