Many strata corporations have amenity facilities, whether those be a common room, a gym, media centre or a separate club house facility. Some of those are even shared with neighbouring strata corporations. Few strata corporations probably stop to consider the liability issues that lurk in the shadows.
Amenity facilities are generally common property for which the strata corporation is responsible to repair and maintain under s.72 of the Strata Property Act (SPA). They often contain “common assets” (i.e. equipment and furniture) which the strata corporation is also required to keep in good condition. A failure to maintain common property has resulted in liability for damage to a strata lot – see Fudge v. The Owners, Strata Plan NW2636 2012 BCPC 409. Those same principles apply to injury to an individual – see Cater (Guardian of) v. Ghag Enterprises Ltd. (1991), 17 R.P.R. (2d) 98 (BCSC).
Strata corporations can also be liable for unreasonable levels of noise created by equipment located within the facilities themselves. In Chen v. The Owners, Strata Plan NW 2265, 2017 BCCRT 113 the strata corporation was required to pay damages to an owner where the hot tub, despite attempts to address the owner’s complaints, created a level of noise which created a nuisance at law.
The Occupiers Liability Act (OLA) imposes a specific obligation on an “occupier” to “take that [level of] care that… is reasonable to see that a person, and the person's property, on the premises… will be reasonably safe in using the premises”. The OLA defines an “occupier” as a “person who (a) is in physical possession of premises, or (b) has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises”. Cleary that is the strata corporation when it comes to the common property.
Under the OLA an occupier must act reasonably to address the safety of those persons using the premises. For strata corporations this means routinely inspecting the amenity facilities and the equipment located in it. It also means fixing problems and dangers promptly as they arise.
S.4 of the OLA permits an occupier to limit or restrict its liability but only by express agreement. In the case of a strata corporation that means having all persons using the amenities sign a waiver. A bylaw provision waiving liability is unlikely to be effective. Strata corporations with exercise facilities may wish to restrict access to only those persons who have signed waivers of liability. A bylaw or rule would be required to do so.
The strata corporation’s exposure to liability under the OLA doesn’t end simply because the amenities are being used by an owner for a private function. The strata corporation remains an “occupier” along with the owner or tenant reserving and using the amenities. (The definition of “occupier” expressly acknowledges that there may be more than one occupier at any given time).
The strata corporation is also liable under ss.3(2)(b) and (c) of the OLA for what takes place while the facility is being used by an owner, including the actions of third parties on the premises. This means the strata corporation could be liable for actions of guests at the function. As such, strata corporations which allow owners and tenants to reserve the exclusive use of amenity facilities should consider having those owners agree in writing to indemnify the strata corporation for any losses, damages, demands and expenses resulting from the use of the amenities. If something should happen, the strata corporation can more easily seek reimbursement from the owner or tenant.
An owner cannot waive claims on behalf of their guests. Each guest must do so individually. It is also doubtful whether an owner can be required to obtain their own liability insurance for the use of the facility since s.160 of the SPA makes it optional for owners to obtain additional insurance beyond that the strata corporation is required to place under s.149 of the SPA. A bylaw or rule (which is what would be required to establish criteria regarding use of the amenities) is unenforceable to the extent it contravenes the Act – see s.121 SPA.
The service of alcohol is often a concern to strata corporations. The Liquor Control and Licensing Branch considers the common room and other similar amenity areas as part of the owner’s “residence”. As such, a permit is not required as long as the alcohol is being served at a social event. However, strata corporations should still be concerned with respect to guests who consume too much. If they injure themselves on the common property there may be an apportionment of liability under the OLA if there was an unsafe condition such as sunken pavement or loose carpet. However, there is generally no liability should a guest leave a private party drunk and cause an accident - Childs v. Desormeaux 2006 SCC 18. An exception to that rule might arise in the case of minors - Lutter v. Smithson 2013 BCSC 119. Strata corporations wishing to assume no risks should ban the consumption of alcohol entirely.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
