The Liability of Leasing Public Buildings during a Pandemic

The Liability of Leasing Public Buildings during a Pandemic

By Andrew Skeith

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

While there are always risks that come with leasing publicly-owned halls and buildings, a pandemic can add a new dimension which municipalities, community leagues, and other public building owners should be aware of.

This article focuses on liability of the building owner in two situations:

1. Where an owner opens their facilities to the public, and a COVID-19 transmission occurs on the premises; and
2. Where an owner has rented their facilities to a third party, and a COVID-19 transmission occurs due to activities of the lessee taking place within the League’s facilities.

In these situations, an owner may be held liable through its duty as an “Occupier” under the common law principle of occupier’s liability, and the duties found in the Occupiers’ Liability Act. Alternatively, an owner may be held liable through the law of negligence.

In the first situation, the building owner would be an “occupier” and would owe a duty of care to all visitors to the building to ensure they are reasonably safe in visiting the facilities for any purpose. If the owner has taken “reasonable care” and therefore met its duty under the Act, they will not be held liable for any harm or loss resulting from a COVID-19 transmission on the premises.

Ensuring that all of the currently published public health guidelines relating to COVID-19 are followed at all times, as well as regularly sanitizing the premises and ensuring physical distancing markers and Plexiglas screens where appropriate, would ensure that the owner has taken “reasonable care” and would not be held liable, even in the event that a COVID-19 transmission occurs on the building's premises. Similarly, an owner which implemented all public health measures and sanitation practices would not likely be found to be negligent.

In the second situation, the owner would not be an “occupier” during the period of time the lessee was in control of the facilities and would not likely be held liable as an occupier. The owner may be found negligent if they did not ensure that the lessee also implemented appropriate physical distancing measures and adhered to public health guidelines.

To prevent a finding of negligence, the owner should include a term in the lease agreement requiring the lessee to comply with public health guidelines while in possession of the premises. Owners should also ensure that the premises are properly sanitized after each use by a renter or lessee.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca (riskcontrol[at]auma[dot]ca), or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.