A site contract that references negligence in their “We are Not responsible for” section is binding, provided that Gross Negligence is not proven. Gross Negligence will nullify any such negligence clause.
The Default at Common Law
The varying degrees of possible misconduct range along a continuum, including a progression from “mere” negligence, to “gross negligence”, and then to “wilful misconduct”. These terms are, of course, described variously in case law and legal dictionaries.
“Mere” negligence involves conduct described as:
- The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation: Black’s Law Dictionary.
- Carelessness amounting to the culpable breach of a duty: failure to do something that a reasonable man (i.e., an average responsible citizen) would do, or doing something that a reasonable man would not do: Oxford Dictionary of Law.
As one would expect, there is a higher hurdle for a claimant to prove that the negligence is “gross”:
- Conduct in which … there is a very marked departure from the standards by which responsible and competent people habitually govern themselves: Dictionary of Canadian Law.
- “A high or serious degree of negligence”. (Holland v. Toronto (City))
- A high degree of negligence, manifested in behaviour substantially worse than that of the average reasonable man: Oxford Dictionary of Law.
Article 1.36 of the 2002 AIPN (Association of International Petroleum Negotiators) Model Form International Operating Agreement also combines gross negligence with wilful misconduct, defining them collectively as follows:
Gross Negligence / Willful Misconduct means any act or failure to act (whether sole, joint or concurrent) by any person or entity which was intended to cause, or which was in reckless disregard of or wanton indifference to, harmful consequences such person or entity knew, or should have known, such act or failure would have on the safety or property of another person or entity.
The PJVA (Petroleum Joint Venture Association) October 2003 model Unit Operating Agreement includes:
“Gross Negligence” means:
- a marked and flagrant departure from the standard of conduct of a reasonable Person acting in the circumstances at the time of the alleged misconduct, or
- such wanton and reckless conduct or omissions as constitutes in effect an utter disregard for harmful, foreseeable and avoidable consequences….
Responsibility of landlord (RTA)
161. In addition to a landlord’s obligations under section 20, a landlord is responsible for,
(f) repairing damage to a tenant’s property, if the damage is caused by the wilful or negligent conduct of the landlord. 2006, c. 17, s. 161.
Provisions conflicting with Act void (RTA)
4. (1) Subject to section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void. 2006, c. 17, s. 4.