The Occupiers’ Liability Amendment Act now mandates that notice of a claim be provided within 60 days of the accident if it involves an injury due to ice and snow. I have reported this change in an earlier article.
Why the change? Well, it appears that rates are too high for contractors, insurers are simply not providing coverage or the number of insurers providing coverage has declined. So how will the 60 days reduce rates and lead to more insurers re-entering the market? Let’s examine the reasons provided to justify the notice period.
- It will help contractors defend against lawsuits by allowing them to gather relevant evidence after 60 days’ notice.
The assumption made is that within 60 days of notice, the contractor or the insurer will not be subjected to failing memories and will be able to defend more effectively. Do you know how many snow contractors keep records of attendances for winter maintenance? In my 20 years, I would put it at 50%. If there are no records of attendances or work performed, tell me how someone is going to remember if or when they attended the scene to perform winter maintenance. Do you recall what specific job or task you performed two months ago on a specific day, time, or location? Of course not. Most people couldn’t tell you what they had for dinner a week ago.
There is the possibility of interviewing independent witnesses and I will concede that the memory following an accident is fresher. However, will the insurer expend the monies necessary to conduct the interview? Will the witness want to speak with the insurer?
2. Legal costs are on the rise and awards are getting bigger.
This is true. It’s called inflation. This notice requirement will have no impact whatsoever on costs or the value of damages.
3. The new criteria around snow removal liability will encourage insurance availability to return in Ontario.
This is a nice goal. Unfortunately, there is no guarantee that insurers will re-enter the market to provide liability coverage. This is simply wishful thinking at this juncture.
4. It will reduce the number of frivolous or bogus slip and fall claims.
What is really being said here is that it will stop lawyers from encouraging people to commence lawsuits that they might not have otherwise started but for the lawyer. Of course, it is the lawyer’s fault that someone wants to exercise their rights. This is not how it works. I may make my services available to the public through advertising, but I do not encourage people to commence lawsuits. I simply provide them with my opinion on the viability of the claim.
I believe the changes coming are simply an attempt at gas lighting the public. The real intent of the 60 day notice is to give insurer’s an opportunity to deny a legitimate claim simply for failing to provide notice. As well, it will be used during negotiations to reduce payment of damages based on what really amounts to a clerical error on the part of the injured party.
I would like to add one last point. I anticipate that this new notice requirement will inundate property owners, contractors, and insurers with notice letters. This will require insurers to undertake numerous investigations since that is the whole point of the notice requirement. The unintended consequence will be an increase in expenditures for investigation. As well, the deluge of notice letters will inevitably impact the insurer’s assessment of risk and the amount paid in premiums regardless of whether a claim is issued.
- Tullio A. D’Angela
December 14, 2020