Warning! Your Slip And Fall Accident Will Be More Complicated

On December 8, 2020, Bill 118, An Act to amend the Occupiers’ Liability Act, received royal assent.  As of writing this article, no date has been proclaimed by the Lieutenant Governor when the amendment is to come into force. 

Bill 118 provides the following:

Notice period — injury from snow, ice

6.1  (1)  No action shall be brought for the recovery of damages for personal injury caused by snow or ice against a person or persons listed in subsection (2) unless, within 60 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been personally served on or sent by registered mail to at least one person listed in subsection (2).

Same

(2)  The persons referred to in subsection (1) are the following:

   1.  An occupier.

   2.  An independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.

Copy of notice

(3)  An occupier that receives notice under subsection (1) shall personally serve a copy of the notice on, or send the notice by registered mail to,

  (a)  any occupiers of the premises during the relevant period in which the injury occurred; and

  (b)  any independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.

Same

(4)  An independent contractor employed by an occupier to remove snow or ice on the premises that receives a notice under subsection (1) shall personally serve a copy of the notice on, or send the notice by registered mail to, the occupier that employed the independent contractor.

Exception

(5)  Failure to give notice in accordance with subsection (1) is not a bar to the action in the case of the death of the injured person as a result of the injury.

Same

(6)  Failure to give notice in accordance with subsection (1) or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the defendant is not prejudiced in its defence.

Notice effective against all persons

(7)  For greater certainty, the limitation on bringing actions after the 60-day period set out in subsection (1) no longer applies if notice is provided in accordance with that subsection to any person listed in subsection (2), even if the action is to be brought against a person that did not originally receive the notice.

In cases involving injury due to snow and ice clients will now have 60 days to put the occupier and/or the snow contractor on notice of the claim from the date of the occurrence of the injury. Of course, if the injury is not due to snow and ice there is no notice requirement.  If there is a failure to give notice or there is insufficiency of notice, the court may not bar the action if the judge finds a reasonable excuse.  This provision is similar to s. 44(12) of the Municipal Act (https://bit.ly/2W13eXr), which provides:

(12) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence. 

Thus, I anticipate that the case law governing s. 44(12) of the Municipal Act will provide guidance on interpretation of s. 6.1. Case law appears to hold that there the interpretation should provide the plaintiff with the benefit of a broad and liberal interpretation of "reasonable excuse". If the party is prejudiced in its defence, failure to comply with the time limit is a bar.  Thus, the facts will determine whether there is a reasonable excuse.

I am concerned that a failure of an injured party to meet with a lawyer within the 60 days could adversely impact the injured party.  This is especially so if the excuse is not deemed to be reasonable.  As I see it, if the excuse if not reasonable then the action may be barred notwithstanding that there is no prejudice to the defendant.

If you are a lawyer, my recommendation is that you make it your practice to immediately put the third-party occupier and, if possible, the contractor on notice.  If you do not have information of the contractor then I would recommend that the notice letter requests the identity of the contractor.  I would also recommend that the letter outline that the occupier must put the contractor on notice, although the occupier is required by the amendment to do just that. 

Although there is no date or proclamation as of this date, I would strongly recommend that those injured in slip and fall accident involving ice and snow take immediate steps to speak with a lawyer.  Any delay could adversely impact their claim.

- Tullio A. D’Angela

Experienced Disability and Personal Injury Lawyer.

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