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BEWARE OF BILL 118: Proposed limits to the Occupiers’ Liability Act

Those injured in accidents are often faced with significant statutory and policy hurdles, which must be overcome to recover compensation.  It appears that further limits on the rights of injured Ontarians is rearing its head.  This time it’s  Bill 118, which is a private member’s bill to amend the Occupiers’ Liability Act.

The amendments proposed are:

Limitation 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 10 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been served on one or more of the persons listed in subsection (2).

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

a) An occupier.

b) An independent contractor employed by the occupier.

c) In the case of a tenancy described in subsection 8 (1), a landlord.

(3)  Failure to give notice is not a bar to the action in the case of the death of the injured person as a result of the injury.

(4)  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 defendant is not prejudiced in its defence.

The notice provision proposed is eerily similar to the limits imposed by  s. 44 of the Municipal Act and  s. 42 of the City of Toronto Act.  If these changes are implemented, the ramifications could be significant.

What constitutes a “reasonable excuse” has been addressed by the Court of Appeal in the case of Crinson v. Toronto (City), 2010 ONCA 44 (CanLII).  The court held that the trial judge erred in requiring the plaintiff to prove that he was so incapacitated in the ten days following the accident that he was unable to give notice to the defendant. The question to be addressed is whether in all the circumstances of the case, it was reasonable for the plaintiff not to give notice within the time frame pursuant to the statute.

In Crinson, the plaintiff was taking Percocet, a powerful narcotic. He was in a restrictive cast for 12 weeks and required intensive therapy for months. During that period, he was depressed and anxious about his ability to return to work and support his family. He was unaware that he was required to give notice until he was contacted by a lawyer. He gave notice shortly after that. In all the circumstances, the plaintiff had a reasonable excuse for his failure to give notice until June. As the defendant did not assert any prejudice to its defence, the action was not barred by s. 44(10) of the Act.

In Bramer v. City of Hamilton, 2015 ONSC 713 (CanLII) the plaintiff, a lawyer, failed to report he accident within 10 days. In considering whether there was a “reasonable excuse” for the delay in providing notice the court considered:

  • the plaintiff had no knowledge of the 10-day requirement;
  • the notice was “only 27 days late”;
  • the plaintiff had not spoken to a lawyer about her fall or potential claim;
  • the municipality’s website related to snow on sidewalk issues did not specify a limitation period; and
  • the plaintiff honestly did not know how long her symptoms would last and hoped they would resolve, in which case she would not have commenced a claim.

The amendments being proposed appear to be just another attempt to curtail legitimately injured Ontarians from recovering damages for the negligent actions of others.  The likely thinking is that this would help to reduce claims and, therefore, result in lower premiums.

I believe strongly in the law of unintended consequences, especially when government is involved.  I believe the following could result if the amendments pass as currently proposed:

  1. There will not likely be a reduction in claims. Lawyers, being the wily bunch that they are, will fight for those legitimately injured.
  2. A greater number of summary judgment motions may result as defendants will want to take a run at closing a file down sooner rather than later. Last time I checked, summary judgment motions are extremely expensive and time consuming.  Thus, I see litigation costs and insurance premiums continuing to rise.
  3. Winter maintenance contractors and property owners could take a lax approach in performing winter maintenance or maintaining records if they wrongly assume that missing the 10-day notice period will result in a claim being barred.
  4. Even if there is no prejudice, there still remains the possibility that someone with a legitimate claim can be barred from recovering damages because that person did not have a reasonable excuse for the delay. If this is the case, then the amendments would essentially reward negligent behaviour.
  5. The amendments will not result in improved investigations by insurers.  Just ask anyone involved in such claims against municipalities.
  6. The notice provision is untenable since it is almost impossible to determine whether a third-party contractor is involved within the notice period. Would notice to a property owner bind the contractor? If not, how can a plaintiff determine who is responsible for the winter maintenance?  The amendments are unclear and stand to make matters more complex.

If the concern is that premiums for property owners and winter maintenance contractors are not affordable, I do not see how these amendments will result in more affordable premiums.

We need to let the government know that this private member’s bill is not the way to go to improve insurance affordability, if that is indeed the goal.  I suggest that all concerned contact their MPP and let them know that Bill 118 should not become law in this province.

Written by Tullio D’Angela