The end of summer is nearly here, and with it, a cautious return to normalcy as people return to work, school, and approved social activities. The influx of individuals back into public life will offer a much-needed respite for many Ontario business owners, especially those whose incomes depend on active commuter flows. However, for the unwary, it can also be a source of liability, as greater foot traffic can lead to an increased risk of injuries from slips and falls. Accordingly, it is essential for owners to be mindful of their property maintenance obligations and to take note of recent changes under Bill 118, An Act to amend the Occupier's Liability Act (the "Act").1
The Act requires individuals injured due to snow or ice to personally serve or send by registered mail a written notice of their claim stipulating the date, time and location of the incident, to either an occupier of or an independent contractor employed to remove snow or ice from the premises where the incident occurred within 60 days after its occurrence ("Notice").2 Previously, notice of a claim had to have been provided within two years after the incident. Where Notice is provided, the two-year limitation period during which the claim itself must be commenced remains unaffected by the Act.
The Act is far-reaching: it encompasses all types of property, including commercial centers, office complexes, and recreational spaces, as well as the walkways, driveways and parking lots attached to them. The Act does not apply to injuries sustained on public highways or roads occupied by the Crown or any municipal corporation. While most Ontarians are loathe to turn their minds to snow and ice at this very minute, the dangers posed by incoming inclement weather and the need to protect against them make understanding the Act essential learning for all occupiers and independent contractors.
The primary objective of the Act is to protect business owners who serve as occupiers and independent contractors. The use of Notice aims to do this in three ways. First, it seeks to dissuade frivolous claims by forcing injured individuals to act expeditiously in deciding whether or not to pursue a claim and provide Notice. Second, it seeks to ensure that, where a claim may be pursued against an occupier or independent contractor, they are forewarned and able to identify and preserve the evidence required to mount an effective defence. Evidence can include security camera footage, witness statements, and other evidence that is difficult to secure with changing winter conditions and the passage of time. Cumulatively, these two prongs of protection create a third, as they seek to provide a stable snow and ice removal industry where insurance providers can provide affordable coverage for snow and ice removal businesses and the premises they serve.
Failure to give Notice will not bar an action if the injury resulted in death. Similarly, if a judge finds a reasonable excuse for the injured party's delay and that the defendant is not prejudiced in their defence, the failure to give Notice will not be a bar to the action. The Municipal Act, 2001 contains similar exceptions.3 "Reasonable excuse" under the Municipal Act, has been interpreted broadly and liberally and has been determined by the Ontario Court of Appeal as capable of including, among other things, an injured party's mental health issues. In determining whether a defendant was prejudiced in their defence under the Municipal Act, Ontario courts have focused on whether the injured party's failure to give notice prevented the defendant from conducting a timely investigation and collecting evidence related to the incident.
The Act also imposes obligations on occupiers and independent contractors who receive Notice vis-à-vis each other. An injured individual need only serve one of either the occupier or independent contractor Notice. The claim itself does not need to be made against the person to whom Notice was first served, but can be against any person thereof provided that Notice is served on at least one person specified in the Act. Once one person receives Notice, they must personally serve or deliver by registered mail a copy of the Notice to all other relevant persons specified in the Act. The provision of Notice by an occupier or an independent contractor to the other is therefore essential to providing due warning to all relevant persons that a personal injury claim may be filed against them.
The Act neither provides a timeframe for occupiers and independent contractors who receive Notice to forward it to the appropriate persons, nor outlines consequences for failing to do so. It would be wise for any occupier or independent contractor who receives Notice from an injured individual to forward it to any other occupiers or independent contractors as soon as possible. All persons should be given time to investigate the incident, rectify the issue that led to the injury, and preserve evidence. While it is unclear at this time how delayed Notice will be dealt with by the courts, all occupiers and independent contractors must be given the opportunity to investigate claims in order to avoid prejudicing their defence.
1 Bill 118, An Act to amend the Occupiers' Liability Act, 1st Sess, 42nd Leg, Ontario, 2020, c 33.
2 Occupiers' Liability Act, RSO 1990, c O-2.
3 Municipal Act, 2001, SO 2001, c 25 s 44(12)
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