Recent amendments to Ontario’s Occupiers Liability Act

Topic: Civil Litigation, Personal Injury January 15, 2021 by Michael Beeson & Chelsea Packman

Don’t let that notice period slip away!

Recent amendments to Ontario’s Occupiers Liability Act have been announced that aim to make it more difficult for plaintiffs to be compensated for injuries they suffer related to slips or falls. Bill 118 received royal assent on December 8th and imposes a significant change to the timelines for a plaintiff to commence an action for their injury. Prior to these amendments, individuals could commence an action against an occupier for these injuries for up to two years without notice; however, the new amendments require that notice be provided within 60 days of the injury. No date has been announced yet for when these amendments will actually come into force, but it can be expected that the amendment will have quite the impact for plaintiffs moving forward.

Under the Act, an occupier includes a person who is in physical possession of a premises or a person who has responsibility for the condition of the premises. Therefore, an occupier can include the person living on the premises, landlords, business owners or independent contractors that are hired to remove snow and ice. Under the new amendments, no action can be commenced against an occupier or an independent contractor unless written notice is provided within 60 days of the injury.

The written notice must include the date, time and location of the occurrence and must be personally served or sent by registered mail to an occupier or an independent contractor employed by the occupier to remove snow or ice. Notice within the 60-day time period is effective against all persons involved, even against a person that did not originally receive notice. This is because an occupier or independent contractor who receives written notice has an obligation to personally serve or send the notice by registered mail to any other occupier of the premises during the relevant period and to any independent contractor employed by the occupier to remove snow/ice during the relevant period.

With that being said, failure to provide notice within 60 days is not an absolute bar from commencing a personal injury claim. The amendments include two exceptions to the 60-day notice period. First, the failure to provide notice is not a bar to an action in the event of the injured person’s death as a result of the injury. Second, insufficiency of notice is not a bar if a judge finds that there is a reasonable excuse for the insufficiency of notice and the defendant is not prejudiced in its defense.

What constitutes a reasonable excuse is not known at this time; however, similar legislation under the Municipal Act can provide some guidance in what judges may consider reasonable. Under the Municipal Act, individuals must give notice within 10 days of an injury occurring on municipal property, unless they can give a reasonable excuse for not providing notice. Generally speaking, the fact that an individual did not know about a notice period is not an excuse for failing to provide notice.  Some factors that the courts have considered when determining if an excuse is reasonable under the Municipal Act include:

  • Whether the plaintiff was capable of forming the intention to sue within the notice period;
  • The length of the delay;
  • Any delay in the realization that the injury is serious;
  • The seriousness of the injury;
  • The type and length of treatment for the injury.

The new 60-day notice period pursuant to Occupiers Liability Act is significantly longer than the notice period that applies to municipal property under the Municipal Act. The factors considered by the court may be significantly different. The courts will also decide what is reasonable excuse in each case.

While seeking legal recourse may not be the first thing that you think of after suffering from a fall, you should immediately seek legal advice to avoid any issue with a potential notice period. This remains true if you believe that you have missed the prescribed notice period. Depending on the facts, legal counsel may be able to help you provide notice and argue reasonable excuse.

 

Michael Beeson is a civil litigator at Low Murchison Radnoff LLP.

Chelsea Packman is an articling student at Low Murchison Radnoff LLP.

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