January 29, 2021: Amended Ontario Occupiers’ Liability Act Negatively Affects Your Rights

BILL 118 – Amended Ontario Occupiers’ Liability Act – A Troubling Change to Your Legal Rights

As of January 29, 2021, the Ontario Occupiers’ Liability Act (the “Act”) was amended to negatively affect your rights to the benefit of insurance companies. If you have had a snow or ice slip and fall accident, please pay close attention to the change in the law that governs your accident. Bill 118 only addresses the Notice Period for winter slip and fall accidents.

The amended Ontario Occupiers’ Liability Act sets out the duties of those in physical possession or has responsibility for and control of a premises. The Act also sets out the notice requirements for making an injury claim pursuant to the Act.

What Does This Mean For You?

The amendment to the Act, s. 6.1 provides that you (the injured person) must serve notice in writing, personally or by registered mail, on the occupier(s) of the premises with the details of your accident, including the date, time, and place of your fall and contain your identity and contact information within 60 days of your slip and fall accident. Failure to meet the 60-day limitation period will bar injury claims except in certain situations, noted below.

Prior to January 29, 2021, if you were injured as a result of a slip and fall accident you were able to seek medical treatment and focus on recovery without immediate concern for serving notice on the owner, occupier, and/or winter maintenance contractor responsible for the snow and ice conditions causing your accident. Notice of your accident previously was required to be served within two years of your accident except if your slip and fall accident occurred on municipal premises which would require written notice within 10 days.

The amendment to the Act has changed the limitation period for serving notice of an accident on private property from two years to 60 days. This is very problematic for the injured person who may not be able to serve written notice within the 60-day time frame due to medical reasons; lack of knowledge of the new requirement; or lack of knowledge of the extent of their injuries or whether the injuries are going to be significant enough to be compensable.

Exceptions

It must be noted, there are two exceptions to the amended Ontario Occupiers’ Liability Act, one being if the injured person dies as a result, or if the injured person has a reasonable excuse for not providing written notice within the 60-day period; and the occupier is not prejudiced in their defense of the claim for damages. Failure to give notice in these particular circumstances is not a bar to making an injury claim for damages. The vast majority of cases will not fall within these exceptions.

Benefits the Insurance Companies

The effect of this change to the Act is a significant benefit to the insurance companies who provide insurance coverage to the occupiers of the premises. The insurer argues that a 60-day notice period levels the playing field by providing it knowledge of the claim at an early juncture which will help in obtaining evidence including obtaining video surveillance, maintenance records, and witness statements which is difficult to do two years post-accident. The insurer will also benefit from the reduction in the number of claims made, as many injured people will lose their right to litigate their snow or ice slip and fall accident because knowledge of this change in the law is not yet commonly known.

If you do not provide written notice of your snow or ice slip and fall accident on private property within 60 days you may lose your legal right to bring the claim unless your claim falls within the very limited exceptions.

What If You Had A Slip and Fall Accident?

What should you do if you have had a slip and fall accident? It may be difficult for you to determine who owns or is in control of the premises on which you slipped, fell, and injured yourself. If that is the case,

1. Speak to a lawyer immediately. A lawyer will quickly be able to determine this and will serve the appropriate written notice on your behalf to ensure your rights are preserved.
2. Have a family member or friend take photographs of the accident location as quickly as possible after your accident indicating the slippery conditions that caused your accident.

It is critical that you preserve your legal rights. You may not know soon after your accident if you want to litigate but if you don’t serve written notice within the 60 days required you may lose your right to do so later.

We are here to answer all of your questions.