Amendments to the Occupier’s Liability Act
In December 2020, Bill 118, known as the Occupiers’ Liability Amendment act received Royal Assent, amending the Act to state that recovery of damages for personal injury caused by snow or ice may not be brought against the occupier unless written notice is served within 60 days of when the injury occurred. This will have a strong impact on slip and fall claims in Ontario.
Previous Law
Prior to the Amendment, the Occupiers Liability Act required only a 10-day notice, similar to provisions in the Municipal Act. The problem with the shorter notification period was that an injured party may be unable to identify the occupiers or independent contractors, who are also covered under the new rule, within 10 days. The extended period provides additional time for someone who is injured to identify who is responsible as well as get the notification to them in a timely manner.
New Provisions
The new wording of the law allows for a written notice of the claim within 60 days to an occupier or an independent contractor hired by the occupier to remove ice or snow. The notice must include the date, time, and location of the incident and it must be personally served or sent by registered mail. The occupier themselves or the independent contractor hired to remove snow and ice must receive the notice within the 60-day timeframe. It is possible to file slip and fall claims in Ontario against either the occupier or independent contractor if they have not received the notice as long as there is proof the notice was sent.
Occupier Responsibilities
Once an occupier or independent contractor receives notice, they must personally serve or deliver the notice to any other occupiers or independent contractors if they have not already been served. An independent contractor must also provide the notice to any occupiers, via registered mail or in person. However, the law does not specify how long the occupier and/or independent contractor have to provide this notice. The Amendment to the Occupiers Liability Act also does not provide for any consequences should an occupier or independent contractor not provide notice.
Purpose of Amendment the Occupiers Liability Act
Another reason for the change is to provide the occupier or independent contractor the opportunity to fully investigate the incident. The additional time allows for the interviewing of witnesses as well as the preservation of surveillance footage or activity logs.
There are exceptions to the rule, however…
- The 60-day notice is not required in cases of death or
- the person injured can provide reasonable reasons why notification could not be given, such as the inability to identify the occupier or independent contractor.
- There also can be no prejudicial impact on the defendant and the courts are to use “judicial discretion” on what constitutes prejudice or the reasonableness of the excuse.
What is an Occupier?
An occupier under Canadian law is someone who has responsibility and control over a premises and its condition, as well as the activities, carried on at that location. They also control who enters the property and may be held responsible even if there is more than one occupier who has the same responsibilities. For instance, a husband and wife may both be occupiers of their home. Royal assent refers to approval by the Sovereign of a bill that has passed both houses of Parliament. In other words, a bill that receives Royal Assent may not become law.
Late Discovery of Injury
It is possible that someone who slips and falls could be unaware of how serious their injury was until several days, weeks, or even months after the incident. For instance, in Seif v. Toronto (City), 2015 ONCA 321, the plaintiff was unaware that her injuries were serious until three months after the slip and fall. Therefore, she could not have given the 60-day notice. The courts ruled that this was an example of an exception to the notification rule. It is also important to note that being unaware of the notice does not constitute a reasonable excuse on its own, although if another extenuating circumstance exists in addition to being unaware of the rule could be considered a reasonable excuse.
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