Plaintiffs injured in a slip and fall due to winter maintenance now face a higher burden with a recent amendment to the Occupiers’ Liability Act (“OLA”) imposing a new notice period requirement.
Bill 118 received Royal Assent on December 8, 2020, adding section 6.1. The amendment bars personal injury lawsuits arising from snow and ice unless a written notice of the claim is served within 60 days.
This article will explore the general ineffectiveness of the legislation by looking at the imbalance of obligations required by the amendment, a comparison with the Municipal Act notice requirement, and the futility of the provision based on winter conditions. We will explore the prejudicial effect this amendment will have on Plaintiffs and how a better-crafted policy could have achieved a more worthwhile goal.
Prior to the amendment, slip-and-fall actions did not have any general notice requirement. They were simply governed by the two-year limitation period set out in the Limitations Act, 2002. The only notice requirement was for those incidents involving municipal property, including falls due to snow or ice, which are subject to the 10-day notice provision set out in s. 44(10) of the Municipal Act, 2001.
Plaintiffs are required to determine the area of the incident and negligent conditions in order to establish their claim. Accordingly, it may seem commonplace that they would be able to identify, and notify, an occupier in short order.
In some circumstances, providing notice to an occupier may be straightforward, while for other Plaintiffs, this requirement is complicated and unduly onerous. First and foremost, compliance with any notice requirement assumes that the injured person is aware of the provision from the outset. The point of this amendment is to take advantage of those who are unaware and perhaps delay seeking counsel. Following the amendment to the OLA, many injured persons may be without recourse.
The Intended Purpose Misses the Mark
This notice requirement unquestionably favours insurers for occupiers and independent contractors, and it appears to be an attempt to limit litigation exposure, the ability for Plaintiffs to obtain compensation for injuries. The bill was proposed in response to snow removal operators facing considerable surges in insurance costs following an increase in slip-and-fall claims made against them. The Insurance Brokers Association of Ontario issued a statement in support of the new law, stating that the bill will encourage more insurance companies to write insurance for snow removal companies. The rationale behind providing 60 days’ notice was justified as an attempt to limit prejudice to the Defence with the passage of time. It may allow a Defendant an opportunity to interview witnesses, preserve records, or review video footage when they seemingly may be otherwise unaware of the incident.
This justification is not persuasive for several reasons.
The Imbalance of the Obligation:
The wording of s. 6.1 requires notice to “an occupier” or an independent contractor and ss. (7) provides clarity that as long as one “occupier” was provided notice, the action against other occupiers who did not receive notice is not barred.
However, the requirement for the party who receives notice to provide notice to any other party is not subject to any time requirement. Conceivably those parties would be under the same timing prejudice as they were prior to the amendment.
An “occupier” is not necessarily the same entity as the property owner. An occupier includes a person with physical possession of premises, or a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises.
A Plaintiff who falls outside a commercial property may be able to swiftly identify the name of the nearby shop on the premises. They would not necessarily be privy to the identity of a larger corporate structure, the property owner, a property management company, or an independent contractor without access to a more thorough investigation, most of which is likely not public record.
However, an occupier would be privy to most of that information and in the best position to advise the relevant parties of the claim. Despite their unique position to identify the relevant parties, they are not obliged to disclose this required information to the Plaintiff or any other party under any particular time requirement. Surely if that occupier intends to pursue a crossclaim or third-party claim, they should be required to notify that party in 60 days, as is the Plaintiff’s obligation.
Vuniqi v. Paramount Property Management et. al.1 was released on December 23, 2020, and is particularly on point. The court allowed the Plaintiff to add the winter landscape contractor as a Defendant four years after her fall.
In Vuniqui, the Plaintiff fell on ice in the parking lot of her own apartment building December 5, 2016. She hired a lawyer who notified the property management of the building January 30, 2017. In that notice letter, the lawyer asked if there was any third-party contractor. Despite this request, the apartment building failed to respond. It was not until the Property Management Defendant delivered its Affidavit of Documents and Statement of Defence in March 2019 that it had disclosed the contract and identified the snow removal contractor, a proper Defendant to the action.
Justice Williams found there was not enough evidence to rule on whether a “reasonable person” in the Plaintiff’s position would have discovered within two years of the slip-and-fall incident that she had a claim against the contractor.
Had s. 6.1 of the OLA been in force in Vuniqi, there would be zero effect on the outcome. The notice requirement would not bar the Plaintiff’s action against the potential Defendant as “an occupier”, given that the apartment building had been properly notified within 60 days.
The frustration among Defendants (and their insurers) regarding the delayed notice of slip- and-fall claims due to ice and snow is understandable. However, this frustration is often directed at Plaintiffs instead of their fellow occupiers or contractors. In Vuniqi, the potential Defendant argued that the Plaintiff, or the Plaintiff’s lawyer, did not exercise “reasonable diligence” in finding out about the contract with the occupier within the first two years post-accident. The court rejected this argument:
TQ has mischaracterized the issue. A party discovers a claim when they know of the four matters list in s. 5(1)(a) of the Limitations Act, 2002. There is no requirement that a party discover a claim within the two-year presumptive limitation period. Subject to the application of the ultimate limitation period in s. 15 of the Act, a party is only required to discover a claim at the time or before a reasonable person in the same circumstances would have first discovered it. That reasonable person is described in s. 5(1)(b) of the Act as a person “with the abilities and in the circumstances of the person with the claim.” Section 4 of the Act then provides that, once the claim has been discovered, a proceeding must be commenced within two years.2 [emphasis added]
Beyond asking the known occupier, what methods are available to the Plaintiff to ascertain a private commercial relationship? The Plaintiff is not privy to the terms of the contract. The occupier in this case had knowledge of the incident for two years and did not advise the Plaintiff of the contractor nor did they advise the contractor of the Plaintiff’s incident or claim.
Comparison to the Municipal Act
Incidents involving city sidewalks, curbs, roads, parks, or anywhere that is not obviously commercial or residential property fall within Municipal jurisdiction. Out of an abundance of caution, Plaintiffs must notify the relevant Municipality immediately, and often before conducting a complete investigation of the incident or having an understanding of the Plaintiff’s damages in order to comply with the 10-day notice period. Although this may aid the Municipal Defence, it has been said that Plaintiffs may “jump the gun” on initiating litigation due to this condition, where otherwise they may not pursue a claim.
The purpose for the 10-day notice requirement of the Municipal Act derives from the precise requirements to determine liability in those cases. Municipalities are obliged under s. 42(3) to meet the minimum maintenance requirements as the standard of care. In theory by providing 10 days, a municipality can determine the precise condition of the incident and take measurements before the area is disrupted.
Plaintiffs in municipal cases are also subject to a higher burden of establishing gross negligence under s. 44(9) in cases of ice and snow.
A Municipality’s obligations to maintain the premises for the general safety of the public are different from that of an Occupier under the OLA. Although the Notice provision may be punitive to a Plaintiff who is unaware of the requirement, it can be seemingly justified because of the nature of the duty and the funding from the public purse.
A private occupier does not need to be provided with such strict notice requirements. This is especially true for private parties who contract specifically to provide winter maintenance services for business purposes, or other revenue-generating sources such as a customer invited to shop at a mall.
Winter Conditions are Transient
The most obvious issue with the rationale of s. 6.1 is that winter conditions are transient. Allowing 60 days’ notice to an occupier does not provide any meaningful benefit to investigate as conditions can change hourly. It is irrelevant whether an occupier is notified of an incident 2 days, 20 days, or 2 years later; by the time they receive the notice, they could not observe or capture the precise conditions present the moment the incident took place.
What happens if notice is not served within 60 days? Getting around s. 6.1
Fortunately but unfortunately, if the Plaintiff died from the incident, the action can proceed without compliance with notice. Under both the OLA and the MA, death of a Plaintiff (as a result of the injury only) remains an exception.
If the Plaintiff did not die, subsection (6) of the OLA or (12) of the MA set out a two-part test for the court to allow a Plaintiff to maintain the action without complying with notice: 1) if there is a reasonable excuse and 2) if the defendant is not prejudiced in its defence.
Given the identical wording, counsel will argue the jurisprudence under the MA in applying the test for the OLA s. 6.1.
The Reasonable Excuse
The Ontario Court of Appeal in Seif v. Toronto3 reiterates a broad and liberal approach to a “reasonable excuse”.
Unsurprisingly, the jurisprudence under the MA considers a “reasonable excuse” in the context of the type of injury sustained in the incident. It would be unconscionable to bar an action for a Plaintiff who is rendered unconscious from an incident and in the ICU for weeks, unable to fulfil the notice requirement.
In Bramer v. Hamilton4, C.S. Glithero J. considered the opposite end of the spectrum of injuries to qualify as a “reasonable excuse”. Instead of the Plaintiff incapacitated by the injury and unable to provide notice, there are also Plaintiffs who delay litigation to see how their injury or damages develop. This approach was commended as a reasonable attitude:
In these notice cases, often reliance is placed on the nature and extent of the injury, but in the opposite sense that it was sufficiently serious that the plaintiff could not be expected to attend to the notice requirement earlier. I say, at the opposite end of the spectrum, there are injury consequences, such as those here, which it is reasonable to hope will cure themselves and to wait to see if that occurs, within a reasonable time, before taking any action. I suggest many responsible citizens would think it to be the right thing to do. In my opinion doing what many would think of to be right can qualify as constituting a reasonable excuse. I conclude that the plaintiff’s approach in this case was sensible in the circumstances given the uncertainty of her symptoms, both as to severity and as to persistence. I find that her failure to report earlier was not the result of ambivalence or carelessness, but rather that of a reasonable attitude for someone who within the 10 days could not reasonably be certain of what was going to happen.5
The legislation of section 6.1 runs contrary to this “reasonable approach”. The early notice period engages a litigation mindset from the outset, even for those cases who may not have significant claims. Hopefully, courts will adopt this reasoning in interpreting a “reasonable excuse” for those Plaintiffs who fail to comply with the 60-day notice period.
Other factors considered are the delay of the notice in terms of the elapsed time, how quickly the Plaintiff acts once the claim is discovered, and whether the notice requirement is publicized.
Prejudice to the Defendant
The second part of the test considers the prejudice to the Defendant due to the lack of notice. Prejudice is a fact-based inquiry.6
Although the MA jurisprudence is helpful on the first part of this test, it is less persuasive for the second branch and, arguably, should not be afforded the same weight as in the MA cases.
Under the MA, the Plaintiff can negate the presumption of prejudice by adducing evidence that the Defendant had taken steps to investigate the scene in spite of not having notice from the Plaintiff, or by the Plaintiff’s own investigation including timely photographs of the scene or the presence of a witness.7
The underlying assumption of providing notice, of course, is that the occupier was not aware of the incident at the time. Surely had they been alerted to an incident, completed an incident report, took photos, called for an ambulance, and had the names of witnesses and video, it could not be said that any prejudice was suffered.
This is much more likely to be the case of an occupier under the OLA than a Municipality. Occupiers often install video surveillance of their premises; they may be physically present at the scene at the time of the incident; or they may have been notified at the time of the incident by the Plaintiff or witnesses.
Finally, there cannot be significant prejudice by a delay in notice when the incident is caused by transient winter conditions.
Grace J. in Patrick v. Middlesex (County)8 reiterates guiding principles set out by Leach J:
Courts also recognize that, as a practical matter, the extent of prejudice to a municipality resulting from delayed notice realistically may vary with the nature of the underlying conditions targeted by the plaintiff’s complaint. For example:
• Where the relevant underlying situation is stable and unchanged between the accident and the giving of notice to the municipality, then the timeliness of notice may not be material because there will be no relevant prejudice to the municipality’s opportunity to investigate the place and circumstances of the accident.
• Conversely, where the alleged underlying conditions targeted by the plaintiff’s claim are quite ephemeral (such as the presence of a small piece of transient debris on a sidewalk at a particular moment, or the extent of snow and ice on a road or sidewalk at the particular time an accident occurred), the timeliness of notice may be immaterial for different reasons. Notice given even a few days later realistically may not have provided the municipality with any opportunity to examine and document conditions as they existed at the time of the accident, so as to help its defence. Alternatively, the municipality’s ability to secure a record of snow and ice conditions, as well as contemporary maintenance efforts, may be more likely because of monitoring and recording systems designed to deal with such typically Canadian hazards.
• On the other hand, where the alleged conditions underlying the claim could have been investigated and documented by the municipality over a sustained period following the accident but have subsequently been altered by intervening forces, (such as the intervening resurfacing of a road, or shifts in the precise relative elevation of sidewalk bricks owing to the freeze/thaw effects of an intervening winter), delay in giving notice may have caused the municipality very real prejudice. [Citations omitted]
A breach of section 6.1, requiring notice within 60 days, cannot truly be said to cause prejudice given the ephemeral conditions underlying the claims.
The comments regarding records and relating to snow and ice maintenance bring us to the next point. To support a viable defence, occupiers and/or contractors require records of maintenance. Insurers may do better to limit litigation exposure by requiring detailed records or logs of service by their insureds. More importantly, reduce payouts by reducing incidents.
Alternative Approaches to Reduce Exposure: Reduce the Incidents!
The intent of amending the OLA to add s. 6.1 is solely an attempt to limit litigation exposure or payouts by insurance companies, not limiting these claims from arising in the first place. Reducing the number of claims would not only reduce litigation awards and costs; it would also reduce the cost on the health-care system from injuries sustained in these incidents.
Legislation to achieve the reduction of slip and falls could involve:
- Requirements for occupiers to increase the frequency of their inspections;
- Requirements for occupiers to increase the quality of their inspections;
- more stringent requirements on the frequency of winter maintenance;
- more stringent requirements on the quality of winter maintenance;
- requirements on contractors to provide logs or records detailing their performance;
- requirements for occupiers to preserve video surveillance footage to address performance issues and possible claims;
- GPS tracking of contractor vehicles on premises;
- requirement for third-party contractors to post their contact information for public areas so members can report issues with maintenance and/or incidents; and
- an increase of funding for municipal maintenance.
The Final Verdict
Section 6.1 may bar some otherwise meritorious and perhaps significant claims who fail to comply with notice and cannot meet both branches of s. 6.1(6) of the OLA. This may reduce litigation payouts for insurers.
It is quite ineffective at reducing litigation payouts for those who do comply with the minimum requirements of notice.
Many Defendants will not have the benefit of timely notice, as only notice to one occupier is required. Notice will also not necessarily support the defence as the winter condition is transient. Lastly, encouraging a litigation mindset early on may have the opposite effect by encouraging a higher number of claims that may not have been pursued otherwise, resulting in higher litigation costs.
The best way to reduce litigation exposure is to reduce the number of incidents. Advising occupiers to take proper precautions is always most effective.
OLA s. 6.1:
Notice 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 60 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been personally served on or sent by registered mail to at least one person listed in subsection (2). 2020, c. 33, s. 1.
(2) The persons referred to in subsection (1) are the following:
1. An occupier.
2. An independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred. 2020, c. 33, s. 1.
Copy of notice
(3) An occupier that receives notice under subsection (1) shall personally serve a copy of the notice on, or send the notice by registered mail to,
(a) any occupiers of the premises during the relevant period in which the injury occurred; and
(b) any independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred. 2020, c. 33, s. 1.
(4) An independent contractor employed by an occupier to remove snow or ice on the premises that receives a notice under subsection (1) shall personally serve a copy of the notice on, or send the notice by registered mail to, the occupier that employed the independent contractor. 2020, c. 33, s. 1.
(5) Failure to give notice in accordance with subsection (1) is not a bar to the action in the case of the death of the injured person as a result of the injury. 2020, c. 33, s. 1.
(6) Failure to give notice in accordance with subsection (1) 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. 2020, c. 33, s. 1.
Notice effective against all persons
(7) For greater certainty, the limitation on bringing actions after the 60-day period set out in subsection (1) no longer applies if notice is provided in accordance with that subsection to any person listed in subsection (2), even if the action is to be brought against a person that did not originally receive the notice. 2020, c. 33, s. 1.
Municipal Act s. 44(10)
(10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to,
(a) the clerk of the municipality; or
(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities. 2001, c. 25, s. 44 (10); 2017, c. 10, Sched. 1, s. 4.
(11) 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. 2001, c. 25, s. 44 (11).
(12) 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 municipality is not prejudiced in its defence. 2002, c. 24, Sched. B, s. 42.
- 2020 ONSC 7934 (CanLII). (“Vuniqi”)
- Ibid at paragraph 31.
- 2015 ONCA 321.
- 2015 ONSC 713 (CanLII).
- Ibid at paragraph 98.
- Zogjani v. Toronto (City) 2011 ONSC 1147.
- Seif at paragraph 56.
- 2018 ONSC 7408 at paragraph 78.