Canada: Snow And Ice Claims – The Occupiers' Liability Amendment Act. 2020 – New 60 Day Period For Notice Of A Claim

The Occupiers' Liability Amendment Act. 2020¹ (the "Act") came into effect on December 8, 2020. The Act is short yet it has great ramifications for everyone – including residential and commercial landlords, property managers, tenants, sub-tenants, licensees, home owners and more – especially as we are now in the winter season.

What Is the Purpose of the Act?

According to the Parliamentary debates on the Act, a 60 day notice period is required for potential injury claims due to snow or ice "....because, currently, insurance costs for snow and ice management companies are skyrocketing due to an increased risk of slip-and-fall lawsuits. Some insurance companies have stopped providing coverage to this sector altogether. This lack of insurance, or lack of affordable insurance, has forced many small snow removal companies out of business, leaving Ontarians wondering who will clear the snow and ice this winter......Under the current rules, property owners, their tenants, commercial snow and ice management companies can face lawsuits up to two years after someone falls. They may not even know that someone has fallen. As a result, many small businesses have been hit with frivolous, yet crippling, injury lawsuits. This has become so common that insurance providers have hiked up their premiums and deductibles across the board for the entire snow and ice management industry, including for companies with no active lawsuits against them..... When insurance providers know the risk in a timely manner, they can confidently offer renewal and price accordingly, rather than basing their models for yearly insurance rates on the possibility of getting served two years down the line."

The Act results in a 60 day window for a complainant to give notice of a possible claim for the recovery of damages for personal injury caused by snow or ice, to:

• an "occupier"; or
• an independent snow contractor employed by the occupier during the time when the injury occurred. The only exceptions to the 60 day period are:
• where the plaintiff has died from the injury; or
• where a judge finds that:
  • there is reasonable excuse for failure to give the notice or it is defective; and
  • the defendant is not prejudiced in its defence.

For clarity, if the proper notice is given during the 60 day period, the claim can be brought later, subject to the 2 year limitation period. However if the notice was not given in the 60 day period or was deficient, then subject to the 2 exceptions noted, a claim cannot successfully be made and the 2 year limitation period will not apply for a claim.

Who is an "Occupier"?

Under the Occupiers' Liability Act, Ontario: "occupier" includes,

(a) a person who is in physical possession of premises, or

(b) 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,

despite the fact that there is more than one occupier of the same premises.

That definition will cover landlords, property managers, tenants, sub-tenants, licensees and contractors depending on the circumstances

What Are the Requirements for the Notice?

Written notice must be given within 60 days after the occurrence of the injury. The notice must include the date, time and location of the occurrence, and must be personally served on or sent by registered mail to one or both of the occupier or snow contractor.

What happens if the Notice is served on only one of the Required Recipients?

If the occupier receives the notice, it is required to give a copy (by personal service or registered mail) to:

• all other occupier(s) of the premises; and
• to any independent snow contractor employed by the occupier;

in each case at the time the injury incurred.

If the independent snow contractor employed by an occupier receives the notice of claim, then it must give a copy to the occupier that is the employer (who in turn is required to give a copy to all other occupiers, if any).

Once the Notice is properly given by the plaintiff to at lease one party, the notice is effective against all persons.

What is the Effect of Giving the Notice?

By giving the notice within the 60 day period, the plaintiff preserves its right to bring the actual claim at a later date (subject to the 2 year limitation period) including against persons who did not originally receive the notice.

What Does the Act Mean for Occupiers and Snow Contractors?

They will have notice of potential snow and ice claims much faster as compared with the prior 2 year limitation period for claims to be made. At the same time, the early notice may result in increased insurance premiums pending the claim but also allow for more timely due diligence to defend the claim, given memories are fresh, staff are less likely to have changes and surveillance footage may still exist. Knowledge of a fall may also allow the occupier/contractor to reassess the snow services provided and make any necessary changes to reduce the risk of someone else falling.

Lessons

1. Interestingly, the Act is not limited to "falls" from snow or ice so an injury caused by snow or ice also requires the 60 day notice (e.g. excess snow or ice falling from a rooftop and injuring a person).
2. Occupiers who employ independent snow contractors should include in their contract a clause regarding the notice obligations on each party. Otherwise, notify the contractor now of the Act's notice requirement if the contractor receives notice about a possible claim. .
3. A due diligence policy for snow/ice claim notices may also be worthwhile to implement for larger projects to prepare an accurate and timely defence file.
4. Occupiers should have (if they don't already) an external video system to monitor common areas and retain all footage for more than 60 days (since a notice sent by registered mail within 60 days may not be received until afterwards and due to the exceptions to the 60 day period).
5. The "reasonable excuse" exception is not defined in the Act but has been dealt with in cases involving municipalities and the 10 day notice period under the Municipal Act for possible claims. In those circumstances, Courts have given a more "broad and liberal"² meaning to that phrase by looking to the plaintiff's physical and mental capacity (a mental illness, medical incapacitation or severe injury) as well as the length of the delay, discoverability of the injury (the severity of some may only appear over a longer period) other extenuating factors. It will be a very fact dependant determination.
6. Claimants will need the potential defendants' names and addresses (possibly including the snow contractor) and some occupiers have this readily available while others may not. An occupier's insurer may require the occupier to post the necessary information in a common area as the insurer will want prompt notice of potential claims.
7. Since notice is not required to everyone who may be liable, there may be lawsuits that arise between occupiers for failure of the occupier who received notice, to advise other occupiers who may be liable. . Land owners should ensure that their property managers, tenants and sub-tenants etc. are aware of the Act and the notice requirements.

Footnotes