Currently, in Ontario, if you slip and fall on ice or snow on a municipal sidewalk, you have to give the municipality written notice of your potential action against them within 10 days of your fall. Most people aren’t aware of this very short time frame to protect your right to sue. You can be excused from missing the 10 days but it is very fact driven and difficult and most municipalities will fight you on it.
As of December 8, 2020, a new law has come into effect if you are injured due to snow and ice on privately owned property. The Occupier’s Liability Act R.S.O. 1990, Chapter O.2, has been amended to require an injured individual to put responsible parties on notice of a potential action within 60 days of being injured on their property.
Specifically, the new law states:
- 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:
- An occupier.
- 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.
- (2) The persons referred to in subsection (1) are the following:
An “occupier” is defined in the legislation as someone who has physical possession of the premises or who otherwise has control of the premises. Most agree that an occupier or independent contractor can include property owners, property managers, snow plow operators and tenants.
It is important to note that you only have to put one of these parties on notice – they are then obligated to put the other potential parties on notice themselves. This will likely raise issues between these parties if they fail to provide notice to one another which can further complicate the lawsuit down the road.
Exceptions to the rule
As with the timeline for municipal slip and falls, there are exceptions to this 60-day time frame.
Unfortunately, one has to have died to be exempt or a judge has to either agree that there was a reasonable excuse for failing to give notice within 60 days of the fall or that the defendant was not “prejudiced” by the lack of notice.
One might argue lack of prejudice if, for example, the defendant was still able to carry out a complete investigation, despite more than 60 days passing since the fall. This might be tricky since the trigger for the injury was snow and ice and presumably, it has melted or otherwise changed since the incident
How to put the defendant on notice
In order to properly put the defendant on notice you must either personally serve your notice letter on the defendant or you must send your letter by registered mail. Your notice must include the date, time and location of the incident.
Once the notice is given, the injured party’s right to sue at a later date is protected. The individual still has two years from the date of loss in order to commence an action.
Why does this law exist?
Why has the government decided to enact this law? There have been ongoing reports in the past few years of increasing lawsuits against snowplow operators and property owners for injuries caused by snow and ice. These increasing claims have resulted in increased premiums for snowplow operators and property owners. Many have been unable to get any insurance at all because they are either denied coverage or the premiums are so high as to simply be unaffordable. Beyond this, increased claims results in increased payouts, which affect the insurer’s bottom line.
The defendants in these actions argue that the normal two-year limitation period robs them of the ability to investigate claims against them. How are they supposed to assess the condition of the snow and ice where the injury occurred a year or more after it happened?
However, it should also be kept in mind that the onus is on the plaintiff to prove that the area in question was unsafe when the injury occurred. If the plaintiff doesn’t have any evidence to establish that the area was unsafe, his claim will not succeed. In other words, you can’t successfully sue at the two-year mark with no evidence to prove your case. Even if evidence is produced, they can still defend the claim by producing, amongst other things, the necessary sanding and salting logs that they would have created during their time caring for the property. The defendant occupier doesn’t automatically lose simply because the snow and ice have melted.
Defendants further argue that their investigation would include review of surveillance and interviewing of witnesses, whose memories will fade over time. They should be able to do these things promptly and a delayed notice will compromise their ability to do so. However, that’s true for all lawsuits and this new time period only applies to ice and snow claims, implying that the reason for the quick notice is because of changing winter conditions, not preserving surveillance or witness statements. 60 days is still likely too long a period of time to allow a defendant to properly investigate a claim based on a snow and ice situation. As such, in most cases, this new law would not afford the defendant time to investigate, anyway.
The real reason for this new law is likely to protect insurance companies from claims by shutting out a large number of them simply because plaintiffs failed to meet an arbitrary timeline that they didn’t know about. Not only do people need to be aware that this time periods exists, often when they are dealing with their own recovery, potential surgeries and inability to work, but they also need to know who the occupier or the property owner is or who the snow plow operator is. This could be quite challenging for someone who just happened to fall in an area they are unfamiliar with. They also need to know what their service obligations are, i.e. that the notice letter is to be served personally or by registered mail. This is a significant onus to put on a person who is already stressed with the fallout of their injury. It is possible a court will accept a delayed notice but a defendant is unlikely to concede until the case is in front of a judge.
No doubt this law will end up shutting out many lawsuits for people who will have no recourse after they have been injured due to negligent conditions. It is another example of insurance laws intended to protect insurance companies.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.