It has long been observed that Ontario’s Occupier’s Liability Act carried an inherent prejudice against occupiers in that there were no notice requirements for injuries arising from a slip and fall, thereby often preventing a thorough investigation into the circumstances surrounding the slip and fall. However, the Occupiers Liability Act was recently amended to add a section requiring a 60 day notice requirement for injuries arising from the presence of snow or ice. The notice must provide the date, time, and location of the occurrence, as follows: 

 

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).

 

It is further stipulated under subsection (2) that the notice must be personally served on the occupier or an independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred. 

 

Practically speaking, permitting a 60 day period to provide notice might not be overly helpful to the occupier because conditions will likely have changed in the intervening time.  However, the new notice requirements are much preferable to the situation that existed prior to the amendments.

 

For example, prior to the amendments, a claimant could wait two years to provide the occupier with notice of the injury.  At that point, any surveillance footage would likely be deleted, witness recollection would be compromised, and relevant maintenance records may have been deleted.  With the new notice requirement, at a minimum, there would be preserved records, and the maintenance personnel would have reasonably fresh recollections.  Depending on the location, there might even be contemporaneous surveillance footage that could still be accessed.  The prospects for a  more thorough investigation are obvious.

 

However, despite the new notice requirement, the amendment carves out the following exception:

           

Exception

 

6.1(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.

 

As such, if a judge finds that there is a “reasonable excuse” for the lack of notice and that the defendant is not prejudiced in its defence, then the 60 day notice requirement can effectively be waived. 

 

While there is no reported case law to date interpreting notice under section 6 of the Occupiers Liability Act, the newly added section is very similar to the notice requirements that already exist under section 44(10) the Municipal Act, 2001, which stipulates that no action shall be commenced against a Municipality unless notice is provided to the Municipality within 10 days of the occurrence.  Similarly, there is an exception in the event that a “reasonable excuse” can be provided for the lack of notice. 

 

It is therefore likely that courts will look to caselaw interpreting section 44(10) of the Municipal Act, 2001, for guidance when interpreting these new sections of the Occupier’s Liability Act.  Particularly, with respect to whether there was a “reasonable excuse,” the test will likely be whether in all the circumstances of the case, it was reasonable for the plaintiff to not give notice until she did.  Relevant factors will likely include the following:

 

  • The seriousness of the injury;

  • Whether surgery was required;

  • The duration of stay in the hospital;

  • The nature and amount of medications the person was taking;  and

  • The subsequent therapy required and the impact it had on the person’s career and mental health.

 

With respect to prejudice, the onus will likely be on the plaintiff to establish the occupier was not prejudiced in its defence.  The absence of prejudice can be established by demonstrating there are other sources of information such as:

 

  • The occupier having taken steps to investigate the incident despite the absence of notice;

  • Timely photographs of the scene;

  • Known witnesses; and

  • Available inspection and maintenance documentation.

 

Again, it is likely that the Courts will adopt these factors in interpreting the notice requirements under section 6 of the Occupiers Liability Act, as the underlying principles are effectively identical.

 

Should you wish to discuss how the Courts may interpret the new provisions going forward or discuss strategies in defending such claims, feel free to contact Giffen’s insurance defence team:

 

            Phil Garbutt – pag@giffenlawyers.com

            Stephen Brogden – stb@giffenlawyers.com

            Nolan Downer – nrd@giffenlawyers.com

            Nolan Kiddie – npk@giffenlawyers.com

 

Best regards,

 

 

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Giffen LLP - Response to COVID-19

 

In light of the continued spread of COVID-19 and more recently, the ‘global pandemic’ declaration by the World Health Organization, we at Giffen LLP have been taking various precautionary measures and adjusting our operations to ensure the health and safety of our employees, clients, families and the greater community. We will continue to do so as the situation changes. We are making every effort to ensure this situation does not impact the quality of service and support that our lawyers and staff are providing to our clients.

 

At this time our offices remain open but we are prepared in the event that all or some of our members need to work remotely. We have technology in place that enables us to do so in an efficient and effective manner, allowing us to provide uninterrupted service to our clients as necessary.

 

To protect our internal community, we have enhanced our office sanitation efforts and put policies in place for business and personal travel, events and meetings. We also continue to provide our employees with the most up-to-date health and safety procedures as outlined by Health Canada, Ontario Health Agency and Region of Waterloo Public Health.

 

Please do not hesitate to contact your relationship partner, or me, if you have any questions, or if we can be of assistance in guiding you through these new challenges.

 

We greatly value our relationships with you. We are confident that we will get through this together and wish everyone the best during this difficult time.

 

Yours truly,

 

Philip A. Garbutt, Managing Partner

Giffen LLP

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Welcome, Tyler Nivins!

Tyler Nivins

 

Giffen Lawyers welcomes Tyler Nivins as an associate lawyer.  Born and raised in Kitchener, Ontario, Tyler earned his BA (Honours) from the University of Western Ontario in 2011 prior to receiving his law degree from the University of Birmingham in the United Kingdom in 2019.  Great to have you with us, Tyler!

 

To learn more about Tyler's practice, please go here

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By: Greg A. Carr

 

With a few specific exceptions, an employer has an absolute right to terminate an employee at any time.  There do not need to be performance issues, disciplinary issues, or any other justification for the termination.  Notwithstanding, the law protects employees by requiring an employer to provide the employee with reasonable notice of their termination, or alternatively, paying them an amount of money in lieu of receiving reasonable notice.

 

So what is reasonable notice?  Reasonable notice is governed by two different regimes – (1) the Employment Standards Act, 2000 (“ESA”) and (2) the common law (judge-made law). 

 

 

The Employment Standards Act

 

Pursuant to the ESA, an employee who has been employed for at least 3 months, is entitled to reasonable notice of:

  • one (1) week, if they have been employed for less than a year;
  • two (2) weeks, if they have been employed for more than 1 year, but less than 3 years;
  • one (1) week per year of service if they have been employed for more than 3 years, to a maximum of eight (8) weeks’ notice.

In addition, an employee may be entitled to “severance pay”, if they have been employed for more than 5 years, and their employer has a payroll exceeding $2.5 million.  In such circumstances, in addition to the notice requirements above, the employee is entitled to one additional week’s pay per year of service (to a maximum of 26 weeks).  For example, an employee who is terminated by an employer with a payroll exceeding $2.5 million, who has been employed for 10 years, would be entitled to reasonable notice (or pay in lieu) of 8 weeks, and an additional 10 weeks’ severance pay.

 

 

The common law

 

Where the ESA does not apply, an employee is entitled to reasonable notice at common law.  In determining reasonable notice at common law, courts will consider a number of factors, including the employee’s age, education, role they held, and likelihood of re-employability in that or a similar position.  Based on the factors to be considered, the notice period may vary greatly depending on the case, and the ultimate notice period is informed by what judges have found to be a reasonable notice period in similar cases in the past.  While a number of factors are involved, the guiding principle at common law is a notice period of 1 month per year of service.

 

 

How do I know if it’s the ESA or common law that applies?

 

Whether it is the ESA or the common law that establishes the reasonable notice period will be determined by the termination provisions of an employment contract.  The common law will apply unless the employee has entered into a legally enforceable employment contract limiting the employee to “ESA minimums” upon termination.   

 

Even where an employment contract purports to limit an employee’s entitlement to ESA minimums, the clause may not be enforceable.  There is likely no issue in employment law more often litigated than the enforceability and applicability of a termination clause.  Courts have established strict requirements which must be contained in a termination clause, such as providing for reasonable notice and the continuation of benefits.  Where the clause does not comply with the requirements established by the courts, or runs afoul of the ESA, the clause will be unenforceable and the common law notice period will apply.

 

 

What is the employee entitled to during the notice period?

 

While there are some exceptions, generally speaking, an employee is entitled to their entire remuneration package throughout the notice period.  This includes not only wages and health benefits, but can include pension contributions, RRSP matching, bonuses, company cell phone reimbursement, company vehicle reimbursement, and any other benefits that arise out of employment. 

 

 

Please note that this article is for information purposes only and is not intended and should not be relied on as legal advice.  If you have any questions about your rights as an employer or employee about this, or any other employment matter, please contact Greg A. Carr at Giffen LLP, and we would be happy to meet with you to discuss your matter and determine how we can best assist you moving forward. 

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Welcome, Jacqueline Fitzpatrick!

 

Giffen Lawyers LLP welcomes Jacqueline Fitzpatrick as an associate lawyer. Originally from Ariss, Ontario, Jacqueline earned her BA (Honours) from the University of Guelph prior to receiving her Juris Doctor from Lakehead University in 2017.  Great to have you with us, Jacqueline!

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Welcome, Emily Metcalfe!

 

Giffen Lawyers LLP welcomes Emily Metcalfe as an associate lawyer in our Family Law department.  Raised in Waterloo Region, Emily received here undergraduate degree from the University of Regina, before graduating from Queen's University with her Juris Doctor in 2018.   Great to have you with us, Emily!

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Welcome, Nolan Kiddie!

 

Giffen Lawyers LLP welcomes Nolan Kiddie as an associate lawyer. Originally from the London area, Nolan attended Brock university before receiving his Juris Doctor from Windsor University and the University of Detroit Mercy.  Great to have you with us, Nolan!

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Giffen LLP Lawyers celebrating National Golf Day.  Good luck to our client, GolfNorth, with this year's season!

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The partners, associates and staff at Giffen LLP Lawyers congratulate our colleague, partner Cynthia Davis, on becoming President of the Waterloo Region Law Association.  Cynthia has a very busy practice (and life!) and goes above and beyond with her commitment to the profession and her community - way to go, Cynthia!

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Team Giffen bowls for Kids' sake!

 

Team Giffen had a fun night helping to raise money (almost $3,000 - yay, team!) again this year at Big Brothers Big Sisters (BBBSWR) of Waterloo Region's Bowl for Kids' Sake. BBBSWR is a community organization committed to helping children and youth live their full potential.

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