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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,