Recent amendments intended to lower insurance premiums for snow removal companies
Recent amendments to the Occupiers’ Liability Amendment Act will result in barring legitimate claims against occupiers because injured people will be unaware of the new 60-day notice period, says personal injury lawyer Ryan Naimark.
The Occupiers’ Liability Amendment Act, 2020 changed how claims for slip-and-fall injuries caused by snow and ice are brought against property owners or their hired independent contractors. The legislation requires the injured person issue written notice to the occupier within 60 days of the incident. The time limit has exceptions: If a death results from the injury or the claimant can convince the judge there is a reasonable explanation for their failure to provide notice.
“I don't think 60 days is enough, especially for people that are seriously injured,” says Naimark, founder and president of Naimark Law Firm.
Parry Sound-Muskoka MPP Norm Miller introduced the legislation as a Private Member’s Bill, intending to reduce the cost of liability insurance for snow removal companies. Miller said he had heard from “dozens of contractors” who “either couldn’t get insurance or whose insurance premiums had doubled or tripled in the past few years.”
Prior to the changes, plaintiffs had two years – the general limitation period – to act after being injured. Miller’s Bill had initially called for a 10-day notice, which is the standard for injuries occurring on city-owned property under the Municipal Act.
As injured people will not know they have to issue notice until they speak with a lawyer, Naimark says a more reasonable, “happy medium” would be 120 days.
“At the same time, that would still probably bar claims,” he says. “But most people that are injured and have real injuries, within 120 days they've usually contacted a lawyer.”
In December, civil litigator and condo lawyer Rodrigue Escayola told Law Times the changes would have a significant impact on his condo practice. Slips-and-falls are routine in the common areas in and outside condo buildings. The notice period will benefit condo corporations by allowing them to react to the injury sooner, resolve the issue which led to the injury – possibly preventing others – and gather evidence before it goes stale, says Escayola.
In slip and falls at condos, there tends to be a lot of subjective evidence, he says. There can be conflicting reports about when the snow was cleared, not cleared, whether there was ice, the last time salt or sand was applied, for example. The 60-day notice allows parties to bring the most timely and accurate information to the tribunal, says Escayola.
Naimark says his experience acting for plaintiffs injured on municipal property lead him to doubt the changes will produce timely investigations.
“Since I've been practicing, whenever I have a slip and fall case against the city, they have almost never engaged in a timely investigation,” he says. “So whether we put them on notice or not, they have never investigated the matter until, usually, the statement of claim is issued.”
For those who are seriously injured or hospitalized, the amendments allow the court to let the plaintiff off the hook if they can provide a reasonable explanation as to why they missed the notice period. A similar provision in the Municipal Act has been interpreted liberally by the courts in Crinson v. Toronto (City), 2010 ONCA 44 and Azzeh v. Legendre, 2017 ONCA 385, says Naimark. Section 44.12 of the Act states failure to give notice is not a bar to the action if the municipality was not prejudiced and to bar the action would be unjust.
“And I think those provisions will be liberally construed as well,” says Naimark.
