Ontario premises liability: New notice for winter-related injury claims
Those injured on the premises of others should take fast action to preserve their legal rights.
Premises liability is an area of Ontario law that governs legal claims for injuries caused by negligent or reckless maintenance to physical property that harms someone lawfully visiting the premises. The location may be residential, commercial or public and such claims normally fall into the category of occupier liability claims.
Common conditions involved in premises liability claims include:
- Slipping and falling on wet, icy or waxed surfaces
- Tripping on debris or objects or on raised or uneven floors or pavement
- Falling because of unsafe or inadequate railings on stairs, decks or other raised surfaces
- Tripping on steps that are uneven, poorly designed or inadequately maintained
- Slipping because of weather-related conditions not properly treated such as ice or snow on walkways or parking lots
- Being struck by ice or heavy snow falling from roofs or awnings that should have been removed or treated
- Walking in poor lighting
Do not delay in seeking legal advice
Ontario has strict notice and filing requirements with relatively short deadlines and limitations periods for premises liability claims. Consult a lawyer as soon as possible after receiving medical attention so as not to miss any deadlines that might compromise the claim. A lawyer can assist with insurance benefits as well as legal remedies like a premises liability action in Ontario court.
As of this writing in April 2021, the limitations period – meaning the period of time within which an injured person must file a lawsuit – is two years for a premises liability claim. Determining this period can be legally complex and there may be exceptions.
However, there are also notice requirements that are much shorter. For example, if the dangerous condition that caused injury was on a public road or sidewalk, the claimant has only 10 days to give notice of intent to file a claim to the appropriate municipality.
New Ontario notice requirement for ice- and snow-related claims
The Occupiers’ Liability Act largely applies to these claims. Under the Act, an occupier is someone in “physical possession of premises” or who is responsible for or controls the premises. An occupier has the duty to take “such care as in all the circumstances of the case is reasonable” to keep the premises “reasonably safe” for people entering as well as for property in their possession at the time. (Standards are different for criminals and trespassers and for some recreational activities.)
An occupier may be able to restrict liability by reasonable notice or by hiring a contractor to perform reasonable work on the premises to keep it safe.
On Dec. 8, 2020, an amending law received royal assent that added a new section 6.1 to the Act, creating a new 60-day notice requirement for injury “caused by snow or ice.” The section defines the required content of the written notice as well as the personal service (giving the notice directly to the recipient) or registered mail delivery requirements.
The section allows the injured party to give notice to either an occupier or an independent contractor employed to remove the snow or ice. Any occupier receiving notice must serve it on other occupiers and any involved contractor. Similarly, a contractor must pass the notice on to the occupier who retained it.
The notice is a prerequisite to the right to file an action in court for the injuries (for which the limitations period is two years), but there are two exceptions:
- The accident caused death.
- A judge finds “reasonable excuse” for not giving notice or for insufficient notice so long as the occupier or contractor is “not prejudiced in its defence.”
The impetus for the new notice requirement was skyrocketing insurance premiums for snow removal companies that were facing lawsuits up to two years after accidents when they may not have preserved evidence or gathered information to defend the claims. The early notice of the claim is meant to alleviate this and give insurers earlier notice of risk to better manage costs and premiums.
The lawyers at Klaiman Edmonds LLP in Toronto represent people in the GTA and throughout Ontario who have been injured on the property of others because of dangerous conditions.