On December 8, 2020, how people start lawsuits over falling on private property changed dramatically in Ontario.1
In a nutshell, if you fall on someone else's property and are injured, you have 60 days from the date you fell to write to that other person or business and tell them that you intend to make a claim. In law, we call that "Notice".
Your Notice to the property owner or "Occupier" of the property must include some key information. The Notice must have the date, time, and location of the fall. The Notice must be either personally served to the person (i.e. hand-delivered) or sent by registered mail.
The Notice must go to at least one of either the "Occupier" of the property, or an independent contractor employed by the occupier to remove snow or salt from the property at the time of your fall.
If you only know the occupier, or the independent contractor, the Notice can go to that one person or business, and that person or business then is obligated to serve the Notice on the other. In other words, if you know you fell in a pharmacy's parking lot, but do not know who they hire for salting their parking lot, you can send the Notice to the pharmacy, and then they have to provide to the contractor who should have salted.
If someone dies from falling, then sending the Notice more than 60 days later will not "bar" or prevent someone from suing about that fall.
If someone takes longer than 60 days to serve a Notice, a judge of the Ontario Superior Court of Justice can decide if there was a "reasonable excuse". Examples that jump to mind, of course, are situations where the person who fell was so badly hurt they were in hospital for more 60 days. The Courts will write about other examples, as the law develops.
If someone tries to send a genuine Notice to a person or business, and they do not have the correct person or business, so long as they made a genuine, good faith attempt to give Notice, they will not be stopped from suing the correct person. In other words, if you fall in a pharmacy's parking lot, you send them a Notice, but the parking lot is actually owned by a different business who hires a contractor to do the salting, that other business is not off the hook.
This is a big change in the law around these types of injuries. Some will say this puts unfair pressure on Plaintiffs to find a lawyer and begin the process of suing for a fall. However, there are exceptions built into the law that help make it fair:
- 60 days is a decent amount of time to understand some injuries or to at least know you are hurt somehow;
- If you send Notice to the wrong business, you may still have a claim;
- The owner of a property is obligated to share your Notice with their contractor, and vice versa.
One thing to understand in all this: this type of change in the law may make it easier, simpler or less expensive for snow removal contractors to get insurance coverage for this type of incident. If someone is hurt, and the person or business they sue has no insurance, that person could end up without the money they need to pay for their recovery. So, while these changes do make it harder for people to sue initially, or at least more complicated, for those who are hurt badly, the availability of more insurance coverage is a good thing.
1As of writing, Bill 118 "An Act to Amend the Occupier's Liability Act" had received Royal Assent but the Lieutenant Governor of Ontario had not yet made the amendment law by an Order in Council. That is a formality that actually finalizes the process of making a new law.
Originally Published by Siskinds, January 2021
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