Running Out of Time – Understanding Changes to the Law in Case You Slip and Fall

The winter season is here and walking seems to be the most popular pandemic activity again with the provincial lockdown underway.  It is also a common reason for slip and fall accidents, due to the buildup of snow or ice. Before venturing out, take a moment to read about some of the important changes to the Occupiers’ Liability Act (“OLA”)(1).

The OLA is an Ontario law that sets out the framework for lawsuits that can arise from occupiers being negligent in preventing users of their property from being injured. It provides that:

• Occupiers of a property include those who are in possession of it, those who have responsibility for the condition of it, or those who have control over who enters onto it; and

• Occupiers take reasonable measures to fix or reduce hazards for users of the property, including warning users that hazards exist.

One of the most important changes to the OLA is a 60 day notice period. The OLA now states that no lawsuit can be started for damages for personal injury caused by snow or ice against the occupier, or an independent contractor employed by the occupier to remove snow or ice unless, within 60 days after the injury, written notice of the claim is provided. Written notice must include the date, the time and the location of the accident. Written notice must be served in person or sent by registered mail to the occupier or the independent contractor employed by the occupier.

There is an even shorter notice period where accidents occur on municipal property, regardless of whether the accident was a slip and fall due to the buildup of snow or ice, or as a result of a car accident due to a lack of signage or lack of ploughing snow, or some other reason. Under the Municipal Act (2), the notice period is 10 days. Section 44(10) states that written notice must include the nature of the injury complained of, the date, the time and the municipal location of the accident. The written notice must be served in person or sent by registered mail to the clerk of the municipality. Or, if the claim is against two or more municipalities jointly responsible for repairs of roads or bridges, the clerk of each of the municipalities should receive the written notices.

There are a couple of exceptions in law if an injured person misses the 60 day notice period under the OLA or the 10 day notice period under the Municipal Act. The first is in the case of death. Another is in the case of an injured person having a “reasonable excuse” and that the defendant – the occupier or an independent contractor – is not prejudiced in its defence of the injured person’s lawsuit.

The Ontario Court of Appeal considered what satisfies the definition of “reasonable excuse” in a case where the injured plaintiff fractured his ankle after slipping and falling on an icy city sidewalk (3). He failed to give notice of his claim to the city within the 10 day notice period under the Municipal Act. His “reasonable excuse” as to why he missed the notice period was that the severity of his injury left him feeling anxious, confused, depressed and that he was worried about his ability to return to work and take care of his family. He also admitted to not knowing about the notice period until he consulted with a lawyer.

The Court ruled in favour of the injured plaintiff, accepting that his mental state was a factor and a “reasonable excuse” for his failure to give notice.

 A “reasonable excuse”, however, is unlikely to include ignorance or lack of awareness on its own. Put another way, an injured person cannot solely rely on the fact that she or he did not know there was a notice requirement as their “reasonable excuse”(4).

Suffice it to say that time is of the essence if you are injured in a slip and fall accident and my philosophy is that it is never too early to begin an investigation. The sooner the better.

Fresh air and exercise is important. If you plan to walk about, be sure that your shoes or boots have good treads and wear bright coloured outerwear. (I’ve taken to wearing a magnetic light on the hood of my coat when I go out after dark.) Be mindful of your surroundings. I would rather you stay safe than become one of my clients.

(1) Occupiers’ Liability Act –  https://www.ontario.ca/laws/statute/s20033

(2) Municipal Act, 2001, S.O. 2001, c. 25, section 44(10) – https://www.ontario.ca/laws/statute/01m25

 (3)  Crinson v City of Toronto (City), 2010 ONCA 44 (CanLII) – https://www.canlii.org/en/on/onca/doc/2010/2010onca44/2010onca44.html?autocompleteStr=Crinson%20v%20&autocompletePos=1

(4) Seif v Toronto, 2015 ONCA 321 at para 28  – https://www.canlii.org/en/on/onca/doc/2015/2015onca321/2015onca321.html?resultIndex=1