New Occupier’s Liability Act Effective January 29, 2021
On January 29, 2021 Section 6.1 of the Occupier's Liability Act became law. It’s a significant and positive change. A claimant who is claiming damages resulting from a personal injury caused by snow or ice will, generally, have to provide written notice of the claim within 60 days of the injury, otherwise they will not be able to sue for damages later.
Formerly, no notice was required, and a claimant had up to two years from the incident to commence a legal proceeding. Note that this new requirement only applies to personal injury caused by a slip and fall due to snow or ice. It does not apply to other types of claims.
As noted in the Gardiner Miller Arnold blog entitled New snow/ice injury limitation,
“If an injured party fails to give that Notice within the 60-day limitation period, they could expect to lose their legal right to recovery of monetary damages. However, that limitation period does not apply if the injured person were to die because of the injury. Also, a person demonstrating a reasonable excuse for failing to provide the Notice on time might be able to extend the limitation period where there was no adverse effect upon the defendant parties.”
According to Shibley Righton (Changes to the Occupiers' Liability Act Now In Force), the change is positive because it should impact the number of slip and fall claims filed against condominium corporations and provide condominium corporations with a better opportunity to collect timely evidence relating to these sorts of claims.
Anyone bringing a claim for damages resulting from a personal injury caused by snow or ice will have to provide written notice of the claim within 60 days of the injury. The notice will be required to contain information such as the date, time and location of the occurrence. The notice will need to be served personally (or sent by registered mail) to the “occupier” or to the contractor employed by the occupier to remove snow or ice on the premises.
Steps to be taken by corporations that are served with a personal injury claim caused by snow and ice:
- As a preventative measure, all corporations should ensure that:
- they have a good de-icing and snow clearing contract in place based on the Crossbridge specification;
- the contractor has provided proof of adequate insurance
- the contractor maintains accurate and complete snow clearing and de-icing records;
- the corporation has a supply of de-icer and snow clearing equipment (shovels) for site staff to use;
- that site staff are applying de-icer and are performing snow clearing, at building entrances and along high-traffic walkways, if snowfall accumulation is too small to trigger the snow clearing contract, or until the contractor arrives; and,
- each time a contractor arrives to perform snow clearing/removal or salting work site staff must record the date, time, location and type of work performed is to be in the building’s snow clearing and de-icing log. Logs are also to be filled out when building staff salts or clears snow. Logs should be available for inspection at any time.
Upon receipt of a written notice, the corporation is required to personally serve a copy of it onto the contractor employed to remove snow/ice and onto any other occupier (e.g., another corporation sharing the common elements in question). Gowling’s CondoAdvisor, Ron Escayola, suggests that “it should be done without delay and, if possible, within 60 days of the injury.”
The condominium corporation should then immediately locate and preserve all its records and information, including surveillance tapes and maintenance logs, concerning the incident. (Shibley Righton)
Always remember to implement the proper winterization steps for your corporation. Go to Crossbridge’s E-Portal, search for “winter” and download and read/use our: Winterization Program, Winter Snow Clearing & Ice Log, and the Winter Drum Drip Log.
For more information on the changes to the Occupier’s Liability Act, read:
Changes to the Occupiers' Liability Act Now in Force, Shibley Righton, February 5, 2021
New snow/ice injury limitation, Gardiner Miller Arnold, January 19, 2021
Big Changes to “Slip and Fall” Claims Against Condos, Gowling WLG, December 10, 2020