On December 8, 2020, Bill 118 received royal assent and became law in Ontario. Also known as the Occupier’s Liability Amendment Act, the new legislation will implement a sixty (60) day notice period for a slip-and-fall claim caused by snow or ice when it comes into force. Until then, these types of slip-and-fall claims are still subject to the two-year limitation period.

Specifically, the addition of s. 6.1 to the Occupiers Liability Act prescribes that written notice of the claim must be personally served or sent by registered mail to the subject occupier or contractor. The notice must contain the following particulars:

1. The date of the incident;
2. The time of the incident; and
3. The location of the incident.

An occupier or contractor that receives this notice must then send a copy by registered mail to any other occupier of the location and any contractor employed by the occupier to remove ice and snow.

The legislation was passed as a response to a recent rise in slip and fall claims made against snow removal operators. Large corporate entities often negotiate onerous contracts in which snow removal operators are required to fully indemnify them for all liability arising from these incidents. As a result of this upsurge in claims and onerous provisions, many insurers chose to limit the availability of liability coverage exclusively to contractors. Accordingly, snow removal companies faced difficulty in securing the requisite operational insurance, with many paying costly premiums to conduct their business.

Bill 118 is also intended to make it easier for snow operators and contractors to defend against slip-and-fall claims related to snow and ice. It is often difficult for a defendant to gather relevant evidence about an incident that happened two years in the past. At that point in time, key actors’ memories are more likely to have faded and maintenance logs are frequently misplaced or unavailable. These evidentiary tools are far more accessible just 60 days after an incident.

The new legislation may have the effect of halting, or even reversing, the increase in the quantum of slip-and-fall awards in recent years. Accordingly, insurers may be more inclined to underwrite the risk and provide coverage to snow removal operators.

Insurers Take Note:

While Bill 118 represents a positive step for insurers with respect to slip-and-fall incidents, it is essential to recognize that the Act only implements a notice period for slip-and-fall claims involving snow and ice. Other types of slip-and-fall incidents, such as those occurring indoors or those occurring in other weather conditions, are still subject to the standard two-year limitation period.

Moreover, s. 6.1(6) of the legislation specifies that the failure to deliver notice within 60 days does not necessarily bar the action, provided that there is reasonable excuse for the plaintiff’s failure and the defendant is not prejudiced in its defence. It is not yet clear what constitutes a “reasonable excuse”, though some leniency to a plaintiff could be expected as the judiciary tends to favour hearing cases on the merits.

In addition, s. 6.1(7) maintains that if notice is provided to any occupier or contractor, the plaintiff has discharged their duty under the Act even if the action is later brought against another defendant which did not originally receive the notice.

Finally, though these types of claims have yet to be litigated under the new notice period, some uncertainty is expected surrounding the issue of whether a fall actually arises due to snow and/or ice. It is likely that plaintiff’s counsel may point to other causes of a slip-and-fall incident, such as uneven ground underneath the snow/ice or the presence of other substances on top of the snow/ice, to circumvent this notice period.

Accordingly, insurers may not be able to rely on this provision as an absolute defence to a slip-and-fall claim where notice was not provided within the 60-day period. Insurers should consider and account for this risk when underwriting liability policies and calculating premiums.

The Occupier’s Liability Amendment Act is not yet in force and it is currently unknown exactly when this provision will be in effect.

Sarah Mack