Personal Injury

Limiting occupiers’ liability notice to impact accident victims

By AdvocateDaily.com Staff

Proposed legislation that will require individuals to bring claims within 10 days for injuries sustained on private property as a result of negligent snow or ice removal has the potential to bar innocent accident victims from recovering for their losses, says London personal injury lawyer Maia Bent.

The Occupiers’ Liability Amendment Act 2019, (Bill 118), a private members’ bill, was introduced in late spring and amends the Act to require that written notice of actions for the recovery of damages for personal injury caused by snow or ice against an occupier, an independent contractor employed by the occupier or a landlord, must be brought within 10 days after the injury occurs.

The bill is currently in second reading and has been referred to the standing committee on regulations and private bills.

“This bill is protecting those who are maintaining their property in a dangerous condition and creating a risk to the public. It is very serious that the government would be preferring the rights of negligent property owners over innocent accident victims,” Bent, partner with Lerners LLP, tells AdvocateDaily.com.

"Ten days is not much time to figure out your legal rights and consult with a lawyer, especially if you are dealing with a serious injury," she adds.

Although there is already a similar law in place relating to injuries sustained on municipal property — under the Municipal Act, 2001, individuals are not permitted to bring an action for the recovery of damages unless they serve “written notice of the claim and of the injury complained of, including the date, time and location of the occurrence” within 10 days — this is the first such legislation proposed that relates to the private sector.

At the moment, individuals injured on private property as a result of snow or ice are subject to the standard limitation period of having to start a lawsuit within two years.

When it comes to the responsibilities of property owners and occupiers, s. 3 (1) of the Occupiers’ Liability Act sets out that an occupier of private premises “owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.”

In other words, private property owners and occupiers are required to protect those they anticipate will be on their property from foreseeable harm, or they and their insurer may be liable for any injuries sustained, says Bent.

In the case of snow and ice, this obligation extends to clearing the sidewalks, and to make other areas where pedestrians walk reasonably safe but does not hold property owners to a standard of perfection.

At the same time, a number of courts, including the Supreme Court of Canada (SCC), have confirmed that the assessment of what constitutes reasonable care is specific to each fact situation.

This, says the SCC, is dependent on factors such as local custom, weather, cost, whether the property is urban or rural, residential or commercial, and if individuals are lawfully on the property.

As such, while the basic rule is that a property has to be reasonably safe from the risks of foreseeable harm, depending on the circumstances, says Bent, a store may be held to a higher standard than an elderly property owner, for example.

Regardless of these factors, she notes, if the proposed legislation does become law, those who suffer an injury after falling on private property that hasn’t been maintained in winter will have 10 days to send an occupier a notice letter that they are going to sue — or they will likely be barred from doing so.

Ultimately, this requirement will represent more than just additional red tape for those injured in slip and fall accidents on private property.

“This legislation has the potential to bar innocent accident victims from recovering for their loss and protects negligent property owners who are failing to keep their property safe and secure,” says Bent.

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