On December 8, 2020, Bill 118[1] received Royal Assent, bringing welcomed changes to Ontario’s Occupiers’ Liability Act[2] (the “Act”).
The Act sets out the duties and liabilities of those in physical possession or responsibility and control of a premises, otherwise known as the “Occupier.” Bill 118 will amend the Act by adding a new section, Section 6.1. Section 6.1 will bar claims against an Occupier and/or the independent contractor employed by the Occupier for the recovery of damages for personal injury caused by snow or ice unless a written notice of the claim is served within 60 days of the alleged injury causing incident (the “Incident”). The notice must state the date, time and location of the Incident.
Bill 118 requires that any person who intends to bring an action for personal injury caused by snow or ice (the “Injured Person”), serve written notice of this claim on the Occupier and/or the independent maintenance contractor employed by the Occupier at the time of the Incident, within 60 days of the Incident, subject to a few exceptions.
Two of the exceptions are in cases where (i) the Injured Person dies as a result of the injury or, (ii) where the Injured Person has a reasonable excuse for the insufficiency or lack of notice and the defendant is not prejudiced in its defence. In such cases, the failure to give notice does not bar the action.
Prior to and until Section 6.1 comes in to force,[3] there is no notice period in the Act. Currently, a claim merely has to comply with the Ontario Limitations Act[4]which requires that a claim must be brought within 2 years of the Incident.
At present, as a result of the 2 year limitation period within which to bring a claim, the Injured Person has a significant advantage over the Occupier when it comes to gathering and accessing evidentiary support. This advantage is especially prevalent with snow and/or ice related claims where the weather and site conditions play a greater role. The new requirement will allow Insurers better access to timely evidence such as locating witnesses, obtaining their statements, accessing CCTV footage, and other evidence, which is often difficult to secure two years post-incident.
The effect of reducing the amount of time an Injured Person has to notify of an action, will be two-fold: (i) initially, fewer actions may be brought, as Injured Persons may be unaware of the shortened notice period, they may procrastinate or otherwise delay in serving a notice such that the 60 day notice period passes, or (ii) every Injured Person will bring an action prematurely, before the nature and extent of their injuries is fully known, in anticipation of missing the notice period.
In addition, with the 2 year notice period, the Injured Person will usually have a more particularized claim for damages. In contrast, the new, 60-day notice period will likely result in the Injured Person claiming unspecified damages to be discerned at a future date. The result of which is a more contested litigation where the Insurer now has to address and ultimately defend against a laundry list of damages that are not necessarily known or quantified.
This lack of crystalized damages may also extend the time to settle. Often, by the time a claim is brought, the Injured Person has 2 years’ worth of evidence to attest to the nature and extent of their injuries, such that settlement would proceed quickly because neither party is waiting on the Injured Person to produce their evidence. With the 60 day timeframe, an Injured Person is unlikely to have collected a complete file of such evidence. Therefore, the information needed to settle a claim, such as medical, employment and mitigation efforts will need to be collected, likely extending the time that the parties are involved in the claim.
What Does Bill 118 Mean?
Bill 118 is a significant change that may, at the outset, increase the number of claims brought, as all rush to meet the new notice period (similar to the plethora of claims initially brought in response to the shortened notice period under the Limitations Act, 2002). In the long-term, it will likely reduce the number of pay-outs, as surely many will miss the notice period. Importantly, Bill 118 will allow defendants better access to contemporaneous evidence when defending a claim.
[1] Bill 118, An Act to Amend the Occupiers’ Liability Act, 1st Sess, 42nd Leg, Ontario, 2020 (assented to 8 December 2020, ON 2020, c 33
[2] Occupiers’ Liability Act, RSO 1990, c O-2
[3] On a date to be named by the Lieutenant Governor.
[4] Limitations Act, 2002, SO 2002, c 24, Sched B
