by Shaneka Shaw Taylor and Maya Koparkar
The recent changes to the Occupiers’ Liability Act introduce a new notice period for injuries from ice and snow on private property. Previously, there were no statutory notice periods for injury on private property due to ice and snow. A claimant had 2 years as per the Limitations Act to bring forth a claim. This still applies, but now, section 6.1 of the Occupiers’ Liability Act provides that a person cannot bring an action to recover damages unless they have provided notice within 60 days of the injury.
Notice can be provided to either an occupier or an independent contractor who was responsible for removing ice and snow at the time and place the injury occurred, and must be personally served or sent by registered mail to one of them. Once the occupier or contractor receives notice, they must personally serve or mail a copy of the notice to any other occupiers of the premises or any independent contractors in charge of ice and snow removal at the time and place the injury occurred. Section 6.1(7) also sets out that for greater certainty, as long as notice is provided to one of these relevant parties, the 60-day notice periods no longer applies, even if the action is being brought against a person that did not originally receive the notice.
Failure to give notice does not prevent the action from going forward in the case of death as a result of the injury or where a judge finds that there was a reasonable excuse for the insufficient notice and the defendant is not prejudiced.
The 60-day notice period helps to ensure that evidence related to the injury can be preserved in a timely manner. As these updates are quite recent, it still remains to be seen whether there is a time limit or deadline an occupier or contractor must abide by when providing copies of the notice to other parties, and future jurisprudence may assist in filling this gap.
It is important to identify the relevant property owners or occupiers involved in relation to injuries caused by ice or snow. For actions related to injuries on municipal property, notice periods continue to be 10 days, as per section 44(10) of the Municipal Act. Municipalities are also not liable for injuries caused by snow or ice on a sidewalk except in the case of gross negligence. However, if municipalities have retained snow and ice removal services through a private contractor, parties must be mindful of the 60-day notice period and ensure the relevant parties are appropriately served within this time frame.
