Occupiers’ Liability Amendment Act, 2020: Injured Ontarians Who Hesitate Are Lost

Bill 118, also known as the Occupiers’ Liability Amendment Act, 2020, was introduced by Ontario’s Progressive Conservative government. It received royal assent on December 8, 2020, and came into force on January 29, 2021.

The bill amended the Occupiers’ Liability Act (OLA), which governs the liability of property owners and occupiers for accidents resulting in injury. In this context, the term “occupier” could refer to tenants, property managers, snow removal contractors, and other parties who control access to a property or are responsible for its maintenance and upkeep.

Critics of this bill believe it is a step backwards. Indeed, Bill 118 could be seen as placing further impediments in the way of injured accident victims and relaxing the rules around an occupier’s accountability or their property’s safety standards.

Before the enactment of Bill 118, lawsuits pursuant to the OLA were subject to the same the two-year limitation period that applies to civil actions under Ontario’s Limitations Act. Claimants certainly had the option to provide liable parties with written notice of their intention to file a lawsuit in cases of personal injury on private property. However, whether they had given advanced notice or not, their lawsuits could proceed.

Bill 118 mandated the creation of an additional time limit. Since its enactment, claimants who were injured in an accident involving snow and/or ice on someone else’s property are required to give written notice to the at-fault parties within 60 days. Within that short timeframe, injured accident victims must send written notice to either to the property’s owner or another party or entity who takes care of or controls the property. This written notice must be served personally or sent by registered mail. If an injured accident victim fails to do so, their claim may be barred.

With a limitation period reduction from two years to—in many cases—two months, Bill 118 has certainly brought radical change to the OLA.

Special Interests and Opposition

The insurance and property maintenance industries were the main proponents and beneficiaries of Bill 118. The usual tort reform arguments were made on their behalf. It was argued that the OLA in its previous form allowed for too many payouts in frivolous cases, drove up insurance premiums for maintenance service providers and, by extension, increased maintenance costs for property owners. Whether insurance savings have been passed on to property owners since Bill 118 received royal assent is unclear.

Critics of the amended OLA have pointed out that:

• Bill 118 could limit access to justice, particularly for vulnerable and marginalized individuals who are less likely to be aware of their legal rights.
• The new time limitation places an additional burden on those who have already suffered harm and may be struggling to cope with the consequences of an accident.
• In many cases, 60 days is not enough time to assess the severity or impacts of accident-related injuries and make an informed decision about the need to sue.
• Those who may have abstained from pursuing a claim had they been given a reasonable chance to weigh their options may rush to initiate a claim for fear of missing the notice period, potentially giving rise to the unintended consequence of a greater number of lawsuits being pursued.
• Since the new time limitation is not a reliable method of weeding out frivolous claims, many claimants with merit will inevitably be barred from the process of pursuing the justice they deserve.
• As there were already mechanisms in place for defending against frivolous claims and claims that had been unreasonably delayed, an amendment to the OLA is unnecessary.

Exceptions to the New Rules

The Court has discretion to excuse a missed notice period if the Plaintiff can provide a reasonable explanation for a missed notice period. For example, claimants who were hospitalized, in rehabilitation from surgery, or otherwise incapacitated could make compelling arguments to justify missing their deadline.

The 60-day notice period does not apply to cases resulting in death.

A similar short notice provision is found in Ontario’s Municipal Act relating to accidents on city sidewalks in disrepair. The Court has called for a broad and liberal interpretation of this provision in  Crinson v. Toronto (City), 2010 ONCA 44 and in Azzeh v. Legendre, 2017 ONCA 385. It remains to be seen whether the Court will be consistent in its interpretation of the much more recent amendments to the OLA pursuant to Bill 118.

Protect Your Rights

If you are injured in an accident caused by snow or ice on someone else’s property, taking certain actions may help protect your right to pursue a claim. It is important to take note of the address, the exact location of the accident on the property in question, as well as the date and time of the incident. It is also prudent to give written notice to the property owner of your intent to pursue legal action in person or by registered mail as soon as possible. Written notice can also be provided to other parties or entities who may have been contributorily negligent, such as property managers, snow removal contractors, or other people whose actions may have led to your injury-causing accident.

It is also advisable to take photos of the accident scene from multiple angles, including any hazardous conditions that may have caused you to fall and sustain injuries. You may also keep the footwear you were wearing at the time of your accident to be used as evidence later.

Preszler Injury Lawyers have assisted victims of accidents on private property in numerous cases throughout the province of Ontario. To learn how we may be able to provide you with assistance, contact us for a free initial consultation.

This article was written by Mark A. Freeman.