Occupier’s liability, snow/ice injuries and the new 60-day notice requirement

Occupier's Liability

The Property "Blawg"

Ontario’s Occupier’s Liability Act has been recently updated with a brand new notice provision. Parties that are injured on private property due to snow/ice have 60 days to provide the occupier with notice of their injury, or risk losing their legal right to recover damages.

“Notice period — injury from snow, ice

6.1 (1) No action shall be brought for the recovery of damages for personal injury caused by snow or ice against a person or persons listed in subsection (2) unless, within 60 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been personally served on or sent by registered mail to at least one person listed in subsection (2).”

What must the notice include?

The Notice must include the following information:

  1. Location of the injury;
  2. Date the injury took place;
  3. Time the injury took place; and
  4. The circumstances giving rise to the injury.

The Notice must be served Personally or by Registered Mail, to any Occupier of the premises at the time the injury took place, and the Contractor hired to do the snow removal at the time the injury took place.

How do I send the notice?

What if I don't know who the contractor is but I know the occupier, or vice versa? Will I lose my rights if I don't serve both?

As this is a new provision, it is difficult to say with certainty what would happen. However, the Act does have a saving provision in subsection 6.1(7), which holds that the 60-day limitation period no longer applies as long as the injured party serves either the occupier or the contractor. This is true even if the action is ultimately brought against a person that did not originally receive the notice.

Subsection 6.1(6) also provides Judges with the discretion to find that the injured party has a reasonable excuse for the insufficiency of the notice and that the defendant is not prejudiced in its defence by the lack of notice.

Of course, you should never rely on exceptions and should take all proactive steps to identify the occupier and the contractor in every situation. Sitting on your hands and hoping that there won’t be issues if you only serve one of the parties without investigation is a huge risk and might result in you losing your legal rights of recovery.

In short, no.

Subsection 6.1(5) holds that the 60-day notice period does not apply to persons who succumb to their injuries related to ice/snow on private property. The estate of the deceased family member should be able to bring a lawsuit seeking recovery of damages.

 

My family member passed away due to a snow/ice injury but it has been longer than 60 days. Do they lose their rights to recover damages?

Maja Milosevic

The Property “Blawg” and the above article are for general informational purposes only. The information contained in the above article is not legal advice and is not intended to be treated as providing legal advice. The circumstances of your case are unique and the above information may have no bearing for your situation.

Reading this article does not create a lawyer-client relationship with the author of this article, Maja Milosevic, or with the firm, Uncharted Legal Consulting.

Do not consider the above article, or the Property “Blawg” in general, to be a substitute for obtaining legal advice from a qualified and licensed lawyer in your home province.

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