Reminder: 60 Day Notice Requirement Under the Occupiers’ Liability Act
With much of Ontario recovering from significant snowfalls and ice storms over the holiday season, it is a good time to remind the personal injury bar of their clients’ obligations under the Occupiers’ Liability Act to provide notice within 60 days of an incident alleging injury caused by ice or snow. It has been nearly two years since the requirement came into force with the stated intention of reducing the litigation burden on snow removal service providers and occupiers by requiring timely notice of claims involving a transient substance: ice and snow. Effective January 29, 2021, section 6.1(1) placed the following burden on an individual alleging injury in an incident involving ice or snow:
Notice period – injury from snow, ice
No action shall be brought for the recovery of damages for personal injury caused by snow or ice against [an occupier and/or an independent contractor employed by the occupier to remove snow or ice on the premises] unless, within 60 days after the occurrence of the injury , written notice of the claim … has been … served.
This notice must be served by registered mail or personal service on at least one occupier or independent contractor. It must include the time, date, and location of the incident. Failure to do so may bar the claim.
Under section 6.1(3), occupiers or independent contractors who receive this notice have a corresponding obligation to provide the notice by registered mail or personal service to any other occupiers of the premises, and any independent contractor employed by the occupier to remove snow or ice at the relevant time.
Prior to this amendment, there was no obligation in the Occupiers’ Liability Act to give notice prior to commencing a claim within the relevant limitation period. Now, a potential plaintiff must give notice, in the required form, within 60 days of the incident or risk having their claim barred entirely.
Practically speaking, this burden will likely rest with you, the injured party’s lawyer. The failure to comply with this requirement can result in your client’s claim against the occupier being dismissed, and a new negligence claim against you being commenced.
Three common potential failure points for claims involving snow and ice are:
- You may give notice after 60 days of the incident;
- You may give notice to the wrong party;
- Your notice’s content may fail to comply with the legislation’s requirements.
Once a client, or potential client, comes through your door, you need to move fast. Barring death or a “reasonable excuse”, the clock starts ticking from the date of the accident. While sections 6.1(5) and (6) provide two exceptions to the notice requirement: “death” and a “reasonable excuse”, it’s better to stick the landing and properly serve a notice than risk a costly and uncertain summary judgment motion. As of writing this article, no decision has been released addressing the new section. It remains to be seen if the Courts will follow previous approaches when interpreting similar provisions under the Municipal Act 2001, or whether they will take a new approach considering the stated legislative intent to provide a restrictive notice requirement aimed at reducing claims against snow removal operators and occupiers. No one wants to be the test case.
Practice Management Tips
Don’t Skate By. An Ounce of Prevention is Worth a Pound of Cure
Before your next client walks through the door, you can put yourself in the best position to effectively manage your risk by implementing the following steps into your practice:
- Review and closely consider the notice requirements as found at section 6.1 of the Occupiers’ Liability Act.
- Familiarize yourself with notice periods in advance and consider the applicability of notice requirements as soon as you accept a new retainer (or even upon contemplating a new retainer). Consult the practicePRO limitation period resources.
- Diarize the 60-day notice period in your practice management software and tickler systems, allowing sufficient time for personal service or service by registered mail, and diarize the limitation deadline.
- Watch for CPD programs discussing the amendment and monitor case law developments on interpreting section 6.1 of the Act.
- Provide notice as soon as possible within the 60-day notice period. Do not wait until the last minute. Being proactive can prevent missed deadlines when unexpected events occur (e.g., client provides the wrong date of injury, administrative or other delays that arise at the last minute and which may be out of your control, discovery within the 60 days that notice was served on the wrong person).
Ice Or Snow? You’ve Got to Go!
Once a new client walks in the door and advises you their injury arose because of ice or snow, you should know you need to act promptly to prevent prejudicing their potential claim and avoiding one of your own. Use the initial intake and interview to guard against potential claims arising from serving notice on the wrong occupier or independent contractor based on an inaccurate incident location provided by the client. Consider taking the following steps:
- Determine if ice or snow was involved. Err on the side of caution and think outside the box. Did they slip on a puddle of water? Maybe that water came from snow piled nearby on the sidewalk or partially melted ice sheet.
- Confirm the location of the accident, the date and time it occurred, and the identity and address of at least one occupier and/or independent contractor for service.
- Have the client mark where the incident occurred on a map or aerial photo of the incident site (or better yet, attend the incident site with the client);
- Have the client confirm in writing where the incident occurred and confirm that the client has been advised of the importance of getting this right;
- Consider using property searches, a private investigator, or your own two feet to confirm the identity of the occupiers and/or independent contractors. When in doubt, serve the notice on all nearby occupiers.
- Ensure that your written notice is served by registered mail or personal service to the correct parties. It must include the following information about the occurrence:
b. Time; and
c. Location of the accident.
When in Doubt, Send it Out
Sometimes it will be unclear whether the incident occurred on municipal property, or private property. In situations where the exact location of the incident is unclear (e.g., where the incident may be subject to the 10-day notice under the Municipal Act, 2001 or the 60-day notice under the Occupiers’ Liability Act), comply with both potential notice periods.
If the Occupiers’ Liability Act applies, consider whether the matter involves, or potentially involves, a “personal injury caused by snow or ice” requiring notice under the Act. If the Act has potential application, serve the notice out of an abundance of caution.
If your clients are the occupier and/or independent contractor, remind them of the requirements that they serve a copy of the notice received on others. Ideally, this notice should be provided as soon as reasonably practicable.
Communication Avoids Confusion
Avoid miscommunication and protect yourself from possible liability exposure to prospective clients/non-clients in non-retainer situations (where you have been consulted but not retained) by preparing a non-engagement letter. In addition to confirming the non-existence of the retainer, the letter should ideally note:
- The notice period requirement, the specific deadline if known, the potential consequences of non-compliance with the notice period, and the need for urgent action;
- The application of a limitation period, the specific deadline if known, and the consequences of missing a limitation period;
- Any previous verbal warning regarding these matters; and
- An explicit confirmation of your non-retainer and that you will not taking any steps on their behalf.
Ideally, confirm acknowledgement of receipt of the letter by using a trackable delivery method such as registered mail, courier, or email with read receipt, or deliver by hand and document receipt.
A final comment
By being proactive, implementing effective risk management practices, and clearly communicating with your clients, the risk of adverse outcomes should be minimized. Unfortunately, even the best strategies do not always go according to plan. Despite your best efforts, deadlines can be missed, occupiers can be misidentified, or service may not be effective. If the deadline for serving notice has been missed, serve a compliant notice as soon as possible and advise LAWPRO immediately if you suspect you have made an error.
You can review practicePRO’s previous article on the 60 day notice period, including case law discussing “reasonable excuse” under the Municipal Act, 2001.