January 9, 2020 by Greg Meckbach
Will the Ontario government get around to reforming liability for slips and falls on ice before the winter ends?
Bill 118, which passed second reading June 6, is intended to make it easier for clients to defend themselves against lawsuits from plaintiffs saying they slipped and fell on ice. But after more than a month of wintry weather, it’s not clear whether a legislative committee will hold hearings on the bill before winter ends a few months from now.
If passed into law, Bill 118 would require a plaintiff to tell someone within 10 days that they are a defendant. Currently the notice period is two years. The thinking behind Bill 118 is that it’s more difficult for a defendant to gather evidence 23 months after an accident than nine days after an accident.
The Standing Committee on Regulations and Private Bills “has not made any decisions regarding Bill 118 to date, including the potential for public hearings,” a spokesperson for that committee told Canadian Underwriter in December.
Bill 118 proposes to add the following section to the Occupiers Liability Act:
“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 10 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been served on one or more of the persons listed in subsection (2).”
The persons listed in sub-section 2 would be an occupier, an independent contractor employed by the occupier or a landlord.
In opposing the bill, NDP MPP Tom Rakocevic argued that a person who falls somewhere (such as a plaza parking lot) might not be able to get all defendants’ names and addresses within the 10-day window.
“All this is going to do is to create a regime where big landlords and snow removal companies can sleep a little easier if they are not doing their best to ensure the safety of their property and workplaces,” Rakocevic said during debate of Bill 118 on second reading.
But in some cases, a business owner may have no idea there was an accident until they get a letter warning of an impending lawsuit, and this could come a year and 11 months after the alleged accident, countered Norm Miller, the Progressive Conservative MPP who tabled Bill 118.
Miller said at the time he has heard from a snow removal contractor who had difficulty getting insurance when that contractor told his insurance company he had a contract for snow removal at the local hospital.
“In many cases, as soon as there is compensation involved for clearing snow, a company’s premiums increase significantly. This comes from the insurance company’s fear of having to cover potential lawsuits as far as one or even two years into the future,” said Miller, MPP for Parry Sound-Muskoka.
“In many cases, those operators think they’re covered with their normal truck insurance, but they aren’t, in fact, when they’re doing commercial operations,” said Miller. “The full two years is an excessive and unnecessary time. Rather than help to ensure that legitimate cases are brought forward, it is more likely to lead to frivolous claims that hurt business.”
There would be exceptions to the 10-day notice period. One is if the plaintiff died. The other is if a judge finds there is a “reasonable excuse” for not providing 10 days’ notice and the defendant’s case is not prejudiced.
Still, the bill would put accident victims at greater risk, said Sara Singh, NDP MPP for Brampton Centre.
“Landlord and private property owners need to have the due diligence in place when maintaining their properties. A 10-day written notice period is too minimal for victims of slip-and-fall cases to recover and take the necessary actions they need to towards potential compensation or ultimately their recovery.”
The 10-day window is just to put defendants on notice. Plaintiffs would not have to have filed statements of claim in court within 10 days of the accident.