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Bill 118, Occupiers’ Liability Amendment Act, 2020 should make you sick

For the People“……

That’s what the Ford Government promised. That’s what the Ford Government was supposed to deliver.

They certainly aren’t delivering on any front.

Another promise made. Another promise broken I suppose.

Let’s examine this “For The People” government from the personal injury corner of there room.

Bill 118, Occupiers’ Liability Amendment Act, 2020 came into force on January 26, 2021. Right in the middle of the Pandemic because nothing says Global Pandemic quite like amending the Occupiers’ Liability Act for slip and fall cases in the middle of the winter!

The Explanatory Note of that Act clearly states:

The Bill amends the Occupiers’ Liability Act to provide that no action shall be brought for the recovery of damages for personal injury caused by snow or ice against an occupier or an independent contractor employed by the occupier to remove snow or ice, unless, within 60 days after the occurrence of the injury, written notice of the claim is served.”

Section 6(1) of the Act states:

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).

This is confounding for a personal injury lawyer living through a Pandemic for so many reasons:

  1. How many people complained to the Government of the People that it was necessary to have a new 60 day notice provision sent by personal service or registered mail? I can assure you it wasn’t any of “the people“. Rather it was a small lobby group representing either property owners or winter maintenance companies. I can assure you these amendments to the Occupier’s Liability Act don’t aim to serve the general public. Rather the laws have been changed to make it more difficult for everyday, hard working Ontarians who have been hurt or injured in a slip and fall to get the compensation which they deserve.
  2. The requirement for notice to be sent personally or by registered mail utterly insane. If the Pandemic has taught us anything, it’s that email is the new preferred method of communication and using registered mail or personal service is completely outdated. Not to mention that personal service is not the most Pandemic friendly method of serving legal documents. Given that most storefronts along with many businesses have remained CLOSED on account of Pandemic related lockdowns, how on earth can one effect personal service?
  3. The onus eventually shifts to the Defendant occupier who has been properly served, but there are no consequences under the Act for the Defendant’s failure to comply. In contrast, a Plaintiff who fails to comply with the notice provisions under the Act may have their claim dismissed? How is that equitable?!?!?!

    Copy of noticelinkedin-2-300x300

    (3)  An occupier that receives notice under subsection (1) shall personally serve a copy of the notice on, or send the notice by registered mail to,

      (a)  any occupiers of the premises during the relevant period in which the injury occurred; and

      (b)  any independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.

Again with the personal service. So for everyone who’s keeping score out there, the Plaintiff first personally serves the occupier of the premises with 60 days of the date of the slip and fall (1st contact for all of you contact tracers out there). The occupier then personally serves a copy of the Plaintiff’s notice on either a) any other occupiers of the premises AND b) any independent contractor(s) employed to remove snow or ice. The result? COVID has spread from the Plaintiff, to the Defendant Occupier, to the sub-lessors and contractors and their sub contractors. How’s that for contact tracing and spreading COVID.

Which brings me to my next points:

  1. Let’s call a spade a spade and call out this Act for what it is. It’s a blatant attempt to curtail personal injury lawsuits. Plain and simple. This 60 day notice requirement adds another legal hurdle for innocent accident victims to clear in order to have their day in Court. Well done “Government For the People“.
  2. The requirement for personal service or registered mail just adds to everyone’s legal costs. In a day where there are more cost effective and faster and more environmentally friendly methods (email or fax!) we chose to retain a process server ($100+) to drive his/her car (traffic/pollution) to deliver an envelope (paper). If the process server is lucky they will be able to serve the occupier on the first attempt, but this rarely happens. It will likely take 2-3 attempts to get the job done (more gas, more traffic, more incurred fees).
  3. The government and legal profession can be part of the solution. Make things more cost effective. Make things more efficient. Make things safer both for the environment and for people alike (during a Pandemic). But instead of being progressive, we have chosen the opposite route! Instead of making things easier and more cost efficient, we have chosen to add more barriers which are harmful on so many levels. This is particularly discriminating in a day and age where we talk about making justice more accessible to “The People” who the Ford Government serves.

There are notice exceptions under the Act. Like if you die! If you die, you don’t have to give 60 days notice. Phew! Thank you Ford Government for your understanding.

The other exception is a general exception. “If a judge finds that there is reasonable excuse” then you’re ok to proceed with the lawsuit. What a Judge will deem to be reasonable notice is up in the air. If you didn’t have the money to afford a process server or pay for the registered mail? If you were illiterate or English/French was not your first language and couldn’t draft the notice letter? If you were hospitalized for 60+ days after a bad injury from a slip and fall? If you were concussed and could not recall exactly where or when you slipped and fell? It sounds like a situation where you forgot to do your homework, and you have to explain to your teacher why it didn’t get completed. If the teacher likes you, you’ll be in good shape. If the teacher isn’t buying what you’re selling; good luck to you.


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