Toronto Injury Lawyer Blog
Winter is coming?
Winter is here?
Winter never left?
Either way you cut it; it’s getting cold outside. And with colder weather comes snow and ice. Snow and ice mean dangerous driving conditions along with slip and fall walking hazards.
The focus of this edition of the Toronto Injury Lawyer Blog will be on winter time slip and falls in Ontario.
What’s changed for slip and fall cases in Ontario?
In December 2020, without any consultation, the Ontario Provincial Government introduced the Occupiers’ Liability Amendment Act
The Occupiers’ Liability Amendment Act provides for a new 60 day notice period for slip and fall cases involving snow and ice:
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).
Not only does a Plaintiff have to give notice of his/her claim within 60 days; but the notice must either be served personally or sent by registered mail to:
1. The occupier of the premises and;
2. The independent contractor(s) employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.
To put this into context, this requires that the Plaintiff either do all of the heavy lifting by him/herself (ie, do the property ownership searches, corporate profile searches, and find out who the winter maintenance contractor was within 60 days; and either serve them personally with an Affidavit of Service or via registered mail; which will also require an Affidavit of Service). If the accident victim is going to lawyer up; s/he needs to do so within that 60 days from the date of his/her slip and fall so that the personal injury lawyer can do his/her due diligence and investigations to protect the limitation period under the new act.
Often times Plaintiffs and personal injury lawyers don’t know the identity of the independent winter maintenance contractor. This often comes out later on in the investigation process.
What the amendments do to the Occupiers’ Liability Act is that it puts extreme pressure on a Plaintiff to find a personal injury lawyer right away to protect this 60 day limitation period. And more importantly, it adds an extra protection to a negligent Defendant to have a claim dismissed despite the fact they may be completely at fault.
It’s very disturbing seeing that Defendant large insurers who act on behalf of property owners and their contractors are given more protections than innocent accident victims under the law. Don’t laws exits to protect everyday people like you and me and not large multi national insurers? These amendments to the Occupiers’ Liability Act were brought in to reduce and make it more difficult for claims being brought so that insurance companies have more tools at their disposal to deny claims so they can report greater profits.
Before December 2020, these 60 day notice requirements did not exist. This is a very important change which people need to be mindful of if faced with a winter time slip and fall case.
What’s stayed the same?
In order to have a successful case, a Plaintiff still needs to show the basics of claim in negligence:
- Negligence against the Defendant(s)
- Damages (injuries; economic and non-economic loss)
- Causation (the injuries are a direct result of the slip and fall accident)
You can’t sue yourself!
You would be surprised at the amount of calls we receive from prospective clients who have sustained serious injuries on their own property asking what legal recourse they might have to compensate them for their losses/injuries. While the losses and injuries in many cases are legitimate and very serious; if you own the property upon which you fell; you cannot sue yourself for those damages. This would apply in a case where you are taking the trash to the curb and you slip and fall on your own driveway or walkway. It’s a different story altogether if you are renter, or slip and fall on property which does not belong to you. But if you own, occupy and are responsible for the winter maintenance at your own property; you cannot sue yourself for your own injuries.
What happens if someone slips and falls on my property?
First and foremost, make sure that person is ok. There is no substitute for being a good person. If you are a property owner chances are you have property insurance. If you don’t have property insurance you are certainly living dangerously. It’s a requirement for the majority of mortgages to have property insurance in place. If you own the property outright, there are no requirements to have property insurance.
If someone slips and falls on your property (and sustains a serious injury) you should report it to your property insurer right away so that they can properly investigate the claim or the potential claim. Just because someone slips and falls on your property does not guarantee that they will commence a claim against you.
If they do however commence a claim; and you do have property insurance; then it’s good to know that your insurer will not only assign and pay for a lawyer to defend you; but they will also pay out on any potential settlement or judgment inside of the policy limits. Most claims settle or an amount within those policy limits. So what I’m saying is that not only do you NOT need to find a lawyer to defend you; you don’t need to pay for that lawyer’s time; nor do you need to pay out on any potential judgment or settlement. This is what insurance is for. Now; if only this would be explained to juries ahead of trials they would have a better idea of how things worked behind the scenes. The reality is that the Plaintiff is fighting an insurance company and NOT an individual. The notion that an individual has to pay out of pocket on a personal injury award rarely happens.
