When winter arrives in Ontario, the risk of slip and fall incidents due to ice and snow increases significantly. For individuals who suffer personal injuries from such incidents, understanding the notice requirements is crucial to ensure their legal rights are protected.
Slip and Fall on Private Property: Occupiers’ Liability Act
The primary legislation governing slip and fall incidents on private property in Ontario is the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. This Act sets out the duties and liabilities of those in physical possession or control of a premises, known as “occupiers.” As of January 29, 2021, significant amendments were made to the Act through Bill 118, the Occupiers’ Liability Amendment Act, 2020.
Under the amended Act, any person who intends to bring an action for personal injury caused by snow or ice must serve written notice of the claim on the occupier and/or the independent maintenance contractor employed by the occupier at the time of the incident within 60 days of the incident1. Failure to provide this notice within the specified timeframe can bar the action, subject to certain exceptions.
Exceptions to the Notice Requirement
There are two notable exceptions to the 60-day notice requirement:
- If the injured person dies as a result of the injury.
- If the injured person has a reasonable excuse for the insufficiency or lack of notice, and the defendant is not prejudiced in its defense.
Leading Case Law: Waldick v. Malcolm
One of the leading cases in Ontario that addresses the issue of occupiers’ liability in slip and fall incidents is Waldick v. Malcolm, 2 S.C.R. 456. In this case, the Supreme Court of Canada considered the duty of care owed by occupiers to visitors and the concept of contributory negligence. Waldick was seriously injured when he fell on the icy parking area of the Malcolm’s rented farmhouse. The parking area had not been salted or sanded, and Waldick was aware of its slippery condition.
The Court held that the occupiers had failed to fulfill their statutory duty under the Occupiers’ Liability Act, and Waldick had not willingly assumed the risk of injury. This case highlights the importance of occupiers taking reasonable steps to ensure the safety of their premises, especially during winter months.
Slip and Fall on Public Property: Municipal Act, 2001
The primary legislation governing municipal liability for sidewalk maintenance in Ontario is the Municipal Act, 2001, S.O. 2001, c. 25. Section 44 of the Act outlines the responsibilities of municipalities to keep highways, including sidewalks, in a state of repair that is reasonable in the circumstances. If a municipality fails to meet this standard, it can be held liable for damages resulting from the state of disrepair.
Notice Requirements
Under Section 44(10) of the Municipal Act, 2001, any person who intends to bring an action against a municipality for personal injury caused by the municipality’s failure to maintain a sidewalk must provide written notice of the claim to the municipality within 10 days of the incident. This notice must include the date, time, and location of the incident, as well as a description of the injury suffered.
Failure to provide this notice within the specified timeframe can bar the action, subject to certain exceptions. Section 44(12) of the Act provides that failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is a reasonable excuse for the want or insufficiency of the notice and that the municipality is not prejudiced in its defense.
Exceptions to the Notice Requirement
There are two notable exceptions to the 10-day notice requirement:
- If the injured person dies as a result of the injury.
- If the injured person has a reasonable excuse for the insufficiency or lack of notice, and the municipality is not prejudiced in its defense.
Leading Case Law: Graham v. City of Toronto
One of the leading cases that addresses the issue of notice requirements in municipal liability is Graham v. City of Toronto, 2022 ONCA 149. In this case, the plaintiff fell on a pothole while using a crosswalk and provided notice to the City of Toronto nearly three months after the incident. The City sought to apply the 10-day notice requirement to bar the claim. However, the Court found that the plaintiff had a reasonable excuse for the delay and that the City was not prejudiced in its defense.
The Court emphasized that the words “reasonable excuse” should be given their plain and ordinary meaning, and that all circumstances of the particular case should be considered in determining whether the plaintiff has established a reasonable excuse.
Conclusion
In conclusion, individuals who suffer personal injuries from slip and fall incidents on ice in Ontario must be aware of the strict notice requirements under the Occupiers’ Liability Act and the Municipal Act, 2001. For slip and falls on private property, providing written notice within 60 days of the incident is essential to preserve the right to bring a claim. If the slip and fall occurred on public property, the notice is period is just 10 days.
Understanding the exceptions to this requirement and the implications of leading case law, such as Waldick v. Malcolm and Graham v. City of Toronto, can help injured parties ensure that they are compensated for their injuries.
Kris Bonn*
Bonn Law
*Certified Specialist in Civil Litigation