Our associate Genevieve Durigon with comment:
A bill to amend the Occupiers’ Liability Act to add a requirement of written notice for claims arising from injuries caused by snow and ice was given assent on December 8, 2020. These amendments are not yet in effect and will come into effect on a date to be determined.
Under the new Section 6.1, no action shall be brought for the recovery of damages for personal injury caused by snow or ice against an occupier or a contractor retained to remove snow and ice unless written notice of the claim (including the date, time and location of the occurrence) is provided within 60 days “after the occurrence of the injury” except in the case of death of the injured person as a result of the injury.
Notice is to be served personally or by registered mail to at least one of the occupiers of the premises, or the independent contractors employed to remove snow or ice on the premises. The limitation on bringing actions after the 60 day period no longer applies if notice is provided even if the action is to be brought against a person that did not originally receive the notice. Furthermore, the failure to provide notice or the insufficiency of the notice given is not a bar to the action if a judge determines that there was a reasonable excuse for want or insufficiency of the notice and the defendant is not prejudiced in its defence of the action.
Interestingly, the amendments also impose a positive burden on occupiers that receive notice to serve copies of the notice personally or by registered mail to any occupiers of the premises and any independent contractors employed by the occupier to remove snow or ice on the premises during the period in which the injury occurred.
Likewise, a positive burden is also imposed on independent contractors served with copies of the notice to serve a copy of the notice to the occupier that employed it. The new provisions do not provide a deadline by which this type of service must be completed and are otherwise silent as to any consequences that stem from an occupier’s or independent contractor’s failure to serve copies of the notices that they receive on other parties, but perhaps there is some leverage to be gained in a crossclaim or with respect to costs arguments should a civil action materialize.
Insurance companies may want to consider notifying their insureds—particularly, residential condominiums, commercial property owners that own or rent real property, commercial tenants of real property and winter maintenance companies/sole proprietorships—of the additional obligations soon to be placed upon them by statute. Otherwise, insurance companies may want to consider instructing adjusters to circulate copies of the notice to other occupiers of the premises and any winter maintenance contractors upon being notified of a potential claim.