What Are the Expected Societal Benefits of the Changes to Occupier Liability Law?
The Requirement of Notice of a Slip & Fall Incident Within the Changes to Occupier Liability Law Is intended to Inform Occupiers of Potential Liability and Need to Gather Evidence and Prepare For the Possibility of Making a Defence to Negligence Allegations. A Goal Is to Reduce Liability Insurance Costs.
Understanding the Bill 118 Changes Adding Various Duties and Responsibilities to the Occupier Liability Act
The law that applies when a slip and fall injury occurs due to snow or ice conditions was recently amended and will soon go into full affect. The changes to the law will affect the public, generally as pedestrians, as well as various occupiers of premises, whether such occupiers are the property owners or others who are in care and control of premises, such as property management firms, tenants, independent contractors, among others, and all of whom are required by law to ensure that premises are reasonably safe for use by pedestrians. The changes to the law are intended to provide greater fairness in the legal rights and duties of all involved. A significant aspect of improved fairness involves reasonable conditions requiring injury victims, among others, to provide prompt notice of an incident so as to enable the occupiers, as the potential defendants within a future lawsuit, to prepare for the possibility of such a lawsuit by gathering the evidence that may be necessary and helpful.
The Old Law
What Did the Law Previously State?
The previous law, and the current law, that requires property owners, property managers, tenants, contractors with care and control of the condition of property, among others, to ensure that the interior premises and the exterior premises, of those properties are reasonably safe for pedestrian use, among other uses, is known as the Occupiers' Liability Act, R.S.O. 1990, c. O.2, which, until December 8 2020 with the passing of Bill 118, stated, among other things:
1 In this Act,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises; (“occupant”)
“premises” means lands and structures, or either of them, and includes,
(b) ships and vessels,
(c) trailers and portable structures designed or used for residence, business or shelter,
(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”)
Common law duty of care superseded
2 Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.
3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
Risks willingly assumed
4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.
(2) A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1).
Trespass and permitted recreational activity
(a) where the entry is prohibited under the Trespass to Property Act;
(b) where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or
(c) where the entry is for the purpose of a recreational activity and,
(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and
(ii) the person is not being provided with living accommodation by the occupier.
1. A fee charged for a purpose incidental to the entry or activity, such as for parking.
2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency.
Premises referred to in subs. (3)
(a) a rural premises that is,
(i) used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,
(ii) vacant or undeveloped premises,
(iii) forested or wilderness premises;
(b) golf courses when not open for playing;
(c) utility rights-of-way and corridors, excluding structures located thereon;
(d) unopened road allowances;
(e) private roads reasonably marked by notice as such;
(f) recreational trails reasonably marked by notice as such; and
(g) portage routes.
Restriction of duty or liability
5 (1) The duty of an occupier under this Act, or the occupier’s liability for breach thereof, shall not be restricted or excluded by any contract to which the person to whom the duty is owed is not a party, whether or not the occupier is bound by the contract to permit such person to enter or use the premises.
Extension of liability by contract
(2) A contract shall not by virtue of this Act have the effect, unless it expressly so provides, of making an occupier who has taken reasonable care, liable to any person not a party to the contract, for dangers due to the faulty execution of any work of construction, maintenance or repair, or other like operation by persons other than the occupier, employees of the occupier and persons acting under the occupier’s direction and control.
Reasonable steps to inform
(3) Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed.
Liability where independent contractor
6 (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.
(2) Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises.
(3) Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor.
Application of ss. 5 (1, 2), 6
7 In so far as subsections 5 (1) and (2) prevent the duty of care owed by an occupier, or liability for breach thereof, from being restricted or excluded, they apply to contracts entered into both before and after the commencement of this Act, and in so far as section 6 enlarges the duty of care owed by an occupier, or liability for breach thereof, it applies only in respect of contracts entered into after the 8th day of September, 1980.
Obligations of landlord as occupier
8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.
(2) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.
(3) For the purposes of this section, obligations imposed by any enactment by virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy, an implied tenancy and any contract conferring the right of occupation, and “landlord” shall be construed accordingly.
Application of section
(4) This section applies to all tenancies whether created before or after the commencement of this Act.
Preservation of higher obligations
9 (1) Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of,
(a) innkeepers, subject to the Innkeepers Act;
(b) common carriers;
Employer and employee relationships
(2) Nothing in this Act shall be construed to affect the rights, duties and liabilities resulting from an employer and employee relationship where it exists.
Application of Negligence Act
Act binds Crown
(2) This Act does not apply to the Crown or to any municipal corporation, where the Crown or the municipal corporation is an occupier of a public highway or a public road.
Application of Act
11 This Act does not affect rights and liabilities of persons in respect of causes of action arising before the 8th day of September, 1980.
As provided above, section 3 of the Occupiers' Liability Act imposes a duty upon occupiers, whereas occupiers are defined within section 1 as including property owners, property managers, tenants, contractors, among others, to take such steps as are reasonable for the circumstances involved, so to ensure that persons, such as pedestrians, are reasonably safe while upon the premises. Accordingly, this duty includes the requirement to take reasonable efforts to reduce snow and ice hazards that may cause a slip and fall with resulting injury to pedestrians.
Concerns of Occupiers
What Was Troubling About the Old Law?
The previous law contained an inherent problem for occupiers. The problem being that a slip and fall could occur and the injured person as an alleged victim of an occupier was without any duty to provide prompt notification to the property owner or any other occupier of the premise upon which the slip and fall incident occurred. This lack of notice caused a potential legal prejudice to the occupier, or occupiers, whereas where such a slip and fall victim intended to sue for injuries, such a person was able to gather and prepare evidence while the occupier, or occupiers, were unknowingly and unwittingly allowing the opportunity to gather potential defence evidence, such as witness statements, video, and even the snow and ice conditions, to disappear or become lost and unavailable. Examples of evidence that might be gathered by an occupier, if the occupier was alert to the need to do so, include, among other things:
- The statements of contractors or employees who performed snow and ice control on, or about, the date of the incident;
- The statements of witnesses who observed material information such as the performance of snow and ice control efforts, the weather and other conditions at the time of the incident, the physical hazards such as parked vehicles or other objects that may have impeded snow and ice control efforts, and the actual occurrence of the slip and fall incident itself; and
- The video or image evidence, if any, of the condition of the premises at the time of the incident as well as of the actual occurrence of the slip and fall incident.
As stated and implied, without prompt notification of a slip and fall incident occupiers are without awareness of the incident and would therefore be without awareness of the need and importance to gather potential defence evidence. Without defence evidence, occupiers are gravely disadvantaged in the capacity to mount a defence to the allegations of negligence and breach of the duty of care as required per the Occupiers Liability Act.
The New Law
What Changes Within the New Law?
Within the change to the Occupiers Liability Act is the requirement that a victim of a slip and fall due to snow and ice provide at least sixty (60) days notice of the incident by reporting the incident to, at least, one of the occupiers of the premises. This involves written notice by registered mail to a property owner, a property manager, a tenant, or a contractor, among possible others, advising of the incident and is required to include the preliminary details such as the date, time, and location of where the incident occurred. With this reasonable notice, the occupiers will then be aware of the need to gather potential defence evidence. Specifically the new law states:
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).
(2) The persons referred to in subsection (1) are the following:
1. An occupier.
2. An independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.
Copy of notice
(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.
(4) An independent contractor employed by an occupier to remove snow or ice on the premises that receives a notice under subsection (1) shall personally serve a copy of the notice on, or send the notice by registered mail to, the occupier that employed the independent contractor.
(5) Failure to give notice in accordance with subsection (1) is not a bar to the action in the case of the death of the injured person as a result of the injury.
(6) Failure to give notice in accordance with subsection (1) or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the defendant is not prejudiced in its defence.
Notice effective against all persons
(7) For greater certainty, the limitation on bringing actions after the 60-day period set out in subsection (1) no longer applies if notice is provided in accordance with that subsection to any person listed in subsection (2), even if the action is to be brought against a person that did not originally receive the notice.
How Does This Affect Providers of Winter Services?
The new law assists and provides protection for the winter services contractors hired to perform snow and ice control by the property owners, property managers, tenants, among others, who occupy premises and who are the benefiting clients of the contractor. The protection for the contractor arises whereas in the past, under the previous law, unless obligated to do so by an expressly stated clause within a contractual agreement, the clients of the contractor, against being property owners, property managers, tenants, among others, were without an obligation to inform the contractor that a slip and fall incident occurred. As explained above, without awareness of an incident the contractor is unable to promptly gather the evidence that will be required to mount a formidable defence against any subsequent negligence allegations. This lack of awareness and therefore lack of available defence evidence resulted in a historical epidemic of successful slip and fall claims against contractors, often involving indemnification claims by the very property owners, property managers, tenants, among others, who failed to inform the contractor of the slip and fall incident, or involving subrogation by the insurers of the occupiers as against the winter services contractors. Due to this epidemic of slip and fall claims against winter services contractors, insurance rates, insurance deductibles, and even insurability, of winter services contractors became significantly problematic.
As essential services, winter services contractors, must be able to operate within a reasonably safe legal environment without the fear of first learning of an incident, or learning of a lawsuit for an incident, many months after the incident occurred. Whereas the new law will require occupiers to notify other occupiers in turn, the expectation is that contractors will reasonable advisement that an incident occurred and thereby become better prepared to gather potential defence evidence and that by doing so, in time, the result of stronger legal defence will improve the liability claims loss performance for winter services contractors and that a stabilization to insurance terms will be achieved.
How Will People Who Are Genuinely Injured Be Affected?
Some might suggest that the new law, which should enable occupiers, especially winter services contractors, to prepare and perform a better defence to slip and fall lawsuits will result in the victimizing of slip and fall victims. However, where a slip and fall victim legitimately suffers injury, the new law is without any restrictions or limitations to the right to sue or the extent of compensation that may be awarded. Quite simply, all that is changed is the mandate that a slip and fall injury victim provide sixty (60) days notice of the incident and thereby enable occupiers to prepare by gathering defence evidence. If indeed the slip and fall victim suffered injuries due to the negligence of an occupier, then the victim remains with full rights to prove such within a court proceeding and to receive court ordered compensation that is appropriate to the severity of the injuries and to do so as against those occupiers who may be jointly and severally liable in the circumstances of the specific case.
What Is the Short Version of All This?
The changes to the Occupiers Liability Act impose a written notice requirement, via registered letter, of at least sixty (60) days upon a victim of a slip and fall due to snow and ice condtions. The changes also impose a legal duty upon an occupier that receives notice from a slip and fall victim to promptly inform other occupiers such as winter service contractors.