Historically a person injured by a fall on snow or ice on private property was safe if she started her claim within the two-year limitation period. Amendments to the Occupiers Liability Act (OLA) now make it mandatory to provide notice of the intention to advance a claim for injury within sixty days of a fall on snow or ice. Failure to provide that notice can result in loss of the right to compensation.
The law is specific in terms of who must be notified and how the notice is to occur.
Who should be provided with a notice?
Notice must be provided to an ‘occupier’ or an independent contractor employed by the occupier to remove snow or ice from the property.
Who is an ‘occupier’? Is it the owner? The person living or renting the premises? And how is an injured person to know the difference?
An occupier is any person in physical control of the premises or who has responsibility for the conditions of the premises or the activities that take place there. A person who has the right to let you into or onto the premises is an occupier. This can be a tenant, the owner or someone holding an event on the premises.
There may be cases where there are multiple occupiers. A tenant may rent from an owner and allow a group to hold an event. The owner, the tenant and the group holding the function may all be occupiers. Do you have to serve notice on all three? No. Section 6.1(7) of the OLA says that service of notice on one occupier is effective service on all.
Similarly, service of notice on an independent contractor amounts to effective service on the owner and/or tenant of the premises.
How is a notice served?
The ‘how’ of giving notice is important as well. The OLA states that notice must be provided in writing either served personally on an occupier or sent by registered mail. An email might work as long as you get a response confirming it was received.
You’ll hear lawyers using the word premises when they’re talking about the property where a fall occurred. It’s important to remember that premises are not just houses. The OLA also covers injuries that occur on water, ships, motor homes, trains, and even aircraft. Falls on snow and ice are less common in these environments but the notice period requirement applies to all premises covered by the Act.
Rural premises, parks and recreational areas have their own rules. The notice period pertaining to falls on snow and ice apply, but there are several other rules that need to be considered. It can get complicated. The rules for rural premises are wonky enough to deserve their own article. We’ll leave them for another time.
What happens if you miss a slip and fall notice period?
Is your right to make a claim lost? Perhaps not. There is a forgiveness provision set out at section 6.1(6) of the OLA. Failure to give notice does not preclude a claim where there is a reasonable excuse for the omission and where the defendant is not prejudiced in her defence of the action by the failure. The law is in constant flux when it comes to what amounts to a reasonable excuse. As such, you should consult an injury lawyer immediately after a fall on snow and ice even if you’ve missed the notice period – there may be a work-around.
In my thirty years as an injury lawyer, I’ve seen almost every fact scenario you can imagine leading to slips and falls on snow and ice. Not every case is right for an injury claim. The best way to find out is to ask. The lawyers here at Bergeron Clifford will be happy to ensure you get your notice filed with an occupier and to talk through your rights with you. Call sooner rather than later after a fall on snow or ice.
Edward Bergeron
Ted Bergeron is a Queen’s University graduate with degrees in Physical Education, Arts, Education and Law.
Ted’s legal career started in insurance defence litigation. He worked at a boutique law firm in Toronto, servicing only insurance companies. He switched to representing only injured clients and their families in 1995. He knows both sides of the system inside and out.
He has lectured extensively in the School of Rehabilitation Therapy, the School of Physical and Health Education and the Faculty of Law at Queen’s University. He has worked in a volunteer capacity with the Law Society of Upper Canada as an instructor in the Bar Admission Course teaching Civil Litigation.
Also read: Our Slip and Fall Practice Area Page
