Further to our previous Communiqué, Bill 118: Changes to the Notice Period for Slip and Fall Claims in Ontario, on January 29, 2021, Bill 118 was proclaimed into law bringing changes to Ontario’s Occupiers’ Liability Act[1] (the “Act”). The Act sets out the duties and liabilities of those in physical possession or responsibility and control of a premises, otherwise known as the “Occupier.”
As of January 29, 2021, any person who intends to bring an action for personal injury caused by snow or ice (the “Injured Person”), must serve written notice of this claim on the Occupier, and/or the independent maintenance contractor employed by the Occupier at the time of the injury-causing incident (“Incident”), within 60 days of the Incident. Actions brought without notice having been served within 60 days after the Incident are barred, subject to a few exceptions.
Two of the exceptions are in cases where (i) the Injured Person dies as a result of the injury {Incident?} or, (ii) where the Injured Person has a reasonable excuse for the insufficiency or lack of notice and the defendant is not prejudiced in its defence. In such cases, the failure to give notice does not bar the action.
Previously, a claim merely had to comply with the Ontario Limitations Act, 2002[2] which requires that a claim must be brought within two years of the Incident.
What are the Implications for Insurers and Underwriters?
Bill 118 brought significant changes that, in the long term, will likely reduce the number of pay-outs, as surely many will miss the notice period. As we move out of the winter season, the practical implications of the new notice period are such that any potential claims that arose from Incidents within the last 60 days, will become statute barred in the coming weeks. Insurers and Underwriters will have better access to evidence as claims will be brought within months of an Incident, instead of up to two years later.
[1] RSO 1990, c O.2.
[2] SO 2002, c 24, Sched B.
