The Ontario Government announced (this week or last, it’s not clear because it came out of nowhere) that they are planning to amend the Occupiers Liability Act.
For those of you who don’t know, the Occupiers Liability Act sets out the laws for slip and fall cases on private property.
The Occupiers Liability Act describes who an owner is (“occupier“) what their duties are and so forth. It also sets out what an (“invitee“) is, and sets out their rights as well. An occupier has a positive duty both in statute and in common law to ensure that their premises are safe for invitees to their premises. Failure to uphold that duty will result in liability to the occupier. The result is that an insurer will respond to the claim to cover the occupier and indemnify the invitee. If the occupier did not have insurance on their premises, then they will be responsible to pay for the cost of litigation and pay out on the case out of their own pocket (whether that’s a personal or corporate pocket depends on the ownership structure).
The standard limitation period for slip and fall cases is 2 years from the date of loss. Failure to commence a claim within that period of time, will result in a limitation period lapsing. Limitation periods, unless otherwise specified in another act, are set forth in the Limitations Act, 2002.
So when the government announced a proposed amendment to the Occupiers Liability Act, most Plaintiff Personal Injury Lawyers such as Brian Goldfinger raised an eyebrow.
Was there public complaint or outrage regarding the Occupiers Liability Act? No.
Has the Occupiers Liability Act ever been in the news or a hot topic of discussion? No.
Is the Occupiers Liability Act hurting the “Government For The People” people? No.
When is the last time you were at a bar or coffee shop and you engaged in a political or legal discussion about the Occupiers Liability Act and it cramping your style or infringing your rights (either for the better or worse)? Probably Never.
When is the last time you heard a property owner get enraged about the cost of their property insurance? Likely never or certainly not as much as you hear people talk about car insurance because property insurance is NOT mandatory.
This is why this proposed amendment to the Occupiers Liability Act is so baffling and enraging for personal injury lawyers who see the implications of the act every day like Brian Goldfinger.
Here are the proposed amendments which are being made as a Private Members Bill MPP Norman Miller of Parry Sound-Muskoka:
The Bill amends the Occupiers’ Liability Act to provide that no action shall be brought for the recovery of damages for personal injury caused by snow or ice against an occupier, an independent contractor employed by the occupier or, in the case of a tenancy described in subsection 8 (1) of the Act, a landlord, unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury are served.
Limitation 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 10 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been served on one or more of the persons listed in subsection (2).
Exception
(3) Failure to give notice is not a bar to the action in the case of the death of the injured person as a result of the injury.
Same
(4) Failure to give notice 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.
Why? Why? Why these changes?!?!?!
The proposed amendment seeks to require written notice from a Plaintiff to a Defendant within 10 days from the date of the slip and fall caused by snow or ice. If you die because of the slip and fall from snow or ice, this 10 day notice provision doesn’t kick in.
Process servers probably LOVE this amendment because every personal injury lawyer will retain a process server to fire off these notice letters. That or registered mail. Either way the process serving industry or Canada Post wins for every winter slip and fall.
All the proposed amendment does is create another barrier to recovery for innocent accident victims in favour of deep pocketed insurers. It creates one additional layer of protection to insurance companies to assist them in denying a claim.
I thought the Government For the People was supposed to look out For the People? This proposed amendment does the exact opposite. It makes Brian Goldfinger mad when governments create barriers to access to justice like this proposed amendment. Shouldn’t we as a society want those who have been injured as a direct result of the wrongdoing of another get the compensation they deserve? Instead of protecting the innocent and empowering accident victims with tools, laws and rights; we are empowering wrong doer Defendants to get away with their negligence/breaches through a technicality.
If a Defendant property owner did nothing wrong, then they should have nothing to worry about. Giving Defendant insurers more tools at their disposal (in addition to their multi million dollar litigation war chest) to fend off these claims is another example of stacking the deck against innocent accident victims in favour of deep pocketed insurers.
There is no rationale behind this law other than a way to save reduce an insurer’s exposure and to save them money. The amount of bending over backwards which governments do (both present and past) for insurance companies (who can’t vote in elections) is baffling. In politics they talk about governments “By the People, For The People“. Instead, we see too often governments formed “By the People, For Big Business“. Make no mistake, insurers are some of the biggest businesses going.