New Notice Provisions under the Occupier’s Liability Act – Something Old, and Something New

Starting soon (we presently understand on January 1, 2021), claimants in Ontario who suffer an injury due to snow or ice on property other than on a road/sidewalk/boulevard (i.e. beyond the limits of a highway) must serve notice personally or via registered mail upon at least one of the “occupiers” of the property within 60 days. In turn, an occupier that receives notice 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.

A plaintiff who fails to give the foregoing notice is barred from suing unless they can establish both a reasonable excuse for the want or insufficiency of the notice and no prejudice to the defendant/occupier. Interestingly the notice they provide to just one of the defined occupiers is deemed effective as against all. So, it seems it may be hard for an occupier who only gets the “secondary notice” to argue prejudice if they were not one who should have received the “initial notice”.

Bill 118 set these changes into law.

Notice provisions are not new in the municipal defence world. Nearly identical wording is found in s.44(10) and 44(12) of the Municipal Act, 2001, The core purpose of them is the same under both statutes. Service personally or via registered mail is the exact same. Perhaps most importantly, the wording of the conjunctive test applied to late or improper notice of “reasonable excuse” and “no prejudice” is word for word the same under both statutes, and so one could expect that the prior decisions and “ratio-decidendi” of the Ontario Court of Appeal in cases like Seif on s.44(10) and (12) of the Municipal Act, 2001 would be applied to the mirroring provisions under the Occupiers Liability Act.

The takeaways:

1. Municipal risk and insurance departments should expect and keep an eye out for notices coming in / being served under these new provisions. They had also better get used to sending registered letters out via Canada Post, or increase their budgets to effect personal service of notice letters on their contractors.

2. Counsel defending municipalities must ensure that they seek information and proof of compliance with the new notice provisions, both from the Plaintiff and by their own clients as well. The new provisions do not set a deadline for the secondary notices, however it could become an issue under a crossclaim if such party alleges prejudice arising from a lengthy delay in receiving the secondary notice.

Unfortunately municipal maintenance contractors are, via this new notice process, going to get more notices of claims and much earlier, and be forced to report them to their insurers or face coverage denials for late reporting, which in turn will drive up their insurance premiums on renewal, which is already a huge problem for small contractors.

3. Late notice case law interpreting s.44(10) and (12) of the Municipal Act, 2001 can be looked to in the coming months/years to assist counsel for all sides to properly interpret and argue notice issues arising from the new provisions of the Occupier’s Liability Act. Inconsistent interpretations of the two provisions could cause uncertainty in the law otherwise.

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