Article provided by Orendorff and Associates, Sudbury's Own Personal Injury Lawyers
The summer passes into fall and winter with an almost cruel swiftness. If you are outside in winter conditions and suffer injury in a slip or trip and fall you may come to learn of a further cruelty that can accompany the cold of winter - section 6.1(1) of the Occupiers’ Liability Act. The Act imposes rigid notice requirements on those alleging injury or harm:
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). 2020, c. 33, s. 1.
What this means in simple terms is that if you are injured in a slip or trip and fall you “shall” give notice to the “person” within 60 days or you may not be able to sue. The “person” you must put on notice must be “an occupier” of the premises where the incident occurred or the winter maintenance contractor hired by the occupier.at the time of the incident.
An “occupier” includes a person who is in physical possession of premises or a person who has responsibility for and control over the condition of premises. There are a number of people or companies who could fit that definition such as a home or building owner, landlord, tenant, caretaker, contractor or subcontractor.
Keep in mind that the notice must be in the form of a registered letter or by way of personally delivering the notice letter. The letter must contain the date, time and location of the fall with a brief description.
These provisions are relatively new to the Act and have yet to be given consideration by a Judge of our Superior Court. There is a saving provision for those who have not served, but one should not bank on being forgiven for failing to notify. That section states:
(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. 2020, c. 33, s. 1.
What you believe is reasonable or does not represent prejudice is not necessarily what a Judge might accept.
You should be aware that different rules apply to some circumstances where a fall occurs on municipal property. That will not be covered here for lack of space. A fall on a municipal sidewalk, for example, requires 10 days’ notice and carries different legal tests for liability. A claim against a municipality can be reported online here.
If you think you may have a claim for injuries caused by lack of or insufficient winter maintenance, contact us at Orendorff & Associates – (705) 673-1200 or online at oalawyers.com. The consultation is at no charge. You are not obliged to pursue a claim against an occupier just because you or a lawyer, have put that occupier on notice.
If your injuries heal and you are not interested in pursuing the matter you can leave it at that. But if your injuries do not heal or your condition deteriorates and you have not satisfied the notice requirement you may not be able to pursue damages.