Things that go bump in the night wake most people

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For lawyers, the darkness holds no greater terror than a missed limitation period, though lapsed notice periods place a close second. But beginning January 29, 2021, there’s a new monster in the closet for Ontario lawyers in the form of Bill 118, Occupiers’ Liability Amendment Act.

Prior to this recent amendment to the Occupiers’ Liability Act, such notice periods for slip and falls on ice were restricted to claims against municipalities under the Municipal Act, 2001.

Until now, an injured claimant has only been required to give written notice of a pending claim for injuries within ten days of a fall on ice or snow-covered municipal sidewalks. Bill 118 introduces a change that requires an injured party to provide residential or commercial occupiers with notice of potential claims no less than sixty days after a fall.

The new rule creates several potential pitfalls for lawyers.

Awareness of the new rule is not widespread. Those lawyers who do not practice in the area of personal injury litigation may be unaware of the longstanding requirement to provide a municipality with notice of pending claims arising out of falls on icy sidewalks. The extension of this obligation to claims against all occupiers will be news not only to solicitors but to a large group of litigators as well.

There is no bobbing standard of care, rising or falling in keeping with a lawyer’s experience or lack of such in the field of injury claims. Holding oneself out as a real estate lawyer or collaborative family law practitioner is unlikely to be a defence to negligence claims. All lawyers study a comprehensive range of disciplines in order to qualify for admission to membership with the Law Society of Ontario. Upon call to the Bar, each lawyer is admitted as a barrister and solicitor, without classification as one or the other. Though lawyers tend to limit their practice to one field or the other, members of the public tend to generalize and ascribe broad skillsets to lawyers without distinction.

In medical malpractice, there is no “locality” defence, no protection from liability due to practice in the hinterlands far from the beating pulse of innovation and specialization. Similarly, a shingle on the outer door of a law office proclaiming a practice in criminal defence, may not shield lawyers in that firm from potential claims for missing the newly-minted notice period.

It is not only lawyers who are unaware of this new notice period provision. Prospective clients will walk in the door several months after a fall, having focused on recovery rather than litigation. They now do so at their own peril.

It is the client who walks through the office door on the fifty-ninth day after a fall that poses the problem for counsel. Identifying the target occupier and providing effective notice now falls to the lawyer. Fortunately, the legislation permits service of written notice on any occupier of the premises where the fall occurred, not just the owner. In the absence of an opportunity to undertake a title search, this will be the occupant, the individual in physical control of the premises.

When serving notice on the occupant, delivery must be made to an individual who was an occupier on the date of the fall. This may be a different person almost two months later. Due diligence therefore requires that counsel make inquiries to confirm that the individual provided with notice is an owner, or alternatively a tenant of least two months occupancy.

Where time doesn’t provide for completion of a title search or an opportunity to conduct these inquiries by mail, they must be undertaken in person, preferably through an investigator or process server so that the answers provided can be captured in an affidavit deposed by someone other than counsel. Should the defendant protest that notice was late or insufficient, this affidavit evidence will be the hook upon which counsel’s malpractice defence hangs.

Care in determining the precise location of the fall is vitally important. There will be cases where the location of the fall spans a property line. A metre to left or to the right may be the difference between which occupier bears responsibility. Counsel must avoid having a process server make inquiries at the wrong door, as in the case of a shared driveway.

Successful service of notice on one occupier relieves the prospective client of the requirement to serve all potential occupiers, such as owners (in the event of occupation of a rental property) or property management companies.

Care must be taken to ensure the individual to whom notice is provided is, in fact, an occupier and has, or had at the time of the fall, at least some measure of control over maintenance of walks, driveways or parking lots — control is the measure of occupancy and the trigger for liability. Again, diligent inquiry is the key to avoiding the mistake of serving an individual who may later disavow the role of occupier.

There is a saving provision in the legislation. There is no bar to the action for missing the notice period where there is reasonable excuse for the delay or want of sufficiency of the notice, together with an absence of prejudice to the defendant.

This wording in this section is drawn from a nearly identical provision at s. 44 of the Municipal Act, 2001, which in turn, has been considered extensively by the Court of Appeal in Ontario. In Asseh (Litigation Guardian of) v. Legendre, 2017 ONCA 385, 2017 CarswellOnt 7165, the court confirmed that the onus to establish a reasonable excuse was on the plaintiff, but noted that the words “reasonable excuse” were to be construed liberally, in light of the protection afforded the defendant against any relief of the notice provision giving rise to prejudice. The inference to be drawn is that even a bona fide excuse will fail to save the plaintiff’s claim where the defendant is prejudiced as a result of the delay.

The clock started running on Bill 118 notice obligations on January 29, 2021. March 30, 2021 marks the end of the fifty-ninth day since inception of the new rule. Every Ontario lawyer should have a plan in place to deal with ice and snow, slip and fall cases. If not, it’s time to make one.

Edward Bergeron is a founding partner at Bergeron Clifford.