Changes to “Slip and Falls” Involving Condos?

The province of Ontario is considering potential changes to the Occupiers’ Liability Act, which (if adopted) would bring drastic changes to how claims for slip and falls can be brought against condo corporations.

Indeed, Norman Miller (the Parry Sound-Muskoka MPP) is sponsoring a private members’ bill aimed at imposing strict (and very short) time limits to bring a court action to recover damages for personal injury resulting from a slip and fall on snow or ice. If adopted, Bill 118 would prohibit anyone from bringing a lawsuit against the occupier of lands for damages flowing from such slip and falls unless a written notice of the claim is provided to the occupier within 10 days of the occurrence of the injury.

This is a very significant departure from the current notice period. Indeed, presently in Ontario, anyone injured as a result of a slip and fall has 2 years to bring their legal action.  This is the general limitation period. Having said that, an exception already exists in favour of municipalities requiring that written notice be provided to them within 10 days of slip and falls on their property. So, this new Bill would line up the notice requirement with the one already applicable to municipalities.

Exceptions to the notice requirement

In its current form, the Bill provides for limited exceptions to the 10-day notice requirement, such as:

• If death resulted from the slip and fall;
• Or if a judge finds that there is a reasonable excuse for the failure or insufficiency of the notice (and that the defendant is not prejudiced by this delay). This could apply, for instance, to circumstances where the injured parties is still at the hospital or otherwise incapacitated.

This new notice requirement (if the Bill is adopted) would provide numerous benefits to defendants, including the ability to secure evidence and testimony.  Often, most of the evidence has disappeared (or melted away) and witnesses’ memory has faded if the claim is brought two years later.

Another great benefit of a short notice period is that it would allow the occupiers to immediately take steps to remedy the situation and prevent other injuries.

Who is the occupier?

If passed, this Bill would apply to “occupiers”. An occupier presently includes someone who is in physical possession of premises or someone who has responsibility for and control over the condition of the premises or the activities carried on the premises.  Pursuant to section 26 of the Condo Act, the corporation is deemed to be the occupier of the common elements for the purpose of determining liability resulting from breaches to the duties of an occupier of land.

This means that, generally speaking, the Corporation may be responsible at law if someone gets injured on common elements.  It will all depend on whether the Corporation has taken reasonable precautions to ensure the reasonable safety of those attending the property.

Where is the Bill at now?

Bill 118 passed both first and second readings and has been referred to the Standing Committee on Regulations and Private Bills, on June 6, 2019.  Private member bills don’t often become law.  We will keep an eye on this one to see whether it ever receives royal assent.

For now, regardless of this potential change, our best advice: keep those sidewalks, driveways and parking lots free of ice and snow!

Happy winter, everyone!!