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#19016
backbencher's Bill 118 :DO WINTER ICE-INJURY VICTIMS NEED TIGHT DEADLINE to FILE WRITTEN NOTICE ? 2019/12/06 11:36  
Again NOT legal advice.

A smalltown / snowbelt Ontario backbencher's proposed BILL 118 is awaiting third reading in Queens Park. ( The not-yet-enacted Bill is labelled "Occupiers' Liability Amendment Act, 2019". Its application would be so-called "slip & fall" winter injury claims including such arising at condo or Building Scheme communities. )

Bill 118 would amend Ontario's OCCUPIERS’ LIABILITY ACT R.S.O. 1990, CHAPTER O.2 ( "the Act" ) by upfront "moving the yardsticks" significantly.

That's moving them AGAINST injured claimants and in favour of insurers & clients alike, howsoever diligent or careless the latter may have been about ice control.

AGAINST CLAIMS FOR ALLEGED INJURIES due to ICE and/or snow not on municipal property, to a MERE TEN DAYS it would introduce an immediate deadline on a claimant to identify & serve a 'prior alert' sorta NOTICE to the occupier(s) or maintainers.

( Bill 118`s proponent was quoted claiming that such new upfront Notice requirement happily would also NOT discontinue the general two year Limitations Act 2002 deadline imposed on victims to formally file a lawsuit against non-municipal occupiers. https://www.canadianunderwriter.ca/insurance/how-slip-and-fall-lawsuit-rules-could-change-in- ontario-1004165572/

Further, such notice would have to be "written" ( effectively think : registered mail or personal service. )

Without ACTUAL WRITTEN NOTICE to a non-municipal occupier or maintainer if even identifiable, a claimant's current TWO YEAR deadline to formally file a claim could rebuttably be pre-empted upfront for missing the proposed mere TEN DAY ( first alert ) NOTICE.

Yes, there can be credible arguments for or against the proposal, including viewable as Hansarded below. Yes I "get it" - no less than those whose kvetching has prompted the Bill.

Are there new categories of civil claims worth triggering some sort of claim-killing upfront deadline ? Cynically one could ask : Why just ice & snow injuries on non-municipal land or Provincial roads ?

In perspective, such immediate hurdle would occur amidst degrees of pain & disruptive, often expensive upheavals for a genuinely injured individual. These are not planned unless totally bogus.

The Act already correctly puts the onus of proof on claimants, like most other civil claims. And it's no slamdunk, as evidenced by condo litigation outcomes as some discussed here.

Most claimants understand that they usually face a better-understood deadline to formally file a typical lawsuit by end of the second anniversary of the alleged injury. This can vary. Injured victims need to consult competent professionals.

BUT where an immediate ten day notice deadline exists on municipal lands, victims are usually shocked to even learn of it ! And of course it might be harsh but justifiable given the vast extent of sidewalks, roads or vacant municipal lands.

No question Bill 118 would help the bottom line of insurers. Maybe Bill 118 might slow some premium increases. And theoretically it would alert maintainers to gather evidence/ avoid further injury, as if a victim bears any possible blame or duty for triggering such alert.

That's of course if a particular maintainer or occupier bothers to be identifiable or to accept such notice or to admit receiving it without a dispute.

Totally BOGUS injury claimants would readily meet the deadline.

Bottom line

Bill 118 would significantly shift the post-injury burdens against claimants, whatever the merit of their claims. And it ain't obvious as a clear public interest that such non-municipal occupiers SHOULD be lucky enough to get this sort of buffer but not other potential defenders against loss or injury claims. . .

Is this really a good idea if one considers being injured oneself due to sloppy ice control ? Remember Waldick v Malcolm ? (see below )

The 2nd reading Bill 118 is at https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-118
which itself links to Ontario Hansard`s June 6/19 2nd reading discussion pg 1430 to 1510 https://www.ola.org/en/legislative-business/house-documents/parliament-42/session-1/2019-06-06/ hansard#para1362

Ottawa condo lawyer Rod Escayola discusses the Bill and its chances at Nov 27 2019 ``Changes to “Slip and Falls” Involving Condos ? ``by Rod Escayola LLB ( Gowling WLG ) http://condoadviser.ca/2019/11/changes-to-slip-and-falls-involving-condos/condo-law-blog-Ontario

July 10/19 Canadian Underwriter "How slip-and-fall lawsuit rules could change in Ontario" by Greg Meckbach https://www.canadianunderwriter.ca/insurance/how-slip-and-fall-lawsuit-rules-could-change-in- ontario-1004165572/

Footnote : The phrase "small town" above is not intended in any pejorative sense above as to Bill 118's sponsor. I myself am now rural. Our lakefront Building Scheme's non-mandatory HOA ( homeowners association ) spends more than 50 % of its budget on insurance without having had any claim against it.

There's a certain mentality : 1991 Supreme Court of Canada Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456 http://canlii.ca/t/1fsk3 ( " Here in rural Ontario we should not be held to a city standard. This ain't the Beaches ! Walkers around here expect careless ice control. We need Home Rule in Occupiers Liability ! " . . . BUT 'NO !' said Canada's Supreme Court ! . . . . )
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#19146
snow contractors' cost NIGHTMARES / DO WINTER ICE-INJURY VICTIMS NEED TIGHTER DEADLINE ? 2020/11/27 10:50  
Updating a private member's contractor-friendly / occupier-friendly BILL 118

At Nov 27/20 - amidst some insurers totally abandoning coverage and the 'remainers' massively raising premiums for snow contractors ( see CBC article below ) , Ontario Bill 118 ( private member ) has been reborn as an amended "Bill 118 2020" .

It's still alive for a 3rd reading.

Bowing to some obvious alarms about the shocking thresholds being raised, further amendment instead proposes to shorten to SIXTY ( 60 ) days - instead of Bill 118’s original mere 10 day NOTICE to occupier/contractors DEADLINE - to pre-empt victim claims ! ( And it also appears silent as to "deeming" notice ( to either a contractor or contracting authority ) being adequate if served only one of such despite creating a "pass along" duty by the recipient ).

Bill 118 2020 : Occupiers' Liability Amendment Act, 2020 ( as further amended ) https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-118

"EXPLANATORY NOTE : 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, or an independent contractor employed by the occupier to remove snow or ice . . . unless, within 60 days after the occurrence of the injury, written notice of the claim served. . . The Bill also sets out exceptions to this rule. “


Nov 27/20 - CBC “Lawn-care, snow removal companies face major hikes in insurance costs” https://www.cbc.ca/news/canada/toronto/mr-mow-it-all-insurance-hike-rates-snow-removal-1.5818604

Nov 13/20 Muskoka Radio.com “Miller's Private Members Bill on Slip & Falls Moves Along To Becoming Law” https://muskokaradio.com/news/article/millers-private-members-bill-on-slip--falls-moves-along-to- becoming-law
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#19157
NOW LAW Dec 8/20 : backbencher's Bill 118 got 3rd reading / Royal Assent 2020/12/11 10:32  
not legal advice,as usual.

The Ontario Legislature's website announces that ON DECEMBER 8 2020 Bill 118 got 3rd Reading.

( It's awaiting The province's discretionary timing for formal implementation into the target current Act * ). https://www.ola.org/sites/default/files/node-files/bill/document/pdf/2020/2020-12/b118ra_e.pdf


Occupiers’ Liability Amendment Act, 2020 S.O. 2020 ch 33 is accompanied by this ( Explanatory Note ) :

"EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 118 and does not form part of the law.

"Bill 118 has been enacted as Chapter 33 of the Statutes of Ontario, 2020.

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 or an independent contractor employed by the occupier to remove snow or ice, unless, within 60 days after the occurrence of the injury, written notice of the claim is served.

The Bill also sets out exceptions to this rule"


* At an undetermined future time this is empowered to formally amend Ontario's current OLA Occupiers’ Liability Act RSO 1990 c O.2
https://www.ontario.ca/laws/statute/90o02
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#19158
10 or 60 day NOTICE merrily imposed on victims of alleged NEGLIGENCE 2020/12/11 19:46  
Not legal advice, as usual.

Until "softening", last year's Bill 118 against ice or snow injury ( except municipal or Crown lands ) victim claimants would have been hit by the same TEN DAY NOTICE deadline ( subject to exceptions ) which protect Ontario's municipalities. ( At least if & when implemented it will be 60 days ).

Municipalities arguably are a special case for protection, having to scramble to look after thousands of miles & acres and are tax-dependent. And that protection has to apply of course for all sorts of maintenance claims - not just 'slip & falls' on ice and/or snow . Users cannot be shut out of many of those essential roads & lands. There's also a wide public interest in alerting danger a.s.a.p.

Whatever the amendment overall will do about wintertime maintainer insurance premiums, will this de-incentivize prudent winter maintenance on private property ? Fraudulent claims would arguably not be deterred either.

Is short notice smart ? Try asking average folks if they are aware of the 10 day municipal Notice. ( And in the condo universe how many owners even understand how to serve formal Notice to their own corporation ? Or even that it's deemed 'occupier' of the common elements ? )

Without competent legal help genuine victims who have tried belatedly to sue Ontario municipalities, are often shocked to find that 'bad maintenance' claims - valid or not - run into this sorta stuff buried deep within Ontario's Municipal Act 2001 :

Sidewalks

44 - (9) Except in case of gross negligence, a municipality is not liable for a personal injury caused by snow or ice on a sidewalk. 2001, c. 25, s. 44 (9).

Notice

44- (10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, [b]written notice of the claim and of the injury [/b]complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to . . .

Exceptions . . .


( Municipal Act 2001 S.O.2001 ch 25 https://www.ontario.ca/laws/statute/01m25 )
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#19165
more hoops for claimants to jump through - Bill 118 2020/12/27 19:09  
NOT legal advice as usual

Respectfully ANY injury victim – wintertime on ice or otherwise – needs to think long & hard before suing premises occupiers. Ontario’s OLA Occupiers Liability Act RSO 1990 cO.2 is misleadingly simple- looking.

In a condominium environment such claims can quickly face stubborn resistance underwritten by loss professionals used to defending such & by clients with CONTROLLED access to crucial factuals, the pockets of other owners, and ability to inflict direct & indirect retaliation. ( Or some defenders might just silently stonewall, some having for years after claim-filing deadlines strategically withheld crucial role of an independent snowcontractor able to slope-shoulder some or all liability away from the condo corp as deemed occupier ).

Such victim claims readily require the skill of professionals ( who incidentally may also sometimes foul up or lazy down ) in what could be the financial black hole of litigation.

Bill 118 2020 ( now awaiting proclamation as the Occupiers’ Liability Amendment Act, 2020” https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-118 ) introduces upfront NOTICE hurdles that DO NOT interfere with some of the other occupier defences within OLA itself ( nor are declared to remove critical litigation deadlines particularly “discoverability” deadlines within Ontario’s Limitations Act 2002 S.O. 2002, c. 24, Sched. B https://www.ontario.ca/laws/statute/02l24 )

Within OLA such includes a definition of “occupier” that potentially includes ( sometimes unidentified ) “independent contractors” with “responsibility for and control over the condition of premises” - possibly wintertime snow contractors - whose role under OLA’s subsection 6 (1 ) may variously shield or download negligence away from the corporation itself as deemed “occupier” of common elements. OLA erects a ‘duty of care’ that calls for mere reasonable efforts to keep safe rather than some sorta guarantorship of safety like an insurer.

Regardless of severity of an alleged injury or evidentiary strength, a victim’s claim may suffer big time for example if untimely failing to pry forth the presence of an “independent contractor” and against such failing to meet crucial “discoverability" deadlines for example.

Vuniqi v. Paramount P. Mgt et. al. 2020 ONSC 7934 ( rental complex apparently ) issued Dec 23/20 http://canlii.ca/t/jcb72 ( arrives midway in a ‘discoverability’ battle underway in Ottawa between a Dec 2016 injured tenant / resident against management, owner & a later-discovered “independent ( winter ) contractor at the Somerset Towers complex east of westend Ottawa’s Carlingwood Mall. The claimant’s lawyer had UPFRONT but in futility requested such information but been ignored ! Latest Endorsement manages to reject the independent winter contractor’s Motion to be struck out of the ongoing injury litigation claim as “too late” ( discoverability calculation ). But it cites allowing that issue to be disputed by the contractor within the subsequent ongoing litigation over the alleged ice-injury . . . .

In at least one earlier condo winter injury lawsuit with similarities, a failure to timely identify & file the role of another ‘independent contractor” created havoc ).

A genuine injury victim with disabilities ( including linguistic ) for example already may have steep hurdles to even recognize an injury's severity . . . identify at least an occupier's address for proven Notice . . . be lucky enough to have credible witnesses & evidence . . . prove medicals etc . . .

Because this upfront short Notice requirement will not affect - may even confuse - later litigation-STARTING deadlines, it’s easy to see that this change IS ANYTHING BUT victim-friendly.

Arguably it may even be one less incentive to spend the bucks & oversight for safety.

And real 'cash for life' claim fraudsters are unlikely to be foiled. . .
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