As wintery weather approaches, it’s crucial to know what steps to take following a personal injury caused by snow or ice on someone else’s property — and to do so quickly or risk losing your ability to make a claim.
Significant changes to provincial legislation were passed at the beginning of last year, but perhaps due to COVID-19, it escaped public attention. As well, with the province-wide lockdowns last winter, people weren’t going out as much — but I suspect this year will be different.
The Occupiers’ Liability Act (OLA) is legislation that details an occupier’s duty to maintain a reasonably safe premise for your safety. Before these changes, if you hurt yourself on private property because the owner failed to clear the ice promptly, for example, you had two years to file a claim. There is now an additional obligation to serve the owner with written notice — either in-person or by registered mail — within 60 days of the incident.
It’s important to note that injuries sustained on municipal sidewalks or property are still subject to a 10-day timeline, which has not changed.
While those in the snow clearing business say this change will reduce claims and lower their insurance premiums, as a slip and fall lawyer, I believe it creates additional hurdles for injured people to deal with when they should be focusing on their injuries.
If you take a spill due to another party’s negligence and sustain a serious injury, here are the steps you can take to ensure your claim can proceed.
Record details
Immediately following a slip and fall, note the date, time and exact location. If you’re able to, take pictures with your phone of the site, as well as the shoes/boots you were wearing.
Try and resist the very natural reaction to flee the scene because you’re embarrassed. You might be shaken up and, depending on your injuries, not thinking about documenting the area where the fall occurred. Ice melts and snow can be moved within hours, so photos of the scene provide a much clearer picture of what happened.
You can revisit all these issues later, if need be, but it’s helpful if you remember to record these details right away. Recording the precise location — the northwest corner of the big box parking lot, for instance — is particularly important for the next step.
Identify the occupier
As mentioned, the changes to the OLA require you to provide written notice to the occupier within 60 days. If you fall in the parking lot of a local hardware store, you can probably quickly figure out where to send the notice. But if you fall in a parking garage, it can become a real mess determining who the owner is. One floor could be owned by an attached hotel, while several others might be leased by the city for public parking and a handful of floors could be reserved for residential tenants.
At our firm, we can run property searches to help clients with this complicated hurdle. The good news is that once you identify one owner, the obligation then switches to them to notify everyone else, including the snow removal company.
Act quickly
Although snow removal companies are lauding the new timeline for notice, I think it might have the opposite effect once we see this play out over an entire winter. If an injured person is obligated to serve notice within 60 days, they are less likely to take a wait-and-see approach to their injuries. It follows that snow removal companies may be hit with a stream of notices, and their premiums could still increase.
When in doubt, it makes sense for an injured person to send the required notice and then take more time to decide whether to file a claim within the two-year period.
Exemptions and caveats
With the 10-day municipal timeline I mentioned earlier, there’s been some leeway from the courts if the deadline is missed. Judges aren’t inclined to knock out a legitimate claim if there is a reasonable explanation for the delay.
For instance, if a slip and fall results in death, written notice within 60-days from a family member is not required. If you’re in the hospital for an extended period, there might be exemptions made depending on the extent of your injuries. For example, if you have a significant brain injury, it may be cognitively impossible for you to handle it in that amount of time.
That said, most injuries will not require a 60-day hospital stay, so you are still expected to serve notice within the timeframe. Ideally, you or a family member will contact a personal injury lawyer as soon as possible.
The way the legislation reads, it appears that all incidents caused by snow and ice are subject to this timeframe, including roofs that haven’t been appropriately cleared, falling icicles or snow, etc. It will be interesting to see how those types of cases play out and whether insurers say they should have been given 60 days’ notice.
A Slip and Fall Lawyer from Edwards Pollard LLC Can Help
As we head into winter, we will be keeping an eye on what happens in the courts. In the meantime, if you have been injured by snow or ice that should have been sanded, salted or cleared, give us a call and we would be happy to assist while you focus on getting better.