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Amendments to Occupiers’ Liability Act: Reasonable Excuse and Prejudice

By Brian Sunohara

A bill to amend the Occupiers’ Liability Act recently received Royal Assent (it is law), but it is not yet in force. A law does not operate until it comes into force. The Ontario government has yet to announce when the amendments will come into force.

Amendments

Once the amendments come into force, plaintiffs will have to comply with a 60 day notice requirement for occupiers’ liability claims involving accidents caused by snow or ice.

Written notice has to be provided to an occupier of the premises or to an independent contractor employed by the occupier to remove snow or ice. The notice has to specify the date, time, and location of the accident.

After an occupier receives notice, it has to serve a copy of the notice on any other occupiers of the premises and on any winter maintenance contractors. Similarly, if a contractor receives notice, it has to serve a copy of the notice on the occupier that employed the contractor.

All notices need to be served personally or by registered mail.

A failure to give notice is not a bar to an action in the case of death. Further, a failure to give notice or the insufficiency of notice is not a bar if a judge finds that there is reasonable excuse and that the defendant is not prejudiced.

The notice requirement will likely be interpreted in a similar manner as claims under the Municipal Act, 2001 and the City of Toronto Act, 2006. If late notice is provided, the onus will be on the plaintiff to show that there is reasonable excuse and that the defendant is not prejudiced.

Reasonable Excuse

In Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal stated that the words “reasonable excuse” should be given their plain and ordinary meaning and that the court should consider all the circumstances of the particular case in determining whether the plaintiff has established reasonable excuse.

The plaintiff in Crinson suffered a serious injury requiring a prolonged period of rehabilitation during which he was deeply worried about his job and his ability to provide for his family. The Court of Appeal stated that, given the plaintiff’s mental state, it was hardly surprising that he did not turn his mind to the notice requirement within the required time. Therefore, the plaintiff had a reasonable excuse.

In Seif v. Toronto (City), 2015 ONCA 321, a majority of the Court of Appeal agreed with Associate Chief Justice Hoy (as she then was), dissenting in part, that the plaintiff had a reasonable excuse for providing late notice.

The plaintiff did not learn until three months after the accident that her injuries were serious and that she would suffer pain and limitations for the rest of her life. Justice Hoy stated that this was a reasonable excuse for giving late notice.

Justice Hoy further indicated that a lack of awareness of the notice requirement does not constitute a reasonable excuse on its own. However, ignorance of the notice requirement can add to another extenuating circumstance to create a reasonable excuse.

Justice Hoy provided another example of a reasonable excuse: “[o]ne need only imagine a parent, injured on a City sidewalk, whose child is in hospital undergoing a lengthy course of treatment for a life-threatening illness. The child’s circumstances, rather than the injury sustained by the parent, would provide the reasonable excuse”. 

In Hennes v. City of Brampton, 2014 ONSC 1116, the court dismissed the plaintiff’s claim due to lack of timely notice. The plaintiff gave notice 18 months after a slip and fall on snow and ice.

The plaintiff had knee surgery within months of the accident, and it should have been apparent within around five months of the accident that he had a claim for damages. Justice Donohue stated that, even though the plaintiff did not know of the requirement to give notice, he did not seek legal advice for over a year after a claim was apparent.

In Argue v. Tay (Township), 2013 ONCA 247, the Court of Appeal agreed with the decision of the motion judge, Justice DiTomaso, that the plaintiff did not have a reasonable excuse for providing notice close to two years after the accident in question.

Justice DiTomaso found that, on the date of the accident, the plaintiff knew she had been injured, and she was both physically and mentally able to notify the defendant of the accident and/or consult with counsel.

In summary, the plaintiff’s physical and mental state, and the severity or lack of severity of the plaintiff’s injuries, are relevant factors in examining whether the plaintiff has a reasonable excuse for providing late notice. Ignorance of the law is not a reasonable excuse on its own, but it can be considered within the context of other reasons for providing late notice.

Prejudice

On the issue of prejudice, the Court of Appeal in Seif stated that the onus is on the plaintiff to establish that the defendant will not be prejudiced in its defence as a result of the delay.

The majority indicated that the wording of the notice requirement in the City of Toronto Act, 2006 (which is similar to the wording of the amendments to the Occupiers’ Liability Act) does not use language which creates a presumption of prejudice resulting from a plaintiff’s failure to give timely notice. However, the majority stated that there can be an “inherent probability of prejudice”.

A plaintiff can address the inherent probability of prejudice with evidence showing other sources of information about the accident’s circumstances. In Seif, the Court of Appeal provided the following examples of how a plaintiff could address prejudice:

  • A plaintiff might adduce evidence that the defendant had taken steps to investigate the scene in spite of not having notice from the plaintiff.
  • There were timely photographs taken of the scene.
  • A named witness to the accident has been identified.

In Patrick v. The Corporation of the Municipality of Southwest Middlesex et al., 2017 ONSC 17, Justice Leach stated that, in accidents involving snow or ice, notice given even a few days later realistically may not have provided the defendant with any opportunity to examine and document conditions as they existed at the time of the accident.

The length of the delay is one factor to consider in examining prejudice: Azzeh v. Legendre, 2017 ONCA 385.

In Kanner v. The Corporation of the City of Hamilton, 2017 ONSC 6795, Justice Braid noted that, with the passage of time and the absence of notice, a defendant may be unable to properly investigate and respond. Documents may be destroyed due to retention policies. Further, without proper notice, it may not be possible to obtain timely evidence which would otherwise have been available from employees and potential witnesses.

In Hennes, Justice Donohue held that a delay of 18 months in providing notice prejudiced the defendant from being able to investigate potential witnesses.

In Argue, the Court of Appeal agreed with the motion judge that the plaintiff failed to establish that the defendant was not prejudiced by late notice. Among other things, the motion judge found that the defendant lost the opportunity to interview witnesses while their memories were fresh.

In Langille v. Toronto (City), 2010 ONSC 443, Justice Frank stated that “[t]he question is not how much prejudice the [defendant] has suffered but whether it has suffered prejudice”. Justice Frank accepted the evidence of the defendant that, had timely notice been given, full investigations would have been conducted. Her Honour held that “…these lost opportunities together with the diminished recall of those involved amount to prejudice”.

Overall, the issue of prejudice is a fact-based inquiry. The key thing to examine is whether the defendant’s ability to investigate and learn of the circumstances of the accident has been inhibited due to late notice.