Notice Periods in Slip and Fall Cases Due to Snow and Ice

Have you been injured in a slip and fall accident due to snow and ice? Be aware of a strict notice deadline that may affect your legal rights.

In Ontario, if you’ve been injured due to snow and ice on private property, the Occupiers' Liability Act,[1] requires you to provide written notice of your claim within 60 days. The Act sets out the mandatory requirements for written notice which include the following:

• Notice must include the date, time and location of the incident
• Notice must be served personally or by registered mail[2]
• Notice must be served on an occupier – such as a business owner or homeowner, or an independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred[3]

The Act provides for exceptions to the strict notice deadline, such as if a person dies due to the injuries sustained in the slip and fall accident. Another exception lies under s. 6.1(6) of the Act which provides that an action will not be statute-barred due to a failure to give notice or the insufficiency of notice if a judge finds there is reasonable excuse and the defendant is not prejudiced in its defence.[4]

As the notice requirement is a recent amendment to the Act, it is likely that courts will look to the body of municipal caselaw in determining what constitutes reasonable excuse and lack of prejudice. In Graham v City of Toronto[5], Bergmanis, Preyra LLP successfully defended a summary judgment motion brought by the City of Toronto on the issue of late notice. In that case, the Court found that extenuating circumstances justified the Plaintiff’s delay in notifying the City of her accident and that the City was not prejudiced in its defence. The Court granted boomerang summary judgment against the City which prevented the City from raising this notice defence at trial. The motion judge’s decision was upheld at the Court of Appeal.

When examining the notice provisions under the Occupiers’ Liability Act, it is important to note that an occupier that receives notice under s. 6.1 (1) must personally serve a copy of the notice on, or send the notice by registered mail to any occupiers of the premises during the relevant period in which the injury occurred and any independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.[6] Additionally, an independent contractor employed by an occupier to remove snow or ice on the premises that receives notice shall personally serve a copy of the notice on or send the notice by registered mail to the occupier that employed the independent contractor.[7] These sections of the Act make it mandatory for an occupier or independent contractor that receives notice to provide notice to every other occupier or contractor who may be involved.  Defence counsel must be conscious of these sections, especially if they are defending multiple occupiers or a combination of occupiers and contractors. In these circumstances, defence counsel must be aware that they cannot advance a notice defence based on alleged deficiency or insufficiency if proper notice was received by at least one occupier or contractor, even if that occupier or contractor is not ultimately included in the action. As sections 6.1(3) and (4) impose a mandatory obligation on an occupier or contractor who receives notice to provide notice to every other occupier and contractor, any allegation of a notice failure in that regard would enure to the detriment of all occupiers and/or contractors. Advancing a claim like that will place counsel in a clear conflict of interest and would require that the occupiers and/or contractors retain separate counsel.

The notice period in a slip and fall on private property is not to be confused with the notice deadline for a slip and fall on a municipal road, bridge or sidewalk. If you’ve been injured due to ice or snow on a City road, bridge or sidewalk, the City of Toronto Act, 2006[8] and Municipal Act, 2001[9] require you to provide written notice within 10 days after the occurrence of the injury and prescribes the following written notice requirements:

• Notice must include the claim and of the injury complained of, including the date, time and location of the occurrence
• Notice must be served upon or sent by registered mail to the clerk of the municipality or if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.[10]

Notice periods can be complex. Consulting a lawyer can help you understand your rights and navigate your situation. Bergmanis, Preyra LLP has extensive experience representing plaintiffs in claims against municipalities and private property owners arising from injuries caused by unsafe ice and snow conditions. If you’ve been injured – contact us today.

[1] R.S.O. 1990, c. O.2

[2] It is possible that the Court would accept other means of service similar to those granted under other Acts with statutory notice periods, including regular mail where the letter was brought to the occupier’s attention, the occupier being present at the accident, the preparation of an incident report, or where notice was communicated by phone call or email.

[3] R.S.O. 1990, c. O.2 at s. 6.1 (2)

[4] R.S.O. 1990, c. O.2 at s. 6.1 (6)

[5] 2021 ONSC 2278

[6] R.S.O. 1990, c. O.2 at s. 6.1 (3)

[7] R.S.O. 1990, c. O.2 at s. 6.1 (4)

[8] 2006, S.O. 2006, c. 11, Sched. A

[9] 2001, S.O. 2001, c. 25

[10]  Municipal Act, s. 44 (10) and City of Toronto Act, s. 42 (6)