Ontario Occupiers’ Liability Act Amendments Receive Royal Assent
January 2021 Charity & NFP Law Update
Published on January 28, 2021

By Sean S. Carter and Heidi LeBlanc

Ontario Bill 118, Occupiers’ Liability Amendment Act, 2020 (“Bill 118”), received Royal Assent on December 8, 2020. Once Bill 118 has been proclaimed into force, it will amend the Occupiers’ Liability Act (the “Act”) to provide certain protections to “occupiers” of a premises, including charities and not-for-profits. Broadly speaking, the amendments prohibit plaintiffs from bringing an action against occupiers of a premises, and independent contractors employed by an occupier for snow or ice removal from the premises, for personal injury damages related to snow or ice injuries suffered by the plaintiff, unless they first serve written notice of the claim within 60 days of the injury. Occupiers are defined in the Act as including “(a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises.”

In addition to the 60-day timeframe for service, Bill 118 requires that written notice must set out the date, time and location of the injury. Where an occupier receives service of such a notice, Bill 118 requires them to subsequently serve a copy of that notice to all other occupiers and their independent contractors, as the case may be. Similarly, where an independent contractor receives service of such notice, they must serve a copy of that notice to the occupier that employed them.

Bill 118 also provides that, where the injury has resulted in death, failure to give notice will not prevent an action against an occupier or their independent contractor. Further, failure to give notice or sufficient notice will not prevent an action if a judge finds that there is “reasonable excuse for the want or the insufficiency of the notice and that the defendant is not prejudiced in its defence.”

As the range of individuals and entities that can fall within the scope of the definition of “occupiers” under the proposed legislation is broad and includes, for example, property owners, tenants, and licensees, this new protection will be afforded to charities and not-for-profits that are in physical possession of premises, as well as to any independent contractors they hire to remove snow or ice from the premises. Once proclaimed into force, this new 60-day notice period will likely serve to reduce snow and ice ‘slip and fall’ claims against occupiers, but it is important to note that the Limitations Act, 2002, (as amended) remains in force, which has generally a two-year limitation period, and an analysis will be necessary depending on the facts of each case to determine whether a potential lack of notice under the Occupiers’ Liability Act will serve as an absolute defence. Even if an individual serves the requisite notice under the Act, they will still need to commence an action in accordance with the Limitations Act, 2002, (as amended) to preserve and pursue their right to commence an action for damages.

Read the January 2021 Charity & NFP Law Update