‘Tis the season for snow blowers and de-icing agents in Northern Ontario. Slip and fall accidents on snow and ice are all too familiar for Ontario residents. If you have been injured due to the negligent maintenance of snow and or ice on private or public property, you may be entitled to compensation. Here is what you need to know prior to making a personal injury claim.
Under the law, occupiers owe visitors a duty of care while they’re on their property, both in terms of the condition of the premises or the activity carried out on the premises. Occupiers include anyone who has ownership, occupation, possession, or control of a property. Generally, you can bring a claim against the owner of the property where you fell, such as a retail store, a school, a hospital, a municipal or federal roadway, or a neighbor. Recent amendments to the Occupiers’ Liability Act have expanded liability to include independent contractors employed by the occupier of the property to remove snow and ice on the premises.[1]
Property occupiers have a legal obligation to keep pedestrian walkways in a reasonable state of repair, which includes keeping them free of ice and snow. Nevertheless, not every slip and fall on an icy sidewalk will constitute negligence and give rise to liability. There must be an act of negligence or omission on the part of the occupier of the property to cause the injury. Slip and fall accidents that occur on property owned by the government, or a municipality are held to a similar “reasonable” state of repair standard. However, public sidewalks under the Municipal Act require gross negligence to find liability for a personal injury caused by snow or ice.[2]
Occupier’s Duty of Care
The Occupiers’ Liability Act is the guiding authority for many slip and fall accidents involving snow and ice on private property. Section 3 of the Act provides that an occupier of a premises owes a duty of care to persons on the premises that is reasonable in the circumstances.[3] Justice Cronk for the Ontario Court of Appeal described the reasonableness standard established in s. 3(1) by stating, “it requires neither perfection nor unrealistic or impractical precautions against known risks.”[4] Slip and fall cases are highly fact-driven and knowledge of case law which deals with snowy/icy conditions is instructive.
Justice Doyle for the Ontario Superior Court of Justice recently presided over the case of Wilson v. 356119 Ontario Ltd et al[5], which involved a slip and fall in the parking lot of the Brockville 1000 Island mall where the plaintiff fractured her right elbow due to icy pavement. Justice Doyle listed the following factors to consider when determining liability for slip and fall cases at paragraph 25, “relevant factors include the weather, the time of year, the size of the parking area, the cost of preventive measures, the quality of the footwear worn by the visitor, the length of the pathway, and the nature of the property.”[6] Furthermore, Justice Doyle referenced the leading case concerning slip and falls on snow/ice as follows:
[24] The leading case is the Supreme Court of Canada’s decision in Waldick v. Malcolm, [1991] 2 S.C.R. 456, where the Malcolms (the occupiers of the premises) where found liable for the duty of care as they could have anticipated the dangerous condition of the parking area due to the weather conditions (icy storm), but did nothing to make it safer as they could have cleared the ice, salted or sanded a pathway. The Malcolms were found liable for negligence by doing nothing to render the parking area entrance to their house less slippery.[7]Justice Boucher of the Ontario Superior Court of Justice held that “the duty owed by occupiers is not absolute. It is simply to take reasonable care in the circumstances. The trier of fact must determine in each case what standard is reasonable and whether it has been met.”[8] The case involved two neighbours who shared a common driveway that starts at the road entrance and then splits in two. The accident occurred on Mr. Blechta’s (hereinafter “the defendant”) portion of the driveway as a result of ice and snow that caused four to six-inch ruts to form. The defendant’s normal winter maintenance included snow blowing, shoveling, and applying traction materials. The defendant asked Mr. Derro (hereinafter “the plaintiff”) to use the steel plow on his truck to scrape the ice so that the defendant could apply sand to the driveway. The plaintiff spent about 10 minutes scraping the ice and exited his truck to speak with the defendant. Upon returning to his truck, the plaintiff fell and allegedly sustained injuries. In deciding whether the defendant failed to reasonably maintain his property, Boucher J. held at paragraph 24:
[24] I find that the defendant acted reasonably in his maintenance of the driveway in these circumstances and the Blechtas are not liable for the injuries as claimed by the Derros. The defendant determined he could not safely undertake his usual maintenance until the ice ruts had been addressed. He accordingly asked the plaintiff to scrape the ice so that he could sand the driveway.[9]
Independent Contractor’s Liability
The Occupiers’ Liability Act also addresses the liability of independent contractors employed by an occupier to remove snow or ice on the premises. As a result, the duty of care extends to winter maintenance contractors employed by occupiers of a property. Section 6(1) of the Occupiers’ Liability Act essentially acts as a defence to occupiers of a property to shift the liability onto the contractor where the occupier acted reasonably in entrusting the work to the independent contractor.[10] Justice Boswell of the Ontario Superior Court of Justice articulated the applicability of section 6(1) at paragraph 18 of Elder v Rizzardo bros Holdings Inc:
[18] The substance of the agreement is reflective of the provisions of the Occupiers’ Liability Act. Section 6 of that Act provides, in effect, that an occupier can avoid liability if it is found that damage was caused by the negligent work of an independent contractor, provided the occupier acted reasonably in entrusting the work to the contractor and provided further that the occupier took such steps as it reasonably ought to have in order to satisfy itself that the contractor was competent and that the work had been properly done.[11]When assessing an independent contractor’s liability pursuant to s. 6(1), Ontario courts will consider “whether the winter maintenance system was adequate by reviewing the provisions in the winter maintenance contract between the property manager and the contractor.”[12] Lastly, the court will consider whether the system was properly functioning on the day of the fall in light of the surrounding circumstances.
Contributory Negligence
Another important facet of personal injury claims is contributory negligence. In tort cases, an injured plaintiff may be found to have been contributorily negligent in causing the resulting injuries and any award for damages would be apportioned accordingly. In Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711, at para. 81, the court stated that contributory negligence may be imposed on a plaintiff who fails to take precautionary measures in the face of foreseeable dangers.[13] Factors to consider when assessing contributory negligence for slip and falls on snow/ice involve whether the plaintiff was wearing proper footwear, carrying many objects, moving rapidly or without caution, and consuming drugs or alcohol. In the aforementioned case of Wilson v. 356119 Ontario Ltd. et al., 2023 ONSC 600, Justice Doyle apportioned the plaintiff’s liability for her slip and fall on an icy mall parking lot to be 25% and the defendants’ liability to be 75%. Justice Doyle found that, “as a person living in Canada familiar with Canadian winters, the plaintiff is aware of the presence of snow and ice on the ground. Care is needed when walking outside in the winter especially after or during a storm”.[14]
Notice Period
In order to bring an action to recover damages for injuries caused by snow or ice, the injured party must bring forward a notice of claim within a specified time period. Once notice has been given to the occupier and/or winter maintenance contractor, the injured person has two years from the date of the accident to start a claim. If you have been injured in a slip and fall accident, it is important that you contact a personal injury lawyer without delay to ensure that the following notice period requirements are met. Failure to provide written notice within the required timeframe could result in your claim being barred and ultimately prevent you from recovering any compensation for your injuries.
For injuries that occur on private property like a residential driveway or retail store, you must serve the occupier and/or winter maintenance contractor by written notice within 60 days after the occurrence of the injury.[15] The notice must include the date, time, and location of the occurrence. The notice can be made by personal service or by registered mail. Recent amendments to the Occupiers’ Liability Act imposed a positive burden on occupiers in receipt of the notice to serve copies of the notice personally or by registered mail to any additional occupiers of the property and any independent contractors employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.[16] Similarly, where the independent contractor receives a notice there is a positive burden imposed onto them to personally serve a copy of the notice on, or send the notice by registered mail to, the occupier that employed the independent contractor.[17] At this current juncture there is no deadline for when copies of the notice must be served onto the other parties.
Alternatively, slip-and-fall accidents on public property require you to provide the government or municipality with written notice within 10 days after the occurrence of the injury.[18] Examples include where the slip and fall occurs on a government or municipality-owned property. It is advised to confer with a lawyer to ensure notice is appropriately provided.
Exceptions
Pursuant to subsections 6.1(5) and (6) of the Occupiers’ Liability Act, failure to give notice or insufficiency of the notice in accordance with the above requirements is not a bar to the action in the case of death of the injured person as a result of the injury or where a judge finds there is reasonable excuse, and that the defendant is not prejudiced in its defence. The Municipal Act provides similar wording to the exception to give notice in subsections 44(11) and (12).[19]
Steps to Take Following a Personal Injury
If you experience personal injury on snow or ice accumulation on private or municipal property, knowing what steps to take following the incident is important for your safety and access to legal remedies.
1. Seek Medical Attention
Get medical attention immediately following a slip-and-fall accident. If you are unable to easily get up on your own, either call for help or ask a bystander to call for help. You should still see your doctor for an assessment even if you feel as though your injuries are minor as these may potentially worsen or have future complications. Although it may seem unnecessary, seeking medical attention after the accident can help prevent future complications and provide evidence for a legal claim.
2. Gather Evidence
If possible, take photos of the hazard that caused the accident such as large snowbanks or snow/ice accumulation. Documenting the accident location is beneficial to substantiate any potential legal claims. You should also collect details including: the time, date, precise location, maintenance records, and weather reports. Depending on the circumstances of the accident, it may be prudent to collect weather reports for the days leading up to the accident, as well as establish when the winter event began and ended. If there were any bystanders around to witness your accident, you may ask for contact information as they can provide a statement to support your claim. After the accident, you should also document your own injuries and save any receipts related to your injury and medical expenses.
Thorough documentation can strengthen your case and help ensure that you receive fair compensation for your injuries. Gathering this information plays a crucial role in proving negligence on the part of the occupier and/or independent contractor. For example, maintenance records and weather reports can help establish when the snow or ice became a risk to public safety and when the occupier or independent contractor engaged in winter maintenance to remedy the risk, if at all.
Conversely, be mindful of what you post on social media following a personal injury and how these posts may affect your claim. See our previous blog post on this topic here:
3. Hire a Personal Injury Lawyer
Hire a personal injury lawyer as soon as possible to safeguard your legal rights. A personal injury lawyer will be able to ascertain the legal owner of the property, find out if there is a property manager or snow removal contractor, and serve all parties on a notice of a claim within the specified notice period.
Every personal injury case is different and will depend on the specific circumstances surrounding the accident. If you have been injured in a slip-and-fall and are unsure whether you have a valid claim, our skilled team at Northern Law LLP is happy to assist you. Call us today at (705) 222-0111 or send an email to info@northernlaw.ca.
[1] Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 6.1(1)
[2] Municipal Act, 2001, S.O. 2001, c. 25, s. 44(9)
[3] Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 3
[4] Kerr v. Loblaws Inc., 2007 ONCA 371 (CanLII), <https://canlii.ca/t/1rgv4> at 19.
[5] Wilson v. 356119 Ontario Ltd. et al., 2023 ONSC 600
[6] Wilson v. 356119 Ontario Ltd. et al., 2023 ONSC 600 at 25.
[7] Wilson v. 356119 Ontario Ltd. et al., 2023 ONSC 600 at 24.
[8] Derro v Blechta, 2023 ONSC 4939 at 11
[9] Derro v Blechta, 2023 ONSC 4939 at 24
[10] Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 6(1)
[11] Elder v Rizzardo bros Holdings Inc, 2016 ONSC 7235 at 18
[12] Wilson v. 356119 Ontario Ltd. et al., 2023 ONSC 600 at 44.
[13] Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711 at 81.
[14] Wilson v. 356119 Ontario Ltd. et al., 2023 ONSC 600 at 116.
[15] Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 6.1(1)
[16] Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 6.1(3)
[17] Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 6.1(4)
[18] Municipal Act, 2001, SO 2001, c 25, s.44(10)
[19] Municipal Act, 2001, SO 2001, c 25