Opinion: Bill 118 – An Act to amend the Occupier’s Liability Act (and take away your rights)

Bill 118 has amended the Occupier’s Liability Act so that no action can be take for the recovery of damages for personal injury caused by snow or ice against an occupier unless, written notice of the claim is served within 60 days after the occurrence of the injury. Photo by Pure Julia.

The following is a submitted op-ed. The views and opinions expressed do not necessarily reflect those of The Kingstonist.

Despite much opposition, Bill 118 received Royal Assent in December 2020 and will soon become law. Bill 118 will prevent many injured people and their families from pursuing otherwise legitimate injury claims. Bill 118 amends the Occupiers Liability Act, the primary liability legislation in Ontario for injuries on private property. Bill 118 reduces the amount of time a person has to give notice of a slip and fall claim arising from snow and ice on private property from two years down to just 60 days.

The stated goal of this Bill is to reduce insurance premiums for snowplow operators (a good goal), by preventing injured people from bringing legitimate insurance claims (a highly questionable method).

MPP Jamie West from Sudbury commented that during the consultations it was unfortunate they hadn’t heard from injured people or families.  “I didn’t get to hear from anybody who was a plaintiff. I would have liked to. There just wasn’t an opportunity for them to be there with the timelines that were there.”

It was hard to tell from the transcript if, given the context, that MPP West saw the irony of there not being enough time for injured people.

As an injury lawyer, I’m very concerned that the goal of Bill 118 is to reduce insurance premiums, yet the legislation says nothing about insurance premiums – not even one single word. Does Parliament expect insurers to reduce their premiums out of the goodness of their hearts? We’ve seen auto insurance benefits for injured people slashed repeatedly over the past 10 years with the stated aim of reducing premiums, and meanwhile we now pay more than we used to, but get less insurance for it.  Does Parliament think Bill 118 will be different?

MPP West highlighted this concern during debate: “The goal of this bill is to limit the amount of time that you have to put in a lawsuit with the hopes that it will bring the insurance down. If it doesn’t bring the insurance down, we’re back to square one. Frankly, when I asked some of the insurance brokers, ‘Will this bring insurance down?’ the answer was basically, ‘Maybe. Maybe it will.’ They’re going to watch over two or three years. If the claims go down, then insurance might go down. But my history with insurance is that your rates never go down. I’ve never heard insurance say, ‘Let me pick up the cheque for that.’”

A little legal context is important, and crucially Bill 118 does not change the duty of the occupier or maintenance contractor – all that is required of them is to ensure that the premises are reasonably safe (not perfectly safe). In contrast, an injured person (and many of these folks will be elderly people laid up with fractures this winter) are expected, and in fact presumed, to know that the law is that they must give notice of a claim within 60 days, or risk forever losing their rights.

Another aspect of Bill 118 is that the notice must be in writing, and not just any writing, but either by personal service, or registered mail. The notice must include the date, time, and location of the injury. I can tell you it is unreasonable to expect an injured person to be able to figure out who owns a property, or who maintains it, within 60 days. As an example, when I am consulted by a potential client, it requires land deed and title searches by my office, investigating corporate registries, and other such inquiries, to figure out who owns or is responsible for a property – this is all quite time consuming. Ultimately, many of the notice letters we send are ignored. Personal service is a whole different animal and you’d be amazed how talented people can be at evading service. When someone is injured, their focus should on healing, not jumping straight into a claim and all the complications of effecting notice.

Jeff Burch, MPP for Welland said it like this: “If we talk about victim impacts, insurance gouging is a real problem. The insurance industry has been running amok in the province for years now. However, the solution to that problem is not and cannot be short-changing victims. When someone gets hurt, the last thing on their mind should be, ‘How fast can I get a lawyer?’ It should be getting the medical care they need and taking the time to recover. If this bill passes, it will mean even more pain and suffering for those who have been hurt because of someone else’s negligence.”

Bill 118 also forces people to bring a claim before they know whether or not they will heal. What if someone doesn’t want to bring a claim unless they are permanently injured? Or doesn’t want to bring a claim unless they are off work for a period of time in excess of their sick leave, or short or long term disability benefits or EI? Few people want to be involved in an insurance claim, and many people would be happy to wait for months to see how they heal.  Unfortunately, Bill 118 doesn’t give you that luxury. I suggest that Bill 118 is a short-sighted mistake and that we do not want a system that forces people to bring claims in the short term when they might decide over the following year or two that they don’t want to. Unfortunately, that’s what Bill 118 does.

The long and short of it is that now, if you are injured in a slip and fall because of winter maintenance issues in Ontario, you either have 60 days to give notice (private property) or 10 days (municipal property). Firstly, please don’t get hurt, and secondly, if you do, contact an injury lawyer immediately, or risk losing your rights. Finally, if you know a snow contractor – ask them if their insurer has offered to reduce their rates. I doubt it.

All quotes — Provincial Parliament Hansard Transcript December 2, 2020 — https://www.ola.org/sites/default/files/node-files/hansard/document/pdf/2020/2020-12/02-DEC-2020_L217A.pdf

Warren WhiteKnight, is a Partner with Bergeron Clifford Injury Lawyers in Whitby, Kingston, Perth, Carleton Place, Ottawa, and the past President of the Frontenac Law Association.

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