Bogoroch & Associates LLP strongly believes that victims of Personal Injury are entitled to access to justice.
Ontario winters are notoriously treacherous. Despite being careful about where and how we walk, accidents do happen. During the colder months, Canadian roads and sidewalks are often covered in patches of ice and snow. A seemingly simple misstep can lead to a nasty fall with dangerous consequences.
What is Municipal Liability?
If you find yourself in this unfortunate scenario, the Municipal Act is a good starting point for investigating your rights. The above Act will outline the following:
Section 44 of the Municipal Act, 2001, SO 2001
- Obligations of a municipality to keep the municipal property maintained
- Obligations of individuals who are injured on municipal property
If you are injured on a public sidewalk or other municipal property, you must provide notice within ten calendar days of your accident. This notice must be sent to the municipal clerk by registered mail. If you fail to do this, it does not mean you cannot pursue legal action in the future. But it will present an extra hurdle during the trial. This is because you will have to take the extra step of convincing a judge that there was a good reason for your delay or failure to give timely notice. You must also ensure that that delay or failure does not favor the municipality defending the claim.
The Tricky Issue of ‘Gross Negligence’
A court will not find a municipality responsible for your injuries unless that municipality was “grossly negligent.” So, what does this mean? The municipality must have been so careless to the point of reckless disregard in its maintenance of the accident area to be found responsible. And that carelessness must have taken place in a way that is likely to create a risk of harm to people.
For example, an ice storm happened several days ago, and no salt or sand had been laid around your fall. A court is more likely to rule the municipality was grossly negligent than if the ice storm had happened just hours before your fall.
Did You Contribute to Your Own Accident?
Individuals have a responsibility not to be “contributorily negligent.” This applies to all cases of slip-and-fall accidents. This means that individuals are obligated to be aware of their surroundings and potential risks. Some examples of this awareness include:
- Wearing appropriate footwear for your intended activities and the weather conditions
- Looking where you are walking (not down at your cell phone!)
If a judge finds you were doing something that made you unable to navigate the hazard, your damage award can be reduced. This reduction is often determined by a percentage that reflects your contribution to the accident.
What Is Occupiers’ Liability?
When an individual is hurt on private property, the Occupiers’ Liability Act, RSO 1990, c.O.2, applies. The injury could result from a fall or a specific activity/physical feature of that property.
Section 3(1) of the Act sets out the primary duty of an Occupier:
- “An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.”
Examples of these premises include:
- Shopping malls
- Boats/cruise ships
- Someone’s private home
So, what does occupiers’ liability mean for you? If you are a guest, a customer (or any other person who could be expected in that location) – the persons or entity responsible for that location must make sure it is safe for intended use by their intended visitors.
Examples of slip-and-fall cases that would fall under the Occupiers’ Liability Act include:
- Injury on an icy driveway or patio of a private residence or business
- Falling at a store that has water or debris on the floor
- Uneven or unusually slippery walking surfaces
- Falling objects in unexpected places
- Injuries resulting from a poor state of repair, condition, and maintenance of the property
Where Does “Gross Negligence” Come into Play?
When it comes to contributory negligence, the same principles as in municipal liability cases will apply. However, the requirement that there be ‘gross negligence’ will not. Under the Occupiers’ Liability Act, the persons or entity responsible for the property where you were injured only must be found to be negligent. That negligence means they were not diligent or careful enough to prevent the hazard from forming or removing the danger once presented.
Waldick v. Malcom
The leading Supreme Court of Canada case – concerning duties of a householder in the case of ice and snow – is Waldick v. Malcom, [1991] 2 SCR 456, 1991 CanLII 71 (SCC). In Waldick, the SCC said that the householder (the person or persons occupying the home, whether owner or tenant) has a duty of care to their visitors to salt or sand icy and snow-covered areas on the premises. Otherwise, mitigate the danger of ice and snow in places where visitors would typically tread, especially on walkways or driveways.
Occupiers have a positive obligation to take necessary action to ensure their premises are “reasonably safe.” In Waldick, the householders had suggested that not salting or sanding was customary in their rural town. However, the Court ruled that regardless of community consensus or conduct, it cannot be rendered reasonable if a custom is negligent and cannot be relied on as a defense. The Court suggested that where it is challenging to generate part of premises “reasonably safe,” an occupier can take steps to render it “off-limits” – but that this also carries with it a duty of care, which an occupier must meet if they wish to rely on this exception.
We have talked about what this all means for you as a visitor to a home or business. But what does this all mean for you as an occupier? The above case pertains to ice and snow. However, the principles of occupier’s liability are the same for most types of hazards. As an occupier of a home or a business premises, you must ensure that when hazards (such as ice and snow) form in areas where visitors would likely tread, you take good care to salt, sand, or otherwise remove the hazard.
In the winter months, some precautions you can take include shoveling, salting, and sanding often, conducting inspections of your property to ensure commonly used areas are free of snow and ice; and warning visitors of icy conditions or cordoning off hazardous areas.
In Ontario, there is a two-year time limit within which you must begin legal proceedings. This is the same, whether it is against a municipality or private party. When you suffer injuries in a slip-and-fall accident, knowing when to act can be confusing and overwhelming. That is why Bogoroch & Associates LLP is here to help you navigate this complicated legal journey and alleviate some of the costs involved. All initial consultations are free.
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