Legal

January 13, 2022 Published by Golden Horseshoe Chapter - By Dave Williams

Shifting the Snow and Ice Removal Paradigm…Occupiers Liability Act!

From the Volume 11, Winter 2022 issue of the CCI GHC Condo News Magazine

Periodically, we are called upon to shift the way we think about something. Sometimes the change is dictated by technology, other times by changing laws. The process can often be initiated by thinking outside the box.

Before we delve into this, all contractors, condo board directors, residents and property management companies are encouraged to consult with their legal advisers so that they may be provided the most accurate and up-to-date interpretation of the Occupiers Liability Act.

In part here is what the “The Act” says with respect to snow and ice:

6.1 (1) No action shall be brought for the recovery of damages for personal injury caused by snow or ice against a person or persons listed in subsection (2) unless, within 60 days after the occurrence of injury, written notice of the claim, including the date, time and location of the occurrence, has been personally served on or sent by registered mail to at least one person listed in subsection (2).

(6) Failure to give notice in accordance with subsection (1) is not a bar to action in the case of death of the injured person as a result of the injury.

Rod Escayola, Partner at Gowling WLG in Ottawa, provides the following interpretation in his excellent blog dated December 10th 2020…

–“Written Notice of the claim

Under the modified “Occupiers Liability Act”, No one will be able to bring a claim for damages resulting from a personal injury caused by snow or ice unless they have provided written notice of the claim within 60 days of the injury. The notice will be required to contain such information as the date, time, and location of the occurrence. The notice will need to be served personally (or sent by registered mail) to the “occupier” or to the contractor employed by the occupier to remove snow or ice on the premises.

–Who is the occupier?

The condominium corporation is, at law, the occupier of the common elements for the purpose of the Occupiers Liability Act. This means that before someone can sue the corporation for a slip and fall on ice/snow, they need to provide the corporation with this newly required written notice. If they don’t, the corporation may be able to get the suit tossed out.

–What to do with the notice

Upon receipt of a written notice, the corporation is required to personally serve a copy of it onto the contractor employed to remove snow/ice and onto any other occupier (think of another corporation sharing the common elements in question).

The amended legislation does not indicate how quickly the corporation has to serve a copy of the notice onto its contractor, but it is suggested that it should be done without delay and, if possible, within 60 days of the injury. Naturally, this assumes you received the notice on time to begin with.

-Exceptions

Someone who fails to provide the required written notice within 60 days of the injury will lose the ability to make a claim unless:

- the injury resulted in death

- or unless a judge finds that there is a reasonable excuse for not having provided proper notice and the defendant is not prejudiced in its ability to defend the claim”.

So... who are the stakeholders in all of this?

Seems that the Condo Corporation (occupier), and the contractor are the main guys here but, on the periphery would be the property managers and the insurance companies.

Condo Corporations and the Contractors… everybody on the same page

Last year in our “slip and fall article” we talked about the need for a “snow plan”. It would now appear that this step is more important than ever. A comprehensive snow plan should include but not be limited to:

1.A fall walk-about to include the contractor, the property manager and a board member.

2.Notes should identify; where to store excess snow, when to remove same from the property, any walking areas where excess water may gather and freeze (extra salt needed), any walking areas needing repair before winter.

3.A special budget meeting should be held to include the board and the contractor. This is where the paradigm shift may need to take place. The winter budget might need to be driven by the need to be as prudent as possible to avoid problems as opposed to “how do we do this and save money”?

4.“Standards of measure” should be agreed upon by the stakeholders so that the corporation will know what to expect and as importantly, the contractor can train his workers according to the “set out” standards.

5.The same board member who participated in the fall walkabout should do periodic walkabouts in winter, particularly after a snow fall, in order to measure the consistency of snow operations to agreed standards. Pictures should be taken.

6.Once agreed upon, the standards should be published in the monthly bulletin to residents. It is notice that winter hazards are lurking and a heads-up to use caution when walking.

Condo Corporations should know that large companies have been pursuing these practices for years (think ISO standards in the early 2000s). The benefits usually include buy-in by all parties concerned, and measure-able results.

Many condo boards download such activities to their property manager. In the case of preparing for winter, the property manager does not seem to be a party to any legal action. Indeed, only the occupier and the contractor seem to be named therefore the need for an elected representative of the occupier to participate in the prevention process.

The insurers remain relatively quiet on the subject not wishing to talk about frequency of settlements. That said, the same insurers have been forced to dramatically increase condo insurance premiums in the last few years so any preventative measures I am sure will be welcomed by them.

Environmental

One last stakeholder on the periphery of all this is the municipality. We reached out to the Hamilton Public Works group for input on the impact of salt usage on our groundwater and surface water sources. They acknowledge the importance of the safety considerations of road salt usage but also seek to protect the environment where possible.

The Twin Cities (Minneapolis/St Paul) commissioned a study (Fortin Consulting Inc) that investigated the real cost of salt use for winter maintenance. The study found that damage to infrastructure, autos, vegetation, human health and the environment cost the city anywhere from $803. per ton to $3,341. per ton of salt used. The Twin Cities use approximately 349,000 tons of salt per year.

Back to Hamilton… the city provides the following recommendations for reducing the impact of salt usage:

1.Stop snow and ice from building up by shoveling as soon as possible after a snowfall

2.When using salt or de-icer, use only what you need

3. Avoid storing or piling snow where the melted snow could drain across paved surfaces (and freeze)

4.Ensure downspouts do not drain onto paved surfaces

5.Apply abrasives such as sand during colder temperatures

6.Sweep up loose salt, sand and de-icer to stop it being washed into water sources

A word about paradigm shifting... in his very excellent book entitled “Paradigm Shift”, Don Tapscott relates the story about the wrist-watch industry. Apparently, a few years ago the Japanese parts makers went to the Swiss and suggested they substitute plastic parts in their watches replacing the heavy stainless-steel versions. The Swiss did not believe in plastic. The Japanese went home and began building watches with plastic parts and took the world -wide watch business by storm. The Swiss just couldn’t “shift” the way they thought about watch parts.

The Liability factor with respect to reducing the potential for slip and falls on ice is no joke. While the law seems to name the contractor as being the most responsible, it is a matter that requires the attention of condo boards, property managers, and residents in collaboration with their contractors.

Condo Boards need to get “ahead of the curve” and “invest” in the safety of their residents, the protection of the environment and maybe enjoy some ‘if not reduced insurance premiums – at least much smaller increases’.

Dave Williams is a retired corporate executive and graduate of York University. He can be contacted at williamsdavem7@gmail.com

With thanks to:
Province of Ontario – Occupiers Liability Act – Last Amendment 2020 c 33
Rod Escayola, Partner at Gowling WLG Ottawa, Condo Adviser
City of Hamilton, Councilor Brenda Johnson, Deb Stringer, Community Outreach Educator
Fortin Consulting, “The real Cost of Salt Use for Winter Maintenance” Minneapolis/St Paul
Don Tapscott, Art Caston, Paradigm Shift. McGraw Hill
Suzanne Pestano, Gelderman Landscape Services