Release date: February 19, 2021
As many people reading this will be aware, condominium corporations are deemed to be the occupiers of their respective common elements for the purposes of the Occupiers' Liability Act (the OLA). This creates an obligation for a condominium corporation to take reasonable steps to ensure that people coming onto the common elements are kept reasonably safe from injury to their persons or damage to their property. This obligation arises often in the context of claims against the corporation in connection with a slip and fall, or trip and fall, on the common elements.
In this regard, recent amendments to the OLA will be of significant interest to condominium corporations. Bill 118, the Occupiers' Liability Amendment Act, 2020, which was proclaimed into force on January 29, 2021, adds section 6.1 to the OLA. Section 6.1 creates a new requirement for any person who intends to make any claim for damages "for personal injury caused by snow or ice" against an occupier of premises to give notice to the occupier within 60 days of the occurrence of the injury. This will mean, among other things, that any person who slips and falls on snow or ice on the exterior common elements, and who suffers an injury as a result, must give notice to the corporation within 60 days of the date of the fall.
There are two main benefits for condominium corporations that arise from this amendment. First, condominium corporations will be given more timely notice of potential slip and fall claims, which will allow corporations to investigate and gather information in a more timely manner. Second, this may reduce the number of claims against corporations, which in turn may help corporations to better manage their insurance premiums for their occupiers' liability coverage.
A couple of points should be kept in mind as corporations adjust to these changes to the OLA:
- First, these amendments do not apply to all occupiers' liability claims. Trip and fall claims, or slip and fall claims that do not relate to snow or ice (e.g., a slip and fall on a wet floor on the interior common elements) are not subject to this notice requirement.
- Second, the court retains the discretion to waive the notice requirement if it is satisfied that the person making the claim has a reasonable explanation for failing to give notice within the 60-day period, and the defendant (i.e., the corporation) has not been prejudiced in its defence by the failure to give notice. While we have yet to see how the courts will interpret and apply this provision, corporations would be well-advised to keep good records of exterior snow and ice clearing for a minimum of two years regardless of whether they have received notice of a claim.