Change to notice period in Occupiers’ Liability Act limits access to justice

Personal injury lawyer concerned majority of people won’t know about new requirement

Change to notice period in Occupiers’ Liability Act limits access to justice

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Personal injury lawyer Rachel Radomski, associate at Bogoroch & Associates LLP, says a recent amendment to the Occupiers’ Liability Act will result in “access to justice for many being restricted” and she calls the changes unfortunate.

Bill 118, the OccupiersLiability Amendment Act, came into effect on Jan. 29 and is laid out in the newly added s. 6.1 of the act:Notice period – injury from snow, ice.”  Within 60 days of an incident resulting in injury from snow or ice on a person’s property, written notice of the claim — including the date, time, and location of occurrence — must be personally served on an occupier or independent contractor.

Failure to serve notice in the new time period will result in the claim being statute-barred unless the injured party died due to their injuries or if the lack of notice can be reasonably excused, and the occupiers or independent contractors are not prejudiced in defending the claim. Given that the changes are so new, it is not yet known how reasonable excuse” or prejudice” will be interpreted. Once notice is served, theres still a two-year limitation to commence a lawsuit but Radomski’s concern is that the majority of people won’t know about this notice requirement, and on top of that in many instances injuries don’t crystallize within a certain period of time.

“Many people involved in slip and fall or trip and fall accidents hope their injuries are going to resolve quickly — sometimes it is only after a period of time that they realize their injuries are serious and, affecting most areas of their life,” she says.

Though Radomski, who does a fair amount of work in the area of slip and falls, says she has not yet as a result of this new amendment had to tell someone they couldn’t pursue a claim because the limitation period has expired, she anticipates it’s only a matter of time until that starts to happen. The Municipal Act has a ten day notice period for anyone injured as a result of an incident on city property —  as opposed to the Occupiers’ Liability Act which only applies to private property — and Radomski “can't tell you how many clients I’ve turned away with as a result of them not providing notice” in time.

“I anticipate similar circumstances in this case — I have no doubt we’ll be turning many clients away due to failure to give notice,” she says, adding even now when she’s involved in new client meetings with respect to slip and falls that occur on city or municipal property, most people don’t know about the notice period requirements.

“When I explain it to them, they’re aghast that their rights have been limited by a law they weren’t aware of,” Radomski notes.

Her advice to people involved in a slip and fall is to reach out to a lawyer as soon as possible, and have them place the potential parties on notice — or, if they do happen to be aware of the legislation, to put the parties on notice themselves — to preserve the limitation period at a minimum. After that, they can wait to see how the injury goes.

“Most personal injury lawyers operate on a contingency fee basis, so there is no harm done by retaining a lawyer early on- it is risk free for the client and preserves their rights,” Radomski says. “We do our best to advocate on their behalf and get the best compensation we can.”

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