Slips and falls lead to almost 1,800 visits to the emergency room every day.
That makes unintentional falls the most common form of injury in Canada. The resulting injuries range from mild to severe but, on average, they keep people in hospital for 14 days following an incident.
With figures such as those, slip and falls are a serious problem. And that’s why there are laws around the prevention of slip and falls on municipal (also known as public property) and private property.
Review of Occupiers Liability Act
Ontario law dictates that individuals or organizations who own or have responsibility over property have a duty to ensure that those premises are reasonably safe for the people who use it. The Occupiers Liability Act, R.S.O. 1990, c.O.2 is one piece of legislation that governs this responsibility. Section 3(1) of the Act states that:
“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.”
If the property in question belongs to a municipality, then Section 4(1) of the Act comes into play. This section states:
“The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.”
This section applies to the recreational use of public parks and trails, for example.
When Does the Occupiers Act Apply?
Whether you’re an invited guest or customer on particular property, the person or organization who possesses or has responsibility over that property also has a responsibility for your safety. They must ensure that the property is safe for intended use by their intended visitors.
The following are some examples of conditions where the Occupiers Act would apply if an individual has a slip and fall:
- Uneven walking surfaces or walking surfaces that are unusually slippery
- Objects falling in places where falling objects are unexpected
- An inside area with water or debris on the floor making it hazardous or unsafe for walking
- Icy driveways or patios, either in a private home or at a business
- A poor state of repair, condition, and/or maintenance of the property
As mentioned, the Occupiers Act also applies to municipalities. The Act states that they must not create danger for visitors with “the deliberate intent of doing harm or damage”. Nor can they act with “reckless disregard” for people using municipal trails and parks.
However, in Labanowicz v. Fort Erie (Town), Ontario’s highest court recently found that intentional harm or damage wasn’t required in order to find a municipality liable under the Occupiers Act.
Review of Municipal Liability
The Municipal Act, 2001, S.O. 2001 is another piece of legislation governing slips and falls in Ontario. Section 44 of this Act outlines both the obligations of municipalities in maintaining municipal property as well as the obligations of people who are injured on that property.
When Does Municipal Liability Apply?
For a municipality to be liable under the Municipal Act, courts have made it clear that they must have acted in a grossly negligent manner. That means that they must have been so careless in their care of the property that it can be considered reckless disregard and, of course, that recklessness is the direct cause of harm and injury to the people using the property.
In any slip and fall case, the injured individual also has an obligation. They’re obliged not to be contributorily negligent, meaning that they must be aware of their surroundings, the potential risks, and act in a reasonable way as to reduce those risks.
That can mean anything from wearing the right pair of shoes for the trail you’re on to looking where you’re walking without being distracted. If the court finds that you contributed to your injury by being negligent, you may receive less damages.
The 10-Day Limitation
One of the most important components of municipal liability has to do with the 10-day limitation. The Municipal Act outlines a 10-day notice period in which the injured party must bring their accident to the attention of the municipal clerk.
Failure to do so doesn’t mean that the injured party cannot pursue damages in the future. Indeed, you have a two-year time limit in which you can begin legal proceedings. However, if you don’t follow the 10-day notice period, you’ll have to prove that there was a reasonable excuse for your delay or failure to give timely notice and that the delay did not result in any prejudice to the defendant as a result of the delay.
With that said, the most recent cases on the subject have demonstrated that there is a broad and liberal interpretation of reasonable excuse. In determining this, the courts will look at a number of factors:
- Capacity involves the physical and mental capabilities of the plaintiff in meeting the 10-day notice requirement.
- Awareness of the law refers to whether the plaintiff is aware of the notice requirement and its relevance to their case. This is not a reasonable excuse on its own and is only considered along with other extenuating circumstances.
- Length of delay relates to how long it took to satisfy the notice requirement. The longer the delay, the less likely that the court will recognize a reasonable excuse.
- Discoverability has been treated as a significant factor in determining reasonable excuse, but this is not automatically extended in all cases.
In addition to establishing reasonable excuse, the courts will take into consideration whether the delay caused prejudice to the defendant. The onus is on the plaintiff to establish this and, importantly, the absence of prejudice does not determine whether the court honors or extends the 10-day notice.
Have You Had a Slip and Fall Accident?
Slips and falls on public or private property cause an almost unbelievable number of injuries and hospital stays in Canada every year. This is why legislation such as the Occupiers Act and the Municipal Act cover the maintenance of private and public property in such great detail.
There is a responsibility owed to invited guests, customers, and people who use recreational parks and trails – and that responsibility lies with the people who are obligated to maintain said properties.
If you’ve been injured in a slip and fall incident on either public or private property, you may be entitled to damages. But, especially in the case of slips and falls covered under the Municipal Act, time is of the essence. Contact Sharma Law today to get the information you need to pursue your case.