With the Recent Change to Occupier Liability Law Requiring Landlords and Tenants to Inform Each Other When a Slip & Fall Notice Is Received, What Can Happen If a Tenant Fails to Actually Do So?
A Tenant May Be Evicted For Failing to Advise the Landlord of a Notice of Slip & Fall Incident May Be Evicted.
Understanding the Recent Changes to Occupier Liability Law Including Slip and Fall Notice Requirements
The legal duty upon a landlord or tenant to inform the other when either receives notice of a slip & fall incident from an injury victim became a statutory duty as prescribed per the recently passed Bill 118 as the Occupiers' Liability Amendment Act, 2020 which makes various changes to the Occupiers' Liability Act, R.S.O. 1990, c. 0.2 by implementing such a mandate.
The New Law
What Changes Did Bill 118 Make?
In addition to other changes, Bill 118 - Occupiers' Liability Amendment Act, 2020 amends the Occupiers' Liability Act so as to impose two key requirements:
- The requirement that a slip & fall injury victim provide formal notice to an occupier of the premises where the incident occurred, such as an owner, a tenant, a property manager, a contractor, or another person or entity who holds the responsibility for the care and control of, or for the activities occurring upon, the premises and to provide such formal notice within sixty (60) days in writing and delivered by registered letter or served personally upon the occupier.
- The requirement that the occupier who receives a formal notice about a slip & fall incident to promptly forward notification of the incident to all other occupiers of the premises.
Specifically, Bill 118, as the Occupiers' Liability Amendment Act, 2020, states:
1 In this Act,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises; (“occupant”)
“premises” means lands and structures, or either of them, and includes,
(b) ships and vessels,
(c) trailers and portable structures designed or used for residence, business or shelter,
(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”)
Common law duty of care superseded
2 Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.
3 (1) 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.
Risks willingly assumed
4 (1) 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.
(2) A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1).
Trespass and permitted recreational activity
(a) where the entry is prohibited under the Trespass to Property Act;
(b) where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or
(c) where the entry is for the purpose of a recreational activity and,
(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and
(ii) the person is not being provided with living accommodation by the occupier.
1. A fee charged for a purpose incidental to the entry or activity, such as for parking.
2. The receipt by a non-profit recreation club or association of a benefit or payment from or under the authority of a government or government agency.
Premises referred to in subs. (3)
(a) a rural premises that is,
(i) used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,
(ii) vacant or undeveloped premises,
(iii) forested or wilderness premises;
(b) golf courses when not open for playing;
(c) utility rights-of-way and corridors, excluding structures located thereon;
(d) unopened road allowances;
(e) private roads reasonably marked by notice as such;
(f) recreational trails reasonably marked by notice as such; and
(g) portage routes.
Restriction of duty or liability
5 (1) The duty of an occupier under this Act, or the occupier’s liability for breach thereof, shall not be restricted or excluded by any contract to which the person to whom the duty is owed is not a party, whether or not the occupier is bound by the contract to permit such person to enter or use the premises.
Extension of liability by contract
(2) A contract shall not by virtue of this Act have the effect, unless it expressly so provides, of making an occupier who has taken reasonable care, liable to any person not a party to the contract, for dangers due to the faulty execution of any work of construction, maintenance or repair, or other like operation by persons other than the occupier, employees of the occupier and persons acting under the occupier’s direction and control.
Reasonable steps to inform
(3) Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed.
Liability where independent contractor
6 (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.
(2) Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises.
(3) Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor.
Application of ss. 5 (1, 2), 6
7 In so far as subsections 5 (1) and (2) prevent the duty of care owed by an occupier, or liability for breach thereof, from being restricted or excluded, they apply to contracts entered into both before and after the commencement of this Act, and in so far as section 6 enlarges the duty of care owed by an occupier, or liability for breach thereof, it applies only in respect of contracts entered into after the 8th day of September, 1980.
Obligations of landlord as occupier
8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.
(2) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.
(3) For the purposes of this section, obligations imposed by any enactment by virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy, an implied tenancy and any contract conferring the right of occupation, and “landlord” shall be construed accordingly.
Application of section
(4) This section applies to all tenancies whether created before or after the commencement of this Act.
Preservation of higher obligations
9 (1) Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of,
(a) innkeepers, subject to the Innkeepers Act;
(b) common carriers;
Employer and employee relationships
(2) Nothing in this Act shall be construed to affect the rights, duties and liabilities resulting from an employer and employee relationship where it exists.
Application of Negligence Act
Act binds Crown
(2) This Act does not apply to the Crown or to any municipal corporation, where the Crown or the municipal corporation is an occupier of a public highway or a public road.
Application of Act
11 This Act does not affect rights and liabilities of persons in respect of causes of action arising before the 8th day of September, 1980.
Notice period — injury from snow, 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 the 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).
1. An occupier.
2. An independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.
Copy of notice
(a) any occupiers of the premises during the relevant period in which the injury occurred; and
(b) any independent contractor employed by the occupier to remove snow or ice on the premises during the relevant period in which the injury occurred.
(4) An independent contractor employed by an occupier to remove snow or ice on the premises that receives a notice under subsection (1) shall personally serve a copy of the notice on, or send the notice by registered mail to, the occupier that employed the independent contractor.
(6) Failure to give notice in accordance with subsection (1) or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the defendant is not prejudiced in its defence.
Notice effective against all persons
(7) For greater certainty, the limitation on bringing actions after the 60-day period set out in subsection (1) no longer applies if notice is provided in accordance with that subsection to any person listed in subsection (2), even if the action is to be brought against a person that did not originally receive the notice.
Interestingly, per section 6.1(1) within the new law, the penalty upon the slip & fall injury victim for failing to issue the required notice is the potential loss of rights to bring a lawsuit seeking compnesation for the injury if the victim fails to provide the sixty (60) days notice as required; however, the new law lacks any penalty applicable to an occupier for failing to comply with the duty to notify other occupiers of the incident when such an incident is reported by the slip & fall victim.
Problems For Occupiers
Among other things, the new law was created with an intended purpose of requiring a slip & fall injury victim to provide prompt notice to an occupier so to ensure tha the occupier is informed of the incident and aware of a need to gather and preserve evidence that may be necessary for the occupier to mount a defence against the potential lawsuit. An intended societal benefit is to ensure that occupiers are better able to prepare and defend against slip & fall lawsuits and thereby help to reduce frivolous lawsuits and associated insurance coverage difficulties currently facing occupiers of premises as well as the winter services contractors hired by occupiers. Accordingly, the legal teeth of possible loss of rights to an injury victim for failing to provide the required notice addresses this concern. However, without a penalty imposed upon an occupier that receives notice from the injury victim but fails to notify other occupiers as required, the intended benefit of ensuring a trickle-down-effect of notice to other occupiers, who may also need to prepare for a potential lawsuit, may be lost.
Problem Involving a Residential Tenant
As above, the new law requires a slip & fall injury victim to provide notice to any occupier; and accordingly, it is quite possible, perhaps quite likely, that the notice will be provided to the occupier that is actually at the premises where the incident occurred such as a tenant as the occupier that resides at the premises. Also as above, once the injury victim provided the required notice to any occupier, such as a tenant living at the premises, the injury victim duties are fulfilled and the injury victim thereafter holds rights, per section 6.1(7), to sue any and all of the occupiers despite that the injury victim notified only one occupier, such as the tenant, and despite that the tenant may fail to provide notice to other occupiers, such as the landlord and any affected winter services contractor hired to perform snow and ice control.
The risk that a tenant may receive notice of a slip & fall incident and take a disinterested and apathetic interest, meaning a throw-it-in-the-trash type attitude is heightened whereas a residential tenant is statutorily without a duty to perform snow and ice control whereas such a duty is statutorily prescribed to the landlord as per section 20 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 and contractually altering such a duty within lease terms is forbidden per section 4 of the Residential Tenancies Act, 2006. Specifically, these sections state:
Landlord’s Responsibility to Repair
20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
Provisions Conflicting With Act Void
4 (1) Subject to subsection 12.1 (11) and section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void.
Accordingly, and while there is a very limited way in which the duty to perform snow and ice control can be legally shifted to a tenant (as a contractor rather than as the tenant), it will usually be the landlord and hired winter services contractor who bear the risk of slip & fall lawsuits that occur at a residential complex, whether the complex is a single-family dwelling or a high-rise apartment building with hundreds of tenants. As such, the failure of the landlord or hired winter services contractor to receive in-turn notice from the tenant who received notice of a slip & fall incident, places the landlord or hired winter services contractor into a position of significant legal risk and jeopardy in the ability to fend off a liability claim. As implied above, without some form of legal penalty against a tenant who fails to inform the landlord of the slip & fall incident, the tenant is without a motivating force to ensure compliance with the duty to do so.
Possible Solution For Landlord Concerns
With all of the above said, there actually does exist a legal force that should motivate a tenant to report a slip and fall, or any other, incident to a landlord, being the right, per section 64 of the Residential Tenancies Act, 2006, to pursue an eviction of the tenant where the tenant substantially interferes in the legal rights of the landlord. Specifically, section 64 states:
64 (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.
As shown within section 64, where a tenant substantially interferes in the rights of the landlord, a tenant may be evicted; and accordingly, where a tenant is statutorily required as per the new law prescribed at section 6.1(3) of the Occupiers' Liability Amendment Act, 2020 to pass along details of a notice of a slip & fall incident, and yet the tenant fails to do so, and thereby jeopardizes the ability of the landlord to defend such a lawsuit, and therefore also impairs the ability of the landlord to notify any relevant contractors for which there is likely a contractual obligation upon the landlord to inform such contractors, such would indeed seem as a substantial interference in the rights of the landlord and provide the landlord with cause to evict the tenant.
The law recently changed so to impose a legal duty upon all occupiers of premises, meaning landlords and tenants, among others, to notify each other when a notice of a slip & fall incident is received from an injury victim. Strangely, while the law states that landlords and tenants must notify each other, the law that was changed, being the Occupiers' Liability Act, is silent about penalties for failing to obey this new duty. However, where a tenant fails to notify a landlord, section 64 of the Residential Tenancies Act, 2006 does provide a right to a landlord to seek eviction of a tenant when a tenant substantially interferes in the rights of a landlord; and accordingly, it is perceived and presumed, until case decisions follow that either concur or disagree, that where a tenant fails to notify a landlord of a slip & fall incident, the tenant may be evicted.