Slip and fall accidents are common, indeed they are the most common type of premises liability cases. In winter, slipping on snow and ice is widespread and injuries can sometimes unfortunately result.
Property occupiers, including property owners and tenants, have a legal duty to keep their property reasonably safe. If the accident occurs on public property, the city might be liable. If there is an independent contractor retained by the occupier to remove snow and ice, they might be liable.
This article looks at who might be liable for winter slip and fall accidents and a recent case in the Superior Court of Justice of Ontario, which highlights the importance of promptly identifying the existence of a contractor hired to clear snow and ice from sidewalks. Circumstances vary in each case, however, so you should always contact a lawyer to discuss what options may be available to you.
Who is at fault for a slip and fall injury?
If you have been injured as a result of slipping and falling on ice or snow, you might have a claim for compensation. Property occupiers have an obligation to take reasonable care of their property – they need to maintain it in a safe condition to prevent visitors from sustaining injuries and this includes an obligation to clear snow and ice from sidewalks within a reasonable time.
The Occupier’s Liability Act allows claims against “an occupier of premises”, which includes a person who is in physical possession of premises, or a person who has responsibility for and control over the condition of, and activities undertaken at the premises, or control over persons allowed to enter the premises.
In addition, claims can be brought against an independent contractor employed by the occupier to remove snow or ice on the premises during the period in which the injury occurred.
Plaintiff slips and falls on a sidewalk in Aurora
In the recent case of Chang v Forest Ridge Landscaping Inc., the plaintiff slipped on an icy sidewalk in 2016. Almost two years later, she sued the Town of Aurora and the builder of the housing development where the accident took place.
In its statement of defence, the Town argued that the location of the fall was part of an unassumed highway for which it had no responsibility. The builder asserted that the Town was responsible for maintaining the sidewalk.
Subsequently, in 2019, the Town changed its position and informed the plaintiff’s lawyer that it had hired Forest Ridge to clear snow and ice from sidewalks in the neighbourhood where the accident took place. The plaintiff then commenced a separate action against this contractor, nearly three years after the date of the accident.
Contractor seeks summary judgment for failure to bring the claim within the statutory limitation period
The contractor sought summary judgment, arguing that the plaintiff’s claim was statute-barred by the two-year limitation period.
According to rule 20.04(2)(a) of Ontario’s Rules of Civil Procedure, a summary judgment may be granted by the court where “there is no genuine issue requiring a trial with respect to a claim or defence”. This allows the court to dispose of some cases, without the need for a formal trial.
Limitation period for the commencement of claims
According to section 4 of the Limitations Act 2002 and subject to exceptions, a proceeding must be commenced by the second anniversary of the day on which the “claim was discovered”. Section 5(1) sets out a complex test for determining this day. A claim is discovered on the day that the plaintiff first knew, or ought to have known, of four matters:
- that the injury, loss or damage occurred,
- that it was contributed to by an act or omission,
- that the act or omission was that of the defendant, an
- that a proceeding would be an appropriate means to seek to remedy it.
There is a statutory presumption in section 5(2), which provides that the claim is deemed to be discovered on the date that the negligent act or omission took place unless the contrary is proved.
Justice Dawe explained the key issue:
As in many winter slip and fall accident cases, one of the key underlying questions, in this case, is when a reasonable person in [the plaintiff’s] position would have first discovered that Aurora had hired a private winter maintenance contractor to clear its sidewalks.
Contractor fails to prove there is no genuine issue for trial
Justice Dawe noted the plaintiff’s likely position that she did not know about the contractor’s arrangement with the Town until notified by the Town via her lawyer. His Honour also found that the contractor did not provide evidence that a reasonable person in the plaintiff’s position would have realized that the Town might have hired a contractor to clear ice and snow. His Honour cited a case that said:
Where a property is obviously under the control of a large business… it may be fair to conclude, as a matter of common sense and knowledge, that a private contractor may well have been hired to clear snow and ice. Outside a small business or private residence, it may not be apparent that it is necessary to make such an inquiry. Where… the party responsible for clearing snow and ice is the municipal government, there must be some factual record to establish that a reasonable person would suppose that the City was undertaking this work with a private contractor rather than using its own employees.
Therefore, the plaintiff’s actual and presumptive knowledge presented genuine issues requiring a trial. As such, Justice Dawe dismissed the contractor’s application for summary judgment.
To overcome the limitation period issue, the plaintiff will need to prove at trial that she did not have actual knowledge of the contractor’s potential role at any time two years before the date she commenced the claim against the contractor, and also that a reasonable person with her abilities and in her circumstances ought not to have acquired this knowledge before that date.
Contact Tierney Stauffer LLP for Advice on Slip and Fall Claims
If you are injured in a slip and fall accident, it is critical to receive prompt legal advice to ensure that you meet all applicable deadlines and identify the correct defendant(s). At Tierney Stauffer LLP, our personal injury lawyers can help you to seek compensation and streamline the process to ensure your legal rights are protected. Contact us at 1-888-799-8057 or reach out online to book a consultation.