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Measuring effect of changes to Occupiers’ Liability Act | Rohan Haté

Friday, March 12, 2021 @ 11:12 AM | By Rohan Haté


Rohan Haté %>
Rohan Haté
Anytime a change in legislation takes place, we have an opportunity to measure its effectiveness over time by looking at the immediate, short-term and long-term impacts that follow.

Amendments to Ontario’s Occupiers’ Liability Act will require anyone planning to file a legal claim after being injured in a slip and fall caused by snow or ice to notify the occupier or their contractor within 60 days of the incident rather than two years.

The objective of the amendments is to reduce insurance premiums for snow maintenance companies that have faced significant surges in insurance costs following slip-and-fall claims made against them. To understand the impact these changes will have on lawyers and their clients, let’s consider the effect changes in recent years to Ontario’s Insurance Act have had on drivers’ insurance premiums and access to accident benefits in this province.

When the Minor Injury Guideline was implemented in 2014, the idea was that people would be fairly compensated for injuries stemming from incidents such as car accidents and would not need to bring claims on the tort side. Fewer claims would trigger insurance companies to reduce premiums for drivers. We all know how that worked out.

During the debate in the legislature over Bill 118, Sudbury MPP Jamie West said that while reducing “frivolous” claims is a laudable goal, it’s unreasonable to think the changes will have the spinoff effect of lower insurance premiums for snow maintenance contractors.

“[T]he goal of this bill is to limit the amount of time that you have to put in a lawsuit with the hopes that it will bring the insurance down. If it doesn’t bring the insurance down, we’re back to square one. Frankly, when I asked some of the insurance brokers, ‘Will this bring insurance down?’ the answer was basically, ‘Maybe. Maybe it will.’ They’re going to watch over two or three years. If the claims go down, then insurance might go down. But my history with insurance is that your rates never go down. I’ve never heard insurance say, ‘Let me pick up the cheque for that.’ ”

Changes to the Insurance Act have done nothing to reduce premiums for drivers in Ontario. All it’s done is create multiple hurdles for injured people and challenges around being adequately compensated. It’s left a gap where people aren’t fairly compensated because their injuries either don’t meet the threshold or exceed the deductible, which is constantly increasing every year due to inflation.

The only people who have benefited from the auto insurance legislation are senior executives in insurance companies.

In the debate, MPP for Niagara Centre Jeff Burch pointed to the lack of consultation with lawyers as problematic, saying the real concern is “insurance gouging.”

“The insurance industry has been running amok in the province for years now. However, the solution to that problem is not and cannot be short-changing victims. When someone gets hurt, the last thing on their mind should be, “How fast can I get a lawyer?” It should be getting the medical care they need and taking the time to recover. If this bill passes, it will mean even more pain and suffering for those who have been hurt because of someone else’s negligence.

“By bringing in these unnecessary time limits, we’re not only making it harder for people to get the healing and compensation they deserve, but we also risk letting landlords off the hook when it comes to their duty to keep people safe on their property,” Burch argued.

Our justice system is grounded in the protection and preservation of the public’s legal rights. As personal injury lawyers, we represent people facing a protracted recovery from injuries they sustained through no fault of their own. It’s concerning that changes to the Occupiers’ Liability Act could effectively bar legitimate claims from people who have been seriously harmed.

The nature of injuries is that it can take time to understand their full effect on a person. Broken bones or fractures are clear cut, but with spinal cord or soft tissue injuries, it could be months before we know the bearing they have on the person’s day-to-day life. After a slip and fall, someone might experience neck or back pain, and months later, when it still hasn’t resolved, an MRI diagnosis shows a herniated disc that requires surgery.

In the near term, I expect to see a reduction in the number of claims involving slip and falls on snow or ice simply because people don’t know about the new time limits. There are exceptions, but the decision on whether or not the claim can proceed will be at the court’s discretion.

If we look at the impact a couple of years down the road, these changes may trigger an avalanche of claims. Once the public understands there’s a 60-day deadline for slips and falls involving snow or ice, they’re going to contact a lawyer, and out of an abundance of caution, the lawyer will place the party on notice. That will trigger the opening of a claim and reserves will be set aside until the claim is resolved.

As lawyers, it’s important for us to educate the public on changes to the notice period to ensure they have access to justice.

Rohan Haté is a partner at McPhadden Samac Tuovi Haté LLP and practises primarily in insurance litigation. His practice is committed to all areas of personal injury litigation on behalf of his clients and their families who need guidance and support in navigating through the insurance claims process. He can be reached at 416-306-3817 or atrhate@mcst.ca.

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