November 1, 2020
Newsletter – November 2020
Stricter notice requirements for winter slip and falls? The Occupiers’ Liability Amendment Act takes one step closer to becoming law
By Robert Smith, DWF Toronto, Email: firstname.lastname@example.org
Proposed changes to the Occupiers’ Liability Act will require parties injured due to ice or snow to provide written notice to occupiers or winter maintenance contractors within 60 days of the occurrence.
The proposed changes are found in Bill 118 and are similar to the notice requirements that municipalities have in the Municipal Act. Bill 118 has been ordered for third reading, which is the last debate before a bill is voted on and, potentially, enacted into law.
Unlike in the Municipal Act, the notice period in Bill 118 is 60 days after the occurrence, not 10 days. A 60 day notice period is still quite long, particularly considering that most premises surveillance video systems record over themselves after 30 days. Insurers and brokers who insure occupiers (including landlords or tenants who are responsible for outdoor maintenance) should consider having their insureds purchase systems that will preserve video for longer than 60 days to take advantage of this notice period.
Once a slip and fall has occurred, the new wording gives the injured party 60 days to provide written notice of the claim, including the date, time and location, served personally or sent by registered mail on either the occupier or the winter maintenance contractor.
The occupier and/or winter maintenance contractor who receive the notices are required to serve them on any other relevant party – i.e. any other occupier or winter maintenance contractor. However, there is no statutory penalty if they fail to so do. The proposed amendments do not bar an action against a party who did not receive a notice if one of the parties (occupier or winter maintenance contractor) is properly served.
The most important proposed amendment in this Bill is subsection (6), which gives a judge the ability to waive the notice requirement if there is a “reasonable excuse” for the failure to comply with that requirement “and that the defendant is not prejudiced in its defence.” This copies the wording in the Municipal Act and will likely invite the courts to refer to Municipal Act jurisprudence when interpreting this Bill.
In the context of municipal liability, the courts have held that the purpose of notice provisions is not to enable a municipality to escape liability on a mere technicality, but rather to provide a municipality with a “timely opportunity” to investigate the site of an accident and the circumstances surrounding it. Courts are attentive to this underlying rationale of allowing a municipality to investigate and correct the alleged complaint, and have said that so long as the notice gives enough information about a claim to permit the municipality to achieve these purposes, the notice will comply with the statutory requirements.
We continue to monitor the progress of Bill 118. These proposed changes will have a significant impact on winter slip and fall actions, with some actions potentially being dismissed for failure to give notice without a reasonable explanation. Timely notification of claims will allow parties to better investigate claims and collect documents at an earlier stage. Insurers and brokers should ensure that insureds follow their document preservation policies. For example, consideration ought to be given to requiring CCTV footage to be preserved for at least 60 days and ensuring there is visible signage posted advising the public of who maintains a property.
Sweeping Overhaul of PIPEDA Proposed – What the Digital Charter Implementation Act, 2020 means for Canadian Organizations
Canadians in favour of more stringent privacy laws received an early gift for the holidays: a proposed overhaul of the Personal Information Protection and Electronic Documents Act (PIPEDA). The Digital Charter Implementation Act, 2020 (DCIA) was proposed on November 16, 2020 with the aim of resolving ever-increasing issues surrounding individual control over personal data, ethical use of such data, and the growing impact of artificial intelligence. The DCIA’s proposed overhaul of PIPEDA reflects the significant pressure on Canada to keep pace with increased global standards of privacy protection. Although consumers may be pleased, Canadian organizations must now brace for requirements and restrictions much more in line with the EU’s 2018 General Data Protection Regulation (GDPR).
DCIA’s Proposed Changes
If enacted, among the most notable changes for organizations and insurers include the following:
- Part 1 renames PIPEDA as the Electronic Documents Act and enacts the Consumer Privacy Protection Act (CPPA) to govern the collection, use, and disclosure of personal information in the course of commercial activities. Organizations must create and maintain a “privacy management system” setting out policies and procedures for protecting personal information, handling complaints, and procedures for disposal. The CPPA gives individuals the right to request disposal of any personal information retained by the organization or transferred to service providers;
- Part 2 enacts the Personal Information and Data Protection Tribunal Act, establishing an administrative tribunal to impose penalties and hear appeals on decisions of the Privacy Commissioner;
- The Privacy Commissioner will have greater power to perform audits of internal corporate systems on demand, issue binding orders and recommend to the newly established tribunal that it impose monetary penalties of the higher of $10 million and 3% of the organization’s annual gross global revenue;
- An organization must continue to report breaches of security safeguards where the breach creates a real risk of harm to an individual. An organization must also maintain a record of all breaches of security safeguards. Any organization that fails to do so (or fails to comply with an order by the Privacy Commissioner) is guilty of an indictable offence and liable to a fine of the higher of $25,000,000 and 5% of the organization’s annual gross global revenue; and
- Individuals may sue for actual damages suffered if the Privacy Commissioner issues an order finding that an organization contravened the statute, and if the order is not overturned by the newly established tribunal. At this time, there is no provision for statutory damages.
It will be some time before the DCIA makes its way into law, if it passes. Organizations would be wise to start revisiting their privacy programs and procedures, their breach response plans and their ability to respond to changing legislation. Dolden Wallace Folick’s Cyber and Privacy Law Group will be keeping a close eye on the DCIA and is always available to assist your insureds.
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