Ontario legislators have passed a bill intended to make it easier for its professional snow and ice community to defend against slip-and-fall lawsuits.
Bill 118, also called the Occupiers' Liability Amendment Act, received its third reading Dec. 3 and places a 60-day time limit on a plaintiff to give notice of a slip-and-fall claim. Likewise, written slip-and-fall claims must provide the date, time, and incident location and be sent to at least one of the snow removal companies involved, or the occupier of the property, but do not need to include details of the claim, according to the bill. Ontario courts will still be able to make exceptions to the limit depending on the circumstances.
Bill 118 still must receive royal assent by the lieutenant governor to become law.
Member of Provincial Parliament Norm Miller (Parry Sound-Muskoka) submitted the bill last May after hearing news about skyrocketing insurance costs for Canadian snow and ice management professionals due primarily to slip-and-fall claims made against them, according to a recent article in Insurance Business Canada. The bill originally planned to change the time limit to give notice of a slip-and-fall claim from two years to 10 days but was recently amended to 60 days.
Bill 118 will go a long way toward dealing with frivolous slip-and-fall claims, says Tony DiGiovanni, Executive Director of Landscape Ontario, an advocate for the bill. And he anticipates it could make the market more attractive for insurance companies to resume underwriting snow and ice professionals.
“The insurance industry primarily uses actuarial math to determine its policies, premiums and risk tolerances,” DiGiovanni says. “They are exiting the snow sector because of increased slip-and-fall claims … as well as other factors. If Bill 118 helps to mitigate frivolous claims, then the math improves. This should make it easier for insurance companies to come back into the business.”
While well intended, Bill 118 may lack the punch to dissuade plaintiff’s attorneys from filling the courts with frivolous slip-and-fall claims, says Kevin Gilbride, Executive Director of the Accredited Snow Contractors Association (ASCA). The bill’s intention in contracting the claim period from two years to 60 days is to alleviate bogus claims, he says, with the thinking that a claim filed nearly two years after the alleged slip-and-fall would be more difficult for a snow professional and insurance provider to defend against due to hazy memories and possible lack of reliable event-service records.
“I applaud the efforts of MPP Miller, Landscape Ontario and the local snow and ice professional community for generating support for Bill 118,” Gilbride says. “I know firsthand the amount of hard work, support and dedication required to get legislation that levels the playing field for snow and ice professionals passed through the halls of government.
“However, at this time there is some question as to the real long-term benefit Bill 118, or any legislation similar to Bill 118, will have to thwart frivolous slip-and-fall claims,” Gilbride says.
“I believe the greater issue snow and ice professionals have with slip-and-fall liability is the contractual language that places all of the liability on their shoulders,” he says. “The ASCA’s Model Legislation addresses this by holding snow professionals harmless if they are instructed not to service a property by the client. And we’ve been successful in getting this concept adopted in Illinois, Colorado and Connecticut, and in front of a number of other snow-state assemblies for consideration and future adoption.”
In addition, the creation of the Industry Standards by the ASCA established processes and procedures for collecting proper site and event documentation. “Accurate and comprehensive documentation is critical when defending a slip-and-fall claim filed 6 days, 60 days or six years after an event,” Gilbride says. In addition, ASCA-C certification enforces that snow professionals understand Industry Standards’ principles, and ISO 9001/SN 9001 certifies these principles are in practice within a snow and ice management operation.
“While I am hopeful this has great success for our Ontario-based contractors, in my opinion, Bill 118 addresses only a small portion of a much larger issue contractors face with slip-and-fall and an insurance industry that is actively abandoning professional snow contractors," Gilbride says.
“I fear the work around to Bill 118 will be an aggressive marketing campaign by plaintiff’s attorneys encouraging people to file notice immediately on any slip-and-fall incident, just in case it may have merit,” he says. “This could result in an inadvertent increase in cases. And any slip-and-fall claim can be dropped without penalty if it looks like there’s evidence to contradict the claim or that the contractor’s insurance provider is willing to fight the matter in a costly court battle.”
DiGiovanni disagrees, adding a 60-day limit is preferable to two years because it is much easier for a snow and ice professional to defend a claim if it made within 60 days of the alleged slip-and-fall incident.
“It will be more difficult for fraudulent claims to come forth,” he adds. “If a plaintiff is going to sue 60 days or two years is not going to make a difference in frequency. It is all about having the data to mount an effective defense in the case of frivolous claims.”
Bill 118 is not the only avenue they’re pursuing to remedy the insurance situation for Ontario’s snow and ice professionals,” DiGiovanni says. For example, they are promoting the “New Hampshire Model” based on the Green SnowPro & SALT Applicator Certification-Training offered by the University of New Hampshire. CLICK HERE for more information on that program.
In addition, Ontario has adopted the Smart About Salt accreditation. This is administered through the non-profit Smart About Salt Council (SASC), which offers training throughout North America to improve winter salting practices on facilities through certification.
“We are promoting the idea that Smart About Salt accredited companies should also have protection [from liability] unless there is negligence,” he says.
While it is the hope that Bill 118 and other remedies will reduce risk, DiGiovanni says insurance providers have not indicated they would reconsider their recent price hikes or re-enter the market.
“If the reason [insurance providers] are exiting [the snow and ice market] is because of high risk, then Bill 118 and our other potential remedies will remove much of the risk,” he says.
Mike Zawacki is editor of Snow Magazine. You can reach him at firstname.lastname@example.org.
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