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Don’t Get Caught Out in the Cold: Know Your Rights If You Slip and Fall

Winter is coming. There is no escaping the cold weather and the accumulation of ice and snow is a foregone conclusion. Accordingly, there is an increased risk of encountering slip and fall hazards.

In Ontario, property owners and/or occupiers have a duty to take such care, as in all circumstances is reasonable to ensure their premises is safe. Where circumstances warrant, property owners/occupiers must take positive action to make their premises reasonably safe. However, the law does not hold property owners/occupiers to a standard of perfection. What is reasonable will depend on the facts of each case.

If you are injured because of a fall on ice or snow, you may be able to advance a successful lawsuit for any damages you suffer.

Various timelines may apply to a slip and fall lawsuit. For example, if you injure yourself on municipal property, due to non-repair or maintenance of that property, a 10-day notice period applies, pursuant to the Municipal Act. You must notify the municipality by sending a registered letter to the Clerk within this timeframe, or you may be barred from advancing the claim. This 10-day notice provision does not apply if you injure yourself on private property.

With few exceptions, a two year limitation applies to all personal injury claims. If a formal claim is not commenced at the Court by the two year mark, your rights against anyone who may be at fault will completely expire.

If you choose to commence a claim, it is your responsibility to prove negligence, injury and/or damages, and a causal link between the two.

When seeking to prove negligence or fault, do your best to take photos of the area where you fell as soon as possible, as proof of the hazardous condition at the time of the accident. If you do not have photos showing the presence of ice or snow, it will be much more difficult to prove negligence of the property owner/occupier. Demonstrating that a hazard existed is essential. It then falls upon the property owner/occupier to show it had a reasonable system of inspection or maintenance.

Your own actions will also be important in an analysis of who is at fault. For example, you should take photos of the shoes you were wearing at the time of the fall to prove they were reasonable in the circumstances.

As mentioned, it is also the responsibility of the individual advancing a personal injury claim to prove the losses she suffers as a result of another’s negligence in order to be compensated. Without losses, advancing a law suit is not worthwhile as no compensation can be awarded. Damages can include an award of money to compensate for various things such as pain and suffering, loss of income and out of pocket expenses. Two people with similar injuries may have claims worth very different amounts of compensation depending on how well they heal and depending on how that injury affects their ability to work, for example. The value of the claim is therefore related to the extent of your proven losses.

Should you injure yourself due to someone else’s negligence, it is best to seek legal advice as soon as possible to ensure the right evidence to support your claim is preserved and applicable deadlines are not missed. HWS

Blog post written by Lucianna Saplywy, a partner at Daniel & Partners LLP, practicing exclusively in personal injury.

Every case is unique. For more information or to schedule a consultation, call 905.688.9411 or email saplywyl@niagaralaw.ca.

This article was featured in HWS Magazine.

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