The dangers of trip, slip and fall accidents are well known. Injuries can result from slipping on ice and snow in the winter or can occur after tripping in other locations including shopping malls, grocery stores, or relevantly for this article, pedestrian crosswalks maintained by municipalities.

However, less well known is the Ontario legislation that requires injured persons, when suing municipalities, to give written notice of the claim within 10 days after the occurrence of the injury. 

In this blog, we take a brief look at this requirement, along with a recent decision of the Court of Appeal for Ontario which examined the circumstances in which this requirement might be relaxed. 

Plaintiffs have 10 days to notify municipalities of claims

Under the Municipal Act 2001, the municipality that has jurisdiction over a highway or bridge is required to keep it in a state of repair that is reasonable in the circumstances. If a municipality fails to do this and a person seeks to recover damages, an action cannot be brought, except in the case of death, unless the plaintiff provides written notice of the claim and the injury, including the time, date and location of the event, to the clerk of the municipality or municipalities. This needs to take place within 10 days after the occurrence of the injury unless there is a reasonable excuse and the municipality is not prejudiced in its defence. Similar requirements apply under the City of Toronto Act 2006.

If an injured plaintiff does not provide notice to the municipality within 10 days, they must satisfy the court that the delay was reasonably justified and that the municipality’s defence is not prejudiced by the delay, in order to proceed with the action. 

We recently wrote about a January decision from the Ontario Court of Appeal in which an action against the City of Toronto was dismissed because the plaintiffs failed to establish a reasonable excuse for their delay in providing notice. The following month, the Ontario Court of Appeal released its decision in Graham v. City of Toronto which also considered the reasonableness of a plaintiff’s delay in providing notice.

Plaintiff tripped on a pothole in a pedestrian crosswalk

In January 2018, the plaintiff in tripped on a pothole in a pedestrian crosswalk in mid-town Toronto. She tore her right shoulder rotator cuff, hurt her right elbow, right arm and hand, and strained her neck. The injuries required surgery in April 2019.

As a result of the injuries she suffered, the plaintiff subsequently sued the City of Toronto but did not give the City notice of her claim within the 10-day period. She waited until late March 2018, just short of three months after the trip and fall.

City seeks summary judgment for failure to provide prompt notice

The City sought summary judgment, arguing that the plaintiff had breached the statutory notice 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.

Courts find that there was a reasonable excuse justifying the delay

At the Superior Court of Justice, helpfully summarized the factors that are relevant to whether a plaintiff had a reasonable excuse as follows:

  • The seriousness of the injury, including whether surgery was required, the duration of the plaintiff’s stay in hospital if any, the nature and amount of medications required, the subsequent therapy required, and the impact it had on the plaintiff’s career and mental health
  • Whether the plaintiff was capable of forming the intention to sue the municipality within the notice period or had a representative whose responsibility it was to do so
  • The length of delay 
  • Any explanation for the reason for delay

The court found that the plaintiff’s delay in providing notice was reasonable as she initially did not know about the notice requirement, and was told her injuries would heal with physiotherapy. She only realized after several months that her injuries were not improving and decided to sue. The delay was also only three months long, which was shorter than other cases where the delay had been found to be reasonable. 

Courts find that the City was not prejudiced in its defence

The purpose of the notice is to allow a municipality to do a timely investigation of the scene, potential witnesses and records. In this case, the City’s defence was unaffected by the plaintiff’s delay. The City had taken photographs 17 days after the fall, in response to a complaint by another person. There was also other evidence documenting the size of the pothole (photos taken by the plaintiff and her expert evidence).

As the plaintiff’s delay had not prejudiced the City’s ability to mount its defence, the Superior Court of Justice declined to grant summary judgment in favour of the City and ruled that the plaintiff’s claim should be allowed to proceed. 

Upon appeal, the Ontario Court of Appeal agreed with the reasoning of the Superior Court and found the plaintiff had provided a reasonable excuse for her delay in providing notice of her claim to the City. The appeal court also agreed that the City had not been prejudiced by the delay. The decision to deny the summary judgment motion was affirmed, leaving the plaintiff able to continue her action against the City of Toronto.

Contact Tierney Stauffer LLP for Advice on Trip, Slip and Fall Accidents

If you are injured in an accident, it is critical to receive prompt legal advice to ensure that you meet any applicable deadlines, such as providing notice to a municipality. At Tierney Stauffer LLP, our personal injury lawyers 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 set up a consultation today.

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