Unfortunately, thousands of people are injured in Ontario in car and truck accidents every year. Sometimes, injuries can be caused by the negligent driving of others. Some other times, municipalities can be held liable for damages, for example where they have jurisdiction over a highway or bridge but fail to keep it in a reasonable state of repair.

The recent case of Psaila v Kapsalis and City of Toronto demonstrates the importance of notifying the municipality of the claim within the statutory deadline.

Municipalities are required to maintain highways and bridges

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. 

A municipality that fails to do so is, subject to the Negligence Act, liable to pay damages sustained because of this failure. This does not apply in certain circumstances, for example, if the municipality could not reasonably have been expected to have known about the highway’s state of repair, it took reasonable steps to prevent the default from arising, or it complied with any minimum standards established by the Minister of Transportation.

Importantly, except in the case of death, the plaintiff must provide 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.

Plaintiff suffers motor vehicle accident

In 2015, the plaintiff was in a motor vehicle accident. Shortly after, he served a notice of claim on the driver and owner of the other vehicle involved in the collision. In 2018, the defendants served an expert engineering accident reconstruction report, and the plaintiff retained an expert engineer to respond. The plaintiff’s expert advised his lawyer to put the City on notice as there might have been a potential negligence claim due to an intersection design issue. The plaintiff provided the City with notice and the City was added as a defendant in 2019.

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.

Judge decides that there was no reasonable excuse justifying the delay

Justice Vella of the Superior Court of Justice of Ontario stated that the burden was on the plaintiff to prove that there was a reasonable excuse for the delay and that the City was not prejudiced in its defence. Her Honour noted that:

The Act imposes a very short time requirement on the plaintiff to provide the City with notice of a potential claim against it. However, the imposition of a short notice period is within the prerogative of the Legislature and supports its public policy decision … That said… the words “reasonable excuse” are to be given a liberal interpretation because the plaintiff has the additional burden of demonstrating that the delay has not caused prejudice to the City.

In applying the first part of the test, Justice Vella explained that determining whether the plaintiff had a reasonable excuse is informed, in part, by when the plaintiff acquired knowledge of the facts upon which potential liability against a municipality may be grounded. However, the plaintiff cannot “sit on his rights” and must exercise due diligence in pursuing these facts.

Her Honour decided that waiting to hire an expert engineer until after the defendants produced an accident reconstruction report did not constitute a reasonable excuse justifying the delay. In the circumstances of the case, the plaintiff did have knowledge of sufficient facts to underpin a potential claim against the City before the defendants hired their expert. Her Honour found that a reasonably prudent plaintiff would have investigated the intersection and put the City on notice, particularly after the defendants blamed the plaintiff for not avoiding the collision.

As such, Justice Vella held that the plaintiff did not satisfy the test and granted summary judgment in favour of the City. 

The plaintiff appealed to the Court of Appeal for Ontario.

Court of Appeal agrees that the plaintiff cannot proceed against the City

Justices of Appeal Huscroft, Trotter and Coroza dismissed the plaintiff’s appeal and upheld the decision that the plaintiff had failed to establish a reasonable excuse for the delay in providing notice. 

Their Honours noted that the plaintiff was provided with the benefit of a “broad and liberal interpretation” of reasonable excuse. They said:

The appellant knew the location of the accident, knew of the City’s responsibility for designing and maintaining it, and knew that the defendants were blaming him for failing to avoid the collision. As the motion judge noted, the defendants’ allegation was premised on the assumption that the design and layout of the intersection permitted a reasonably prudent driver to have seen the defendants’ vehicle and take defensive action to avoid a collision. Her conclusion that this should have led the appellants to investigate the intersection and put the City on notice of a potential claim is reasonable.

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, we understand that car and motor vehicle accidents are extremely stressful, especially when they result in injury. 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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