Court of Appeal Speaks on Notice Period for Lawsuits Against Municipalities

Recently, the Ontario Court of Appeal addressed the issue of the effect of a plaintiff’s failure to provide timely notice of his slip and fall to a municipality, according to the provisions of the Municipal Act, on his lawsuit against that municipality. A gentleman who busted his ankle as a result of falling on an unsalted sidewalk in Toronto and who then endured a surgery to implant a plate and pin and a four day hospital stay thereafter, sued the City of Toronto for his injuries.

As you may know, municipalities are not like other defendants when it comes to lawsuits against them. They must be specifically notified of the intention to sue them. “Timely” notice (communication of the fact that one has fallen and the details of the allegations of negligence to be advanced against the opposing party) against a municipality is set, by section 44 of theMunicipal Act, at a period of within 10 days after the accident, failing which the opportunity to sue the municipality is lost. There is no notice period against other defendants – it is satisfied by (included in) the same two year period from the date of the accident within which a lawsuit must be commenced (called the “limitation period”).

Although various lower courts have been making exceptions to the “10-day” rule on different grounds, this is the most significant clarification by the Ontario Court of Appeal on the subject in some time. Lower courts had allowed exceptions in situations where injured plaintiffs were incapable of complying with the time limit because of the severity of their injuries. These exceptions grew out of the leniency that inspired a change to the pre-2001 version of section 44 which stipulated only a 7 day period of notice with the only exception being for plaintiffs of “unsound mind.” In other words, as the Court of Appeal stated “This evolution in the governing legislation makes clear that relief from the notice requirement is not now confined only to the narrow circumstances of a plaintiff who is so incapacitated as to be unable to give notice to the municipality.” Instead, the Court of Appeal indicated, the test will now be whether or not an excuse for failing to meet the notice deadline was reasonable and whether or not the municipality was actually prejudiced by the plaintiff’s failure to provide the required notice.

In the case of the injured gentleman above, he fell on Toronto’s sidewalk on February 4, 2004, but did not give notice to the city about it until sometime in June of that year (a period of well over 100 days). But, the curious part of this case is not so much that the time limit was exceeded (because, as I indicated above, that has been allowed before), but that the Court of Appeal agreed that one factor in their consideration of the delay was the plaintiff’s ignorance of this little known law. This is the first time that Court has acknowledged that this could be factor deserving of consideration in their analysis. Anyone who has studied law, even in high school, is familiar with the maxim that ‘ignorance of the law is no excuse.’ It would seem, however, that at least in this area of civil litigation, the law is bending ever so slightly.

Here’s why I say “ever so slightly”: the Court of Appeal did not say that ignorance of this notice law is itself sufficient to avoid a missed notice period problem – only that such ignorance is one factor it may consider in circumstances where a plaintiff’s excuse is otherwise reasonable. Presumably, if any particular plaintiff had an otherwise unreasonable excuse for the missed notice period (such as, perhaps, having gone away on a lengthy vacation right after the accident, or having simply ignored the advice of friends and colleagues who urged him or her to seek out a lawyer), and especially if the delay caused the municipality real prejudice (perhaps because witnesses had since died or other evidence was unwittingly destroyed in the interim), then the ‘ignorance of the little know law’ excuse would likely not be of much assistance.

It should go without saying that if you are ever involved in a slip and fall or motor vehicle accident – or any incident on somebody’s property or due to some malfunctioning equipment or a defective product – you should contact a lawyer immediately so as to ensure that your rights are thoroughly protected as early as possible.

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