Two days ago I blogged on a comment left from an Indian lawyer to my blog of February 27, 2010.
That discussion revolved around the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The case has received attention in an article by Stuart Huxley, legal counsel, City of Ottawa, in a case comment printed in the Municipal Liability Risk Management journal, (2009-10) 11 Mun. L.R. Mgt. (Volume 11, Number 4).
In that article, Mr. Huxley helpfully reviews the history of the Court of Appeal decision and noted that the trial judge had found that the plaintiff was in the hospital for five days after the trip and fall, which included surgery, and during that period was on morphine and Tylenol. The plaintiff was drowsy and "out of it". Following his discharge from the hospital, the plaintiff took Percocets for two weeks. Despite this medication, the trial judge held that the plaintiff was not so incapacitated that he was unable to arrange for the required notice to be given to the municipality. Thus the plaintiff's claim was held to be statute barred by the trial judge.
The Court of Appeal reversed. The Court of Appeal held that there was ample evidence to support "reasonable excuse".
Mr. Huxley concludes his article with the realistic comment that failture to give notice as required by the Municipal Act, 2001 months after an accident will require a municipality to consider whether to push the notice defence. Questions that municipalities will continue to face will be whether or how a municipality should defend such actions or whether they should just concede and pay.