Argue v. Tay (Township), 2012 ONSC 4622 (CanLii)
A municipality was recently successful in having a case dismissed based on the failure of the plaintiff to comply with s. 44(10) of the Municipal Act. The section requires written notice be given to the clerk within ten days of the incident. Section 44(12) provides that the failure to give notice can be excused if the plaintiff has a reasonable excuse and the defendant is not prejudiced by the lack of notice.
In Argue v. Tay (Township), the plaintiff alleged she sustained soft tissue injuries in a motor vehicle accident caused by potholes in the defendant municipality's road. She provided written notice through her lawyer almost two years after the incident. By that time, the surface of the road had changed materially. The plaintiff argued the municipality had either actual or constructive knowledge of the accident as the municipal volunteer fire department attended the scene and would have received a copy of the police report. The municipality brought a summary judgment motion seeking to have the action dismissed for failing to comply with the Municipal Act notice requirement.
DiTomaso J. held the plaintiff did not comply with the notice requirements. Section 44(10) requires written notice be given to the clerk and the fact that the fire department attended or may have received a copy of the police report was insufficient to comply with the section. There is no support in the jurisprudence that actual or construction notice pre-empts the requirement to give written notice to the clerk, and the section cannot be dispensed with in favour of notice to a different municipal department.
The plaintiff had no reasonable excuse for the failure to give notice. She was discharged from hospital the same day as the accident, had no broken bones and was able to return to work two to three weeks after the accident. She was aware people could bring lawsuits and believed the state of the road contributed to the accident, yet took no steps to inform herself about the law. She was physically and mentally able to instruct counsel.
The municipality had been prejudiced by the lack of notice. There is a presumption of prejudice where notice has not been provided and the plaintiff bears the onus of showing there was no prejudice. She failed to do so. Neither she nor the municipality had photos or measurements of the road, the condition of the road had changed materially since the accident and the municipality had lost the opportunity to interview witnesses. As a result, summary judgment was granted.
Argue is a useful summary of the relevant authorities relating to s. 44(12). Those defending municipal claims with notice issues should consider whether it would be useful to bring a summary judgment motion in the circumstances.