In August of last year, we reported on Argue v. Tay (Township), in which the action was dismissed for the failure to give notice required by s. 44(10) of the Municipal Act. The plaintiff argued that the municipality had actual or constructive knowledge of the accident because the municipal fire department attended the scene. The matter was appealed to the Court of Appeal, which has now dismissed the appeal at 2013 ONCA 247 (CanLii).
The Court of Appeal confirmed that the plaintiff had the onus of establishing that she had a reasonable excuse for not providing notice and that the municipality was not prejudiced. The motions judge held that she failed to meet her onus. The Court of Appeal found no error in the motion judge's analysis or his application of the relevant principles.
This is an extremely helpful decision in cases where the plaintiff has failed to provide notice to the Municipality.