Action Dismissed for Failing to Provide Municipal Notice

A recent decision dismissed a plaintiff's claim against a municipality for failing to give notice within 10 days, as required by the Municipal Act.

In Seif v. City of Toronto, 2014 ONSC 2983 (S.C.J.), the plaintiff tripped and fell on a sidewalk.  She did not provide notice to the City for four months.  She stated she was unaware of the Municipal Act notice requirement. She was on painkillers for 3 days, was mobile within a week of the accident and was able to focus on a job search in the weeks after the accident.  The Court found that the delay in giving notice was as a result of her indecision as to whether to bring an action.

Justice Morgan dismissed the action.  Even though the notice requirement is "very unfair", it is a specific statutory requirement that can only be changed by the legislative.  The exception to the notice requirement is to accommodate plaintiffs whose delay is as a result of their injuries.  The plaintiff had no reasonable excuse for the failure to comply with the notice requirement.  Whether or not the City was prejudice was not relevant.

This is a useful decision for those dealing with a notice issue.

Action Against Municipality Dismissed for Failure to Give Notice

The new test for summary judgment as set out in the Supreme Court in Hryniak has been applied to dismiss a claim against a Municipality for failing to give notice as required by s. 44(10) of the Municipal Act.

In Hennes v. City of Brampton, 2014 ONSC 1116 (S.C.J.), the plaintiff slipped and fell on an icy sidewalk.   He did not give notice until 18 months after the fall, contrary to s. 44(10) which provides for a 10 day notice period.  The plaintiff admitted he knew the City owned and maintained the sidewalk and that ice caused his fall.  He claimed he had a reasonable excuse for failing to give notice as he did not know how serious his injuries were until months after the fall. 

The Court did not accept that the plaintiff had a reasonable excuse; he did not seek advice about his rights or obligations for over a year after a claim was apparent.  In addition, the plaintiff bore the onus to show the Municipality was not prejudiced by the failure to give notice, and he failed to do so.  The plaintiff did not take timely photographs, and had not disclosed the contact information or a summary of a potential witness.  The action was dismissed. 

Hennes is a good example of how the new summary judgment rule can be used to dispose of a claim at an early stage.