Court of Appeal Rejects Late Notice Defence

April 05, 2022

By Annie Levanaj, Student-at-Law

The Ontario Court of Appeal, in Graham v. Toronto (City), 2022 ONCA 149, recently considered whether a claim against a municipality was barred due to the plaintiffs’ failure to comply with the 10 day notice requirement.

The issues involved in the appeal are relevant not only to claims against municipalities, but also to general occupiers’ liability claims involving snow or ice. As of January 29, 2021, the Occupiers’ Liability Act has required plaintiffs to comply with a 60 day notice requirement for accidents involving snow or ice.

Background

The action arose after Ms. Robyn Graham tripped on a pothole in a pedestrian crosswalk in Toronto on January 2, 2018, suffering injuries as a result. Ms. Graham and her husband claimed against the City of Toronto (the “City”) in respect of Ms. Graham’s injuries.

Section 42(6) of the City of Toronto Act, 2006, (the “Act”) requires a plaintiff to give notice of the accident to the City within 10 days of its occurrence. Ms. Graham did not give the City notice of her claim until March 22, 2018, almost three months after her trip and fall.

The Underlying Motion

The City brought a motion for summary judgment dismissing the action due to Ms. Graham’s failure to comply with the notice requirements in section 42(6) of the Act.

The motion judge dismissed the City’s motion and found that Ms. Graham’s failure to provide the 10-day notice did not bar her action, as there was a reasonable excuse for the late notice and the City was not prejudiced in its defence.

The motion judge further granted reverse summary judgment to the plaintiffs and dismissed the City’s statutory notice defence, declaring that the plaintiffs’ action was not statute-barred by s. 42(6) of the Act, despite the plaintiffs not having brought a cross-motion.  

The City appealed on two grounds:

  1. The summary judgment was the product of an unfair process; and
  2. The motion judge erred in not finding the plaintiffs’ action barred by s. 42(6) of the Act.

The Court of Appeal’s Analysis

First Ground

The City submitted that the motion judge acted in a procedurally unfair manner by granting the plaintiffs’ reverse summary judgment in the absence of a notice of cross-motion.

The Court of Appeal began its analysis of this issue by citing Drummond v. Cadillac Fairview, 2019 ONCA 447, and stated that summary judgment motions are intended, in part, to achieve fair and just results. It explained that a motion judge may grant judgment against the moving party even where the responding party has not filed a notice of cross-motion for summary judgment if the court gave the moving party some notice of that potential outcome.

The Court of Appeal highlighted different ways the court can ensure a moving party has notice of the risk of a reverse summary judgment, including:

  • in judicial regions where scheduling a summary judgment motion must pass through some form of triage or practice court, the motion scheduling request form can inquire whether the responding party intends to ask for  a reverse summary judgment;
  • at the start of a motion hearing, the judge can inquire whether a reverse summary judgment will be sought;
  • if, during the course of the hearing, the judge forms the view that he or she might grant a reverse summary judgment, the judge should so inform the parties to allow them to respond; and
  • if, during the course of preparing reasons disposing of the motion, the presiding judge forms the view that granting a reverse summary judgment might be appropriate in the circumstances, the judge should so inform the parties and afford them an opportunity to make further submissions.

Here, the motion judge had emailed counsel while her decision was under reserve and advised that, when ruling on summary judgment motions, she usually relies on certain precedents. She highlighted specific paragraphs in the decisions and requested counsel to inform her if they wished to make submissions on the cases. In one of the cited cases,the judge had granted reverse summary judgment in favour of a party despite that party not having brought a cross-motion.

Therefore, the Court of Appeal found that this submission failed, as the motion judge had put the parties on notice and afforded them an opportunity to make submissions. 

Second Ground

The City argued that the motion judge erred in applying section 42(8) of the Act, which establishes that to overcome a failure to provide a timely notice, a plaintiff must establish 1) a reasonable excuse for the delay; and 2) the defendant was not prejudiced in its defence as a result of the delay.

Reasonable Excuse

The Court of Appeal was not persuaded by the City’s submissions on this ground. The Court stated that “to determine whether a plaintiff has demonstrated a reasonable excuse, a court must decide whether, in all of the circumstances of the case, it was reasonable for the plaintiff not to give notice until she did”.

The motion judge had found that the plaintiff did not realize her injuries were serious until several months after the incident, when physiotherapy was not helping. The motion judge held that it was reasonable for the plaintiff to wait and see whether her injuries would heal before deciding to sue. Further, the motion judge noted that the delay in providing notice (approximately three months) was not lengthy.

The Court of Appeal held that the motion judge’s reasons demonstrated that she identified and applied prevailing jurisprudence concerning s. 42 (6) and (8) of the Act, took into account all the circumstances, did not fail to appreciate the relevant evidence, did not misapprehend the evidence, and did not draw any unreasonable inferences.

No Prejudice

The City had argued that it could not conduct timely investigations as a result of the plaintiff’s late notice. In particular, the City stated that it was not able to take measurements of the pothole before it was repaired.

The motion judge had identified a large body of evidence that led her to conclude that the delay in giving notice would not prejudice the City in its defence, including:

  • Ms. Graham took clear photos of the pothole within the 10 day period;
  • The City took photos of the pothole on January 19, 2018, 17 days after Ms. Graham’s fall in response to a complaint about the hole by another person;
  • The City’s field investigator who took photos determined the pothole required repair which was quickly done;
  • The City did not adduce any evidence explaining why the field investigator did not measure the dimensions of the pothole, though he had the opportunity to do so; and
  • The plaintiffs filed an expert report which opined on the dimensions of the pothole using the January 2018 photos, and the City did not cross-examine the expert.

The Court of Appeal gave deference to the motion judge’s findings and rejected the City’s position that it was prejudiced.

Since the motion judge did not make a finding about the dimensions of the pothole, the Court of Appeal found that her decision does not bar the City from advancing a defence at trial that the crosswalk was in a proper state of repair.

Conclusion

The Court of Appeal dismissed the appeal. The City will therefore not be able to assert a late notice defence at trial.

This decision shows that a plaintiff may have a reasonable excuse for providing late notice if he or she reasonably believed that the injuries from the accident would heal.  Moreover, other cases, such as Crinson v. Toronto (City), 2010 ONCA 44, have indicated that, if a plaintiff has very severe injuries which affect his or her mental state, there may be a reasonable excuse for providing late notice.

In other words, the initial severity of a plaintiff’s injuries, or lack thereof, can both be relevant factors in determining whether the plaintiff has a reasonable excuse.

However, it must be kept in mind that a plaintiff has to satisfy both elements of the test.  Specifically, the onus is on the plaintiff to show that there is a reasonable excuse and that the defendant is not prejudiced as a result of the delay.

In Kanner v. The Corporation of the City of Hamilton, 2017 ONSC 6795, Justice Braid noted that, with the passage of time and the absence of notice, a defendant may be unable to properly investigate and respond. Documents may be destroyed due to retention policies. Further, without proper notice, it may not be possible to obtain timely evidence which would otherwise have been available from employees and potential witnesses.

In Langille v. Toronto (City), 2010 ONSC 443, Justice Frank stated that “[t]he question is not how much prejudice the [defendant] has suffered but whether it has suffered prejudice”. Justice Frank accepted the evidence of the defendant that, had timely notice been given, full investigations would have been conducted. Her Honour held that “…these lost opportunities together with the diminished recall of those involved amount to prejudice”.

Therefore, if a lack of timely notice prevented the defendant from conducting investigations, the plaintiff most likely will not succeed on the notice issue.