Late Notice and Lack of Duty of Care: Dismissal of Municipality Trip and Fall Claim

March 20, 2024

In Marderosian v. City of Niagara Falls, 2024 ONSC 1043, the Corporation of the City of Niagara Falls brought a summary judgement motion to determine whether the plaintiff’s claim was barred for lack of timely notice, as well as whether it had a duty of care to maintain areas occupied and maintained by private homeowners, even if the area is located within a municipality road allowance.

Background

The plaintiff, Ms. Marderosian, brought an action to recover damages she sustained due to a trip and fall incident that occurred near her home on Drummond Road in Niagara Falls, Ontario on December 13, 2017. The plaintiff was walking her dog when she encountered some pedestrians blocking the sidewalk near a bus stop. To bypass them, the plaintiff stepped off onto a snow-covered front lawn of a nearby property. While walking behind a tree on the property, the plaintiff fell and sustained injuries.

In their Factum, the City acknowledged that the tree the plaintiff fell on was City property, however the subject fall occurred on private property. They further argued that even in the event that the subject fall occurred on a road allowance (as this is an “untravelled portion of the highway”), the City is protected under s. 44(8) of the Municipal Act.

The plaintiff argued that it did not matter where the fall occurred, what mattered was that she was forced off the sidewalk due to the City’s failure to clear snow and ice and breaching its duties under the Municipal Act.

Courts Analysis

Late Notice

S.44(10) of the Municipal Act requires in individual to deliver written notice of an occurrence of injury within 10 days after the incident has occurred. However, as indicated in s.44(12), an individual is not barred to the action due to lack of notice if a judge can find that there is a reasonable excuse to the insufficiency of notice and the municipality is not prejudiced in its defence.

The plaintiff failed to provide notice to the City of the incident until more than 70 days after the trip and fall. The plaintiff alleges that the following reasons should constitute a “reasonable excuse” for the delayed notice of the incident:

She was solely focused on trying to heal her injuries;
She was “stuck at home” with low mobility;
She attended physiotherapy several times, hoping she would overcome her injuries;
She attended her doctor several times and realized her condition was not improving; and
Until February 14, 2018, she believed her injuries would improve and that pursuing a claim for damages would not be necessary.

Justice Sheard concluded that the plaintiff failed to provide a sufficient reasonable excuse for her failure to notify the City of the incident. He affirmed that a lack of awareness of the notice requirement, by itself, does not constitute a reasonable excuse. He found that the plaintiff was both physically and mentally capable of investigating her legal rights following the accident.

Justice Sheard also agreed with the reasoning adopted by Justice Braid in Spence v. The Corporation of the City of Brantford, et al., 2018 ONSC, which established that delay in receiving notice of a trip and fall incident deprives the defendant the opportunity to investigate the incident through examining the sidewalk conditions, interviewing witnesses and making inquiries, all of which can cause significant prejudice. Justice Sheard also found that prejudice against the City in this incident is presumed, and that the onus is on the plaintiff to disprove or rebut the presumption of prejudice.

Did the City owe a duty of care to the plaintiff?

The plaintiff submitted that the City’s failure to maintain and clear the snow conditions at the bus stop led to the trip and fall incident. However, Justice Sherard held that the evidence presented in this matter confirmed that the subject sidewalk was adequately plowed and that the plaintiff’s decision to walk off the sidewalk and onto the lawn was her own decision and could not be attributed to any negligence by the City.

Justice Sheard affirmed that the purpose of the Municipal Act was to protect a municipality from liability arising from defects existing beyond a travelled portion of a highway arising from conditions of non-repair in locations where the public would not be expected to go. Furthermore, Justice Sheard reiterated, as affirmed in previous case law[1], that there is no obligation, statutory or otherwise, on the City to maintain the road allowance where the plaintiff fell, in this case a private yard, even if the yard was located over the city right-of-way.

Decision and Takeaways

Consequently, Justice Sheard granted the City’s motion for summary judgment and dismissed the plaintiff’s claim in its entirety.

This decision serves as a reminder of the Court’s strict interpretation of “reasonable excuse” for late notice pursuant to the Municipal Act, and reinforces the fact that it is the claimant’s onus to disprove prejudice to a municipality due to late notice of an incident.

This decision also confirms that municipalities owe no duty of care to maintain an area which is part of a private homeowner’s premises, even in instances where the area is technically part of a municipal road allowance.

[1] Rose v. Toronto Community Housing Corporation, 2018 ONSC 5004; Grosbeak v. Abram, 2014 ONSC 1674.