Court Rejects Late Notice Defence

In Graham v. City of Toronto, 2021 ONSC 2278, the plaintiff tripped on a large, deep pothole. She tore her right rotator cuff and sustained other injuries. She required surgery one year and three months after the accident.

Under the City of Toronto Act, 2006, the plaintiff was required to give notice of the accident to the City of Toronto within 10 days. However, she did not provide notice until almost three months after the accident. The City of Toronto brought a summary judgment motion, seeking a dismissal of the action due to the late notice.

In order to overcome a failure to provide timely notice, a plaintiff must establish: (1) there is a reasonable excuse for the delay in providing timely notice, and (2) the defendant has not been prejudiced in its defence as a result of the delay.

Justice Papageorgiou held that the plaintiff had a reasonable excuse for providing late notice.

The plaintiff did not know about the notice requirement. Although she may have been told by her doctor that her injury was serious and that she should sue and/or put the City on notice, the doctor also told her that the injuries would heal with physiotherapy. The plaintiff only realized several months later that her injury was not getting better.  Moreover, the delay in providing notice was not lengthy.

Justice Papageorgiou said that the plaintiff’s excuse may be “modest”. However, a modest excuse may be sufficient if the City is not prejudiced by the delay.

On the issue of prejudice, the City argued that it could not conduct timely investigations due to the late notice. In particular, it could not take measurements of the pothole before it was repaired.

However, the plaintiff took pictures of the pothole which show that the pothole was quite large. The plaintiff also retained an engineering expert who was able to determine the dimensions of the pothole from the photographs taken by the plaintiff. The City did not cross-examine the engineer.

Moreover, the plaintiff’s husband was a witness and provided an estimate that the pothole was six inches deep.

Further, a City investigator attended at the site 17 days after the accident in response to a public complaint. The investigator made observations, took photographs, and determined that the pothole required repair. There was no evidence that the City attempted to ask the investigator or those involved in the repair whether they could comment on the dimensions of the pothole.

As a result, Justice Papageorgiou held that the City was not prejudiced by the late notice.

The City’s summary judgment motion was denied and, instead, Justice Papageorgiou granted summary judgment motion to the plaintiff on the notice issue. Therefore, the City will not be able to pursue a late notice defence at trial.