Fridays with Rogers Partners

February 25, 2022

At our weekly meeting, Annie Levanaj discussed the recent decision of the Court of Appeal in Graham v. Toronto (City), 2022 ONCA 149.

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, David Mitchell, the plaintiffs, 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[1], (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 judgement dismissing the action due to Ms. Graham failure to comply with the requirements in section 42(6) of the Act to provide timely notice of the subject accident.

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 the plaintiffs reverse summary judgment and dismissed the City’s statutory notice defence, declaring that the respondents’ 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 judgement was the product of an unfair process; and
  2. The motion judge erred in not finding the respondents’ action barred by s. 42(6) of the Act.

The Court of Appeal (COA) 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 COA began its analysis of this issue by citing Drummond v. Cadillac Fairview[2], and stated that summary judgement motions are intended, in part, to achieve fair and just results. It explained that a motion judge may still grant judgement against the moving party even where the responding party has not filed a notice of cross-motion for summary judgement if the court gave the moving party some notice of that litigation risk.

The COA highlighted different ways the court can ensure a moving party has notice of the litigation risk of a reverse summary judgment motion 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 judgement decisions she usually relies on certain precedents. She highlighted specific paragraphs in the decisions and requested counsel inform her if they wished to make submissions on the cases. In one of the cited cases, Meridian Credit Union Limited v. Baig,[3] the judge had granted summary judgement in favour of a party despite that party not having brought a cross-motion.

Therefore, the COA 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 COA was not persuaded by the City’s submissions on this ground. The COA 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 COA 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. The motion judge had found that the City only argued prejudice on the ground that the City could not take measurements of the pothole before it was repaired, and that these measurements were relevant to their defence that they were not liable for keeping the crosswalk in a reasonable state of repair because at the time of the fall, they met the minimum regulatory maintenance standards.

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 respondents filed an expert report that opined on the dimensions of the pothole using the January 2018 photos, and the City did not cross-examine the expert.

Therefore, ample evidence supported the motion judge’s conclusion that there was no prejudice to the City by the plaintiff’s late notice. This submission was accordingly also rejected.

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

Decision

For these reasons, the COA dismissed the appeal. The City will therefore not be able to assert a late notice defence at trial.

[1] S.O. 2006, c. 11, Sched. A

[2]  2019 ONCA 447

[3] 2016 ONCA 150, 394 D.L.R,