In the recent case of City of Toronto atsSeif,1 the plaintiff successfully appealed
an Order granting summary judgment to the City of Toronto in a trip
and fall action. The motion judge dismissed the claim on the ground
that there was no reasonable excuse for the plaintiff's failure
to provide the City with notice of her claim within ten days as
required by s. 42(6) of the City of Toronto Act, 2006, SO
2006, c 11 (the "Act").
The Court of Appeal disagreed and allowed the appeal on the
basis that there was a reasonable excuse for the failure to provide
proper notice. The Court of Appeal also held that the question of
whether the City had suffered prejudice as a result of such failure
was a genuine issue requiring a trial.
On Aug. 19, 2011, the plaintiff tripped on a City sidewalk
fracturing her wrist. At the time of the incident, she was
neither aware of the 10-day notice requirements under the Act, nor
did she have any intention of commencing an action in respect of
her injuries. It was not until a medical appointment in November
2011 - when she learned that she would suffer pain for the
remainder of her life - that the plaintiff thought to bring a claim
against the City. She met with legal counsel on Dec. 20, 2011, and
a notice letter was sent to the City the next day.
The motion judge held that the exception of "reasonable
excuse" where there has been a failure to provide notice was
meant to assist plaintiffs whose injuries had prevented
them from complying with s. 42(6). The Court of Appeal
reversed on this point, finding that there was no requirement that
the delay be occasioned by the injury suffered. The correct test to
be applied is "whether, in all of the circumstances of the
case, it was reasonable for the appellant not to give notice until
she did."2 The Court also held that while a
lack of knowledge of the notice requirement will not constitute
reasonable excuse, it may contribute to extenuating circumstances
which could eventually lead to a finding of reasonable excuse.
In light of the motion judge's decision, he did not consider
the issue of whether the failure to provide notice resulted in
prejudice to the City. The majority of the Court of Appeal reasoned
that given the material facts in dispute, particularly regarding
whether the City would have conducted a more timely investigation
had it been given proper notice, and the lack of evidence on how
the sidewalk may have changed in the time between the incident and
when notice was ultimately provided, the issue was not appropriate
for summary judgment. Justice Hoy dissented on the issue of
prejudice, finding that the record was sufficient for making a
determination. She confirmed that prejudice is presumed and
that the onus was on the appellant to rebut the presumption.
Justice Hoy would have dismissed the appeal.
Ultimately, the Ontario Court of Appeal has confirmed that
either the absence of a reasonable excuse for the failure to
provide notice, or prejudice to the municipality will bar a claim
against a municipality for failure to keep a highway in a
reasonable state of repair.
1 2015 ONCA 321.
2 Seif v Toronto (City), 2015 ONCA 321 at
para 26, citing Crinson v Toronto (City), 2010 ONCA 44 at
para 23 [Crinson].
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