Canada: Municipality Successful In Relying On 10-Day Notice Period In Claim Involving A Minor

Last Updated: July 14 2017
Article by Rebecca Bush and Natalie Salafia

Most Read Contributor in Canada, October 2017

In the recent decision of Azzeh v Legendre, 2017 ONCA 385, the Ontario Court of Appeal canvassed the law relating to limitation and notice periods in the context of claims initiated by minor plaintiffs.

This case arose from a motor vehicle accident on September 7, 2007 in the City of Greater Sudbury (the "City") in which the infant plaintiff, Bayden Azzeh ("Bayden"), suffered brain injuries. At the time of the accident, Bayden's mother, Julia Neville ("Ms. Neville"), was driving the vehicle in which Bayden was a passenger.

In June 2014, Ms. Neville commenced an action, on behalf of Bayden, against the driver and owner of the other vehicle involved in the collision. On May 29, 2015, Bayden's grandmother, Ingrid Nancy Dion ("Ms. Dion"), swore an affidavit to officially act as Bayden's litigation guardian. Two days later, Ms. Dion notified the City of a potential claim in relation to the accident. A motion was subsequently brought to amend the Statement of Claim to add various parties, including the City, as defendants to the action and to increase the amount of damages sought.

The City opposed the motion on the basis that the claim against it was statute-barred. It was the City's position that the two-year limitation period under the Limitations Act, 2002 began in April 2008 when Ms. Neville entered into a contingency fee agreement with her lawyer, which included a statement that it was "for both mother and son from the same accident". In the alternative, the City argued that the limitation period began in 2011 when Ms. Neville submitted an application for accident benefits for Bayden, which she signed as Bayden's "guardian". It was argued that, either way, the limitation period had expired. The City also opposed the motion on the basis that it did not receive notice of Bayden's claim within 10 days of the accident, as required under the Municipal Act, 2001.

The motion judge rejected the City's arguments and held that the limitation period began to run in June 2014, at the earliest, when the Statement of Claim was issued on behalf of Bayden. Since the motion was brought within two years of the commencement of the limitation period, the motion judge found that the claim against the City was not statute-barred. The motion judge further held that 10-day notice period began on May 29, 2015 when Ms. Dion was granted authority to act in the action. Because Ms. Dion notified the City of the claim two days after her appointment, the notice requirement was also met. Moreover, even if the notice period had expired, Ms. Neville had a "reasonable excuse" as Bayden was a minor.

The City appealed the decision to the Ontario Court of Appeal. The majority held that, where the person with a claim is a minor, the two-year limitation period under the Limitations Act, 2002 begins to run when the minor is "represented by a litigation guardian in relation to the claim". Thus, the majority agreed with the motion judge that the limitation period began to run in June 2014 when Ms. Neville "held herself out" as Bayden's litigation guardian "in relation to the claim". As a result, the Court of Appeal upheld the decision that the claim against the City was not statute-barred under the Limitations Act, 2002. The Court further noted that Ms. Neville's failure to file an affidavit to officially act as a litigation guardian did not suspend the running of the limitation period, but rather, resulted in an "irregularity".

However, with respect to the City's notice period argument, the majority held that the 10-day notice period under the Municipal Act, 2001 began to run in June 2014 when Ms. Neville commenced the claim on Bayden's behalf. At that point, Ms. Neville had retained a lawyer to pursue claims on Bayden's behalf and the Court found that she was "capable of forming the intention" to sue the City. Despite this, notice was not provided to the City until May 2015, almost one year later. The Court of Appeal noted that under section 44(12) of the Municipal Act , 2001, failure to give notice is not a bar to an action when the claimant has a reasonable excuse for failing to comply with the notice provision and the City is not prejudiced by the delay. In reviewing the evidence, the Court found that the only explanation for the late notice was Ms. Neville's evidence that no steps were taken to sue to City as "this never came up". The Court held that this did not constitute a "reasonable excuse" for the delay. Consequently, because the notice to the City was out of time and there was no reasonable excuse for the delay, the Court determined that it was not "strictly necessary" to deal with the issue of prejudice for the purpose of disposing of the appeal.

Nonetheless, the Court went on to make "some limited comments with a view to providing guidance" on the prejudice issue. The City argued that the late notice prejudiced its ability to defend itself as it destroyed its maintenance records due to the passage of time. This argument was rejected by the motion judge on the basis that the claim against the City related to road design issues and the City had not destroyed its road design records. The Court of Appeal disagreed with the motion judge and found that the claim against the City included allegations about adequate signage and lighting, which are considered maintenance and repair issues. However, as the signage and lighting at the intersection had not changed since the accident, there was no prejudice to the City.

The Court ultimately determined that it was unnecessary to resolve the issue of prejudice, the order of the motion judge was set aside, and the proposed claim against the City was dismissed.

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