Bourassa v Temiskaming Shores (City), 2016 ONSC 1211

Released February 18, 2016 | Full decision [CanLII]

This action arose out of a motor vehicle collision, which occurred on January 7, 2012. The Plaintiff brought a claim against the Defendant City alleging that it had failed to keep the roadway in a proper state of repair. The Defendant City brought a motion for summary judgment on the basis that the Plaintiff had failed to provide proper notice to it under subsection 44(10) of the Municipal Act.

The Defendant City submitted that it had no notice whatsoever of the collision as required by subsection 44(10) of the Municipal Act and was completely unaware of the collision until it received the Plaintiff’s Statement of Claim on November 6, 2012. The Plaintiff did not dispute this.

In this summary judgment motion, Justice Wilcox rejected several arguments put forth by counsel for the Plaintiff and granted the Defendant City’s motion to dismiss the action. The arguments are summarized below.

Effect of the Limitations Act

The Plaintiff argued that subsection 44(10) of the Municipal Act was of no force due to the effect of the Limitations Act. The argument was based on section 4, which provides the basic two year limitation period, and on section 19, which provides that all other limitation periods set out in other Acts are of no effect unless listed in a Schedule to the Limitations Act. The Plaintiff argued that the Municipal Act is not listed in the Schedule and therefore, subsection 44(10) is of no effect.

The Defendant argued that subsection 44(10) is a notice provision and not a limitation period. It relied on the Ontario Court of Appeal case of Bannon v Thunder Bay (City), which held that the notice requirement in subsection 284(5) of the Municipal Act – the direct predecessor of subsection 44(10) – was not a limitation period.

Justice Wilcox found the Defendant’s argument persuasive in this regard and rejected the Plaintiff’s argument that subsection 44(10) of the Municipal Act was of no force or effect.

Requirement to Give Notice after Expiry of 10 Day Notice Period

The Plaintiff also argued that there was no legal requirement to provide a municipality with notice after the 10 day notice period had expired. This was referred to as “the literal approach.” Essentially, the Plaintiff argued that the legislature had chosen 10 days as the amount of time a municipality could undertake a meaningful investigation.

The Plaintiff submitted that any consideration of the Plaintiff’s conduct after that 10 day period had expired is irrelevant to this legislative purpose of providing the municipality with an opportunity to investigate the scene within the first 10 days. The Plaintiff argued that the only issue to be determined after the expiry of the 10 days is whether the municipality had been prejudiced.

Justice Wilcox rejected this argument. He noted that the 10 day notice period is more or less arbitrary and that subsection 44(12) of the Municipal Act provides relief from subsection 44(10), involving a consideration of whether there is a reasonable excuse for the lack of notice, as well as a consideration of the prejudice to the municipality’s defence. Failing to bring notice within 10 days is not an absolute bar to bringing an action against a municipality. Consequently, the length of delay in giving notice is relevant to both whether there was a reasonable excuse for and whether the municipality was prejudiced by the delay.

Discoverability

The Plaintiff argued that if there was an obligation to give notice beyond the 10 day period, then the principle of discoverability was applicable. The Plaintiff noted that the principal of discoverability had been found applicable to notice provisions as well as limitation periods. The Plaintiff relied on the 1977 SCC decision of Valliancourt v Montreal, which held that a notice period had not begun to run until the date of discovery. The Plaintiff, therefore, argued that the principle of discoverability acted to postpone the running of the 10 day notice period.

Justice Wilcox noted that this was a novel argument and that there were no Ontario cases considering whether discoverability actually postponed the notice requirements under the Municipal Act. Rather, the Ontario approach had always been to consider discoverability with respect to whether the delay in giving notice was reasonable. Justice Wilcox cited many Ontario cases that had applied the principle of discoverability when considering whether the delay was reasonable.

The Plaintiff argued that there was no discoverability of the necessary facts to know whether there was a claim against the Defendant City until examinations for discovery had been completed and therefore, the 10 day notice period had not begun to run until then.

Justice Wilcox found this approach required too high a degree of knowledge and that it would result in undesirable consequences. Justice Wilcox held that, under this approach, notice would never be required in such a case and the purpose of notice would be frustrated. Also, the provisions in the Municipal Act with respect to reasonable delay in giving notice, and prejudice, would be rendered redundant. It was also noted that giving notice was a simple and inexpensive process, involving serving a letter, and that there was no risk to the Plaintiff, like there would be if a Statement of Claim was issued too soon.

Justice Wilcox concluded that the preferable approach was to start the 10 day notice period when the injury occurred, to apply the principle of discoverability to the issue of reasonable excuse, and to consider any prejudice arising after the 10 days expired.

 

Read the full decision on CanLII

Liane Shepley-Brown
Written by

Liane first joined Oatley Vigmond as a law student and later joined the team as an Associate Lawyer after her call to the bar. She holds a JD from the University of Windsor and an undergraduate degree in Psychology from the University of Guelph.

Liane is committed to representing individuals who have suffered serious personal injuries and to families who have suffered the loss of a loved one. Her practice concentrates on personal injury law, including accident benefits, motor vehicle collisions, medical malpractice, occupiers’ liability, product liability and wrongful death cases.

When Liane isn’t practicing personal injury law, she enjoys working out and spending time with family and friends.