Last year in the case Seif v. Toronto, a Toronto judge ruled that a woman who tripped on a poorly maintained City sidewalk was prevented from even bringing her case before a judge because she had failed to provide written notice to the City within 10 days of the incident.
In this case, the woman broke her wrist when she tripped and fell on a gap in the sidewalk. The woman thought she would fully recover and therefore was not interested in bringing a lawsuit against the City. However, five months after her injury, her doctor told her that her wrist will likely not completely heal and she will likely have permanent problems.
After hearing this diagnosis, she realized that she needed to take action. She quickly consulted a lawyer and written notice was sent to the City. However, the notice was more than 5 months beyond the required 10 day notice period. Notwithstanding her serious wrist fracture, the City was able to punt the case without a hearing on the merits. So even if the City was completely at fault for having a sidewalk in disrepair, the City would escape liability to the injured woman.
Injured on Municipal Property? You Only Have 10 Days
The reason the City could do this was the result of the unfair 10 day notice requirement in the Municipal Act, 2002. According to the Act, a person who is injured on municipal property as the result of badly maintained sidewalks, roads or highways must provide notice of the incident to the City within 10 days.
If the party that became injured on municipal property has a reasonable excuse for not providing the required notice within 10 days and the City is not prejudiced in the late notice, the action may continue. In this case, the judge ruled that not sending the notice because she didn’t think she had a serious and permanent injury was not a reasonable excuse.
Thankfully, the Ontario Court of Appeal thought differently and overruled the motions judge who dismissed the action. In its recent decision, the Court of Appeal specifically held that waiting until you knew you suffered a serious and permanent injury is a reasonable excuse.
This just makes sense.
Legal actions cost money. If a person fully recovers from an accident, it is reasonable for the person not to seek damages from the at-fault party. This helps everyone by keeping costs down and reducing the backlog of cases in our civil justice system. However, once a person has reliable information that the injury will be serious and permanent, the person should be allowed to seek compensation for her losses.
Proving a Lack of Prejudice
As noted by the Court of Appeal, the party that became injured on municipal property still must prove that the City has not been prejudiced by the late notice. This is a reasonable and fair balance of the competing interests and does justice to the spirit and intent of the notice.
The City is obviously concerned that the condition of the area that caused the accident could change over time. In order to properly assess the case, timely inspection is important. Therefore, even if the party that became injured on municipal property is able to establish a reasonable excuse for providing late notice, their claim could still fail if they cannot establish that the City has not been prejudiced.
This is exactly what the Court of Appeal stated in this case: the City can still have the case dismissed if the plaintiff fails to prove that the City has not been prejudiced by the late notice.
I applaud this decision. Too often our justice system fails to apply common sense. In this case, the justice system got it right.
Reposted with permission from BonnLaw.ca