Earlier this month, Queen’s Park heard from MPPs questioning why the government did not dramatically overhaul joint and several liability two years ago. The government made the right decision; it affirmed that victims should be protected in the event that those responsible are unable to pay damages. Besides, municipalities already enjoy protection that other parties do not. Take the 10-day notice period as a prime example.
The Municipal Act, 2001 states that no legal action shall be brought for the recovery of damages unless the municipality is notified of the claim and injury within 10 days of its occurrence. When a sidewalk is in a state of disrepair or covered in ice and snow, with no reasonable attempts at maintenance, resulting injuries warrant recovery of damages from the responsible municipality.
The injured person has only 10 days to let the city or municipality know that they were injured on city property, or risk being unable to recover damages.
The majority of people who are injured on municipal property, whether from a slip and fall, a trip, or because of the disrepair of the city property, are likely unaware of this 10-day notice requirement. So what happens when this brief amount of time elapses before the municipality is notified? The law allows the injured person to overcome the notice requirement if they can demonstrate two things:
- a reasonable excuse for missing the 10-day deadline; and,
- that the municipality is not prejudiced.
A Court will decide whether an injured person has a reasonable excuse for missing the deadline, and, generally, ignorance of the notice requirement does not by itself constitute a reasonable excuse for missing the deadline. In making its decision, a Court must consider all circumstances of the case and take an inclusive approach as to what they will accept as a reasonable excuse. As the Ontario Court of Appeal recently stated, ignorance of the notice requirement can add to other extenuating circumstances, such as lack of knowledge of the severity of the injury, to create a reasonable excuse.
After demonstrating a reasonable excuse for missing the deadline, an injured person must also show that the municipality has had the opportunity to investigate the circumstances leading to the injury. If the municipality has lost that opportunity, they are prejudiced in their ability to defend themselves against the lawsuit, and the injured person could be barred from recovering damages. An injured person can demonstrate that the city is not prejudiced by preserving evidence of a timely investigation, including witness statements, photographs of the scene, or other sources of information about the accident’s circumstances.
To avoid diminishing your ability to recover damages it is best to notify a municipality as soon as possible following an injury on municipal property. Prompt notice can preserve your rights in the event your injury turns out to be permanent, begins to affect your ability to work, or your symptoms deteriorate.