Azzeh v. Legendre, 2017 ONCA 385

Court of Appeal provides refresher with respect to limitation periods and municipal notice periods in cases dealing with minors.

Released May 12, 2017 | Full decision []

On September 7, 2007, Bayden Azzeh (“Bayden”) was involved in a car accident. He was 17 days old. In 2014 a claim was issued by Bayden’s mother on his behalf against the driver and owner of the other vehicle involved in the collision. In 2015 Bayden’s lawyers brought a motion to amend the pleadings to add the City of Sudbury as a defendant due to road design issues. The motion judge allowed the amendment to the pleadings. The City appealed.

Justice Weiler, writing for the Court of Appeal held as follows:

1) The motion judge held that Bayden was not represented by a Litigation Guardian until June 11, 2014, when the claim was issued, and that is when the two year limitation began to run. Justice Weiler agreed with her. The City had argued that a minor is represented once any steps are taken on the minor’s behalf including hiring a lawyer or commencing a claim for accident benefits on a minor’s behalf. This submission was rejected.

2) The motion judge held that the 10 day notice period as required by the Municipal Act, 2001 did not bar the action as Bayden’s mother did not sign or file an Affidavit of Litigation Guardian when the claim was commenced. On appeal, Weiler J. held that the 10 day notice period did not begin to run until Bayden had a Litigation Guardian, however, the failure to file an Affidavit of Litigation Guardian makes the proceedings an irregularity, not a nullity. In addition, no explanation for the additional delay was provided and therefore the claim was barred by the municipal act.

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Jan received her Bachelor of Arts (Honors) in Development Studies from Huron University College at the University of Western Ontario in 2005 and her J.D. from Western's Law School in 2009. While attending law school, Jan volunteered with the school's Community Legal Clinic and Pro-Bono Students Canada. She also participated in an international exchange program at ESADE in Barcelona where she studied both International and European Union law.

Before joining Gluckstein Personal Injury Lawyers, Jan completed her articles at a prominent personal injury firm. She was called to the bar in June 2010.

Jan's personal injury practice is dedicated to medical negligence.

When not practicing law, Jan enjoys travelling, playing soccer and volleyball.