A Modest Excuse is All You May Need: More Than 2-Month Delay in Serving Notice Does Not Bar Claim Against City
In Graham v. Toronto the Ontario Court of Appeal reaffirmed that where a city is not prejudiced by late notice of a potential claim, a “modest excuse” may be sufficient to justify the delay.
On January 2, 2018, the plaintiff tripped and fell over a pothole in a pedestrian crosswalk in Toronto. She tore her right shoulder because of her fall and suffered other injuries as well. She sued the City of Toronto. However, a notice of the claim was not given to the city until March 22, 2018 – almost 3 months after the incident. The city brought a summary judgment motion against the plaintiffs arguing the claim should be statute barred for a failure to give timely notice (Graham v. City of Toronto).
Under the Municipal Act, a plaintiff must give notice to the city within ten days of the injury otherwise no action may be brought. However, under s. 42(6) of the Act, a failure to give proper notice is not a bar to the claim if there was a reasonable excuse for the delay and the city is not prejudiced in its defence.
The motions judge, Justice Papageorgiou, examined whether the plaintiff’s excuse for the late notice was reasonable and cited the following principles from the case law:
- The question to be addressed is whether in all the circumstances of the case, it was reasonable for the plaintiff not to give notice until she did.
- The courts should give a broad and liberal interpretation to the phrase “reasonable excuse”.
- Factors that have been held relevant to whether there was a reasonable excuse are:
a) The seriousness of the injury
b) Whether the plaintiff was capable of forming the intention to sue within the notice period
c) The length of the delay
d) Any explanation for the reason of the delay - Where the city is not prejudiced by the delay, a modest excuse may be sufficient (citing the court of appeal in Azzeh v. Legendre).
- Ignorance of the statutory notice period couple with other extenuating circumstances could constitute a reasonable excuse.
The plaintiff was unaware of the 10-day notice period and remained undecided about whether she wanted to bring a claim until she realized her injuries were not resolved. She submitted her notice because she was still in pain after almost three months of physio treatment and was not seeing any improvement. Her recovery was lengthier than she expected, and she began to worry that her injuries would have a significant effect on her lifestyle. She realized that she would not be able to golf or ski because of the incident.
While it was true that on January 11, 2018 (within the 10-day notice period) the plaintiff’s doctor told her that her injuries were serious and that she should file a claim with the city, he also told her that her injuries would heal with physiotherapy. Regardless, the plaintiff did not know of the 10-day notice deadline and the delay was less than 3 months.
Ultimately, Justice Papageorgiou found that there was no prejudice and there was a sufficient excuse for the delayed notice. While the excuse may have been a modest one, that is all that is needed. The plaintiff should not be disadvantaged because she preferred not to sue if her injuries healed.
Toronto appealed the ruling arguing among other things, that the judge erred in finding the excuse was reasonable and that there was no prejudice to the city’s defence.
On the issue of reasonable excuse, the Court of Appeal found that the motions judge identified and applied the prevailing jurisprudence, took into account all the circumstances, and did not draw any unreasonable inferences. There was no basis for appellate intervention.
On the issue of prejudice, the Court of Appeal, also upheld the motion judge’s finding. The municipality argued that it did not measure the pothole before it was repaired because of the late notice. However, the plaintiff took clear photos within the 10-day notice period; her husband inspected the pothole on the day of the incident and estimated it to be 6 inches; the city inspected the pothole 17 days after the incident due to a complaint, took photos and determined it required repair; and the city did not explain why no measurements were taken despite having the opportunity to do so. There was ample evidence to support a finding of no prejudice.