Ontario: the operation of municipal notice provisions

The Superior Court decision in Psaila v. Kapsalis and City of Toronto contains a useful summary of the principles for the application of municipal notice provisions:

 

[32]           Subsections 42(6) and 42(8) of the Act set out the statutory framework for purposes of this motion:

42(6) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of … has been served upon or sent by registered mail to,

(a)    the city clerk

      42(8) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the City is not prejudiced in its defence.

[33]           While s. 42(6) sets out a very short ten-day period for the provision of notice, s. 42(8) sets out a two-part, conjunctive, test for relief where the notice period is not complied with. As stated, the injury, in this case, occurred on March 28, 2015.

[34]           The burden is on the Plaintiff to prove that he has satisfied this two-part test: see Argue, at para. 43.

[35]           The counterpart subsections regarding this ten-day notice period for other municipalities in Ontario are found under ss. 44(10) and (12) of the Municipal Act, 2001, S.O. 2001, c. 25. These provisions also replicate the same two-part test for relief from compliance with the notice period under the Act. Accordingly, case law developed under the Municipal Act is of assistance when interpreting ss. 42(6) and (8) of the Act.

[36]           The statutory notice provision operates much like a limitation period defence insofar as a finding of non-compliance results in a bar to a plaintiff’s proceeding as against the City as opposed to extinguishing the cause of action. This has led courts to import the concept of reasonable discoverability when determining whether a plaintiff has a “reasonable excuse” justifying their delayed provision of notice: Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721 (“Azzeh”). The doctrine of reasonable discoverability has no application in considering when the notice period begins to run because the statute provides for the notice period to commence from a fixed event; namely, the occurrence of the injury: Bourassa v. Temiskaming Shores (City), 2016 ONSC 1211 (“Bourassa”), at para. 54Crinson v. Toronto (City), 2010 ONCA 44, 100 O.R. (3d) 366; and Seif v. Toronto (City), 2015 ONCA 321, 125 O.R. (3d) 481 (“Sief”).

[37]           The inability to have discovered sufficient facts to have reasonably discovered a potential claim against the City, despite due diligence, constitutes a reasonable excuse: Castronovo v. Sunnybrook & Women’s College Health Sciences Centre2008 CanLII 1174 (Ont. S.C.J.), aff’d. 2008 ONCA 655 (“Castronovo”); White v. Mannen,2011 ONSC 1058 (Ont. S.C.J.); Bourassa.

[38]           The Act imposes a very short time requirement on the plaintiff to provide the City with notice of a potential claim against it. However, the imposition of a short notice period is within the prerogative of the Legislature and supports its public policy decision: Delahaye v. City of Toronto2011 ONSC 5031, at paras. 33, 39. That said, pursuant to Azzeh, the words “reasonable excuse” are to be given a liberal interpretation because the plaintiff has the additional burden of demonstrating that the delay has not caused prejudice to the City: see also, BourassaPatrick v. Middlesex (County)2018 ONSC 7408 (“Patrick (2018)”).

[39]           In Azzeh, at footnote 4, the Court of Appeal added that in interpreting the statute, there is a presumption of reasonableness. It is to be presumed that the Legislature does not intend unjust or inequitable results to flow from its enactments, and therefore judicial interpretations should be adopted which avoid such results. These statutory interpretation principles were particularly apt to the factual circumstances in Azzeh because the plaintiff was a minor at the time that he sustained injury. The Court held, in part, that the ten-day notice period (under the Municipal Act) did not commence until the minor had a litigation guardian, or alternatively, that he had a reasonable excuse for not bringing the action until he had a litigation guardian.

It also summaries what constitutes a “reasonable excuse”:

[41]           In Azzeh, at para. 43, the Court of Appeal affirmed that when “determining what constitutes a reasonable excuse, the words should be given their plain and ordinary meaning”.  It further stated that in considering whether the plaintiff has met his onus in showing that his delay was reasonable, the court must consider the plaintiff’s legal capacity, the length of the delay, and any explanation given for the delay. The Court also held, at para. 78, that the length of the delay affects both the reasonableness of the excuse and the issue of prejudice to the City.

[42]           An analysis of the “reasonable excuse” defence will be informed, in part, by when a plaintiff was in possession of the material facts upon which potential liability against a city or municipality may be grounded. The plaintiff must show that he exercised due diligence in pursuing these facts and did not sit on his rights.

[43]           Particularly apt to this case, a plaintiff need not be certain of his ability to prove his claim against the City to trigger the obligation to provide notice. A plaintiff need only have sufficient facts upon which to ground a potential claim. This is because all that is required under the Act is that written notice be provided. Requiring a higher degree of knowledge would frustrate the purpose of the notice period: see Bourassa, at paras. 61-62. Subject to the applicable limitation period in the Limitations Act, a plaintiff will still have time to investigate the viability of the cause of action: see Kowal v. Shyiak2012 ONCA 512, at paras. 18-19.