{"id":1217,"date":"2021-12-31T15:25:53","date_gmt":"2021-12-31T19:25:53","guid":{"rendered":"http:\/\/limitations.ca\/?p=1217"},"modified":"2021-12-31T15:26:16","modified_gmt":"2021-12-31T19:26:16","slug":"ontario-the-operation-of-municipal-notice-provisions","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=1217","title":{"rendered":"Ontario: the operation of municipal notice provisions"},"content":{"rendered":"

The Superior Court decision in Psaila v. Kapsalis and City of Toronto <\/em><\/a>contains a useful summary of the principles for the application of municipal notice provisions:<\/p>\n

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[<\/a>32]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Subsections 42(6)<\/a>\u00a0and\u00a042(8)<\/a>\u00a0of the\u00a0Act<\/a>\u00a0set out the statutory framework for purposes of this motion:<\/p>\n<\/blockquote>\n<\/div>\n

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42<\/b>(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 \u2026 has been served upon or sent by registered mail to,<\/p>\n

(a)\u00a0\u00a0\u00a0\u00a0the city clerk<\/p>\n

\u2026<\/p>\n

\u00a0\u00a0 \u00a0\u00a0\u00a042<\/b>(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.<\/p>\n

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[<\/a>33]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0While s. 42(6) sets out a very short ten-day period for the provision of notice,\u00a0s. 42(8)<\/a>\u00a0sets 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.<\/p>\n<\/div>\n

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[<\/a>34]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The burden is on the Plaintiff to prove that he has satisfied this two-part test: see\u00a0Argue<\/i>, at para.\u00a043<\/a>.<\/p>\n<\/div>\n

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[<\/a>35]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The counterpart subsections regarding this ten-day notice period for other municipalities in Ontario are found under\u00a0ss. 44(10)<\/a>\u00a0and\u00a0(12)<\/a>\u00a0of the\u00a0Municipal Act, 2001<\/i>, S.O. 2001, c. 25<\/a>. These provisions also replicate the same two-part test for relief from compliance with the notice period under the\u00a0Act<\/a>. Accordingly, case law developed under the\u00a0Municipal Act<\/span><\/i>\u00a0is of assistance when interpreting\u00a0ss.\u00a042(6)<\/a>\u00a0and\u00a0(8)<\/a>\u00a0of the\u00a0Act<\/a>.<\/i><\/p>\n<\/div>\n

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[<\/a>36]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The statutory notice provision operates much like a limitation period defence insofar as a finding of non-compliance results in a bar to a plaintiff\u2019s 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 \u201creasonable excuse\u201d justifying their delayed provision of notice:\u00a0Azzeh v. Legendre<\/i>, 2017 ONCA 385,\u00a0135 O.R. (3d) 721<\/a>\u00a0(\u201cAzzeh<\/i>\u201d). 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:\u00a0Bourassa v. Temiskaming Shores<\/i>\u00a0(City),<\/i>\u00a02016 ONSC 1211<\/a>\u00a0(\u201cBourassa<\/i>\u201d), at para.\u00a054<\/a>;\u00a0Crinson v. Toronto (City)<\/i>, 2010 ONCA 44,\u00a0100 O.R. (3d) 366<\/a>; and\u00a0Seif v. Toronto (City)<\/i>, 2015 ONCA 321,\u00a0125 O.R. (3d) 481<\/a>\u00a0(\u201cSief<\/i>\u201d).<\/p>\n<\/div>\n

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[<\/a>37]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The inability to have discovered sufficient facts to have reasonably discovered a potential claim against the City, despite due diligence, constitutes a reasonable excuse:\u00a0Castronovo v. Sunnybrook & Women\u2019s College Health Sciences Centre<\/i>,\u00a02008 CanLII 1174<\/a>\u00a0(Ont. S.C.J.), aff\u2019d.\u00a02008 ONCA 655<\/a>\u00a0(\u201cCastronovo<\/i>\u201d);\u00a0White v. Mannen,<\/i>2011 ONSC 1058<\/a>\u00a0(Ont. S.C.J.);\u00a0Bourassa.<\/i><\/p>\n<\/div>\n

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[<\/a>38]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The 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:\u00a0Delahaye v. City of Toronto<\/i>,\u00a02011 ONSC 5031<\/a>, at paras.\u00a033<\/a>, 39. That said, pursuant to\u00a0Azzeh<\/i>, the words \u201creasonable excuse\u201d 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,\u00a0Bourassa<\/i>;\u00a0Patrick v. Middlesex (County)<\/i>,\u00a02018 ONSC 7408<\/a>\u00a0(\u201cPatrick (2018)<\/i>\u201d).<\/p>\n<\/div>\n<\/blockquote>\n

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[<\/a>39]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0Azzeh<\/i>, 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\u00a0Azzeh<\/i>\u00a0because 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\u00a0Municipal Act<\/span><\/i>) 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.<\/p>\n<\/blockquote>\n<\/div>\n

It also summaries what constitutes a \u201creasonable excuse\u201d:<\/p>\n

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[<\/a>41]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0Azzeh<\/i>, at para.\u00a043<\/a>, the Court of Appeal affirmed that when \u201cdetermining what constitutes a reasonable excuse, the words should be given their plain and ordinary meaning\u201d. \u00a0It 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\u2019s legal capacity, the length of the delay, and\u00a0any<\/u>\u00a0explanation 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.<\/p>\n<\/blockquote>\n<\/div>\n

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[<\/a>42]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0An analysis of the \u201creasonable excuse\u201d 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.<\/p>\n<\/div>\n<\/blockquote>\n

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[<\/a>43]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Particularly 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\u00a0Act<\/a>\u00a0is that written notice be provided. Requiring a higher degree of knowledge would frustrate the purpose of the notice period: see\u00a0Bourassa<\/i>, at paras.\u00a061-62<\/a>. Subject to the applicable limitation period in the\u00a0Limitations Act,<\/i>\u00a0a plaintiff will still have time to investigate the viability of the cause of action: see\u00a0Kowal v. Shyiak<\/i>,\u00a02012 ONCA 512<\/a>, at paras.\u00a018-19<\/a>.<\/p>\n<\/blockquote>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Subsections 42(6)\u00a0and\u00a042(8)\u00a0of the\u00a0Act\u00a0set out the statutory framework for purposes of this motion: 42(6) No action shall be brought for the recovery of damages under subsection … Continue reading Ontario: the operation of municipal notice provisions<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[636,637,638,635,634,639],"class_list":["post-1217","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-city-of-toronto-act-s-42","tag-city-of-toronto-act-s-426","tag-city-of-toronto-act-s-428","tag-ontario-municipal-act-2-4412","tag-ontario-municipal-act-s-4410","tag-reasonable-excuse"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1217","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1217"}],"version-history":[{"count":4,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1217\/revisions"}],"predecessor-version":[{"id":1221,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1217\/revisions\/1221"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1217"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1217"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1217"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}