Section 44(10) of the Municipal Act requires that an individual who intends to make a claim against a municipality based on an alleged disrepair of a highway provide written notice of the claim within 10 days of the occurrence of the injury. Such notice must include the injury complained of, and the date, time, and location of the occurrence.
In the recent decision of Fernando v. Niagara Falls (City), 2021 ONSC 7350, the plaintiff provided notice of his slip-and-fall accident within 10 days; however, the location identified was inaccurate, and the defendant municipality was successful on a summary judgment motion to have the claim dismissed.
Background
The plaintiff allegedly fell due to an accumulation of ice on or near a sidewalk and roadway. Ten days after the incident, the plaintiff provided the Corporation of the City of Niagara Falls (the City) with a notice letter stating that he intended to commence an action arising from a fall “near” the Scotiabank Convention Centre. The City made multiple requests for the precise loss location. More than two and a half months after the slip-and-fall incident, the plaintiff (through his lawyer) provided the City with a more accurate description, which indicated that the incident occurred several hundred metres away from the Scotiabank Convention Centre.
Decision
Pursuant to section 44(12) of the Municipal Act, insufficiency of notice is not a bar to the action if a judge finds that:
- there is a reasonable excuse for the insufficiency of the notice; and
- that the municipality is not prejudiced in its defence. The plaintiff, as the party relying on this curative provision, bears the legal burden of satisfying both elements.
In this action, the plaintiff stated that a more accurate location was not provided earlier because he was not familiar with the slip-and-fall location and he was in no position to return to the area due to his health. However, two adult family members were with him at the time of his accident. The plaintiff failed to provide evidence as to why he had not asked his family members to help him identify the loss location. There was no evidence from the plaintiff’s family members, or an explanation for the lack of evidence from them. As such, an adverse inference was drawn and the court concluded that the plaintiff failed to put his best foot forward in establishing a reasonable excuse for the failure to provide the required notice.
Takeaway
Whether materially deficient notice is capable of being saved will turn on the facts of each case. It is important to note that courts will consider all of the circumstances of each case in determining whether the issue of a reasonable excuse is a genuine issue requiring a trial.
