According to Section 44(10) of the Municipal Act, 2001, it is now compulsory for individuals who have fallen victim to the incidents occurring in municipal sidewalks or roadways and injured themselves to provide notification to the municipality within ten business days. In case, the person fails to do so, they are disentitled from suing the municipality for their injuries.
However, Section 44(12) of the Act provides an exception to the 10-day notice period:
(12) Insufficiency of the notice or failure to give notice is not a bar to the action, in a case where the judge finds that there is a fair reason why such an insufficiency occurred and that the municipality is not prejudiced in its defense.
According to which a plaintiff should be able to establish two things so that the failure to provide the time notice could be overcome:
- The municipality has not been prejudiced in its defense as a result of the delay.
- There is a reasonable excuse for the delay in providing timely notice.
In Graham v. City of Toronto, it was determined what constitutes a “reasonable excuse” by the court. While deciding, a notice letter that was served around three months after the incidents did not bar the plaintiff’s claim from proceeding. the court reviewed the factors that may establish a reasonable excuse.
In this case, the woman who was the victim of the incident sustained several injuries after tripping on a large pothole on a pedestrian crosswalk and sued the City of Toronto for it. She strained her neck, injured her right elbow, right hand, and right arm, and also tore her right rotator cuff. Because of the incident, she required surgery approximately 15 months after the incident and for the subsequent 6 weeks, her right arm was completely immobilized.
At the time of the incident, the plaintiff was a managing director at the capital management company. While she managed to return to the role immediately after the incident, she resigned from the role about 18 months later as her treatment, surgery, and recovery time were interfering with her ability to perform the job.
The City of Toronto then announced a motion for summary judgment on the basis that the woman failed to notify the incident the municipality within ten business days that was required under Section 42 (6) of the City of Toronto Act, 2006 which has similar requirements to Section 44 (10) of the Municipal Act, 2001.
The court considered the following factors:
- The demanding job of the plaintiff required her to work from 9 Am to 6 PM Monday to Friday, And due to being focused on the job, she was unable to notify the incident timely.
- The injuries she suffered were more serious and lengthy than it was expected and it ended up having a significant impact on her life and lifestyle. And after some time was passed, she also realized that now she will not be able to ski or play golf.
- After attending physiotherapy for two months consistently she didn’t notice improvements and continued to struggle with being able to perform her job. After that, she became worried that her injuries were more serious and they will have a continued effect on her life.
- She was unaware of the notice requirement
- The delay of three months was deemed to be insignificant.
The court announced that because of all the mentioned reasons, it was a reasonable excuse for the plaintiff to be delayed in notifying the curt. The court ended up accepting the plaintiff’s argument and also agreed that she did not want to bring the matter to court initially until she realized that the injuries she sustained were far more serious. The court also emphasized that “the plaintiff should not be disadvantaged because rather than immediately decide to sue, she preferred not to if her injuries healed”.
After this decision was announced by the court, a list of acceptable reasons for a late notice was permitted. So in case, you were unable to give the notice within the 10 days time limit, now you can proceed with the litigation with a reasonable excuse with the help of the best personal injury lawyer in hamilton pace law firm. Now the attorneys are able to put forward a number of arguments that justify the failure to provide timely notice.