Remember the 10 Day Notice Period!
A recent Ontario case dealt with the requirement that notice to the City of Toronto must be provided within 10 days of an accident as required by section 42(6) of the City of Toronto Act (also found in the Municipal Act). This notice requirement applies to incidents occurring on municipal property. In Seif v. City of Toronto (released May 13, 2014), the plaintiff did not notify the City of her trip and fall incident, which occurred on a City sidewalk until just over four months after the date of her accident.
The reason for the late notice, as stated in the plaintiff’s affidavit was that she “gave no thought, and had no intention to commence a lawsuit regarding the accident.”
Pursuant to the City of Toronto Act, the plaintiff’s claim would be dismissed unless she could establish that it falls into the exception to the 10 day notice requirement. That exception is set out in section 42(8) of the Act, which provides as follows:
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.
In Seif, Justice Morgan noted that the evidence in the record failed to establish any physical or psychological reason for the plaintiff’s delay in providing notice. The plaintiff stated that she was unaware of the statutory notice requirement until she met with a lawyer four months after her fall.
With respect to the late notice provided by Ms. Seif, Justice Morgan made the following comments:
I sympathize with the Plaintiff, and would not be the first to comment that the 10 day notice requirement is “very unfair”: see Filip v Waterloo, 1992] OJ No 2470 (Ont CA); Delahaye v Toronto, [2011] OJ No 4006, at para 29 (SCJ). It is, however, a specific statutory requirement, and if it is to be changed it must be done by the legislature.
Justice Morgan went on to explain that the exception to the notice requirement was designed to accommodate plaintiffs whose delay is somehow a result of their injury and not delays resulting from an injured person’s “indecision or their apathy” toward issuing a claim.
The City also took the position that the notice provided was insufficient in that it failed to adequately identify the location of the incident. The notice letter stated as follows:
…a sidewalk on Lonsdale Road, in the City of Toronto, just west of the southwest corner of the intersection of Spadina Road and Lonsdale Road. The cause of Ms Seif’s accident appears to have been a significant lip in the sidewalk.
Justice Morgan was very critical of the level of detail sought by the City:
In my view, the City is placing too high a burden on persons who give notice under the Act. The level of detail that the City seems to require from a passerby injured on its property is far beyond anything that the average person would ever expect. Indeed, it is beyond what the average lawyer or, dare I say, Superior Court judge, would expect. One would literally have to be practicing law as a personal injuries specialist, with an ample diet of claims governed by the Act, in order to fulfill the notice requirement as interpreted by the City here.
According to the Court, valid notice under the Act requires that a claimant state “when and where the injury occurred in reasonable, lay person’s terms.”
Ultimately, Justice Morgan felt bound by the statutory requirement and dismissed the plaintiff’s claim. The Court ruled that the plaintiff failed to establish that the exception to the 10 day notice requirement applied.
Unfortunately, many accident victims are unable to comply with the 10 day notice requirement as they are simply unaware that it exists. Extending the period would certainly help this situation and provide people with sufficient time to seek legal advice. Where an accident occurs on private property there is no similar notice requirement and in our view such a drastic difference is not warranted.
Whether or not you intend to commence a lawsuit always ensure that you immediately provide written notice to the city and/or municipality of your intention to sue. This will ensure that your rights are protected.
The decision can be viewed by clicking the following link:
http://www.canlii.org/en/on/onsc/doc/2014/2014onsc2983/2014onsc2983.html