The court recently dismissed an action against a municipality due to insufficient notice. Under section 44 of the Municipal Act, 2001, when a person is injured due to an alleged improper state of repair of a municipal highway or sidewalk, the injured person must provide, within 10 days, written notice of the claim and the injury complained of, including the date, time and location of the occurrence.
However, 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 and that the municipality is not prejudiced in its defence.
In Fernando v. Niagara Falls (City), 2021 ONSC 7350, the plaintiff and some family members walked from a hotel to a convention centre in Niagara Falls. The plaintiff fell and broke his humerus, allegedly due to an accumulation of ice on or near a sidewalk and roadway.
The plaintiff provided notice to the City of Niagara Falls within 10 days. However, the notice did not contain the correct location of the incident. The incident occurred several hundred metres away. A more accurate description of the incident was provided over two months later. The precise location was not provided until over nine months later. The municipality moved for summary judgment.
Although Justice Grace held that whether the City was prejudiced by the insufficient notice was a genuine issue requiring a trial, His Honour determined that the plaintiff did not have a reasonable excuse for incorrectly describing the location of the incident.
In an affidavit, the plaintiff indicated that he was taken to the hospital after the fall and was “quite drowsy and disoriented as a result of the administration of pain medication both while in the hospital and after being discharged”.
The plaintiff said that he was only able to provide his lawyer with a vague recollection of where the incident occurred. He further stated that, due to his health condition in the months following the incident, he was not in a position to return to the site of the incident to review where the fall occurred.
On cross-examination, the plaintiff indicated that, although he had visited Niagara Falls many times prior to the incident, he was not familiar with the area in which the incident occurred.
This evidence, on its own, would have created a genuine issue for trial on whether the plaintiff had a reasonable excuse.
However, Justice Grace stated that the plaintiff failed on the motion because two adult family members were with him at the time of the incident, but no evidence of the family members had been submitted on why they could not assist the plaintiff in providing the correct location of the incident. Moreover, there was no explanation for the lack of evidence from the family members
Justice Grace drew an adverse inference against the plaintiff and indicated that the plaintiff failed to put his best foot forward on the summary judgment motion.
As a result, the plaintiff’s action was dismissed.