The Supreme Court of Canada has dismissed the plaintiff’s application for leave to appeal after her claim was dismissed on a summary judgment motion for failure to provide written notice to the clerk of the municipality within 10 days of her accident as required by s.44(10) of the Ontario Municipal Act [Argue v. Tay (Township) 2012 ONSC 4622 (CanLII); aff’d 2013 ONCA 247 (CanLII); leave to appeal denied 2013-10-3].
On April 5, 2007 the plaintiff was injured when her vehicle hit a pothole on a gravel road and rolled into the ditch. Despite being released from hospital the same day and subsequently returning to work, she did not notify the Township of her claim until March 26, 2009, almost two years later. By then, the road surface had been materially changed and was no longer gravel.
The plaintiff argued that the strict written notice requirements of s.44(10) should be dispensed with because the municipality had constructive notice of the accident from other sources. The Township’s Fire Department had attended the accident scene and its files contained a copy of the motor vehicle accident report which noted “poor road conditions.” The Motion Judge rejected the argument and held that the formal requirement to give written notice to the clerk of the municipality is not pre-empted by either actual or constructive notice of an accident by another municipal department.
The plaintiff had no reasonable excuse for failing to give notice. On her own evidence, she was both physically and mentally able to consult with a lawyer. From the day of the accident she believed her injuries had been caused by road being in a state of non-repair and she was aware the Township was responsible for maintaining the road. She did not undertake any investigations or obtain any additional information prior to giving notice almost 2 years later.
The delay prejudiced the municipality’s ability to investigate the claim. The road had been re-surfaced and was no longer a gravel road maintained by a grader. Neither party had photographs of the road surface as it existed in April, 2007 and the municipality was denied the opportunity to conduct timely witness interviews. The plaintiff had “no idea” of the size of the pothole or rut and no measurements had ever been taken.
On appeal, the plaintiff argued that the notice issue should not have been determined by way of summary judgment and argued the Motion Judge had reversed the overall burden of proof on the motion by requiring her to establish a reasonable excuse and lack of prejudice to the municipality. The Ontario Court of Appeal confirmed that the burden of proof rested with the plaintiff and upheld summary judgment. The plaintiff sought leave to appeal to the Supreme Court of Canada.
This is a very helpful decision for municipalities seeking to rely on the 10-day notice provision and is strong precedent for determining the notice issue before trial, by way of a summary judgment motion.