Although we are in the middle of a summer heat wave, a July 10, 2013 decision by Justice Johnston in Grant v The Corporation of the City of Kingston and Queen’s University, ONSC 4689 (CanLII) has caused me to consider legal issues regarding a claim for damages for personal injuries arising from a mid-winter slip and fall incident on an icy sidewalk.
This matter arose out of a slip and fall incident that occurred on February 6, 2009 on a municipal sidewalk located in the area within Queen’s University campus. Section 44(10) of the Municipal Act, provides that no action shall be brought against a municipality for the recovery of damages from a sidewalk slip and fall unless within 10 days after the occurrence of the injury, written notice of the claim has been provided. Unfortunately, for Ms. Grant no notice of her claim had been provided to the City of Kingston until March 1, 2010, more than 12 months outside of the 10 day notice period. Her failure to provide timely notice was due to her mistaken belief that the sidewalk where she fell was owned by Queen’s University.
After the Plaintiff’s action was commenced, the City of Kingston brought a motion for summary judgment arguing that the Plaintiff’s claim against it was statute barred by reason of her failure to provide timely notice. Although the Plaintiff acknowledged that timely notice was not provided she relied upon Section 44(12) of the Municipal Act which excuses the failure to provide timely notice if there was a reasonable excuse for the late notice and the municipality was not prejudiced in its defence.
The summary judgment motion was initially dismissed on the basis that the issues of “reasonable excuse” and “prejudice” could not be decided on the evidentiary record before the Court in the motion but required a trial proceeding to obtain a full appreciation of the issues in dispute.
The City of Kingston sought leave to appeal to the Divisional Court, but the request for leave was denied by Justice Johnston.
Although the Court did not rule on the factual issues in dispute involving “reasonable excuse” and “prejudice” and could not do so in the absence of a full evidentiary record, there was commentary with respect to the concepts of “reasonable excuse” and “prejudice.” For example on the issue of prejudice it was noted that even if timely notice had been provided changes in the weather within that initial 10 day period might have prevented the municipality from conducting any useful investigation anyway. In this regard, there is reference to various case law that spoke of “meaningful”, “practical”, or “material” prejudice.
In the absence of a settlement these issues will be more thoroughly reviewed at trial. Pending that trial decision, there are however lessons that can be learned:
If at all possible provide timely notice. Providing notice is not a costly process and, erring on the side of caution, notice should be given at the earliest date possible to any and all potential municipalities.
Even if notice cannot be provided within the requisite 10 day period, do so at the earliest date possible to minimize any arguments that may exist with respect to “reasonable excuse” or “prejudice.”
If forced to rely upon the saving provisions contained in Section 44(12) of the Municipal Act, it is important to go back in time and consider what difference would it have made if timely notice had been given. If there is no real difference, whether as a result of changing weather within that 10 day period, or the existence of other contemporaneous records, then arguably no real prejudice exists despite the passage of time.
In relation to notice provisions it is important to keep in mind that unlike limitation dates the discoverability principle does apply to the requirement to provide timely notice.
Be forewarned, winter will be upon us soon enough.