When someone finds themselves involved in a situation that results in personal injury, the first thing they should do is make sure their health is taken care of. Following that, we recommend that people speak to a personal injury lawyer in order to see if they may be entitled to damages as a result of their injury. In addition to talking through who might be to blame for an accident, there are other important considerations to discuss with personal injury law, notably timelines in which someone must act. Even if a limitation period has passed, there may still be an opportunity for an injured party to pursue damages. A recent decision called Graham v. Toronto (City) from the Court of Appeal for Ontario highlights one such case in which the injured party was able to go through with their claim despite missing a key deadline.
Plaintiff is injured but does not appreciate or know of the significance of injuries right away
The matter was first heard by the Ontario Superior Court of Justice. The plaintiff was crossing a street in Toronto using a crosswalk on January 2, 2018. She tripped on what was described as a “large, deep pothole.”
As with many injuries, the plaintiff was not fully aware of the extent of her injuries until months later. She gave notice that she intended to pursue actions on March 22, 2018. She required surgery three months after her fall and continued with physiotherapy well into 2020. She also resigned from her job in May 2019 after finding she was unable to continue working.
The City of Toronto was the defendant in the claim (“the City”). They asked the court for a summary judgment to dismiss the action based on the City of Toronto Act, which requires parties to give notice within ten days after the occurrence of an event leading to an action. In a move that surprised the City, the judge did grant a summary judgment but did so in favour of the plaintiff. The court explained that when the limitation period is not absolute and allows it to be missed if a plaintiff has a reasonable excuse and the defendant does not suffer prejudice by the delay. The city appealed this decision on two grounds. The first was that the process was unfair, and the second was that the motion judge erred in not finding the action to be statute barred.
Was it unfair for the motion judge to grant summary judgment in favour of the plaintiff?
The City complained that the motion judge acted in an unfair manner by granting a reverse summary judgment in favour of the plaintiff since the plaintiff had not filed a cross-motion asking for summary judgment.
The court explained that a 2019 decision states the purpose of summary judgments as being, at least in part, to see that the result of a hearing is fair and has “just results.” In matters where there are no cross-motions, the court must give some notice of the risk of a reverse judgment. One of the ways in which notice can be given is through the opportunity for the parties to make further submissions. In the present case, the motion judge emailed the parties to explain that she was considering a reverse summary judgment. This notice was meant to afford the City to prepare an argument in support of their position in that regard. However, they failed to do so and the court did not find any blame in the motion judge’s handling of the matter.
Should the matter have been statute barred since the limitation period was missed?
The court then turned to the motion judge’s decision to allow the plaintiff’s claim to be heard despite the limitation period being missed. The motion judge wrote that there are two necessary conclusions that have to be made in order to allow a claim to proceed after missing a deadline. The first is that there must be a reasonable excuse for the delay. The motion judge found that there were a number of factors that contributed to the plaintiff taking a little over two months to give notice. The first was that she wasn’t aware of the notice requirement. She had been told by her doctor that her injuries would heal with physiotherapy, but it was only after a few months that she began to realize that might not be the case. Finally, while the delay was much longer than the 10 days provided for in the Act, it wasn’t an unreasonable amount of time.
The second consideration is whether the City would experience prejudice as a result of the claim being allowed to be heard. The court agreed with the motion judge’s finding that the city did not dispute there was a pothole on the crosswalk where the plaintiff was injured. The city had failed to lead any evidence in its position that the pothole was not as large as the plaintiff claimed, despite the ability of a forensic engineer to help provide information on how large it would have been. The motion judge and the Court of Appeal found the fault here to lie with the city rather than the plaintiff.
The court ruled against the City on both grounds of appeal and awarded costs of $17,500 to the plaintiff.
Work with the experienced personal injury lawyers of Campbell Litigation if you find yourself injured
If you find yourself injured on commercial, residential, or municipal property, you may have the opportunity to pursue premises liability against the party or parties responsible for the maintenance and care of that property. The personal injury team at Campbell Litigation will happily meet with you to obtain all the information necessary to determine if you might have a claim. We also recognize the importance of making a full, healthy recovery, and work with medical professionals to ensure that our clients reach their maximum potential for recovery while also doing whatever we can to see that maximum compensation is realized. Please don’t hesitate to reach out to us online or by phone at 519-886-1204 to see how we can help you today.
