One of the most important reasons to work with an experienced lawyer on legal matters you may encounter is that there are often time limits or formalities that are critical to navigating successfully through the justice system. This includes issues related to personal injuries, where a failure to act or file certain documents within a defined period of time may result in the dismissal of what could otherwise be a successful case. This was recently illustrated in a decision from the Ontario Superior Court of Justice where a plaintiff failed to provide written notice to the municipality from which they sought damages.

Plaintiff slips and is injured on municipal property

The plaintiff in the matter was injured in April 2017 when he, his spouse, his son-in-law, and his grandchild walked from a hotel in Niagara Falls to a cheer event taking place at a convention centre. During the walk, the plaintiff fell and broke his humerus. The injury required surgery.

In his claim, the plaintiff alleged that the fall was a result of the accumulation of ice either on or near the sidewalk he was travelling on.

Ontario’s Municipal Act (“Act”) requires municipalities to take reasonable measures to keep highways in a state of repair. A failure to do so can result in the municipality being found liable should someone become injured.

After filing his claim, the municipality argued that the plaintiff was statute-barred from seeking damages and sought a summary judgment to dismiss this appeal, meaning they asked the court to dismiss the lawsuit altogether. The reason the municipality argued the plaintiff could not pursue litigation was that the Act requires someone who wishes to make a claim to send written notice of the claim within 10 days of an injury occurring. The notice must include the date, time, and location of the accident.

Notice is provided, but details change

The plaintiff’s lawyer provided the municipality with notice just days after the accident. However, certain details, particularly those relating to the location of the accident, were omitted from the letter. The municipality asked the plaintiff to send photographs of the area “as soon as possible.” It wasn’t until six weeks later that a map was provided with an X placed on the location of the injury. However, another map provided over six weeks after the first one marked the location in an entirely different place. The court stated in its decision that the locations were a “significant” distance apart.

Can the mistake be corrected and the lawsuit saved?

The court stated that the deficiency in the original notice was serious enough to invalidate the plaintiff’s lawsuit. However, the Act does have a provision that allows such errors to be “cured” and allow for matters to proceed. It states,

“…insufficiency of notice is not a bar to the action if a judge finds that there is reasonable excuse for the…insufficiency of the notice and that the municipality is not prejudiced in its defence.”

In order for the plaintiff to be successful in moving things forward, he would have to meet the three criteria listed above, namely that there was a reasonable excuse for the mistake and that the municipality would not be prejudiced by allowing it to proceed.

The municipality argued that for three months its investigation into the fall was focused exclusively on the original location named by the plaintiff. By the time the correct location was provided, it was June and all the ice or snow that could have been present at the actual location was long gone. Additionally, surveillance video that may have been available from places of business had been taped over, and it was too late to find eyewitnesses who could testify about the condition of the sidewalk in April.

The court found the city was indeed prejudiced by the delay in the identification of the correct location of the fall.

Court determines no excuse for the miscommunication

In turning to the question of whether there was a reasonable excuse for the miscommunication, the court said it had a duty to consider all of the circumstances surrounding the delay in the plaintiff providing a precise location of the accident. However, the court added this was difficult to do because the plaintiff did not provide any evidence from the other family members (his wife and son-in-law) who were with him when he suffered the fall.

The plaintiff told the court that after he was taken to the hospital, he was given drugs which made him unable to participate fully in providing the location. However, the court found that the family members he was with could have done so. The plaintiff told the court he did not ask his son-in-law because he lives about an hour away, something the court did not believe to be a reasonable excuse.

A 2014 decision from the Ontario Superior Court of Justice limited the definition of a reasonable excuse in writing that the provision is meant to grant extra time to people whose delay is the result of their injury, not to extend the time for a plaintiff who was delayed by a result of their own failure to act timely.

Contact Campbell Litigation in Kitchener-Waterloo if you are injured on private or municipally owned land

It’s very important to reach out to an experienced lawyer as soon as possible following an accident. Once certain your or your loved one’s health needs have been addressed, contact the personal injury lawyers at Campbell Litigation. Our team will work with our network of trusted medical professionals to make sure that all relevant information related to the injury is collected in order to work towards reaching a maximum potential for recovery. We work with our clients to understand their short and long-term needs and identify paths to resolution that speak to those needs. We help clients who have been injured in a wide range of accidents, including motor vehicles or injuries on private property. If you or someone in your family has been injured, please contact us online or by phone at 519-886-1204 to schedule a consultation today.