No Reasonable Excuse: Ontario Court Of Appeal Breathes Life Back Into Municipal Notice Requirements

• Published date: 25 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Gowling WLG
• Author: Ms Belinda Bain and Alexandra Psellas

A recent decision from the Ontario Court of Appeal affirms that summary dismissal of an action against a municipality is appropriate where the plaintiff has failed to provide timely notice without reasonable excuse.

In Psaila v Kapsalis,¹ the Ontario Court of Appeal considered an appeal from a decision granting summary judgment and dismissing the plaintiff's action against the City of Toronto for failure to provide notice as required by the City of Toronto Act, 2006.² The Court of Appeal dismissed the appeal, finding that the motion judge's decision was reasonable and entitled to deference.

The summary judgment motion

In the decision under appeal, Justice Vella had considered a summary judgment motion brought by the defendant City of Toronto to dismiss the action against it.³ The action had arisen from a motor vehicle accident involving the plaintiff and another driver in March 2015.

The litigation had been well underway before the City of Toronto was named as a party - both the plaintiff and defendant driver had been examined for discovery in early 2017, and the defendants had served an expert engineering accident reconstruction report blaming the plaintiff for the accident (the "Wilson Report") in February 2018. The plaintiff retained a responding expert engineer in late March, who advised plaintiff's counsel to put the City on notice "in an abundance of caution," suspecting there may be an intersection design issue and "potentially an urgency" to put the City on notice. The City was put on notice on April 2, 2018, and added as a defendant to the action by Order dated March 29, 2019, without prejudice to its rights to assert any defences, including those based on expiry of limitation period or notice period.

Section 42(6) of the City of Toronto Act, 2006, provides that no action shall be brought for recovery of damages against the City unless notice is provided to the city clerk within 10 days.⁴ However, section 42(8) provides that "[f]ailure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the City is not prejudiced in its defence."⁵

Justice Vella concluded that, even using a "broad and liberal interpretation" of "reasonable excuse," the plaintiff had knowledge of sufficient facts to underpin a potential claim based on design defects with the intersection even prior to receiving the Wilson Report. She also found that, in the...