Ontario Court Of Appeal Revisits 'Reasonable Excuse' In Municipal Notice Period Cases

In the recent case of City of Toronto ats Seif,1 the plaintiff successfully appealed an Order granting summary judgment to the City of Toronto in a trip and fall action. The motion judge dismissed the claim on the ground that there was no reasonable excuse for the plaintiff's failure to provide the City with notice of her claim within ten days as required by s. 42(6) of the City of Toronto Act, 2006, SO 2006, c 11 (the "Act").

The Court of Appeal disagreed and allowed the appeal on the basis that there was a reasonable excuse for the failure to provide proper notice. The Court of Appeal also held that the question of whether the City had suffered prejudice as a result of such failure was a genuine issue requiring a trial.

On Aug. 19, 2011, the plaintiff tripped on a City sidewalk fracturing her wrist. At the time of the incident, she was neither aware of the 10-day notice requirements under the Act, nor did she have any intention of commencing an action in respect of her injuries. It was not until a medical appointment in November 2011 - when she learned that she would suffer pain for the remainder of her life - that the plaintiff thought to bring a claim against the City. She met with legal counsel on Dec. 20, 2011, and a notice letter was sent to the City the next day.

The motion judge held that the exception of "reasonable excuse" where there has been a failure to provide notice was meant to assist plaintiffs whose injuries had prevented them from complying with s. 42(6). The Court of Appeal reversed on this point, finding that there was no requirement that the delay be occasioned by the injury suffered. The correct test to be applied is "whether, in all of the circumstances of the case, it was reasonable for the appellant not to give notice until she did."2 The Court also held that while a lack of knowledge of the notice requirement will not constitute reasonable excuse, it may contribute to extenuating circumstances which could eventually...