Overcoming The Municipal Limitation Period: Graham V. City Of Toronto
| Published date | 23 June 2021 |
| Subject Matter | Litigation, Mediation & Arbitration, Personal Injury |
| Law Firm | McLeish Orlando LLP |
| Author | Mr Dale Orlando and Cody Malloy (Summer Student) |
Municipalities owe a duty of care to individuals to protect them against bodily harm and property damage. Municipalities have to protect people and their property from a variety of hazards, such as potholes, tree or branch damage, floods, and various other types of hazards.
One of the most common claims against a municipality is negligent road repair. The drastic change in temperate from cold winters to hot summers creates no shortage of potholes on Toronto roadways.
If I'm a victim of the City of Toronto's negligent road repair, what's my next step? According to the City of Toronto Act section 42(6), in order to advance a claim against the City of Toronto for damages arising out of their negligent road repair, written notice must be given to the city clerk within ten days of the incident. Failure to provide written notice is a complete bar to bringing an action unless the injured party dies or has a reasonable excuse for not providing notice and the City is not prejudiced in their defence by the failure to provide notice within the specified time.
The recent Superior Court of Ontario decision Graham v. City of Toronto, 2021 ONSC 2278 examines the exceptions to the mandatory 10 day notice period where. Papageorgiou J. held that a plaintiff was able to file a claim against the City despite filing more than three months after the limitation period had expired. 1 In Graham, the plaintiff suffered injuries after tripping on a large, deep pothole on a pedestrian crosswalk on January 2, 2018. The plaintiff did not give the City notice of her claim until March 22, 2018. The City filed a motion to dismiss the claim since the plaintiff failed to give proper notice under section 42(6) of the City of Toronto Act.
Plaintiff's reasonable excuse for delay
Papageorgiou J. recognized different factors relevant to a plaintiff's reasonable excuse, such as the seriousness of the injury and any treatment associated with it, whether the plaintiff was capable of forming the intention to sue the municipality, the length of the delay, and the explanation for the delay. 2
The plaintiff's explanation for her delay was given in her affidavit, which stated that she had "never been injured before, was dealing with work and treating my injuries, and had never dealt with anything like this before. I was also unaware of the ten-day notice period and remained undecided as to whether I wanted to make a claim until I realized that my injuries were not resolving." 3
Additionally, the...
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