The Importance Of Inviting The Proper Guests To The Party

The plaintiffs' claim relates to an incident that took place on September 8, 2013. On that day, a car being driven by the plaintiff, John Bertolli, drove through a pothole located on McCowan Road, in the City of Markham and the Region of York. Consistent with the requirements of the Municipal Act a notice letter was delivered to the City of Markham advising it of the accident, asserting it had been negligent in the upkeep of the road, was responsible for any damage suffered by the plaintiffs, asking that its property liability insurers be notified, and raising the prospect that an action would be commenced against it. The letter began as follows:

Please be advised that I have been retained by the above noted individuals in connection with personal injuries sustained while driving on McCowan Road, north of Dennison Street, Markham, on September 8, 2013.

The City of Markham ("Markham") immediately wrote to counsel for the plaintiffs advising that the location of the accident fell under the jurisdiction of the Region of York ("the Region)", within which Markham is located. Markham passed the letter it had received on to the Region. Counsel for the plaintiffs followed up and sent a letter to the Region, containing the same advice as the letter it had sent to Markham. In particular, it included the same introductory words as quoted above.

Brennan Paving and Construction Ltd. ("Brennan Paving") was the road maintenance contractor identified as being responsible for the upkeep of the road at the location of the accident. The Region passed on the letter it had received to Brennan Paving.

The Statement of Claim was issued on August 27, 2015 naming the City of Toronto and John Doe Maintenance Company as defendants. The Claim notes the location of the accident as "northbound on McCowan Road, in the City of Toronto" and nothing more. It is important to note that parts of McCowan Road are located in the Region (which includes Markham) and other parts in the City of Toronto. At the time of the accident, and for the five years prior, Brennan Paving was not, and had not been, responsible for the maintenance on the part of McCowan Road that is located in the City of Toronto.

The Statement of Claim was served on the City of Toronto on September 1, 2015 and particulars of the exact location of the alleged accident were requested. In response, counsel for the plaintiffs advised that the "pothole was located in the northbound curb lane of McCowan Road...