Timely Notice Or You Better Have A Reasonable Excuse

• Published date: 25 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Strigberger Brown Armstrong LLP
• Author: Ms Fiona Brown

Background

In Psaila v Kapsalis and City of Toronto, the Court of Appeal upheld the lower Court's decision to grant summary judgment in favour of the City of Toronto (the 'City'). The facts are quite simple. The action arises from a motor vehicle accident that took place, at an intersection in the City, on March 28, 2015. The City did not receive the required notice, under the Municipal Act, until April 2, 2018 and moved for summary judgment. The main issues for the Court were whether or not this matter was appropriate for a summary disposition, whether the plaintiff had demonstrated that they had a reasonable excuse for failing to provide notice in a timely matter and that the City suffered no prejudice as a result of the delay.

The City advised the Court, at the outset of the Motion, that it was only pursuing the statutory notice ground in support of its request for summary judgment. In considering Rule 20 of the Rules of Civil Procedure, which govern summary judgment, the Court held that, in this case, as facts and credibility were not in issue this matter was appropriate for summary judgment. The Court went on to consider the facts relevant to the notice requirement¹.

Notice Requirement: The Facts

The motor vehicle accident occurred on March 28, 2015 and involved the plaintiff, Peter Psaila ('Psaila') and the defendant driver Nick Kapsailis ('Kapsailis'). Each were attempting a turn and the Psaila vehicle hit the left rear end of the Kapsalis vehicle. Psaila retained counsel and provided Kapsalis with notice of their claim on June 29, 2015. Psaila obtained the complete police file on August 10, 2015 which included competing statements given by Psaila and Kapsalis.

Psaila started the action against Kapsalis by Statement of Claim dated December 2, 2015. Psaila's allegations of negligence were broadly pleaded. Kapsalis filed a Statement of Defence dated March 21, 2016, with a Jury Notice, and pleaded that Psaila's negligence caused or contributed to the accident, that Psaila had the 'last clear chance to avoid the collision' and 'failed to keep a proper lookout or pay adequate attention to the road.'

Prior to examination for discovery Kapsalis produced scene photographs. Examinations for discovery took place on January 17 and February 17, 2017. Shortly after discoveries, due to incapacity, Psaila required a litigation guardian, which was appointed on November 30, 2017.

Following discoveries, on February 1, 2018, Kapsailis served an expert engineering...