Plaintiff’s delay in notifying City of Toronto about pothole incident was excusable: case

City not prejudiced by plaintiff’s late notice regarding the occurrence, court says

Plaintiff’s delay in notifying City of Toronto about pothole incident was excusable: case
Plaintiff sued City of Toronto after she sustained injuries when she tripped on a pothole

A court has granted summary judgment in favour of a personal injury plaintiff, finding there is no genuine issue requiring a trial in respect to whether she had a reasonable excuse for failing to comply with the notice requirement to the City of Toronto.

In Graham v. City of Toronto, 2021 ONSC 2278, the plaintiff tripped on a pothole on a pedestrian crosswalk in January 2018 and sustained injuries to her neck and right shoulder, elbow, arm and hand. She underwent surgery in April 2019 and resigned from her job as a company’s managing director in May 2019 to allow herself to receive treatment and to recover. She went through extensive physiotherapy, first for her right arm, then later for her left arm, which was also injured in the fall. She still needs to exercise daily to manage the pain.

The plaintiff sued the defendant City of Toronto. The defendant filed a motion for summary judgment, submitting that the plaintiff only gave notice of her claim in March 2018, nearly three months after the incident, which breached the ten-day notice requirement under s. 42(6) of the City of Toronto Act, 2006, SO 2006, c 11, Sch A.

The Superior Court of Justice of Ontario granted summary judgment in the plaintiff’s favour because there was sufficient evidence to fairly adjudicate the disputed issues and rejected the defendant’s defence that the plaintiff’s claim was barred due to her failure to give the prerequisite notice. The court ruled that there was no genuine issue requiring a trial regarding the questions of whether the claim was barred under s. 42(6), whether the plaintiff had a reasonable excuse for the delay or whether the defendant experienced prejudice due to the delay.

The court held that the plaintiff established a reasonable excuse for why she did not give an earlier notice and listed certain factors amounting to extenuating circumstances which justified her delay, including the plaintiff’s lack of knowledge about the notice requirement and her doctor’s advice that her injuries would heal with physiotherapy. The court found that the plaintiff only decided to sue once she later realized that her injuries were not improving and that she should not be disadvantaged for her preference to wait for her injuries to heal before forming an intention to sue.

The court added that, even if the plaintiff’s excuse was only modest, the defendant was not prejudiced by the delayed notice. On the issue of prejudice, the defendant contended that it could not invoke a defence under s. 42(3)(c) because the delay prevented it from measuring the pothole before it was repaired.

The court rejected the defendant’s argument and said that the defendant failed to present evidence disputing the opinion of the plaintiff’s forensic engineer that there were alternative ways to measure the pothole. The forensic engineer had examined the photographs taken by the plaintiff within the ten-day notice period, which showed that the pothole appeared easily visible and large. The forensic engineer concluded that the pothole’s dimensions were double the minimum standards stated in the relevant regulation.

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