The Ontario Superior Court recently reviewed the factors supporting findings of gross negligence and a "reasonable excuse" for missing the 10-day notice period for claims against a municipality under the Municipal Act, 2001.

Overview

The plaintiff slipped and fell on a municipal sidewalk on February 3, 2009 as a result of the accumulation of ice and snow. She commenced a claim against the municipality for the injuries she sustained. Damages were agreed in advance of trial. The sole question before the court was whether the sidewalk was in an actionable state of disrepair such that the municipality was grossly negligent in its failure to maintain the sidewalk.

Facts

The plaintiff, who was a lawyer, walked the same route to work most days. Part of her route involved traversing a sidewalk with a steep decline, which had a metal handrail running alongside it. The handrail was in a "decrepit" state and had leaned far away from the sidewalk for over a year before the incident, rendering it effectively useless. Immediately prior to the fall, the plaintiff was not holding the handrail because it was leaning too far over to the right. She was taking short steps when suddenly her feet went out from under her, causing her to fall backwards and hit her head on the sidewalk. On looking back, the plaintiff saw no indication of sand or salt on the sidewalk and observed a patch of ice where she had fallen, which had been covered by the fresh snow.

The plaintiff provided notice to the municipality on March 9, 2009 by email, which was approximately five weeks after the accident. She testified that she had no knowledge of the 10-day notice requirement as set out under the Municipal Act, 2001. She also claimed that she did not advise the municipality of the fall earlier because she assumed her injuries would resolve.

The court found that that no municipal crew had carried out any manual winter maintenance on the sidewalk since January 12, 2009, which was three weeks before the accident. In the intervening period, records indicated that 37.4 cm of snow had fallen. There was some evidence that a municipal contractor used a bobcat machine to clear snow at the location days prior to the date of the incident. However, the effectiveness of the bobcat was disputed.

Analysis and Result

The court found that the municipality had been grossly negligent in its failure to maintain the subject sidewalk in a safe and proper state of repair. Its employees and contractors had not performed winter maintenance for several days prior to the incident, over which time snow fell in "appreciable and accumulating amounts on a particularly steep and well used sidewalk."

In supporting his finding of gross negligence, the trial judge noted that the municipality had erected the handrail to assist pedestrians in dealing with the slope of this well-used stretch of sidewalk. Since the municipality had made a decision that a handrail was necessary, it had a duty to maintain it in a useable state of repair and failed to do so.

With respect to the plaintiff's failure to provide notice to the municipality within 10 days, the municipality conceded at trial that it was not prejudiced by the delay. In determining whether the plaintiff had a "reasonable excuse" for the failure to provide notice in time the court considered the following:

  • the plaintiff had no knowledge of the 10 day requirement;
  • the notice was "only 27 days late";
  • the plaintiff had not spoken to a lawyer about her fall or potential claim;
  • the municipality's website related to snow on sidewalk issues did not specify a limitation period; and
  • the plaintiff honestly did not know how long her symptoms would last and hoped they would resolve, in which case she would not have commenced a claim.

According to the court, all of these factors, and particularly the last factor, supported a finding that the plaintiff had a "reasonable excuse" for her failure to provide notice within the required 10-day notice period under the Municipal Act, 2001.

In light of this decision, municipalities should ensure that their efforts to maintain sidewalks considers the reasonable maintenance of aspects of the sidewalk provided to assist users, such as handrails, ramps, steps and lighting. Furthermore, it might be prudent to ensure that all public communication about complaints and potential claims includes clear reference to the 10-day notice period.