In the recent case of City of Toronto ats Seif,1 the plaintiff successfully appealed an Order granting summary judgment to the City of Toronto in a trip and fall action. The motion judge dismissed the claim on the ground that there was no reasonable excuse for the plaintiff’s failure to provide the City with notice of her claim within ten days as required by s. 42(6) of the City of Toronto Act, 2006, SO 2006, c 11 (the “Act”).

The Court of Appeal disagreed and allowed the appeal on the basis that there was a reasonable excuse for the failure to provide proper notice. The Court of Appeal also held that the question of whether the City had suffered prejudice as a result of such failure was a genuine issue requiring a trial.

On Aug. 19, 2011, the plaintiff tripped on a City sidewalk fracturing her wrist.  At the time of the incident, she was neither aware of the 10-day notice requirements under the Act, nor did she have any intention of commencing an action in respect of her injuries. It was not until a medical appointment in November 2011 - when she learned that she would suffer pain for the remainder of her life - that the plaintiff thought to bring a claim against the City. She met with legal counsel on Dec. 20, 2011, and a notice letter was sent to the City the next day.

The motion judge held that the exception of “reasonable excuse” where there has been a failure to provide notice was meant to assist plaintiffs whose injuries had prevented them from complying with s. 42(6). The Court of Appeal reversed on this point, finding that there was no requirement that the delay be occasioned by the injury suffered. The correct test to be applied is “whether, in all of the circumstances of the case, it was reasonable for the appellant not to give notice until she did."2 The Court also held that while a lack of knowledge of the notice requirement will not constitute reasonable excuse, it may contribute to extenuating circumstances which could eventually lead to a finding of reasonable excuse.

In light of the motion judge’s decision, he did not consider the issue of whether the failure to provide notice resulted in prejudice to the City. The majority of the Court of Appeal reasoned that given the material facts in dispute, particularly regarding whether the City would have conducted a more timely investigation had it been given proper notice, and the lack of evidence on how the sidewalk may have changed in the time between the incident and when notice was ultimately provided, the issue was not appropriate for summary judgment. Justice Hoy dissented on the issue of prejudice, finding that the record was sufficient for making a determination.  She confirmed that prejudice is presumed and that the onus was on the appellant to rebut the presumption. Justice Hoy would have dismissed the appeal.

Ultimately, the Ontario Court of Appeal has confirmed that either the absence of a reasonable excuse for the failure to provide notice, or prejudice to the municipality will bar a claim against a municipality for failure to keep a highway in a reasonable state of repair.