Cena v. Oakville, 2009 CanLII 1650: an Exception to the Failure to Comply With Notice Mandate

[12]  In this case, it is agreed that the plaintiff did not comply with section 44 (10) of the Municipal Act.  She did not give notice to the municipality in the manner prescribed within 10 days after the occurrence of the injury.  The question posed by subsection (12) of the Municipal Act therefore is whether there is reasonable excuse for the want or the insufficiency of the notice.  In the motion before me, the municipality did not allege that it was prejudiced in its defence by virtue of the want or insufficiency of the notice.

[13]  The defendant municipality takes the position that all the facts that are necessary to decide this issue are before the court and it does not require any findings of fact or credibility to determine whether the plaintiff has provided a reasonable excuse for non-compliance with the 10 day notice period.  The plaintiff argues that as long as there is a triable issue with respect to whether she had a reasonable excuse for non-compliance, then the motion for summary judgment should be dismissed.

[14]  In this case, we are dealing with a limiting notice provision the purpose of which was described by Roach J. in Schoeni v. King 1943 CanLII 91 (ON SC), [1943] O.R. 478, at page 485 as follows:

Notice within the prescribed time gives to a municipal corporation an opportunity to investigate the source of the accident, the place where it happened and the circumstances under which it happened.  The greater the lapse of time between the happening of the occurrence and the investigation, the less is the opportunity of the servants of the corporation to investigate, and there may come a time when all opportunity to investigate is lost.

[15]  In my view, the plaintiff should have the benefit of a broad and liberal interpretation of “reasonable excuse”.  Failure to comply with the 10 day time limit mandated by subsection 44(10) is a bar to an action where the plaintiff establishes reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.  Where the municipality is prejudiced in its defence, failure to comply with the time limit is a bar.  In my view, the protection granted to the municipality where it is prejudiced in its defence is good reason why a liberal interpretation should be given to the words “reasonable excuse”.  This approach is consistent with the purpose of the limiting notice provision as described by Justice Roach, that is, protect the municipality’s opportunity to investigate the source of the accident, the place where it happened in the circumstances under which it happened.  Where the passage of time does not prejudice the Corporation, a liberal interpretation is warranted.

[16]  If I find the case of Blair v. Barrie (City), [2006] O.J. No. 4997 to be persuasive authority in support of the plaintiff's position that the defendant’s motion should be dismissed.  In the Blair case, Howden J.  states as follows at para. 7:

The new Limitation Act repealed former subsections 44(12) and (13) of the Municipal Act and enacted the present subsection 44(12).  At the same time, the legislature put in statutory form the principle of discoverability in section 5 of the Limitations Act.  The rationale underlying the discoverability principle is that it would be unjust to permit a statutory limitation period to run before the plaintiff knew, or by reasonable diligence could have known, that she could bring an action.  Both counsel accepted that it was applicable in the case of a notice provision such as subsections 44(10) and (12) of the Municipal Act as it has been applied to the limitation of actions against municipalities.  Zapfe v. Barnes 2003 CanLII 52159 (ON CA), [2003] O.J. No 2856 at para 22.  The Court of Appeal in Zapfe described the competing factors of justice to claimant and finality for potential defendants in the following terms:

The discoverability principle is an interpretive tool of general application which guides the interpretation of limitation statutes.  Consideration of whether it applies in a given case is concerned with balancing fairness for both the plaintiff and the proposed defendant.  On the one hand, the plaintiff, through no lack of diligence, is unaware of her cause of action prior to the natural expiry date of the limitation period.  In those circumstances, the principle is designed to avoid the injustice of precluding an action or claim before the plaintiff is in a position to commence proceedings.  On the other hand, the proposed defendant is entitled to reasonably rely upon limitations statutes in the ordering of its affairs.  Application of the discoverability principle postpones the running of a limitation period and therefore precludes the proposed defendant from relying on the protection of the natural expiration of a limitation period:  Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549. …

The need for the balancing of those competing fairness concerns was confirmed by the Supreme Court of Canada in M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6.  In that case, La Forest J., writing for a majority of the court, described the policy reasons for statutory limitations of suits from the perspective of a potential defendant.  They include:  (i)  recognition of the fact that there comes a time when a proposed defendant may reasonably expect that it will not be held to account for past obligations (at para. 22); (ii) the desirable objective of foreclosing claims based on stale evidence, that is, once a limitation period has expired, the potential defendant should be relieved from the need to preserve evidence relevant to the claim (at para.23); and (iii) the important public benefit to be achieved by requiring plaintiffs to act diligently and not to “sleep on their rights”, thus fostering the timely commencement of suits and closure of claims (at para. 24).  At the same time, however, as observed by La Forest J., at para. 27, “[F]airness to the plaintiff must also animate a principled approach to determining the accrual of a cause of action.

[17]  In Blair, at para 9, Justice Howden concludes that Section 5 of the Limitations Act contains the legislative approach to the principles of discoverability and that this statutory provision presumes that a claimant knew of the matters in section 5(1) (a) on the day the act or omission on which the claim is based caused damage, unless the contrary is proved.  Subections 5 (1) and (2) of the Limitations Act, 2002, S.O. 2002, C. 24 are as follows:

5.  (1)  A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched.  B, s. 5 (1).

(2)  A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched.  B, s. 5 (2).

[18]  The plaintiff’s evidence is that not until November that she became concerned that her injury may not be responding to treatment as well as initially expected and it was not until she consulted legal counsel on November 20 and that she became aware she might have a claim against Oakville and that a proceeding would be an appropriate means to seek a remedy.

[19]  In Blair, Justice Howden concluded that “a finding on the issue of reasonable diligence in the face of the evidence, where the city is not prejudiced it is a condition remaining stable, should await a complete record of a trial.” In my view, this conclusion is also warranted in the case at bar.

[20]  As in the Blair case, there is a triable issue with respect to whether there is reasonable to excuse for the plaintiff not complying with the 10 day notice provision.

[21]  The defendant’s motion is dismissed.