Stephenson v. Cheng, 2019 ONSC 543: The Reasonable Excuse Exception to the Ten Day Notice Requirement

(a)               Does the Plaintiff Have a Reasonable Excuse?

[24]  The Plaintiff was injured on July 29, 2015.  The deadline to put the City on notice was August 8, 2015.

[25]  On July 31, 2015 the Plaintiff retained Furlong to represent him solely with respect to his accident benefits claim.  The Plaintiff had no memory of the collision at this first meeting.

[26]  On August 10, 2015, family members of the Plaintiff, who were not at the scene, told Furlong there may have been lights out at the intersection where the collision occurred.  Furlong agreed to investigate a potential tort action and retained an investigator further to this on August 13, 2015.

[27]  The investigator attended at the intersection on August 24, 2015, and thereafter reported to Furlong that the lights were in working condition.

[28]  It was not until June 13, 2016 that Furlong received evidence, by way of the Executive Summary contained in the Barrie Police file, that there were two lights out at the intersection the night the Plaintiff was injured.  On June 15, 2016, Furlong put the City on notice of a potential claim.

[29]  The City urged this court to find that the information about “some lights possibly being out”, as relayed the Plaintiff’s family members on August 10, 2015, was sufficient to warrant putting the City on notice.  In support of this the City referenced Johnson v. Studley, 2014 ONSC 1732, where Justice Perell stated at para. 61:

For the limitation period to begin to run, it is enough for the plaintiff to have prima facie grounds to infer that the defendant cause him or her harm, and certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement.

[30]  However, as this court held in Blair v. Barrie (City) [2006] O.J. No. 4997, quoting the Court of Appeal’s decision in Zapfe v. Barnes [2005] O.J. No. 2856, citing Aguonie v. Galion Sold Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 at 170, when determining discoverability “(t)he discovery of a tortfeasor involves more than the identity of one who may be liable.  It involves the discovery of his or her acts or omissions, which constitute liability.”

[31]  I find that there is a genuine issue requiring a trial with respect to whether the Plaintiff had a reasonable excuse for not putting the City on notice within the legislated ten days.  The evidence before me was that the bulbs were replaced by the City on August 13, 2015, before the investigator attended at the intersection to determine whether the lights were in working.  In an odd coincidence, the investigator was retained the same day the bulbs were being replaced.  I do not find there was any untoward delay in either Furlong’s retention of the investigator, or the investigator’s attendance at the scene eleven days later.  Regrettably, by the time he attended, the lights were working.

[32]  Having determined that there is a genuine issue requiring a trial with respect to reasonable excuse, I turn now to step two of the summary judgment process as set out above: whether the need for trial on this issue can be avoided utilizing the new powers under 2120.04(2.1) and (2.2).

[33]  In this instance these new powers can and should be exercised.  I find that it was not until Barrie Police released its complete file, containing the Executive Summary Report, that the City’s acts or omissions were discoverable.  Efforts to obtain this information continued from August 2015 to May 2016.  Once the information came to light, the City was put on notice.  This establishes the Plaintiff’s reasonable excuse.

(b)               Is the City of Barrie Prejudiced by the Delay?

[34]  The purpose of s. 44 of the Act is to ensure a municipality has an opportunity to investigate, in a timely manner, the circumstances of the claim against it.  Where notice has not been provided there is a presumption of prejudice.  This presumption can be rebutted by evidence from the Plaintiff.

[35]  The City alleges it has been prejudiced by the lack of notice.  The street lights were changed within weeks of the collision.  It has lost the opportunity to examine and determine why the lights were out on July 29, 2015.  The City retained an expert to assess the feasibility of the street lights being re-fitted with high pressure sodium lights in order to conduct a nighttime visibility assessment at the collision scene.  The expert concluded that the reconstruction of the lighting, as it existed at the time of the collision, could not be validated.

[36]  The Plaintiff also retained an expert to determine what would be required to conduct a comprehensive visibility assessment.  The Plaintiff’s expert opined that if the fixtures were converted back to high-pressure sodium fixtures of the same wattage, a comprehensive visibility assessment could be carried out.  This expert provided the name of company prepared to complete the conversion, at an estimated cost of $4,000 to $5,000.

[37]  This is not an instance in which there is a dearth of information that could be of assistance to the City.  The Executive Summary Report specifically notes that the intersection was dark, and especially dark at the time of the collision given that two of the four light standards were not working.  In addition, there are witness statements confirming the intersection was not well illuminated.  And, as noted above, there are a number of pictures accurately depicting the intersection taken the night of the collision.

[38]  In the circumstances, I find that whether the City is prejudiced from the Plaintiff’s delay in notification is a genuine issue requiring a trial.  I am not, however, confident that employing the expanded powers will allow me to resolve the issue of prejudice in a fair and just manner.

[39]  Accordingly, the City’s motion for summary judgment is dismissed.