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Notice - Statutory Extension of Notice Period

These cases turn on statutory provisions that are usually unique to the statutory regime involved. Be careful on generalizing principles you extract from them.

. Graham v. Toronto (City)

In Graham v. Toronto (City) (Ont CA, 2022) the Court of Appeal considered time-extending a statutory notice provision for damage claims under the City of Toronto Act:
[2] Section 42(6) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the “Act”) provides that no action shall be brought for the recovery of damages against the City for its failure to maintain a highway in a reasonable state of repair unless the claimant provides the City with written notice of the claim and the injury complained of within 10 days after the occurrence of the injury. ....


[14] The City submits that the motion judge erred in applying the twofold requirements of s. 42(8) of the Act: reasonable excuse and no prejudice to the City.

Reasonable excuse

[15] As to the motion judge’s conclusion that Ms. Graham had demonstrated a reasonable excuse for not providing earlier notice, the City contends her analysis was tainted by several errors: misinterpreting s. 42(6); effectively changing the two-prong legal test contained in the Act; and improperly considering Ms. Graham’s subjective awareness of the significance of her injury rather than merely the fact of her injury, thereby wrongfully elongating the 10-day notice period.

[16] We are not persuaded by these submissions.

[17] As to the first alleged error, the motion judge’s reasons disclose that she identified and applied the prevailing jurisprudence of this court concerning ss. 42(6) and 42(8) of the Act. Her references to the interpretative principle of reasonableness and the notion of a “modest excuse” were both taken from recent jurisprudence of this court (Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at fn. 4 and para. 75, leave to appeal refused, [2017] S.C.C.A. No. 289). In any event, the reasons clearly indicate that the motion judge never lost sight of the statutory obligation on Ms. Graham to demonstrate a “reasonable excuse”.

[18] The other two errors alleged by the City essentially amount to asking this court to reweigh the various factors and evidence that led the motion judge to conclude Ms. Graham had demonstrated a reasonable excuse. We see no basis for this court to do so. To determine whether a plaintiff has demonstrated a reasonable excuse, a court must ascertain whether, in all of the circumstances of the case, it was reasonable for the plaintiff not to give notice until she did: Seif v. Toronto (City), 2015 ONCA 321, 125 O.R. (3d) 481, at para. 26, per Hoy A.C.J.O. (dissenting in part, but not on this point). The motion judge’s reasons disclose that she took into account all the circumstances, did not fail to appreciate relevant evidence, did not misapprehend the evidence, and did not draw any unreasonable inferences. In those circumstances, we see no basis for appellate intervention with her finding that Ms. Graham had demonstrated a reasonable excuse.

No prejudice

[19] The City further submits that the motion judge erred in concluding that no genuine issue requiring a trial exists on the issue of whether the City would not be prejudiced in its defence by Ms. Graham’s failure to give the 10-day notice. We are not persuaded by this submission.

[20] The motion judge noted that the City’s affiant admitted that the alleged prejudice rested solely on the fact that the City did not take measurements of the pothole before it was repaired. Such measurements would be relevant to any defence by the City that it was not liable for keeping the crosswalk in a reasonable state of repair because at the time of Ms. Graham’s fall it had met the minimum regulatory maintenance standards: Act, s. 42(3)(c). The motion judge identified a large body of evidence that led her to conclude that the delay in giving notice would not prejudice the City in its defence: (i) Ms. Graham took clear photos of the pothole within the 10-day period; (ii) Mr. Mitchell gave evidence that he inspected the pothole on the day of the incident and estimated its depth at six inches; (iii) the City took photos of the pothole on January 19, 2018, seventeen days after Ms. Graham’s fall, in response to a complaint about the hole by another person; (iv) the City field investigator who took the photos determined the pothole required repair, which was quickly done; (v) the City did not adduce any evidence explaining why the field investigator did not measure the dimensions of the pothole, although it had the opportunity to do so; and (vi) the respondents filed an expert report that opined on the dimensions of the pothole using the various January 2018 photos, yet the City did not cross-examine the expert.

[21] Accordingly, ample evidence supported the motion judge’s conclusion that Ms. Graham had satisfied the “no prejudice to the City in its defence” element of s. 42(8) of the Act. We see no reversible error in that conclusion.

[22] Finally, we do not accept the City’s argument that the motion judge’s decision somehow gives rise to the spectre of an inconsistent finding being made at trial. The motion judge did not make a finding about the dimensions of the pothole. Her decision does not preclude the City from advancing a defence that the crosswalk was in a state of proper repair based on the minimum standards for pothole repair set out in s. 6 of Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06. Nor does it preclude the trial judge from rejecting the respondents’ expert’s evidence concerning the dimensions of the pothole.


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