Injuries caused by a city sidewalk or roadway: The obligation to give notice to the municipality

Subsection 44(10) of the Municipal Act 2001, S.O. 2001, chapter 25, creates a form of limitation period through which it requires personal injury victims to provide written notice of the incident to the municipality in which the incident occurred. The purpose of this law is to ensure that a municipality has a timely opportunity to investigate the incident. Most personal injury victims are not aware of this notice requirement – that no action shall be brought for the recovery of damages unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of has been served upon or sent by registered mail to the clerk of the municipality – and are only informed of it the time they meet with a lawyer. The time period imposed by the Act is different than the basic limitation period, of two years, provided by the Limitations Act, S.O. 2002, Chapter 24, which governs the time period within which a plaintiff must initiate a legal action. Fortunately for victims, subsection 44(12) of the Act provide an exception allowing it to argue that the failure to give notice is not a bar to an action, but only if it can be shown that there is a reason for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence. Unfortunately, pleading the ignorance of the law is not a valid legal reason. So what can a victim do if he has not complied with subsection 44(10)? The personal injury victim must bring himself within the ambit of subsection 44(12) and demonstrate that he has a reasonable excuse for the delay and that the municipality has not been prejudiced in its defence by the delay in receiving the notice. To obtain a sense of “what a plaintiff can do”, we invite you to read the recent decisions of Zogjani v. Toronto (City) and Delahaye v. Toronto (City). These two decisions are suggestive of what the court will consider as evidence of a reasonable excuse for the delay. For more information on this issue please contact the lawyers of QTMG LLP at 613-563-1131.