Stephenson v Cheng, 2019 ONSC 543

by Elizabeth Bowker | Oct 23, 2019

The City of Barrie sought to have the plaintiff’s action dismissed by way of summary judgment motion on the grounds that the plaintiff had failed to provide notice of his claim to the Municipality within ten days of his accident, as required by Section 44.10 of the Municipal Act.

The plaintiff was struck while riding his bicycle on July 29, 2015. He sued both the driver and the City. He claimed that the intersection was in a state of non-repair due to insufficient or malfunctioning lights. Shortly after the accident, the plaintiff met with his personal injury lawyer, who then retained an investigator. For the next seven months, the investigator made a number of requests to Barrie Police for its complete file, which was finally produced nine months later. The Barrie Police file indicated that some of the lights at the intersection were burned out at the time of the accident. Accordingly, the plaintiff put the City of Barrie on notice of a potential claim.

On its summary judgment motion, the City submitted that since the plaintiff did not provide notice to the City until almost one year after the injury, there was a failure to comply with the notice provisions of Section 44 of the Municipal Act. Section 44 requires that no action shall be brought for the recovery of damages against a municipality, unless, within ten days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to the Clerk of the municipality.

The plaintiff argued that until he received the Barrie Police records, there was no basis upon which to ground a claim against the City. He pointed to the saving provisions in s. 12 of the Act, which provide that failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the lack of the notice and that the municipality is not prejudiced in its defence. He also argued that whether or not the City was prejudiced by his failure to give reasonable notice was a genuine issue requiring a trial.

First of all, the Court considered whether the plaintiff had a reasonable excuse for his failure to put the City on notice within ten days. The Court concluded that there was a genuine issue requiring a trial with respect to whether the plaintiff had a reasonable excuse. There was evidence that the bulbs at the intersection were replaced shortly after the accident, yet before the investigator attended at the site. There was no delay in either the lawyer’s retention of the investigator or the investigator’s attendance at the scene 11 days after the accident. It was therefore quite possible that the plaintiff would be able to prove that he had a reasonable excuse for failing to meet the notice requirements at trial.

The judge then considered whether the need for trial on this very issue could be avoided using the new powers under Rule 20.04(2.1) and (2.2); if the judge finds there is a genuine issue requiring a trial, then she must next determine whether the need for a trial can be avoided by using the new powers to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence and hear oral evidence. The motion judge may exercise these powers, unless it is in the interest of justice that the powers be exercised at trial.

Using these new powers, the motion judge found that it was not until the Barrie Police released its complete file that the City’s acts or omission were discoverable. Efforts to obtain this information continued from the time of the accident until nine months later. Once the information came to light, the City was put on notice. The court therefore held that the plaintiff had a reasonable excuse for not having put the City on notice within 10 days.

The Court then went on to consider whether the City was prejudiced by the delay. The Court concluded that this was not an instance in which there would be a lack of information (e.g. there were police reports, witness statements and photos). Ultimately, the judge found that whether the City was prejudiced from the plaintiff’s delay was a genuine issue requiring a trial. Interestingly, the Court then declined to exercise the extended powers under Rule 20 to resolve the issue of prejudice. Accordingly, the City’s motion for summary judgment was dismissed.

This case is interesting, because the Court held that there were genuine issues for trial on: 1) whether the plaintiff had a reasonable excuse in his delay in notifying the City; and 2) whether the City of Barrie was prejudiced by the delay. With respect to the first issue, the Court found that, despite the fact that there was a genuine issue requiring a trial, the Court was able to use the powers under Rules 20.04(2.1) and (2.2) to avoid a trial on this particular issue and to find that the plaintiff had a reasonable excuse. However, with respect to the second issue on whether the City was prejudiced by the delay, the Court was not similarly willing to find that it could exercise those same powers to avoid a trial.

This case tells us that even if a responding party is able to show that there is a genuine issue requiring a trial, a moving party may nonetheless be successful on a summary judgment motion if it can convince the Court to exercise its powers under subrules (2.1) and (2.2), decide the genuine issue at the motion, and thus avoid the need for a trial. The fact that there is a genuine issue for trial does not necessarily spell the death of the summary judgment motion.