Posted: January 18, 2016
By: Steve Rastin

In August of 2011, Robin Seif tripped on a “lip” of a City of Toronto sidewalk and fell, fracturing her wrist. Her wrist was set in a cast in the hospital; she assumed it would completely heal over time and accordingly, initially had no intention of filing an action against the City.  She was also not aware that the City of Toronto Act, 2006 requires that a person must notify the City clerk within ten days of an accident if desiring to make a claim for damages. (This timeline is a common requirement for Ontario municipalities). 

Failing to give ten day notice may not preclude a claim if a judge determines that the injured person has a reasonable excuse for insufficient notice and also, if the City is not prejudiced in its defence due to the delay.  The latter means that the City should not be put into the disadvantaged position of being unable to gather evidence and defend against the accusation of an unsafe condition long after an accident occurred.

Ms. Seif continued to have ongoing pain in her wrist and in November of 2011, she learned that her pain and limited mobility in her wrist would persist for the rest of her life. She subsequently hired a lawyer who immediately notified the City of her claim, which was now four months after her trip and fall.  The claim stated that the accident and resulting injury occurred on a significant lip in the sidewalk at the intersection of Spadina Rd and Lonsdale Rd. At this time, Ms. Seif’s husband took photographs of the sidewalk where her fall happened (which included a cigarette butt to show the scale of the lip).

The City sent representatives on two occasions to inspect and take pictures of the sidewalk where the accident occurred but neither did so at the correct location. Finally, in May 2012, the City received Mr. Seif’s photos and properly located the location of the trip and fall, but when the investigator for the City measured and took photographs of the site at that time, he found no ledge along the sidewalk that was greater than two centimetres. This investigator concluded that he could not be certain whether the lip was greater, the same or smaller when the accident occurred because temperature fluctuations, freeze thaw cycles and winter maintenance activities may have altered the interlocking brick height on the sidewalk.

The City of Toronto conducts annual sidewalk inspections. The location of the trip and fall accident had been inspected in June 2011 (roughly two months before the accident) but no problems were reported at that time, as defined by surface height differences exceeding two centimeters.

In her action against the City, the motion judge decided that Ms. Seif did not have a reasonable excuse for late notice and correspondingly, dismissed her claim.  The motion judge reasoned that Ms. Seif was not hindered from giving notice by her injuries; her delay resulted from indecision about whether to bring an action at all. The judge further stated that the “exception to the notice requirement was designed to accommodate plaintiffs whose delay is somehow a result of their injury. It is not designed to extend the time for a plaintiff whose delay is a result of their indecision or their apathy toward issuing a claim.”

Ms. Seif appealed the motion judge’s decision in Seif v. Toronto (City), 2015. Her lawyer argued that the motion judge erred in requiring that a delay in notice is allowed only on the basis of injury and further, the definition of ‘reasonable excuse’ should be broadened to consider that she was uncertain of the severity of her injuries, unaware of the ten day notice deadline, and only delayed her action a mere four months. Ms. Seif’s lawyer also argued the issue of whether Ms. Seif’s delay prejudiced the City in its defence. 

The two issues to be decided by the Court of Appeal judge were whether Ms. Seif had a reasonable excuse for delaying notification to the City and also, whether the delay prejudiced the City’s defence.

The Appeal’s court judge advised that ignorance of the notice requirement is not a valid excuse for delayed notification, although it may be considered an extenuating circumstance.  However, the judge agreed with Ms. Seif’s counsel that ‘reasonable excuse’ should be more broadly and liberally interpreted and further, it was reasonable that she did not give notice until she underwent treatment and discovered that she would suffer pain and limitations permanently.  And once she decided to take legal action for damages, she promptly retained a lawyer and gave notice to the City of Toronto.

The issue of whether Ms. Seif’s delay in notification prejudiced the City’s defense had not been considered in the earlier action by the motions judge; therefore the Appeals Court did not have the benefit of an earlier assessment and evidence regarding this issue. The opposing parties asked the Appeals Court to decide this issue rather than sending it back to the motions judge. The appeals judge stated that the onus of proving that there is no prejudice to the defendant due to the delay in notice rests on the plaintiff (Ms. Seif), citing a judgement in Colangelo v. Mississauga (City) (1988).   

In Carmichael v. Edmonton (City), the Supreme Court of Canada stated that when an injured person fails to provide notice within ten days, an “inherent probability of prejudice [arises] from the bare fact of the accident and the lack of notice”. The purpose of provisions like section 42(6) of the City of Toronto Act , which requires notification to the city clerk within 10 days, “is to ensure that a Municipality has a timely opportunity to investigate the place and circumstances of the accident”, citing Argue v. Tay (Township), 2013.  Prejudice is assumed when there is delayed notification.

Hoy A.C.J.O. argued that the Seifs failed to prove that the City is not in a worse evidentiary position due to their delay in notification.  The City of Toronto contended that the delay in notice prejudiced its defence because it prevented them from obtaining a reliable measurement of the ‘lip’ before weather conditions potentially shifted the bricks up or down. In this case, the precise height of the lip when the trip and fall occurred, in August 2011, is critical.

At the time of Ms. Seif’s trip and fall, the minimum standards in force for the City stated that if a sidewalk surface discontinuity exceeded two centimetres, it was required to be treated within 14 days. Therefore, the City may have a legal defence to Ms. Seif’s claim if the lip was less than 2 centimeters.  

As defined in the City of Toronto Act, 2006, Section 42(3), the City is not liable for failing to keep a highway, bridge or sidewalk in a reasonable state of repair if:

·         It was not aware of and reasonably could not have been expected to know of the state of repair (or disrepair).

·         Reasonable steps were taken to prevent the hazard from arising.

·         Or, at the time of the accident, minimum standards of repair were in force as per regulation and those standards were met.

Citing Langille v. Toronto (City), 2010, the court noted that a plaintiff may rebut the presumption of prejudiced defense by showing evidence about the accident’s circumstances such as: evidence that the City took steps to investigate the scene independent of having received notice from the plaintiff; by providing timely photographs of the scene of the accident; or by a witness to the accident. 

In this case, the Seifs took photographs a few days after notice was given. They recalled seeing a “significant lip in the sidewalk” of at least one inch when they revisited the location of the trip and fall a week after the accident. The Seifs also provided contact information for a witness, whom the City attempted to contact shortly before the motion, but unfortunately without success.

Thus, unlike the arguments in Argue v. Tay (Township), a case which was frequently cited by the Appeals judge, the Seifs did provide evidence on the issue of prejudice.  The Appeals judge concluded that evaluation of their evidence must be taken, at least partially, in the context of the Seif’s credibility and reliability which includes weighing their observations on the size of the lip against the City’s evidence of no unconformities (exceeding 2 cm) reported in the June 2011 annual inspection.

In response to the City’s argument that it suffered prejudice because it was not afforded the opportunity to take a decisive measurement at the location of the trip and fall as a result of the Seif’s delay in giving notice, the Appeals judge concluded that it is not clear whether the City would have actually measured the lip before the surface was potentially affected by winter conditions.  The City did measure the lip before making repairs, but the Seif’s will need to establish that this later measurement did not reflect the conditions at the time of the trip and fall.

Also considered by the Appeal’s judge is the fact that the City did not successfully measure the correct location of the accident after they received notice.  Investigators who investigated the location in January and April but were unable to identify the ‘lip’, explained that this was because Ms. Seif’s lawyer did not respond to their request for details on the exact location of the incident. However, both the motion judge and Appeal judge found Ms. Seif’s notice to be substantially sufficient.

Due to the dispute in opposing evidence of the ‘lip’, particularly with regards to how winter conditions may have altered the surface of the sidewalk, the Appeals judge decided, whether the City of Toronto was prejudiced in this defence by Ms. Seif’s delay in notification of her claim “is a genuine issue requiring a trial”.  Ms. Seif was awarded $4000 in her costs for the Appeal.

Clearly established in Seif v. Toronto (City) is the fact that Ms. Seif’s decision to delay her claim for damages by four months, until she determined that her injury was permanent, was reasonable under the circumstances.  However, equally apparent in this case is that a failure to meet the ten day notification for making a claim against a Municipality can result not only in dismissal of the injured person’s claim, but also in distinct difficulties in gathering substantive evidence, both for the injured person and the defendant.  Generally, the longer the delay in notification, the more likely the City may be prejudiced in their defense. 

If you or a family member was injured in a fall or car accident on Municipal property, you are advised to seek immediate medical assessment of your injuries and consult with a personal injury lawyer as soon as possible. The lawyers at Rastin & Associates have vast experience representing clients in personal injury claims against Municipalities and other jurisdictions.  We can advise you on the strength of your claim and if you decide to proceed, we can immediately begin gathering evidence to substantiate your case.  Don’t let a delay in filing a claim for your injuries prevent you from getting the compensation you deserve and need for full recovery.

 

You can reach us at  844-RASTIN1 or  Rastinlaw.com



 
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Posted under Injury Case Preparation, Personal Injury, Slip and Fall