Posted: November 24, 2016
By: Steve Rastin

Carole Crompton tripped and fell on a City of Toronto sidewalk on April 20, 2010. About 3 months later, Ms. Crompton sent a notice letter to the City, informing them of her intent to sue for damages. On March 9, 2012, she issued her Statement of Claim, alleging that the City was negligent because it allowed an unsafe condition on the sidewalk -- the sidewalk was uneven, with depressions and tripping ledges -- which caused her to fall and become injured.  The City replied with their Statement of Defence, in which they argued that the Plaintiff’s claim was statute-barred, for failure to deliver a notice letter within 10 days of the day of the accident, as required per the City of Toronto Act.

In 2013, both parties delivered sworn affidavits, followed by examinations for discovery. The defendant’s affidavit, at the time, made no mention of any complaints about the area where the plaintiff fell or any report of inspections conducted there, in the months following the plaintiff’s fall. Also, during the discovery, counsel for the plaintiff asked for specifics of the prejudice the City alleged against the plaintiff, but counsel for the City refused to provide an answer and stated that the such details would be provided later in a motion for summary judgement.

In August 2014, the City of Toronto confirmed its intention to bring a motion for summary judgement to have the claim dismissed due to late notice. Then, in September, the City delivered an Amended Affidavit of Documents, which contained new documents (that were not produced during discovery) revealing that prior complaints and subsequent repairs had been made with regards to the location where the Plaintiff fell.

On March 9, 2015, the City served its summary judgement materials. The same day, counsel for the plaintiff brought a cross-motion stating that the plaintiff’s action was not statute barred because she had a reasonable excuse for the late notice and there was no prejudice to the City. The City subsequently withdrew its motion for summary judgement, without reasonable explanation. In response, the plaintiff sought costs incurred in the preparation of her responding materials, on a substantial indemnity basis. Ms. Crompton’s counsel argued that, faced with a motion that may have potentially deprived the plaintiff of her ability to seek compensation for the injuries sustained from the fall, a lot of time and expense were spent in drafting the cross-motion materials.

Plaintiff’s counsel declared that the plaintiff, who experienced bleeding in the brain due to the fall, did not know the extent of her injuries until well past the ten days following the accident.  The brain injury caused slow bleeding and increasing pressure in her brain, with worsening symptoms including headaches, dizziness, memory loss, garbled speech and blurred vision.  The injured woman was officially diagnosed with a chronic subdural hematoma in June 2010 and later underwent a craniotomy. Immediately after the surgery, the plaintiff provided notice to the municipality of her intention to file a claim.

Counsel for the plaintiff further argued that the City failed to include the documents that dealt with prior complaints concerning the area where the plaintiff fell, without a reasonable excuse for doing so, and also failed to provide an answer when asked at discovery to explain the alleged prejudice. It was asserted that these actions on the part of the City constitute an abuse of process which justifies a higher level of costs.

Counsel for the defendant municipality countered that the costs issue should be addressed by the trial judge. Further, it was asserted that while the documents regarding previous complaints about the area where the fall occurred should have been included, defense counsel was unaware of them at the time and once they were brought to his attention, a further Affidavit of Documents was prepared with the information. Defense counsel also argued that bringing a summary judgement motion was reasonable when they had no knowledge of why the plaintiff did not provide notice in the required time set out in the Act. Counsel stressed that they only became aware of the plaintiff’s medical issue in the responding documents. For these reasons, defense counsel argued that if any costs should be awarded, they should be assessed on a partial indemnity rate and not a substantial indemnity rate.

The purpose of a summary judgement motion is to have a case dismissed when there is no genuine issue requiring a trial. However, in Crompton v City of Toronto (2016), Justice Wilson began her judgement by criticizing the defendant’s decision to bring forth a summary judgement in this case, as having been ill-conceived, and based on inaccurate and misleading grounds. The judge particularly berated the City for reporting that plaintiff suffered (only) a fractured thumb from the fall and further, the City's excuse for not investigating the site of the fall prior to repairs in 2010, was the fact that the plaintiff failed to deliver a notice letter within 10 days of her slip and fall accident.

The judge asserted that the City’s motion for summary judgement was inaccurate with regard to mentioning only the plaintiff’s fractured thumb, without noting that the plaintiff had also suffered a brain bleed, which required surgery and is a much more serious injury.  This omission was misleading and deceptive because the plaintiff met with a City of Toronto adjuster soon after her surgery and provided a detailed statement of her diagnosis, as well as of her hospital visits and referrals to a neurosurgeon and neurologist. The plaintiff’s medical records, which had been submitted to the City, clearly showed that while she experienced a number of cognitive and neurological symptoms after the fall, she did not become aware of having suffered a chronic subdural hematoma until two months later. The City was thus fully aware of the plaintiff’s medical condition before the examination of discovery and prior to their summary judgement motion.

For the above reasons, the judge rejected defense counsel’s claim that they were only aware of the reason for the delay after receiving the plaintiff’s responding materials to the summary judgement motion. The judge also concluded that the plaintiff’s reason for not meeting the 10 day notice deadline meets the Court’s reasonable excuse measure.

Justice Wilson rejected the City’s claim that the lack of timely notice caused them to lose the opportunity to investigate the site before repairs were made. Documents presented after discovery proved that this was inaccurate, as there had been other complaints from the public about the condition of the sidewalk where the plaintiff fell, and in July of 2010, measurements were taken of the depression in the sidewalk and the sidewalk was repaired.

Justice Wilson also criticized defense counsel’s refusal to promptly provide particulars of the alleged prejudice during the examination for discovery, when asked by plaintiff’s counsel. The judge stressed that one of the purposes of an examination for discovery is to provide information to the opposing party and counsel with regards to the evidence in support of a party’s position. The  judge asserted that the requested information should have been provided at discovery, especially as the defendant was taking the position that the plaintiff’s claim was barred for lack of timely notice, which prejudiced them. Justice Wilson regarded the defense counsel’s behaviour in this regard as playing “cat and mouse” and found it completely unacceptable.

The judge acknowledged defense counsel’s assertion that they did not receive the relevant documents detailing prior complaints about the site until after discovery. However, she was perplexed why they persisted with the motion for summary judgement after the Amended Affidavit of Documents was delivered, which included details of these complaints. Then, after inexplicably persisting with the motion, they suddenly withdrew said motion with no satisfactory explanation.  At the point when the motion was withdrawn, there was no information of which the defendant was unaware and which changed the circumstances of the case in any way.

Ultimately, Justice Wilson ruled that, based on the facts of the case, it was unlikely that the Court would have granted a summary judgement on the notice issue. Also, based on the unusual evolution of the plaintiff’s medical condition, coupled with no evidence of any demonstrable prejudice, the chance of summary judgement was slim. The judge believed that defense counsel should have known this and as a result, abandoned the motion for summary judgement much sooner. However, they did not do so and this, in turn, resulted in significant legal expense for the plaintiff. For these reasons, the judge ruled in the plaintiff’s favour and ordered the defendant to pay the plaintiff’s costs on a substantial indemnity scale in the amount of $35,000.

Successfully filing a claim when you are injured due to negligence or an unsafe condition, can be a lengthy and complicated process. Getting in touch with a qualified personal injury lawyer as quickly as possible can help alleviate the legal stresses and ensure that the statutory timelines are met. Our team at Rastin & Associates have, for many years, successfully represented victims of slip and fall accidents and helped them to receive the compensation they deserve. Call or visit our office today if you were hurt in a slip and fall accident resulting from probable negligence, and find out about the strength of your claim and how we can help.

You can call us at  844-RASTIN1 or  email Rastinlaw.com

 


 
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Posted under Injury Case Preparation, Slip and Fall