Appellate, Civil Litigation

Suing municipalities – exceptions to the 10-day notice period

By Paul Russell, AdvocateDaily.com Contributor

People who suffer injuries on municipal property in Ontario have only 10 days to file a claim, but it’s important to know there are exceptions to that rule, Toronto trial and appellate lawyer Joel Cormier tells AdvocateDaily.com.

“The powers that be understand that when someone has suffered a tragedy due to municipal neglect, launching a lawsuit is often not their first priority,” says Cormier, associate with Will Davidson LLP. “In fact, it may not even cross their minds.”

Under s. 44 (10) of the Ontario Municipal Act, actions against a city for negligence are barred unless “within 10 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.

Cormier says exemptions are granted to people if two conditions are met. They must provide a reasonable excuse for the failure to give notice, and the municipality cannot be prejudiced in its defence as a result, he says.

“The municipality must have the proper opportunity to investigate what happened, without crucial evidence being lost or destroyed, which will happen if too much time passes between when the incident happened and when the claim is made,” Cormier says.

That investigation could involve multiple factors, such as interviews with witnesses, measurements at the accident scene or bringing in an expert to study what happened, he says.

One of Cormier’s clients suffered a tragedy in an accident after his vehicle hit a patch of black ice and spun out of control, fatally injuring his passenger. A claim was brought against the municipality outside of the 10-day notice period, he says.

Cormier says the “courts have taken a liberal interpretation” of the 10-day notice period, especially if there is no evidence of prejudice on the part of the municipality.

The municipality is responsible for the maintenance of the road where the accident happened, he says.

“There was a suggestion that the road was not being properly maintained, leading to black ice in the area, so they are within their legal rights to sue the municipality,” Cormier says.

After the accident occurred, the municipality was on the scene right away, conducting its own investigation, he adds.

Cormier explains that the 10-day notice period is in place to protect municipalities, as it’s often essential to investigate as soon as claims are made against them.

“It’s much different from a private property owner who has someone fall on his porch,” he explains. “Municipalities have miles of sidewalks and roads to look after, and there are acceptable levels of imperfection.”

If someone has suffered an injury on municipal property or is injured due to possible municipal neglect, Cormier says they need to consult a lawyer “so the city can be put on notice as soon as possible.”

If people aren’t aware of the 10-day window to file a complaint, they may be out of luck, unless they can meet the criteria needed for an exemption, Cormier says, adding “ignorance is not an excuse.”

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