The City (defendant) brought a motion to summarily dismiss the claim because the City was given notice of a pot-hole induced injury some three (3) months after the incident, contrary to section 42(6) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the “Act”) which requires notice to be given within ten (10) days.
The Act contains a forgiveness section to allow claims to proceed if the court is satisfied that the plaintiff has a reasonable excuse for late notice, and the City was not prejudiced in its defence: section. 42(8).
In this case, the motions judge allowed the claim to proceed, and the appellate court upheld the decision.
The interesting factor in this case arose when the pot-hole in question was filled before exact measurements were taken, and the City took the position that this was highly prejudicial to them: hence, they argued, the motion’s judge was wrong in allowing the claim to proceed.
The following factors, however, led the motions judge, and appellate court, to disagree, and conclude that the delay in giving notice would not prejudice the City in its defence:
(i) one of the plaintiffs took clear photos of the pothole within the 10-day period;
(ii) the second plaintiff gave evidence that he inspected the pothole on the day of the incident and estimated its depth at six inches;
(iii) the City took photos of the pothole seventeen days after the subject trip and fall, in response to a complaint about the hole by another person;
(iv) the City field investigator who took the photos determined the pothole required repair, which was quickly done;
(v) the City did not adduce any evidence explaining why the field investigator did not measure the dimensions of the pothole, although it had the opportunity to do so; and
(vi) the plaintiffs filed an expert report that opined on the dimensions of the pothole using the various January 2018 photos, and yet the City did not cross-examine the expert.
Graham v. Toronto (City), 2022 ONCA 149
https://www.canlii.org/en/on/onca/doc/2022/2022onca149/2022onca149.html