Court File and Parties

Court File No.: 2446/15 Date: 2018-12-12 Superior Court of Justice – Ontario

Re: Catherine Patrick, Plaintiff And: The Corporation of the County of Middlesex, Carmine D’Ariano and United Parcel Service, Defendants

Before: Grace J.

Counsel: David B. Williams and Jennifer Butkus, as agents for counsel for the plaintiff Jonathan de Vries, for the defendant The Corporation of the County of Middlesex

Heard: November 30, 2018

A. Background

[1] Catherine Patrick was injured in a single car crash on a highway described both as Melbourne Road and County Road 9 on February 11, 2014. This action was commenced on November 12, 2015 in relation to that accident and a later one. The statement of claim alleged that the negligence of the Corporation of the Municipality of Southwest Middlesex (“Southwest Middlesex”) caused Ms. Patrick to lose control of the car she was driving along Melbourne Road and the physical, emotional and economic injuries said to have ensued.

[2] On January 3, 2017, Leach J. released exhaustive reasons explaining why leave was granted to Ms. Patrick to add the Corporation of the County of Middlesex (“Middlesex County”) as a defendant in this action despite Middlesex County’s submission that such relief could not be granted because of the expiration of the applicable limitation period and because the plaintiff had failed to serve a statutory notice within the time required. [1]

[3] However, those matters were not dealt with on a final basis. At para. 96 Leach J. said:

In due course, after…completion of documentary and oral discovery procedures, those issues…may be resolved on a more fulsome record either at trial, or by way of summary judgment.

[4] A number of interlocutory steps followed. On consent, Southwest Middlesex was released from the action. Further pleadings and affidavits of documents have been exchanged. Examinations for discovery have taken place.

[5] Middlesex County now moves for summary judgment dismissing the action. That defendant maintains that the failure to deliver the notice required by s. 44(10) of the Municipal Act, 2001, S.O. 2001, c. 25, in a timely way is fatal to the plaintiff’s claim. As well, the moving party argues that the plaintiff waited too long to assert her claim against the municipality: Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4 and 5.

B. The Chronology

i. February 11, 2014 to June 23, 2015

[6] Ms. Patrick and her dog were en route to Windsor, Ontario when the motor vehicle she was driving left Melbourne Road and rolled into the ditch. She deposed that she remembered virtually nothing about the events leading up to, at the time of and following the accident except that she hit a slippery patch on a curve in the road, lost control and crashed.

[7] Emergency personnel and police arrived afterward.

[8] The plaintiff was taken by ambulance to a local hospital. The Ambulance Call Report noted “Melbourne Rd. (North of bridge) off road” as the pick-up location.

[9] Constable Martin Romanuk of the Ontario Provincial Police (“O.P.P.”) prepared a Motor Vehicle Collision Report (“MVCR”). An eyewitness was identified but contact information was apparently not obtained.

[10] Ms. Patrick was examined and treated without the need for admission to the hospital. At paragraph 35 of her affidavit, the plaintiff deposed:

I do verily believe that, as a result of my injuries and associated symptoms, I had not formed the intention to advance a claim for my injuries within 10 days of the 2014 accident.

[11] The description of the subsequent sixteen months or so in the evidentiary record thins considerably. An April 24, 2014 e-mail from a physiotherapist Ms. Patrick had been seeing noted that:

Catherine…is doing well in treatment and is progressing nicely. She is feeling well enough to drive herself to treatment sessions…

[12] In a December 18, 2014 progress report the physiotherapist commented that:

From an objective stand point, Catherine is doing very well.

ii. June 23 to November 12, 2015

[13] The chronology can jump ahead to June 23, 2015. Ms. Patrick retained lawyer Anna Szczurko to act for her in respect of the 2014 accident following their first meeting that day.

[14] A number of steps were taken on Ms. Patrick’s behalf soon afterward. The Middlesex detachment of the O.P.P. was asked to provide a copy of the MVCR. A law clerk contacted Elgin County in an effort to identify the municipality responsible for maintenance at the time Ms. Patrick’s vehicle left the road. Based on information received through her law clerk, Ms. Szczurko deposed that Southwest Middlesex was identified in relation to Melbourne Road. Once the highway moved south of the Thames River and into Elgin County, the Municipality of Dutton Dunwich was said to be responsible.

[15] On June 29, 2015, Ms. Szczurko notified both of those municipalities that Ms. Patrick was considering a claim for improper road maintenance and/or design following the February 11, 2014 accident that “took place at the curve where Melbourne Road transitions into Iona Road.”

[16] Ms. Szczurko’s office received a copy of the MVCR on July 3, 2015. The “location” portion of the form listed Melbourne Road as the “trailway”, the Thames River as the reference point, S/W Middlesex as the municipality and Middlesex as the County. Codes were filled in on many of the 68 spaces provided on the form. Box 41 will be mentioned later in these reasons.

[17] A senior claims examiner representing the insurer for the Corporation of the Municipality of Dutton Dunwich wrote to Ms. Szczurko on August 6, 2015. In part the author wrote:

We have now completed our investigation and write to advise that the area of the loss is not within the jurisdiction of the Municipality of Dutton Dunwich, but rather that of the Municipality of Southwest Middlesex.

iii. November 12, 2015 to March 8, 2016

[18] This action was commenced on November 12, 2015. Southwest Middlesex was the first defendant it named. The proceeding also included two other defendants because Ms. Patrick had been involved in a second accident by the time it was commenced.

[19] A notice of intent to defend was served on behalf of the municipality. The cover letter asked for some additional time to “review and investigate this matter” before Southwest Middlesex served a statement of defence.

[20] Among other things, the statement of claim alleged that Southwest Middlesex was the “owner and occupier” of Melbourne Road. [2] That allegation was not included within those admitted in the statement of defence and crossclaim that followed in mid-December, 2015. [3] However, Southwest Middlesex went on to plead that it had “acted reasonably and properly to maintain the road in question”. [4]

[21] Ms. Patrick’s solicitors sent a disc and index of documents to the lawyers acting for Southwest Middlesex on December 21, 2015. Included were maps of Middlesex and Elgin Counties and a copy of the MVCR relating to the February 11, 2014 accident.

[22] A March 3, 2016 letter from counsel for Southwest Middlesex to Ms. Szczurko read:

My client has finally completed its investigation into this matter. I have been advised that Southwest Middlesex did not have jurisdiction over Melbourne Road at or near the accident location. I am further advised that jurisdiction lies with either Middlesex County or Elgin County. Apparently, jurisdiction changes at the bridge over the Thames River where the name of the road changes from Melbourne Road to Iona Road. There is apparently clear signage on both roads identifying them as County roads.

My client will consent to a dismissal of the claim against it now without costs. Should I be required to take any further steps defending this claim, my client will seek costs.

[23] That information had been provided to Middlesex County by the adjuster for Southwest Middlesex in mid-February, 2016.

[24] Ms. Szczurko’s office reacted immediately. Notice of the first accident and of a pending claim was provided to Middlesex County and to the Corporation of the County of Elgin on March 4, 2016. The last mentioned municipality advised Ms. Szczurko that the collision occurred on a road under the jurisdiction of Middlesex County in a March 7, 2016 letter.

[25] The plaintiff’s motion seeking to amend the statement of claim to add Middlesex County was served on March 8 and was first returnable on March 15, 2016.

iv. Post-March 8, 2016

[26] Ms. Patrick’s motion was scheduled for a special appointment and argued before Leach J. on July 11, 2016. The endorsement released on January 3, 2017 explains why Ms. Patrick’s motion was granted. [5]

[27] Thereafter, the action was dismissed as against Southwest Middlesex. [6] A Fresh as Amended Statement of Claim was served on Middlesex County in early April, 2017. A Statement of Defence and Crossclaim soon followed. Examinations for discovery were completed in September, 2017.

C. The Basis for Middlesex County’s Motion for Summary Judgment

[28] Middlesex County asks the court to dismiss the action without a trial based on ss. 44(10) and (12) of the Municipal Act, 2001, S.O. 2001, c. 25, supra or in light of ss. 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, supra. I take this opportunity to provide an overview of those provisions and of the decisional law that has developed.

i. The Municipal Act, 2001

[29] Section 44(1) requires a municipality having jurisdiction over a highway to keep it in a state of repair that is reasonable in the circumstances. Subject to the Negligence Act, R.S.O. 1990, c. N.1, the municipality is liable for damages any person sustains because of its failure to meet its statutory obligation: s. 44(2). However, the right of action is subject to a mandatory notice provision. The operative part of s. 44(10) of the Municipal Act, 2001 reads as follows:

No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of has been served upon or sent by registered mail to…the clerk of the municipality…

[30] As can be seen from the chronology of events, more than two years passed before the required notice was given to Middlesex County. However, that is not necessarily fatal to Ms. Patrick’s claim. Section 44(12) of the Municipal Act, 2001 provides in part:

Failure to give notice…is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.

[31] The applicable principles are not in dispute and were well and accurately summarized by Leach J. in the endorsement he released in respect of this matter. My colleague wrote:

In determining whether the plaintiff has established a “reasonable excuse”:

• The question to be addressed is whether, having regard to all the circumstances of the case, it was reasonable for the plaintiff not to give notice until the time at which it actually was delivered.
• In this context, “reasonable excuse” is to be interpreted “broadly and liberally”, given the protection granted to the municipality where it is prejudiced in its defence.
• Relief from the notice requirement is not confined to the narrow circumstance of a plaintiff who is so incapacitated as to be unable to give notice to the municipality. Moreover, while the impacts of an accident on the physical health, mental health and career of a plaintiff may be relevant and suffice to provide a “reasonable excuse”, the concept of “reasonable excuse” extends beyond such considerations.
• Lack of awareness of the notice requirement does not constitute a reasonable excuse on its own. However, ignorance of the notice requirement can add to another extenuating circumstance to create a reasonable excuse.

In determining whether the delay in giving notice has prejudiced the defence of the municipality:

• …the onus is on the plaintiff to meet both branches of s. 44(12), and the onus of showing that there is no prejudice to the defendant as a result of the delay in giving notice therefore rests on the plaintiff. However, that section and similar provisions do not use language that creates a presumption of prejudice the plaintiff is required to overcome, as a form of near-reverse onus, resulting from the plaintiff’s failure to give timely notice. Whether or not prejudice results from the failure to give timely notice is a fact-based inquiry.
• At the same time, where a plaintiff does not provide notice within 10 days, an “inherent probability of prejudice arises from the bare fact of the accident and the lack of notice”. However, a plaintiff can address that “inherent probability of prejudice” with evidence showing other sources of information about the accident’s circumstances. For example, a plaintiff might adduce evidence that the municipality had taken steps to investigate the scene in spite of not having notice from the plaintiff; that there were timely photographs taken of the scene; and/or that a named witness to the accident has been identified.
• The length of delay is a relevant consideration when examining reasonable excuse.

ii. The Limitations Act, 2002

[32] As a general rule, a proceeding cannot be commenced after the second anniversary of the day on which the claim was discovered: s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[33] When is a claim discovered? The instruction is found in s. 5(1) of the Limitations Act, 2002. It contains two subsections: the first focusing on the subjective knowledge of the person having the claim and the second requiring an objective examination. They are reproduced below:

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)

[34] Section 5(2) creates a presumption that the four elements of s. 5(1)(a) are known to the claimant on the day the act or omission complained of occurred, unless the contrary is proved. Those subsections are concerned with the actual knowledge of the claimant. As the Court of Appeal said in Lawless v. Anderson, 2011 ONCA 102, at para. 23:

Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered” and the limitation period begins to run… [Citations omitted]

[35] However, the plaintiff’s subjective awareness does not necessarily start the limitations clock. That date may be advanced by application of the objective test set forth in s. 5(1)(b). As van Rensburg J.A. explained in Fennell v. Deol, 2016 ONCA 249 at para. 23:

Due diligence is not referred to in the Limitations Act, 2002. It is, however, a principle that underlies and informs limitation periods, through s. 5(1)(b). As Hourigan J.A. noted in Longo v. MacLaren Art Centre Inc., 2014 ONCA 526…at para. 42, a plaintiff is required to act with due diligence in determining if he has a claim, and a limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a).

[36] As mentioned, Ms. Patrick’s first unfortunate accident occurred on February 11, 2014. The parties agree that this proceeding was “commenced” against Middlesex County on March 8, 2016 because that was the day on which the motion to add that municipality as a party was served. Therefore, Ms. Patrick’s action is not statute-barred if that date is before the second anniversary of the earlier of the day she actually or should reasonably have discovered the claim.

D. The Test for Summary Judgment

[37] On a motion for summary judgment each party is expected to put their best foot forward because the court is entitled to assume that the evidence that would have been marshalled at trial is before it: Broadgrain Commodities Inc. v. Continental Casualty Co., 2013 ONCA 438 at para. 7.

[38] The Court is required to grant summary judgment if satisfied a claim does not raise a genuine issue requiring a trial: rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The preconditions to a successful motion were listed in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Writing for the court, Karakatsanis J. said at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[39] Amendments made to the summary judgment rule in 2010 have expanded the circumstances in which summary judgment will be granted. However, caution must still be exercised. As Nordheimer J.A. recently noted in Mason v. Perras Mongenais, 2018 ONCA 978 at para. 44:

…nothing in Hryniak detracts from the overriding principle that summary judgment is only appropriate where it leads to “a fair process and just adjudication”: Hryniak at para. 33. Certainly there is nothing in Hryniak that suggests that trials are now to be viewed as the resolution option of last resort. Put simply, summary judgment remains the exception, not the rule.

E. Analysis and Decision

i. The Notice Issue

[40] During argument, counsel for the moving party acknowledged that s. 44 of the Municipal Act, 2001 was the primary basis for the motion for summary judgment.

[41] As mentioned, Ms. Patrick did not serve written notice of her claim and of the injury complained of within 10 days after her accident as s. 44(10) requires. It was served on her behalf more than two years following the collision. Ordinarily failure to comply with the statute would bar Ms. Patrick’s action: Delahaye v. Toronto (City), 2011 ONSC 5031, [2011] O.J. No. 4006 (S.C.J.) at para. 33; Hennes v. Brampton (City), 2014 ONSC 1116, [2014] O.J. No. 783 (S.C.J.) at para. 14.

[42] Nonetheless, s. 44(12) authorizes the court to allow Ms. Patrick’s action to continue if she satisfies two preconditions: (a) first, that there is a reasonable excuse for the failure to give timely notice; and (b) second, that delayed notice did not prejudice Middlesex County in its defence. I will deal with those issues in turn.

Reasonable Excuse

[43] The phrase “reasonable excuse” is to be given a broad and liberal interpretation: Crinson v. Toronto (City) (2010), 2010 ONCA 44, 100 O.R. (3d) 366 (C.A.) at para. 20. However, a lack of knowledge of the obligation to give notice does not constitute a reasonable excuse. That does not mean that the claimant’s state of mind is irrelevant. In Seif v. Toronto (City), 2015 ONCA 321 at para. 29, Hoy A.C.J.O. wrote:

Lack of awareness of the notice requirement…does not constitute a reasonable excuse on its own…However, ignorance of the notice requirement can add to another extenuating circumstance (such as lack of knowledge of the severity of the injury) to create a reasonable excuse…[Citations omitted]

[44] The issue is whether it was reasonable in all the circumstances of this case for Ms. Patrick to fail to give the statutory notice until March 4, 2016: Crinson v. Toronto (City), supra at para. 23.

[45] In Crinson more than four months passed from the time of the injury until the statutory notice was served. Nonetheless, the Court of Appeal concluded the plaintiff had a reasonable excuse for his untimeliness. On behalf of the court, Goudge and LaForme JJ.A. wrote at para. 38:

Taken together, this evidence describes a man who suffered a serious injury requiring a prolonged period of rehabilitation, during which he was deeply worried about his job, his ability to provide for his family and whether he would ever be able to return to the only career he had known. He was understandably depressed. In these circumstances, not knowing he was required to give notice to the respondent, it was reasonable that he did not do so until the end of June.

[46] Middlesex County submits that the facts of this case are materially different. As mentioned, the delay in giving notice was much longer (more than two years). The elapsed time is a factor a motion judge is obliged to consider: Azzeh (Litigation Guardian of) v. Legendre (2017), 2017 ONCA 385, 135 O.R. (3d) 721 (C.A.) at para. 45.

[47] The pre-notice chronology recited earlier covered two periods: first, from the date of the accident (February 11, 2014) until Ms. Szczurko was retained (June 23, 2015) and second, from that date until March 4, 2016 when a letter was sent to Middlesex County on Ms. Patrick’s behalf.

[48] The moving party submitted that limited information concerning the first phase was contained in Ms. Patrick’s affidavit sworn August 14, 2018. Ms. Patrick (i) outlined the circumstances of the February 11, 2014 accident to the extent she could remember them; (ii) summarized the injuries suffered and the treatment received following the first collision; (iii) explained how the second accident on June 26, 2015 has affected her physically and psychologically; and (iv) described her present health.

[49] In paras. 30 and 31 of her affidavit, Ms. Patrick said:

I continued to experience dizziness and had trouble standing and walking for weeks after the accident. I was restricted from driving, watching television, and using electronic devices. My physicians recommended that I spend much of my time in a dark room.

Since the 2014 accident I have received treatment from physiotherapists, occupational therapists, psychologists, massage therapists, and chiropractors.

[50] The plaintiff later deposed:

I do verily believe that, as a result of my injuries and associated symptoms, I had not formed the intention to advance a claim for my injuries within 10 days of the 2014 accident.

[51] The evidence in this case, Middlesex County argues, falls well short of the standard met in Crinson v. Toronto (City), supra and others because it leaves the period following February 21, 2014 and until June 23, 2015 largely unaddressed.

[52] Middlesex County also relies on Seif v. Toronto (City), supra to illustrate its point. In that case the plaintiff recognized the necessity of filing evidence that gave the court a full understanding of why the plaintiff failed to act at any time before notice was given. At para. 28, Hoy A.C.J.O. explained why the injured party had a reasonable excuse for the four and a half month delay. An otherwise divided panel agreed. In part she wrote:

The appellant did not intend to sue the City at the outset because at first she did not think her injuries were serious. She followed a course of treatment. She decided to explore legal action only when she found out that she would suffer pain and limitations in her fractured wrist for the rest of her life. Once she decided to seek a legal remedy, she promptly retained counsel. Counsel immediately gave notice to the City.

[53] Argue v. Tay (Township), 2012 ONSC 4622, [2012] O.J. No. 3776 (S.C.J.), aff’d 2013 ONCA 247, leave to appeal refused [2013] S.C.C.A. 246 also featured prominently in the moving party’s submissions. The court concluded that whether Ms. Argue had a reasonable excuse for the failure to serve a timely notice did not constitute a genuine issue requiring a trial. At para. 49 the motion judge explained:

Ms. Argue was almost two years late in providing notice to the Township of Hay. Her own evidence is clear that on the date of the accident…she knew she had been injured, believed the road conditions caused her injuries and presumed that the Township of Tay was responsible for road maintenance. She was both physically and mentally able to notify the Township of Tay and/or to consult with counsel.

[54] In Hennes v. Brampton (City), supra the statutory notice was not given until approximately eighteen months following a fall on the defendant’s property. Summary judgment dismissing the action was granted. The motion judge concluded the plaintiff should have given notice much earlier because (i) immediately after the fall he knew who the property owner was, why he fell and who was responsible for maintenance; and (ii) within six months he knew or ought to have known that he had a claim for damages. The fact Mr. Hennes did not know of the notice requirement and did not seek legal advice until shortly before the notice was sent did not constitute a reasonable excuse for the delay.

[55] Middlesex County argued that the limited record now before the court supports a similar conclusion. An April 24, 2014 e-mail from a physiotherapist suggested that Ms. Patrick was “progressing nicely”. A December 18, 2014 progress report from the same source said that she was “making excellent gains” and “was returning to most of her pre-morbid activities.” The moving party maintains that the plaintiff has failed to establish a reasonable excuse because she has not explained her failure to act despite knowing directly and from others the circumstances of the accident, including its location and the nature and extent of her injuries.

[56] Counsel for Ms. Patrick urges the court to consider the entire timeframe since the decided cases require the court to consider all of the circumstances. No part of the chronology is to be considered in isolation. The plaintiff argues that she has a reasonable excuse for the considerable delay if the evidence is reviewed in a holistic manner. At the very least, a genuine issue requiring a trial remains.

[57] I return to the timeframe involving a solicitor acting on the plaintiff’s behalf.

[58] As noted, Ms. Patrick and Ms. Szczurko met for the first time on June 23, 2015. They had spoken by telephone a little earlier. According to the solicitor, the issue to be discussed going into the consultation was an offer to settle from the accident benefits carrier. By the time the meeting was over, Ms. Szczurko had been retained to pursue a tort claim against the municipality responsible for maintaining the highway Ms. Patrick’s motor vehicle had exited.

[59] When cross-examined on the affidavit she swore, Ms. Szczurko was asked what she had been told about the February 11, 2014 accident. She answered as follows:

Honestly, very little. [Ms. Patrick] was quite injured from this collision. She had vertebrae fractures. She had a very poor recollection of events. She struggled to tell me where the collision took place. She knew that it was by a bridge but she wasn’t sure on which end of the bridge. So I had concerns with respect to identifying exactly what took place ‘cause her recollection was very poor. [7]

[60] In answer to a question asked soon afterward, Ms. Szczurko said that she was given the name of Melbourne Road. The request that the witness produce notes made during the interview was initially taken under advisement and later refused.

[61] Middlesex County’s solicitor asked me to draw an adverse inference from that refusal and to conclude that the notes contained damaging information. I decline to do so. The notes were created during a meeting that was subject to solicitor-client privilege. That was the basis for the refusal that was communicated in an October 15, 2018 letter. The privilege belongs to Ms. Patrick, not Ms. Szczurko. No motion to compel delivery was brought. The circumstances do not warrant the plunge the moving party advocates.

[62] As mentioned earlier, a law clerk contacted the County of Elgin in an effort to determine what municipality had jurisdiction over the road Ms. Patrick had been travelling. The information received caused Ms. Szczurko’s office to send letters dated June 29, 2015 to two municipalities: Southwest Middlesex and Dutton Dunwich.

[63] On August 5, 2015, the plaintiff’s solicitor received a copy of the MVCR report. During her cross-examination Ms. Szczurko testified:

When I look at this report I see it as indicating the Municipality of Southwest Middlesex and the County of Middlesex. [8]

[64] The solicitor acknowledged that box 41 of the form was marked in a manner that indicated the County of Middlesex had jurisdiction over the accident location. However, she added:

I was not aware of the county jurisdiction box until you advised me at the discovery of my client. [9]

[65] Ms. Szczurko went on to explain that she was not familiar with box 41 at the time she reviewed the MVCR because she did not then have a full copy of the legend that explained the markings appearing in them.

[66] As mentioned in the chronology, an August 6, 2015 letter from a representative of the insurer of Dutton Dunwich advised Ms. Patrick’s solicitors that Southwest Middlesex was the municipality responsible for Melbourne Road. When cross-examined, Ms. Szczurko testified that she was unaware of anything that indicated the highway was a county road. Specifically, she said she was unaware the road was designated County Road 9. [10]

[67] Southwest Middlesex was the only municipality named in the statement of claim issued November 12, 2015. I have already referred to the pleading it filed in mid-December and to the letter Ms. Szczurko received in early March, 2016 from the lawyer acting on behalf of that defendant. Only then did Southwest Middlesex point a finger in the direction of Middlesex County or Elgin County. Ms. Szczurko described that letter as “a heart attack moment.” [11] The speed with which written notice was provided to Middlesex and Elgin Counties demonstrates the importance of the information received.

[68] In all of the circumstances, is the issue of reasonable excuse a genuine issue requiring a trial? For the reasons that follow, it is not.

[69] The delay in this case is extraordinary. It is not surprising that other claimants seeking to address a gap of comparable length have been unable to meet either part of the statutory test. I recognize however, the fact situation following Ms. Szczurko’s retainer is an exceptional and unusual one. If that time period was the only one in issue, I would have readily concluded that the test for summary judgment had not been met.

[70] Complicating matters and in my view, ultimately fatal to the plaintiff, is the earlier time frame. I agree with Middlesex County that the evidentiary record is very thin insofar as that period is concerned. Unquestionably Ms. Patrick was injured in the first accident. The plaintiff’s affidavit mentions treatment from physiotherapists, occupational therapists, psychologists, massage therapists and chiropractors thereafter. However, aside from reports prepared the day of the accident, the only medical record attached to Ms. Patrick’s affidavit during this period of time was a consultation report prepared nine days later.

[71] In the February 20, 2014 note, Dr. Chris Steyn wrote in part:

[Ms. Patrick] explained to me that she also sustained a closed head injury, for which she will be following with her Family Physician. She also has a number of other musculoskeletal soft tissue injuries, however, I was very clear with her that we are seeing her today only for her spinal injury.

[72] An assessment prepared by an occupational therapist months after the second accident was the only other record the plaintiff attached concerning her physical condition. Middlesex County included within its reply record copies of April 24 and December 18, 2014 notes prepared by a physiotherapist to which I have already referred. They suggested marked physical improvement. While not put to Ms. Patrick as she was not cross-examined on the affidavit she swore, they are consistent with the picture drawn by the plaintiff’s own narrative.

[73] Nothing was filed that related to any neurological or psychological condition or treatment. Nor were clinical records of the family physician included within the plaintiff’s responding material.

[74] The evidence now before the court does not nearly reach the level that existed in Crinson v. Toronto (City), supra and Seif v. Toronto (City), supra referenced earlier in these reasons. The delay in those cases was comparatively short. The evidence fully supported the findings of reasonable excuse.

[75] Argue v. Tay (Township) is an example of a case at the opposite end of the spectrum. In that case, the plaintiff was found to have been mentally and physically able to notify the municipality she “presumed…was responsible for road maintenance” or consult with counsel long before notice was given. At para. 52, DiTomaso J. wrote in part:

[Ms. Argue] was both physically and mentally able to return to work within weeks of her accident and she does not claim that her physical or mental state prevented her from notifying the Township of Tay. In all the circumstances of this case, her lack of knowledge of the notice period does not constitute a reasonable excuse for a two year delay in notifying the Township.

[76] As mentioned earlier, in Hennes v. Brampton (City), supra summary judgment was granted dismissing the action. At paras. 35 – 37, M.J. Donohue J. explained why Mr. Hennes failed to meet the first part of the statutory test. The motions judge said:

On review of all the circumstances of the plaintiff’s claim, it should, or ought to, have been apparent that there was a claim for damages by June 30, 2009.

Mr. Hennes did not know of the requirement to give notice. He did not seek, however, advice as to his rights or obligations for over a year after a claim was apparent.

Accordingly, I conclude that the plaintiffs have not established a reasonable excuse for the purposes of s. 44(12) of the Municipal Act. [Emphasis in original]

[77] For the purposes of this summary judgment motion, I agree with Middlesex County’s submission that Ms. Patrick was healthy enough to exercise some due diligence. The plaintiff’s factum acknowledges that Ms. Patrick did not consider pursuing a claim until after obtaining legal advice in June, 2015. [12] Her affidavit used an earlier date.

[78] In either case, given Ms. Szczurko’s trials and tribulations, would the correct municipality have been notified? Middlesex County asks the court to answer that question in the affirmative. The number 9 appears above Melbourne Road on the Google maps Ms. Szczurko’s office provided to the moving party’s counsel. According to box 41 of the legend applicable to the MVCR, Middlesex County was responsible for its maintenance. The Ambulance Call Report noted that the accident occurred at “Melbourne Rd. (North of bridge) off road”.

[79] The plaintiff argues that evidence is not determinative. As noted, she was not cross-examined on the affidavit she swore. Nothing has been produced that suggests Ms. Patrick knew or should have known whose jurisdiction County Road 9 fell under. Had she known, the later inquiries made on her behalf would have been unnecessary. A law clerk obtained incorrect information from Elgin County. Dutton Dunwich’s insurance adjuster pointed the plaintiff’s lawyer in the direction of Southwest Middlesex. That municipality filed a statement of defence and crossclaim upholding the quality of the maintenance it later realized it did not perform. Even after its insurer conducted an investigation, Ms. Szczurko was told “that jurisdiction lies with either Middlesex County or Elgin County”. Can it be said that the succession of errors would have been avoided had inquiries been made earlier? On this record, the answer is academic. No efforts were undertaken by the plaintiff or on Ms. Patrick’s behalf for more than sixteen months.

[80] In my opinion, that initial and largely unexplained delay in retaining Ms. Szczurko is what delivers the plaintiff’s argument that there was a reasonable excuse for the failure to give timely notice a fatal blow. The first occasion on which a notice was given in an effort to comply, albeit late, with s. 44(10) of the Municipal Act, 2001 was June 29, 2015. Assume one of those letters had been sent to Middlesex County. Would the first part of the statutory test have been met? The answer is “no” even when “reasonable excuse” is given a broad and liberal interpretation.

[81] In para. 35 of her affidavit, Ms. Patrick deposed that she “had not formed the intention to advance a claim for my injuries within 10 days of the 2014 accident.” Middlesex County fairly observed that she did not address any later time period. That is problematic.

[82] Assume that Ms. Patrick had gone further and said that she did not turn her mind to commencing an action against any municipality until she met with Ms. Szczurko on June 23, 2015. Does that improve her position? In my view, it does not. The affidavit provides no explanation as to why that was so. It could not have been attributable to her physical condition. Her physical injuries had largely resolved. There is no evidence of psychological injury. There was no negative change in her health until soon after Ms. Szczurko’s retainer when the second accident occurred. No other reason was given. In short, the vast majority of the delay is unexplained. I cannot identify an extenuating circumstance that explains why the plaintiff did not seek advice earlier.

[83] The court is left with a period of inaction, possibly due to a lack of awareness of the notice requirement or her legal rights. Advice was not sought. Those matters are not enough. As DiTomaso J. said in Argue v. Tay (Township), supra at paras. 47 and 48:

…The Court of Appeal’s decision [in Crinson v. Toronto (City)] did not overturn previous decisions holding that lack of awareness of the notification period, or inadvertence, or mistake, do not constitute reasonable excuse without more extenuating circumstances.

Ignorance of statutory time limits is not a reasonable excuse for non-compliance… [Citations omitted]

[84] That decision was affirmed on appeal. [13]

[85] It is clear from the evidentiary record that Ms. Patrick does not have a reasonable excuse for a more than two year delay in the giving of notice. This aspect of the statutory test does not constitute a genuine issue requiring a trial. That is sufficient to warrant the granting of summary judgment because Ms. Patrick is unable to satisfy the first part of a two-prong test. However, in case I am wrong, I must turn to the second element of s. 44(12) of the Municipal Act, 2001, prejudice: Seif v. Toronto (City), supra at para. 31.

Prejudice

[86] The short notice period required by s. 44(10) of the Municipal Act, 2001 is designed to give municipalities an opportunity to investigate the place and circumstances of an incident alleged to have occurred as a result of their failure to keep the location in a reasonable state of repair: Seif v. Toronto (City), supra at paras. 36 and 55.

[87] The onus the plaintiff bears and the test that party must meet in relation to prejudice was explained by van Rensburg and Brown JJ.A. in Seif v. Toronto (City), supra at paras. 55 and 56:

…While the onus is on the plaintiff to meet both branches of s. 42(8) [of the City of Toronto Act, 2006], that section does not use language that creates a presumption of prejudice resulting from the plaintiff’s failure to give timely notice. As a result, whether or not prejudice results from the failure to give notice is a fact-based inquiry: Zogjani v. Toronto (City), 2011 ONSC 1147…at para. 18.

At the same time, in Carmichael v. Edmonton (City), [1933] S.C.R. 650, the Supreme Court of Canada observed that, where the injured party does not provide notice within ten days, an “inherent probability of prejudice [arises] from the bare fact of the accident and the lack of notice”. The Court noted that “against this inherent probability of prejudice arising from the bare circumstances, there might, in many cases, be offered by a plaintiff important evidence that there was no prejudice”: at p. 655. A plaintiff can address the “inherent probability of prejudice” with evidence showing other sources of information about the accident’s circumstances…As noted by Hoy A.C.J.O., a plaintiff might adduce evidence that “the City had taken steps to investigate the scene in spite of not having notice from the plaintiff, or by timely photographs of the scene having been taken by the plaintiff or by [the plaintiff] having obtained the name of a witness to the accident”… [14]

[88] Once again, the length of the delay is a factor to be considered: Azzeh (Litigation Guardian of) v. Legendre, supra at para. 43.

[89] So, too, are the ways in which the municipality is alleged to have failed to keep a highway in a reasonable state of repair. Leach J. offered this helpful explanation at para. 77 of his earlier decision in this case:

Courts also recognize that, as a practical matter, the extent of prejudice to a municipality resulting from delayed notice realistically may vary with the nature of the underlying conditions targeted by the plaintiff’s complaint. For example:

• Where the relevant underlying situation is stable and unchanged between the accident and the giving of notice to the municipality, then the timeliness of notice may not be material because there will be no relevant prejudice to the municipality’s opportunity to investigate the place and circumstances of the accident.
• Conversely, where the alleged underlying conditions targeted by the plaintiff’s claim are quite ephemeral, (such as the presence of a small piece of transient debris on a sidewalk at a particular moment, or the extent of snow and ice on a road or sidewalk at the particular time an accident occurred), the timeliness of notice may be immaterial for different reasons. Notice given even a few days later realistically may not have provided the municipality with any opportunity to examine and document conditions as they existed at the time of the accident, so as to help its defence. Alternatively, the municipality’s ability to secure a record of snow and ice conditions, as well as contemporary maintenance efforts, may be more likely because of monitoring and recording systems designed to deal with such typically Canadian hazards.
• On the other hand, where the alleged conditions underlying the claim could have been investigated and documented by the municipality over a sustained period following the accident but have subsequently been altered by intervening forces, (such as the intervening resurfacing of a road, or shifts in the precise relative elevation of sidewalk bricks owing to the freeze/thaw effects of an intervening winter), delay in giving notice may have caused the municipality very real prejudice. [Citations omitted]

[90] Counsel for Ms. Patrick argues that Middlesex County suffered no prejudice because: (i) the conditions underlying the plaintiff’s claim are ephemeral: the accumulation of ice, snow and slush; (ii) a number of witnesses other than the plaintiff attended the location of the accident on the day it occurred including emergency personnel, police officers and Ms. Patrick’s spouse, James; (iii) the handwritten notes of the officers and the ambulance report are in hand. So, too, is a will-say signed by James Patrick on March 28, 2018; (iv) weather records have been preserved; (v) Middlesex County has produced copies of personnel records, job descriptions and records of dates and times municipal vehicles patrolled and maintained Melbourne Road.

[91] In Delahaye v. Toronto (City), supra the plaintiff alleged that a piece of debris on a sidewalk caused him to slip, fall and injure himself. As here, the statutory notice was provided very late. In finding that the issue of prejudice was one requiring a trial, Lauwers J. (as he then was) wrote in part at paras. 22 and 23:

This is not a case where the cause of the accident was stable…The plaintiff is not alleging that her injuries were caused by snow and ice left negligently on the sidewalk by the City, where the City’s ability to secure a record is more likely because its monitoring and recording systems are designed to deal with such typically Canadian hazards.

This makes it more difficult, in my view, for the City to establish that it has in fact been prejudiced by the delay. When it comes to a piece of transient debris, what difference would it have made if the required notice had been served within 10 days? What could the City have done differently that would have helped with its defence? The item of transient debris would have been long gone.

[92] Middlesex County submitted this is not an analogous situation. It notes that in his will-way James Patrick alleges that:

The corner that his wife had went [ sic ] into had slush and snow piled up near it. The road was tilted on an angle, but the gravel along the edges of the road was flat with the horizon such that slush and snow piled up…

Mr. Patrick will say that the road has since been changed such that the gravel on the edge of the road is now on a downward angle so that snow and slush that is plowed off the road falls off the edge…rather than accumulating on the edge of the road near the lane boundaries.

[93] Those paragraphs, the moving party contends, identifies the nature of the complaint: that snow and slush accumulated because of the angle of the highway.

[94] During her examination for discovery, Ms. Patrick was asked what her spouse had told her about how the accident occurred. A portion of the exchange follows:

Q. Okay.

A. And I remember him saying that’s always been a bad spot for people and he wasn’t surprised because it is a bad spot. I don’t know how many accidents have happened there before in that area.

Q. Okay. And when he said it was a bad spot can you elaborate on that for us?

A. The design of the road. He said the water doesn’t run off of it. It gathers in different spots. It freezes.

[95] Middlesex County notes that the list of particulars of negligence contained in the Fresh as Amended Statement of Claim include the improper or negligent design of the road. Other subparagraphs refer to the “pooling of water”, “a danger or a trap” and “uneven ground” [15] The moving party observes that County Road 9 is no longer the same as it was in February, 2014. It was resurfaced in September of that year. In his May 22, 2018 affidavit, Middlesex County Engineer Chris Traini deposed at para. 15(d):

I verily believe that the re-paving has made it practically impossible to determine what the topography of Melbourne Road in the area where the plaintiff’s accident occurred was on February 11, 2014. Both the paved surface and the shoulders of Melbourne Road in this area were covered and elevated by the placement of new asphalt and granular fill. I verily believe that there is no practical way to determine what the cross fall, grade, drainage characteristics or surface quality of either the paved road surface or the shoulders were prior to the re-paving.

[96] In Argue v. Tay (Township), supra a pot hole was said to have caused Ms. Argue’s vehicle to leave the road and roll over. Repaving had occurred by the time notice was given. The motions judge observed at para. 66:

Because Elliott Sideroad [ sic ] received a surface treatment in the intervening years, its condition by the time notice was received did not approximate its condition in 2007. This significant change in the road’s surface has prejudiced the Township of Tay in its defence.

[97] Recognizing the difficulty facing the plaintiff, Ms. Patrick’s counsel sent a letter dated November 18, 2018 withdrawing all aspects of any design claim. [16] That, the plaintiff submits, eliminates the municipality’s argument concerning prejudice and engages Leach J.’s comment at para. 86 that:

The focus of the plaintiff’s road maintenance complaint is the accumulation of ice and/or snow on the relevant road at the time of her accident. That inherently is an ephemeral condition capable of change within a matter of hours.

[98] Until delivery of that correspondence, the moving party’s argument on this point would have carried the day. However, given the letter referenced above, Leach J.’s statement may well now be an accurate one. Had Ms. Patrick cleared the first hurdle, by abandoning arguments relating to highway design this issue would have been a genuine one requiring a trial.

ii. The Limitations Issue

[99] February 11, 2016 was the second anniversary of the first accident Ms. Patrick was involved in. This proceeding was commenced against Middlesex County on March 8, 2016. As mentioned, an action of this kind must be commenced within two years of the day on which the claim was discovered: s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[100] I have already referred to the four pieces of information a claimant must know before a claim is discovered: Limitations Act, 2002, s. 5(1)(a). At first blush the action against Middlesex County is out of time since a person with a claim is presumed to have known of those matters on the day the act or omission on which the claim is based took place: Limitations Act, 2002, s. 5(2).

[101] One of the things that must be known is that the act or omission was that of the person (Middlesex County) against whom the claim is made: s. 5(1)(a)(iii). Clearly that fact was not known by Ms. Patrick or her legal adviser until March 3, 2016 when her solicitor received a letter from the lawyer for Southwest Middlesex.

[102] That is not the end of the analysis. The statute also contains an objective test. It requires a determination of the day on which a reasonable person with the abilities and in the circumstances of Ms. Patrick first ought to have known of the matters listed in s. 5(1)(a).

[103] A failure to take reasonable steps to investigate a claim is not a stand-alone ground for concluding a claim is untimely. It is, however, relevant to consideration of whether a claim was reasonably discoverable: Morrison v. Barzo, 2018 ONCA 979 at paras. 4 and 29.

[104] In this case, the municipality having jurisdiction over County Road 9 was misidentified despite the involvement of an experienced personal injury lawyer and her staff. On this record it cannot be said that a reasonable person in the shoes of Ms. Patrick would have fared better than Ms. Szczurko and a law clerk. The claim has to have been discovered by March 8, 2014 for it to be out of time insofar as the moving party is concerned. In that regard, the comments of Leach J. following argument of the plaintiff’s motion to add Middlesex County as a party are apposite. At paras. 65 and 66 he wrote:

…while I accept Middlesex County’s assertion that some roadways pass through lower tier municipalities without those municipalities having responsibility for their maintenance, the converse is also true. Roads and highways of extended length frequently pass through numerous lower tier municipalities where they assume the character of local streets and roads, over which lower tier municipal entities…assume maintenance responsibility. The reality is that there is simply no necessary correlation between geography and responsibility for road maintenance.

Moreover, there was no evidence before me to suggest that there is any source of authoritative information readily available to the public…to indicate and confirm the municipal entity having authority over any particular roadway in a specified location. To the contrary, the evidence before me suggests such information must be obtained from municipal entities… [17]

[105] A conclusion that a reasonable person with the abilities and in the circumstances of the plaintiff would have first known of the four items listed in s. 5(1)(a) by March 8, 2014 cannot possibly be reached on this record. This issue would have been a genuine one requiring a trial had both of those arising from s. 44(12) of the Municipal Act, 2001 fallen into that category too.

F. Conclusion

[106] For the reasons given, I have concluded that Ms. Patrick does not have a reasonable excuse for the failure to deliver notice to Middlesex County until March 4, 2016. She cannot satisfy the first element of the statutory test set forth in s. 44(12) of the Municipal Act, 2001. That issue is not a genuine one requiring a trial. The inability to meet that requirement means the untimely notice is a bar to this action insofar as the moving party is concerned. Therefore, the motion for summary judgment is granted and the action against Middlesex County is dismissed.

[107] I understand that Middlesex County and its co-defendants Carmine D’Ariano and United Parcel Service have asserted cross-claims. The co-defendants took no part in this motion. Dismissal of the action against Middlesex County should dispose of its claim for contribution and indemnity against Ms. D’Ariano and United Parcel Service. However, their crossclaim is not impacted by this decision.

[108] Cost submissions not exceeding five pages each may be provided to me through the trial coordination unit by 4:30 p.m. on January 7 by the moving party and on January 25, 2019 by the plaintiff.

“Justice A.D. Grace” Grace J. Released: December 12, 2018

Footnotes

[1] The reasons are reported at 2017 ONSC 17 (S.C.J.).

[2] That excerpt is drawn from paragraph 4 of the statement of claim.

[3] Paragraph 1 of the statement of defence and crossclaim admitted only that portion of paragraph 4 of the statement of claim that alleged Southwest Middlesex was a municipal corporation. The balance of that paragraph of the statement of claim was caught by the municipality’s general denial.

[4] The excerpt is drawn from paragraph 5 of the pleading filed on behalf of Southwest Middlesex.

[5] Reported at 2017 ONSC 17 (S.C.J.).

[6] That occurred on March 8, 2017.

[7] Transcript of the cross-examination of Anna Szczurko conducted October 2, 2018, p. 5, Q. 32.

[8] Ibid. p. 26, Q. 146.

[9] Ibid. p. 26, Q. 149.

[10] Ibid. p. 36, Q. 213-214.

[11] Ibid. p. 41, Q. 238.

[12] See para. 66 of the plaintiff’s factum.

[13] 2013 ONCA 247.

[14] Section 42(8) of the City of Toronto Act and s. 44(12) of the Municipal Act, 2001 are comparable provisions.

[15] Those excerpts are drawn from paras. 12(b), (i) and (l) respectively of the Fresh as Amended Statement of Claim.

[16] The letter was not included within the various motion records. However, counsel for both parties referred the court to the letter without objection.

[17] 2017 ONSC 17.