Brown v. The City of Toronto

[Indexed as: Brown v. Toronto (City)]

70 O.R. (3d) 417

[2004] O.J. No. 1649

Docket No. C40359

Court of Appeal for Ontario

Weiler, Abella and Armstrong JJ.A.

April 23, 2004

Limitations -- Actions against municipality -- Slip and fall on municipal sidewalk -- Notice of claim to be served within seven days of accident -- Time for service of notice extended if seventh day falls on holiday but holidays not otherwise excluded in calculation of limitation period -- Municipal Act, R.S.O. 1990, c. M.45, s. 284(5) -- Interpretation Act, R.S.O. 1990, c. I.11, s. 28(h).

Municipal law -- Actions against municipality -- Limitations -- Slip and fall on municipal sidewalk -- Notice of claim to be served within seven days of accident -- Time for service of notice extended if seventh day falls on holiday but holidays not otherwise excluded in calculation of limitation period -- Municipal Act, R.S.O. 1990, c. M.45, s. 284(5) -- Interpretation Act, R.S.O. 1990, c. I.11, s. 28(h).

On Monday, December 17, 2001, the plaintiff HB fell on snow and ice on a municipal sidewalk of the defendant City of Toronto (the "City"). Subsection 284(5) of the Municipal Act requires that notice of a claim be sent or served within seven days of the accident. On December 27, 2001 -- ten days after the fall -- HB served the City with written notice of the accident. After HB commenced an action, the City moved for a summary judgment dismissing HB's claim as barred by s. 284(5). Relying on rule 3.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that where a period of less than seven days is prescribed, holidays shall not be counted, McWatt J. dismissed the City's motion. The City appealed.

Held, the appeal should be allowed.

Rule 3.01(1)(b) was not applicable. The time requirement in this case was imposed by statute. The calculation of time was governed by s. 28(h) of the Interpretation Act, which provides that where the time limited by an Act for a proceeding expires or falls upon a holiday, the time so limited extends to the day next following that is not a holiday. Section 28(h) does not mean that the time limit can be extended by excluding all holidays from the calculation of the seven days. In this case, the expiry date did not fall on a holiday, and there was no basis for extending the time for sending or serving the notice. Accordingly, the appeal should be allowed.

APPEAL from an order dismissing a motion for summary judgment.

Cases referred to Young v. Mississauga (City) (1993), 1993 5502 (ON SC), 16 O.R. (3d) 409, [1993] O.J. No. 2867, 108 D.L.R. (4th) 90, 24 C.P.C. (3d) 202, 18 M.P.L.R. (2d) 138 (Gen. Div.)

Statutes referred to Interpretation Act, R.S.O. 1990, c. I.11, s. 28(h) Municipal Act, 2001, S.O. 2001, c. 25, s. 44 Municipal Act, R.S.O. 1990, c. M.45, s. 284(5)

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 3.01(1)(b)

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Avril Allen, for appellant. Joel P. Freeman, for respondent.

The judgment of the court was delivered by

[1] ABELLA J.A.: -- On Monday, December 17, 2001, Hermine Brown fell on snow or ice on a municipal sidewalk. On December 27, 2001, ten days later, Ms. Brown served the City with written notice of the accident. The issue in this appeal is whether the action is barred by s. 284(5) of the Municipal Act, R.S.O. 1990, c. M.45, which requires that notice of a claim be sent or served within seven days of the accident. This section states:

284(5) No action shall be brought for the recovery of the damages mentioned in subsection (1) unless notice in writing of the claim and of the injury complained of has been served upon or sent by registered mail to the head or the clerk of the corporation, in the case of a county or township within ten days, and in the case of an urban municipality within seven days, after the happening of the injury, nor unless, where the claim is against two or more corporations jointly liable for the repair of the highway or bridge, the prescribed notice was given to each of them within the prescribed time.1

[2] The City brought a motion for summary judgment, arguing that on Monday, December 24, 2001, the seventh day following the accident, the City Clerk's Office was open its usual hours, from 8:30 a.m. until 4:30 p.m.

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[3] The City's motion was dismissed on the basis that Ms. Brown's notice was timely. In holding that the seven-day deadline had been met, the motions judge concluded that because Saturday December 22, Sunday December 23, Christmas Day and Boxing Day were holidays, they should be excluded from the computation of the seven days. She relied on the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and in particular on rule 3.01(1)(b), which states:

3.01(1) In the computation of time under these rules or an order, except where a contrary intention appears,

(b) where a period of less than seven days is prescribed, holidays shall not be counted.

[4] This rule applies only to "the computation of time under these rules or an order". But the time requirement in this case is imposed by a statute, the Municipal Act, not by the Rules. Moreover, the notice period in the Municipal Act is seven days, not "less than seven days". Rule 3.01(1)(b), therefore, does not apply to the calculation of the time for service of notice of a claim under the Municipal Act.

[5] Such a calculation is governed by s. 28(h) of the Interpretation Act, R.S.O. 1990, c. I.11, which provides:

28. In every Act, unless the contrary intention appears,

(h) where the time limited by an Act for a proceeding or for the doing of any thing under its provisions expires or falls upon a holiday, the time so limited extends to and the thing may be done on the day next following that is not a holiday.

[6] This means that if, in calculating the seven days, the last day falls on a holiday, the time is extended to the next day that is not a holiday. It does not mean that the time limit can be extended by excluding all holidays from the calculation of the seven days.

[7] This methodology is not in conflict with Young v. Mississauga (City) (1993), 1993 5502 (ON SC), 16 O.R. (3d) 409 (Gen. Div.). Young deals with the definition of "holiday" only for purposes of deciding whether to extend the last day of the notice period if it falls on a day when service is impossible because the municipal offices are closed. That case does not, with respect, bear the interpretation applied by the motions judge, namely, that the notice period should be calculated by excluding all holidays.

[8] In this case, the last day of the stipulated period was not a holiday. There was, therefore, no basis for extending the time for sending or serving the notice.

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[9] Accordingly, the appeal is allowed, the order of McWatt J. is set aside, and Ms. Brown's action is dismissed. In the circumstances, I would not order any costs against Ms. Brown.

Appeal allowed without costs.