COURT OF APPEAL FOR ONTARIO
CITATION: Argue v. Tay (Township), 2013 ONCA 247
DATE: 20130419
DOCKET: C55997
Weiler, Sharpe and Rouleau JJ.A.
BETWEEN
Robin Argue
Plaintiff (Appellant)
and
The Corporation of the Township of Tay
Defendant (Respondent)
David A. Morin and Dale W. Lediard, for the appellant
Andra Maxwell-Baker and Zohar Levy, for the respondent
Heard: April 18, 2013
On appeal from the judgment of Justice Guy P. DiTomaso of the Superior Court of Justice, dated August 10, 2012.
APPEAL BOOK ENDORSEMENT
[1] The appellant submits that the motion judge erred in dismissing the action of the basis that it was statute barred under s. 44(10) of the Municipal Act. We disagree.
[2] There is no issue that the appellant did not give notice of her claim in writing as required within 10 days under s. 44(10). She, therefore, had the onus of establishing a reasonable excuse under s. 44(12) for not doing so and that the municipality was not prejudiced. After considering the evidence, the motion judge gave careful and considered reasons for holding that the appellant failed to establish a reasonable excuse and that the municipality was not prejudiced.
[3] We see no error in his analysis or in his application of the relevant principles. Nor did he reverse the overall burden of proof on the motion for summary judgment.
[4] Accordingly, the appeal is dismissed. Costs of the appeal to the respondent are fixed in the amount of $7,028, inclusive of disbursements and applicable taxes.