Court File and Parties

Court of Appeal for Ontario Date: 2022-01-19 Docket: C69250

Between:

Peter J. Psaila Plaintiff (Appellant)

and

Nick Kapsalis and John Kapsalis and City of Toronto Defendants (Respondents)

Before: Huscroft, Trotter and Coroza JJ.A.

Counsel: Joseph Campisi Jr., Ashu Ismail and Peter Murray, for the appellant Natalie D. Kolos and Edona C. Vila, for the respondent City of Toronto

Heard: January 13, 2022 by video conference

On appeal from the order of Justice Susan Vella of the Superior Court of Justice, dated February 19, 2021.

Reasons for Decision

[1] The appellant argues that the motion judge erred in granting summary judgment, dismissing his action against the respondent City on the basis that he failed to provide timely notice as required under s. 42(6) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, and had no reasonable excuse. It was not disputed that the accident in question occurred on March 28, 2015, and that the City did not receive notice until April 2, 2018, well outside the 10-day period required by the Act.

[2] The appellant submits that the motion judge made palpable and overriding errors in finding that he was making a left turn at the intersection and in misapprehending the expert opinion in the Wilkinson report filed by the respondent.

[3] We disagree.

[4] First, it is not clear that the motion judge found that the appellant was making a left turn. Her decision contains a single reference to the parties “each attempting a turn”. But even assuming that this finding was in error, it had no impact on her decision that the appellant had no reasonable excuse for failing to provide timely notice.

[5] Second, the motion judge gave the appellant the benefit of a “broad and liberal interpretation” of reasonable excuse. She found that the appellant and his litigation guardian were in possession of sufficient facts to warrant hiring an expert to inspect the intersection by the time examinations for discovery were completed in February 2017, rather than waiting until the defendants produced their expert report. This finding was open to her on the record.

[6] The appellant knew the location of the accident, knew of the City’s responsibility for designing and maintaining it, and knew that the defendants were blaming him for failing to avoid the collision. As the motion judge noted, the defendants’ allegation was premised on the assumption that the design and layout of the intersection permitted a reasonably prudent driver to have seen the defendants’ vehicle and take defensive action to avoid a collision. Her conclusion that this should have led the appellants to investigate the intersection and put the City on notice of a potential claim is reasonable. We note that the motion judge found, in the alternative, that at the very latest the appellant should have provided the City with notice within 10 days of receiving the Wilkinson Report, but did so only two months after receiving it.

[7] In summary, the motion judge did not err in concluding that the appellants failed to establish a reasonable excuse for their delay in providing notice. Her decision is reasonable and entitled to deference.

[8] The appeal is dismissed. The respondent is entitled to costs in the agreed amount of $10,000, all inclusive.

“Grant Huscroft J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”