ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-327-00
DATE: 2012June29
BETWEEN:
DOUGLAS ALLEN, HEATHER ALLEN, NICHOLAS ALLEN, CHRISTOPHER ALLEN and MICHAEL ALLEN, through his Litigation Guardian, Heather Allen
Plaintiffs
– and –
THE CORPORATION OF THE COUNTY OF PRINCE EDWARD
Defendant
Bryan D. Rumble, for the Plaintiffs
Zohar R. Levy, for the Defendant
HEARD: May 18, 2012 at Belleville
Belch j.
endorsement
[ 1 ] David Allen,( plaintiff), while operating his motor vehicle on Victoria Road, a 15 km highway within Prince Edward County, (County), was involved in a single vehicle accident and suffered extensive property damage to his car as well as serious injuries to himself. He did not give notice to the County within 10 days of the December 21, 2006 accident as required by the Municipal Act (Act) until his Claim, issued September 3, 2008, was served on December 9, 2008.
[ 2 ] The relevant sections of the Act are s.44(10) and s.44(12). They read as follows:
s.44(10)
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 the injury complained of has been served upon or sent by registered mail to, the clerk of the municipality…
s.44(12)
Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is a reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence .
[ 3 ] The issue is whether the plaintiff's failure to give notice was saved by a “reasonable excuse.”
[ 4 ] The County moves for summary judgment to dismiss the plaintiff’s claim relying upon the failure to give notice which it submits prejudices the municipality’s defence of the action because it meant the County could not conduct a timely investigation of the incident.
[ 5 ] For the reasons that follow I dismiss the County's motion for summary judgment.
BACKGROUND
[ 6 ] The plaintiff was removed by ambulance from the accident scene to the Trenton Memorial Hospital, then the Kingston General Hospital, and finally the Belleville General Hospital. He suffered many injuries including traumatic head and brain injury and several fractures. He remained in hospital for 60 days. It was not until August 21 2007 that he sought legal advice. The lawyer in turn engaged an engineering firm on October 17, 2007 which produced a report received August 27, 2008. The claim was commenced 7 days after the report’s receipt. The County only received notice of the incident when the claim was served almost 2 years after the incident.
[ 7 ] The County argues:
a. It did not receive notice within the 10 day period.
b. There was no reasonable excuse for the delay as the plaintiff's wife was employed as a legal assistant to a lawyer practicing municipal litigation and therefore knew about limitation periods.
c. Notice should at least have been given when the lawyer was retained.
d. Notice could have been given when the engineer was retained.
e. Notice could have been given when the engineer’s report was received.
f. Notice could also have been given when the claim was issued.
g. The municipality suffered prejudice as it was deprived of the opportunity of conducting a” timely” investigation. Foliage and shoulder conditions are transient and years after the accident are difficult to determine with any confidence. Even the two reports from the plaintiff's engineers differ on the width and slope of the shoulder.
[ 8 ] The plaintiff argues:
a. He had a reasonable excuse. He had no appreciation there was a 10 day period within which he was required to give notice.
b. He had been hospitalized for 60 days following the accident.
c. He did not possess the material facts upon which his claim was founded until the engineer’s report was received, i.e. a question of discoverability.
d. The Act only requires a reasonable excuse for the initial 10 day. His medical condition provided that excuse. His injuries exceeded the threshold for “catastrophic” as defined by the Statutory Accident Benefits Schedule. This should end all discussion of notice within 10 days.
e. The County has not produced any evidence it sustained prejudice.
f. The County’s road supervisor had on December 21, 2006, the day of the accident, logged an entry of travelling upon Victoria Road.
g. The County has not built-up, repaired, or changed the shoulder of the road since the accident.
h. The County has been able to speak with the tow truck driver and investigating police officer and neither had any difficulty remembering the incident.
THE LAW
[ 9 ] Pursuant to rule 20 of the Rules of Practice, a court shall grant summary judgment if it is satisfied there is no genuine issue requiring trial with respect to a claim or defence. In doing so, a judge may weigh evidence, evaluate credibility, and draw any reasonable inference from the evidence unless it is in the interest of justice to do so only at trial.
[ 10 ] The Ontario Court of Appeal in the case of Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764 concluded that three types of cases are especially amenable to summary judgment:
Where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment;
Where the claims or defence are shown to be without merit; and
Where the trial process is not required in the interest of justice.
[ 11 ] With respect to point number three, the Court of Appeal has developed the “full appreciation test”:
50 ... In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
51 We think this "full appreciation test" provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the "interest of justice" requires a trial.
GENERAL LEGAL PRINCIPLES
[ 12 ] There are a number of legal principles in play. The following are examples:
a. The purpose of section 44 of the Municipal Act is to ensure that a municipality has a timely opportunity to investigate the place and circumstances of the accident. See Fremeau [2009] O.J. No. 2391 .
b. The inherent probability of prejudice must be fact-based. It can be overcome if evidence shows other sources of information about the circumstances. See Fremeau.
c. Limitation periods are technical defences that bar adjudication on the merits. The 10 day notice has been referred to as” a limitation within a limitation.”
d. In a motion for summary judgment under Rule 20, the onus is on the moving party to establish that there is no genuine issue for trial with respect to a claim or a defence. The genuine issue for trial can be one of fact or it can involve a question of law. The factual dispute must raise a genuine issue related to a material fact. See Caglar , Court file number: 03-CV-245606 CM3, paragraph 9.
e. “While summary judgment is not foreclosed where there is a dispute about the applicability of the discoverability rule, the Court of Appeal in MacMillan v McDermid , (2004), 2004 11918 (ON CA) , 70 O.R. (3d) 252 has cautioned that, it is generally not appropriate to grant summary judgment when the rule of discoverability is central to the resolution of a limitation issue.
f. …discoverability, a principle that provides that a limitation period commences when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. This principle ensures that a person is not unjustly precluded from litigation before he or she has the information to commence an action provided that the person can demonstrate he or she exercised reasonable or due diligence to discover the information. See Peixeiro 1997 325 (SCC) , [1997]3 SCR 549.
g. “In my view, the plaintiff should have the benefit of a broad and liberal interpretation of “reasonable excuse”. Failure to comply with the 10 day time limit mandated by subsection 44(10) is [not] a bar to an action where the plaintiff establishes reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence. Where the municipality is prejudiced in its defence, failure to comply with the time limit is a bar. In my view, the protection granted to the municipality where it is prejudiced in its defence is good reason why a liberal interpretation should be given to the words “reasonable excuse.” Murray J. in Cena v. Oakville (2009) and agreed with by the Court of Appeal in Crinson v Toronto , 2010 ONCA 44 .
h. If the city relies on the existence of prejudice to its defence, then it is obliged to lead evidence on the issue….”The incident of the burden of proof is dependent upon the considerations of policy, fairness and probability.” In some cases, facts that are put particularly within the knowledge of one party or the other may influence the allocation of the persuasive burden. See The Law of Evidence in Canada, 3rd edition, Lexis Nexis, 2009 at section 3.83.
i. Where, for example, the evidence shows that the situation is stable, then the timeliness of notice is not material since there is no prejudice see Blair v. Barrie (2006) as quoted in Delahaye [2011 ]O.J. No. 4006. Further, the existence of prejudice can be dispelled by the city's ability to access other sources of information about the circumstances.
ANALYSIS AND CONCLUSION
[ 13 ] Heather Allen, while a plaintiff, is not the plaintiff . Hers is a derivative action ( Family Law Act ) arising from her husband's accident and I would be loath to remove her husband's rights based on her knowledge alone. She may be a legal assistant, but she is not a lawyer. I reject this argument of the County.
[ 14 ] Motions judges must ask themselves “can the full appreciation of the evidence and the issues required to make dispositive findings be achieved by way of summary judgment?”
[ 15 ] I am satisfied that David Allen's medical condition was a reasonable excuse for failing to give notice within the 10 day period. The plaintiff's argument the legislation only mentions the 10 days following the incident is novel but does not satisfy me this and this alone ends the search for when the 10 days actually commences. This is a genuine issue for trial. Just when did the 10 day notice period begin and end? It may be that the date he discovered the material facts of highway design will determine that issue. Due diligence will need to be addressed. As mentioned, it is generally not appropriate to grant summary judgment when the rule of discoverability is central to the resolution of a limitation issue.
[ 16 ] The submissions suggest this is a case involving highway design. This is not a scenario involving ice and/or snow, plowing, sanding, and salting but it could involve a change in foliage and roadside vegetation, otherwise the conditions are stable.
[ 17 ] The motion records contain the engineering reports of both parties. The first report from the plaintiff suggests there is a significant drop-off at the accident scene with the cut vegetation providing camouflage of the drop-off. The shoulder is almost nonexistent creating a “non-recoverable slope.” Further, there was no “clear zone” beyond the shoulder, and the tree which was struck by the plaintiff's car was located within 3 m. of the toe of the slope warranting protection, i.e. guardrails. Violation of the Geometric Design Guide for roads was mentioned.
[ 18 ] The County’s expert countered the plaintiff's expert was not qualified in highway design, Victoria Road was built prior to current design requirements and low traffic volume suggested surface treatment and spot repairs were sufficient without upgrading the roadside.
[ 19 ] The report from the plaintiff's second engineer concluded the horizontal and vertical alignment together with the narrow driving surface and very narrow shoulders posed the most challenging operational conditions. Also, there was a significant deficiency in maintenance in that the road shoulder was not visible and could have been addressed by cutting roadside brush and grading the gravel shoulder free of vegetation. In addition, the curve was incorrectly signed providing erroneous information to drivers and a provision of a solid centerline would have given a reference point to drivers traveling in either direction.
[ 20 ] The County’s expert agreed the slope was steep and non-recoverable but given the road’s age and the resources of small rural counties it was consistent with the standard of care expected. Furthermore, the observations of the plaintiff's second expert were made 4 years after the accident and vegetation could have changed.
[ 21 ] These reports underline why timely investigation is so important especially with respect to the vegetation, however, a trier of fact may still conclude any one of design, incorrect signage and or steep slope was a significant contributing factor and all of these conditions appear to have remained stable. These issues, and the qualifications of the experts require testing with cross-examination and careful scrutiny of a trial judge and cannot be fully appreciated on a motion.
[ 22 ] The County has not convinced me failure to receive notice within 10 days of the incident has created a prejudice because it has been unable to conduct a timely investigation although I concede it may be able to establish such prejudice at trial with the benefit of viva voce evidence.
[ 23 ] The County's motion for summary judgment is dismissed. Full appreciation of the evidence can only be achieved by way of a trial and although the trial record is not voluminous multiple findings of fact are required on the basis of conflicting evidence. The plaintiff is entitled to his costs.
COSTS
[ 24 ] If Counsel are unable to resolve the issue of costs they can submit written arguments limited to five type written letter size pages to be presented to the court on or before July 31, 2012, failing which, the court assumes costs have been addressed.
Belch J.
Released: June 29, 2012
COURT FILE NO.: CV-10-327-00
DATE: 2012June29
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: DOUGLAS ALLEN, HEATHER ALLEN, NICHOLAS ALLEN, CHRISTOPHER ALLEN and MICHAEL ALLEN, through his Litigation Guardian, Heather Allen Plaintiffs – and – THE CORPORATION OF THE COUNTY OF PRINCE EDWARD Defendant
ENDORSEMENT
Belch J.
Released: June 29, 2012