COURT FILE NO.: 09-0425

DATE: 20120810

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBIN ARGUE

Plaintiff

– and –

THE CORPORATION OF THE TOWNSHIP OF TAY

Defendant

(Moving Party)

Dale Lediard, for the Plaintiff

Zohar Levy, for the Defendant

HEARD: July 31, 2012

REASONS FOR DECISION

DiTOMASO J.

INTRODUCTION

INTRODUCTION

1On April 5, 2007 the plaintiff Robin Argue (“Argue”) was driving her motor vehicle on Elliott Sideroad in the Township of Tay when her car hit a pot hole, left the roadway and rolled over into a ditch. Ms. Argue commenced this action to recover damages for injuries sustained in the motor vehicle accident.

2Written notice of Ms. Argue’s claim and the injury complained of was not provided to the defendant The Corporation of the Township of Tay (“Township of Tay”) until March 26, 2009 – almost two years after the accident.

3The Township of Tay now moves for summary judgment against Ms. Argue on the grounds that there is no genuine issue requiring a trial pursuant to Rule 20.04 of the Rules of Civil Procedure.

4The Township of Tay seeks to dismiss Ms. Argue’s action on the basis that she has failed to comply with the notice period provided in s. 44(10) of the Municipal Act, 2001 S.O. 2001, c.25 (the “Act”). Further, the Township of Tay maintains that Ms. Argue’s failure to provide notice within ten days is not excused by s. 44(12) of the Act which requires for her to provide a reasonable excuse for the lack of notice and show that the Township of Tay was not prejudiced by the lack of notice. As a result, the Township of Tay contends that Ms. Argue’s action is statute barred.

5Ms. Argue submits that an analysis under s. 44(12) is unnecessary. While she did not provide written notice to the Township of Tay until March 26, 2009, the Township of Tay had notice of her accident and had a reasonable opportunity to investigate the circumstances surrounding the accident within ten days of its occurrence.

6In the alternative, Ms. Argue submits that she had a reasonable excuse for not providing notice within ten day of the accident and further, the Township of Tay is not prejudiced in its defence. However, if prejudice exists, then such prejudice arises as a result of the Township of Tay’s actions or failure to act. Ms. Argue takes the position that there are genuine issues requiring a trial as follows:

(a) Whether the Township of Tay had notice of the accident and potential claim on or around the date of the loss;

(b) If not, whether Ms. Argue has a “reasonable excuse” for not providing written notice to the Township of Tay prior to March 26, 2009;

(c) Whether the Township of Tay is prejudiced in its defence as a result of the delay in receiving written notice from Ms. Argue.

7Ms. Argue takes the position that because there are genuine issues requiring a trial, this motion for summary judgment should be dismissed.

BACKGROUND

BACKGROUND

8It is not disputed that on March 25, 2009 Ms. Argue, through her lawyer, provided formal written notice of her claim to the Township of Tay. This notice was received by the Township of Tay on March 26, 2009.

9After the accident occurred, the volunteer Fire Department of the Township of Tay attended at the scene. No employee of the Department of Public Works of the Township of Tay attended at the site of the accident on April 25, 2007. Amongst the volunteer fire fighters who attended at the scene was Ms. Argue’s husband, who then rode with her in an ambulance to the hospital.

10Ms. Argue was discharged from the hospital that same day.

11Noteworthy is the fact that the condition of Elliott Sideroad changed materially between the time of the accident in April 2007 and the time that notice was provided in March 2009. Elliott Sideroad received a surface treatment in the intervening years and its condition by the time notice was received did not approximate its condition in 2007.

THE ISSUE

THE ISSUE

12The primary and overarching issue on this Rule 20 summary judgment motion is whether there is a genuine issue requiring a trial.

POSITIONS OF THE PARTIES

Position of the Township of Tay (Moving Party)

POSITIONS OF THE PARTIES

13The Township of Tay submits that there is no genuine issue requiring a trial. Ms. Argue did not provide statutory notice to the Township of Tay until March 26, 2009 almost two years after the accident. She failed to comply with respect to the requirements of s. 44(10) of the Act. Her failure to provide notice within 10 days of the accident is not excused by s. 44(12) of the Act. The Township of Tay submits that there is no reasonable excuse for Ms. Argue’s failure to give notice of her intention to make a claim before March 26, 2009. Further, Ms. Argue was aware of all the material facts underlying her claim on the day of the accident and was able to notify the Township of Tay at that time. Despite that knowledge, it is asserted she did not seek legal advice or notify the Township of Tay until almost two years after the accident. As a result the Township of Tay has been prejudiced by such late notice.

14The Township of Tay submits that Ms. Argue’s claims are statute barred and the motion for summary judgment should be granted.

Position of the Plaintiff Robin Argue

Position of the Plaintiff Robin Argue

15Ms. Argue submits that there are genuine issues requiring a trial. Those issues relate to notice pursuant to the Act, “reasonable excuse” for not providing written notice to the Township of Tay prior to March 26, 2009 and whether the Township of Tay was prejudiced in its defence as a result of the delay in receiving written notice from her.

16Ms. Argue asserts that the Township of Tay had actual and/or constructive notice of the accident and her potential claim by virtue of the attendance of the Fire Department combined with Township of Tay’s knowledge of the dangerous conditions of the road.

17In addition, Ms. Argue submits that the Township of Tay had knowledge of her accident and potential claim by virtue of receiving a copy of the motor vehicle accident report which had clearly sets out the cause of the accident due to “poor road conditions”. Ms. Argue submits that the Township of Tay had reasonable opportunity to inspect the loss location on or about the time the accident occurred but took no steps to inspect same when they received notice of the accident or potential claim against it alleging road maintenance issues. Ms. Argue submits that the Township of Tay had actual knowledge of her accident and potential claim and had a reasonable opportunity to investigate the loss locale but failed to do so.

18Further, any prejudice the Township of Tay alleges results from the Township’s own actions or inaction.

ANALYSIS

The Law – Rule 20 and the Full Appreciation Test

ANALYSIS

19Rule 20.04 states that summary judgment shall be granted if the court is satisfied that there is “no genuine issue requiring a trial” with respect to a claim or defence. In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence;

2. Evaluating the credibility of a deponent; and

3. Drawing any reasonable inference from the evidence.¹

20In Combined Air Mechanical Services Inc. v. Flesch,² a five-member panel on the Ontario Court of Appeal developed the approach to be taken in interpreting the amended Rule 20. The Court of Appeal concluded there are three types of cases amenable to summary judgement:

1. Where the parties agree that it is appropriate to determine an action by way of a motion for summary judgement (does not apply in the case at bar);

2. Where the claims or defences are shown to be without merit (does not apply in the case at bar); and

3. Where the trial process is not required in the interest of justice.

21In the cases where summary judgment is sought under the third category of cases (where the trial process is not required in the interest of justice), the Court of Appeal developed the “full appreciation test”:

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 trial?

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.³

22The Court of Appeal further stated in document-driven cases or where there are limited contentious factual issues or where the record can be supplemented to the requisite degree at the motion judge’s discretion by hearing oral evidence on discrete issues, the full appreciation test may be met.⁴

23In deciding whether to grant summary judgment, the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless a full appreciation of the evidence and issues is attainable on the motion record, the judge cannot be satisfied that the issues are appropriately resolved on a motion for summary judgment.⁵

24The new Rule 20 does not change the evidentiary obligations on a summary judgment motion. Each side must put its “best foot forward” and the court is entitled to assume that the record contains all the evidence which the parties would present at trial.⁶

25In response to evidence supporting a motion for summary judgment a responding party may not rest solely on the allegations or denial in the party’s pleadings, but must set out, through admissible evidence, specific facts showing why there was a genuine issue regarding a trial.⁷

26In our case, the question is whether or not there is a genuine issue requiring a trial with respect to the application of s. 44(10) and s. 44(12) of the Act.

27The evidentiary record before the court on this summary judgment motion is not voluminous and is easily appreciated. The entire motion record from both parties consists of two affidavits with exhibits. Only two very limited cross examinations were conducted on those affidavits. This is exactly the type of case considered by the Court of Appeal in Combined Air where there are limited contentious factual issues and where a motion judge can achieve full appreciation of the evidence and issues required to make dispositive findings.

28I find that the brevity of the record underscores the dearth of contentious factual issues requiring a trial. There is no dispute that the Township of Tay was not notified of Ms. Argues’ injuries and intent to make a claim until almost two years after the accident quite apart from her argument about actual and/or constructive notice. The explanation put forth by Ms. Argue regarding delay is that it did not occur to her to notify the Township of Tay. She had no experience in litigation and was focused on her recovery. I find what determines reasonable excuse in this case can be determined without the full forensic machinery of a trial. Equally, there is no dispute that the road materially changed in the period between the accident and when notice was given some two years later. Elliott Sideroad was converted from a gravel road to a surface treated road. Similarly, it is possible to gain a full appreciation of the impact of this change without the requirement of a trial. Proceeding with a motion for summary judgment in these circumstances is entirely appropriate.

Legal Background – ss. 44(10) and (12) of The Municipal Act

Legal Background – ss. 44(10) and (12) of The Municipal Act

29The legal provisions critical to the Township of Tay’s motion for summary judgment relate to s. 44(10) and (12) of The Municipal Act. These subsections state:

Notice

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 of the injury complained of has been served upon or sent by registered mail to,

(a) The clerk of the municipality; or

(b) If the claim is against one or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.

Exception

(12) Failure to give notice or insufficiency of the 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.

A. No Notice Given Within Ten Days of the Occurrence of the Injury

No Notice Given Within Ten Days of the Occurrence of the Injury

30Ms. Argue claims that she was driving on Elliott Sideroad on April 5, 2007 when her motor vehicle hit a pot hole with the result that her car left the roadway and rolled over into the ditch. She claims that she suffered injuries as a result of this single car accident and brought an action against the Township of Tay.

31I have already alluded to the attendance of the volunteer Fire Department of the Township of Tay at the scene in addition to the attendance by the O.P.P. No employee of the Department of Public Works of the Township of Tay attended at the accident site on April 5, 2007. Ms. Argue was taken to the hospital by her husband who was one of the volunteer firemen at the scene. She was discharged from hospital that same day.

32It is Ms. Argue’s evidence that at the time that she was discharged from the hospital, she knew that she had been injured in the accident. She knew that Elliott Sideroad was a Township of Tay road and she believed that the condition of the road had caused her accident. She presumed that the Township of Tay was responsible for road maintenance and the condition of the road.

33As a result of the accident Ms. Argue sustained soft tissue injuries. She did not fracture any bones and she did not require surgery. On her evidence she was able to return to work within 2-3 weeks of the accident. She did not suffer from depression as a result of this accident.

34It is Ms. Argue’s own evidence that her injuries did not prevent her from notifying the Township of Tay within 10 days of the accident. She was both physically and mentally able to notify the Township of Tay within ten days of her accident, and indeed, even on the day of the accident. She did not do so.

35In cross-examination, Ms. Argue testified that in the two years between the accident and the provision of written notice to the Township of Tay, she did not conduct any independent investigations or take any steps to determine whether she had a claim at all against the Township of Tay. Nothing prevented her from conducting any investigations. She just did not think about doing it. Her knowledge and belief regarding the accident when she went to see a lawyer in March of 2009 was the same as her knowledge and belief on the day of the accident. In fact, the only new information she obtained before consulting with a lawyer in March of 2009 was that her accident benefits might run out.

36According to her evidence, it simply did not occur to Ms. Argue to notify the Township of Tay or to contact counsel until March of 2009 almost two years after the accident. Prior to consulting with a lawyer, Ms. Argue was aware that the court system existed and that people could bring claims in court to recover damages for physical injuries.

37The evidence of Bryan Ritchie on behalf of the Township of Tay and Ms. Argue confirms that the Township of Tay did not receive any notice of her injuries or intention to make a claim until March 26, 2009. Neither Ms. Argue nor any agent acting on her behalf notified the Township of Tay of her injuries, or her intention to make a claim prior to that date. Her action was commenced by way of Statement of Claim issued on March 27, 2009.

38I find that there is no record in the possession of the Township of Tay including the Fire Department records and the motor vehicle accident report completed by the O.P.P. which would have given the Township of Tay notice of the plaintiff’s injuries or her intent to make a claim. Ms. Argue had no reason to believe that the Clerk of the Township of Tay would have had any knowledge of her intent to make a claim prior to receiving notice in March of 2009. I accept Mr. Ritchie’s evidence in this regard.

39I do not accept the argument of plaintiff’s counsel that the Township of Tay had notice of the accident and/or potential claim on or about the date of the loss by virtue by the attendance of their Fire Department combined with their knowledge of the alleged dangerous conditions of Elliott Sideroad. In addition, I do not accept that the Township of Tay had knowledge of Ms. Argue’s accident and potential claim by virtue of receiving a copy of the motor vehicle accident report which was located in the Fire Department’s records attributing the cause of the accident to “poor road conditions”. I find as an uncontrovertible fact that Ms. Argue did not provide the required written notice to the Municipal Clerk of the Township of Tay pursuant to s. 44(10) of the Act. When asked whether or not there was any legal authority to support his position, plaintiff’s counsel indicated that although he had researched the issue he could find no supporting authority. In fact, no legal authority was presented to the court to support the proposition that actual and/or constructive notice in any way pre-empts the requirement to give written notice to the Municipal Clerk pursuant to s. 44(10) of the Act.

40Neither is there a suggestion in any jurisprudence considering s. 44(10) that the requirement of written notice to a Municipal Clerk can be dispensed with in favour of constructive or oral notice to a different Municipal Department. Indeed, the Ontario High Court considered the predecessor to s. 44(10) of the Municipal Act, and concluded that even where an agent of the plaintiff telephoned the municipality to report an accident immediately after it took place, it did not satisfy the notice requirement of the Municipal Act. Despite the plaintiffs argument that the Municipality was not prejudiced because it had actual notice of the injury and claim, the plaintiff’s claim was dismissed for failure to comply with the notice provision. In dismissing the claim Henry J noted:

The difficulty here is that in case of an organization such as a Municipality, unless the notice is in writing and sent to a proper authority, such as the City Clerk or the City Solicitor, there is no assurance that an employee will refer the information to the proper official; Hence the formality required by the statute to protect the Municipality. Unfortunately, as is recognized, it places an extremely heavy onus on the claimant. Colley v. City of Brampton, (1985), 55 OR (774) at para. (21). (HC)

41There is no doubt that Ms. Argue failed to provide the written notice to the Clerk of the Municipality within ten days after the occurrence of her injury providing notice of the claim and of the injury complained of pursuant to s. 44(10) of the Act. I find that there is no genuine issue requiring a trial with respect to the written notice of the Ms. Argue’s claim and the injuries complained of was not sent to the Clerk of the Township of Tay until March 26, 2009 approximately two years after her accident. She did not comply with the requirements of s. 44(10). I find that this action is therefore statute barred unless it can be saved by s. 44(12) of the Act.

42Because Ms. Argue failed to comply with the notice provision, to defeat the summary judgment motion, she must prove that there is a genuine issue requiring trial with regard to both elements of s. 44(12) – namely, the plaintiff must provide sufficient evidence to show genuine issues regarding both a reasonable excuse for the failure to notify and a lack of prejudice to the Municipality’s defence resulting from the delay.⁸

43The burden of proving a “reasonable excuse” for the delay in giving notice to the Municipality falls on the plaintiff.⁹

B. Does the Plaintiff Have a Reasonable Excuse?

Does the Plaintiff Have a Reasonable Excuse?

44Counsel agreed that the applicable test in determining whether the plaintiff has a reasonable excuse for her failure notify the Township of Tay was articulated by the Ontario Court of Appeal in Crinson v. Toronto, where the Court considered “whether, in all the circumstances of the case, it was reasonable...not to give notice until four months after the fact”.¹⁰

45In our case, the applicable test is whether in all the circumstances of the case, it was reasonable for Ms. Argue not to give notice until March 26, 2009, approximately two years after the accident.

46When considering whether a failure to give notice is reasonable, the Court of Appeal in Crinson considered the seriousness of the injury, whether surgery was required, the duration of the plaintiffs stay in hospital, the nature and amount of medications he was taking, the subsequent therapy he required and the impact it had on his career and his mental health. The Court also considered the plaintiff’s lack of knowledge that any notice was required.¹¹

47The focus of the Court’s analysis was on the physical and mental abilities of the plaintiff, although it did consider the plaintiff’s lack of awareness of the notice. The Court of Appeal’s decision 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.¹²

48Ignorance of statutory time limits is not a reasonable excuse for non compliance with those limits.¹³

49I find there is no genuine issue requiring a trial on the issue of reasonable excuse. Ms. Argue was almost two years late in providing notice to the Township of Tay. Her own evidence is clear that on the date of the accident, April 5, 2007, 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.

50Unlike the plaintiff in Crinson, Ms. Argue did not fracture any bones. She did not require surgery. She was discharged from the hospital on the same day as the accident. Her injuries were soft tissue injuries. She was able to return to work within two to three weeks. She never suffered from depression as a result of her accident. Yet despite the fact that her injuries were significantly less serious than those sustained by the plaintiff in Crinson, Ms. Argue delayed almost six times longer than that plaintiff before notifying the Township of Tay.

51The length of delay is another consideration when examining reasonable excuse. While there is no explicit rule stating that a delay of a certain length will always be unreasonable, there is no legal authority to support the proposition that a two year delay in providing notice is reasonable.¹⁴

52Ms. Argue’s excuse for extensive delay is that she had no experience with lawsuits, did not know about the notice period, did not know the Municipality could be liable and was focused on her recovery. However, Ms. Argue was aware that the court system existed and that people could bring claims to recover damages for physical injuries. She believed that the road was in a state of disrepair and that is was the Township of Tay’s obligation to maintain it. Nevertheless she took no further steps to investigate any potential claim. She 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.

53The reasonable excuse provision of s. 44(12) of the Act would be rendered meaningless if all that a plaintiff needed to do was deliver an affidavit stating she was not aware of the notice period and was not experienced in litigation. Further, most plaintiffs would likely not be aware of the notice period until they consulted with a lawyer and failure to comply with the notice provision until counsel was retained would always be excusable. This is not the intent of the legislation. In Delahaye v. City of Toronto Justice Lauwers stated:

The absence of prejudice to the City (to take the plaintiffs case at its best) does not permit the Court to either dispense with the notice period, or to elongate it to two years.¹⁵

54I also acknowledge that there should be a “broad and liberal interpretation” of “reasonable excuse” in the phrase “reasonable excuse for the want or the insufficiency of the notice” see Crinson para. 20. I have considered all of the circumstances of this case presented on behalf of both plaintiff and defence.

55Applying the considerations set out in Crinson, on a broad and liberal interpretation, I find the plaintiff Ms. Argue has not adduced evidence showing that there are circumstances that give rise to reasonable excuse for a two year delay in notifying the Township of Tay.

56Plaintiff’s counsel also raised the question of discoverability. He submitted that until Ms. Argue consulted with a lawyer in March 2009, she was not aware that the Township could be liable for lack of maintenance of Elliott Sideroad. She further believed that she was “at fault” for the accident. Section 44(12) of the Act was enacted to import into the limitation period the discoverability principle.¹⁶ The Court of Appeal explained the discoverability principle was “designed to avoid the injustice of precluding an action or claim before the plaintiff is in a position to commence proceedings”.¹⁷

57I find the discoverability principle has no application to this case. Ms. Argue exercised no due diligence from the date of the accident until the time that she consulted counsel in March 2009. She conducted no investigation. She made no complaint to the Township of Tay. She did not request a copy of any motor vehicle accident report. She only consulted with a lawyer in March 2009 because of her concern that her accident benefits might be running out. She conducted no reasonable diligence in pursuit of her claim. In fact, she took no steps to see if she had any claim at all until she went to see her lawyer. By that point in time almost two years had passed since the date of the accident. I find that on the date of the accident she knew that she had been injured, believed the road conditions caused her injury, and presumed the Township was responsible for road maintenance. There was nothing preventing her either physically or mentally to notify the Township of Tay and/or to consult with her counsel. No reasonable excuse has been presented by Ms. Argue to account for the delay in notifying the Township of Tay.

C. Is the Township of Tay Prejudiced by the Delay?

Is the Township of Tay Prejudiced by the Delay?

58I find that there is no genuine issue requiring a trial with respect to the prejudice sustained by Ms. Argue’s delay in notification. Initially, there is a presumption that the Township of Tay has suffered prejudice purely due to plaintiff’s failure to comply with the notice requirements. The plaintiff must overcome that presumption with evidence establishing the absence of any prejudice.¹⁸ It can be overcome if evidence shows other sources of information about the circumstances. See Fremeau v. Toronto (City).¹⁹

59To establish the absence of prejudice, the plaintiff might adduce evidence that:

The City had taken steps to investigate the accident in spite of not having notice from the plaintiff, or by timely photographs of the scene having been taken by the plaintiff or by his having obtained the name of a witness to the accident.²⁰

60Where notice has not been provided within ten days, a Municipality is presumed to have been prejudiced. That presumption can be overcome by evidence establishing the absence of prejudice.²¹

61The purpose of s. 44 of the Municipal Act is to ensure that a Municipality has a timely opportunity to investigate the place and circumstances of the accident.²²

62The Township of Tay argues that there is a presumption that the delay has prejudiced its defence which has not been rebutted by evidence from the plaintiff.

63For the following reasons, I agree. I find that the Township of Tay was prejudiced by the delay in notification by Ms. Argue.

64Ms. Argue proffered no evidence that the Township of Tay took any steps to investigate the accident in 2007 despite the lack of notice. The Township of Tay provided the evidence of Mr. Ritchie that no investigation was undertaken prior to receiving notice on March 26, 2009. I find the Township of Tay was prejudiced by the late notice as it prevented the Township of Tay from conducting a timely investigation.

65Because of the lack of timely investigation, the Township of Tay does not have any photographs or measurements of the road conditions in April 2007. Similarly, Ms. Argue has no photographs or measurements showing the road surface at the time of her accident and is not aware of any witnesses in possession of that type of photograph. Ms. Argue has no idea of the size of the pot hole which she believes caused her to lose control of her car. There is no evidence regarding the size or location of pot holes at the time of her accident. The absence of this evidence prejudices the Township as it cannot now adduce the evidence necessary to prove compliance with the Minimum Maintenance Standards for pot hole repair.

66Further, the condition of Elliott Sideroad changed materially between the time of the accident in April 2007 and the time notice was provided in March 2009. Because Elliott Sideroad 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 roads surface has prejudiced the Township of Tay in its defence.

67Finally, the Township of Tay lost the opportunity to interview witnesses, including the first responders to the accident scene, while their memories were fresh. Ontario Courts recognize that this loss constitutes prejudice. Ms. Argue has not provided evidence to mitigate this prejudice as the only witness statements in her possession were taken two to three years after the accident and not contemporaneously with the accident. She has no evidence that the recollection of any of the fire fighters, (other than her husband), ambulance personnel or police officers, would have been as clear in March 2009 as they were in April 2007.

68The evidence of Mr. Ritchie was that the Elliott Sideroad was given a surface treatment in 2007 after the plaintiff’s accident, as part of the Township of Tay’s five year road capital program. I accept the evidence of Mr. Ritchie that the Township of Tay did not attend the scene of the accident in April 2007 to investigate. I accept his evidence that in 2007 the Township’s practice was to inspect the location of any alleged accident within a few days of the receipt of written notice from an injured party. The Township of Tay would search for and preserve records, take statements from witnesses and area residents and attend at the accident site to observe, document and photograph the road conditions. At the time of the accident, Elliott Sideroad was a gravel road that was maintained using a grader which redistributed the gravel and levelled or smoothed the road surface. The material change of the Elliott Sideroad occurred about a month after Ms. Argue’s accident.

69I accept Mr. Ritchie’s evidence that the Township kept records of all complaints made to the Public Works Department for one year. By the time the Township of Tay received notice of Ms. Argue’s intent to make a claim, any records of complaints regarding Elliott Sideroad were destroyed.

70Further, I accept Mr. Ritchie’s evidence that one of the volunteer fire fighters was hired by the Public Works Department as an operator/labourer in August 2007. By the time the Township of Tay was notified of the action in 2009, he could not remember details regarding the road conditions at the time of the accident. If he had been interviewed within ten days of the accident, he would likely have remembered details regarding the road condition and the weather which he no longer recalls.

71It was the plaintiff’s evidence that she did not interview any of the fire fighters who attended the scene of her accident, other than her husband. She does not know what they would have remembered or forgotten about her accident by March 26, 2009. She has not confirmed whether the police officers or ambulance attendant’s recollections were still as good by March 2009, as it was in April 2007.

72In all of these circumstances, I find that no other evidence showing the condition of the location of Ms. Argue’s accident in April 2007 is available to the Township of Tay. I find that the Township of Tay has been prejudiced in its defence of this action. I find that the requirement of s. 44(12) that the Township of Tay not be prejudiced in its defence by the late notice has not been met by Ms. Argue.

CONCLUSION

CONCLUSION

73I have found that Ms. Argue has not given the required notice mandated by s. 44(10) of the Act. Further, I am not persuaded by Ms. Argue that there is a reasonable excuse for the want or the insufficiency of the notice and that the Township of Tay is not prejudiced in its defence.

74I return to Rule 20.04 and ask this question: Can the full appreciation of the evidence and issues required to make dispositive findings be achieved by way of summary judgment motion in this case? The answer is yes. There are no genuine issues requiring a trial. I am not satisfied that the full appreciation test can only be achieved by way of a trial. On this motion record, dispositive findings are attainable. For these reasons, the Township of Tay’s motion for summary judgment is hereby granted and Ms. Argue’s action is dismissed. The parties agree that the issue of costs be determined by way of written submissions. Within 14 days of these reasons, counsel are to serve and file with the trial co-ordinator at Barrie a concise statement as to costs, no longer than two pages, Costs Outline, Bill of Costs and copy of any supporting authorities.

DiTOMASO J.

Released: August 10, 2012

Footnotes

1. 1Rule 20.04(2) and (2.1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194
2. 2Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at paras. 40-44
3. 3Combined Air Mechanical Services Inc. v. Flesch, supra at paras. 50-51
4. 4Combined Air Mechanical Services Inc., supra at para. 52
5. 5Combined Air Mechanical Services Inc., supra at para. 55
6. 6Combined Air Mechanical Services Inc., supra at para. 56
7. 7Rules of Civil Procedure, R.R.O. 1990, reg. 194, Rule 20.02(2)
8. 8Kors v. Toronto, [2006] O.J. 2636 at para. 13 ; Zogjani v. City of Toronto and the Toronto Transit Commission, 2011 ONSC 1147 (SCJ)
9. 9Delahaye v. City of Toronto, 2011 ONSC 5031 (SCJ)
10. 10Crinson v. Toronto, 2010 ONCA 44 at para. 23(CA)
11. 11Crinson, supra, at paras. 29, 38
12. 12Kors, supra, at para. 6(c) ; Langille v. Toronto, 2010 ONSC 443 at paras. 35-37
13. 13Harzuz Ltd. v. Regional Municipality of Peel, 2006 15140 at para. 60 (ON SCJ)
14. 14Delahaye v. City of Toronto, supra paras.37-38
15. 15Delahaye v. City of Toronto, supra para.31
16. 16Blair v. Barrie (City), [2006] O.J. 4997, at para. 7
17. 17Zapfe v. Varns, 2003 52159 (ON CA), [2003] O.J. 2856, para. 22
18. 18Langille v. Toronto, supra, para. 15 ; Zogjani v. Toronto, Supra, para. 18
19. 19Fremeau v. City of Toronto and Toronto Transit Commission [2009] O.J. 2391
20. 20Langille v. Toronto, supra, para. 22
21. 21Fremeau v. Toronto (City) supra, at para. 30
22. 22Zogjani v. City of Toronto, supra, at para. 16```