Superior Court of Justice - Ontario

Court File No.: CV-10-302-00
Date: 2013/JULY/10

RE: Nikisha Grant, Plaintiff

AND:
The Corporation of the City of Kingston and Queen’s University, Defendants

Before: The Honourable Mr. Justice J. M. Johnston

Counsel:
Counsel, for the Plaintiff, Edward V. Bergeron

Counsel, for the Defendants, Kristin Muszynski

Heard: July 5, 2013

RULING ON MOTION

[1] This Motion for Leave to Appeal to Divisional Court was heard on Friday, July 5, 2013.

[2] The moving party is the Defendant, City of Kingston, who seeks an Order granting leave to appeal a decision of Justice McMunagle dated November 27, 2012, wherein he dismissed Kingston’s Summary Judgment Motion.

[3] The action arises out of an alleged slip and fall accident that took place on Arch Street in the City of Kingston on February 6, 2009. The Plaintiff, Ms. Grant, alleged that she slipped and fell on municipal sidewalk located in an area within the Queen’s University campus.

[4] The Plaintiff alleged in her Statement of Claim that Kingston and/or Queen’s University are liable for the Plaintiff’s injuries. The City of Kingston received notice of the Plaintiff’s Claim for the first time on March 1, 2010, more than twelve months outside the ten day notice period prescribed by Section 44(10) of the Municipal Act.

[5] The City of Kingston commenced a motion for Summary Judgment. The motion argued the Plaintiff’s claim against the City of Kingston was statute barred, due to the Plaintiff’s failure to give notice in accordance with Section 44(10) of the Municipal Act.

[6] It is acknowledged that the Plaintiff did not provide notice within ten days of the injury.

[7] The Plaintiff argues under Section 44(12) of the Municipal Act that there was a reasonable excuse for the late notice and that the municipality was not prejudiced in its defence.

[8] On the Motion for Summary Judgment, the Defendant, City of Kingston, took the position that the Plaintiff cannot receive the benefit of Section 44(12) of the Municipal Act as she had no reasonable excuse for her failure to give the required notice and, in any event, the Plaintiff’s failure to give the required notice resulted in prejudice to the City of Kingston.

[9] Justice McMunagle, in written reasons released November 27, 2012, concluded ultimately that “this Court finds that there are two genuine issues requiring a trial and a trial on those issues is so ordered. Based on the evidentiary record before it, this Court is simply unable to conclude that it has a ‘full appreciation of the issues in dispute’ without the benefit of the examination in-chief and, more importantly, a full examination in-chief and full cross-examination”. The Court ordered trial of an issue to determine:

(i) if the City of Kingston has suffered meaningful prejudice by virtue of the Plaintiff’s late delivery of her Notice of Claim on February 25, 2010;

(ii) secondly, to determine whether the misapprehension as to the ownership of a sidewalk in question constitutes a reasonable excuse for the delay of the Notice by Ms. Grant beyond the ten-day notice period as set out in Section 44(10) of the Municipal Act.

Leave to Appeal

[10] Rule 62.02(4) of the Rules of Civil Procedure provides:

“leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.”

[11] The Rules specify that leave to appeal shall be granted if either the test in Rule 62.02(4)(a) or (b) is met. It is not necessary to satisfy both tests, in order for leave to be granted.

The Requirement of a Conflicting Decision:

[12] The Defendant argues there are decisions by other judges upon the issue of whether the Defendant suffered prejudice and upon the issue of whether or not the Plaintiff had a reasonable excuse for failure to provide notice to the City of Kingston within ten days.

Analysis:

Whether there exists conflicting case law on the issue of prejudice to the Municipality:

[13] The Defendant argues that Justice McMunagle’s decision on this point “was that Kingston has not been ‘meaningfully’ prejudiced by the delay. Although His Honour accepted the uncontradicted and unchallenged evidence that Kingston had lost the ability to conduct its standard investigation and that Kingston’s employees, as a result of the delay, were no longer able to recall conditions on the date of the accident by the time notice was given, His Honour held that this prejudice might not be ‘meaningful’, as changing weather conditions would have changed the state of the location of the alleged slip and fall even within the ten day notice period.”

[14] The Defendant City of Kingston argues that Justice McMunagle’s ruling on Kingston’s Summary Judgment Motion “runs squarely against the ruling in Zogjani v. Toronto (City) 2011 Carswell ONT 1413, Defendant’s Book of Authorities Tab 10. The difference between the two decisions is more than simply an exercise in discretion arising from different fact scenarios but can only arise from a difference in the principle being applied.”

[15] Further the Defendant argues “in this case, Justice McMunagle placed the changing weather conditions above all other conditions, finding that since the weather had changed prior to the expiration of the ten-day notice period, there was not evidence of ‘meaningful’ prejudice to Kingston, despite accepting the impact of the nearly thirteen month delay on the memories of people interviewed by Kingston in its investigation. In Zogjani, the Court considered that prejudice could still be made out on the basis of fading memories, even if weather conditions had changed within the ten days of the alleged slip and fall.”

[16] Counsel for the Defendant argues there are three decisions on this very issue that differ from Justice McMunagle’s conclusion, that a trial of an issue is required. Counsel relies upon the decisions of Zogjani, Langille v. Toronto (City) 2010 ONSC 43, Defendant Book of Authorities Tab 11 and Toms et al v. The Corporation of the Municipality of Port Hope Court File No. 60096/09 (unreported) Defendant’s Book of Authorities Tab 12.

[17] In my view, all three cases cited by the Defendant upon the issue of prejudice are distinguishable.

[18] In Zogjani, the Court faced a similar argument to the case at bar. The Plaintiff slipped and fell on snow and ice on a municipal sidewalk in the City of Toronto. The Plaintiff did not provide notice to the City of Toronto within the ten-day notice requirement in Section 44 of the Municipal Act. In consideration of Section 44(12) of the Municipal Act and, specifically the issue as to whether the City of Toronto was prejudiced by the failure to provide notice within the prescribed time, the Plaintiff argued (at paragraph 20 of the decision) that “the snow would have melted in the days immediately following the incident given the rise in temperature, even if the ten-day notice period had been met, so that there can be no practical prejudice to the City.” The Court found “this argument has factual merit.”

[19] However, the Court in Zogjani found that the City of Toronto’s argument was “more subtle, in that the City argued, if timely notice had been received, the City’s field inspector would not have lost the ability to recall the circumstances since he had patrolled the area three days before and six days after the incident. Accordingly, the Court in Zogjani had evidence from the Defendant Municipality’s representative that he specifically recalled inspecting the area where the slip and fall had occurred days before the incident and days after the incident. The City representative deposed in his Affidavit that, had the notice been given within ten days, he would have been able to recall his observations in the days immediately before and the days immediately after the incident. Zogjani does not stand for the proposition that change of weather within the ten-day prescribed notice period cannot in any circumstances impact whether or not the municipality suffered prejudice. In Zogjani there was specific evidence of inspection of the very area in question contemporaneous with the accident. In the case at bar, the Affidavit evidence of the representative of the City of Kingston, Mr. Damon Wells, is much more general. Mr. Wells did not depose in his Affidavit that he specifically investigated the area of the slip and fall immediately prior to and immediately after the accident. Justice McMunagle’s decision did not make a definitive finding as to whether there was prejudice suffered by the City of Kingston as a result of the delayed notice. Further, Justice McMunagle’s decision does not determine what impact changed weather conditions would have upon the ten-day notice requirement. Justice McMunagle concludes “this Court is simply unable to conclude that it has a ‘full appreciation of the issues in dispute’ without the benefit of an examination-in-chief and, more importantly, a full examination-in-chief and full cross-examination.”

[20] The decisions in Langill and Toms are distinguishable from the factual circumstances of the case at bar and the aforesaid facts in Zogjani. In Langill and Toms, the issue was whether the municipality suffered prejudice by the fact that its employees had no memory of the conditions at the time of the accident, by reason of the delay in receiving notice. Neither case dealt with a fact scenario where, had notice been provided within ten days, the conditions may have dramatically altered as a result of weather conditions; such that the presumed prejudice of the delay is overcome by the fact that, even if notice was given, it would not have aided the municipality in their defence. It is important to underline that Justice McMunagle did not find the City of Kingston was not prejudiced. His finding was that he was unable to make a conclusion and, therefore, trial of an issue was required.

[21] The Defendant argues that Justice McMunagle’s decision imports a new requirement for a municipality to establish that it has suffered ‘meaningful prejudice’, as opposed to prejudice. In my view, a reading of Justice McMunagle’s decision, as a whole, reveals he concluded that he was unable to decide the issue of prejudice without a trial. In Zogjani the Court used the phrase ‘practical prejudice’, Justice McMunagle used the phrase ‘material prejudice’. The issue to be determined on the motion at trial is whether the City of Kingston has suffered prejudice. The trial judge will be required to consider the Defendant’s argument that, with the passage of time, it has no ability to recall events; together with the Plaintiff’s argument the change in weather conditions within the ten-day notice period (if the judge even accepts that occurred) establishes that although there is a presumption of prejudice, no actual prejudice is, in fact, found.

[22] The Defendant also argues that at the Rule 20 Motion for Summary Judgment, the Plaintiff did not challenge the Defendant’s assertion that they suffered prejudice. I disagree. The Defendant’s evidence led at the motion was that weather conditions changed within the ten-day notice such that, even if notice had been given as required, the Defendant would not have been assisted in its case. Justice McMunagle ordered that this issue could not be determined on Affidavit evidence and must be determined at a full trial on this issue.

Conflicting Case Law on Issue of Reasonable Excuse:

[23] The Defendant argues that the decision in Toms found that the Plaintiff had not provided a reasonable excuse for late notice to the Municipality, that is, “mistake as to the identity of the proper defendant did not form the basis of a reasonable excuse for delay”.

[24] In my view, Toms is distinguishable from the case at bar. The Court, in Toms, found the Plaintiff’s failure to give the required notice did prejudice the Municipality, therefore, it was not necessary to consider whether the Plaintiff had a reasonable excuse for the failure. The Court in obiter stated “I would find that the circumstances do not amount to a reasonable excuse for the purposes of Section 44(12). The Plaintiff has not put forward any evidence that he was unable to provide the required written notice. He was not incapacitated as a result of medication nor was he physically incapacitated as to the extent that he could not give instructions to provide written notice.” (Toms at paragraph 27)

[25] Not only is the Court’s decision in Toms upon the issue of reasonable excuse obiter, the facts in Toms are distinguishable from the case at bar. In the case at bar, the Plaintiff believed that the sidewalk in question where she fell was owned by Queen’s University. It was not until a year later that it was learned, in fact, the sidewalk was owned by the City of Kingston. According to the Plaintiff, notice was not given because there was a mistake in belief as to ownership of the property. In Toms, the accident occurred on November 4, 2007. The Plaintiff was not contemplating legal action at that time, and he was unaware of the requirements in Section 44(10) of the Municipal Act, until he met with his lawyer for the first time on January 10, 2008 (two months after the accident and, in any event, beyond the ten-day notice period). On January 17, 2008, the Plaintiff’s lawyer registered a letter to the County of Northumberland notifying them of the accident. However, the lawyer was in error. In fact, notice should have been provided to the Municipality of Port Hope, not Northumberland. On March 18, 2008 (four months after the accident) the Plaintiff’s counsel served Port Hope, notifying it of the accident. Accordingly, in Toms, the error failing to comply with notice to the municipality within ten days of the accident was not, in fact, an error of identifying the proper municipality, rather, the Plaintiff was self-represented and had no intention initially of commencing legal action and was ignorant of the requirement of Section 44(10) of the Municipal Act. This is not the situation in the case at bar.

[26] For these two reasons, I find that Toms is not a conflicting decision with the case at bar on the issue of reasonable excuse for failure to provide notice. It is not necessary to deal with the issue as to whether it is “desirable that leave be granted” and given my finding there are no conflicting decisions.

[27] Next I go on to consider the second test for leave to appeal pursuant to Rule 62.02(4)(b):

Is there good reason to doubt the correctness of the Order?

[28] I agree with the Defendant that it is not necessary in order for them to succeed on this ground “to show that the decision is wrong (or even probably wrong) in order to be granted leave to appeal. It is only necessary to show that there is good reason to doubt the decision’s correctness – that the correctness of the decision is open to ‘very serious debate’ which invites appellate review.” The Defendant states that despite accepting the evidence of the City of Kingston’s employee that the City had suffered prejudice, Justice McMunagle dismissed Kingston’s Summary Judgment Motion, holding that Kingston had not established that it had suffered ‘meaningful prejudice’ as a result of the Plaintiff’s nearly thirteen months delay in giving notice. As stated earlier in this judgment, Justice McMunagle’s decision did not find that the City of Kingston did not suffer prejudice. Rather, he was unable to decide the issue and ordered a trial.

[29] Next, the Defendant argues there is good reason to doubt the correctness of Justice McMunagle’s decision specific to his wording there shall be a trial on the issue of whether the City has suffered ‘meaningful prejudice’. While I agree with the Defendant’s submission that Section 44(12) of the Municipal Act does not include a requirement that there be no ‘meaningful’ prejudice to the Municipality from the delay, only that there must be no prejudice. Further, I agree with the submission that the Municipal Act does not state that certain types of prejudice are acceptable while others are not. If there is any prejudice to a Municipality from the delay in giving notice, then Section 44(12) of the Municipal Act does not apply.

[30] Read as a whole Justice McMunagle’s decision correctly identifies the issue for the trier of fact, namely, whether or not the Municipality has suffered prejudice as a result of the delay in providing notice.

Is there a Reason to Doubt the Correctness of the Order – Reasonable Excuse:

[31] The Defendant argues there is good reason to doubt the correctness of Justice McMunagle’s decision as he improperly accepted exhibits contained in the Affidavit of the Plaintiff. The Defendant argues the exhibits are hearsay and not admissible.

[32] Reading Justice McMunagle’s decision as a whole and in considering the evidence before him at the Motion, Justice McMunagle was entitled to consider the Plaintiff’s Affidavit evidence that she initially believed (erroneously as it turns out) the accident location was on property owned by Queen’s University. Justice McMunagle did not rule upon whether this excuse by the Plaintiff was, or was not, a reasonable excuse within the meaning and definition of Section 44(10) of the Municipal Act. He simply ordered a trial with viva voce evidence. It will be for the trial judge to determine whether in the circumstances the exhibits filed in the Affidavit of the Plaintiff are or are not admissible and to consider whether they are admissible as an exception to the hearsay rule, namely, to establish the Plaintiff’s state of mind for the truth of the content of the letters.

[33] For the foregoing reasons, I find that the Defendant has failed to establish that there is “good reason to doubt the correctness of Justice McMunagle’s Order”. If I am in error on this point, I go on to consider whether the matters are of such importance that leave should be granted. The Defendant argues that any erosion or change in the statutory defence available to municipalities as set out in Section 44(10) of the Municipal Act are such that the issue is of general importance and not limited to the specific parties or specific circumstances of the case. In my view, taken at its highest, Justice McMunagle’s decision is of no general importance, in the sense that he made no specific findings. In fact, Justice McMunagle was unable to make specific finding and, for that reason, ordered a trial of an issue.

[34] I take into consideration all elements of the test for leave to appeal pursuant to Rule 62.02(4)(a) and (b). Further, I consider that the test for leave is an onerous one, as outlined in Bell Expressvu Ltd. Partnership v. Morgan, 2008 Carswell ONT 995.

[35] It is open to a motion’s judge to exercise discretion and require the issues in dispute to be made the subject of a trial with full production of evidence, examination and cross-examination. Summary Judgment may issue pursuant to Rule 20 only where the claim has “no chance of success (Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764). Further in the decision of Combined Air, the Ontario Court of Appeal provided that Summary Judgment may issue pursuant to Rule 20 where the judge is satisfied that, on the record before him, he can achieve a full appreciation of the evidence and issues that are required to make a final decision. At the end of the day, Justice McMunagle’s decision does not limit, curtail, change or re-define the statutory defence available to municipalities pursuant to Section 44(10) of the Municipal Act. Accordingly, the decision is not of such general importance that leave to appeal should be granted.

Conclusion:

[36] I dismiss the Defendant City of Kingston’s Motion for Leave to Appeal the decision of Justice McMunagle dated November 27, 2012.

Costs:

[37] If counsel cannot agree upon the issue of costs, each counsel may submit argument in writing limited to two pages. Plaintiff’s counsel shall serve and file submissions within thirty days and Defendant’s counsel shall serve and file their submissions thirty days thereafter.

The Honourable Mr. Justice J. M. Johnston

Date: July 10th, 2013