COURT FILE NO.: CV-11-156-00A1
DATE: 2014-02-19
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ricky Dale Hennes and Lillian Hennes v. The Corporation of the City of Brampton and 1407284 Ontario Ltd. c.o.b. S&S Landscaping Service
BEFORE: M. J. Donohue, J.
COUNSEL: Ava M. Hillier, for the Plaintiffs
Scott E. Hamilton, for the Defendant, The Corporation of the City of Brampton
Lisa M. Buccella, for the Defendant, 1407284 Ontario Ltd. c.o.b. S&S Landscaping Service
HEARD: February 4, 2014
E N D O R S E M E N T
BACKGROUND
[1] This long motion was brought by the City of Brampton (“City”), by way of summary judgment, for a dismissal of the plaintiffs’ claim against the City.
[2] The basis for the dismissal is the plaintiffs’ failure to serve a notice of their claim on the City within ten days after the occurrence of the injury pursuant to the Municipal Act, S.O. 2001, c. 25, s. 44(10).
[3] The injury complained of occurred on February 9, 2009.
[4] Notice was given roughly 18 months later, on August 19, 2010.
[5] The statement of claim was issued, within the two year limitation period, on January 13, 2011.
[6] The claim is for injury due to a slip and fall of snow and ice on a City sidewalk.
RULE 20 TEST
[7] The test on summary judgment motions under Rule 20 has recently been considered and expanded by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.
[8] Rule 20.04 (2.1) states that the court shall grant summary judgment if there is no genuine issue requiring a trial.
[9] Rule 20.04 states that the court shall consider the evidence submitted by the parties and weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence. The court may exercise these powers unless it is in the interest of justice for such powers to be exercised only at a trial.
[10] The Supreme Court of Canada directs that the court should first determine if there is a genuine issue requiring trial based only on the evidence before the judge, without using the new fact-finding powers: see Hryniak, at para. 66.
[11] The Supreme Court continued and stated at para. 66:
If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[12] The “interest of justice” as set out in Hryniak directs the court to consider the consequences of the motion in the context of the litigation as a whole. At para. 60 the court provides the following examples:
…if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.
REQUIREMENT NOTICE
[13] Section 44(10) of the Municipal Act prescribes that no action shall be brought for damages unless written notice is given within ten days of the occurrence of the injury.
[14] This acts as a limitation period within a limitation period as noted in the Court of Appeal’s decision of Bannon v. Thunder Bay (City) 2000 CanLII 5708 (ON CA), 2000, 48 O.R. (3d) 1, at para. 22 “…failure to comply with the section constitutes a bar to the action just as failure to commence the action within the limitation period constitutes a bar.”
EXCEPTION
[15] This issue on this motion is whether under s. 44(12) of the Municipal Act the plaintiffs have a reasonable excuse for their late notice and have shown that the municipality is not prejudiced in its defence.
[16] The burden is on the plaintiffs to establish a reasonable excuse and that the municipality is not prejudiced: see Blair v. City of Barrie, 2006 CanLII 42061 (Ont. S.C.), at para. 2.
DOES THE PLAINTIFF HAVE A REASONABLE EXCUSE?
[17] The evidence of Mr. Hennes at his examination for discovery on November 20, 2012, was that the sidewalk area was owned by the City; the City was responsible for maintaining it; and he knew this information at the time of his fall on February 9, 2009.
[18] I find that Mr. Hennes knew the City was a potential defendant on the day of his injury, February 9, 2009.
[19] Mr. Hennes’s fall is described by him as due to a large area of ice and snow on the sidewalk.
[20] I find that the he knew why the fall occurred as of the day of his injury.
[21] The plaintiff was taking a number of medications up to the time of this injury. Following the injury he was prescribed anti-inflammatories. There is no evidence to suggest that the plaintiff was incapable of giving notice in the days or even weeks or months following his injury. He worked while taking Percocet for pain control.
[22] Mr. Hennes’s evidence of his actual injury is as follows:
- On the day of injury – he had knee pain;
- The next four months – he worked four to six hours modified hours;
- February 17, 2009 – an MRI on his right knee revealed a partial tear of the MCL ligament and a tear of the medial meniscus;
- March 10, 2009 – Orthopaedic surgeon Dr. Sekyi-Otu offered arthroscopic surgery;
- May 07, 2009 – arthroscopic surgery was performed on the right knee;
- June 15, 2009 – he advised the doctor of left knee pain;
- June 30, 2009 – Dr. Sekyi-Otu suggested arthroscopic surgery to the left knee;
- January 11, 2010 – the plaintiff told his family doctor of continued left knee pain and was given a referral to a specialist;
- February 2010 – the family doctor prescribed Percocet for the severe left knee pain;
- April 1, 2010 – Dr. Sekyi-Otu offered arthroscopic surgery of the left knee;
- May 20, 2010 – Dr. Sekyi-Otu did arthroscopic surgery of the left knee;
- July 13, 2010 – Dr. Sekyi-Otu advised that the plaintiff would likely require a future total knee replacement;
- Around July 2010 – the plaintiff was consulting with a lawyer regarding financial issues. It was recommended to him that he seek advice on a personal injury claim against the city; and
- August 2010 – the plaintiff consulted with counsel who put the City on notice.
[23] It was argued by the plaintiffs’ counsel that it was not until after July 2010, that Mr. Hennes realized that he had sustained serious and permanent injury.
[24] The evidence of the plaintiff was that at no time was he aware of a notice requirement to the City and that had he been aware, he would have given notice.
[25] It may well be that on the facts of this case Mr. Hennes determined that his case was a great deal more serious after the consult of July 2010.
[26] Mr. Hennes was a 51 year old licenced electrician at the time of his injury. He had been suffering financial problems before his injury. He was only able to work four-six hours per day after the injury and actually lost his house to power of sale by July 2009.
[27] These facts support a reasonably serious claim in the first six months following his injury. In that time frame, he had one surgery and was being offered a second surgery due to the symptoms in the left knee.
LAW ON REASONABLE EXCUSE
[28] The Court of Appeal of Ontario has given further direction on how to approach the statutory test of “reasonable excuse” in Crinson v. Toronto (City), 2010 ONCA 44, 100 O.R. (3d) 366, at para. 22:
The modern jurisprudence interpreting such language has emphasized, not surprisingly, that the words "reasonable excuse" should be given their plain and ordinary meaning and that the court should consider all the circumstances of the particular case in determining whether the plaintiff has indeed established reasonable excuse.
[29] In the case of Crinson, at para. 26, the Court of Appeal noted that:
The trial judge made only one finding of fact relevant to this issue. He accepted that the appellant did not turn his mind to any action against the respondent until he was contacted by a lawyer. This was shortly before June 30, 2004, when notice was actually given. The trial judge made no adverse finding or comment about the credibility of either the appellant or his witnesses. Nor does the record suggest any basis for doing so. What remains is the uncontested evidence called by the appellant to explain why he did not give notice until June 30, 2004. The question is whether that evidence constitutes reasonable excuse, a question which is essentially legal, not factual, and is something this court is able to address. A new trial is not needed.
[30] Similarly, in this case, it is not a matter of credibility or of disputed facts. It is a legal question here which is appropriate to consider at a summary judgment stage. It does not require a trial.
ANALYSIS OF REASONABLE EXCUSE
[31] The plaintiff in this case slipped and fell extremely close to his home. He was an employed electrician, aged 51 years. He was not confused by medication.
[32] He knew at the time of injury who the property owner was and who was responsible for the maintenance. He also knew why he fell – the accumulated ice and snow.
[33] This plaintiff experienced pain on the day of injury and was unable to work fulltime because of it – there was restriction on his functioning.
[34] This plaintiff had MRI evidence of the injury as of February 17, 2009, and was offered surgery on March 10, 2009. He had surgery on May 7, 2009. By June 30, 2009, he was offered surgery on the left knee.
[35] On review of all the circumstances of the plaintiffs’ claim, it should, or ought to, have been apparent that there was a claim for damages by June 30, 2009.
[36] Mr. Hennes did not know of the requirement to give notice. He did not seek, however, advice as to his rights or obligations for over a year after a claim was apparent.
[37] Accordingly, I conclude that the plaintiffs have not established a reasonable excuse for the purposes of s. 44(12) of the Municipal Act.
PREJUDICE TO THE CITY
[38] The burden is also on the plaintiffs to establish that the City is not prejudiced by the late notice.
[39] The court, in a similar motion, of Argue v. Jay (Township), 2012 ONSC 4622, noted at para. 60:
Where 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. [Footnote omitted.]
[40] The purpose of the notice is to allow the municipality to do a timely investigation of the scene, potential witnesses and records.
[41] In this particular case, it is the defence of the City that liability rests solely with the co-defendant, S&S Landscaping Service, who were contracted to maintain the subject area.
[42] The evidence of S&S Landscaping Service at discovery is that they acknowledge the subject area is part of their contract for maintenance.
[43] All written records and logs by both the City and by S&S Landscaping Service have been produced.
[44] The co-defendant S&S Landscaping Service may well be the target defendant but the issue at hand is whether the City has been prejudiced in its defence by the notice delay of 18 months.
[45] Mr. Hennes himself did not take any timely photographs of the scene to show conditions of the sidewalk.
[46] As of the date of this motion the plaintiffs had a name of a potential witness. They had not provided the witness’ contact information or even a summary of what that witness may or may not have been able to relate that was relevant to this accident.
[47] I must find that a delay of 18 months would prejudice the City in being able to investigate potential witnesses both within the City employ (who do spot or random checks of the City) and of residents in the area.
[48] Accordingly, I conclude that the plaintiffs have not established that the City has not been prejudiced by the late notice.
ORDER
[49] I, therefore, grant summary judgment as there is no genuine issue requiring trial. The claim is dismissed as against the City, on the basis that the claim is statute barred by s. 44(10) of the Municipal Act.
COSTS
[50] If the parities cannot agree on costs, the City may make written submissions as to costs by March 5, 2014. The plaintiffs may file written submissions in response by March 19, 2014.
[51] Submissions are to be forwarded to my chambers in Brampton. They are not to exceed three pages. Bills of costs and offers may be attached to the written submissions as well as any applicable case.
M. J. Donohue, J.
DATE: February 19, 2014
COURT FILE NO.: CV-11-156-00A1
DATE: 2014-02-19
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ricky Dale Hennes and Lillian Hennes v. The Corporation of the City of Brampton and 1407284 Ontario Ltd. c.o.b. S&S Landscaping Service
BEFORE: M.J. Donohue, J.
COUNSEL: Ava Hillier, for the Plaintiffs
Scott E. Hamilton, for the Defendant, The Corporation of the City of Brampton
Lisa M. Buccella, for the Defendant, 1407284 Ontario Ltd. c.o.b. S&S Landscaping Service
ENDORSEMENT
M.J. Donohue, J.
DATE: February 19, 2014```