COURT FILE NO.: 12-54499
DATE: 2018/08/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Russell Robinson, Plaintiff
AND:
Ministry of Transportation of Ontario, Defendant
BEFORE: Justice Nathalie Champagne
COUNSEL: Frank McNally, Counsel for the Plaintiff
Sean McGarry, Counsel for the Defendant
HEARD: June 12, 2018
Amended ENDORSEMENT
Introduction
[1] On June 3, 2010 the plaintiff Russell Robinson was driving his vehicle which was pulling a trailer on Highway 417 (“the 417”) near exit 51. He alleges that his vehicle hit a large unpaved bump in the road causing the trailer to unhitch and strike his vehicle, which caused his vehicle to slide sideways and rollover three times into the ditch on the side of the road. He claims that he sustained serious injuries as a result.
[2] The plaintiff issued a claim against the defendant, the Ministry of Transportation of Ontario, on May 25, 2012 which was served on the defendant in December 2012, some 30 months after the accident. He did not provide notice of the accident to the defendant within 10 days of its occurrence as required by s. 33(4) of the Public Transportation and Highway Improvement Act R.S.O 1990, c. P. 50. It is this failure to provide notice that gives rise to the defendant’s summary judgment motion.
Background and Evidence
[3] The undisputed facts are that the plaintiff was involved in an accident on June 3, 2010 which resulted in the dispatch of an Ontario Provincial Police officer to the scene as well as an ambulance. He was taken to the Glengarry Memorial Hospital. The plaintiff’s uncontroverted evidence by way of affidavit sworn April 6, 2017 is that he was treated for soft tissue injuries to his neck, back and shoulders. He does not indicate how long he was in the hospital but states that he was treated by several specialists and was eventually referred to a neurologist in early 2011 who recommended physiotherapy.
[4] The only disputed fact on this motion is the cause of the accident that gave rise to this litigation. The plaintiff states that it was as a result of driving over a large unpaved bump in the road. He did not take a photograph of the bump and did not advise the defendant about the accident for over 30 months which the defendant contends deprived it of the opportunity to investigate the accident to determine whether it had any responsibility. The roadway was repaved in September 2010.
[5] The plaintiff’s evidence is that he had a second motor vehicle accident in August 2011 and filed a claim for statutory accident benefits for both his June 2010 accident and his August 2011 accident. He states that on April 10, 2012, he consulted a lawyer regarding the accidents; he had never previously consulted with counsel or received legal advice regarding the accident prior to that date. His evidence is that prior to April 10, 2012 he was unaware of his obligation to provide the defendant with notice.
[6] The plaintiff admits that he did not personally provide the defendant with notice of the accident and claim or potential claim for the following reasons:
(a) Following the accident his immediate and ongoing concern was obtaining “medical treatment for [his] MVA injuries, and [attending] numerous medical appointments”. “He states he received “many treatments” for several years following the MVA;
(b) He didn’t know the identity of the defendant or that it was responsible for road maintenance at the location of the accident;
(c) He believed that the constable who attended at the scene would provide notice of the motor vehicle accident to the party responsible for the road maintenance of the 417; and
(d) He was not aware of his obligation to provide notice until he met with his counsel on April 10, 2012.
[7] The plaintiff did not in fact provide the defendant with notice of the claim until he served the claim on December 2012 notwithstanding the fact that he became aware of his obligation to provide said notice on April 10, 2012. The plaintiff gives no explanation for not providing notice within 10 days of April 10, 2012.
The Issues
Whether the plaintiff has a reasonable excuse for failing to provide the defendant with notice as required by s. 33(4) of the Public Transportation and Highway Improvement Act.
If the plaintiff has a reasonable excuse for failing to provide notice, whether the defendant has been prejudiced by the failure to give notice.
Whether the issue of when the notice period began to run is a genuine issue for trial.
The defendant’s position
[8] The defendant’s position is that the plaintiff has not provided a reasonable excuse for failing to provide notice. It contends that the failure to provide notice caused it prejudice as the road was repaved three months after the accident depriving it of the opportunity to investigate and properly defend the action.
[9] The defendant contends that the notice period commenced sometime between the date of the accident and April 10, 2012. It argues that the plaintiff’s injuries were discoverable on the date of the accident as the plaintiff knew at that time that he was injured, he knew he required medical treatment by “several specialists”, he knew the cause of his injury and could and should have made inquiries as to who was responsible for maintaining the roadway but he failed to do so. The defendant argues that at the very latest by April 10, 2012, the plaintiff knew he had a cause of action and became aware of his obligation to give the defendant notice and failed to do so without a reasonable excuse. The defendant contends that the issue of prejudice therefore does not arise. The defendant argues that in the circumstance, the action is statute-barred and there is no genuine issue for trial.
The plaintiff’s position
[10] The plaintiff introduced the issue of discoverability at the motion. It was not pleaded in his responding material or factum and no notice of this defence to the motion was provided to the defendant. The defendant agreed to proceed nonetheless.
[11] The plaintiff contends that his injuries were not discoverable until well past the 10 day notice period required on the Public Transportation and Highway Improvement Act and that the issue of discoverability makes this matter unsuitable for determination by way of summary judgement motion.
[12] The plaintiff’s position is that he has a reasonable excuse for failing to provide the notice required prior to September 2010 (when the roadway was repaved), and that no prejudice to the defendant exists because the roadway was repaved before his obligations to give notice arose. He contends that he failed to provide the required notice because he didn’t know he was obligated to do so, didn’t know who was responsible for maintenance of the roadway and assumed the officer at the scene advised the party responsible. He also explains that he did not provide notice because he was busy following treatment for years. He argues that the court must give the concept of reasonable excuse “broad and liberal interpretation” and contends that the evidence supports a finding of reasonable excuse.
Decision
[13] For the reasons that follow, I grant the defendant summary judgment.
Analysis
Summary Judgment
[14] I reject the plaintiff’s argument that this matter is not suitable for determination by way of summary judgment. Rule 20.04(2) (a) of the Rules of Civil Procedure allows a matter to be adjudicated by way of summary judgment motion where there is no genuine issue for trial. Hryniak v. Mauldin, 2014, SCC 7, [2014] 1 S.C.R. 87 is the leading case on summary judgment and provides, at para. 49, that:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
Further the Court in Hryniak states, at para. 57, that:
On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute.
[15] In Argue v. Tay (Township) 2012 ONSC 4622, at para. 24. DiTomaso J. makes the point that the party responding to the summary judgment motion is required to put his/her “best foot forward” and that the court is entitled to assume that the motion record contains all the evidence which the parties would present at trial. The record before me is brief and largely uncontentious and provides me with the undisputed evidence of the timing of the accident, the date that the plaintiff made claims to his accident benefits insurer, the date he consulted counsel, and the date he ultimately gave the defendant notice as well as the reasons for delay in providing notice on the basis of that evidence. I am satisfied on the evidence before me, that I can render a decision by way of summary judgment.
Discoverability
[16] S.5(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, sets out that a claim is discovered on the earlier of ,
a) the day on which the person with the claim first knew,
i) that the injury, loss or damage had occurred,
ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
iii) that the act or omission was that of the person against whom the claim is made, and
iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[17] Counsel argues that the plaintiff’s claim was only discoverable in early 2011 at the earliest when he was referred to a neurologist. The evidence provides no detail as to the plaintiff’s physical or mental health and does not support this contention. Even if it did, the plaintiff concedes that by April 10, 2012 he knew of his requirement to give the defendant notice. The fact that by his own admission, the plaintiff knew on April 10, 2012 that he had a claim and knew of his obligation to give the defendant notice makes discoverability a non-issue for trial.
Notice Requirement and Reasonable Excuse
[18] There is no question that the Ministry of Transportation is responsible for the repair and maintenance of the 417 pursuant to s. 33(1) of the Public Transportation and Highway Improvement Act R.S.O. 1990, c. P.50. Under s.33 (2) of the Act it is liable for damages arising from its failure to effect such maintenance and repair.
[19] S. 33(4) mandates that:
“No action shall be brought for the recovery of the damages mentioned in subsection (2) unless notice in writing of the claim and of the injury complained of, including the date, time and location of the happening of the injury, has been served upon or sent by registered letter to the Minister within ten days after the happening of the injury, but the failure to give or the insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or insufficiency of the notice and that the Crown is not thereby prejudiced in its defence.”
[20] The legislation contains similar language to s. 44 - (10) and s. 44(12) of the Municipal Act, 2001 S. O. c.25, which requires notice of a claim to be given within 10 days unless there is a reasonable excuse. I draw this to the parties’ attention as the majority of the case law on this issue arises from the Municipal Act.
[21] The undisputed facts are that the plaintiff was involved in a single vehicle accident on the 417 on June 3, 2010 and did not give the defendant notice until December 2012 when he served his statement of claim. He argues that the claim was not discoverable until wither early 2011, August 2011 or April 10, 2012 when he retained counsel. He acknowledges that on April 10, 2012 he also became aware that he should have given the defendant notice of the claim. He explains that the reason for the delay in giving notice prior to that date, is that he didn’t know he had to give notice, or to whom it had to be given, he was busy following treatment, he didn’t realize the extent of his injuries until he was referred to a neurologist, Dr. Suranyi in early 2011 and he thought that the police officer on scene gave notice. These assertions are not explained in any detail. He gives no explanation for failing to provide notice within 10 days after April 10, 2012.
[22] The case law sets out that reasonable excuse should be given a “broad and liberal interpretation” (Cena v. Oakville (Town) (2009), 56 M.P.L.R (4th) 11 (Ont. S.C., at para. 15). The cases of Crinson v. Toronto (City) 2010 ONCA 44, Seif v. Toronto (City), 2015 ONCA 321, and Argue v. Tay (Township) provide some guidance as to what constitutes a reasonable excuse.
[23] In Crinson the plaintiff gave the municipality notice four and a half months after a slip and fall that gave rise to the litigation. The evidence showed that he had had surgery on his ankle, remained in hospital for four days and was heavily sedated and on narcotic pain medication for two weeks following his release from the hospital which according to expert evidence severely impaired his state of mind. He was in a cast for 12 weeks, had intensive physical therapy and was unable to work. He became depressed, anxious and confused. These facts, combined with the fact that he didn’t know he had to give notice and that he gave notice immediately upon becoming aware of his obligation, led the Court of Appeal to conclude that the plaintiff met the test for reasonable excuse. The court made the point that a plaintiff need not be incapacitated to prove reasonable excuse.
[24] Lack of awareness on its own does not constitute a reasonable excuse (Argue, at para. 47), but added to another extenuating circumstance such as a lack of knowledge of the severity of the injury, may constitute a reasonable excuse (Crinson at para. 38; Seif, at para.29).
[25] In Seif, the plaintiff gave the municipality notice four months after she was injured. She did not initially intend to sue the municipality as she did not think her injuries were serious. She only decided to make a claim when she learned that she would have ongoing pain and would face limitations for the rest of her life due to the injuries. As soon as this came to her attention, the plaintiff retained counsel who gave the municipality notice the day following his consultation with her. The Court of Appeal agreed that the plaintiff had established a “reasonable excuse”.
[26] In Argue Di Tomaso J. dismissed the plaintiff’s claim on a summary judgment motion as he did not find that the plaintiff’s explanation for failing to provide notice for almost two years, amounted to a reasonable excuse. The plaintiff in that case hit a pothole with her vehicle, left the roadway and rolled over into the ditch. She was taken to the hospital and treated for soft tissue injuries and went to see a lawyer almost two years later to commence an action. She did not provide the defendant township with written notice of the potential claim against it. She argued that the defendant had notice of her potential claim by virtue of the fire department’s attendance at the scene. The judge rejected that argument noting that no legal authority was presented to the court in support of the proposition that constructive notice pre-empts the requirement to give written notice. Di Tomaso J. concluded that the plaintiff did not have a reasonable excuse having regard to the test set out in Crinson. I accept and apply his analysis set out from paragraphs 46 to 49 of Argue as follows:
[46] “When 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.”
[47] “The 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.”
[48] “Ignorance of statutory time limits is not a reasonable excuse for noncompliance with those limits.”
[49] “I 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.”
[27] The facts in Argue are similar to the facts in the present case. Mr. Robinson knew he was injured, believed his injury to be caused by an unpaved bump in the road, gave no evidence that his injury prevented him from investigating his claim and failed to give notice for an extended period of time, in Mr. Robinson’s case more than seven months after he became aware of his obligation to give notice. While I accept that he may have been unaware of his obligation to give notice and did not know who to sue, he made no effort to ascertain such information until April 10, 2012. Unlike the plaintiffs in Crinson and Seif, he did not give the defendants notice immediately upon consulting and retaining counsel. While reasonable excuse must be given broad and liberal interpretation, to find reasonable excuse in circumstances where the plaintiff gave notice seven months after he became aware of his obligation to do so would effectively hollow the legislation and its purpose. On the facts before me, like Di Tomaso J. in Argue, I do not find that the plaintiff had a reasonable excuse.
Prejudice
[28] Having found that the plaintiff did not provide a reasonable excuse for failing to provide the defendant with the required notice, I need not consider whether the defendant was prejudiced, but I am guided by the recommendation of the Court of Appeal in Seif (para. 31) to do so.
[29] The plaintiff argues that his client’s claim was not discoverable until after Sept 2010 when the 417 was repaved. He argues therefore that there is no prejudice to the defendant as it had lost the opportunity to investigate the accident in any event, once the repaving was done.
[30] I do not accept that argument. The fact of the repaving and inability of the defendant to investigate and defend the action is evidence of prejudice. In addition, the failure to give notice gives rise to a presumption of prejudice (Argue, para. 60) that the plaintiff must rebut. These facts are similar to those in Argue where the court found that a defendant was prejudiced as a result of the plaintiff’s failure to give notice for 2 years, after the repair of a pothole that gave rise to an accident.
[31] The Court in Argue reasoned at para. 59 to 60, that such prejudice can be “over-come” if the evidence shows other sources of information with respect to the circumstances of the accident. In the case before me the plaintiff has adduced no such evidence. I therefore conclude that both the presumption of prejudice that arose when the plaintiff failed to give required notice, and the actual prejudice caused by the repaving of the road, have not been rebutted by the plaintiff.
Conclusion
[32] On the facts before me, I find that the plaintiff failed to give a reasonable excuse for not providing the defendant with notice, particularly after he became aware of his obligation to do so after April 10, 2012. I find that the failure to provide notice gave rise to both a presumption of prejudice as well as actual prejudice which the plaintiff failed to rebut.
[33] In the circumstances, in my view there is no genuine issue for trial and the defendant is granted summary judgment dismissing the plaintiff’s claim.
[34] If the parties are unable to agree on costs, they may submit written submissions limited to 3 pages, within 30 days.
Justice Nathalie Champagne
Date: 2018/08/09
COURT FILE NO.: 12-54499
DATE: 2018/08/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Russell Robinson, Plaintiff
AND:
Ministry of Transportation of Ontario, Defendant
BEFORE: Justice Nathalie Champagne
COUNSEL: Frank McNally, Counsel for the Plaintiff
Dan Rabinowitz, Counsel for the Defendant
HEARD: June 12, 2018
ENDORSEMENT
Justice N. Champagne
Date: 2018/08/09