BARRIE COURT FILE NO.: CV-16-1221
DATE: 20190121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALAN STEPHENSON
Plaintiff
– and –
WEI BO CHENG and THE CORPORATION OF THE CITY OF BARRIE
Defendants
S. Lucenti and L. Pukitis, for the Plaintiff
S. Ronan, for the Defendants
HEARD: December 21, 2018
REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION
CASULLO J.:
INTRODUCTION
[1] The City of Barrie (“City”) seeks to have the Plaintiff’s action against it dismissed by way of summary judgment. The City submits that the Plaintiff failed to provide notice of his claim within ten days of his accident as required by s. 44(10) of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”).
[2] The Plaintiff argues against summary dismissal, relying on the saving provisions set out in s. 44(12) of the Act.
BACKGROUND
[3] The Plaintiff was struck while riding his bicycle in Barrie the evening of July 29, 2015. He sued both the driver of the car that struck him and the City. As against the City, the Plaintiff claims that the intersection where he was injured was in a state of non-repair due to insufficient or malfunctioning lights that caused or contributed to the collision.
[4] Ian Furlong (“Furlong”), a personal injury lawyer, met with the Plaintiff at Sunnybrook Hospital on July 31, 2015. The Plaintiff had no memory of the collision. At this juncture, Furlong was retained only with respect to the Plaintiff’s accident benefits claim, although within the month, he was retained in respect of a potential tort claim as well.
[5] On August 10, 2015, Furlong was advised by family members of the Plaintiff that there may have been lights out at the intersection where the collision occurred. Furlong hired a private investigator to identify potential defendants, obtain a copy of the police file, including the Motor Vehicle Accident Report (“MVAR”), and investigate whether there were any street lights out at the intersection.
[6] Given that there were charges laid against the Plaintiff, at that point Barrie Police could only release the MVAR, which it did on August 24, 2015. The MVAR does not indicate any issues with the lighting at the subject intersection. Further, when the investigator retained by Furlong attended the intersection on August 24, 2015, he noted that all the street lights appeared to be functioning.
[7] From August 25, 2015 to March 7, 2016, the investigator made a total of five requests of Barrie Police for their complete police file. The complete file was produced to the investigator on May 25, 2016.
[8] The Barrie Police file included an Executive Summary Report, a 245-page document containing a synopsis of the collision, a detailed description of the collision scene, vehicle details, weather details, scene analysis, witness information, collision analysis and conclusion. Accompanying the written report are 140 colour photographs, including sixteen pictures of the intersection taken the night of the collision.
[9] The Executive Summary Report indicates, at p.3:
The intersection is artificially lighted by lighting on 4 separate lamp posts in either corner. At the time of the incident both the northwest and southeast lamps were burnt out. The intersection was dark with all of the lights on any given day and was especially dark with only half the lighting working.
And at p.12:
The police indicate that the evidence shows that lighting did play a factor in the driver’s visibility at the time of the collision. The southeast and northwest lights were burnt out at the time of the incident and the intersection was dark. The cyclist was wearing dark clothing at the time of the collision and mixed with the poor intersection lighting, he would have been hard to see.
[10] The investigator forwarded the complete police file to Furlong on June 13, 2016. On June 15, 2016, Furlong put the City of Barrie on notice of a potential claim.
[11] During its investigation, the City’s independent adjusters determined that the bulbs at the intersection were changed on August 13, 2015 as part of a retrofit program. It was later learned that the bulbs which were removed were discarded and there was no way to retrieve them.
[12] Engineers have been retained by both sides to provide an opinion as to whether it was feasible to convert the LED fixtures back to the high-pressure sodium fixtures that were in place at the time of the collision, in order to conduct a nighttime visibility assessment. The Plaintiff’s expert opined that this was possible despite the loss of the original fixtures and would cost between $4,000 to $5,000 dollars. The City’s expert states that because the original fixtures were unavailable, there is no way of replicating the lighting at the scene.
ISSUE
[13] Is the Plaintiff’s failure to comply with the notice provisions set out in the Act a genuine issue requiring a trial?
POSITION OF THE PARTIES
[14] The City submits there is no genuine issue requiring a trial. The Plaintiff did not provide notice to the City until June 15, 2016, almost one year after the Plaintiff was injured, thereby failing to comply with s. 44(10) of the Act. The City states that because there is no reasonable excuse for his failure to provide notice of his claim, the Plaintiff is not entitled to relief under s. 44(12) of the Act. The City further states that even if there was a reasonable excuse, it has been prejudiced by late notice in its defence to the claim.
[15] The Plaintiff submits there are genuine issues requiring a trial. With respect to notice, the Plaintiff states that before it received the Executive Report Summary, confirming two light standards were out at the intersection, there was no basis upon which to ground a claim against the City. Further, whether or not the City was prejudiced by its failure to give reasonable notice is a genuine issue requiring a trial.
[16] The burden is on the Plaintiff to establish a reasonable excuse, and that the City is not prejudiced.
THE NOTICE REQUIREMENT
[17] The Act’s notice requirement is set out in s. 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, including the date, time and location of the occurrence, has been served upon or sent by registered mail to:
(a) the clerk of the municipality; or
(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.
The saving provision is set out in s. 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.
TEST FOR SUMMARY JUDGMENT
[18] Rule 20.01(3) of the Rules of Civil Procedure, RRO 1990, Reg. 194, provides that a defendant may move for summary judgment dismissing all or part of a plaintiff’s claim.
[19] Rule 20.04 mandates that a court shall grant summary judgment if satisfied that there is no genuine issue for trial.
[20] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 provides guidance with respect to summary judgment motions at paras. 49 and 50:
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.
These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
The Court continued, at para. 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). 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.
[21] In these passages, the Supreme Court of Canada has articulated a road map for judges to follow in summary judgment motions. First, without using the expanded fact-finding powers, a judge is to determine if there is a genuine issue requiring a trial. If there is no genuine issue requiring a trial, summary judgment is granted.
[22] If the judge finds there is a genuine issue requiring a trial, then she must next determine whether the need for a trial can be avoided by using the new powers: to weigh the evidence, evaluate the credibility of a deponent, draw any reasonable inference from the evidence [Rule 20.04(2.1)], and hear oral evidence [Rule 20.04(2.2)].
[23] The motion judge may exercise these powers unless it is in the interest of justice that the powers be exercised at trial. For example, if there are claims against other parties which will move forward to trial, then it may not be in the interest of justice to grant summary judgment against a particular defendant. This will avoid duplicative proceedings or inconsistent findings of fact.
ANALYSIS
(a) Does the Plaintiff Have a Reasonable Excuse?
[24] The Plaintiff was injured on July 29, 2015. The deadline to put the City on notice was August 8, 2015.
[25] On July 31, 2015 the Plaintiff retained Furlong to represent him solely with respect to his accident benefits claim. The Plaintiff had no memory of the collision at this first meeting.
[26] On August 10, 2015, family members of the Plaintiff, who were not at the scene, told Furlong there may have been lights out at the intersection where the collision occurred. Furlong agreed to investigate a potential tort action and retained an investigator further to this on August 13, 2015.
[27] The investigator attended at the intersection on August 24, 2015, and thereafter reported to Furlong that the lights were in working condition.
[28] It was not until June 13, 2016 that Furlong received evidence, by way of the Executive Summary contained in the Barrie Police file, that there were two lights out at the intersection the night the Plaintiff was injured. On June 15, 2016, Furlong put the City on notice of a potential claim.
[29] The City urged this court to find that the information about “some lights possibly being out”, as relayed the Plaintiff’s family members on August 10, 2015, was sufficient to warrant putting the City on notice. In support of this the City referenced Johnson v. Studley, 2014 ONSC 1732, where Justice Perell stated at para. 61:
For the limitation period to begin to run, it is enough for the plaintiff to have prima facie grounds to infer that the defendant cause him or her harm, and certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement.
[30] However, as this court held in Blair v. Barrie (City) [2006] O.J. No. 4997, quoting the Court of Appeal’s decision in Zapfe v. Barnes [2005] O.J. No. 2856, citing Aguonie v. Galion Sold Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 at 170, when determining discoverability “(t)he discovery of a tortfeasor involves more than the identity of one who may be liable. It involves the discovery of his or her acts or omissions, which constitute liability.”
[31] I find that there is a genuine issue requiring a trial with respect to whether the Plaintiff had a reasonable excuse for not putting the City on notice within the legislated ten days. The evidence before me was that the bulbs were replaced by the City on August 13, 2015, before the investigator attended at the intersection to determine whether the lights were in working. In an odd coincidence, the investigator was retained the same day the bulbs were being replaced. I do not find there was any untoward delay in either Furlong’s retention of the investigator, or the investigator’s attendance at the scene eleven days later. Regrettably, by the time he attended, the lights were working.
[32] Having determined that there is a genuine issue requiring a trial with respect to reasonable excuse, I turn now to step two of the summary judgment process as set out above: whether the need for trial on this issue can be avoided utilizing the new powers under 2120.04(2.1) and (2.2).
[33] In this instance these new powers can and should be exercised. I find that it was not until Barrie Police released its complete file, containing the Executive Summary Report, that the City’s acts or omissions were discoverable. Efforts to obtain this information continued from August 2015 to May 2016. Once the information came to light, the City was put on notice. This establishes the Plaintiff’s reasonable excuse.
(b) Is the City of Barrie Prejudiced by the Delay?
[34] The purpose of s. 44 of the Act is to ensure a municipality has an opportunity to investigate, in a timely manner, the circumstances of the claim against it. Where notice has not been provided there is a presumption of prejudice. This presumption can be rebutted by evidence from the Plaintiff.
[35] The City alleges it has been prejudiced by the lack of notice. The street lights were changed within weeks of the collision. It has lost the opportunity to examine and determine why the lights were out on July 29, 2015. The City retained an expert to assess the feasibility of the street lights being re-fitted with high pressure sodium lights in order to conduct a nighttime visibility assessment at the collision scene. The expert concluded that the reconstruction of the lighting, as it existed at the time of the collision, could not be validated.
[36] The Plaintiff also retained an expert to determine what would be required to conduct a comprehensive visibility assessment. The Plaintiff’s expert opined that if the fixtures were converted back to high-pressure sodium fixtures of the same wattage, a comprehensive visibility assessment could be carried out. This expert provided the name of company prepared to complete the conversion, at an estimated cost of $4,000 to $5,000.
[37] This is not an instance in which there is a dearth of information that could be of assistance to the City. The Executive Summary Report specifically notes that the intersection was dark, and especially dark at the time of the collision given that two of the four light standards were not working. In addition, there are witness statements confirming the intersection was not well illuminated. And, as noted above, there are a number of pictures accurately depicting the intersection taken the night of the collision.
[38] In the circumstances, I find that whether the City is prejudiced from the Plaintiff’s delay in notification is a genuine issue requiring a trial. I am not, however, confident that employing the expanded powers will allow me to resolve the issue of prejudice in a fair and just manner.
[39] Accordingly, the City’s motion for summary judgment is dismissed.
COSTS
[40] If the parties are unable to reach agreement as to costs, I will entertain brief written submissions not exceeding three pages exclusive of attachments (Bill of Costs, Costs Outline, and authorities, if any). The Plaintiff shall file within twenty days of the release of this decision. The City will then have a further ten days to file. There will be no reply submissions absent leave of the court.
CASULLO J.
Released: January 21, 2019