COURT FILE NO.: CV-15-541746
DATE: 20210219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter J. Psaila
Plaintiff/Responding Party
– and –
Nick Kapsalis and John Kapsalis and City of Toronto
Defendants/Moving Party
Joseph Campisi Jr., for the Plaintiff/Responding Party
Natalie Kolos and Edona Vila, for the Defendant/Moving Party, City of Toronto
HEARD: August 19, 2020
REASONS FOR DECISION
VELLA J.
[1] This is a motion for summary judgment brought by the City of Toronto (the “City”) seeking dismissal of this action (the “Action”), as against it, on the basis that the Plaintiff failed to provide notice as required under s. 42(6) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the “Act”) in a timely way.
[2] The Action arises from a motor vehicle accident that took place at an intersection in the City on March 28, 2015. The City did not receive notice under the Act until April 2, 2018.
[3] The remaining defendants, Nick Kapsalis and John Kapsalis (the “Kapsalis Defendants”), represented by counsel, did not appear at the motion, and take no position on this motion.
Issue
[4] There are two primary issues before this Court:
(a) Is this matter appropriate for a summary disposition under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194?
(b) Has the Plaintiff, Peter J. Psaila (“Psaila”), demonstrated that he has a reasonable excuse for failing to provide notice in a timely manner and that the City suffered no prejudice as a result of the delay within the meaning of s. 42(8) of the Act.
[5] If the Action against the City is not dismissed, should paragraph 6 of the City’s Statement of Defence and Counterclaim be struck
Is This Matter Suitable for Disposition by way of Summary Judgment?
[6] The City brought this motion for summary judgment and originally raised both an alleged expiry of the applicable limitation period and breach of the statutory notice period. However, at the outset of this motion, the City advised that it was only pursuing the statutory notice ground in support of its request for summary dismissal of the action.
[7] Under r. 20, if the Court is satisfied that there is no genuine issue requiring a trial with respect to all or part of the claim or defence, r. 20.04(2) mandates that the Court “shall” grant summary judgment.
[8] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”), at para. 45, the Supreme Court of Canada confirmed that summary judgment is “a significant alternative model of adjudication.” Rule 20 provides judges with fact-finding powers (i.e. the power to weigh evidence, evaluate credibility, and draw inferences) to resolve claims without the need to have a trial.
[9] The focus is not on what further evidence could be adduced at trial, but rather, on whether a trial is required. A trial will not be required when the summary judgment 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”: Hryniak, at para. 49.
[10] The determination of a motion for summary judgment involves a two-step approach: the judge should first determine whether there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers. If there is no genuine issue requiring a trial, summary judgment must be granted. Second, if there appears to be a genuine issue requiring a trial, the judge should then determine whether “the need for a trial can be avoided” by using the fact-finding powers to weigh evidence, evaluate credibility, and draw inferences: Hryniak, at paras. 66-68.
[11] On a motion for summary judgment, the moving party must establish a prima facie case that there is no genuine issue requiring a trial. The onus then shifts to the responding party. It is not sufficient for the responding party to simply rely on allegations in their pleadings. The responding party must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. The responding party must put their “best foot forward” and the court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, aff’d 2014 ONCA 878.
[12] Summary judgment is appropriate where what is at issue is the application of a statutory provision to facts that are not in issue. In this case, neither credibility nor material facts are in issue. Other courts have recognized the suitability of this procedure in these types of statutory notice cases: see, for example, Hennes v. City of Brampton, 2014 ONSC 1116, at para. 30; Argue v. Tay (Township), 2012 ONSC 4622, at paras. 27-28, aff’d 2013 ONCA 247 (“Argue”); and Patrick v. The Corporation of the Municipality of Southwest Middlesex et al., 2017 ONSC 17.
[13] I have analysed the evidence and the legal requirements of ss. 42(6) and 42(8) of the Act, within the framework of r. 20 established in Hryniak, and I have concluded that this matter is appropriate for determination as a motion for summary judgment. Neither party suggests that this is not the suitable forum.
Chronology of Events relevant to the Notice Issue
[14] On March 28, 2015, Psaila was in a motor vehicle accident. Nick Kapsalis and John Kapsalis were the driver and owner, respectively, of the vehicle that collided with Psaila’s vehicle.
[15] The motor vehicle accident occurred near the median that divides the north and south lanes of O’Connor Drive, just southwest of the intersection of Cranborne Avenue and Bartley Drive (the “Intersection”). Psaila and Nick Kapsalis were each attempting a turn: Psaila from O’Connor Drive and Nick Kapsalis from Cranborne Avenue. The Psaila vehicle hit the left rear end of the Kapsalis vehicle (“Kapsalis Jeep”).
[16] Psaila retained a lawyer and provided the Kapsalis Defendants notice of a claim on June 29, 2015.
[17] Psaila received the complete police file in relation to the accident on August 10, 2015. The police file included statements given by Psaila and the Kapsalis Defendants giving their competing versions of the accident.
[18] Psaila started the Action against the Kapsalis Defendants by Statement of Claim dated December 2, 2015. Psaila’s allegations of negligence are very broadly pleaded.
[19] The Kapsalis Defendants filed a Statement of Defence dated March 21, 2016, and served a Jury Notice. In the Statement of Defence, the Kapsalis Defendants pleaded, inter alia, that Psaila’s negligence caused or contributed to the accident. The Kapsalis Defendants pleaded, in part, that Psaila had the “last clear chance to avoid the collision” and “failed to keep a proper lookout or pay adequate attention to the road”.
[20] The Kapsalis Defendants provided photographs taken at the scene of the accident before the examinations for discovery were conducted.
[21] Examinations for discovery of Psaila and of Nick Kapsalis, occurred on January 17, 2017, and February 27, 2017, respectively.
[22] After the examinations for discovery of Psaila and Nick Kapsalis were completed, Psaila required a litigation guardian, by reason of incapacity. His son, Matthew, was appointed as his litigation guardian by order dated November 30, 2017.
[23] On February 1, 2018, the Kapsalis Defendants served an expert engineering accident reconstruction report blaming Psaila for the accident (the “Wilson Report”). It claims, in material part, that Psaila had sufficient time to avoid the accident thus putting his perception of time into issue. Psaila was represented by a litigation guardian at the time the Wilson Report was served.
[24] Pursuant to the litigation guardian’s instructions, Mr. Young was retained as an expert engineer, to respond to the Wilson Report on or about March 22, 2018.
[25] On March 29, 2018, Mr. Young advised Psaila’s lawyer to put the City on notice, “in an abundance of caution”, as there might be a potential negligence claim. At the time of this advice, Mr. Young had not yet commenced his investigation of the Intersection but suspected that there may be an intersection design issue and “potentially an urgency” to put the City on notice.
[26] On April 2, 2018, Psaila’s litigation guardian provided the City with notice under the Act.
[27] The City was added as a defendant to this action by order dated March 29, 2019, without prejudice to the City’s rights to assert any defence it may have; including a defence alleging the expiry of a limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B and expiry of the notice provision reflected in the Act.
[28] Psaila issued an Amended Statement of Claim dated April 11, 2019, adding, inter alia, the City as a Defendant, and put into issue the design of the Intersection as a cause or contributory cause of the accident.
[29] Psaila is no longer under incapacity, and the litigation guardian was discharged by order dated August 12, 2019.
[30] The City filed a Statement of Claim and Crossclaim dated August 14, 2019.
[31] The Kapsalis Defendants filed an Amended Statement of Defence and Crossclaim against the City dated August 29, 2019.
Analysis and Decision
[32] Subsections 42(6) and 42(8) of the Act set out the statutory framework for purposes of this motion:
42(6) 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 city clerk
42(8) 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 City is not prejudiced in its defence.
[33] While s. 42(6) sets out a very short ten-day period for the provision of notice, s. 42(8) sets out a two-part, conjunctive, test for relief where the notice period is not complied with. As stated, the injury, in this case, occurred on March 28, 2015.
[34] The burden is on the Plaintiff to prove that he has satisfied this two-part test: see Argue, at para. 43.
[35] The counterpart subsections regarding this ten-day notice period for other municipalities in Ontario are found under ss. 44(10) and (12) of the Municipal Act, 2001, S.O. 2001, c. 25. These provisions also replicate the same two-part test for relief from compliance with the notice period under the Act. Accordingly, case law developed under the Municipal Act is of assistance when interpreting ss. 42(6) and (8) of the Act.
[36] The statutory notice provision operates much like a limitation period defence insofar as a finding of non-compliance results in a bar to a plaintiff’s proceeding as against the City as opposed to extinguishing the cause of action. This has led courts to import the concept of reasonable discoverability when determining whether a plaintiff has a “reasonable excuse” justifying their delayed provision of notice: Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721 (“Azzeh”). The doctrine of reasonable discoverability has no application in considering when the notice period begins to run because the statute provides for the notice period to commence from a fixed event; namely, the occurrence of the injury: Bourassa v. Temiskaming Shores (City), 2016 ONSC 1211 (“Bourassa”), at para. 54; Crinson v. Toronto (City), 2010 ONCA 44, 100 O.R. (3d) 366; and Seif v. Toronto (City), 2015 ONCA 321, 125 O.R. (3d) 481 (“Sief”).
[37] The inability to have discovered sufficient facts to have reasonably discovered a potential claim against the City, despite due diligence, constitutes a reasonable excuse: Castronovo v. Sunnybrook & Women’s College Health Sciences Centre, 2008 1174 (Ont. S.C.J.), aff’d. 2008 ONCA 655 (“Castronovo”); White v. Mannen, 2011 ONSC 1058 (Ont. S.C.J.); Bourassa.
[38] The Act imposes a very short time requirement on the plaintiff to provide the City with notice of a potential claim against it. However, the imposition of a short notice period is within the prerogative of the Legislature and supports its public policy decision: Delahaye v. City of Toronto, 2011 ONSC 5031, at paras. 33, 39. That said, pursuant to Azzeh, the words “reasonable excuse” are to be given a liberal interpretation because the plaintiff has the additional burden of demonstrating that the delay has not caused prejudice to the City: see also, Bourassa; Patrick v. Middlesex (County), 2018 ONSC 7408 (“Patrick (2018)”).
[39] In Azzeh, at footnote 4, the Court of Appeal added that in interpreting the statute, there is a presumption of reasonableness. It is to be presumed that the Legislature does not intend unjust or inequitable results to flow from its enactments, and therefore judicial interpretations should be adopted which avoid such results. These statutory interpretation principles were particularly apt to the factual circumstances in Azzeh because the plaintiff was a minor at the time that he sustained injury. The Court held, in part, that the ten-day notice period (under the Municipal Act) did not commence until the minor had a litigation guardian, or alternatively, that he had a reasonable excuse for not bringing the action until he had a litigation guardian.
(a) Has Psaila provided a reasonable excuse justifying his delay in providing notice to the City?
[40] Psaila was represented by a litigation guardian for the time period during which the City claims that notice ought to have been provided. Under r. 7.05, the litigation guardian had the authority and responsibility to instruct Psaila’s lawyer in the conduct of the proceeding. Psaila has also been represented by the same law firm since the beginning of the Action.
[41] In Azzeh, at para. 43, the Court of Appeal affirmed that when “determining what constitutes a reasonable excuse, the words should be given their plain and ordinary meaning”. It further stated that in considering whether the plaintiff has met his onus in showing that his delay was reasonable, the court must consider the plaintiff’s legal capacity, the length of the delay, and any explanation given for the delay. The Court also held, at para. 78, that the length of the delay affects both the reasonableness of the excuse and the issue of prejudice to the City.
[42] An analysis of the “reasonable excuse” defence will be informed, in part, by when a plaintiff was in possession of the material facts upon which potential liability against a city or municipality may be grounded. The plaintiff must show that he exercised due diligence in pursuing these facts and did not sit on his rights.
[43] Particularly apt to this case, a plaintiff need not be certain of his ability to prove his claim against the City to trigger the obligation to provide notice. A plaintiff need only have sufficient facts upon which to ground a potential claim. This is because all that is required under the Act is that written notice be provided. Requiring a higher degree of knowledge would frustrate the purpose of the notice period: see Bourassa, at paras. 61-62. Subject to the applicable limitation period in the Limitations Act, a plaintiff will still have time to investigate the viability of the cause of action: see Kowal v. Shyiak, 2012 ONCA 512, at paras. 18-19.
[44] The City takes the position that Psaila has offered no reason for the delay, much less a reasonable explanation, in his evidence on this motion. It submits that the absence of an affidavit from the litigation guardian setting out the reasonable excuse is fatal to Psaila’s position because the impugned delay occurred under the litigation guardian’s watch. Therefore, the City submits that the Action should be dismissed on this ground alone.
[45] In the alternative, the City submits that Psaila had knowledge of the material facts by the time he had knowledge that the Kapsalis Defendants were blaming him for the accident in their Statement of Defence, had the statements the Kapsalis Defendants gave to the police and had the information provided in the discovery process. Psaila knew or ought to have known that these allegations and statements put his perception and reaction time, together with his line of visibility in the Intersection, into issue in the Action.
[46] The City does not take issue with Psaila’s temporary state of incapacity. For purposes of this motion, the City takes the position that Psaila’s litigation guardian was in possession of the materials facts underpinning the claim against the City upon his appointment on March 18, 2017. Therefore, according to the City, the notice period expired on March 28, 2017.
[47] Psaila takes the position that he could not reasonably have discovered his cause of action against the City until he retained his own engineering expert, and it was reasonable for him not to have retained his own expert until after receiving the Wilson Report. This is because, before he received the Wilson Report, he thought this was a straightforward accident. He could not have reasonably known that an alleged inherent defect in the design of the Intersection might have hampered his perception time or ability to avoid the accident.
[48] In support of his position, Psaila filed an affidavit, as did his engineering expert, Mr. Young, and a solicitor from the law firm representing him.
[49] Cross examinations were also conducted.
[50] The Wilson Report provided an accident reconstruction analysis which suggested that Psaila caused the accident on the basis that, under various scenarios including estimates of the rate of speed at which the respective parties were travelling at the point of impact, Psaila ought to have had enough time to avoid hitting the Kapsalis Jeep.
[51] This conclusion mirrors some of the allegations pleaded by the Kapsalis Defendants in their originally filed Statement of Defence.
[52] Notably, as admitted by Mr. Young on cross examination, the Wilson Report does not address the possibility that a design defect with the Intersection may have hampered Psaila’s reaction time.
[53] As Psaila points to the delivery of the Wilson Report as triggering his decision to retain Mr. Young, it is reasonable to consider what material facts the Wilson Report relied upon in formulating the findings and opinions contained therein.
[54] The Wilson Report indicates that its findings and conclusions relied upon the following sources of information:
(a) The police file;
(b) Photographs of the scene of the accident taken by the Kapsalis Defendants on the day of the accident;
(c) The evidence of Psaila and Nick Kapsalis from their respective examinations for discovery;
(d) A site examination of the Intersection on November 24, 2017.
[55] Psaila and his lawyer were already in possession of all these sources of information by February 27, 2017 (prior to the appointment of Psaila’s litigation guardian). Furthermore, the evidence supports the fact that the Intersection has remained unchanged since the accident, and indeed since its re-design in 2003, so an inspection of it by an engineer or other professional could have been held at any time following the accident.
[56] As well, Psaila was put on notice of the Kapsalis Defendants’ position that he was to blame for the accident when the original Statement of Defence was filed on March 21, 2016. There was nothing stopping Psaila, or his litigation guardian acting on his behalf, from hiring an expert to attend at the Intersection and conduct a site examination prior to the Kapsalis Defendants’ decision to do so.
[57] The only explanation offered by Psaila for delaying the provision of notice is that he had not considered the possibility of a design flaw until after he hired Mr. Young to respond to the Wilson Report, and was alerted to this possibility by Mr. Young. It was only when Mr. Young recommended that he immediately give notice to the City that notice was provided.
[58] Mr. Young has since delivered a report, on September 3, 2018, wherein he offers his opinion that there were design defects with the Intersection. Mr. Young opines that these defects resulted in inadequate visibility and inadequate distancing that poses a hazard requiring immediate corrective measures to prohibit left-hand turns.
[59] There is no question that once Psaila hired Mr. Young and was advised to put the City on notice of a potential claim, Psaila acted promptly and within ten days from Mr. Young’s advice to do so.
[60] However, does waiting to hire an expert engineer (who then discovered a potential design flaw) until after the Kapsalis Defendants produced an accident reconstruction report constitute a reasonable excuse justifying delay under s. 42(8) of the Act in the factual context of this case?
[61] Psaila relies heavily on Stephenson v. Cheng, 2019 ONSC 543. In that case, the court found that the delay of approximately ten months from the date of the accident was reasonable because it took that long for the plaintiff to reasonably discover the facts upon which negligence was based. In Stephenson, the plaintiff had no memory of the collision. The plaintiff retained an investigator to attend at the scene about three weeks after the accident. The investigator reported that all the streetlights were functioning. In addition, prior to retaining the investigator, the plaintiff tried diligently to obtain the relevant police file. It was not until he received the police file, nearly one year later, that he discovered that two of the four streetlights at the intersection of the accident had not been working. They had been replaced the same day as the investigator had attended, but before the investigator had arrived. This material fact gave rise to the claim against the municipality and notice was given within 20 days after receipt of the police file. Furthermore, in Stephenson, no prejudice to the municipality had been established.
[62] In Stephenson, the court held that the plaintiff had diligently pursued the facts by immediately requesting and pursuing the police file and hiring an investigator to conduct a site inspection. As the plaintiff had no memory of the collision, he could not have known that two of the four streetlights had been out, potentially causing or contributing to the accident, until he received the police file.
[63] Based on Stephenson and other cases, the key to my analysis is could Psaila have reasonably discovered the facts sufficient to give rise to a potential claim against the City before having retained his own engineering expert to respond to the Wilson Report? The standard to be applied is that of a “reasonably prudent person in pursuing the facts”: Castronovo, at para. 58.
[64] Based on the evidentiary record before me, bearing in mind the arbitrarily short nature of the notice period and the Court of Appeal’s directive in Azzeh, at para. 75, that plaintiffs should have the benefit of “a broad and liberal interpretation” of “reasonable excuse”, I find that Psaila had knowledge of sufficient facts to underpin a potential claim that there may have been a visibility related design defect with the Intersection before the Kapsalis Defendants hired an engineering expert. By the time the litigation guardian was appointed, he was in possession of the same facts that prompted the Kapsalis Defendants to hire an expert engineer to prepare an accident reconstruction report, and he had notice of the Kapsalis Defendants’ allegations blaming Psaila.
[65] More specifically, Psaila, his litigation guardian, and his counsel knew the location of the accident, knew that the City had the responsibility for designing and maintaining the Intersection, and knew that the Kapsalis Defendants were blaming Psaila for not avoiding the collision when he allegedly had sufficient time to avoid it. The latter allegation is premised on the assumption that the design and layout of the Intersection permitted a reasonably prudent driver to have spotted the Kapsalis Jeep turning and to take defensive action to avoid a collision. This allegation, supported by the statements of the Kapsalis Defendants contained in the police file, and from Nick Kapsalis’ examination for discovery, should have led a reasonably prudent plaintiff to investigate the Intersection and put the City on notice of a potential claim promptly.
[66] Based on a generous and liberal reading of the Act, Psaila and his litigation guardian were in possession of sufficient material facts to warrant hiring an expert to inspect the Intersection, whether as part of his own accident reconstruction report or to explore the defence allegations impugning his reaction time and questioning his ability to have avoided the accident, by the time the examinations for discovery were completed.
[67] In the alternative, these facts, together with the explicit identification of the issue of Psaila’s ability to have avoided the collision raised in the Wilson Report, ought reasonably to have immediately raised a flag for Psaila resulting in the issuance of notice to the City within ten days from the receipt of the Wilson Report at the very latest. The provision of notice is not an onerous one, and does not commit a plaintiff to following through immediately with a lawsuit against the City (subject to any limitation period concerns) if, upon further investigation, there are no viable grounds to pursue an action. Again, the degree of knowledge required to trigger a (delayed) notice to the City, for purposes of the reasonable excuse branch of the relief from timely notice test, is not as high as would be required under the statutory discoverability requirement in s. 5(1) of the Limitations Act (for triggering the commencement of a limitation period). As stated earlier, the notice requirement under s. 42(6) of the Act commences from a fixed event: the occurrence of the injury – not the discovery of a cause of action. To impose the same degree of knowledge under the reasonable excuse relief test, as observed in Bourassa, at paras. 61-62, would have the undesirable consequence of frustrating the purpose of the notice period requirement.
[68] Psaila waited over ten months after the appointment of the litigation guardian, and approximately two months after receipt of the Wilson Report, to provide notice to the City. He has not provided a reasonable excuse for the delay in the evidence. The fact that neither he, his litigation guardian, nor his counsel turned their respective minds to the possibility that the City may bear some responsibility for this accident does not constitute a reasonable excuse within the meaning of s. 42(8) of the Act in the factual circumstances of this case: see Azzeh, at paras. 51-52.
[69] Given the prior facts that were within the knowledge of the Plaintiff, combined with the actual notice of the Wilson Report, I find that waiting for the preliminary advice of Mr. Young was not a reasonable excuse within the meaning of the Act. This view is enhanced by the fact that Mr. Young immediately told Psaila to put the City on notice without having undertaken any investigation whatsoever.
(b) Has the City suffered prejudice by reason of the delay?
[70] In light of my finding that Psaila did not have a reasonable excuse justifying the delay, there is no need to consider the prejudice issue. However, as it was fully argued, I will provide my analysis of this issue.
[71] Where notice has not been provided within ten days from the injury, the plaintiff must adduce some evidence to show that the City has not suffered prejudice: see Stephenson, at para. 34; Patrick (2018).
[72] In the event the plaintiff does so, then the City can adduce evidence of actual prejudice.
[73] As stated by the Court of Appeal in Seif, at paras. 55-56:
While the onus is on the plaintiff to meet both branches of s. 42(8) [of the Act], that section does not use language that creates a presumption of prejudice resulting from the plaintiff’s failure to give timely notice. As a result, whether or not prejudice results from the failure to give timely notice is a fact-based inquiry: Zogjani v. Toronto (City), 2011 ONSC 1147, … at para. 18.
At the same time, in Carmichael v. Edmonton (City), 1933 37 (SCC), [1933] S.C.R. 650, the Supreme Court of Canada observed that, where the injured party does not provide notice within ten days, an “inherent probability of prejudice [arises] from the bare fact of the accident and the lack of notice”. The Court noted that “against this inherent probability of prejudice arising from the bare circumstances, there might, in many cases, be offered by a plaintiff important evidence that there was no prejudice”: at p. 655. A plaintiff can address the “inherent probability of prejudice” with evidence showing other sources of information about the accident’s circumstances…. [A] plaintiff might adduce evidence that “the City had taken steps to investigate the scene in spite of not having notice from the plaintiff, or by timely photographs of the scene having been taken by the plaintiff or by [the plaintiff] having obtained the name of a witness to the accident”. [Citations omitted].
[74] Psaila relies on the following factors, supported by the evidentiary record, to show that the City has not suffered prejudice from the lapse of time:
(a) The Intersection and its design have remained unchanged since 2003;
(b) The City has chosen not to sue the engineering firm (“Giffels”) that it contracted with to do the design work related to the Intersection;
(c) The City declined to disclose the names of potential witnesses who were employees of Giffels, nor made any effort to locate the former employees for their personal knowledge with respect to the design-related documentation; and
(d) From the time of the accident on March 28, 2015, through to the time that notice was given on April 2, 2018, the City had bylaws that prohibited the destruction of documents. So, if the design documents were in existence on the date of the accident, they ought to have been maintained until July 2018. Stephen Adams is the Manager, Design and Construction Transportation Infrastructure for the City of Toronto. At the material time, Mr. Adams was the City engineer assigned to the 2003 re-design of the Intersection. Mr. Adams deposed that:
(i) the project was completed in July 2003;
(ii) the documentation retention period of 15 years has been in place since 2012;
(iii) Mr. Adams does not believe that the retention bylaw was violated; and
(iv) adding 15 years to the available completion date of the project would result in a time frame of July 2018.
[75] Accordingly, there is evidence in the record that supports the position that either the documents were already destroyed or lost before the date of the accident or were destroyed after the 15 year retention period had passed in July 2018, which was after notice to the City had been given.
[76] Furthermore, Psaila submits that the City could have contacted the former president or former employees of Giffels (which has since been sold to another entity) who had direct involvement in the 2003 Intersection project, in order to put in direct affidavit evidence on this motion. The Plaintiff asked that I draw an adverse inference from the City’s failure to provide this evidence.
[77] For its part, the City has adduced some evidence of prejudice owing to the lack of timely notice. Despite efforts outlined in the record, the relevant records relating to the design of the Intersection have not been located. Mr. Adams, on behalf of the City, deposed that the likely destruction of the records, due to the passage of time, has caused the following prejudice to the City that will hamper its defence of the Action:
(a) The records would have included the rationale behind the decisions that were made relating to the design of the Intersection;
(b) Without the signed contract documents with Giffels, the City is prejudiced in its ability to advance a breach of contract claim against Giffels for contribution and indemnity;
(c) Without the signed contracts with Giffels, which would include insurance particulars, the City is prejudiced in its ability to seek coverage against Giffels’ insurer in respect of the claim; and
(d) Without these records, the City is unable to identify all relevant witnesses who were involved in the design of the Intersection.
[78] However, the City has not adduced evidence as to when it is likely the documents in question were actually destroyed aside from speculation. Rather, there is evidence in the record that supports the City’s contention that it is not possible to determine which retention period applied. The documentation retention period before 2012 is not known, and therefore the City has been unable to determine the date that these records were eligible for disposition.
[79] This gap in the City’s evidence is relevant to this analysis, given it focused its submissions on the period from in or around the completion of the Plaintiff’s examination for discovery of Nick Kapsalis to the date of notice as the period of delay. This period is between approximately February 27, 2017 and April 2, 2018.
[80] Based on the evidence, I find that the second branch of the conjunctive test regarding prejudice raises a genuine issue for trial.
Conclusion
[81] As stated above, Psaila did not meet the first part of the two-part conjunctive statutory test set out in s. 42(8) of the Act. This issue is not a genuine one requiring a trial.
[82] The motion for summary judgment is granted, and the Action is dismissed as against only the City. Accordingly, I need not rule on Psaila’s motion to strike para. 6 of the City’s Statement of Defence and Counterclaim.
[83] I urge the parties to resolve the issue of costs and to advise me. However, if unable to reach an agreement within ten days from the date of this judgment, Psaila and the City are to provide me with their respective costs outlines and written submissions (the latter not to exceed three pages double spaced), with the City’s due on March 5, 2021 and Psaila’s responding materials due on March 12, 2021.
Justice S. Vella
Released: February 19, 2021
COURT FILE NO.: CV-15-541746
DATE: 20210219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter J. Psaila
Plaintiff/Responding Party
– and –
Nick Kapsalis and John Kapsalis
and City of Toronto
Defendants/Moving Party
REASONS FOR JUDGMENT
Justice S. Vella
Released: February 19, 2021