Court File and Parties

COURT FILE NO.: CV-19-00633352

DATE: 20210406

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBYN GRAHAM and DAVID MITCHELL

Plaintiffs

– and –

CITY OF TORONTO

Defendant

COUNSEL:

Paolo Negro, for the Plaintiffs

Edona Vila, for the Defendant

HEARD: March 26, 2021

Reasons for Judgment

papageorgiou j.

Nature of the Case

[1] The plaintiff sued the City of Toronto (the “City”) in respect of injuries she sustained when she tripped on a large, deep pothole on a pedestrian crosswalk on January 2, 2018. She tore her right shoulder rotator cuff, hurt her right elbow, right arm and right hand and strained her neck.

[2] She eventually required surgery on April 18, 2019. Her right arm was completely immobilized for six weeks following surgery and she underwent extensive physiotherapy until January 2020, which included one and a half to two hours of daily exercises and attending twice a week at a clinic for treatment. Thereafter, her left shoulder began hurting as it was also injured in the fall and she relied on at-home strengthening exercises from January 2020 to June 2020 for both shoulders. In June 2020, she began physiotherapy for her left shoulder and continued until September 2020. She continues with daily exercises daily and if she misses a day, her left shoulder hurts.

[3] The plaintiff was previously a Managing Director of Wealth Management at ETF Capital Management. In May 2019, she resigned her position because of her injuries and the time that surgery, recovery, and treatment would take which would interfere with her ability to carry out her job duties.

Nature of the Motion

[4] The City brings this motion for summary judgment on the basis that the plaintiff’s failed to comply with the prerequisite notice provision under s. 42(6) of the City of Toronto Act, 2006, S.O. 2006, c.11, Sched. A (the “Act”) which requires that a plaintiff give the City notice of the claim within ten days after the occurrence. She did not give notice until March 22, 2018, almost three months later.

[5] For the reasons that follow I am dismissing the City’s motion and granting summary judgment to the plaintiff dismissing the City’s defence that the claim is barred by virtue of the plaintiff having failed to give the required notice.

Summary judgment

[6] In accordance with r. 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Court shall grant summary judgment if:

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[7] In determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties. A judge may exercise any of the following powers under r. 20.04(2.1): (1) weighing the evidence; (2) evaluating the credibility of a deponent; and (3) drawing any reasonable inference from the evidence.

[8] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49 (“Hryniak”), succinctly explained when there will be no genuine issue for trial:

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.

[9] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party on a summary judgment motion cannot rest solely on allegations in a pleading. Each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9.

[10] Furthermore, “the motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial”: Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, 137 O.R. (3d) 570, at para. 54. Parties must present sufficiently precise evidence to show there is a genuine issue for trial: “A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial”: Diao v. Zhao, 2017 ONSC 5511, at para. 18.

[11] Finally, where a party brings a motion for summary judgment, the motion judge may grant summary judgment to the opposite party even in the absence of a cross-motion asking for summary judgment in its favour: Meridian Credit Union Ltd. v. Baig, 2016 ONCA 150, at para. 17, leave to appeal denied 2016 S.C.C.A. No. 173 (“Meridian”).

[12] I have determined that there is no genuine issue requiring a trial as to whether the claim is barred by virtue of the plaintiff’s failure to provide notice within the requisite ten-day period. I have concluded that there is no genuine issue as to whether the plaintiff has a reasonable excuse or whether the City has suffered prejudice by the delay. I have a full appreciation of the evidence and I have determined that there is sufficient evidence to fairly and justly adjudicate the issues in dispute, and a summary judgment motion is an affordable and proportionate procedure.

[13] I have determined these issues in favour of the plaintiff, even though the motion was brought by the City in accordance with Meridian above.

The Notice Provision

[14] The statutory provisions which set out the notice requirements are found in ss. 42(6) and (8) of the Act:

(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

(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.

[15] In order to overcome a failure to provide timely notice, a plaintiff must establish:

1. a reasonable excuse for the delay in providing timely notice, and

2. that the City has not been prejudiced in its defence as a result of the delay.

See Delahaye v. City of Toronto, 2011 ONSC 5031, at paras. 33, 39 (“Delahaye”).

Reasonable excuse for the delay

[16] In Crinson v. Toronto (City), 2010 ONCA 44, 100 O.R. (3d) 366 (“Crinson”), the Court of Appeal stated at para. 23 that “The question to be addressed is whether in all the circumstances of the case, it was reasonable for the [plaintiff] not to give notice until [it did].” As noted in Bourassa v. Temiskaming Shores (City), 2016 ONSC 1211, at para. 34 (“Bourassa”):

Clearly, the failure to give a defendant municipality notice within 10 days of an injury is not an absolute bar to the bringing of an action against it. S-s. 44(12) of the Municipal Act provides relief from that. The cases show that the courts will “elongate” the notice period.

[17] In Azzeh v Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at footnote 4 (“Azzeh”), the Court of Appeal stated that in interpreting the statute, there is a presumption of reasonableness. It is presumed that the Legislature does not intend unjust or inequitable results to flow from its enactments. Therefore, judicial interpretations should be consistent with this intent. Courts should give a broad and liberal interpretation of the phrase “reasonable excuse” in s. 42(6): Crinson, at para. 20.

[18] The following factors have been held to be relevant to consideration of whether a plaintiff has a reasonable excuse:

• The seriousness of the injury, whether surgery was required, the duration of the plaintiff’s stay in hospital if any, the nature and amount of medications required, the subsequent therapy required, the impact it had on the plaintiff’s career and his mental health: Crinson, at paras. 29, 38.

• Whether the plaintiff was capable of forming the intention to sue the municipality within the notice period or had a representative whose responsibility it was: Azzeh, at para. 43.

• The length of delay: Delahaye, at paras. 37-38; Azzeh, at para. 45; Argue v. Tay (Township), 2012 ONSC 4622, aff’d 2013 ONCA 247, leave to appeal refused [2013] S.C.C.A. No. 246 (“Argue”).

• Any explanation for the reason for delay: Azzeh, at para. 43.

[19] There is no issue that the plaintiff was capable of giving notice. She was able to work, and she was not taking medication that affected her mental state or capacity.

[20] The plaintiff’s explanation for waiting until March 22, 2018 to give the City notice is a combination of factors. In her affidavit she says:

I did not notify the City of Toronto (hereinafter the “City”) before that date because I had never been injured before, was dealing with work and treating my injuries, and had never dealt with anything like this before. I was also unaware of the ten-day notice period and remained undecided as to whether I wanted to make a claim until I realized that my injuries were not resolving.

[21] She waited to see her family doctor until January 11, 2018, nine days after the accident, because she did not think her injuries were “all that serious”. At that time, her doctor advised her that she had not fractured her shoulder and that it would get better with physiotherapy. She went to work the next day and did not miss any work except for physiotherapy.

[22] The plaintiff says that she had a very demanding job as a Managing Director of Wealth Management at ETF Capital Management, serving “high-net-worth” corporations and individuals. The job required her to manage a team and work from 9:00 a.m. to 6:30 p.m., Monday to Friday. After the accident she was primarily focussed on being able to properly do her job in spite of her injuries. It was only after two months of physiotherapy without improvement and continued struggle with being able to do her job that she became concerned that her injuries were more serious than she had initially been told by her family doctor. The plaintiff states in her affidavit: “I decided to submit my claim to the City on March 22, 2018 because I was still in pain after almost three months of physiotherapy treatment and was not seeing any improvement. I began to worry that my injuries were going to have a continued effect on my lifestyle.”

[23] As well, her recovery has been more arduous and lengthier than she expected and has had a significant effect on her lifestyle. She only realized later that she would not be able to ski or play golf because of her injuries.

[24] The City argues that none of these excuses, individually or collectively, are a reasonable explanation.

[25] It argues that ignorance of the notice requirement alone without additional extenuating circumstances is not a reasonable excuse: Argue, at para. 48.

[26] The City argues that in this case, the evidence demonstrates that the plaintiff knew before the expiry of the ten-day period that her injuries were serious. During the plaintiff’s discovery evidence, she said that the January 11, 2018 appointment with her doctor was “life changing”, as her family doctor advised her that her injuries were “serious”. After an initial assessment, shoulder X-rays and an ultrasound were requisitioned which revealed rotator cuff tears.

[27] Further, at discovery the plaintiff admitted that on January 11, 2018, she was counselled by her doctor to file a claim with the City. On her way home from her doctors, she walked by the Accident Location and took pictures.

[28] Further, in and around the end of January 2018, more than two weeks post-accident and a few days after being advised by her doctor to file a claim with the City, the plaintiff re-attended at the Accident Location and observed that the area had been repaired.

[29] Finally, the City argues she did not suffer from any impairment which would prevent her from putting the City on notice. She was able to return to work and the notice ultimately given to the City shows that she only had three physiotherapy sessions in total and three massage therapy sessions in total.

[30] The plaintiff refers to two cases where the Court of Appeal has held that ignorance of the statutory notice period coupled with other extenuating circumstances could constitute a reasonable excuse.

[31] In Crinson, at paras. 29-30, after a slip and fall, the plaintiff had surgery on his ankle two days later; a permanent screw inserted; was hospitalized for four days; and was sedated on narcotic medication for two weeks (which expert evidence indicated severely impacted his state of mind). He was then casted for 12 weeks and proceeded to undergo physiotherapy that occupied him for approximately 40 hours per week. He was unable to work and became depressed, anxious and confused. He did not give the City notice for approximately five months. The trial judge held that s. 44(12) required the plaintiff to prove that he had been so incapacitated during the ten-day notice period that he could not arrange notice to the City. The Court of Appeal disagreed with this narrow interpretation and instead, in considering all the circumstances, concluded at para. 38 that the plaintiff had a reasonable excuse:

Taken together, this evidence describes a man who suffered a serious injury requiring a prolonged period of rehabilitation, [page 375] during which he was deeply worried about his job, his ability to provide for his family and whether he would be able to return to the only career he had ever known. He was understandably depressed. In these circumstances, not knowing he was required to give notice to the respondent, it was reasonable that he did not so until the end of June.

[32] In Seif v. Toronto (City), 2015 ONCA 321, 125 O.R. (3d) 481 (“Seif”), the plaintiff fractured her wrist, was transported by ambulance to the hospital and her wrist was casted post-accident. Following the accident, she was quickly mobile. At the time of the accident she was trying to re-enter the workforce and despite ongoing pain, she resumed her job search and thought her fracture would heal and her life would return to normal. She did not intend to bring any proceeding at that time. She was told by her doctor three months after the accident that she would have to live with this injury for the rest of her life and that is when she turned her mind to the issue of suing the City. She did not give the City notice until four months after the injury. The motions judge had focussed his attention on whether the plaintiff was capable of giving notice sooner instead of considering all of the circumstances. In overturning the trial judge and finding that the plaintiff had a reasonable excuse, Hoy J. wrote at para. 28:

Interpreting “reasonable excuse” broadly and liberally, in all of the circumstances of this case, it was reasonable for the appellant not to give notice until she did. The appellant did not intend to sue the City at the outset because at first she did not think her injuries were serious. She followed a course of treatment. She decided to explore legal action only when she found out that she would suffer pain and limitations in her fractured wrist for the rest of her life. Once she decided to seek a legal remedy, she promptly retained counsel. Counsel immediately gave notice to the City.

[33] I note that in Seif the plaintiff had injuries which were objectively serious, yet the Court of Appeal accepted the explanation that she did not intend to bring any proceedings until she realized she would have symptoms for the rest of his life. The Court also took into account the plaintiff’s explanation that her job search was occupying much of her time during the early period of her injury.

[34] In my view, there are a combination of factors which constitute extenuating circumstances which would justify the plaintiff’s delay in giving the required notice. She did not know about the notice requirement. She may have been told by her doctor that her injury was serious and that she should sue and/or put the City on notice, but he also told her that her injuries would heal with physiotherapy. It was only after several months when she realized that her injury was not getting better that she formed the intention to sue. In my view, the circumstances of the plaintiff’s case here, while not identical, are similar to Seif. The plaintiff should not be disadvantaged because rather than immediately decide to sue, she preferred not to if her injuries healed.

[35] As well, the delay in this case was only approximately three months which is shorter than in either Sief or Crinson. Indeed, most of the cases referred to me by the City where courts held there was no reasonable excuse involved significant delay: Psaila v. Kapsalis and City of Toronto, 2021 ONSC 1308 (three year delay); Hennes v. City of Brampton, 2014 ONSC 1116 (18 month delay) (“Hennes”); Argue (almost two year delay); Azzeh (seven year delay); Bourassa (11 month delay); Patrick v. Middlesex (County), 2018 ONSC 7408 (over 2 year delay).

[36] Finally, while the plaintiff’s excuse may only be considered “modest”, as I will discuss below, I have found that there is no prejudice occasioned by the late notice. In Azzeh, the Court held at para. 75 that where the City is not prejudiced by the delay, a “modest excuse” may be sufficient.

[37] I am satisfied that the plaintiff has demonstrated a reasonable excuse for why she did not provide earlier notice and that there is no genuine issue with respect to this issue which requires a trial.

Prejudice to the City

[38] The onus is on the plaintiff to establish that the City was not prejudiced in its defence by the delay: Seif, at para. 57; Langille v. Toronto (City), 2010 ONSC 443, at para. 33 (“Langille”). Failure to provide notice results in an “inherent probability of prejudice” because the purpose of the notice is to allow a municipality to do a timely investigation of the scene, potential witnesses and records: Seif, at paras. 55-56; Hennes, at para. 40. Nevertheless, whether there is prejudice is a fact-based inquiry and the plaintiff can displace the probability of prejudice with evidence demonstrating there are other sources of information: Seif, at para. 36.

[39] In Langille, at para. 22 the Court indicated that to establish the absence of prejudice, the plaintiff might adduce evidence of:

• the City having taken steps to investigate the accident despite the absence of notice;

• timely photographs of the scene having been taken by the plaintiff; or

• the plaintiff having obtained the name of a witness to the accident.

[40] The City says that the failure to provide the required notice has resulted in prejudice to the City because the Accident Location was repaired by the City on January 20, 2018. As these repairs were not conducted in response to a potential claim, the City did not investigate the Accident Location for the purpose of defending itself in this action. The City gave evidence that had it received the required notice, it would have gone to the Accident Location and investigated.

[41] When cross-examined, the City’s affiant admitted that the alleged prejudice rests solely on the fact that no measurements of the pothole were taken before it was repaired.

[42] Because it does not have these measurements, the City argues that it may not rely upon a defence set out in s. 42(3)(c) of the Act which provides that if there are minimum standards established by regulation in force at the time of the incident and those standards have been met, the City is not liable. The City argues that at the time of the incident, the minimum standards in force at the time stated that a road is in a state of repair if a pothole measures only eight centimeters in depth and is 1000 cm² in size. It argues that it cannot rely on this defence because it has been unable to measure the pothole.

[43] The plaintiff has provided the following evidence to rebut the alleged prejudice:

• The plaintiff took pictures of the pothole within the ten-day notice period. I have reviewed these pictures. They are clear, the pothole is readily visible and it appears quite large;

• The plaintiff retained a forensic engineer who was able to determine the dimensions of the pothole from the photographs taken by the plaintiff. According to the engineer’s conservative estimate, the pothole measured 160 mm in depth (16 cm) and 1,691 cm² in surface area. He also stated that the actual depth of the asphalt could be measured by drilling through the current asphalt patch. Finally, he stated that the pothole in question would render the roadway in a state of disrepair according to the Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06. I note that the forensic engineer’s measurements are double the minimum standards set out in the applicable regulation. The City chose not to cross examine the forensic engineer.

• The plaintiff’s husband is a witness and he also gave evidence that he was able to estimate the depth of the pothole from observations he made on the day of the accident. He estimated that the pothole was six inches deep.

• The plaintiff points out that the City produced documents showing that the pothole was repaired by the City in response to public complaint on or about January 19, 2018. Therefore, the City actually did attend at the site, observed the pothole and repaired it even if that was not in response to the plaintiff’s notice. The priority of the public complaint was noted as “High” and the severity was “Very High”. As a result of this complaint, a field investigator, Ryan Vandrie, attended at the site on January 19, 2018, made observations, took photos of the pothole, determined it required repair and marked it with an orange paint. Notes entered by him indicated “Various locations of significant surface damage both north and south of intersection on Redpath Avenue, in both northbound and southbound lanes. Marked with orange paint, Requires Asphalt to grade Referred to Mike Maltais.” The plaintiff argues that the fact that the City arrived at this conclusion and took such swift action to repair the pothole demonstrates that the crosswalk did not meet the minimum requirements set out in the regulation in any event.

• There is no evidence proffered that the City attempted to ask questions of the above-noted field investigator or those who were involved in the above repair to determine if they could be of assistance in addressing the dimensions of the pothole.

• There is no evidence that maintenance records related to this intersection have been destroyed.

[44] As well, the passage of time was only three months from the time of the plaintiff’s injury.

[45] In my view, given the above, the plaintiff has satisfied me that there is an absence of prejudice cause by the delay. Most significantly, there are other ways to determine the depth of the pothole which the City could use, and it has not lead any evidence to contradict the opinion of the plaintiff’s forensic engineer in this regard.

[46] In Seif, the Court held that that there was a genuine issue as to whether there was prejudice, but in that case, the plaintiff’s only evidence was from her and her husband as to the measurements they took as well as pictures which they had taken. The Court concluded that there would have to be an assessment of the plaintiff’s credibility and reliability about the size of the lip in the sidewalk taken a week after the incident as against the City’s evidence that there were no problems with the sidewalk reported in its annual inspection approximately two months before the fall. The plaintiff did not provide any expert evidence in that case that the measurements could be obtained in an alternate way

[47] This is not the situation here. The City does not dispute the existence of the pothole, only the size of the pothole. In my view, in this case given the City’s failure to lead any evidence disputing the plaintiff’s forensic engineer’s opinion that there are other ways of determining the measurements of the pothole, together with all of the other above evidence which is unrefuted, there is no genuine issue as to whether the City will suffer prejudice.

[48] Accordingly, I am granting summary judgment dismissing the City’s defence that the plaintiff’s action is barred by having failed to give notice within the required ten-day period. In my view, this is a discrete issue which can be decided on its own at this stage and will assist the parties in focussing on the remaining issues in this proceeding. This is essentially called a boomerang summary judgment: Meridian.

[49] The parties may make cost submissions no longer than 5 pages each as follows:

• Plaintiff within 7 days of the date of these reasons;

• Defendant within 7 days thereafter.

Papageorgiou J.

Released: April 6, 2021