COURT FILE NO.: 294/18

DATE: 2021-11-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MANTHRIHEWGE LAKSHMAN FERNANDO Plaintiff

– and –

THE CORPORATION OF THE CITY OF NIAGARA FALLS Defendant

A. Graham, for the Plaintiff

S. Bilato, for the Defendant

HEARD: September 20, 2021

Grace J.

A. INTRODUCTION

1On April 8, 2017, Dr. Fernando, his spouse, their son-in-law and a grandchild decided to walk from a Days Inn in Niagara Falls, Ontario to a cheer event being held at the Scotiabank Convention Centre ("Convention Centre").

2Along the way, Dr. Fernando fell. He suffered a broken humerus. Surgery followed.

3A municipality has an obligation to keep highways within its jurisdiction in a state of repair that is reasonable in the circumstances: Municipal Act, s. 44(1). Liability for damages may follow a finding that the municipality failed to fulfill its statutory duty: Municipal Act, s. 44(2). If grossly negligent, a municipality may be liable for personal injury caused by snow or ice on a sidewalk: Municipal Act, s. 44(9).

4Dr. Fernando alleges that an accumulation of ice on or near a sidewalk and roadway caused his fall.

5Section 44(10) of the Municipal Act sets forth preconditions that must be met by those who claim that a municipality breached an obligation the section imposes.¹ By letter dated April 18, 2017, the Corporation of the City of Niagara Falls (the "City") was notified that Dr. Fernando intended to commence an action arising from a fall "near" the Convention Centre.

6In fact, the incident occurred several hundred meters away. A more accurate description was provided in late June 2017. The precise location was not pinpointed for the City's adjuster until January 19, 2018. This action was commenced the following month.

7The City's primary argument is that deficiencies in the notices served on Dr. Fernando's behalf mean that his claim is statute-barred. The defendant seeks summary judgment dismissing the action.

8It is undisputed that the initial notice concerning the plaintiff's claims was deficient. The point of disagreement is whether a curative section in the Municipal Act is engaged. The City maintains that Dr. Fernando cannot meet the statutory test.

9Secondarily, the defendant also argues that it had no obligation to maintain the area on which the fall occurred.

10The plaintiff submits that both issues are genuine ones requiring a trial.

B. THE EVIDENCE ON THE MOTION

11Many of the underlying facts are not in dispute. I start there.

12In an October 15, 2019 affidavit, Dr. Fernando described the efforts made "to pinpoint the precise location of the incident."²

13The fall occurred ten days before the first letter was sent on his behalf. It described the location of the incident involving Dr. Fernando as being the "Sidewalk on Stanley Street [sic] near Scotiabank Convention Centre".

14The plaintiff deposed that he described the incident to his lawyer at a time when he was "drowsy and disoriented" from pain medication. Dr. Fernando stated that he was only able to provide "a vague recollection of where the incident occurred."³

15A City employee responded to the letter. She requested further details.

16That led to an April 20, 2017 letter. Dr. Fernando's lawyer advised the City that the plaintiff had been walking from a Days Inn at 6519 Stanley Avenue, Niagara Falls, Ontario when he "slipped and fell on ice on the sidewalk in front of the Scotiabank Convention Centre" at 6815 Stanley Avenue.

17In fact, Dr. Fernando had been staying at another Days Inn. It was located at 5943 Victoria Avenue, Niagara Falls. That correction was made during Dr. Fernando's examination for discovery.

18Soon after receipt of the second notice, an insurance adjuster became involved on behalf of the municipality. He asked Dr. Fernando's solicitors to send along "as soon as possible colour photographs of the area of loss in which the precise location of loss is identified by using an X or arrow."

19A map was sent about six weeks later. While not easy to decipher, it appears an X was placed near the intersection of Stanley Avenue and Murray Street. That intersection is several hundred meters from the Convention Centre.

20Based on another map provided by Dr. Fernando's counsel on July 18, 2017, it appeared that the fall had occurred where Stanley Avenue and Murray Street intersect. Photographs of the precise location were provided on January 19, 2018. The Xs marked on them were almost directly in front of a Tim Horton's location at 5551 Murry Street, Niagara Falls.

21In his affidavit, Dr. Fernando deposed that during the months following the accident he was unable to return to Niagara Falls due to the status of his health.⁴

C. THE TEST FOR SUMMARY JUDGMENT

22The applicable principles have become trite.

23The party seeking summary judgment bears the onus of proof. However, in resisting a motion of that kind, the responding party must introduce, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial: rule 20.02(2).

24Affidavits may be based on information and belief. However, the court is permitted to draw an adverse inference from a party's failure to provide evidence of a person having personal knowledge of contested facts: rule 20.02(1).

25The court is entitled to assume that the motion material includes all relevant evidence. The Court of Appeal addressed that issue in these terms in Broadgrain Commodities Inc. v. Continental Casualty Co., 2018 ONCA 438 at para. 7:

On a summary judgment motion the parties are expected to put their best foot forward and the court will assume that all necessary evidence has been tendered...A 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...A motion judge is not required to resort to the summary judgment enhanced powers to remedy a party's evidentiary shortcomings. [Citations omitted]

26The court's ultimate responsibility is set forth in commanding language. If the court is satisfied a claim does not involve a genuine issue requiring a trial, summary judgment "shall" be granted: rule 20.04(2)(a).

27Such a disposition is appropriate if the record assembled for the motion allows the judge "to reach a fair and just determination on the merits": Hryniak v. Mauldin, 2014 SCC 7 at para. 49. Writing on behalf of a unanimous court, Karakatsanis J. explained:

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.

28The analysis is first undertaken without utilizing the fact-finding powers set forth in rules 20.04(2.1) and/or (2.2). If, however, there appears to be a genuine issue requiring a trial at the initial stage, the motion judge is to determine if the need for such a hearing can be avoided by using the tools those subrules provide: Hryniak v. Mauldin, supra at para. 66.

29However, the exercise must be approached with caution. While more prevalent, summary judgment continues to be the exception, not the rule: Mason v. Perras Mongenais, 2018 ONCA 978 at para. 44.

D. ANALYSIS AND DECISION

1. The Timing and Content of the Required Statutory Notice

30As mentioned, a municipality has a statutory duty to keep highways under its jurisdiction "in a state of repair that is reasonable in the circumstances": Municipal Act, s. 44(1). Although the circumstances in which liability will be imposed are different, the statutory duty extends to sidewalks: s. 44(9).

31While there is much more to s. 44 of the statute, two subsections dealing with notice are at the core of the City's request that the action be dismissed summarily. I turn to them.

32Those wishing to make a claim against a municipality based on an alleged failure to meet the statutory standard of repair must serve or send a written notice of claim within ten days of an injury occurring: s. 44(10). The timeliness of the notice sent on Dr. Fernando's behalf is not in issue.

33Its content is. The subsection also deals with that topic. The notice must include "the date, time and location of the occurrence".

34The purpose of the provision is to give the municipality a timely opportunity to investigate the location and circumstances of a complaint: Bannon v. Thunder Bay (City) (2000), 48 O.R. (3d) 1 (C.A.) at para. 22.

35Despite written submissions to the contrary, in oral argument, counsel for the plaintiff fairly acknowledged that the initial letters provided to the City were insufficient because the location they described was materially inaccurate.

36Dr. Fernando's fall did not occur "near" or "in front of" the Convention Centre as the April 18 and 20, 2017 notices had alleged. In fact, Dr. Fernando fell a significant distance away, near a different intersection and in front of a different building. As the plaintiff's counsel now recognizes, the authorities relied upon by Dr. Fernando are factually distinguishable.⁵

37The City maintains that the precise location of the incident was not disclosed until January 19, 2018. On that day, Dr. Fernando's lawyers sent photos to the City's insurance adjuster marking the "exact location" of the fall, near the intersection of Murray Street and Stanley Avenue. A June 29, 2017 e-mail had informed the defendant's representative of that approximate area. For the purposes of the analysis that follows, I will utilize the earliest of the two dates.

38Ordinarily, material defects would effectively invalidate an otherwise timely notice and deal the plaintiff's action a fatal blow: Hennes v. Brampton (City), 2014 ONSC 1116, [2014] O.J. No. 783 (S.C.J.) at para. 14. However, the statute contains a saving provision.

2. The Curative Provision

39In limited circumstances, an action will be permitted to continue despite a deficient notice. Section 44(12) of the Municipal Act sets forth the test that must be met. The relevant portion of the subsection reads as follows:

...insufficiency of notice is not a bar to the action if a judge finds that there is reasonable excuse for the...insufficiency of the notice and that the municipality is not prejudiced in its defence.

40As can be seen, a deficient notice will not be fatal if the plaintiff establishes: (a) there is a reasonable excuse for the insufficiency of the notice; and (b) the municipality is not prejudiced in its defence: Azzeh v. Legendre, 2017 ONCA 385 at para. 42. In its factum, the moving party addressed the requirements in reverse order. I will do the same, remembering that the question to be determined is whether there is a genuine issue requiring a trial.

Prejudice

41Contrary to the City's argument, prejudice is not presumed. Determination of the issue involves a fact-based inquiry: Seif v. Toronto (City), 2015 ONCA 321 at para. 55.⁶ However, the failure to provide the required statutory notice raises "an inherent probability of prejudice" which the plaintiff must address: Seif v. Toronto (City), supra at para. 56.

42The City filed two affidavits in support of the motion. Its Manager of Municipal Roadways, Marianne Tikky, provided one of them. Mark Beattie, an adjuster employed by Crawford & Company (Canada) Inc. ("Crawford") swore the other.⁷

43As noted earlier, it was not until late June 2017 that the City learned Dr. Fernando had fallen near the intersection of Murray Street and Stanley Avenue. Mr. Beattie deposed that for an initial three-month period following Dr. Fernando's fall "[a]ny investigation by me for the City...focussed exclusively on the municipal sidewalk in front of or in very close proximity to the Scotiabank Convention Centre." [Emphasis in the original]⁸

44The adjuster noted that by then, the ice or snow on which Dr. Fernando had fallen had melted. The scene had not been photographed by any of the members of the plaintiff's family. Surveillance video that may have been available from a nearby motel had been taped over and was no longer available.⁹ Video of the incident that may have been taken by a passing Wego Bus would also have been lost by then.¹⁰ Similarly, Mr. Beattie alleged it was too late to identify or interview any eyewitness.¹¹ Similar allegations were made by Ms. Tikky.¹²

45Counsel for the City submits that evidence should be taken at face value. I disagree. I say that recognizing that Mr. Beattie and Ms. Tikki were not cross-examined.

46In my view, it is significant that aside from communications with Dr. Fernando's lawyer, Mr. Beattie and Ms. Tikki did not identify for the court any steps the City had taken to investigate Dr. Fernando's fall during the period of time they were led to believe the location was near or in front of the Convention Centre.

47"Any investigation" was the nebulous description offered by Mr. Beattie. Did anyone on the City's behalf attend at that location for the purpose of taking photographs, measurements, obtaining surveillance video or determining whether a Convention Centre staff member had witnessed anything? He did not say so. Nor did Ms. Tikki.

48Did either of them contact someone connected with Wego in an effort to recover video taken by one of its buses while passing the Convention Centre on the day in question? Again, the affidavits filed by the defendant are silent on the point.

49In my view, the reason is clear. The City and its adjuster were waiting for specifics from Dr. Fernando or his counsel. That is why the Acting Risk Manager of the City, Janet McQuay, asked the plaintiff's lawyer for a more detailed notice to supplement the one delivered on April 18, 2017.¹³ As noted, a further letter was sent on April 20, 2017. At that point, the fall was alleged to have occurred "in front of" the Convention Centre, rather than "near" it.

50At some point, Crawford became involved. The matter was assigned to Mr. Beattie. He authored a May 2, 2017 letter. It was addressed to Dr. Fernando's lawyer. In part, the adjuster wrote:

We would request the opportunity to meet with your client in order to obtain preliminary loss and injury details. In the event where that will not be granted, we would request a telephone interview with your office.

We would request as soon as possible color photographs of the area of loss in which the precise location of loss is identified by using an X or arrow. Please provide these to the undersigned at your earliest opportunity.

51There was no response. That caused Mr. Beattie to make the same requests again in correspondence dated June 13, 2017.

52In late June 2017, Dr. Fernando's legal representatives sent the adjuster an e-mail and two photographs. The location of the fall was changed. At that time the incident was said to have occurred "on Stanley Street [sic] just before the intersection of Stanley and Murray Street".

53The following day, Mr. Beattie asked whether Dr. Fernando was on Stanley Avenue's east or west sidewalk. There was no suggestion there had been any steps taken in relation to the Convention Centre. Prior to Mr. Beattie's affidavit in support of this motion, there is no evidence anything was done to investigate beyond the communications to which I have referred.

54There may be good reason. Dr. Fernando allegedly fell on ice, in the first few days of April, ten days before the first notice was received. In all likelihood the underlying conditions were "quite ephemeral". As Leach J. observed in Patrick v. Middlesex (County), 2017 ONSC 17 (S.C.J.) at para. 77:

Notice given even a few days later realistically may not have provided the municipality with any opportunity to examine and document conditions as they existed at the time of the accident, so as to help its defence.

55The issue of whether the City was prejudiced by the insufficient notices sent on Dr. Fernando's behalf is, in my view, a genuine one requiring a trial. However, as noted, that only addresses the second half of the curative provision. I turn to the other aspect of it.

Reasonable Excuse

56It is well established that the phrase "reasonable excuse" is to be read broadly and liberally: Crinson v. Toronto (City), 2010 ONCA 44 at para. 20; Azzeh v. Legendre, supra at para. 42. All of the circumstances of the case are to be considered: Crinson v. Toronto (City), supra at para. 22.

57In Seif v. Toronto (City), 2014 ONSC 2983 (S.C.J.), Morgan J. suggested s. 44(12) of the Municipal Act is intended to address the abilities of the plaintiff in the period following the incident giving rise to the claim. At para. 21, my colleague wrote:

Regardless of how liberal and generous an interpretation one gives to section 42(8) [now 44(12)] of the Act, the exception to the notice requirement was designed to accommodate plaintiffs whose delay is somehow a result of their injury. It is not designed to extend the time for a plaintiff whose delay is a result of their indecision or their apathy toward issuing a claim.

58On appeal, Hoy A.C.J.O. (as she then was) suggested the analysis should not be confined to the post-accident physical or mental abilities of the plaintiff. At para. 27, she wrote in part:

...One need only imagine a parent, injured on a City sidewalk, whose child is in hospital undergoing a lengthy course of treatment for a life-threatening illness. The child's circumstances, rather than the injury sustained by the parent, would provide the reasonable excuse.¹⁴

59The saving provision contains two separate but interrelated parts. The absence of prejudice does not permit the court to dispense with or extend the notice period: Delahaye v. Toronto, 2011 ONSC 5031 (S.C.J.) at para. 41. However, if there is no prejudice to the municipality, a "modest excuse may be sufficient": Cena v. Oakville (City), [2009] O.J. No. 251 (S.C.J.) at para. 15; Fremeau v. Toronto (City), 2009 ONSC 49543 (Ont. S.C.J.) at para. 24.

60In his responding affidavit, Dr. Fernando deposed that he was taken to the hospital after his fall. He said he was "quite drowsy and disoriented" as a result of the administration of pain medication both while in hospital and after being discharged.¹⁵ As mentioned earlier, Dr. Fernando said he was only able to provide his lawyer "with a vague recollection of where the Incident occurred."¹⁶ Dr. Fernando continued:

Given the unusual location of where the incident [sic] took place, it made it very difficult to precisely explain where the fall occurred. Due to my health condition in the months following the Incident, I was no [sic] position to return to the site of the Incident to review where the fall occurred.¹⁷

61Dr. Fernando went on to explain why a more accurate location was not provided until late-June 2017 and the precise spot was not communicated until mid-January 2018.¹⁸

62On January 9, 2020, Dr. Fernando was cross-examined on his affidavit. He acknowledged having visited Niagara Falls many times before his fall. Dr. Fernando said that he was not, however, familiar with the area in which the incident occurred.¹⁹

63Had this represented all of the evidence reasonably available to the plaintiff on the point, I would have concluded that the reasonableness of Dr. Fernando's excuse for the misdescription of the location where he fell was also a genuine issue requiring a trial. However, there is more.

64Dr. Fernando was examined for discovery on March 29, 2018. At that time, he provided a detailed account of the circumstances leading up to his fall.

65He testified that he was walking with his spouse, son-in-law and a young granddaughter when he suffered the fractured humerus.²⁰ That information was not set forth in the statement of claim. It did not appear in any of the written communications that had predated its issuance on February 5, 2018.

66In time, Dr. Fernando was asked about the condition of the route the group took to the Convention Centre on the morning in question. That lead to this exchange:

Q. So, if we ask your wife and son-in-law, they'll give different evidence than you?

A. I don't know. You'll have to ask them.

Q. Have you got a statement from them?

A. [by counsel for Dr. Fernando] No.

Q. Were they with you when you fell?

A. My son-in-law and my wife were in front of me. They were crossing over to the main road. I was crossing behind them and then I slipped and fell.²¹

67Dr. Fernando's affidavit was the only one filed by the plaintiff on this motion. Affidavits on summary judgment motions may be based on information and belief: rules 20.02(1) and 39.01(4). However, Dr. Fernando's affidavit did not mention his spouse or son-in-law.

68Those individuals were referred to during the subsequent cross-examination. Dr. Fernando said that after falling on ice on the day in question, he walked to a nearby Tim Hortons restaurant with their assistance.²²

69During his examination for discovery, the plaintiff testified that his spouse stayed with him while he waited for an ambulance. His son-in-law and granddaughter continued on to the cheer competition at the Convention Centre.²³

70The involvement of emergency medical services personnel was raised during the cross-examination of Dr. Fernando. While uncertain, he thought that his son-in-law made the call that resulted in an ambulance attending the Tim Hortons restaurant. The short exchange follows:

Q. Okay. Did you call the ambulance yourself?

A. No. No.

Q. Who...

A. I think my son-in-law.

Q. ...And they told the ambulance that you were at Tim Hortons?

A. I think so. Maybe. I don't know.

Q. How would, how does the ambulance get to the Tim Hortons you're at if nobody tells them?

A. I said that my son-in-law or my wife, one of the two, phoned. I didn't.

Q. And they told him?

A. I don't know.

Q. They told the ambulance that you were at a Tim Hortons?

A. [by Dr. Fernando's counsel] He already said he doesn't know what they told him.²⁴

71Soon afterward, the City's lawyer suggested to Dr. Fernando that he had not asked his spouse to help him identify where he had fallen. The cross-examination continued:

A. I don't think she remembers either.

Q. But you didn't ask her?

A. I don't know. I don't know.

Q. Did you, did you ask your son-in-law to assist you with providing the location of the fall?

A. My son-in-law's in Cambridge. I'm in London. So, when I write to [my lawyer], you know I can't be calling him.

Q. So, my question was, did you ask your son-in-law to provide you with assistance to describe to you where the fall occurred?

A. I don't remember.²⁵

72This is where the plaintiff's case founders. Dr. Fernando relies on the curative provision in the Municipal Act. He bears the burden of satisfying both elements.

73As stated previously, the defendant seeks summary judgment. Consequently, the City bears the legal burden of establishing there is no genuine issue requiring a trial. Since the notices served on Dr. Fernando's behalf did not meet the statutory standard until well after the ten-day time period had passed, he must meet an evidentiary standard.²⁶

74He is required to set out in affidavit material or other evidence, specific facts showing that a trial is necessary: rule 20.02(2). As set forth earlier, he must put his best foot forward. However, he does not appear to have done so. Two adult family members were with him at the time he fell. Neither one of them has provided an affidavit. Evidence from them based on information and belief was not included in the one the plaintiff signed. In fact, Dr. Fernando did not even mention his spouse or his son-in-law.

75Why? They were present when he fell. They helped him into the Tim Hortons. According to Dr. Fernando, one of them called an ambulance from that location. There is a clear evidentiary gap that the plaintiff did not address, let alone explain.

76When asked about his spouse and son-in-law during cross-examination, Dr. Fernando was vague. He postulated that his spouse did not remember where he fell but then was unsure whether he had even asked her.

77The fact his son-in-law resides in Cambridge, Ontario is hardly an excuse for not asking him about the location of the incident. In any event, once again, Dr. Fernando ultimately said he did not remember whether he had asked his son-in-law for assistance or not.

78I have mentioned rule 20.02(1) before. It allows the court to draw an adverse inference from the failure of a party to provide evidence of any person having personal knowledge of contested facts "if appropriate".

79The court is required to consider all of the circumstances when addressing the issue of reasonable excuse. However, some of them are shrouded in mystery because the extent of the knowledge of two of the plaintiff's family members who were present is unknown. There is no direct evidence from them. There is not even an account based on information and belief.

80Crinson v. Toronto (City), supra stands in stark contrast to this case. As here, the plaintiff explained his failure to comply with s. 44(10) of the Municipal Act. However, his evidence did not stand alone. His son and co-worker testified too.²⁷ That lead to the conclusion the plaintiff had established a reasonable excuse for the failure to provide the required notice. At para. 38, Goudge and LaForme JJ.A. wrote:

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

81I recognize the testimony to which I have referred in Crinson v. Toronto (City), was given at trial. However, it is the nature and extent of the evidence that is important. Not the forum in which it was provided.

82Dr. Fernando's spouse and son-in-law appear to be witnesses who were readily available to him. As noted, it does not appear that the City knew the plaintiff was in their company until Dr. Fernando was examined for discovery. Given the principles to which I have referred, on a motion for summary judgment, the plaintiff should have provided (i) evidence from his spouse and/or son-in-law; or (ii) an explanation for the lack of evidence from those sources. Yet, there is none.

83In the circumstances, I reluctantly conclude that an adverse inference can and should be drawn: Lambert v. Quinn (1994), 110 D.L.R. (4th) 284 (Ont. C.A.) at 287-288 and Johnson v. Futerman, 2012 ONSC 4092 (S.C.J.) at para. 58. The consequences are set forth succinctly in The Law of Evidence in Canada:

Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least not support it.²⁸

84In the result, I have concluded that the issue of a reasonable excuse is not a genuine issue requiring a trial. Dr. Fernando is not able to satisfy the initial requirement of the curative provision. The materially deficient notices are not capable of being saved.

The section 44(8) argument

85If my conclusion is correct, it is unnecessary to address the City's final argument that there is no potential liability because Dr. Fernando fell in an area the municipality was not duty bound to maintain: Municipal Act, s. 44(8); Grosbeck v. Abram, 2014 ONSC 1674 (S.C.J.) at paras. 26 - 27. However, in case my conclusion concerning s. 44(12) is wrong, I will briefly address that issue.

86According to Ms. Tikky's affidavit, Dr. Fernando fell in an area where there was no sidewalk.²⁹ At paras. 21 and 22, Ms. Tikky deposed, in part, that:

The fall allegedly occurred on an area of tarmac or other non-concrete material that abuts a cut curb...

These areas were not municipal sidewalks and therefore areas not maintained by the City.

87Dr. Fernando did not address that issue in his responding affidavit. However, when examined for discovery he said that he fell while moving from what he described as the "sidewalk" to the main road.³⁰ Earlier he had explained:

It wasn't that bad to walk. But then when you came to the place where I fell, it was frozen solid. It was like walking on glass. So, that's why we want to get onto the main road.³¹

88For present purposes, I accept that there was no sidewalk where Dr. Fernando fell until several months later.³² However, the area was not remote. Business establishments were all around. Sidewalks were nearby. They ended a short distance away from the location of the incident. According to the plaintiff, he was walking on ground that was frozen solid. It is not clear to me that the underlying surface was apparent or even visible. There is no basis for a suggestion Dr. Fernando and his family members took an unusual route or that they were in an area where they were not expected to be: Ouellette v. The Corporation of the Town of Hearst (2004), 70 O.R. (3d) 204 at para. 20; McHardy (Litigation Guardian of) v. Ball, 2013 ONSC 6564 (Div. Ct.) at paras. 87 - 88; Grosbeck v. Abram, 2014 ONSC 1674 (S.C.J.) at para. 61.

89The potential application of s. 44(8) of the Municipal Act would have fallen into the category of genuine issues requiring a trial had the analysis of reasonable excuse lead to a different conclusion.

E. CONCLUSION AND COSTS

90For the reasons given, the issue of whether Dr. Fernando had a reasonable excuse for delivering materially deficient notices of his claim for at least the period from April 18 until June 29, 2017 is not a genuine one requiring a trial. Regrettably, the fact I reached the opposite conclusion in relation to the issues of prejudice and the potential application of s. 44(8) of the Municipal Act do not save the plaintiff's claim. The City's motion for summary judgment is granted. This action is dismissed.

91Concise cost submissions relating to this motion and to the action not exceeding ten pages, exclusive of any offer(s) to settle and authorities, may be provided to me by the City and by Dr. Fernando on or before November 22 and December 6, 2021 respectively.

Footnotes

1. 1The section is imperfectly worded. Nonetheless, the notice provision has been interpreted and applied to claims relating to the things referred to in ss. 44(1) (highways and bridges) and (9) (sidewalks). See, for example, Anderson v. Hamilton (City), [2009] O.J. No. 4358 (S.C.J.) at paras. 21 – 23; Worthey v. Hamilton (City), 2015 ONSC 3690 (S.C.J.); Barbeau v. Kitchener (City), 2017 ONSC 24 (S.C.J.) at para. 7; Crinson v. Toronto (City), 2010 ONCA 44. The parties in this case proceeded on the basis s. 44(10) applies even if Dr. Fernando fell on a sidewalk.
2. 2See para. 29.
3. 3See para. 11.
4. 4See para. 12.
5. 5See, for example, Kanner v. Hamilton (City), 2017 ONSC 6795 (S.C.J.); Myshrall v. Toronto (City), [2001] O.J. No. 481 (C.A.). Furthermore, the legislative provision was worded very differently when the latter decision was written.
6. 6See, too, Crinson v. Toronto (City), 2010 ONCA 44 at para. 24.
7. 7The affidavits were sworn July 8, 2019.
8. 8Affidavit of Mark Beattie sworn July 9, 2018 (the "Beattie affidavit"), at para. 23.
9. 9Ibid. at para. 35.
10. 10Ibid. at para. 39.
11. 11Ibid. at paras. 41, 42 and 44.
12. 12Affidavit of Marianne Tikky sworn July 8, 2019, at paras. 10 and 11.
13. 13Affidavit of Manthrihewge Lakshman Fernando sworn October 15, 2019, at para. 14.
14. 14Seif v. Toronto (City), 2015 ONCA 321. While this passage was part of dissenting reasons, the point of disagreement related to the second aspect of the statutory test, not reasonable excuse for delay: see the majority reasons at para. 47.
15. 15At paras. 5 and 11.
16. 16At para. 11.
17. 17At para. 12.
18. 18At paras. 16 – 25 and 28 - 30.
19. 19Transcript of the cross-examination of Dr. Fernando conducted January 9, 2020 (the "C-E transcript"), Q. and A. 185 – 197.
20. 20Transcript of the examination for discovery of Dr. Fernando dated March 29, 2018, at Q. and A. 144 – 151 (the "Fernando E4D transcript").
21. 21Fernando E4D transcript, at Q. and A. 198 – 200.
22. 22C-E transcript, at Q. and A. 227 - 229.
23. 23Fernando E4D transcript, at Q. and A. 382 – 384.
24. 24C-E transcript, at Q. and A. 250 – 251 and 255 – 257.
25. 25C-E transcript, Q. and A. 280 – 285.
26. 26See, too, Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at para. 100.
27. 27See paras. 33 – 37.
28. 28Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th ed., (Markham: LexisNexis Canada Inc., 2014) at §6.450.
29. 29See para. 19.
30. 30E4D transcript at Q. and A. 201 and 206.
31. 31Ibid. at Q. and A. 188.
32. 32According to Mr. Beattie's affidavit, construction occurred in September and October 2017.