Reasons for Decision on a Motion for Summary Judgment

Court File No.: CV-22-00061192-0000
Date: 2025-01-13
Ontario Superior Court of Justice
Between:
Conor James Riches, Plaintiff
and
City of Welland, Defendant

T. McAvoy and R. Moriarty, counsel for the Plaintiff
N. Chutko and B. Remigis, counsel for the Defendant
Heard: November 27, 2024

The Honourable Justice L. E. Standryk

Introduction

[1] This is a motion for summary judgment brought by the defendant municipality in a slip-and-fall action commenced by the plaintiff.

[2] The defendant requests an order dismissing the plaintiff’s action because the plaintiff failed to provide notice to the defendant within ten days of the incident, as required under s. 44(10) of the Municipal Act, 2001 (the “Act”). The defendant argues that the plaintiff’s claim is therefore statute barred.

[3] The plaintiff argues that his claim is not statute barred. He relies on s. 44(12) of the Act, which establishes an exception to the ten-day notice requirement where there is a reasonable excuse for non-compliance and there is no prejudice to the municipality’s defence arising from the late notice. The plaintiff seeks reverse summary judgment on the limitation period issue.

Factual and Procedural Background

[4] The plaintiff was injured in a slip and fall that occurred February 4, 2022 on Thorold Road in the city of Welland. The plaintiff alleges that he sustained serious personal injury due to the slip and fall, for which the defendant is liable.

[5] The plaintiff was 22 years old at the time of the incident. He is a young man who has been diagnosed with mental health issues and neurodevelopmental disorders, and he struggles with addiction, all of which are alleged to impact his overall functioning.

[6] On October 13, 2022, approximately eight months after the slip and fall, the plaintiff notified the defendant of the incident. The notice identifies that the slip and fall incident “occurred on February 9, 2022, at 4:30 p.m. on the sidewalk located between Thorold Road and Prince Charles Road.”

[7] On October 14, 2022, the defendant retained Michael Ragona, an independent adjuster, to complete an investigation into the incident. On October 14, 2022, Mr. Ragona informed plaintiff’s counsel that notice of the incident was late and did not comply with the requirements of the Act. On the same day, plaintiff’s counsel informed Mr. Ragona that the plaintiff suffered mental disabilities which were the cause of the late notice.

[8] On November 24, 2022, Mr. Ragona took the position that because of the late notice, the defendant was prejudiced in its ability to investigate the incident.

[9] The statement of claim was issued on December 16, 2022 under the simplified procedure. The plaintiff pleads that the incident occurred on February 4, 2022, not on February 9, 2022, as initially cited in the notice of October 13, 2022.

[10] Examinations for discovery were conducted by the parties on June 8, 2023. The plaintiff confirmed that the accident occurred on February 4, 2022 on the roadway on Thorold Road, not the sidewalk as identified in the October 13, 2022 notice.

[11] On June 20, 2023, plaintiff’s counsel served a notice of readiness. The trial was scheduled for the September 23, 2024 trial sittings. A pre-trial conference was scheduled and held before Bordin J. on May 21, 2024, at which time the defendant advised of its intention to pursue summary judgment on the limitation period issue.

[12] Bordin J. set a timetable for filing the motion, which, among other things, required the defendant to serve the motion record by June 21, 2024 and the plaintiff to serve a responding record by July 19, 2024. If the motion proceeded, the trial was to be adjourned to the January 20, 2025 trial sittings.

[13] The defendant’s motion record was served in compliance with the timetable ordered by Bordin J. and included the expert report of Dr. Paul Duhamel, a neuropsychologist retained by the defendant. Dr. Duhamel’s report was originally served on February 20, 2024.

[14] Dr. Duhamel met with the plaintiff on January 9 and 12, 2024 for the purpose of conducting an assessment to determine the plaintiff’s intellectual and psychological ability to report the incident within the ten-day legislative requirement.

[15] Dr. Duhamel opined that the plaintiff was intellectually and psychologically capable of reporting the accident within the ten-day notice requirement and that the primary factor for failing to report the incident was not a lack of ability but a lack of awareness of the deadlines.

[16] The plaintiff’s responding record was served July 22, 2024, three days after the timeline ordered by Bordin J. The responding motion record included the expert report of Alanna Kaye, registered nurse, capacity assessor and consultant, dated July 15, 2024. The report was served on July 17, 2024.

[17] The plaintiff seeks to rely on Ms. Kaye’s report to prove that the plaintiff lacked the ability to comply with the ten-day legislative notice requirement. The defendant argues that the plaintiff cannot rely on Ms. Kaye’s report because it was not served within the timelines set out in r. 53.03 of the Rules of Civil Procedure (the “Rules”).

[18] After service and filing of the motion materials, the plaintiff obtained an order on consent permitting amendment of the statement of claim to increase the sum of damages claimed and transfer the proceeding to the ordinary procedure.

Issues

i. Is the plaintiff permitted to rely on Ms. Kaye's expert opinion and report for the purpose of the summary judgment motion despite purported non-compliance with the timelines set out in r. 53.03?

ii. Is a determination of the limitation period issue appropriate for summary judgment?

Analysis

Is the plaintiff permitted to rely on Ms. Kaye's expert opinion and report?

[19] For clarity, a determination of this issue does not pertain to the admissibility of Ms. Kaye’s expert opinion.

[20] The defendant argues that the plaintiff cannot rely on Ms. Kaye’s expert opinion because it was not served in accordance with the timelines established by rule 53.03. The defendant also urges this court to find that the opinion is not admissible because the information on which Ms. Kaye relies to form her opinion, namely clinical notes and records regarding the plaintiff’s medical history, have not been previously disclosed in this action. I will deal with this submission later in my reasons.

[21] The admissibility of the expert report is a matter of law which I will consider later in my reasons dealing with whether either party is entitled to summary judgment on the limitation/notice period issue. At this stage, the focus of my analysis is whether the plaintiff is precluded from tendering the report for failure to comply with the timelines required by r. 53.03.

[22] For the reasons that follow, I find that the plaintiff may tender the expert report for the purpose of this motion.

[23] The defendant argues that the plaintiff should not be permitted to rely on the report authored by Ms. Kaye because it was not served in accordance with the timelines established by r. 53.03.

[24] The plaintiff submits that r. 53.03 does not apply to this motion. According to the plaintiff, the timelines only apply to expert evidence to be tendered by a party at trial, and it is r. 39 which contemplates that expert evidence may be adduced on a motion or application that applies in this case.

[25] The plaintiff’s motion record was served and filed shortly after the deadline established by Bordin J. Notwithstanding this fact, the defendant takes no issue with the late service.

[26] I requested that both counsel consider and provide me with authorities regarding the applicability of r. 53.03(1) and (2) in the specific context of a motion for summary judgment sought after a pre-trial scheduled pursuant to r. 50.02. Neither counsel was able to do so.

[27] Rule 53.03 states that where a party seeks to call expert evidence at trial, a report signed by the expert containing the information listed in r. 53.03(2.1) must be served on every party not less than 90 days before the pre-trial conference. A party who intends to call responding expert evidence at trial must serve a report signed by the expert containing the information listed in r. 53.03(2.1) not less than 60 days before the pre-trial.

[28] A party who fails to comply with the requirements of r. 53.03 may not tender the proposed expert evidence except with leave of the trial judge. The party may address non-compliance either by requesting an order extending or abridging the time for service of a report under r. 53.03(4) or requesting leave of the trial judge to rely on the report at trial pursuant to r. 53.08.

[29] The plaintiff has not sought an order under r. 53.03(4) to extend or abridge the time for service. Although the plaintiff was invited to pursue an oral motion for leave pursuant to r. 53.08, the invitation was declined on the basis that r. 53.03 does not apply to expert evidence tendered by a party on a motion.

[30] Rule 39 governs how evidence may be given on motions and applications. Rule 39.01(7) requires that opinion evidence of an expert on a motion or application include the information listed under r. 53.03(2.1), including the nature of the opinion being sought, each issue in the proceeding to which the opinion relates, the expert's reasons for an opinion respecting each issue.

[31] Rule 39 explicitly incorporates the foundational requirements for the substance of an expert’s report under r. 53.03(2.1). There is no similar explicit reference to the provision dealing with timelines for service of an expert report.

[32] The purpose of the timelines contained in r. 53.03 is to ensure fairness for all parties before trial. The timelines provide some assurance that each party has an opportunity to assess the case they will face and effectively organize their case, marshal evidence, and prepare arguments to address all relevant issues: see Peller v. Ogilvie-Harris, 2018 ONSC 725, para 8.

[33] The requirements set out in rr. 37.07, 37.10, and 39 similarly aim to ensure fairness for all parties before a motion/application hearing. The timelines effectively safeguard each party’s ability to evaluate the issues, collect and organize evidence, and develop arguments to address those issues. There is a clear delineation in the Rules regarding timelines for service of evidence on motion/application and those that apply to evidence at trial.

[34] The delineation seems logical when one considers that each party has responsibility over how they present their case and approach their evidentiary burden(s) at various stages of the proceeding. In this context, a party may decide to present evidence during a motion that, but for the motion, they would not use at trial. A party might choose not to hire an expert witness for the trial for various reasons and may prefer to cross-examine the opposing party's expert instead.

[35] On a motion for summary judgment, regardless of trial strategy, the responding party must either refute or counter the moving party’s evidence or risk summary judgment: see Vincorp Financial Ltd. v. Hope’s Holdings Inc., 2010 ONSC 6819, para 17. Integrating the timelines from r. 53.03(1) and (2) into the timelines for filing evidence on a motion could hinder a party's ability to effectively challenge the moving party's evidence and potentially lead to an unavoidable summary judgment.

[36] For the foregoing reasons, I find that r. 53.03(1) and (2) do not apply for the purpose of this motion.

[37] If I am wrong, I find that an exercise of judicial discretion to permit the defendant to rely on the expert report served and filed is appropriate in the interests of justice.

[38] Rules 2.01 and 2.03 confer discretion on the court to relieve against rule compliance where it is necessary in the interests of justice: see Brandiferri v. Wawanesa Mutual Insurance, 2011 ONSC 3200, para 17.

[39] Ms. Kaye’s evidence is probative of whether the plaintiff had the capability to understand and comply with the ten-day notice requirement. The evidence is relevant and material to a determination of the limitation period issue and proof by the plaintiff of the existence of a reasonable excuse under s. 44(12) of the Act.

[40] I am mindful that any time a court excludes relevant evidence, the ability to reach a just determination of the issue is compromised. Relevant evidence should not be excluded on technical grounds, such as lack of timely delivery of a report, unless the court is satisfied that the prejudice to justice in receiving the evidence exceeds the prejudice to justice from excluding it: see Shaw-Vanderholst v. Azzopardi, 2016 ONSC 6895, para 31. At para. 32 of Shaw-Vanderholst, Mullins J. stated:

Moreover, “[t]he exclusion of apparently relevant and probative evidence is not a remedy for a possible breach of the Rules that a court should hasten to accept, since the exclusion of such evidence could imperil the just determination of a case, contrary to a foundational principle of the Rules”: Lee (Litigation guardian of) v. Toronto District School Board, 2012 ONSC 3266, para 22.

[41] The defendant received a copy of the report on July 17, 2024. Although the defendant had the opportunity to test Ms. Kaye’s evidence through cross-examination, the defendant did not do so.

[42] In this context, I believe that the prejudice to the administration of justice, and the fair and just determination of the case, from excluding the evidence far surpasses any potential disadvantage or prejudice to the defendant from its admission.

Is a determination of the limitation period issue appropriate for summary judgment?

[43] Both parties acknowledge that the notice delivered to the defendant dated October 13, 2022 was delayed and inadequate. It was issued approximately eight months after the accident and incorrectly identified the date and location of the incident.

[44] A determination of whether the plaintiff’s claim is statute barred depends on whether he has a reasonable excuse for failing to comply with the notice requirements of the Act and whether this exception prejudices the defendant. The expert evidence tendered by both parties is critical in assessing whether there is a reasonable excuse.

[45] Based on the written record before me, I cannot reach a fair and just determination on this question regardless of whether I invoke the discretionary fact-finding powers under r. 20.04(2.1) or (2.2) for reasons that follow.

Guiding Principles

[46] A court shall grant summary judgment if satisfied on the written record that there is no genuine issue requiring a trial with respect to a claim or defence: see r. 20.04(2)(a).

[47] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, established the guiding principles on a motion for summary judgment at paras. 49 and 50.

[48] The court must first determine if there is a genuine issue requiring trial based only on the evidence contained in the written record, without using the new fact-finding powers contained in r. 20.04(2.1) and (2.2). There will be no genuine issue requiring a trial if the summary judgment process provides the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable, and proportionate procedure, under r. 20.04(2)(a): Hryniak, at para. 66.

[49] If there appears to be a genuine issue requiring a trial, the court must then determine if the need for a trial can be avoided by using the fact-finding powers contained in r. 20.04(2.1) and (2.2): Hryniak, at para. 66. The court may weigh the evidence, evaluate credibility, and draw any reasonable inference from the evidence, unless it is in the interests of justice that these powers be reserved for trial: Hryniak, at para. 45.

[50] The court may use the fact-finding powers provided their use will lead to a fair and just result and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: Hryniak, at para. 66.

[51] The onus is on the defendant to establish that there is no genuine issue requiring a trial.

[52] Where the court is satisfied that the only genuine issue is a question of law, a judge may determine the question and grant judgment accordingly. This includes the question of whether the statement of claim discloses a reasonable cause of action. A statement of claim fails to disclose a reasonable cause of action if it is barred by a limitation period: Coulson v. Citigroup Global Markets Canada Inc., 2010 ONSC 1596, para 129.

[53] The notice requirement imposed by s. 44(10) of the Act functions as a limitation period, and a plaintiff’s failure to notify a municipality bars any action, unless there is a reasonable excuse for the delay or insufficiency of the notice and the defendant municipality is not prejudiced in its defence, pursuant to s. 44(12): see Azzeh v. Legendre, 2017 ONCA 385, para 39.

[54] The plaintiff bears the onus of establishing a reasonable excuse: see Argue v. Tay (Township), 2013 ONCA 247, leave to appeal refused, [2013] S.C.C.A. No. 35409, at para. 2. The words “reasonable excuse” are to be given liberal interpretation because a municipality is protected by the second requirement under s. 44(12) that it not be prejudiced in its defence: see Crinson v. Toronto (City), 2010 ONCA 44, para 20.

[55] Should the plaintiff fail to establish the two requirements to avail himself of the statutory exception afforded by s. 44(12), the defendant will have met the onus for summary judgment, the plaintiff’s action would be statute barred and his claim dismissed.

[56] Regarding the plaintiff’s request for reverse summary judgment on the limitation period issue, if he can meet the two requirements necessary to utilize the statutory exception outlined in s. 44(2) on this motion, there would be no genuine issue related to this specific legal question that would require a trial.

Admissibility of Expert Evidence

[57] The admissibility of expert evidence on either a summary judgment motion or at trial is a question of law. Each party has retained a litigation expert to provide opinion evidence in relation to the question of reasonable excuse and the plaintiff’s capacity or ability to satisfy the notice requirement under the Act.

[58] Expert opinion evidence is presumptively inadmissible. Opinion evidence from a litigation expert must satisfy a two-part test: (1) it must meet the four threshold requirements of admissibility – relevance, necessity, absence of any exclusionary rule, and the witness must be properly qualified; and (2) the benefit of admitting the evidence must outweigh its potential risks: see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, paras 19-24.

[59] To be properly qualified as an expert, a witness must be shown to have acquired special or peculiar knowledge through study or experience in respect of the matters they undertake to testify: see R v. Mohan, para 31.

[60] A judge must also determine the nature and scope of the proposed evidence: see R v. Abbey, 2009 ONCA 624, para 62.

[61] Neither party squarely addressed the question of the admissibility of the expert reports. Both counsel raised concerns about whether the other party’s expert was properly qualified. However, neither counsel offered substantive submissions beyond a cursory statement of concern. Despite this fact, as I turn my mind to the two-part test, I am left with no question that the expert evidence presented by both parties is not only relevant but necessary to me as a trier of fact to determine the question of reasonable excuse. I am also satisfied that the evidence is not subject to an exclusionary rule.

[62] Neither party has satisfied the fourth threshold requirement of admissibility.

[63] The plaintiff filed an affidavit from Alanna Kaye, registered nurse, capacity assessor and consultant, sworn on July 18, 2024. Attached and incorporated into the affidavit is a report dated July 15, 2024 and Form 53. The Form 53, while signed, is otherwise incomplete.

[64] The defendant filed an affidavit from Dr. Paul Duhamel, a licensed neuropsychologist, sworn June 7, 2024. Attached and incorporated into the affidavit is a report dated February 12, 2024, and a completed Form 53.

[65] The defendant did not cross-examine Ms. Kaye on her affidavit, qualifications, or the content of her report. Dr. Duhamel was cross-examined on his affidavit and report. However, based on a review of the transcript from his cross-examination, there was no substantive cross-examination on his curriculum vitae and experience to allow for qualification of his expertise by this court or permit a determination of the proper nature and scope of his evidence.

[66] For these reasons, the expert evidence does not meet the threshold requirements of admissibility.

Is this case appropriate for summary judgment?

[67] The chronology of facts in this case are not in dispute. The incident occurred on February 4, 2022, on the roadway of Thorold Road in the city of Welland. The plaintiff provided notice of the accident on October 13, 2022, and the content of the notice was inaccurate.

[68] In this case, expert evidence is critical to determination of the question of reasonable excuse.

[69] If I am wrong regarding threshold admissibility of the expert reports, I remain of the view that this case is not appropriate for summary judgment even with the employ of the enhanced fact-finding powers contained in r. 20.04(2.1) and (2.2).

[70] I am faced with two conflicting expert reports crucial to the issue I must decide which leads me to conclude that there is a genuine issue requiring a trial. Two competing expert opinions on a central issue do not lend themselves to judgment in the absence of a trial: see Cuming v. Toronto, 2019 ONSC 1720, paras 23-24.

[71] There are exceptions to this general proposition: see Moffitt v. TD Canada Trust, 2021 ONSC 6133, para 198. While this is not a factually complex case, it is not one that falls into one of those exceptions for the following reasons:

a) Not all the expert evidence has been tested through cross-examination;

b) While both parties had the opportunity to explore the qualifications of and conclusions reached in the expert reports, they did not do so in any substantive way;

c) The information underpinning the expert opinions lacks symmetry. Ms. Kaye based her findings on clinical notes and records that were not disclosed or known to Dr. Duhamel. To ensure an informed opinion, it is important that all experts review the same documentation before forming their conclusions; and

d) Ms. Kaye’s report is a responding report that comments on the assumptions made by, and opinion reached in Dr. Duhamel’s report. The defendant has not provided a reply report offering any critique of the assumptions made, or opinions arrived at, by Ms. Kaye, which would have been of assistance to the court.

[72] In these circumstances, the question of whether the plaintiff’s claim is statute barred remains a genuine issue requiring a trial.

Conclusion

[73] The defendant’s motion for summary judgment is dismissed.

[74] The plaintiff’s request for reverse summary judgement on the limitation period question is also dismissed.

Costs

[75] The plaintiff was successful in defending the summary judgment motion. The plaintiff was not successful in proving his entitlement to reverse summary judgment. Given the divided success on the motions there shall be no order as to costs.

Released: January 13, 2025