Tricia Jane McAvoy

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff’s slip-and-fall action for failure to provide notice within ten days as required by the Municipal Act, 2001.

The plaintiff argued for an exception based on reasonable excuse and lack of prejudice to the municipality.

The court found that the plaintiff could rely on a late-served expert report for the motion, but that the admissibility of both parties’ expert evidence was not established.

The court concluded that the conflicting expert evidence on the plaintiff’s capacity and reasonable excuse created a genuine issue requiring a trial.

Both the defendant’s motion for summary judgment and the plaintiff’s request for reverse summary judgment were dismissed.

No costs were awarded due to divided success.

The plaintiffs sought leave to amend their statement of claim to add Paragon Protection Ltd. as a defendant in a slip and fall action, after the apparent expiry of the limitation period.

The court applied discoverability principles under the Limitations Act, finding that the plaintiffs provided a reasonable explanation for the delay in discovering Paragon's potential liability.

Initial information from the owner's insurer and defendants' pleadings had directed the plaintiffs' focus solely to other parties responsible for winter maintenance.

The court granted leave to amend, noting that Paragon could still raise a limitations defence at trial.