As intended: Municipalities, occupiers and contractors relying upon the notice provisions defences

In this article, we review the recent decision from the Ontario Superior Court in Marderosian v. City of Niagara Falls, 2024 ONSC 1043, (“Marderosian”) which affirms that when a claimant fails to provide adequate notice of their intention to commence a personal injury action as required by the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act"), prejudice to the municipality is presumed, and it is the claimant’s burden to disprove the prejudice to the municipality. Given the similar language found in the Occupiers Liability Act (“OLA”), occupiers and winter maintenance contractors should also now be able to more frequently rely upon deficient notice defences to successfully dismiss claims brought against them.

Introduction

In this article, we review the recent decision from the Ontario Superior Court in Marderosian v. City of Niagara Falls, 2024 ONSC 1043, (“Marderosian”) which affirms that when a claimant fails to provide adequate notice of their intention to commence a personal injury action as required by the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act"), prejudice to the municipality is presumed, and it is the claimant’s burden to disprove the prejudice to the municipality. Given the similar language found in the Occupiers Liability Act (“OLA”), occupiers and winter maintenance contractors should also now be able to more frequently rely upon deficient notice defences to successfully dismiss claims brought against them.

Notice Provisions

Under Section 44(10) of the Municipal Act, a claimant who alleges personal injury from a failure to keep a bridge or highway in a reasonable state of repair must provide the municipality with “written notice of the claim and of the injury complained of, including the date, time and location of the occurrence” within ten days from when the injury occurred. Section 44(12) of the Municipal Act provides a reasonable excuse exception to this requirement, where the claimant is able to show that they had a “reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence”.

The OLA contains similar notice requirements at section 6.1(1) for injuries alleged to have been caused by snow or ice. A claimant must provide written notice to the occupier and/or the winter maintenance contractor of their intention to commence an action within 60 days of the occurrence of the injury. The notice must include the date, time and location of the occurrence. Sections 6.1(6) provides for the same reasonable excuse exception as found in the Municipal Act, that an action may continue if the claimant can show that they had a "reasonable excuse for the want or the insufficiency of the notice and that the defendant is not prejudiced in its defence”.

Marderosian v. City of Niagara Falls Notice Analysis

The decision in Marderosian arises from an incident in which the plaintiff slipped and fell over a tree root on private property while trying to avoid pedestrians waiting for the bus on the municipal sidewalk on December 13th, 2017 and notice was not provided to the City until February 21st, 2018 (over 70 days after the Incident).

In Marderosian, Justice L. Sheared, citing the unreported decision of Spence v. The Corporation of the City of Brantford, et al., 2018 ONSC, held that a claimant’s lack of awareness of a notice requirement, by itself, does not constitute a reasonable excuse.¹ Justice Sheard found that the plaintiff did not provide a reasonable excuse for the late notice.

Additionally, Justice Sheard, citing previous decisions in Langille v. Toronto (City), 2010 ONSC 443 (CanLII) and Argue v. Tay (Township), 2012 ONSC 4622, held that there is a rebuttable presumption of prejudice to a municipality where notice is deficient. Justice Sheared held that the plaintiff failed to overcome her burden to show that there was no prejudice to the City, as the City did not investigate the accident before receiving notice of it and the Plaintiff did not provide timely photographs of the scene or obtain names or statements of any witnesses.

Justice Sheard dismissed the plaintiff’s claim in Marderosian on the basis that she failed to comply with section 44(10) of the Municipal Act.

Recent Decisions of Deficient Notice

The decision of Fernando v. Niagara Falls (City), 2021 ONSC 7350, (“Fernando”) arises from an incident in which the plaintiff slipped and fell on an icy sidewalk, which the plaintiff notified the City of Niagara Falls occurred in the vicinity of the Scotiabank Convention Centre. Although the plaintiff provided notice within 10 days as required by the Municipal Act, Justice Grace found that the notification was deficient as it did not accurately specify the location of the incident. In fact, the precise location, which was several hundred meters away from the initially identified area, remained undetermined for over 8 months.

Justice Grace found that neither the plaintiff nor any other witness had taken photographs of the scene, and any potential surveillance footage had been overwritten due to the considerable time elapsed since the incident. Furthermore, identifying or interviewing potential eyewitnesses was no longer possible. The plaintiff could not offer a reasonable explanation for failing to accurately locate the incident within a reasonable timeframe. Consequently, Justice Grace dismissed the action through summary judgment.

In the case of Barry v. His Majesty the King in the Right of Ontario, 2023 ONSC 4299 (“Barry”), which arises in the context of the required notice provision of the Proceeding Against the Crown Act, RSO 1990, c P.27 (“PACA”) which notably does not have the reasonable excuse exception, assists in clarifying what may constitute sufficient notice for the purposes of the Municipal Act and OLA. In Barry, Justice Bell found that the plaintiff could not rely upon an incident report which the Rideau River Provincial Park employee generated as a result of the plaintiff’s trip and fall as proper notice. The plaintiff in Barry did not provide written notice of her intention to commence a lawsuit until 165 days after the incident and the claim was dismissed.

Conclusion

Based on these decisions, where notice is required, claimants must properly notify defendants of their intention to commence litigation, or they face the burden of proving to the Court that, in the context of the Municipal Act and the OLA, they will have the burden to show the Court that there was a reasonable excuse for the deficient notice and there is no prejudice to the defendant for the deficient notice. These recent decisions signal to municipalities, occupiers, and winter maintenance contractors that they may rely upon the notice provisions defences more frequently, as the legislature intended.
 

¹ See further Crinson v. Toronto, 2010 ONCA 44; Azzeh v. Legendre, 2017 ONCA 385; and Argue v. Tay (Township), 2012 ONSC 4622.