Courts continue to widen exceptions to the 10-day notice period for injury on municipal lands

October 22, 2021, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

A recent decision clarified the 10-day notification period defined in Section 44(12) of the Municipal Act 2001 which mandates that an injured party provide notification of an incident involving serious injury within ten business days. Failing to do so within the limitation period will result in the claim being ‘statute-barred’. 

There is one exception to the 10-day notice period. It provides that:

(12) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is a reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.

 Accordingly, a plaintiff must establish two things in order to overcome a failure to provide timely notice:

1. A reasonable excuse for the delay in providing timely notice; and

2. That the municipality has not been prejudiced in its defence as a result of the delay.

The recent decision in Graham v. City of Toronto the City of Toronto brought forward a motion for summary judgement on the basis that Graham had failed to comply with the 10-day notice period. The Court however considered the following factors and their decision accepted that there was no prejudice caused to the municipality by the late notice.

1. The Plaintiff’s demanding hours of work combined with her desire to do her job despite her injuries

2. It was only after two months of regular physiotherapy with no improvement that the Plaintiff became concerned that her injuries were more serious than she initially thought

3. Her recovery was far more difficult and lengthy than expected and she realized that they would negatively impact her lifestyle

4. She was unaware of the 10-day notice period

5. When she finally saw a lawyer and provided the notice of injury three months later the court determined this delay was not deemed ‘significant’

This decision opens the list of acceptable reasons for the late notice.

If you have been injured on municipal property, contact a personal injury lawyer immediately. If you fail to do so within ten days don’t assume you cannot proceed with litigation. It’s always to your benefit to do an initial consultation to determine what your options are.

About Deutschmann de Koning Law

Deutschmann de Koning Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann and Nick de Koning focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.ddinjurylaw.com or call us at 1-519-742-7774.