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Requirement for Notice to Municipal Defendants

 

March 10, 2016

In Ontario, if a municipality fails to maintain its bridges, roads and sidewalks in a reasonable state of repair, the municipality is liable for all damages that any person sustains because of the default.[1] However, a short, largely unknown deadline in the Municipal Act, 2001 may bar any potential claim an injured person may have against the municipality for such an injury.

In order to make a claim against a municipality, written notice of the claim and the injury complained of must be served upon or sent by registered mail to the clerk of the municipality within 10 days after the injury occurred.[2] This notice requirement is unique to claims against a municipality; there is no similar requirement if an accident occurs on private property. The purpose of the notice is to “ensure that a Municipality has a timely opportunity to investigate the place and circumstances of the accident”.[3]

Failure to provide notice within 10 days may not bar a claim if the court determines that the injured person has a “reasonable excuse” for the delayed or insufficient notice and the municipality is not prejudiced in its defence.[4] Recently, the Ontario Court of Appeal found that it is reasonable for an injured person to wait to give notice until after a course of treatment that determines whether or not he or she will continue to suffer pain and limitations for the rest of their life.[5] However, on its own, lack of awareness of the notice requirement does not constitute a “reasonable excuse”.[6]

Courts have recognized that the short notice requirement may be unfair to potential claimants because many are unable to comply simply because they are unaware it exists. However, it remains the law. If you are injured in a fall or accident on municipal property, within 10 days you should send the municipality notice of where and when the injury occurred, even if you are unsure of whether or not you want to start a claim. The notice protects your right to do so.

For more information, contact Caroline Failes, Partner and Head of the firm's Personal Injury Law Group. She can be reached at 613.566.2849 or cfailes@perlaw.ca. 

[1] Municipal Act, 2001, SO 2001, c 25 at s 44(1) and (2).

[2] Supra note 1 at s 44(10).

[3] Argue v Tay (Township), 2012 ONSC 4622 at para 61; aff’d 2013 ONCA 247.

[4] Supra note 1 at s 44(12).

[5] Seif v Toronto (City), 2015 ONCA 321 at par a 28.

[6] Supra note 3 at para 47.