Guy vs. Toronto (City) – Part 2 - Failure to Give Timely Notice
The first defence raised by the City of Toronto was that Ms. Guy’s lawsuit was barred by the Municipal Act because she failed to give notice of her claim in writing by registered mail and within seven days (note that current requirement is 10 days).
Ms. Guy’s fall occurred on March 11, 1999. Five days later she wrote a handwritten letter to the City about her fall. She sent the note by regular mail. The City received the letter on March 22, 1999, eleven days after the fall. Her note stated the following:
I, Veir Guy, of the above mentioned address, fell down on the alley between Greenwood and Danforth immediately after leaving the Greenwood subway station.
The City argued that by the time they received the letter all the snow and ice would have melted due to weather conditions. Thus, they were denied the chance to inspect the site.
However, the court rejected the City of Toronto’s arguments and found that they did not suffer any prejudice by Ms. Guy’s failure to provide timely notice. The court noted that the City did not inspect the site until May 6th (nearly two months later), and thus the lateness of the notice letter by four days did not impact on their ability to quickly examine the slip & fall area.
The City also argued that the note incorrectly identified the location of the alley and did not specify where the mound of ice was that she slipped on. However, the court found that Ms. Guy’s description of the fall location was easily ascertainable by anyone with knowledge of the area and the City’s insurance adjusters were able to locate the area without difficulty.
Justice A.J. Stong of the Ontario Superior Court of Justice concluded on the issue by stating:
In the circumstances of this case, any prejudice suffered by the City arising from the very brief delay in the timing of the notice and the sufficiency of the notice, of which in the circumstances I find none, would be clearly outweighed by an injustice that would be occasioned to Ms. Guy if her claim were to be barred, in light of the fact that she did attempt to provide the City with timely notice, although delivered by regular mail rather than by personal service or registered mail.
Thus, the court was clearly swayed by the fact that Ms. Guy made an attempt to notify the City in a timely manner and that the City of Toronto did not suffer any prejudice by the delay. In the current version of the Municipal Act, section 44(12) states as follows:
Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.
In Part 3, we will talk about the court’s analysis of the City’s liability for the slip and fall accident.