Slip and Fall Notice and Prejudice

The City of Toronto Act gives the municipal government a range of broad powers. These powers allow Toronto’s government to pass by-laws in the areas of public safety, economics, and environmental well-being, among others.

Section 42 of this Act states that the City is responsible for keeping roads over which it has jurisdiction in a state of repair that is reasonable. When the City defaults in compliance with this subsection, they’re to be held liable for all damages any person sustains as a result. However, in most cases, whether or not they can be held liable depends on the victim reporting their injuries within a specific notice period.

In Graham v. City of Toronto, 2021 ONSC 2278, the City of Toronto sought to negate their responsibility for paying the damages of an injured individual based on the guidelines outlined in the Act. Fortunately for the plaintiff, Justice Papageorgiou dismissed this notion.

The Case

The plaintiff sustained injuries after tripping on a large, deep pothole while crossing a city of Toronto road at a pedestrian crosswalk. Her injuries included a torn rotator cuff on her right shoulder, a strained neck, and injury to her right elbow, arm, and hand.

As a result of these injuries, she required surgery three months after the fall occurred as well as immobilization of her injury and physiotherapy for two years. She had to resign from her position as managing director of Wealth Management at a capital management firm due to the interference of her injuries, surgery, treatment, and recovery on her ability to perform her job duties.

The plaintiff sued the City of Toronto for damages in accordance with the city’s responsibilities to upkeep roads under the City of Toronto Act.

The Issue

The plaintiff gave notice of her claim approximately 10 weeks after she fell and sustained injuries, on March 22, 2018. By the time the claim had been received by the City, the pothole had been filled in as part of the maintenance and remediation program.

Act 42(6) of the City of Toronto Act states that:

“No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to,

  1. the city clerk; or
  2. if the claim is against the City and one or more municipalities jointly responsible for the repair of the highway or bridge, the city clerk and the clerk of each of the other municipalities.”

Under this section, the City brought forward a motion for summary judgment. The City claimed, correctly, that the plaintiff did not comply with the 10-day notice period.

The Result

Although the City of Toronto Act requires a 10-day notice period under section 42(6), there are, of course, exceptions. Section 42(8) outlines one of these exceptions. That is:

“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 City is not prejudiced in its defence.”

Justice Papageorgiou, who heard this case, dismissed the City’s motion based on this exception. The Justice found that the provision for 10-day notice under the Act did not bar the plaintiff’s claim because the plaintiff had a reasonable explanation for the delay, which is sustained under Section 42(8). Because the depth of the pothole, which had, by then, been covered, could have been easily determined by drilling and measuring, the Justice also found that there was no prejudice to the City of Toronto.

Have You Been Injured on Municipal Property?

The City of Toronto, and most municipal governments across Ontario, have a duty to maintain the safety and upkeep of roads within their jurisdiction. When you sustain an injury on a municipal road as a result of the city or municipality’s negligence, you may be entitled to damages for your injuries. While certain limitations may apply, there are often exceptions, such as in this case.

If you’ve been injured on municipal property, know that you may not be responsible for the resulting damages. Contact Sharma Law to learn more about your rights when you slip and fall on municipal or city grounds.

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