Absence of prejudice and delay in filing notice - Graham v. City of Toronto, 2021 ONSC 2278

May 13, 2021, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Graham v. City of Toronto, 2021 ONSC 2278

DATE OF DECISION: April 4, 2021

HEARD BEFORE: PAPAGEORGIOU J.

ABSENCE OF PREJUDICE: Notice period; City of Toronto Act; prejudice;

The plaintiff sued the City of Toronto for damages after tripping on a large deep pothole on a pedestrian crosswalk. She tore her right shoulder rotator cuff, hurt her right elbow, arm and hand, and strained her neck. 

She required surgery three months later and required immobilization of her injury and physiotherapy for nearly two years on the right shoulder and four months for her other shoulder.

She was the managing director of Wealth Management at a capital management firm but resigned from her position due to the injuries, surgery, treatment and recovery which interfered with her ability to perform her work.

She gave notice of her claim on March 22, 2018, some 10 weeks after the injury occurred. By the time the City had gotten notice of the claim, it had filled in the pothole as part of their standard maintenance and remediation program. 

The City brought forward a motion for summary judgement on the basis that the plaintiff failed to comply with the 10 day notice period set out in the 42(6) of the City of Toronto Act. 

Justice Papageorgiou dismissed the City’s motion on the basis that the provision in the Act did not bar the plaintiff’s claim. J. Papageorgiou found the plaintiff had a reasonable explanation for delaying her claim. The Justice also found that there was no prejudice to the City of Toronto as the depth of the pothole could be easily determined by drilling into the patch and measuring its thickness.

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