November 22, 2021, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Fernando v. Niagara Falls (City), 2021 ONSC 7350 (CanLII)
DATE OF DECISION: November 5, 2021
HEARD BEFORE: Grace J.
NOTICE PROVISION: lack of sufficient notice given by plaintiff; incorrect information provided by plaintiff of location twice; claim statute barred; statutory standard; notice period not met; summary judgement; the Municipal Act
On April 8, 2017, the plaintiff and his family were walking from an inn in Niagara Falls on their way to a sport event when he slipped and fell. An ambulance was called, and he was taken to hospital where he had surgery for a broken humerus.
The plaintiff alleges that his fall was caused by an accumulation of ice on the sidewalk and road.
The city was notified of the action on April 18, 2017, by the plaintiff. The location of the fall was described as ‘near’ the convention centre but was determined to be incorrect. In late June 2017 another location was provided by the plaintiff which again was not correct. Eventually in January 2018 the exact location (several hundreds of metres from the initially identified location) was determined.
In court the city argued that these deficiencies in the notice resulted in the claim being statute-barred and they sought summary judgement dismissing the action.
Judge Grace in his decision noted that the legal burden to establish there is no genuine issue requiring a trial rests on the city. However, in this case, the notices served by the plaintiff failed to meet the statutory standards required until several months after the ten=day notice period had passed. This failure resulted in the plaintiff being required to meet an evidentiary standard which he failed to do.
The plaintiff claims that he was with two adult family members at the time of the fall however neither of these individuals provided any affidavit. The plaintiff did not mention them in his claim, nor were they present at court. This despite the plaintiff’s claims that one of them had called the ambulance.
When examined for discovery he said that he fell while moving from what he described as the “sidewalk” to the main road. Earlier he had explained:
It wasn’t that bad to walk. But then when you came to the place where I fell, it was frozen solid. It was like walking on glass. So, that’s why we want to get onto the main road.
At trial during cross-examination the judge characterized the plaintiff’s testimony as ‘vague’ when questioned about the witnesses. The plaintiff suggested his wife didn’t remember where he fell, and he was uncertain if he had asked her or his son-in-law[MO1] for assistance after the accident.
In his decision Judge Clark stated, “There is a clear evidentiary gap that the plaintiff did not address, let alone explain’. He went on to say that,
“The court is required to consider all of the circumstances when addressing the issue of reasonable excuse,” … “However, some of them are shrouded in mystery because the extent of the knowledge of two of the plaintiff’s family members who were present is unknown. There is no direct evidence from them. There is not even an account based on information and belief.”
The judge stated that:
“the issue of whether Dr. Fernando had a reasonable excuse for delivering materially deficient notices of his claim for at least the period from April 18 until June 29, 2017 is not a genuine one requiring a trial. Regrettably, the fact I reached the opposite conclusion in relation to the issues of prejudice and the potential application of s. 44(8) of the Municipal Act do not save the plaintiff’s claim. The City’s motion for summary judgment is granted. This action is dismissed.”