Latest Case Summaries – May 2014

Seif  v. City of Toronto, 2014 ONSC 2983 This was a motion for summary judgment brought by the City on the basis that the plaintiff failed to provide notice of her claim within 10 days of her accident as required by s. 42(6) of the City of Toronto Act, 2006. The plaintiff fell on August 19, 2011 on a City sidewalk. She was treated and released from hospital the same day. She returned to the scene one week after the incident with her husband and took note of a gap on the sidewalk where she had tripped. She sent a notice letter through her lawyers on December 21, 2011. The City argued that the notice letter was out of time and that the description of the location was not specific enough to satisfy the statutory requirement. Justice Morgan held that the notice must simply “state when and where the injury occurred in reasonable, lay person’s terms.” The description provided by the plaintiff’s lawyers satisfied this requirement. Justice Morgan then considered whether the plaintiff had provided a “reasonable excuse” for her failure to provide notice within the required 10 day period. The explanation she provided was that in the months following the accident she gave no thought to, and had no intention of, commencing a lawsuit. Justice Morgan found that “indecision” and “apathy” toward issuing a claim did not constitute a reasonable excuse. Despite his view that the notice requirement was “very unfair”, he concluded that he had no choice but to grant the motion for summary judgment. Read more on CanLII.

George Karr v. Allstate Insurance Company, 2014 ONSC 2771  In this action for accident benefits, the plaintiff brought a motion to set aside a registrar’s order dismissing the action. The order was issued on February 1, 2011. The motion to set aside the dismissal order was filed on June 12, 2012. The plaintiff argued that the Registrar’s order was outside its jurisdiction because an order had been made on July 13, 2010 setting out a time timetable that gave the plaintiff until June 30, 2011 to set the matter down for trial. As the registrar’s order was made before June 30, 2011, it was a nullity. Justice McKelvey agreed that the registrar had no jurisdiction to make a dismissal order in light of the previous order. Read more on CanLII.

Manzoor Ur-Rahman v. Oma Devi Mahatoo et al., 2014 ONSC 2636 This was damages assessment before Justice Firestone. The plaintiff was 53 at the time of his injury and 64 at the time of trial. He suffered a left hip fracture in a slip and fall, which required a 4-hole plate and hip screws. He was left with residual impairments that restricted his ability to perform the heavier and more repetitive aspects of housekeeping and activities of daily living. He returned to his pre-accident employment, but in 2014 was required to reduce his hours from 40 per week to 24 per week. Justice Firestone assessed the plaintiff’s non-pecuniary general damages at $90,000.  Read more on CanLII.

Cases summarized by Rikin Morzaria, Partner at McLeish Orlando and Board Member of the Ontario Trial Lawyers Association.

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