Written By: Nick Todorovic and Courtney Stewart, Student-at-Law
It is the responsibility of municipalities, under the Municipal Act, 2001, to maintain roads, sidewalks and bridges in “a state of repair that is reasonable in the circumstances” (s 44(1)). This means that a municipality has a duty to maintain the public spaces where we walk, run, cycle, and drive, in a safe condition for our use. If a municipality fails to perform their maintenance duties and an injury occurs, they may be civilly liable.
Section 44(10) of the Municipal Act – 10 Days to Give Notice
A municipality could be liable if you slip and fall on an icy road, are in a car accident where improper road signage or a lack of ploughing played a role, if you fall after riding over a large pothole with your bike, trip over a large gap in the sidewalk, or many, many other possibilities.
If you are injured on a public road or sidewalk it is important to be aware of the notice requirement imposed by section 44(10) of the Municipal Act.
This section states that no legal action shall be brought for the recovery of damages unless the municipality is notified of the claim and injury within 10 days of its occurrence.
Even if you are unsure whether you will start a lawsuit or whether the municipality was at fault, still provide the municipality with notice as soon as possible. Prompt notice can preserve your rights in the event your injury turns out to be serious or permanent, and begins to affect your ability to work or perform your activities of daily living.
How to Give Notice to Municipalities
There is no standard format for a notice letter, but it should include:
- your identity;
- the date, time and location of the incident;
- how the incident occurred; and,
- your injuries.
The information provided is meant to allow the municipality to investigate the place and circumstances of the incident.
If you are not sure of where to send your notice, you should contact the municipality to clarify. Here is a list of contact numbers for municipalities in Ontario.
Also, consider consulting an experienced personal injury lawyer who will be well versed on when and how to provide notice to municipalities.
I Did Not Give Notice – Now What
Understandably, many people are unaware of the 10-day notice requirement. If you do not provide notice within 10 days, you are not bared from bringing a claim against a municipality if you can demonstrate two things:
- you have a reasonable excuse for not providing notice; and,
- the municipality will not be prejudiced by the late notice.
Both parts of this test, from section 44(12) of the Municipal Act, must be met for a court to find that a claim against a municipality is not statute bared.
When assessing whether an excuse was reasonable courts will consider all circumstances of the case and take an inclusive approach. Aspects the courts have considered include:
- The seriousness of the injury and the length and type of treatment.
- Any delay in the realization that the injury is serious.
- Whether the plaintiff was capable of forming an intention to sue within the notice period.
- The length of the delay.
Courts have concluded that an ignorance of the notice period is not a reasonable excuse by itself but can add to other extenuating circumstances.
After demonstrating a reasonable excuse for missing the notice period, an injured person must also show that the municipality has not been prejudiced by the delay. Prejudice would result if the municipality did not have the opportunity to investigate the place and circumstances leading to the injury.
An injured person can demonstrate that the city is not prejudiced by establishing that the municipality had taken steps to investigate the accident in spite of not having received notice and by preserving evidence from the time of the occurrence such as witness statements and photographs.
Courts have concluded that if there was no prejudice resulting from the delay a “modest excuse may be sufficient” and a liberal interpretation of the statute is warranted.
Of course, you can avoid having to defend your claim’s ability to proceed by giving sufficient notice within the 10-day period.
If you or someone you love has suffered a serious injury as the result of municipal negligence, contact one of the critical injury lawyers at McLeish Orlando LLP for a free consultation.