Injuries can and commonly do occur on city property, injuries on sidewalks are a prime example. When a sidewalk is in a state of disrepair, covered in ice and snow, with no reasonable attempts at maintenance, or when a sidewalk has become uneven and has a trip edge, a person injured as a result can try to recover damages from the responsible municipality.
Although possible, suing and recovering damages from a negligent municipality comes with particular legal hurdles. One such hurdle is a 10 day notice requirement. Specifically, the Municipal Act, 2001, states that no action shall be brought for the recovery of damages unless within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of has been served upon or sent by registered mail to the clerk of the municipality. The injured person therefore has 10 days to let the city know that they were injured on city property, or risk being unable to recover damages.
The majority of people who are injured on municipal property, whether from a slip and fall, a trip, or because of the disrepair of the city property, are likely unaware of this 10 day notice requirement. So what happens when this brief amount of time elapses before the municipality is notified? The law allows the injured person to overcome the notice requirement if they can demonstrate two things:
- a reasonable excuse for missing the 10 day deadline; and,
- that the municipality is not prejudiced by the delay.
A Court will decide whether an injured person has a reasonable excuse for missing the deadline, and, generally, lack of awareness of the notice requirement does not in and of itself constitute a reasonable excuse for missing the deadline. However, in making its decision, a Court must take a broad, inclusive, approach as to what they will accept as a reasonable excuse. The Court must consider all circumstances of the case. As the Ontario Court of Appeal recently stated, ignorance of the notice requirement can add to other extenuating circumstances, such as lack of knowledge of the severity of the injury, to create a reasonable excuse.
After demonstrating a reasonable excuse for missing the deadline, an injured person must also show that the municipality has the opportunity to investigate the place and circumstance leading to the injury. If the municipality has lost that opportunity, they are prejudiced in their ability to defend themselves against the lawsuit, and the injured person could be barred from recovering damages. An injured person can demonstrate that the city is not prejudiced by preserving evidence of a timely investigation, including witness statements, photographs of the scene, or other sources of information about the accident’s circumstances.
To avoid diminishing your ability to recover damages it is best to notify a municipality as soon as possible following an injury on municipal property. Prompt notice can preserve your rights in the event your injury turns out to be permanent, begins to affect your ability to work, or your symptoms deteriorate.