Crinson v. Toronto (City), 2010 ONCA 44

• Judge: Goudge, Juriansz and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 29, 2009
• Jurisdiction: Ontario
• Citations: 2010 ONCA 44;(2010), 257 O.A.C. 359 (CA)

Crinson v. Toronto (2010), 257 O.A.C. 359 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JA.040

John Derek Crinson (plaintiff/appellant) v. City of Toronto (defendant/respondent)

(C50205; 2010 ONCA 44)

Indexed As: Crinson v. Toronto (City)

Ontario Court of Appeal

Goudge, Juriansz and LaForme, JJ.A.

January 22, 2010.

Summary:

The plaintiff slipped and fell on an ice-covered sidewalk in the City of Toronto and fractured his ankle. The plaintiff sued the city for damages. There were two issues at trial: (1) whether the plaintiff's failure to give notice within 10 days of his injury as required by the Municipal Act was saved by a "reasonable excuse" as provided for by s. 44(12) of the Act; and (2) whether the city was grossly negligent within the meaning of s. 44(9) of the Act.

The Ontario Superior Court, in a decision reported [2009] O.T.C. Uned. 375, decided against the plaintiff on both issues and dismissed the action. The plaintiff appealed.

The Ontario Court of Appeal allowed the appeal, holding that the trial judge erred on both issues. Since damages were agreed upon, the court granted judgment in favour of the plaintiff.

Limitation of Actions - Topic 8047

Actions against municipalities - When limitation period commences - Actions in tort - [See Municipal Law - Topic 6246 ].

Municipal Law - Topic 1804

Liability of municipalities - Negligence - Standard of care - Maintenance of sidewalks - The plaintiff slipped and fell on an ice-covered sidewalk in the City of Toronto and fractured his ankle - He sued the city for damages - The trial judge dismissed the action, holding that the city was not grossly negligent within the meaning of s. 44(9) of the Municipal Act because the plaintiff's injury occurred before the salting of sidewalks by the city could be finished - The plaintiff appealed - The Ontario Court of Appeal allowed the appeal, holding that the trial judge misunderstood the plaintiff's position - He was not saying that the salting should have been done faster, but should have been started earlier when the city became aware of the icy sidewalks - Here there was a 34 hour delay - The city offered no explanation for the delay - The court stated that it had long been the law in Ontario that if a municipality permitted a slippery, icy sidewalk in a busy area of the city to remain unprotected or ignored it altogether and someone was injured, that would constitute gross negligence - A city had to take reasonable steps to keep the sidewalks free of dangerous conditions - Here the city should have commenced sidewalk salting earlier - The failure to do so amounted to gross negligence - See paragraphs 45 to 55.

Municipal Law - Topic 6246

Actions against municipality - Conditions precedent - Notice of action or accident - Notice of accident or action - Excuse for failure to give - On February 4, 2004, the plaintiff slipped and fell on an ice-covered sidewalk in the City of Toronto and fractured his ankle - He had surgery, was on strong pain killers for two weeks and in a cast for 12 weeks plus 12 weeks of physiotherapy - Injury impacted his work as a chef - Resulting emotional difficulties - The plaintiff gave notice that he intended to claim against the city on June 30, 2004 - He was unaware that he was supposed to give notice within 10 days (Municipal Act, ss. 44(10)) - The trial judge dismissed the claim for want of notice and held that the failure was not saved by a "reasonable excuse" within the meaning of s. 44(12) of the Act - The plaintiff appealed - The Ontario Court of Appeal allowed the appeal - The court held that the trial judge erred in law in interpreting s. 44(12) to require the plaintiff to show incapacity in order to establish reasonable excuse - Rather the question to be addressed was whether in all the circumstances of the case, it was reasonable for the plaintiff not to give notice until June 30, 2004 - The court concluded that the plaintiff established reasonable excuse for the purposes of s. 44(12), having regard to the seriousness of his injury and emotional state and the fact that he did not know he was required to give notice and did so when he was contacted by a lawyer - His action was not barred by s. 44(10) - See paragraphs 6 to 40.

Municipal Law - Topic 6248

Actions against municipality - Conditions precedent - Notice of action or accident - Notice of accident or action - Curative provisions - [See Municipal Law - Topic 6246 ].

Torts - Topic 4634

Dangerous activities - Particular dangerous situations - Public sidewalks - Use of - [See Municipal Law - Topic 1804 ].

Words and Phrases

Reasonable excuse - The Ontario Court of Appeal discussed the meaning of this phrase as it was used in s. 44(1) of the Municipal Act, S.O. 2001, c. 25 - See paragraph 22.

Cases Noticed:

Kors v. Toronto (City), [2006] O.T.C. 579; 25 M.P.L.R.(4th) 70 (Sup. Ct.), refd to. [para. 11].

Bannon v. Thunder Bay (City) (2000), 131 O.A.C. 265; 48 O.R.(3d) 1 (C.A.), refd to. [para. 11].

Cena v. Oakville (Town), [2009] O.T.C. Uned. 119; 56 M.P.L.R.(4th) 11 (Sup. Ct.), refd to. [para. 20].

Lassen v. Calgary (City), [1985] 5 W.W.R. 65; 60 A.R. 111 (C.A.), refd to. [para. 22].

Teller v. Sunshine Coast (Regional District), [1990] 3 W.W.R. 544; 43 B.C.L.R.(2d) 376; 67 D.L.R.(4th) 62 (C.A.), refd to. [para. 22].

Drennan v. Kingston (City) (1897), 27 S.C.R. 46, refd to. [para. 46].

Dagenais v. Timmins (City) (1995), 31 M.P.L.R.(2d) 196 (Ont. C.A.), refd to. [para. 46].

McNulty v. Brampton (City), [2004] O.T.C. 682 (Sup. Ct.), refd to. [para. 47].

Huycke v. Coburg (Municipality), [1937] O.R. 682 (C.A.), refd to. [para. 54].

Statutes Noticed:

Municipal Act, S.O. 2001, c. 25, sect. 44(9) [para. 45]; sect. 44(10), sect. 44(12) [para. 6].

Counsel:

John J. Adair and Jeremy R. Solomon, for the appellant;

Thomas H. Wall, for the respondent.

This appeal was heard on September 29, 2009, before Goudge, Juriansz and LaForme, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Goudge and LaForme, JJ.A., on January 22, 2010.