Seif v. Toronto (City) et al., 2015 ONCA 321

• Judge: Hoy, A.C.J.O., van Rensburg and Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 19, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 321;(2015), 334 O.A.C. 339 (CA)

Seif v. Toronto (2015), 334 O.A.C. 339 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MY.008

Robin Seif (appellant) v. City of Toronto and Armel Corporation (respondent)

(C58919; 2015 ONCA 321)

Indexed As: Seif v. Toronto (City) et al.

Ontario Court of Appeal

Hoy, A.C.J.O., van Rensburg and Brown, JJ.A.

May 8, 2015.

Summary:

Seif sued the City of Toronto for damages arising from a "trip and fall". She appealed the judgment of the motion judge, granting summary judgment dismissing her claim against the City because she did not have a reasonable excuse for her failure to give notice to the City within 10 days of her injury.

The Ontario Court of Appeal, Hoy, A.C.J.O, dissenting in part, allowed the appeal.

Municipal Law - Topic 6242

Actions against municipality - Conditions precedent - Notice of action or accident - Notice of accident or action - General - On August 19, 2011, Seif tripped on a "lip" where a City of Toronto sidewalk met an interlocking brick boulevard - She fractured her non-dominant wrist - Following the accident, Seif was quickly mobile and resumed her activities - In the months that followed the accident, she had no intention of filing an action - She still thought her fracture would heal and her life would return to normal - Seif did not know that s. 42(6) of the City of Toronto Act required her to notify the city clerk within 10 days of her accident if she wished to bring an action for damages - At a medical appointment in November 2011, Seif learned that she would live with pain and limitations in her fractured wrist for the rest of her life - She sued the City - A motion judge granted summary judgment to the City because Seif did not have a reasonable excuse for her failure to give notice to the City within 10 days of her injury - Seif appealed - The Ontario Court of Appeal allowed the appeal - A plaintiff who had failed to meet the 10 day limitation period under s. 42(6) had the onus of establishing both that there was a reasonable explanation for the delay and that the defendant would not be prejudiced in its defence as a result of the delay - The motion judge erred in his approach to determining whether Seif had established a reasonable excuse for her delay - While the motion judge acknowledged that "reasonable excuse" was to be given a broad and liberal interpretation, he then narrowed his focus to whether Seif's delay was a result of her injury and whether she was capable of giving notice sooner - The test to be applied was whether, in all of the circumstances of the case, it was reasonable for Seif not to give notice until she did - It was an error to require that the delay be solely a result of the injury suffered - The motion judge did not deal with the issue of prejudice - The court held that whether the City was prejudiced in its defence as a result of the delay was an issue that should be determined at trial.

Cases Noticed:

Crinson v. Toronto (City) (2010), 257 O.A.C. 359; 100 O.R.(3d) 366; 2010 ONCA 44, refd to. [para. 18].

Argue v. Tay (Township), [2012] O.T.C. Uned. 4622; 1 M.P.L.R.(5th) 77; 2012 ONSC 4622, affd. [2013] O.A.C. Uned. 200; 10 M.P.L.R.(5th) 11; 2013 ONCA 247, leave to appeal refused (2013), 466 N.R. 392 (S.C.C.), refd to. [para. 18].

Hennes v. Brampton (City) (2014), 20 M.P.L.R. (5th) 163; 2014 ONSC 1116, refd to. [para. 28, footnote 3].

Cena v. Oakville (Town), [2009] O.T.C. Uned. 119; 56 M.P.L.R.(4th) 11 (Sup. Ct.), refd to. [para. 30].

Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al. (1998), 111 O.A.C. 201; 164 D.L.R.(4th) 257 (C.A.), refd to. [para. 33].

Goudie et al. v. Ottawa (City), [2003] 1 S.C.R. 141; 301 N.R. 201; 170 O.A.C. 201; 2003 SCC 14, refd to. [para. 33].

Aronowicz et al. v. Emtwo Properties Inc. et al. (2010), 258 O.A.C. 222; 98 O.R.(3d) 641; 2010 ONCA 96, refd to. [para. 33].

Colangelo et al. v. Mississauga (City); Morencil v. Windsor (City) et al. (1988), 30 O.A.C. 26; 66 O.R.(2d) 29 (C.A.), leave to appeal refused [1988] S.C.C.A. No. 477 (S.C.C.), refd to. [para. 35].

Carmichael v. City of Edmonton, [1933] S.C.R. 650, refd to. [para. 36].

Zogjani v. Toronto (City) et al., [2011] O.T.C. Uned. 1147; 2011 ONSC 1147, refd to. [para. 36].

Langille v. Toronto (City), [2010] O.T.C. Uned. 443; 69 M.P.L.R.(4th) 73; 2010 ONSC 443, refd to. [para. 36].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 51].

Fremeau v. Toronto (City) et al., [2009] O.T.C. Uned. D76; 61 M.P.L.R.(4th) 279 (Sup. Ct.), refd to. [para. 71].

Delahaye v. Toronto (City), [2011] O.T.C. Uned. 5031; 87 M.P.L.R.(4th) 100; 2011 ONSC 5031, refd to. [para. 71].

Grant v. Kingston (City) et al., [2012] O.T.C. Uned. 6332; 5 M.P.L.R.(5th) 263; 2012 ONSC 6332, leave to appeal refused [2013] O.T.C. Uned. 4689; 13 M.P.L.R.(5th) 60; 2013 ONSC 4689, refd to. [para. 71].

Statutes Noticed:

City of Toronto Act, S.O. 2006, c. 11, sect. 42(6), sect. 42(8) [para. 7].

Counsel:

David A. Zuber and James B. Tausendfreund, for the appellant;

Kirsten Franz, for the respondent.

This appeal was heard on January 19, 2015, by Hoy, A.C.J.O., van Rensburg and Brown, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was delivered on May 8, 2015, and included the following opinions:

Hoy, A.C.J.O., dissenting in part - see paragraphs 1 to 46;

van Rensburg and Brown, JJ.A. - see paragraphs 47 to 72.