



COURT OF APPEAL FOR ONTARIO

CITATION: Seif v. Toronto (City), 2015 ONCA 321

DATE: 20150508

DOCKET: C58919

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

BETWEEN

Robin Seif

Appellant

and

City of Toronto
and Armel Corporation

Respondent

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

Kirsten Franz, for the respondent

Heard: January 19, 2015

On appeal from the judgment of Justice Edward M. Morgan
    of the Superior Court of Justice, dated May 13, 2014.

Hoy A.C.J.O. (dissenting in part):

[1]

The appellant, Robin Seif, sued the respondent, the City of Toronto (the
    City), for damages arising from a trip and fall. She appeals the judgment
    of the motion judge, granting summary judgment dismissing her claim against the
    City because the appellant did not have a reasonable excuse for her failure to
    give notice to the City within ten days of her injury.

[2]

For the reasons that follow, I would dismiss the appeal. While I agree
    with the appellant that she had a reasonable excuse for her delay in giving
    notice to the City, I am not satisfied that the City is not prejudiced in its
    defence as a result of that delay.

Background

[3]

Briefly, the background is as follows.

[4]

On August 19, 2011, the appellant tripped on a lip where a City
    sidewalk met an interlocking brick boulevard. She fractured her non-dominant
    wrist. She was transported to the hospital by ambulance and her wrist was set
    and cast. The appellant was released from hospital the same day.

[5]

Following the accident, the appellant was quickly mobile. A week or so after
    the accident, she and her husband stopped and looked at the site of the
    accident while walking to the bank. They did not, however, measure the lip or,
    at that time, take photographs of the site.

[6]

At the time of the accident, the appellant was trying to re-enter the
    workforce and, despite the ongoing pain in her wrist, resumed her job search
    soon after she fell. 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. The appellant did not know that the
City
    of Toronto Act, 2006
, S.O. 2006, c. 11 (the Act) required her to notify
    the city clerk within ten days of her accident if she wished to bring an action
    for damages.

[7]

Sections 42(6) and (8) of the Act provide in relevant part:

(6) No
    action shall be brought for the recovery of damages under subsection (2)
    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,

(a) the
    city clerk

[]

(8)
    Failure to give notice or insufficiency of the notice is not a bar to the
    action if a judge finds that there is reasonable excuse for the want or the
    insufficiency of the notice and that the City is not prejudiced in its defence.

[8]

At a medical appointment in November 2011, the appellant learned that
    she would live with pain and limitations in her fractured wrist for the rest of
    her life. Only then did she turn her mind to legal action. She contacted the
    Law Society of Upper Canadas lawyer referral service. It took a few weeks to
    set up an initial meeting with counsel. She met with counsel on December 20,
    2011.

[9]

Her counsel sent a letter to the City notifying it of the appellants
    claim on December 21, 2011  some four months after the accident. The letter
    stated that the appellant had tripped and fallen on a sidewalk on Lonsdale
    Road, just west of the southwest corner of the intersection of Spadina Road and
    Lonsdale Road. It said that a significant lip in the sidewalk appeared to have
    caused the accident.

[10]

The
    appellants husband took photographs of the accident site a few days after the
    appellant gave notice. The rock salt in the photos suggests that the
    temperature had dropped below zero by the time the appellants husband took the
    photos.

[11]

The
    respondent received the appellants notice on December 23, 2011. An independent
    insurance adjuster visited the intersection of Lonsdale Road and Spadina Road on
    January 9, 2012. However, he measured and photographed a spot at the southwest
    corner of Lonsdale and Spadina and not the spot a little to west where the
    appellant had tripped. On January 18, 2012, the adjuster wrote to the
    appellants counsel asking for the exact location of the fall. A City of
    Toronto field investigator attended on April 24, 2012 and took further photos. He,
    too, failed to inspect the correct location. Finally, on May 9, 2012, the field
    investigators received the appellants husbands photos from the adjuster, who
    had acquired them from an adjuster for Armel Corporation (a former defendant in
    this action). A second field investigator, Lou Martino, sought out the site on May
    18, 2012.
[1]
He took several measurements and photographs of the correct location and found
    no ledge in the area that exceeded two centimetres. He deposed:

I would not be able to say with certainty that these
    measurements would have been the same if I had measured the area within 10 days
    of August 19, 2011 when the accident occurred. Given the passage of an entire
    winter season, it is possible that these interlocking bricks could have shifted
    due to temperature fluctuations, freeze thaw cycles and winter maintenance
    activities. It is possible that the bricks could have been higher on August 19,
    2011, thereby creating even less of a ledge than what existed when I measured
    the area on May 18, 2012. However, it is also possible that the bricks could
    have been lower. It is also possible that the bricks could have remained at the
    same level all winter.

[12]

While
    a cigarette butt is visible in some of the photographs taken by the appellants
    husband, providing some sense of scale, the evidence of Mr. Martino is that it
    is impossible to gauge the depth of the ledge from a one-dimensional picture.

[13]

Mr.
    Martino also deposed that, because the appellant had complained and because the
    area was not completely level, the interlocking bricks were brought back up to
    grade in June 2012.

[14]

The
    City conducts annual sidewalk inspections and, on June 29, 2011, a summer
    student inspector walked an area of about eight kilometers, including the area
    in question. The City employs a negative reporting system. The inspectors
    report lists deviations two centimeters or deeper that he observed. According
    to Mr. Martino, the City must not have found any fault with the sidewalk at
    the time as no mention of [fault] is made on the original inspection form.

[15]

Some
    two years after the appellant launched her action, the appellant and her
    husband deposed that on their visit to the site a week or so after the incident,
    it appeared that the lip in the sidewalk was clearly at least one inch, or
    about 25 centimeters.
[2]
The appellant also deposed that the lip in the sidewalk that I tripped on, was
    in the same condition on the day that the photographs were taken in late
    December 2011, as they were in the week or so after the accident, in August
    2011, when [my husband] and I went to look at the accident scene.

[16]

While
    there was one witness to the accident, the City has been unable to reach her.

Motion Judges Reasons

[17]

The
    motion judge began by outlining the two requirements of s. 42(8). Failure to
    give notice pursuant to s. 42(6) will not end an action when: (1) the plaintiff
    has a reasonable excuse for the failure to comply with the notice provision;
    and (2) the City would not be prejudiced in its defence as a result of the
    delay.

[18]

Citing

Crinson v. Toronto (City)
, 2010 ONCA 44, 100 O.R. (3d) 366, the
    motion judge acknowledged that a broad and liberal interpretation must be
    given to the phrase reasonable excuse in s. 42(8) of the Act. He also cited
Argue
    v. Tay (Township)
, 2012 ONSC 4622, 1 M.P.L.R. (5th) 77, affd 2013 ONCA
    247, 10 M.P.L.R. (5th) 11, leave to appeal refused, [2013] S.C.C.A. 246, for
    the principle that ignorance of the statutory time limit is not a reasonable
    excuse for late notice.

[19]

At
    para. 19 of his reasons, he found that:

The [appellant] was not incapable of giving timely notice, and
    was not particularly hindered in her actions due to her injuries.  [H]er delay
    in giving notice was as a result of her indecision as to whether to bring an
    action at all for the first 4 months after her injury.

[20]

At
    para. 21, the motion judge reasoned that the exception to the notice
    requirement was designed to accommodate plaintiffs whose delay is somehow a
    result of their injury. It is not designed to extend the time for a plaintiff
    whose delay is a result of their indecision or their apathy toward issuing a
    claim.

[21]

He
    concluded that the appellant did not have a reasonable excuse for her delay in
    giving notice to the City and dismissed her claim. Having found that the
    appellant did not have a reasonable excuse for her failure to notify the City
    within ten days, the motion judge did not go on to consider whether the delay
    prejudiced the City in its defence.

Issues Raised

[22]

The
    appellant argues that the motion judge erred in law (1) by requiring that she
    establish that she delayed giving notice because of her injury and (2) by failing
    to interpret reasonable excuse broadly and liberally and to consider all of
    the circumstances, including her relatively short four-month delay, her
    ignorance of the notice requirement, and her initial uncertainty as to the
    severity of her injuries.

[23]

Both
    parties argued on the issue of whether the appellants delay prejudiced the
    City in its defence.

Analysis

[24]

My
    analysis proceeds in two parts. First, I examine whether the appellant had a
    reasonable excuse for her delay in giving notice. Second, having concluded the
    appellant does have a reasonable excuse, I address the question of prejudice to
    the Citys defence as a result of the delay.

Does the Appellant Have a Reasonable Excuse for the Delay in
    Notice?

[25]

I
    agree with the appellant that the motion judge erred in his approach to
    determining whether the appellant had established a reasonable excuse for her
    delay. While the motion judge acknowledged that reasonable excuse is to be
    given a broad and liberal interpretation, he then narrowed his focus to whether
    the appellants delay was a result of her injury and whether she was capable of
    giving notice sooner.

[26]

The
    test to be applied is whether, in all of the circumstances of the case, it was
    reasonable for the appellant not to give notice until she did: see
Crinson,
at
    para. 23.

It was an error to

require that the delay be solely a
    result of the injury suffered.

[27]

While
    in
Crinson
the focus was on the post-accident physical and mental
    abilities of the plaintiff in assessing whether the plaintiff had a reasonable
    excuse for the delay, other circumstances may create a reasonable excuse. One
    need only imagine a parent, injured on a City sidewalk, whose child is in
    hospital undergoing a lengthy course of treatment for a life-threatening
    illness. The childs circumstances, rather than the injury sustained by the parent,
    would provide the reasonable excuse.

[28]

Interpreting
    reasonable excuse broadly and liberally, in all of the circumstances of this
    case, it was reasonable for the appellant not to give notice until she did. The
    appellant did not intend to sue the City at the outset because at first she did
    not think her injuries were serious. She followed a course of treatment. She decided
    to explore legal action only when she found out that she would suffer pain and
    limitations in her fractured wrist for the rest of her life.
[3]
Once she decided to seek a legal remedy, she promptly retained counsel. Counsel
    immediately gave notice to the City.

[29]

Lack
    of awareness of the notice requirement in s. 42(6) of the Act does not
    constitute a reasonable excuse on its own: see
Argue
,
at para.
    47. However, ignorance of the notice requirement can add to another extenuating
    circumstance (such as lack of knowledge of the severity of the injury) to
    create a reasonable excuse: see
Crinson
, at para. 38.

[30]

I
    note that a broad and liberal interpretation of reasonable excuse does not
    render the City without protection. [T]he protection granted to the
    municipality where it is prejudiced in its defence is good reason why a liberal
    interpretation should be given to the words reasonable excuse:
Crinson
,
    at para. 20, quoting with approval
Cena v. Oakville (Town)
(2009), 56
    M.P.L.R. (4th) 11 (Ont. S.C.), at para. 15.

Is the City Prejudiced in its Defence as a Result of the
    Delay?

[31]

Unfortunately,
    the motion judge did not go on to consider whether the appellants delay in
    giving notice prejudiced the City in its defence. It would have been preferable
    had he done so.

[32]

In
    their factums, the parties proposed that this court decide the issue on the
    record before the motion judge, rather than send it back to the motion judge.
[4]
Neither party argued that the issue of prejudice was a genuine issue requiring
    a trial. In his oral submissions, counsel for the appellant said that he [got]
    the sense that there might be some concerns of the court in terms of the
    sufficiency of the evidence. He indicated that if the court did not think that
    it had enough evidence to decide the question of prejudice, the court should
    send the question to trial.

[33]

As
    I am asked to perform the role of a judge hearing a summary judgment motion, I
    assume that the record contains all evidence relevant to the issue of prejudice
    that the parties would present if there were a trial: see
Dawson v.
    Rexcraft Storage & Warehouse Inc.
(1998), 164 D.L.R. (4th) 257 (Ont.
    C.A.), at para. 17; see also
Goudie v. Ottawa (City)
, 2003 SCC 14,
    [2003] 1 S.C.R. 141, at para. 32;
Aronowicz v. EMTWO Properties Inc.
,
    2010 ONCA 96, 98 O.R. (3d) 641, at para. 17-18.

[34]

Respectfully,
    I do not agree with my colleagues that this action should be sent to trial. I
    am satisfied that the issue of prejudice can be fairly and justly determined on
    the record before the motion judge without hearing oral evidence and would
    accordingly accede to the parties initial request to determine this matter on
    the record, rather than send it back to the motion judge. I do not suggest that
    this court should routinely take on this task.
[5]

[35]

The
    onus of showing that there is no prejudice to the defendant as a result of the
    delay in giving notice rests on the plaintiff: see
Co
langelo v.
    Mississauga (City)
(1988),

66 O.R. (2d) 29 (C.A.), at p. 44,
    leave to appeal refused, [1988] S.C.C.A. No. 477;
Argue v. Tay (Township)
,
    2013 ONCA 247, 10 M.P.L.R. (5th) 11, at para. 2, leave to appeal refused,
    [2013] S.C.C.A. 246.

[36]

The
    purpose of provisions like s. 42(6) of the Act is to ensure that a
    Municipality has a timely opportunity to investigate the place and
    circumstances of the accident:
Argue
, at para. 61. Where the injured
    party does not provide notice within ten days, an inherent probability of
    prejudice [arises] from the bare fact of the accident and the lack of notice:
Carmichael
    v. Edmonton (City)
,
[1933] S.C.R. 650, at p. 655. Essentially, prejudice
    is presumed:
Argue
, at para. 60. However, prejudice is fact-based:
Zogjani
    v. Toronto (City)
, 2011 ONSC 1147, [2011] O.J. No. 1002, at para. 18. A plaintiff
    can rebut this inherent probability or presumption with evidence showing
    other sources of information about the accidents circumstances: see
Argue
,
    at para. 58. For example, a plaintiff might rebut the presumption of prejudice
    by adducing evidence that the City had taken steps to investigate the scene in
    spite of not having notice from the plaintiff, or by timely photographs of the
    scene having been taken by the plaintiff or by [the plaintiff] having obtained
    the name of a witness to the accident:
Argue
, at para. 59, quoting
Langille
    v. Toronto (City)
,
2010 ONSC 443, 69 M.P.L.R. (4th) 73, at para.
    22.

[37]

The
    appellant acknowledges that in these circumstances a presumption of prejudice
    arises, though she would characterize the presumption as weak. However, she argues
    that the City has not been practically prejudiced in its defence by her delay
    in giving notice. The City in turn argues that the delay prejudiced its defence
    because it prevented the City from measuring the lip before weather conditions may
    have shifted the lip up or down. And, in this case, the precise height of the
    lip in August 2011 is critical.

[38]

In
    order to understand the question of prejudice in this case, it is important to
    consider the statutory provisions relevant to liability. Sections 42(1) and (2)
    of the Act

provide that the City is liable if it fails to keep a highway
    or bridge in a reasonable repair and if a person suffers damages as a result of
    that failure. The City acknowledges that the accident would fall within these
    provisions if the appellant tripped on a City sidewalk or boulevard.

[39]

Section
    42(3)(c) of the Act provides that the City is not liable if minimum maintenance
    standards established by regulation are in force at the time of the incident
    and if the City has met those standards. At the time of the incident, the
    minimum standards stated that if a surface discontinuity on a sidewalk exceeded
    two centimetres, the City was to treat the surface discontinuity within 14
    days.
[6]
The City contends that it is not liable for the appellants injuries if the lip
    did not exceed two centimetres at the time of the incident. The City also
    contends that the appellant tripped and fell on the boulevard, not on a City
    sidewalk, and that the standard of care is lower for a boulevard than for a
    sidewalk (such that even if that even if the lip exceeded two centimetres, the
    City might not be liable).

[40]

I
    am not satisfied that the appellants delay in giving notice has not prejudiced
    the City in its defence.

[41]

The
    precise measurement of the lip at the time of the accident is critical to a
    significant defence relied on by the City. It does not matter that the City may
    argue an alternative defence.

[42]

The
    question before me is whether the appellants delay prejudiced the City in its
    defence that the lip did not exceed two centimeters. I do not need to decide
    whether the lip was or was not greater than two centimeters. And I do not need
    to determine the credibility of the appellants and her husbands evidence to
    determine the issue of prejudice.

[43]

At
    trial, the City would have to respond to the appellants and her husbands
    evidence that the lip exceeded two centimeters at the time of the accident. The
    defence evidence consists of the measurement taken by Mr. Martino on May 18,
    2012, nearly nine months after the accident, and the results of the Citys
    annual sidewalk inspection on June 29, 2011. Mr. Martino concedes that his
    measurement is not reliable evidence of what the lip would have measured at the
    time of the accident because an entire winter season passed between the
    accident and his measurement. And the reliability of the Citys annual sidewalk
    inspection would be open to challenge at trial  just as the appellants and
    her husbands eyeball approximations would be. Neither those approximations nor
    the photographs taken by the appellants husband in December 2011 provide an objective
    basis to determine the precise height of the lip in August 2011. The City has been
    unable to contact the one witness to the accident despite repeated efforts.
    Moreover, there was no suggestion that the witness measured the lip.

[44]

While
    the appellant did not make this argument, I am not satisfied that the City
    would not have measured the lip until winter even if the appellant had given
    notice within ten days of the accident. That the City did not successfully
    measure the lip until five months after the appellants notice does not mean
    the City would have taken five months to measure the lip had it received an
    on-time notice. In my view, too many variables are at play to comfortably draw
    that inference. The City might have investigated an on-time claim with more
    urgency, before weather conditions had a chance to change. The independent
    investigator assigned might have located the spot where the accident occurred
    on his first visit. Or photographs taken by the appellants husband pinpointing
    the precise site of the accident might have found their way to the City more
    quickly.

[45]

In
    my view, the appellant has not established that the City is not in a materially
    worse evidentiary position than it would have been in without the appellants
    delay. It did not have the opportunity to obtain a
reliable
measurement
    of the lip to counter the evidence of the appellant and her husband.

[46]

As
    a result, I would dismiss this appeal.

Alexandra
    Hoy A.C.J.O.




van Rensburg and Brown JJ.A.:

[47]

We
    agree with the conclusions of Hoy A.C.J.O. with respect to whether the
    appellant had a reasonable excuse for her failure to give notice within ten
    days of her slip and fall accident, as required by s. 42(6) of the
City of
    Toronto Act, 2006
, S.O. 2006, c. 11, Sch. A (the Act). Respectfully,
    however, we do not agree with her conclusion that the motion judges summary
    dismissal of the action should be upheld on the basis that the appellant has
    failed to prove that the City will not be prejudiced in its defence by her
    delay in giving notice. That is, in our view, a genuine issue requiring a
    trial. Put another way, we are not satisfied - in our review of the evidence as
    an appeal court (since the issue was not addressed by the motion judge) - that
    the respondent has met its burden under Rule 20 to establish that there is no
    genuine issue requiring a trial on the issue of prejudice.

The Consequences of the Failure of the Motion Judge to Deal
    with the Issue of Prejudice

[48]

The
    motion judges decision granting summary judgment and dismissing the
    appellants action was based on his conclusion that the appellant did not have
    a reasonable excuse for failing to give the City notice of her claim within ten
    days of the slip and fall accident. He did not find it necessary to deal with
    whether there was prejudice to the City in its defence as a result of the
    delay.

[49]

Given
    the two-part test created by s. 42(8) of the Act, having granted summary
    judgment by dealing only with the first part of the test, it would have been helpful
    for the motion judge to have gone on to review the evidence on the second part
    of the test and to make the necessary findings of fact. Had he done so, this
    court would have had the benefit of his assessment of the evidence and
    conclusions with respect to the second part of s. 42(8).

[50]

In
    their factums, both parties submitted that this court is in a position to
    determine whether the appellants failure to give timely notice prejudiced the
    City. In oral argument, however, the appellant submitted that the question of
    prejudice is an issue in respect of which there is conflicting evidence, and
    which should be left for determination at a trial.

[51]

For
    an appellate court to determine whether there exists no genuine issue
    requiring a trial with respect to a claim or defence, it must be able to
    conclude that, through the appellate review process, it can make the necessary
    findings of fact in order to reach a fair and just determination on the merits,
    and that the process gives it the confidence to find the necessary facts and
    apply the relevant legal principles so as to resolve the dispute:
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1
    S.C.R. 87
, at paras. 49-50.

[52]

As
    a practical matter, an appellate court does not have at its disposal all of the
    tools available to a summary judgment motion judge to make such a
    determination. While
Hryniak
identified three levels of evidentiary
    review available to a motion judge  reviewing the record without using the new
    fact-finding powers under rule 20.04(2.1); using the fact-finding powers,
    including evaluating credibility; and, using the fact-finding powers with oral
    evidence under rule 20.04(2.2)  an appellate court realistically is limited to
    its review of the written record.

[53]

Although
    s. 134(1)(a) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43
states that a court to which an
    appeal is taken may make any order or decision that ought to or could have been
    made by the court appealed from, and s. 134(4)(a) permits an appellate court,
    in a proper case, to draw inferences of fact from the evidence, our ability to
    determine the issue of prejudice in this appeal depends on whether, on the
    basis of the written record, we can confidently make the necessary findings of
    fact. For the reasons that follow, we have concluded that we are unable to do
    so, and that the question of whether the City is prejudiced in its defence of
    the action is a genuine issue requiring a trial.

Prejudice in s. 42(8) of the Act

[54]

A
    plaintiff who has failed to meet the ten day limitation period under s. 42(6)
    has the onus of establishing both that there is a reasonable explanation for
    the delay and that the defendant will not be prejudiced in its defence as a result
    of the delay: see
Colangelo v. Mississauga (City)
(1988),

66
    O.R. (2d) 29 (C.A.), at p. 44, leave to appeal refused, [1988] S.C.C.A. No. 477;
Argue v. Tay (Township)
, 2013 ONCA 247, 10 M.P.L.R. (5th) 11, at para.
    2, affg 2012 ONSC 4622, 1 M.P.L.R (5th) 77, leave to appeal refused, [2013]
    S.C.C.A. 246.

[55]

As
    Hoy A.C.J.O. observes in her reasons in this case, the purpose of a provision
    like s. 42(6) of the Act is to ensure that a Municipality has a timely
    opportunity to investigate the place and circumstances of the accident:
Argue
(S.C.)
, at para. 61. While
    the onus is on the plaintiff to meet both branches of s. 42(8), that section does
    not use language that creates a presumption of prejudice resulting from the
    plaintiffs failure to give timely notice. As a result, whether or not
    prejudice results from the failure to give timely notice is a fact-based
    inquiry:
Zogjani v. Toronto (City)
, 2011 ONSC 1147, [2011] O.J. No.
    1002, at para. 18.

[56]

At
    the same time, in
Carmichael v. Edmonton (City),
[1933] S.C.R. 650,
    the Supreme Court of Canada observed that, where the injured party does not
    provide notice within ten days, an inherent probability of prejudice [arises]
    from the bare fact of the accident and the lack of notice. The Court noted
    that against this inherent probability of prejudice arising from the bare
    circumstances, there might, in many cases, be offered by a plaintiff important
    evidence that there was no prejudice: at p. 655. A plaintiff can address the
    inherent probability of prejudice with evidence showing other sources of
    information about the accidents circumstances: see
Argue
(S.C.)
, at para. 58;
Zogjani
, at
    para. 18. As noted by Hoy A.C.J.O., a plaintiff might adduce evidence that the
    City had taken steps to investigate the scene in spite of not having notice
    from the plaintiff, or by timely photographs of the scene having been taken by
    the plaintiff or by [the plaintiff] having obtained the name of a witness to
    the accident:
Argue
(S.C.)
,
    at para. 59, quoting
Langille v. Toronto (City),
2010 ONSC 443, 69
    M.P.L.R. (4th) 73, at para. 22.

Is There a Genuine Issue Requiring a Trial on the Issue of Prejudice?

[57]

The
    question of prejudice arises in the context of the statutory provisions
    imposing liability on the City for the failure to repair. Sections 42(1) and
    (2) of the Act

provide that the City is liable for all damages
    sustained by any person as a result of any default of the City in complying
    with its obligations to keep in a state of repair reasonable in the circumstances
    highways and bridges over which it has jurisdiction. It is acknowledged that
    if the appellants accident occurred on a City sidewalk
[7]
,
    it would come within this provision.

[58]

Section
    42(3)(c) of the Act provides that if there are minimum standards established by
    regulation in force at the time of the incident and those standards have been
    met, the City is not liable. At the time of the incident, the minimum standards
    in force stated that if a surface discontinuity on a sidewalk exceeded two centimetres,
    the minimum standard was to treat the surface discontinuity within 14 days.
[8]
The City contends that, if the lip did not exceed two centimetres at the time
    of the incident, it may have a statutory defence to the appellants claim. The
    regulation now provides in s. 16.1(2.1) that a surface discontinuity on a
    sidewalk is deemed to be in a state of repair if it is less than or equal to
    two centimetres. However that provision was not in force at the time of the
    accident. The City contends that the effect of the regulatory minimum standards
    in this case is the same.

[59]

Assuming,
    without deciding, that the City is correct in asserting that it would have a
    statutory defence to the appellants claim if the lip was in fact less than
    two centimetres, does the record enable this court to determine, with the
    degree of confidence required by
Hryniak
, that there is no genuine
    issue requiring a trial with respect to the issue of prejudice under s. 42(8)
    of the Act? We conclude that it does not, because of the existence of material
    facts in dispute, together with the incomplete nature of the record.

Material Facts in Dispute

[60]

The
    circumstances in this case differ from those in
Argue
,
where the plaintiff claimed her
    injuries had resulted from an accident caused by a pothole on the roadway. By
    the time she had given notice of her claim some two years after the accident,
    the pothole had been repaired. The plaintiff had not taken any measurement or
    photograph of the pothole, and she had no idea of the size of the pothole. There
    was no evidence to respond to the inherent probability of prejudice to the
    defendant municipality, which had no ability to investigate the circumstances
    of the accident as a result of the delay: see
Argue
(S.C.), at para. 65.

[61]

By
    contrast, in the present case, the appellant took photographs a few days after
    notice was given. She recalled seeing a significant lip in the sidewalk of at
    least one inch when she revisited the location of her fall a week after the
    accident. The City took measurements and photos before the area was repaired.
    The appellant provided the name and contact information of a witness, that the
    respondent attempted without success to contact, but only shortly before the
    motion.

[62]

So,
    unlike in
Argue
, in the present case the appellant has adduced
    evidence on the issue of prejudice. Evaluating this evidence will require, in
    part, an assessment of the appellants credibility and reliability, including
    weighing the evidence of her observations about the size of the lip of the
    sidewalk made a week after the accident against the Citys evidence that no
    problem with the sidewalk had been reported in its June 2011, annual
    inspection.

[63]

The
    City asserts that it has suffered prejudice because it lost the opportunity to
    take a definitive measurement of the area where the accident occurred as a
    result of the appellants delay in giving notice. In our view, whether the City
    will be prejudiced in its defence by not having taken measurements of the lip
    when the accident occurred, and whether such prejudice resulted from the
    appellants delay in giving notice, cannot be determined with confidence at
    this stage of the litigation.

[64]

First,
    the City had the opportunity to measure the lip before the area was repaired.
    It has evidence to support its statutory defence and, to the extent that this
    evidence is accepted, the appellant will have to establish that the measurement
    at that time did not reflect the conditions in August 2011, when she fell.

[65]

Second,
    it is far from clear at this stage that, had timely notice been given, the City
    would have measured the area of the lip before there was any possibility of
    winter conditions affecting the bricks.

[66]

The
    City did not measure the area where the accident occurred promptly upon receipt
    of notice. Although an independent adjuster and a field investigator attended
    at the location indicated in the appellants notice letter in January and April
    2012, they did not photograph and measure the area where the accident occurred.
    The only explanation for their failure to identify at that time the area of the
    lip is that the appellants counsel had neglected to respond to a request for
    information about the exact location of the accident.
[9]
The motion judge held that the notice was substantially sufficient, a finding
    that was not challenged on appeal.

[67]

The
    independent adjuster attended at the location indicated in the notice and took
    photos and measurements on January 9, 2012. He attended without first asking
    for more information about the location. As the motion judge observed, he
    photographed a spot right on the corner of Lonsdale and Spadina rather than the
    gap in the sidewalk that was located a small distance west of the southwest
    corner, as described in the notice letter.

[68]

There
    is contradictory evidence as to what Mr. Martino, the second field
    investigator, knew and what information he had before he took his May 18, 2012
    measurements: on discovery he said he had not seen the appellants photos,
    while on cross-examination he said he had. In any event, he did not have the
    information given to the respondents lawyer about the precise location of the
    accident before he attended, and he stated that he never learned exactly where
    the appellant tripped and fell. Nevertheless, on that occasion he took
    measurements all along the side of the sidewalk where it meets the
    interlocking brick boulevard, and he observed that there was no ledge in that
    area that exceeded two centimetres.

[69]

In
Argue
it was clear, at the motion for summary judgment stage, that a
    timely investigation of the accident location was not possible solely as a
    result of the plaintiffs two year delay in giving notice. In the present case,
    it is not clear to what extent, if at all, the appellants delay in giving
    notice prevented the Citys timely investigation of the accident.

The Incompleteness of the Record

[70]

In
    addition to the existence of material facts in dispute, the record on the issue
    of prejudice is incomplete. The City contends that there is a possibility
    that the interlocking bricks could have shifted due to temperature
    fluctuations, freeze-thaw cycles and maintenance activities between August
    2011, when the accident occurred, and May 2012, when its employee finally took
    measurements and photographs. The City states that the bricks could have been
    higher, lower or at the same level. There is no evidence at this stage about
    the climate conditions and precipitation, and how the interlocking bricks might
    have been affected, between the date of the accident and when notice was given
    in December 2011. In the absence of such evidence, it is not possible to know
    whether the inability to measure the area before the seasons changed will
    prejudice the City in its defence.

[71]

As
    in
Fremeau v. City of Toronto
(
2009),
    61 M.P.L.R. (4th) 279 (Ont. S.C.);
Delahaye v. Toronto (City)
, 2011
    ONSC 5031, 87 M.P.L.R. (4th) 100, and
Grant v. City of Kingston
, 2012
    ONSC 6332, 5 M.P.L.R. (5th) 263, leave to appeal refused, 2013 ONSC 4689, 13
    M.P.L.R. (5th) 60 (Div. Ct.), we conclude that the question of whether the City
    is prejudiced in its defence by the appellants delay in giving notice of her
    claim is a genuine issue requiring a trial.

Conclusion

[72]

For
    these reasons, we would allow the appeal. With respect to the Citys defence
    under s. 42(6) of the Act, while the appellant has a reasonable excuse for the
    delay in giving notice, whether the City is prejudiced in its defence as a
    result of the delay is an issue that shall be determined at trial. The
    appellant is entitled to costs in the agreed amount of $4,000, inclusive of HST
    and disbursements.

Released:  AH  MAY 08 2015

K. van Rensburg J.A.

D.M. Brown J.A.





[1]
On May 17, 2012, the appellants counsel, in an e-mail to the Citys counsel,
    responded to the adjusters request for the exact location of the fall. Mr.
    Martino did not see that e-mail before he measured the lip on May 18, 2012.



[2]
The appellant meant 25 millimetres, which is 2.5 centimetres.



[3]
The circumstances in this case bear some similarities to those in
Hennes v.
    Brampton (City)
, 2014 ONSC 1116, 20 M.P.L.R. (5th) 163. In
Hennes
,
    although the Court granted the City of Bramptons motion for summary judgment
    because the plaintiff had waited a year and a half after his fall to give
    notice to the City of his claim, the Court noted at para. 35 that it would have
    been reasonable for the plaintiff to give notice to the City roughly four and a
    half months after the fall  the moment when he was offered surgery on his left
    knee. In other words, had the plaintiff given notice to the City four and a half
    months after his fall (the moment when the full gravity of his injuries became
    apparent), it appears the Court would have concluded the plaintiff had a
    reasonable excuse for the delay in giving notice.



[4]
Para. 91 of the appellants factum reads as follows:

Whereas the
    learned motion judge made no finding as to whether or not the City was
    prejudiced by the Appellants delay in notice, the Appellant submits that this
    Honourable Court is in a position to make such a finding, based on the evidence
    before the court, both on the underlying motion, and on the present appeal.

A similar provision is
    included at para. 19 of the respondents factum.



[5]
Generally, nor should it send a matter on to trial simply because a motion
    judge has failed to deal with an issue on a summary judgment motion.



[6]
See
Minimum Maintenance Standards for Highways in the City of Toronto
,
    O. Reg. 612/06, s. 16.1(2).



[7]
The City contends that the appellant slipped and fell on the boulevard, not on
    a City sidewalk, and that the established standard of care is less for
    boulevards than for a sidewalk.



[8]
See
Minimum Maintenance Standards for Highways in the City of Toronto
,
    O. Reg. 612/06, s. 16.1(2).



[9]
This request was contained in a letter from the adjuster to the appellants
    counsel dated January 18, 2012, advising that the plaintiff had failed to
    comply with the notice period and that the City would rely upon s. 42(5) of the
    Act.


