



COURT OF APPEAL FOR ONTARIO

CITATION: Argue v. Tay (Township), 2013 ONCA
    247

DATE: 20130419

DOCKET: C55997

Weiler, Sharpe and Rouleau JJ.A.

BETWEEN

Robin Argue

Plaintiff (Appellant)

and

The Corporation of the Township of Tay

Defendant (Respondent)

David A. Morin and Dale W. Lediard, for the appellant

Andra Maxwell-Baker and Zohar Levy, for the respondent

Heard: April 18, 2013

On appeal from the judgment of Justice Guy P. DiTomaso of
    the Superior Court of Justice, dated August 10, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the motion judge erred in dismissing the
    action of the basis that it was statute barred under s. 44(10) of the
Municipal
    Act
.  We disagree.

[2]

There is no issue that the appellant did not give notice of her claim in
    writing as required within 10 days under s. 44(10).  She, therefore, had the
    onus of establishing a reasonable excuse under s. 44(12) for not doing so and
    that the municipality was not prejudiced.  After considering the evidence, the
    motion judge gave careful and considered reasons for holding that the appellant
    failed to establish a reasonable excuse and that the municipality was not
    prejudiced.

[3]

We see no error in his analysis or in his application of the relevant
    principles.  Nor did he reverse the overall burden of proof on the motion for
    summary judgment.

[4]

Accordingly, the appeal is dismissed.  Costs of the appeal to the
    respondent are fixed in the amount of $7,028, inclusive of disbursements and
    applicable taxes.


