



COURT OF APPEAL FOR ONTARIO

CITATION: Psaila v. Kapsalis, 2022 ONCA 37

DATE: 20220119

DOCKET: C69250

Huscroft, Trotter and Coroza
    JJ.A.

BETWEEN

Peter J. Psaila

Plaintiff (Appellant)

and

Nick Kapsalis and John Kapsalis
    and
City of Toronto

Defendants (
Respondents
)

Joseph Campisi Jr., Ashu Ismail and
    Peter Murray, for the appellant

Natalie D. Kolos and Edona C. Vila, for
    the respondent City of Toronto

Heard: January 13, 2022 by
    video conference

On appeal from the order of Justice Susan
    Vella of the Superior Court of Justice, dated February 19, 2021.

REASONS FOR DECISION

[1]

The appellant argues that the motion judge erred
    in granting summary judgment, dismissing his action against the respondent City
    on the basis that he failed to provide timely notice as required under s. 42(6)
    of the
City of Toronto Act
, 2006
, S.O. 2006, c. 11, Sched. A,
    and had no reasonable excuse. It was not disputed that the accident in question
    occurred on March 28, 2015, and that the City did not receive notice until
    April 2, 2018, well outside the 10-day period required by the Act.

[2]

The appellant submits that the motion judge made
    palpable and overriding errors in finding that he was making a left turn at the
    intersection and in misapprehending the expert opinion in the Wilkinson report
    filed by the respondent.

[3]

We disagree.

[4]

First, it is not clear that the motion judge found
    that the appellant was making a left turn. Her decision contains a single
    reference to the parties each attempting a turn. But even assuming that this
    finding was in error, it had no impact on her decision that the appellant had
    no reasonable excuse for failing to provide timely notice.

[5]

Second, the motion judge gave the appellant the benefit
    of a broad and liberal interpretation of reasonable excuse. She found that
    the appellant and his litigation guardian were in possession of sufficient
    facts to warrant hiring an expert to inspect the intersection by the time
    examinations for discovery were completed in February 2017, rather than waiting
    until the defendants produced their expert report. This finding was open to her
    on the record.

[6]

The appellant knew the location of the accident, knew
    of the Citys responsibility for designing and maintaining it, and knew that
    the defendants were blaming him for failing to avoid the collision. As the
    motion judge noted, the defendants allegation was premised on the assumption
    that the design and layout of the intersection permitted a reasonably prudent
    driver to have seen the defendants vehicle and take defensive action to avoid
    a collision. Her conclusion that this should have led the appellants to
    investigate the intersection and put the City on notice of a potential claim is
    reasonable. We note that the motion judge found, in the alternative, that at
    the very latest the appellant should have provided
the City with notice
    within 10 days of receiving the Wilkinson Report, but did so only two months
    after receiving it.

[7]

In summary, the motion judge did not err in concluding that the
    appellants failed to establish a reasonable excuse for their delay in providing
    notice. Her decision is reasonable and entitled to deference.

[8]

The appeal is dismissed. The respondent is entitled to costs in
    the agreed amount of $10,000, all inclusive.

Grant
    Huscroft J.A.

Gary
    Trotter J.A.

S.
    Coroza J.A.


