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Beware Of Special Rules When Suing A Municipality

Accident victims should retain counsel as soon as possible after injuring themselves on city-owned property due to special rules that apply in those cases, says Windsor personal injury lawyer Gino Paciocco.

Paciocco, a founding partner of Paciocco & Mellow, tells us that while plaintiffs have two years to file a civil claim, provincial law requires an extra step for cases involving a municipality.

Under s. 44 (10) of the Municipal Act, actions against a city for negligence are barred unless “within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail” to the clerk of the municipality.

In cases where responsibility for the road or bridge in question is shared, the clerk for each jurisdictions must receive notice, the Act says.

“If you miss the 10-day notice period, in some circumstances it can defeat your claim altogether. There are some exceptions to that general rule which is why it is important to see a lawyer as soon as you are injured to protect your rights,” Paciocco says.

“Verbal notice is not sufficient to comply — it must be in writing,” he adds. “We can ensure that rights are protected by sending a notice letter. And if you missed the 10-day period, we can advise if you meet any exceptions to maintain a valid claim in any event.”

Paciocco says municipalities can find themselves liable when property that belongs to them is left in a hazardous condition, or not maintained for an extended period of time.

“In our experience, slip and fall incidents on municipal sidewalks are the most common claims,” he says. “We also have claims for falls and motor vehicle accidents due to icy conditions of roadways, although those are much less frequent.’

As recently as this summer, a family discovered the hard way how strict the notice period can be after Ontario’s top court dismissed their claim against a northern Ontario municipality.

The roots of the case lie in a 2007 accident that left their 17-day-old son brain damaged. A claim was launched in 2014 against the driver and owner of the other car in the crash, but the city was not added as a defendant until almost a year later, two days after the child’s grandmother swore an affidavit to become his official litigation guardian.

A motion judge dismissed the city’s attempt to have the claim struck, concluding that the 10-day notice period did not start to run until after the grandmother took on her duties. In any case, the judge ruled that the plaintiff being a child was a reasonable excuse for missing the deadline and that it caused the municipality no prejudice.

However, the Court of Appeal disagreed, finding that the child’s mother was effectively acting as his litigation guardian when she filed the original suit on his behalf.

“She had no conflict of interest in relation to suing the City, and she had a good reason to try to limit her own potential liability by suing the City,” the unanimous three-judge panel wrote.

“The only explanation in the record for not doing so is [the mother’s] evidence that, ‘this never came up.’”

Since this was not a reasonable excuse, the appeal court concluded the case against the municipality should be dismissed.


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