In Azzeh (Litigation guardian of) v. Legendre,  O.J. No. 2401, the Ontario Court of Appeal examined the law on limitation periods and notice periods in the context of civil claims commenced on behalf of minors against municipal road authorities.
On September 7, 2007, the 17-day old plaintiff minor sustained a brain injury in a two vehicle motor vehicle accident in the City of Greater Sudbury. The infant was a passenger in a vehicle driven by his mother. In 2014, the infant’s mother initiated a claim against the driver and owner of the other implicated vehicle on his behalf. In 2015, the infant’s grandmother, acting as litigation guardian, brought a motion to add the City of Sudbury as a defendant to the action, alleging road design issues.
Motion to Add City as Defendant
The City opposed the motion to add it as a party to the action on the basis that the claim against it was statute-barred, pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24. The City argued that the limitation period began to run in April 2008 when a statement of claim was issued “for both mother and son from the same accident”, or alternatively, in October 2011, when the mother initiated an application for statutory accident benefits on the infant’s behalf, signing it as “guardian”. Rejecting the City’s arguments, the motions judge found that the two-year limitation period did not begin to run until the infant plaintiff was represented by a litigation guardian, namely, June 11, 2014, when a statement of claim was issued by the mother on his behalf. The judge held that the action against the City was not statute-barred, pursuant to s. 6 of the Limitations Act, 2002, and that the infant’s claim was filed within the limitation period.
The City’s secondary argument was that it did not receive notice of the claim against it within 10 days of the accident, as prescribed under s. 44(10) of the Municipal Act, 2001, S.O. 2002, c. 25. The motions judge also rejected this argument, finding that the 10-day notice period began in May 2015 when the grandmother swore an affidavit seeking to become the infant’s litigation guardian. Given that the grandmother notified the City of the claim against it two days following her appointment, the notice requirement was met and the claim against the City was valid.
The City appealed the ruling. On May 17, 2017, a majority of Court of Appeal denied the appeal on the basis of the two-year limitation period but allowed it on the basis that the 10-day notice period had been missed.
The Court found that the 10-day notice period began to run in June 2014, when the mother first issued the statement of defence on the infant’s behalf. Notice against the City was not filed until nearly a year later in May 2015. The court recognized that the once the mother retained a lawyer for the purpose of pursuing a personal injury claim on her child’s behalf, she was “capable of forming the intention” to sue the City within the notice period. Although the mother never filed an affidavit to be recognized as a litigation guardian, she “held herself out” as litigation guardian in other proceedings related to the accident and as such, the notice period was not suspended.
Citing s. 44(12) of the Municipal Act, 2001, the court noted that failure to give notice of claim does not bar an action if the claimant has a reasonable excuse for not doing so and if the municipality is not prejudiced by the delay. In reviewing the record, the Court observed that the only explanation provided by the mother for not suing the City earlier was that “this never came up”. The Court found that this was not a reasonable excuse for the mother’s failure to provide the City with timely notice of the infant’s claim. As the notice period had expired and no reasonable excuse was provided, the Court did not address the issue of prejudice to the City.
The Court of Appeal thus set aside the motion judge’s ruling and dismissed the claim against the City.
Implications for the Future
This decision is a surprising and refreshing decision for municipal road authorities as it gives teeth to the 10-day notice period in a case that was factually unsympathetic to the defence. The pièce de résistance of this decision is to always explore when counsel was retained on behalf of the infant litigant as this could be the trigger date of when the notice period under the Municipal Act, 2001 begins to run.