City may be liable for Cyclist’s Injuries despite delay in Notifying City of Claim

Posted by Injury Lawyers of Ontario on December 03, 2020

Municipalities and cities may be found liable for a person’s injuries if they created or permitted an unsafe circumstance that contributed to the accident. For example, if a municipality failed to properly clear a road of snow or ice on a timely basis, and the municipality ought to have known that the condition of the road could become dangerous, then the municipality may be found liable for injuries sustained in a collision caused by the poor road conditions.  Similarly, a municipality may be found liable if the infrastructure in a city park was poorly maintained or constructed and someone was hurt as a result.

Stephenson v. Cheng is a recent civil action that began after a man was seriously injured when he was hit by a car while cycling in the City of Barrie, on July 29, 2015.  The cycling accident occurred at an intersection where only two of the four street lights were working and as a result, the intersection was poorly lit. The injured man sued both the municipality and the driver of the car and the lawsuit alleged that the state of disrepair due to insufficient lights contributed to the crash.

In Stephenson, the City brought an action to have the man’s claim against them dismissed summarily because the plaintiff didn’t give the municipality notification of his claim until June 15, 2016, almost one year after he was injured.  Under the Municipal Act, injured persons are obligated to provide the municipality with written notice of their claim and injury within 10 days of their accident.  The City argued that the plaintiff did not have a reasonable excuse for giving notification past the deadline and further, the lighting at the scene and the circumstances of the accident can no longer be recreated so the City is prejudiced due to the delay in notification.

In the City’s motion for a summary judgment to have the case dismissed against them, the onus was on the Plaintiff to provide a reasonable excuse for being late and also, to convince the court that the City was not prejudiced (or unfairly disadvantaged in their defence).

Does the plaintiff have a reasonable excuse for missing the notification deadline?

The plaintiff didn’t become aware that there may have been malfunctioning lights until weeks after the accident when family members brought this circumstance to the attention of the plaintiff’s lawyer and a private investigator was hired to look into the situation. However, by the time the investigator checked out the intersection, on August 24th, all the street lights were functioning, since the lights were all replaced on August 13th as part of a program to convert bulbs to LED.

Between August 25th, 2015 and March 7th, 2016, the plaintiff's investigator made five requests to police to release the complete police file, but the file wasn’t given to the investigator until May 25th, 2016.  The file included the Executive Summary Report which documented all the collision details, including scene analysis and collision details, and it reported that at the time of the accident, the northwest and southeast lights were burnt out at the intersection and it was particularly dark.  The report also concluded that lighting played a part in the driver’s visibility and it would have been difficult to see the cyclist.  On June 13, the investigator forwarded the file to the plaintiff’s lawyer and on June 15, the City received notification of the accident victim’s potential claim.

The judge concluded that the plaintiff had a reasonable excuse for his delay in notifying the City of his claim for the following reasons.  There was no untoward delay in hiring the investigator or in checking out the scene of the accident and it was simply unfortunate that the lighting situation had been altered by the time the investigator arrived at the scene.  Also, the plaintiff didn’t become aware of the City’s actions and potential negligence until the police provided their complete file and the investigator made every effort to obtain the file sooner.

Has the City been unfairly disadvantaged by the late notification?

The City argued that they are prejudiced by the late notice because they lost an opportunity to determine why the lights were not working on the date of the cycling accident, and they no longer have the original lights and cannot reconstruct the lighting as it was when the collision occurred. 

The judge noted that the Executive Summary Report states specifically that the intersection was particularly dark on the evening of the collision and that the fact that two lights were not working was a factor in the reduced visibility.  The darkness of the intersection was also captured in several photographs taken at the scene.  Finally, a number of witnesses confirmed that the intersection was poorly illuminated.  Given this evidence and the belief that there is not “a dearth of information that could be of assistance to the City”, the judge dismissed the City’s motion to have the claim against them dismissed summarily and found that whether or not the City was prejudiced by the notification delay is a genuine issue requiring a trial.

If you were injured in a motor vehicle accident, talk to an experienced Barrie accident claim lawyer to find out about your legal rights and what's involved in making a successful claim for compensation.   Of course, the first and most important step after being injured in an accident is to seek medical treatment to ensure your injury is being properly assessed and is not at risk of worsening. It's also a good idea to seek legal advice so that you aren't at risk of missing any deadlines for filing your claim or notifying the municipality of your injury, if municipal negligence may have been a factor in causing your injury.

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