'There is a clear evidentiary gap that the plaintiff did not address, let alone explain,' judge says
Due to the plaintiff’s failure to provide a reasonable excuse for delivering materially deficient notices for his claim, the Ontario Superior Court of Justice has granted a defendant city’s motion for summary judgment dismissing the personal injury action.
In Fernando v. Niagara Falls (City), 2021 ONSC 7350, the plaintiff and his wife, son-in-law and grandchild were walking from a Days Inn in Niagara Falls, Ont. to a cheering event at the Scotiabank Convention Centre on April 8, 2017, when he slipped and fell. He suffered a broken humerus, which required surgery. The plaintiff alleged that an accumulation of ice on the sidewalk and roadway caused him to fall.
The city was notified of the action arising from the fall in the location described by the plaintiff as “near” the convention centre on April 18, 2017. The location provided, however, was incorrect. By late June 2017, the plaintiff provided a more accurate description of the place but the precise location of the incident, which was several hundred meters away from the one initially identified, was not determined until January 2018.
The city argued that the deficiencies in the notices served on the plaintiff’s behalf meant that his claim was statute-barred. The defendant then sought summary judgment dismissing the action.
The judge noted that the legal burden for establishing that there was no “genuine issue requiring a trial” rested on the city’s shoulders. But since the notices served on the plaintiff’s behalf did not meet the statutory standard until well after the ten-day period has passed, the plaintiff must then meet an evidentiary standard. Something the plaintiff failed to do.
According to the court document, two adult family members were with the plaintiff when he fell, but neither of them provided an affidavit. He did not mention his spouse or his son-in-law in his claim, even though they helped him during the incident and one of them called an ambulance.
“There is a clear evidentiary gap that the plaintiff did not address, let alone explain,” the judge wrote.
When asked about his spouse and son-in-law during cross-examination, the judge described the plaintiff as vague. The plaintiff postulated that his wife did not remember where he fell but then was unsure whether he had even asked her. He also said that he did not remember whether he had asked his son-in-law for assistance or not.
“The court is required to consider all of the circumstances when addressing the issue of reasonable excuse,” the judge wrote. “However, some of them are shrouded in mystery because the extent of the knowledge of two of the plaintiff’s family members who were present is unknown. There is no direct evidence from them. There is not even an account based on information and belief.”
While the city was not able to establish prejudice, the plaintiff failed to provide a reasonable excuse for the insufficiency of the notices, leading the court to dismiss the action on summary judgment.
