COURT OF APPEAL FOR ONTARIO

CITATION: Ross v. Bacchus, 2015 ONCA 347

DATE: 20150515

DOCKET:
C58102

Doherty, Pepall and van Rensburg JJ.A.

BETWEEN

Bryan Ross

Plaintiff (Respondent)

and

Shaheed Bacchus

Defendant (Appellant)

Todd J. McCarthy, for the appellant

D. Robert Findlay and T. Andrew Sprung, for the
    respondent

Heard: April 23, 2015

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, sitting with a jury, dated November 27, 2013 and
    the costs order, dated December 16, 2013, with reasons reported at 2013 ONSC
    7773.

Doherty J.A.:

I

OVERVIEW

[1]

Bryan Ross (the respondent) was stopped at a red light on his motorcycle
    when a vehicle driven by Shaheed Bacchus (the appellant) struck him from
    behind. Mr. Ross sued, claiming injuries to his back, neck, hip and knees. A
    jury awarded Mr. Ross damages of $248,000. The trial judge ordered costs and
    disbursements payable to Mr. Ross in the amount of $217,000 plus HST. The costs
    order included $60,000 awarded by the trial judge because Mr. Bacchuss insurer
    had failed to attempt to settle the claim as expeditiously as possible, and had
    refused to participate in the mediation of the claim, as required by ss. 258.5
    and 258.6 of the
Insurance Act
, R.S.O. 1990, c. I.8. Those provisions
    provide that a trial judge can take the insurers failure to perform those
    obligations into consideration when awarding costs. Mr. Bacchus appeals both
    damages and costs.

[2]

In his appeal from the damages award, counsel for the appellant raised
    various issues in his factum. He concentrated on two arguments in his oral
    submissions. I will address only those arguments in these reasons.
[1]
Counsel submits that the interventions by the trial judge throughout the trial
    destroyed the appearance of judicial impartiality, rendered the trial unfair,
    and resulted in a miscarriage of justice. Counsel also argues that the trial
    judge misdirected the jury on the issue of causation.

[3]

The appellant also seeks leave to appeal the costs award. Counsel made
    several submissions in his factum attacking the costs order, but limited his
    oral argument to a single point. Counsel submits that the trial judge erred in
    awarding the respondent $60,000 in costs to reflect the appellants insurers
    failure to attempt to settle the claim as expeditiously as possible, and the
    insurers refusal to participate in the mediation of the claim. Counsel contends
    that there is no evidence that the insurer failed to attempt to expeditiously
    settle the claim. In addition, he submits that the evidence actually demonstrates
    that the insurer participated in an eleventh hour mediation requested by
    counsel for the respondent.

[4]

I would dismiss the appeal from the damages award. There is no merit to
    the argument that the interventions by the trial judge destroyed the appearance
    of impartiality and resulted in a miscarriage of justice. The instructions to
    the jury properly captured the causation requirement even if the trial judge
    did not use the exact words from the most recent jurisprudence.

[5]

I would grant leave to appeal the costs order and allow the appeal by
    deleting the $60,000 the trial judge awarded to reflect the insurers failure
    to comply with its obligations under ss. 258.5 and 258.6 of the
Insurance
    Act
. The record does not support the trial judges findings that the
    insurer failed to attempt to settle the claim expeditiously and its
    participation in the mediation was a sham.

II

THE TRIAL JUDGES INTERVENTIONS

[6]

Judicial interventions in the course of a trial can, by their content,
    nature, number or a combination of the three, result in a miscarriage of
    justice. The interventions considered as a whole may reveal a reasonable
    apprehension of bias or result in an impermissible interference with the proper
    role of counsel. In either event, the interventions will destroy the appearance
    of justice, an essential element in any trial:
Ross v. Hern
, [2004]
    O.J. No. 1186 (C.A.), at paras. 11-13;
Osterbauer v. Ash Temple Ltd.
(2003)
, 63 O.R. (3d) 697 (C.A.), at
    paras. 10-11.

[7]

In his factum, counsel for the appellant focused on interventions by the
    trial judge during the cross-examination of the main expert called by the respondent
    at trial. In oral argument, however, counsel took the court to three interjections
    by the trial judge during the cross-examination of the respondent and a series
    of interjections by the trial judge during the re-examination of the respondent.
    Counsel advised that these interruptions, standing alone, would not merit appellate
    intervention, but were provided to give necessary context and meaning to the improper
    interventions that occurred during the testimony of the respondents expert.

[8]

I have read and re-read the 80-page cross-examination of the respondent.
    Appellate counsels submission that the cross-examination is riddled with
    unsolicited interventions by the trial judge is unsupported by the record. As
    in any trial, the trial judge interrupted both counsel from time to time. The
    interruptions during the respondents cross-examination were mainly brief, and so
    innocuous as to be almost unnoticeable.

[9]

I turn now to the three interventions highlighted by counsel for the
    appellant in his oral argument. The first occurred when Mr. Ross testified that
    he did not recall telling the police officer at the scene that he did not
    sustain any injuries in the accident.  Trial counsel for the appellant sought
    to cross-examine the respondent on evidence he had given at his discovery. The
    trial judge had a transcript of the discovery.  As counsel began to put a
    portion of the respondents discovery evidence to him, the trial judge said:

Wait a minute. How is this inconsistent with what he has just
    told us?

[10]

A
    brief exchange ensued between the trial judge and counsel for the appellant. Counsel
    then said:

For some reason I misinterpreted that he had not told the
    officer that. Thats fine, Ill just go on.

[11]

Clearly,
    counsel intended to cross-examine the respondent on part of his discovery, but upon
    a further examination of the transcript prompted by the trial judges question,
    decided that there was no inconsistency between the discovery evidence and the
    evidence at trial. Counsel moved on.

[12]

The
    trial judge cannot be criticized for asking counsel to clarify the purpose of
    the proposed cross-examination. As became obvious, the trial judges question
    was well-founded, as counsel had apparently misapprehended the discovery
    evidence. The trial judges inquiry avoided cross-examination on a non-existent
    inconsistency. This sort of judicial intervention, standard fare in any jury
    case, could not possibly have had any adverse effect on the appearance of the
    fairness of the trial.

[13]

In
    this court, counsel for the appellant submitted that the trial judges
    interruption was improper because the respondents discovery evidence was
    admissible at the behest of the appellant without any demonstration of
    inconsistency: see
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, rule
    31.11(1). No doubt, a party can read in the discovery of an adverse party as part
    of its case. That is not what trial counsel was doing during the
    cross-examination of the respondent. Counsel wanted to use the respondents
    discovery to impeach the respondents trial testimony based on an alleged inconsistency:
    see rule 31.11(2). That effort was abandoned when, in response to the trial
    judges question, it became clear to counsel that there was no inconsistency.

[14]

The
    second incident during cross-examination of the respondent, said by counsel for
    the appellant to have skewed the fairness of the trial, occurred when trial counsel
    for the appellant put certain physiotherapists notes to the respondent. Counsel
    asked:

And would there  and any reason why, in those 22 treatment
    notes, theres no reference to your left knee pain?

[15]

The
    trial judge interrupted to point out that the respondent was not the author of
    the physiotherapists notes and could not explain why something was not in
    those notes. Counsel quickly revised the question, asking:

And you didnt  and during those 22 treatments you didnt make
     you didnt complain of any left knee complaints to the therapist.

[16]

The
    trial judges brief and appropriate interjection caused counsel to reframe the
    question and proceed with his cross-examination. The intervention had no adverse
    impact on counsels conduct of his cross-examination or the appearance of
    fairness in the proceeding.

[17]

The
    last of the three interventions relied on by counsel for the appellant arose
    when counsel was questioning the respondent about an entry in a document. It
    would appear from the transcript that the relevant part of the document was
    difficult to read. The trial judge, referring to that part of the document,
    said:

Its very small it says shortage of work.

[18]

The
    witness agreed with the trial judges reading of the entry. Counsel for the
    appellant did not suggest any different reading and continued his
    cross-examination.

[19]

It
    is beyond me how this interjection could be given any sinister connotation. Nothing
    in the trial record suggests that anyone at the trial took the trial judges
    comment as anything but a
bona fide
attempt to read the entry in the
    document on which the respondent was being cross-examined.

[20]

Counsel
    for the appellant also takes issue with the trial judges interventions during
    the re-examination of the respondent. The re-examination covers some 11 pages
    of the trial transcript. The trial judge interrupted trial counsel for the
    respondent early in his re-examination and, to a limited extent, took over
    parts of that re-examination. His intervention was probably unnecessary and may
    have caused some confusion in the re-examination. Considered in the context of
    the entire trial, however, the intervention bordered on trivial, and did not
    impair the appearance of the fairness of the trial, or prevent the appellant
    from presenting his case at trial.

[21]

I
    come now to the interventions during the cross-examination of the respondents
    expert. Counsel for the appellant submits that these interventions demonstrate
    the trial judges bias and resulted in a miscarriage of justice.

[22]

The
    trial judges comments challenged by counsel for the appellant begin some 21
    pages into a 24-page cross-examination of the expert. Trial counsel for the
    appellant had spent some time establishing the basis for the experts opinion
    and, in particular, establishing that the statements made by the respondent to
    the expert were relied on by the expert in coming to his opinion. The
    cross-examination continued:

Q.      Well, no, youre aware of what he [the respondent] tells
    you.

A.      Correct.

Q.      The assumptions that you receive from him, as you said
    earlier, you believe are true, correct?

A.      Absolutely.

Q.      Okay.

A.      Well I believe them true, but I do my own assessment.

Q.      You do your own assessment

A.      Of course.

Q.
b
ut it sounds to me like hes providing you
    with inaccurate assumptions when you take into consideration his evidence
    yesterday thats what Im saying.
[Emphasis
    added.]

[23]

Counsels
    last question prompted the trial judge to interrupt with the observation that the
    witness could not answer the question as posed, but could identify the sources
    of information he had relied on in preparing the report. The trial judge was
    correct in his observation. It was not for the expert to characterize statements
    made to him by the respondent as accurate or inaccurate. That was a question
    for the jury.

[24]

Trial
    counsel continued his cross-examination of the expert and his attempt to
    establish that parts of the experts report were based on statements made by
    the respondent. Counsel suggested to the expert that he had relied on factual
    assumptions and the medical record to prepare this report. The witness
    disagreed. Before counsel could pose a further question, the trial judge
    intervened and reiterated his concern about the line of questioning. After a
    brief exchange between counsel and the trial judge, the trial judge said:

Dont ask him to tell you whats true and whats not, he cant
     and based on the evidence hes heard  hes an expert and hes giving an
    opinion based on a hypothetical. The jury will be told to find the facts
    whether the hypothetical resembles the true facts or not and whether theres
    any difference, any material difference in what he assumed, and what are the
    true facts as they find them.

[25]

Counsel
    replied:

Okay, fair enough then; those are all my questions.

[26]

It
    may be that this additional intervention was unnecessary. However, that is as
    far as any legitimate criticism of the intervention can go. Nothing said by the
    trial judge interfered with counsels ability to cross-examine the expert, or would
    suggest to a reasonable observer that the trial judge had placed the weight of
    his office on the respondents side of the scale. The final comment by the
    trial judge made the defence position clear. It would be for the jury, and not
    the expert, to decide the true facts.

[27]

I
    have considered the interjections identified by counsel for the appellant. I
    have placed those interventions in the context of the entire record. None merit
    appellate sanction. Nor can I assume, as counsel argued the court should, that
    the interventions were made in a tone of voice that demonstrated the trial
    judges hostility toward the appellants case.

[28]

In
    summary, most of the interventions were appropriate. A trial judge is obliged
    to see to it that questions put to witnesses comply with the rules of evidence.
    Some of the interventions may have been unnecessary and some may even have
    suggested a degree of impatience with counsel. None, however, compromised the
    appearance of the fairness of the trial. There is no merit to this ground of
    appeal.

III

THE CAUSATION ISSUE

[29]

The
    trial judge told the jury:

He [the appellant] is not,
    however, liable to compensate the plaintiff for injury he did not cause.

In law, the cause of an
    injury is the cause which produces the injury, and without which the result
    would not have happened.
This does not mean that the law recognizes only
    one cause of an injury. There may be more than one effective or proximate cause
    of the injury. The accident was a cause of an injury if it was a direct
    contributing cause. [Emphasis added.]

[30]

Counsel
    for the appellant submits that the instruction is inconsistent with the
    language used in
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R.
    181, at para. 46. Counsel argues that the trial judge was required to use the
    phrase but for in explaining causation to the jury.

[31]

The
    argument favours form over substance. The trial judge, in explaining causation to
    the jury, referred to the cause which produces the injury, and without which
    the result would not have happened. The latter part of this is a but for
    instruction on causation. Nothing said by the trial judge in the rest of his
    charge detracted from this language.  No objection was made to the causation
    instruction. The failure to use the phrase but for in describing causation is
    not reversible error as long as the words used to describe the causation
    requirement convey the correct meaning to the jury.

[32]

I
    would not give effect to this ground of appeal.

IV

THE COSTS ORDER

[33]

The action was commenced in September 2010. The appellants insurer
    offered to settle the claim for $40,000 in August 2011 and withdrew that offer
    in March 2012.

[34]

In
    late October 2013, about three weeks before the trial was to commence, counsel
    for the respondent offered to settle the claim for $94,065, plus prejudgment
    interest and costs. The respondent also requested mediation for the first time.

[35]

Trial
    counsel for the appellant replied to the respondents offer the next day with
    an offer to settle for $30,001, plus prejudgment interest and costs. Counsel also
    agreed to a half-day mediation, but advised [the insurers] are not interested
    in settling this case. Counsel for the respondent replied with an offer to
    settle in the amount of $79,065, plus prejudgment interest and costs.

[36]

A
    half-day mediation was held on November 14
th
. The trial commenced on
    November 18
th
and, after a six-day trial, the jury awarded the
    respondent damages of $248,000. This amount was more than triple the amount of
    the respondents last offer.

[37]

The
    trial judge awarded the respondent costs on a partial indemnity basis to
    October 28, 2013, the date of the respondents first offer, and costs on a
    substantial indemnity basis after that date. The trial judge accepted the amounts
    claimed by the respondent as reasonable.  He awarded costs of $140,000, $17,000
    in disbursements, and $60,000 for the insurers failure to comply with ss. 258.5(5)
    and 258.6(2) of the
Insurance Act
. With HST, the costs award totalled
    $245,210.

[38]

In
    his factum, counsel for the appellant argued that the trial judge should not
    have granted costs on a substantial indemnity basis and that the amount awarded
    was excessive.  Counsel acknowledged in oral argument that the award of costs
    on a substantial indemnity basis after the date of the first offer was
    appropriate given the jurys verdict.  Counsel did not pursue arguments
    relating to the quantum of costs in oral argument.  The amount awarded was
    proportional and fair having regard to the issues and the length of trial.

[39]

Counsels
    oral argument focused on the trial judges award of an additional $60,000 in
    costs to reflect the appellants insurers failure to attempt to settle the
    action expeditiously and failure to participate in mediation. He contends that
    there is no evidence to support either finding. Counsel submits that the
    evidence shows that the appellants insurer did participate in mediation in a
    timely fashion after the respondent requested mediation, even though the trial
    was scheduled to commence less than one week later.

[40]

Counsel
    for the appellant argues that s. 258.6 of the
Insurance Act
does not
    contemplate an inquiry into the quality of the insurers participation in the
    mediation. He contends that any attempt to assess the
bona fides
of the
    insurers participation in the mediation will inevitably run aground on the
    privilege attaching to communications made for the purpose of settlement in the
    course of mediation: see
Union Carbide Canada Inc. v. Bombardier Inc.
,
    2014 SCC 35, [2014] 1 S.C.R. 800, at paras. 38-39. Finally, counsel argues that,
    apart from the privilege question, there is simply no evidence to justify the
    trial judges description of the insurers participation in the mediation as a sham.

[41]

Insurers
    defending claims for damages arising out of motor vehicle accidents are
    statutorily obliged to attempt to settle the claims as expeditiously as
    possible:
Insurance Act
, s. 258.5. Similarly, insurers are obliged,
    on request of the opposing party, to participate in a mediation of the claim:
Insurance Act
, s. 258.6. Failure to comply with either obligation
    shall be considered by the court in awarding costs:
Insurance Act
,
    s. 258.5(5), s. 258.6(2). These and related provisions are a clear expression
    of the Legislatures intention to promote the early and expeditious settlement
    of claims arising out of motor vehicle accidents:
McCombie v. Cadotte
(2001)
, 53 O.R. (3d) 704 (C.A.), at
    paras. 15-17.

[42]

In
Keam v. Caddey
, 2010 ONCA 565, 103 O.R. (3d) 626, this court
    considered the obligations imposed on insurers under ss. 258.5 and 258.6 of the
Insurance Act
. In that case, the insurer had declined two requests by
    the insured to participate in mediation, taking the position that the claim did
    not exceed the applicable threshold. No mediation was ever held.

[43]

The
    court began by rejecting the insurers contention that it could decline
    mediation based on its good faith assessment of the merits of the claim. The language
    of the relevant provisions of the
Insurance Act
made it clear that
    mediation was mandatory if requested by either side:
Keam v. Caddey
,
    at paras. 20-23. The court next considered the rationale that underlies costs
    awards pursuant to ss. 258.5 and 258.6. After recognizing the discretionary
    nature of the orders contemplated by those provisions, Feldman J.A. said, at
    para. 28:

Morden J.A. [in
McCombie v. Cadotte
] describes the costs
    sanction as a remedial penalty. It is remedial because it is intended not
    only to compel compliance by insurers with an important statutory purpose, but
    also to provide a remedy to the other party who was deprived of the opportunity
    for an early settlement of the claim. It is a penalty because it is not
    intended to be merely compensatory of costs unnecessarily incurred by the other
    party or parties, as that objective is already addressed by other costs
    provisions of the
Rules of Civil Procedure
, but to provide a meaningful
    consequence to an insurer that elects not to comply.

[44]

In
    that case, the court found that the insurers refusal to participate in the
    mediation warranted a costs award of $40,000, indicating, at para. 32, that the
    amount was necessary to reflect the censure of the court and to provide an
    appropriately significant recovery for the appellants. See also
Williston
    v. Gabriele
, 2013 ONCA 296, 115 O.R. (3d) 144, at paras. 25-27.

[45]

The costs sanctions in ss. 258.5(5) and 258.6(2) are clearly intended to
    penalize insurers for non-compliance with their statutory obligations in the
    specific case and to encourage those same insurers to comply with those
    obligations in future cases. The amounts awarded should be sufficient not only
    to sanction the particular breach, but to give insurers a strong financial
    incentive to comply with their obligations in the future.

[46]

The
    costs sanctions in ss. 258.5 and 258.6 can only serve their intended purposes if
    the facts justify the imposition of those sanctions. An insurers statement on
    the eve of trial that it is not prepared to settle a claim cannot be equated
    with an insurers failure to attempt to settle the claim as expeditiously as
    possible. Nor can an insurer who actually participates in a mediation be
    declared to have failed to participate simply because the insurer indicated
    prior to the mediation that it was not prepared to settle the claim. A clear statement
    of the insurers position going into the mediation, even a strong statement,
    does not preclude meaningful participation in a mediation.

[47]

There
    is no evidence that the appellants insurer failed to attempt to settle this
    claim as expeditiously as possible. The appellant made an all-in offer to
    settle for $40,000 in August 2011, less than one year after the action was
    commenced.  The respondents Rule 49 offer, his request for mediation and the
    mediation itself all occurred less than three weeks before the commencement of
    the trial.  The appellant counteroffered during that same period and attended
    the mediation.

[48]

There
    is also no evidence that the insurer did not participate in the mediation in a
    meaningful way. The trial judge assumed that because the insurers counsel
    advised that his client was not interested in settling the case, the
    insurers subsequent participation in the mediation was a sham. The
    assumption was unwarranted. A firm position strongly put going into mediation
    does not preclude meaningful participation in the mediation.  In any event, the
    insurer had made a settlement offer which was not revoked before trial.

[49]

The
    appellants submission that the settlement privilege effectively prevents any inquiry
    into the conduct of the parties during the mediation raises an interesting legal
    issue. I need not get into that issue. The respondent failed to adduce any
    evidence as to the manner in which the mediation proceeded and relied entirely
    on the insurers indication that it was not interested in settling the claim
    some three weeks before trial. If the respondent wanted costs for the insurers
    failure to participate in the mediation, it was incumbent on the respondent to lead
    evidence establishing the failure to participate in the mediation. Had the
    respondent attempted to do so, the question of the impact of the settlement
    privilege on the admissibility of evidence relevant to the insurers participation
    in the mediation may have come front and centre. On this record, the trial
    judges finding that the insurer did not participate in the mediation fails, not
    because the settlement privilege cloaks the mediation in confidentiality, but
    because the factual finding of the trial judge has no support in the evidence.

[50]

In
    ordering the costs sanctions under ss. 258.5 and 258.6, the trial judge was
    also influenced by what he saw as the insurers attempt to intimidate the
    respondent by refusing to make a counteroffer after the respondents last
    offer. The trial judge described the insurer as risking a trial for the sake of
    $50,000, the difference between the two offers.

[51]

Insurers,
    like any other defendant, are entitled to take cases to trial. When an insurer
    rejects a plaintiffs offer and proceeds to trial, the insurer risks both a
    higher damage award at trial and the imposition of substantial indemnity costs after
    the date of the rejected offer. Both risks came to pass in this case. The insurer
    paid a significant financial penalty for its decision to proceed to trial. The
    costs provisions in ss. 258.5 and 258.6 do not address those risks, but instead
    address the failure to meet the specific obligations identified in those
    provisions. The trial judges assumptions about the insurers motivation for
    rejecting the respondents offer and proceeding to trial had no relevance to
    the determination of whether augmented costs should be awarded under the
Insurance
    Act
provisions.

V

CONCLUSION

[52]

I would dismiss the appeal as it relates to damages. I would grant leave
    to appeal the costs order, allow that appeal, and reduce the costs awarded by
    $60,000.

[53]

Success
    on the appeal was divided. As agreed by the parties, the respondent should have
    his costs of the appeal in the amount of $10,000, inclusive of disbursements
    and HST.

RELEASED: DD  MAY 15 2015

Doherty J.A.

I agree S.E. Pepall
    J.A.

I agree K. van
    Rensburg J.A.

[1]
Counsel made brief reference to other issues which he indicated provided some
    context for his main arguments but would not, standing alone, warrant appellate
    intervention.  I have not addressed those arguments in these reasons as, in my
    view, they neither have merit, nor assist in the resolution of the two issues I
    have addressed in these reasons.


COURT OF APPEAL FOR ONTARIO

CITATION: Salisbury v.
    Litman, 2015 ONCA 357

DATE: 20150515

DOCKET: C58023

Weiler, Cronk and Pepall JJ.A.

BETWEEN

Glynis Salisbury by her Litigation Guardian,
    Donna Salisbury

Plaintiff (Appellant)

and

Orin Litman

Defendant (Respondent)

Jane Poproski, for the appellant

Hugh M. Mackenzie and Kirryn G. Hashmi, for the
    respondent

Heard and released orally: May 13, 2015

On appeal from the judgment of Justice James C. Kent of
    the Superior Court of Justice, dated November 6, 2013.

ENDORSEMENT

[1]

The appellant was seriously injured in a motor scooter accident in
    Mexico in January 1997 as a result of which she suffered serious brain
    injuries. She had to have an operation that removed a significant portion of
    her right temporal lobe.

[2]

In April, 2000, the appellant served the respondent with a statement of
    claim in which she pleaded that she and her then boyfriend:

each were driving their own rented motor scooter on a road on
    their way to a day of snorkelling when suddenly and without warning the
    Defendant who had been travelling behind the Plaintiff caused his scooter to
    collide with the Plaintiffs scooter causing the Plaintiff to lose control of
    her scooter and as a result, was thrown off her scooter and landed on the
    ground.

[3]

At the trial held in 2013, 16 years after the date of the accident, the
    appellant provided a different account of events. She testified that the
    respondent caused the accident when a strap connected to a bag on the back of
    his scooter caught her handlebar as he passed her and caused her to lose
    control of her scooter resulting in her injuries.

[4]

At trail, a major issue was the reliability of the appellants memory. The
    trial judge found that the appellant was an honest witness but he dismissed the
    action on the basis that he was not satisfied she had proven that the
    respondent caused or contributed to the accident.

[5]

On appeal the appellant makes three main submissions:

1)

The trial judge erred in failing to exclude the evidence of the defence
    expert Dr. Duncan and, as a result, erred in his assessment of the reliability
    of the appellants evidence.

2)

The trial judge failed to recognize that the defendant failed to meet his
    onus of proof with respect to his claim that the appellant suffered from
    retrograde amnesia.

3)

The trial judge failed to apply the appropriate standard of proof in a
    civil case and, in that respect, ignored or failed to appreciate aspects of the
    evidence.

[6]

Dealing with the first submission, we do not accept that the trial judge
    erred in relying on the evidence of Dr. Duncan regarding the appellants brain
    injuries and the consequences of those injuries. Dr. Duncan testified that loss
    of a portion of the right temporal lobe of the brain implicates memory function
    and there would be substantial retrograde amnesia with an injury of this
    nature. The fact that he did not provide an opinion on the validity of
    recovered memories did not detract from his expertise on the nature and
    consequences of the appellants brain injuries. The trial judge did not err in
    relying on Dr. Duncans evidence.

[7]

Nor did the trial judge err in considering all the evidence bearing on
    the reliability of the appellants version of events. Indeed, the trial judge
    was obliged to consider the whole of the evidence on this issue.

[8]

Overall, we see no error in the trial judges assessment of the
    reliability of the appellants evidence. We note that the trial judges misdescription
    of the type of assessment conducted by one of the appellants experts is of no
    moment. The trial judge accurately described the substance of the witnesss
    evidence and the nature of her opinion.

[9]

Turning now to the second issue, contrary to the assertion of counsel
    for the appellant that the respondent was obliged to lead evidence as to how
    the accident happened, it was the appellants onus throughout to establish
    causation and the reliability of her account of events. At the end of the day,
    the trial judge concluded that the appellant had not met this onus because she
    failed to establish that the respondent either caused or contributed to the
    accident. Moreover, the trial judge expressly applied a balance of probability
    standard in determining whether the appellants account was more probable than
    not. The trial judges use of the word doubt must be read in that context. Read
    as a whole, his reasons reflect no error in the application of the correct
    standard of proof.

[10]

Third,
    the trial judges factual findings on the issue of causation, i.e. on the
    presence of bags at the time of the incident and on the question of whether the
    respondent passed the appellant on his scooter at the critical time, are
    findings of fact that were open to him on the evidentiary record. His
    assessment of the evidence and the weight to be attached to it are entitled to
    deference. We see no palpable and overriding error in his findings.

[11]

Accordingly,
    the appeal is dismissed. Costs of the appeal fixed in the amount of $7,500
    inclusive of disbursements and all applicable taxes are payable to the
    respondent.

K.M.
    Weiler J.A.

E.A.
    Cronk J.A.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Seif v. Toronto (City), 2015 ONCA 321

DATE: 20150508

DOCKET: C58919

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

Robin Seif

Appellant

and

City of Toronto
and Armel Corporation

Respondent

David A. Zuber and James B. Tausendfreund, for the
    appellant

Kirsten Franz, for the respondent

Heard: January 19, 2015

On appeal from the judgment of Justice Edward M. Morgan
    of the Superior Court of Justice, dated May 13, 2014.

Hoy A.C.J.O. (dissenting in part):

[1]

The appellant, Robin Seif, sued the respondent, the City of Toronto (the
    City), for damages arising from a trip and fall. She appeals the judgment
    of the motion judge, granting summary judgment dismissing her claim against the
    City because the appellant did not have a reasonable excuse for her failure to
    give notice to the City within ten days of her injury.

[2]

For the reasons that follow, I would dismiss the appeal. While I agree
    with the appellant that she had a reasonable excuse for her delay in giving
    notice to the City, I am not satisfied that the City is not prejudiced in its
    defence as a result of that delay.

Background

[3]

Briefly, the background is as follows.

[4]

On August 19, 2011, the appellant tripped on a lip where a City
    sidewalk met an interlocking brick boulevard. She fractured her non-dominant
    wrist. She was transported to the hospital by ambulance and her wrist was set
    and cast. The appellant was released from hospital the same day.

[5]

Following the accident, the appellant was quickly mobile. A week or so after
    the accident, she and her husband stopped and looked at the site of the
    accident while walking to the bank. They did not, however, measure the lip or,
    at that time, take photographs of the site.

[6]

At the time of the accident, the appellant was trying to re-enter the
    workforce and, despite the ongoing pain in her wrist, resumed her job search
    soon after she fell. In the months that followed the accident, she had no
    intention of filing an action. She still thought her fracture would heal and
    her life would return to normal. The appellant did not know that the
City
    of Toronto Act, 2006
, S.O. 2006, c. 11 (the Act) required her to notify
    the city clerk within ten days of her accident if she wished to bring an action
    for damages.

[7]

Sections 42(6) and (8) of the Act provide in relevant part:

(6) No
    action shall be brought for the recovery of damages under subsection (2)
    unless, within 10 days after the occurrence of the injury, written notice of
    the claim and of the injury complained of has been served upon or sent by
    registered mail to,

(a) the
    city clerk

[]

(8)
    Failure to give notice or insufficiency of the notice is not a bar to the
    action if a judge finds that there is reasonable excuse for the want or the
    insufficiency of the notice and that the City is not prejudiced in its defence.

[8]

At a medical appointment in November 2011, the appellant learned that
    she would live with pain and limitations in her fractured wrist for the rest of
    her life. Only then did she turn her mind to legal action. She contacted the
    Law Society of Upper Canadas lawyer referral service. It took a few weeks to
    set up an initial meeting with counsel. She met with counsel on December 20,
    2011.

[9]

Her counsel sent a letter to the City notifying it of the appellants
    claim on December 21, 2011  some four months after the accident. The letter
    stated that the appellant had tripped and fallen on a sidewalk on Lonsdale
    Road, just west of the southwest corner of the intersection of Spadina Road and
    Lonsdale Road. It said that a significant lip in the sidewalk appeared to have
    caused the accident.

[10]

The
    appellants husband took photographs of the accident site a few days after the
    appellant gave notice. The rock salt in the photos suggests that the
    temperature had dropped below zero by the time the appellants husband took the
    photos.

[11]

The
    respondent received the appellants notice on December 23, 2011. An independent
    insurance adjuster visited the intersection of Lonsdale Road and Spadina Road on
    January 9, 2012. However, he measured and photographed a spot at the southwest
    corner of Lonsdale and Spadina and not the spot a little to west where the
    appellant had tripped. On January 18, 2012, the adjuster wrote to the
    appellants counsel asking for the exact location of the fall. A City of
    Toronto field investigator attended on April 24, 2012 and took further photos. He,
    too, failed to inspect the correct location. Finally, on May 9, 2012, the field
    investigators received the appellants husbands photos from the adjuster, who
    had acquired them from an adjuster for Armel Corporation (a former defendant in
    this action). A second field investigator, Lou Martino, sought out the site on May
    18, 2012.
[1]
He took several measurements and photographs of the correct location and found
    no ledge in the area that exceeded two centimetres. He deposed:

I would not be able to say with certainty that these
    measurements would have been the same if I had measured the area within 10 days
    of August 19, 2011 when the accident occurred. Given the passage of an entire
    winter season, it is possible that these interlocking bricks could have shifted
    due to temperature fluctuations, freeze thaw cycles and winter maintenance
    activities. It is possible that the bricks could have been higher on August 19,
    2011, thereby creating even less of a ledge than what existed when I measured
    the area on May 18, 2012. However, it is also possible that the bricks could
    have been lower. It is also possible that the bricks could have remained at the
    same level all winter.

[12]

While
    a cigarette butt is visible in some of the photographs taken by the appellants
    husband, providing some sense of scale, the evidence of Mr. Martino is that it
    is impossible to gauge the depth of the ledge from a one-dimensional picture.

[13]

Mr.
    Martino also deposed that, because the appellant had complained and because the
    area was not completely level, the interlocking bricks were brought back up to
    grade in June 2012.

[14]

The
    City conducts annual sidewalk inspections and, on June 29, 2011, a summer
    student inspector walked an area of about eight kilometers, including the area
    in question. The City employs a negative reporting system. The inspectors
    report lists deviations two centimeters or deeper that he observed. According
    to Mr. Martino, the City must not have found any fault with the sidewalk at
    the time as no mention of [fault] is made on the original inspection form.

[15]

Some
    two years after the appellant launched her action, the appellant and her
    husband deposed that on their visit to the site a week or so after the incident,
    it appeared that the lip in the sidewalk was clearly at least one inch, or
    about 25 centimeters.
[2]
The appellant also deposed that the lip in the sidewalk that I tripped on, was
    in the same condition on the day that the photographs were taken in late
    December 2011, as they were in the week or so after the accident, in August
    2011, when [my husband] and I went to look at the accident scene.

[16]

While
    there was one witness to the accident, the City has been unable to reach her.

Motion Judges Reasons

[17]

The
    motion judge began by outlining the two requirements of s. 42(8). Failure to
    give notice pursuant to s. 42(6) will not end an action when: (1) the plaintiff
    has a reasonable excuse for the failure to comply with the notice provision;
    and (2) the City would not be prejudiced in its defence as a result of the
    delay.

[18]

Citing

Crinson v. Toronto (City)
, 2010 ONCA 44, 100 O.R. (3d) 366, the
    motion judge acknowledged that a broad and liberal interpretation must be
    given to the phrase reasonable excuse in s. 42(8) of the Act. He also cited
Argue
    v. Tay (Township)
, 2012 ONSC 4622, 1 M.P.L.R. (5th) 77, affd 2013 ONCA
    247, 10 M.P.L.R. (5th) 11, leave to appeal refused, [2013] S.C.C.A. 246, for
    the principle that ignorance of the statutory time limit is not a reasonable
    excuse for late notice.

[19]

At
    para. 19 of his reasons, he found that:

The [appellant] was not incapable of giving timely notice, and
    was not particularly hindered in her actions due to her injuries.  [H]er delay
    in giving notice was as a result of her indecision as to whether to bring an
    action at all for the first 4 months after her injury.

[20]

At
    para. 21, the motion judge reasoned that the exception to the notice
    requirement was designed to accommodate plaintiffs whose delay is somehow a
    result of their injury. It is not designed to extend the time for a plaintiff
    whose delay is a result of their indecision or their apathy toward issuing a
    claim.

[21]

He
    concluded that the appellant did not have a reasonable excuse for her delay in
    giving notice to the City and dismissed her claim. Having found that the
    appellant did not have a reasonable excuse for her failure to notify the City
    within ten days, the motion judge did not go on to consider whether the delay
    prejudiced the City in its defence.

Issues Raised

[22]

The
    appellant argues that the motion judge erred in law (1) by requiring that she
    establish that she delayed giving notice because of her injury and (2) by failing
    to interpret reasonable excuse broadly and liberally and to consider all of
    the circumstances, including her relatively short four-month delay, her
    ignorance of the notice requirement, and her initial uncertainty as to the
    severity of her injuries.

[23]

Both
    parties argued on the issue of whether the appellants delay prejudiced the
    City in its defence.

Analysis

[24]

My
    analysis proceeds in two parts. First, I examine whether the appellant had a
    reasonable excuse for her delay in giving notice. Second, having concluded the
    appellant does have a reasonable excuse, I address the question of prejudice to
    the Citys defence as a result of the delay.

Does the Appellant Have a Reasonable Excuse for the Delay in
    Notice?

[25]

I
    agree with the appellant that the motion judge erred in his approach to
    determining whether the appellant had established a reasonable excuse for her
    delay. While the motion judge acknowledged that reasonable excuse is to be
    given a broad and liberal interpretation, he then narrowed his focus to whether
    the appellants delay was a result of her injury and whether she was capable of
    giving notice sooner.

[26]

The
    test to be applied is whether, in all of the circumstances of the case, it was
    reasonable for the appellant not to give notice until she did: see
Crinson,
at
    para. 23.

It was an error to

require that the delay be solely a
    result of the injury suffered.

[27]

While
    in
Crinson
the focus was on the post-accident physical and mental
    abilities of the plaintiff in assessing whether the plaintiff had a reasonable
    excuse for the delay, other circumstances may create a reasonable excuse. One
    need only imagine a parent, injured on a City sidewalk, whose child is in
    hospital undergoing a lengthy course of treatment for a life-threatening
    illness. The childs circumstances, rather than the injury sustained by the parent,
    would provide the reasonable excuse.

[28]

Interpreting
    reasonable excuse broadly and liberally, in all of the circumstances of this
    case, it was reasonable for the appellant not to give notice until she did. The
    appellant did not intend to sue the City at the outset because at first she did
    not think her injuries were serious. She followed a course of treatment. She decided
    to explore legal action only when she found out that she would suffer pain and
    limitations in her fractured wrist for the rest of her life.
[3]
Once she decided to seek a legal remedy, she promptly retained counsel. Counsel
    immediately gave notice to the City.

[29]

Lack
    of awareness of the notice requirement in s. 42(6) of the Act does not
    constitute a reasonable excuse on its own: see
Argue
,
at para.
    47. However, ignorance of the notice requirement can add to another extenuating
    circumstance (such as lack of knowledge of the severity of the injury) to
    create a reasonable excuse: see
Crinson
, at para. 38.

[30]

I
    note that a broad and liberal interpretation of reasonable excuse does not
    render the City without protection. [T]he protection granted to the
    municipality where it is prejudiced in its defence is good reason why a liberal
    interpretation should be given to the words reasonable excuse:
Crinson
,
    at para. 20, quoting with approval
Cena v. Oakville (Town)
(2009), 56
    M.P.L.R. (4th) 11 (Ont. S.C.), at para. 15.

Is the City Prejudiced in its Defence as a Result of the
    Delay?

[31]

Unfortunately,
    the motion judge did not go on to consider whether the appellants delay in
    giving notice prejudiced the City in its defence. It would have been preferable
    had he done so.

[32]

In
    their factums, the parties proposed that this court decide the issue on the
    record before the motion judge, rather than send it back to the motion judge.
[4]
Neither party argued that the issue of prejudice was a genuine issue requiring
    a trial. In his oral submissions, counsel for the appellant said that he [got]
    the sense that there might be some concerns of the court in terms of the
    sufficiency of the evidence. He indicated that if the court did not think that
    it had enough evidence to decide the question of prejudice, the court should
    send the question to trial.

[33]

As
    I am asked to perform the role of a judge hearing a summary judgment motion, I
    assume that the record contains all evidence relevant to the issue of prejudice
    that the parties would present if there were a trial: see
Dawson v.
    Rexcraft Storage & Warehouse Inc.
(1998), 164 D.L.R. (4th) 257 (Ont.
    C.A.), at para. 17; see also
Goudie v. Ottawa (City)
, 2003 SCC 14,
    [2003] 1 S.C.R. 141, at para. 32;
Aronowicz v. EMTWO Properties Inc.
,
    2010 ONCA 96, 98 O.R. (3d) 641, at para. 17-18.

[34]

Respectfully,
    I do not agree with my colleagues that this action should be sent to trial. I
    am satisfied that the issue of prejudice can be fairly and justly determined on
    the record before the motion judge without hearing oral evidence and would
    accordingly accede to the parties initial request to determine this matter on
    the record, rather than send it back to the motion judge. I do not suggest that
    this court should routinely take on this task.
[5]

[35]

The
    onus of showing that there is no prejudice to the defendant as a result of the
    delay in giving notice rests on the plaintiff: see
Co
langelo v.
    Mississauga (City)
(1988),

66 O.R. (2d) 29 (C.A.), at p. 44,
    leave to appeal refused, [1988] S.C.C.A. No. 477;
Argue v. Tay (Township)
,
    2013 ONCA 247, 10 M.P.L.R. (5th) 11, at para. 2, leave to appeal refused,
    [2013] S.C.C.A. 246.

[36]

The
    purpose of provisions like s. 42(6) of the Act is to ensure that a
    Municipality has a timely opportunity to investigate the place and
    circumstances of the accident:
Argue
, at para. 61. Where the injured
    party does not provide notice within ten days, an inherent probability of
    prejudice [arises] from the bare fact of the accident and the lack of notice:
Carmichael
    v. Edmonton (City)
,
[1933] S.C.R. 650, at p. 655. Essentially, prejudice
    is presumed:
Argue
, at para. 60. However, prejudice is fact-based:
Zogjani
    v. Toronto (City)
, 2011 ONSC 1147, [2011] O.J. No. 1002, at para. 18. A plaintiff
    can rebut this inherent probability or presumption with evidence showing
    other sources of information about the accidents circumstances: see
Argue
,
    at para. 58. For example, a plaintiff might rebut the presumption of prejudice
    by adducing evidence that the City had taken steps to investigate the scene in
    spite of not having notice from the plaintiff, or by timely photographs of the
    scene having been taken by the plaintiff or by [the plaintiff] having obtained
    the name of a witness to the accident:
Argue
, at para. 59, quoting
Langille
    v. Toronto (City)
,
2010 ONSC 443, 69 M.P.L.R. (4th) 73, at para.
    22.

[37]

The
    appellant acknowledges that in these circumstances a presumption of prejudice
    arises, though she would characterize the presumption as weak. However, she argues
    that the City has not been practically prejudiced in its defence by her delay
    in giving notice. The City in turn argues that the delay prejudiced its defence
    because it prevented the City from measuring the lip before weather conditions may
    have shifted the lip up or down. And, in this case, the precise height of the
    lip in August 2011 is critical.

[38]

In
    order to understand the question of prejudice in this case, it is important to
    consider the statutory provisions relevant to liability. Sections 42(1) and (2)
    of the Act

provide that the City is liable if it fails to keep a highway
    or bridge in a reasonable repair and if a person suffers damages as a result of
    that failure. The City acknowledges that the accident would fall within these
    provisions if the appellant tripped on a City sidewalk or boulevard.

[39]

Section
    42(3)(c) of the Act provides that the City is not liable if minimum maintenance
    standards established by regulation are in force at the time of the incident
    and if the City has met those standards. At the time of the incident, the
    minimum standards stated that if a surface discontinuity on a sidewalk exceeded
    two centimetres, the City was to treat the surface discontinuity within 14
    days.
[6]
The City contends that it is not liable for the appellants injuries if the lip
    did not exceed two centimetres at the time of the incident. The City also
    contends that the appellant tripped and fell on the boulevard, not on a City
    sidewalk, and that the standard of care is lower for a boulevard than for a
    sidewalk (such that even if that even if the lip exceeded two centimetres, the
    City might not be liable).

[40]

I
    am not satisfied that the appellants delay in giving notice has not prejudiced
    the City in its defence.

[41]

The
    precise measurement of the lip at the time of the accident is critical to a
    significant defence relied on by the City. It does not matter that the City may
    argue an alternative defence.

[42]

The
    question before me is whether the appellants delay prejudiced the City in its
    defence that the lip did not exceed two centimeters. I do not need to decide
    whether the lip was or was not greater than two centimeters. And I do not need
    to determine the credibility of the appellants and her husbands evidence to
    determine the issue of prejudice.

[43]

At
    trial, the City would have to respond to the appellants and her husbands
    evidence that the lip exceeded two centimeters at the time of the accident. The
    defence evidence consists of the measurement taken by Mr. Martino on May 18,
    2012, nearly nine months after the accident, and the results of the Citys
    annual sidewalk inspection on June 29, 2011. Mr. Martino concedes that his
    measurement is not reliable evidence of what the lip would have measured at the
    time of the accident because an entire winter season passed between the
    accident and his measurement. And the reliability of the Citys annual sidewalk
    inspection would be open to challenge at trial  just as the appellants and
    her husbands eyeball approximations would be. Neither those approximations nor
    the photographs taken by the appellants husband in December 2011 provide an objective
    basis to determine the precise height of the lip in August 2011. The City has been
    unable to contact the one witness to the accident despite repeated efforts.
    Moreover, there was no suggestion that the witness measured the lip.

[44]

While
    the appellant did not make this argument, I am not satisfied that the City
    would not have measured the lip until winter even if the appellant had given
    notice within ten days of the accident. That the City did not successfully
    measure the lip until five months after the appellants notice does not mean
    the City would have taken five months to measure the lip had it received an
    on-time notice. In my view, too many variables are at play to comfortably draw
    that inference. The City might have investigated an on-time claim with more
    urgency, before weather conditions had a chance to change. The independent
    investigator assigned might have located the spot where the accident occurred
    on his first visit. Or photographs taken by the appellants husband pinpointing
    the precise site of the accident might have found their way to the City more
    quickly.

[45]

In
    my view, the appellant has not established that the City is not in a materially
    worse evidentiary position than it would have been in without the appellants
    delay. It did not have the opportunity to obtain a
reliable
measurement
    of the lip to counter the evidence of the appellant and her husband.

[46]

As
    a result, I would dismiss this appeal.

Alexandra
    Hoy A.C.J.O.

van Rensburg and Brown JJ.A.:

[47]

We
    agree with the conclusions of Hoy A.C.J.O. with respect to whether the
    appellant had a reasonable excuse for her failure to give notice within ten
    days of her slip and fall accident, as required by s. 42(6) of the
City of
    Toronto Act, 2006
, S.O. 2006, c. 11, Sch. A (the Act). Respectfully,
    however, we do not agree with her conclusion that the motion judges summary
    dismissal of the action should be upheld on the basis that the appellant has
    failed to prove that the City will not be prejudiced in its defence by her
    delay in giving notice. That is, in our view, a genuine issue requiring a
    trial. Put another way, we are not satisfied - in our review of the evidence as
    an appeal court (since the issue was not addressed by the motion judge) - that
    the respondent has met its burden under Rule 20 to establish that there is no
    genuine issue requiring a trial on the issue of prejudice.

The Consequences of the Failure of the Motion Judge to Deal
    with the Issue of Prejudice

[48]

The
    motion judges decision granting summary judgment and dismissing the
    appellants action was based on his conclusion that the appellant did not have
    a reasonable excuse for failing to give the City notice of her claim within ten
    days of the slip and fall accident. He did not find it necessary to deal with
    whether there was prejudice to the City in its defence as a result of the
    delay.

[49]

Given
    the two-part test created by s. 42(8) of the Act, having granted summary
    judgment by dealing only with the first part of the test, it would have been helpful
    for the motion judge to have gone on to review the evidence on the second part
    of the test and to make the necessary findings of fact. Had he done so, this
    court would have had the benefit of his assessment of the evidence and
    conclusions with respect to the second part of s. 42(8).

[50]

In
    their factums, both parties submitted that this court is in a position to
    determine whether the appellants failure to give timely notice prejudiced the
    City. In oral argument, however, the appellant submitted that the question of
    prejudice is an issue in respect of which there is conflicting evidence, and
    which should be left for determination at a trial.

[51]

For
    an appellate court to determine whether there exists no genuine issue
    requiring a trial with respect to a claim or defence, it must be able to
    conclude that, through the appellate review process, it can make the necessary
    findings of fact in order to reach a fair and just determination on the merits,
    and that the process gives it the confidence to find the necessary facts and
    apply the relevant legal principles so as to resolve the dispute:
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1
    S.C.R. 87
, at paras. 49-50.

[52]

As
    a practical matter, an appellate court does not have at its disposal all of the
    tools available to a summary judgment motion judge to make such a
    determination. While
Hryniak
identified three levels of evidentiary
    review available to a motion judge  reviewing the record without using the new
    fact-finding powers under rule 20.04(2.1); using the fact-finding powers,
    including evaluating credibility; and, using the fact-finding powers with oral
    evidence under rule 20.04(2.2)  an appellate court realistically is limited to
    its review of the written record.

[53]

Although
    s. 134(1)(a) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43
states that a court to which an
    appeal is taken may make any order or decision that ought to or could have been
    made by the court appealed from, and s. 134(4)(a) permits an appellate court,
    in a proper case, to draw inferences of fact from the evidence, our ability to
    determine the issue of prejudice in this appeal depends on whether, on the
    basis of the written record, we can confidently make the necessary findings of
    fact. For the reasons that follow, we have concluded that we are unable to do
    so, and that the question of whether the City is prejudiced in its defence of
    the action is a genuine issue requiring a trial.

Prejudice in s. 42(8) of the Act

[54]

A
    plaintiff who has failed to meet the ten day limitation period under s. 42(6)
    has the onus of establishing both that there is a reasonable explanation for
    the delay and that the defendant will not be prejudiced in its defence as a result
    of the delay: see
Colangelo v. Mississauga (City)
(1988),

66
    O.R. (2d) 29 (C.A.), at p. 44, leave to appeal refused, [1988] S.C.C.A. No. 477;
Argue v. Tay (Township)
, 2013 ONCA 247, 10 M.P.L.R. (5th) 11, at para.
    2, affg 2012 ONSC 4622, 1 M.P.L.R (5th) 77, leave to appeal refused, [2013]
    S.C.C.A. 246.

[55]

As
    Hoy A.C.J.O. observes in her reasons in this case, the purpose of a provision
    like s. 42(6) of the Act is to ensure that a Municipality has a timely
    opportunity to investigate the place and circumstances of the accident:
Argue
(S.C.)
, at para. 61. While
    the onus is on the plaintiff to meet both branches of s. 42(8), that section does
    not use language that creates a presumption of prejudice resulting from the
    plaintiffs failure to give timely notice. As a result, whether or not
    prejudice results from the failure to give timely notice is a fact-based
    inquiry:
Zogjani v. Toronto (City)
, 2011 ONSC 1147, [2011] O.J. No.
    1002, at para. 18.

[56]

At
    the same time, in
Carmichael v. Edmonton (City),
[1933] S.C.R. 650,
    the Supreme Court of Canada observed that, where the injured party does not
    provide notice within ten days, an inherent probability of prejudice [arises]
    from the bare fact of the accident and the lack of notice. The Court noted
    that against this inherent probability of prejudice arising from the bare
    circumstances, there might, in many cases, be offered by a plaintiff important
    evidence that there was no prejudice: at p. 655. A plaintiff can address the
    inherent probability of prejudice with evidence showing other sources of
    information about the accidents circumstances: see
Argue
(S.C.)
, at para. 58;
Zogjani
, at
    para. 18. As noted by Hoy A.C.J.O., a plaintiff might adduce evidence that the
    City had taken steps to investigate the scene in spite of not having notice
    from the plaintiff, or by timely photographs of the scene having been taken by
    the plaintiff or by [the plaintiff] having obtained the name of a witness to
    the accident:
Argue
(S.C.)
,
    at para. 59, quoting
Langille v. Toronto (City),
2010 ONSC 443, 69
    M.P.L.R. (4th) 73, at para. 22.

Is There a Genuine Issue Requiring a Trial on the Issue of Prejudice?

[57]

The
    question of prejudice arises in the context of the statutory provisions
    imposing liability on the City for the failure to repair. Sections 42(1) and
    (2) of the Act

provide that the City is liable for all damages
    sustained by any person as a result of any default of the City in complying
    with its obligations to keep in a state of repair reasonable in the circumstances
    highways and bridges over which it has jurisdiction. It is acknowledged that
    if the appellants accident occurred on a City sidewalk
[7]
,
    it would come within this provision.

[58]

Section
    42(3)(c) of the Act provides that if there are minimum standards established by
    regulation in force at the time of the incident and those standards have been
    met, the City is not liable. At the time of the incident, the minimum standards
    in force stated that if a surface discontinuity on a sidewalk exceeded two centimetres,
    the minimum standard was to treat the surface discontinuity within 14 days.
[8]
The City contends that, if the lip did not exceed two centimetres at the time
    of the incident, it may have a statutory defence to the appellants claim. The
    regulation now provides in s. 16.1(2.1) that a surface discontinuity on a
    sidewalk is deemed to be in a state of repair if it is less than or equal to
    two centimetres. However that provision was not in force at the time of the
    accident. The City contends that the effect of the regulatory minimum standards
    in this case is the same.

[59]

Assuming,
    without deciding, that the City is correct in asserting that it would have a
    statutory defence to the appellants claim if the lip was in fact less than
    two centimetres, does the record enable this court to determine, with the
    degree of confidence required by
Hryniak
, that there is no genuine
    issue requiring a trial with respect to the issue of prejudice under s. 42(8)
    of the Act? We conclude that it does not, because of the existence of material
    facts in dispute, together with the incomplete nature of the record.

Material Facts in Dispute

[60]

The
    circumstances in this case differ from those in
Argue
,
where the plaintiff claimed her
    injuries had resulted from an accident caused by a pothole on the roadway. By
    the time she had given notice of her claim some two years after the accident,
    the pothole had been repaired. The plaintiff had not taken any measurement or
    photograph of the pothole, and she had no idea of the size of the pothole. There
    was no evidence to respond to the inherent probability of prejudice to the
    defendant municipality, which had no ability to investigate the circumstances
    of the accident as a result of the delay: see
Argue
(S.C.), at para. 65.

[61]

By
    contrast, in the present case, the appellant took photographs a few days after
    notice was given. She recalled seeing a significant lip in the sidewalk of at
    least one inch when she revisited the location of her fall a week after the
    accident. The City took measurements and photos before the area was repaired.
    The appellant provided the name and contact information of a witness, that the
    respondent attempted without success to contact, but only shortly before the
    motion.

[62]

So,
    unlike in
Argue
, in the present case the appellant has adduced
    evidence on the issue of prejudice. Evaluating this evidence will require, in
    part, an assessment of the appellants credibility and reliability, including
    weighing the evidence of her observations about the size of the lip of the
    sidewalk made a week after the accident against the Citys evidence that no
    problem with the sidewalk had been reported in its June 2011, annual
    inspection.

[63]

The
    City asserts that it has suffered prejudice because it lost the opportunity to
    take a definitive measurement of the area where the accident occurred as a
    result of the appellants delay in giving notice. In our view, whether the City
    will be prejudiced in its defence by not having taken measurements of the lip
    when the accident occurred, and whether such prejudice resulted from the
    appellants delay in giving notice, cannot be determined with confidence at
    this stage of the litigation.

[64]

First,
    the City had the opportunity to measure the lip before the area was repaired.
    It has evidence to support its statutory defence and, to the extent that this
    evidence is accepted, the appellant will have to establish that the measurement
    at that time did not reflect the conditions in August 2011, when she fell.

[65]

Second,
    it is far from clear at this stage that, had timely notice been given, the City
    would have measured the area of the lip before there was any possibility of
    winter conditions affecting the bricks.

[66]

The
    City did not measure the area where the accident occurred promptly upon receipt
    of notice. Although an independent adjuster and a field investigator attended
    at the location indicated in the appellants notice letter in January and April
    2012, they did not photograph and measure the area where the accident occurred.
    The only explanation for their failure to identify at that time the area of the
    lip is that the appellants counsel had neglected to respond to a request for
    information about the exact location of the accident.
[9]
The motion judge held that the notice was substantially sufficient, a finding
    that was not challenged on appeal.

[67]

The
    independent adjuster attended at the location indicated in the notice and took
    photos and measurements on January 9, 2012. He attended without first asking
    for more information about the location. As the motion judge observed, he
    photographed a spot right on the corner of Lonsdale and Spadina rather than the
    gap in the sidewalk that was located a small distance west of the southwest
    corner, as described in the notice letter.

[68]

There
    is contradictory evidence as to what Mr. Martino, the second field
    investigator, knew and what information he had before he took his May 18, 2012
    measurements: on discovery he said he had not seen the appellants photos,
    while on cross-examination he said he had. In any event, he did not have the
    information given to the respondents lawyer about the precise location of the
    accident before he attended, and he stated that he never learned exactly where
    the appellant tripped and fell. Nevertheless, on that occasion he took
    measurements all along the side of the sidewalk where it meets the
    interlocking brick boulevard, and he observed that there was no ledge in that
    area that exceeded two centimetres.

[69]

In
Argue
it was clear, at the motion for summary judgment stage, that a
    timely investigation of the accident location was not possible solely as a
    result of the plaintiffs two year delay in giving notice. In the present case,
    it is not clear to what extent, if at all, the appellants delay in giving
    notice prevented the Citys timely investigation of the accident.

The Incompleteness of the Record

[70]

In
    addition to the existence of material facts in dispute, the record on the issue
    of prejudice is incomplete. The City contends that there is a possibility
    that the interlocking bricks could have shifted due to temperature
    fluctuations, freeze-thaw cycles and maintenance activities between August
    2011, when the accident occurred, and May 2012, when its employee finally took
    measurements and photographs. The City states that the bricks could have been
    higher, lower or at the same level. There is no evidence at this stage about
    the climate conditions and precipitation, and how the interlocking bricks might
    have been affected, between the date of the accident and when notice was given
    in December 2011. In the absence of such evidence, it is not possible to know
    whether the inability to measure the area before the seasons changed will
    prejudice the City in its defence.

[71]

As
    in
Fremeau v. City of Toronto
(
2009),
    61 M.P.L.R. (4th) 279 (Ont. S.C.);
Delahaye v. Toronto (City)
, 2011
    ONSC 5031, 87 M.P.L.R. (4th) 100, and
Grant v. City of Kingston
, 2012
    ONSC 6332, 5 M.P.L.R. (5th) 263, leave to appeal refused, 2013 ONSC 4689, 13
    M.P.L.R. (5th) 60 (Div. Ct.), we conclude that the question of whether the City
    is prejudiced in its defence by the appellants delay in giving notice of her
    claim is a genuine issue requiring a trial.

Conclusion

[72]

For
    these reasons, we would allow the appeal. With respect to the Citys defence
    under s. 42(6) of the Act, while the appellant has a reasonable excuse for the
    delay in giving notice, whether the City is prejudiced in its defence as a
    result of the delay is an issue that shall be determined at trial. The
    appellant is entitled to costs in the agreed amount of $4,000, inclusive of HST
    and disbursements.

Released:  AH  MAY 08 2015

K. van Rensburg J.A.

D.M. Brown J.A.

[1]
On May 17, 2012, the appellants counsel, in an e-mail to the Citys counsel,
    responded to the adjusters request for the exact location of the fall. Mr.
    Martino did not see that e-mail before he measured the lip on May 18, 2012.

[2]
The appellant meant 25 millimetres, which is 2.5 centimetres.

[3]
The circumstances in this case bear some similarities to those in
Hennes v.
    Brampton (City)
, 2014 ONSC 1116, 20 M.P.L.R. (5th) 163. In
Hennes
,
    although the Court granted the City of Bramptons motion for summary judgment
    because the plaintiff had waited a year and a half after his fall to give
    notice to the City of his claim, the Court noted at para. 35 that it would have
    been reasonable for the plaintiff to give notice to the City roughly four and a
    half months after the fall  the moment when he was offered surgery on his left
    knee. In other words, had the plaintiff given notice to the City four and a half
    months after his fall (the moment when the full gravity of his injuries became
    apparent), it appears the Court would have concluded the plaintiff had a
    reasonable excuse for the delay in giving notice.

[4]
Para. 91 of the appellants factum reads as follows:

Whereas the
    learned motion judge made no finding as to whether or not the City was
    prejudiced by the Appellants delay in notice, the Appellant submits that this
    Honourable Court is in a position to make such a finding, based on the evidence
    before the court, both on the underlying motion, and on the present appeal.

A similar provision is
    included at para. 19 of the respondents factum.

[5]
Generally, nor should it send a matter on to trial simply because a motion
    judge has failed to deal with an issue on a summary judgment motion.

[6]
See
Minimum Maintenance Standards for Highways in the City of Toronto
,
    O. Reg. 612/06, s. 16.1(2).

[7]
The City contends that the appellant slipped and fell on the boulevard, not on
    a City sidewalk, and that the established standard of care is less for
    boulevards than for a sidewalk.

[8]
See
Minimum Maintenance Standards for Highways in the City of Toronto
,
    O. Reg. 612/06, s. 16.1(2).

[9]
This request was contained in a letter from the adjuster to the appellants
    counsel dated January 18, 2012, advising that the plaintiff had failed to
    comply with the notice period and that the City would rely upon s. 42(5) of the
    Act.