Dec 09, 2020

If you were injured as a result of negligence and you believe a municipality was wholly or partly at fault in causing your injuries, you may bring a claim for damages against the ‘at fault’ government body as well as any other parties that may be responsible for your injury. 

It’s important to know that there is a special notification requirement for injury lawsuits brought against a municipality, such as a City or the Province of Ontario.  Under the Municipal Act, s. 44(10), an injured person must give written notice of their injury and claim to the Clerk of the Municipality within 10 days of the date the injury occurred.  This notice of claim is simply to let the government body know that you were injured and you hold them responsible.  If the notification deadline is missed without a reasonable excuse for the delay or the municipality was prejudiced in their ability to form a defense because of your delay, you may be barred from recovering compensation for your injury and losses.  This requirement makes it particularly important that accident victims consult with an experienced personal injury lawyer as soon as possible after they are hurt, even if they aren’t sure of the extent of their injury at the early stages.

As well as the above notification deadline, all personal injury lawsuits in Ontario against a negligent party (against individuals, businesses and municipalities) are subject to a 2-year filing deadline.  This means that the injured person must commence their lawsuit within 2 years of the date when they knew, or should have known, they had grounds to make a claim against the defendant.  In most cases, this requires you to begin your claim within 2 years of the date of injury. 

There are many types of injury lawsuits that may arise as a result of negligence on the part of a government body.  These include, but are not limited to, slip and fall accidents, motor vehicle accidents and injuries at recreational facilities.  If your injury occurred on municipal property, such as an improperly maintained road, park, sidewalk or recreational venue, or you were injured by a municipal service vehicle, the responsible government body may be held liable for your losses.  

Cartner v. Burlington (City) is a personal injury lawsuit arising from a slip and fall accident on an improperly maintained sidewalk.  This case involves a 52-year-old woman who suffered a severely broken leg after she slipped on a concrete slurry substance that had collected on the sidewalk along Guelph Line Road in Burlington, after a store owner washed the concrete residue off his property the day before.

As a result of the accident, the plaintiff suffered a severe injury to her left femur and required complicated surgery to attempt to fix the damage.  The injury caused her significant pain and her rehabilitation was quite lengthy.  Further, the damage to her leg caused acceleration of painful osteoarthritis in her knees; she had to undergo knee replacement surgery; and she will require two additional surgeries to replace her left knee.  The plaintiff’s injury had a significant impact on her ability to work and participate in physical activities she once enjoyed. She can also no longer complete many activities, including household tasks, walking the dog, and cooking and caring for her husband.

The trial judge ruled that the store owner is 80 per cent liable for the plaintiff’s injuries and the City is 20 percent liable, and this finding was upheld when the City appealed the decision. The injured woman was awarded the following damages: $120,000 in general damages for pain and suffering; $170,000 for loss of past and future earning capacity; and $19,064.01 for an OHIP subrogated claim together with $14,064.01 in pre and post judgement interest on the past loss. The plaintiff’s husband also received an award of $20,000 under the Family Law Act for loss of guidance, care and companionship.

Bagoo v. The City of Toronto (2019) is a similar action involving a woman who sued the City of Toronto after a slip and fall accident caused her to fracture two fingers and bruise her legs, side and shoulders.  The accident occurred on Toronto’s Centre Island when the plaintiff slipped and fell on an uneven and damaged stone sidewalk.  There were no warning signs to tell users that the sidewalk had a hazard and wasn’t in a safe state of repair.  The accident victim required two surgeries to repair the injuries to her fingers and claims that the use of her hand is permanently impaired.  The judge found the municipality liable and awarded the plaintiff special and general damages.

MacMillan v. Ontario (Minister of Transportation and Communications) (2001) is the appeal of an injury lawsuit involving a woman who sustained devastating head injuries during a car crash on Highway 401.  The woman worked in Waterloo and was driving to her home in London when her car skidded on black ice that formed on the surface of a bridge over Highway 2 near Woodstock, causing her to lose control, cross the highway median and collide with a westbound vehicle.  She sued the Province of Ontario on the grounds that they failed in their legal obligation to properly maintain the road in a state of safe repair.

The trial judge assessed the plaintiff’s damages as $3,865,644.90, but ruled that the Province was not liable for her injuries.  The plaintiff appealed her case and the Appeal Court reversed the previous decision and held that the trial judge “misapplied the law” in assessing the Ontario government’s legal obligation to keep the highway in repair, given the circumstances of the case.  

The area around Woodstock had experienced unseasonably cold weather in the week before the crash, during mid-October, and there had been frost warnings and temperatures close to freezing.  All the ingredients were present for preferential icing, particularly on bridge decks where temperatures are often significantly below the air temperatures.  Preferential ice on a bridge is difficult to see and unexpected because the adjacent highway is ice free and this presents a risk of serious, and even lethal, harm to drivers.

An expert climatologist gave evidence that the above conditions could have led the Ministry to conclude that preferential icing was a real risk on the bridge.  An early morning inspection of the five bridges on Highway 401 was an appropriate response (or, at least an inspection before 7:30 when heavy traffic begins) and would have alerted Ministry workers of the need to apply salt and/or sand.  Further, the Ministry supervisor for the London district admitted that the Ministry is obligated to inspect the bridges when there is a risk of preferential icing, even during the summer schedule.  The judge in this case submitted that, if the bridge at the scene of the accident had been salted and sanded, the plaintiff’s car would not have skidded out of control.

The Appeal Court concluded that the Ministry breached its duty to keep the highway in a state of repair and in doing so, caused the plaintiff’s injuries.  Upon finding the Ministry liable for the plaintiff’s injuries, the Appeal judge ordered that the Ministry pay the damages assessed by the trial judge (in excess of $3.8 Million), in addition to pre-judgement interest and the costs of the trial. 

At Dietrich Law, our legal team has successfully resolved many personal injury lawsuits against municipalities and we are usually able to negotiate a favourable settlement for our clients without having to go to trial.  Call an experienced Kitchener-Waterloo personal injury lawyer at Dietrich Law today if you were hurt and would like to find out about your legal rights in the matter.


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