Minors whose Litigation Guardians Fail to Give Notice under s.44(10) – ONCA Decision

Written on May 15, 2017.

In a recent decision in Azzeh v. Legendre, 2017 ONCA 385, the Court of Appeal for Ontario applied the notice requirement under s.44(10) to a claim by a minor represented by litigation guardian. The Court found that failing to give notice to the municipality by the Litigation Guardian by over a year, was not “reasonable” and set aside the motion judge’s decision and dismissed the proposed claim against the municipality. While the Court of Appeal perhaps muddied the waters somewhat by suggesting that the 10 day notice period did not begin to run until the minor had a litigation guardian, (rather than simply stating that had the LG given notice on behalf of the minor within 10 days of being appointed – to do so would have been deemed “reasonable”) the result was, in our opinion, correct at law and confirms once again several important principles that underlie the notice provision. The ONCA application of the law of principal and agent was also illuminating, as a similar successful argument was made in Temiskaming Shores ats. Bourassa.