Summary Judgment Granted in s.44(10) Notice Case – Argue v. Tay (Township)

Written on August 29, 2012.

In a decision released on August 10, 2012, by the Honourable Justice DiTomaso of the Ontario Superior Court of Justice, counsel for the defendant municipality did the near impossible. He managed to obtain Summary Judgment notwithstanding the Court of Appeal decision in Combined Air, AND overcome the obstacles from several years’ worth of caselaw which had watered-down and stripped away much of the usefulness of the notice requirement under s.44(10) of the Municipal Act, 2001. The Argue matter involved a motor-vehicle accident claim, where the Plaintiff failed to give notice as required under s.44(10) of the Municipal Act, 2001, until nearly 2 years after the accident. The Plaintiff’s “excuse”for failing to give proper notice was that it did not occur to her to notify the Township, she had no experience in litigation, and she was focused on her recovery. The Plaintiff’s counsel’s argument of “actual or constructive notice” was rejected. No legal authority was presented to the court to support the proposition that actual  and/or constructive notice in any way pre-empts the requirement to give written notice to the Municipal Clerk pursuant to s. 44(10) of the Act. The Court also confirmed the law that ignorance of statutory time limits is not a reasonable excuse for non compliance with those limits: http://www.canlii.org/en/on/onsc/doc/2012/2012onsc4622/2012onsc4622.pdf