In the recent case of Kazemi v. North Vancouver (City), 2016 BCSC 1240, the BC Supreme Courrt dismissed a personal injury claim against the municipality as a result of the plaintiff’s failure to give notice within the two-month period required under the Local Government Act.
In this case the plaintiff fell on a sidewalk on August 6, 2010. She retained legal counsel on November 10, 2010. Her legal counsel wrote to the the City to provide notice of the incident on January 28, 2011, nearly 6 months after the occurrence. The City argued that the plaintiff’s claim was barred pursuant to section 286(1) [now section 736(1)] of the Local Government Act. Ms. Kazemi argued that she had a reasonable excuse for not providing timely notice, and that her claim was not barred as a result of by section 286(3) (now section 736(3)) of the Local Government Act.
The legislation, which is substantially the same as it was at the time of M. Kazemi’s injury, now reads:
736(1) A municipality or regional district is in no case liable for damages unless notice in writing, setting out the time, place and manner in which the damage has been sustained, is delivered to the municipality or regional district, as applicable, within 2 months from the date on which the damage was sustained.
(2) In case of the death of a person injured, failure to give the notice required by this section is not a bar to the maintenance of the action.
(3) Failure to give the notice required by this section or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes
(a) there was reasonable excuse, and
(b) the defendant has not been prejudiced in its defence by the failure or insufficiency.
Ms. Kazemi took the position that her age, 68 at the time of the accident, her recent immigration to Canada, her poor understanding of the English language and her reliance on her son and her lawyer, all combined to provide a reasonable excuse for the delay.
In discussing what can constitute a reasonable excuse, the court referred to the previous decisions of the B.C. Court of Appeal decision in Teller v. Sunshine Coast and Thauli v. Delta (Corporation). According to those cases, whether a reasonable excuse for failing to give notice is made out must be determined in light of the purpose or intent of the notice provisions, taking into account all matters put forward as constituting either singly or together a reasonable excuse.
The court also considered the non-exhaustive list of factors stated in the 2009 decision of the B. C. Supreme Court, Persall v. Bond, which includes the plaintiff’s knowledge of their obligation to give notice, any actions or representations by the municipality that give the plaintiff a false sense of security, the plaintiff’s awareness of the seriousness of their injuries and the local government’s involvement, and the plaintiff’s capacity to give notice.
In addition, the court considered whether a lawyer’s failure to deliver timely notice could provide a reasonable excuse for delay. Referencing Persall, the court affirmed that both the plaintiff and her counsel’s behaviour must be examined to ensure the legislative intent of the short notice period is not overcome.
In reaching its conclusion that the plaintiff had not established a reasonable excuse, the court rejected the suggestion that the plaintiff could be considered “elderly”, and in any event concluded that the evidence did not support the plaintiff’s age as being a significant factor. With respect to her recent immigration to Canada, the court acknowledged that this, as well as her limited English skills, might have made it more challenging to pursue the matter. However, the court noted that the plaintiff was living with her son at the time of her injury, that she had told him about the accident when it happened, and that while she may been have relying on her son, there was no evidence to explain why her son did not take action to assist her sooner. Additionally, Ms. Kazemi stated in her testimony that other people had advised her that she should lodge a complaint with the City.
Ms. Kazemi retained a lawyer in November 2010 and there was a further 2 month delay before notice was given to the City. In this instance there was no evidence from the lawyer put before the court to explain the additional delay.
Given Ms. Kazemi’s reliance on her son, and then her lawyer, and their lack of evidence or explanation for the delay, the court was not able to find her excuses for the delay to be reasonable.
The exemption in section 786(3) requires the court to assess not only whether there is a reasonable excuse for the delay but also whether or not the defendant is prejudiced by the delay. Prejudice can arise where no notice is given within the statutory time period, or where notice is given with incomplete or false information. The court reiterated statements from earlier court decisions which emphasize that the purpose of the short notice period is to allow the municipality to examine the place where the damage occurs, interview witnesses and decide whether or not to settle. If the court had determined that there was a reasonable excuse for the delay, it would have then have had to determine if the City had suffered prejudice as a result. However, having found that the plaintiff did not have a reasonable excuse for the delay in giving notice, the court found it unnecessary to consider whether the City was prejudiced as a result.
As the court emphasized in this case, whether a delay in giving notice can be excused requires consideration of all relevant factors. In Kazemi v. North Vancouver (City), the court’s consideration of all relevant factors led to the conclusion that a reasonable excuse for the delay had not been made out.