Carfra Lawton LLP | Victoria BC

Unless You Are Incapacitated, You Better Tell Your Local Government If You Fall!

The court summarily dismissed a claim for injury arising from a fall on a City sidewalk, because the plaintiff failed to notify the City of the incident within 2 months, contrary to now-section 736 of the Local Government Act.

The plaintiff in Kazemi v. North Vancouver (City), 2016 BCSC 1240, was 68 years old when she fell, had immigrated to Canada only months earlier, and had a very limited ability to communicate in English. She did not notify the City until nearly 6 months after the fall, and when she did, through counsel, the notice gave an incorrect address for the alleged incident. She had retained counsel almost 4 months after the fall. To avoid the dismissal, pursuant to now-section 736(3), the plaintiff needed to prove that she had a reasonable excuse for failing to give the required notice, and that the City had not been prejudiced in its defence by the failure or insufficiency of notice.

The court reviewed case authorities on the issue of “reasonable excuse” and held that its assessment requires consideration of the entire context around the delay. The court noted that previous case authorities excusing a plaintiff’s delay all had a common feature: “a level of injury or incapacity that affected [the plaintiff’s] ability to pursue their claims.” The court considered the plaintiff’s age but found no indication that she was incapacitated. The court then considered the plaintiff’s limited English skills but found this also did not excuse the delay because she had access to the assistance of her son and a lawyer.

In the result, the court held that the plaintiff’s delay had not been satisfactorily explained, particularly once she had retained a lawyer, and dismissed the claim pursuant to the failure to comply with the notice provision.

Case law update by Trevor Morley