Category: Notice To Municipality

Court Of Appeal Discusses Meaning Of “Reasonable Excuse” Under S. 285 Of Local Government Act

If you have been injured in an accident, and you wish to bring a claim against a municipality, then under Section 286 of the Local Government Act, you are required to notify them in writing within two months of the accident of the time, place, and manner in which the damage occurred. Pursuant to Section 285 of the Local Government Act, you must also commence legal proceedings within 6 months of the accident, as opposed to the normal two year period for most other civil matters, including motor vehicle accidents. Examples of where this shortened limitation period can apply include a slip and fall incident, a claim for negligent construction of an intersection, or where the at-fault motorist was driving a municipally owned vehicle. If the proper notice is not given, then the Court has discretion to allow the claim to proceed, as long as there is a reasonable excuse for the failure, and there is no prejudice to the Defendant due to the failure.

In Thauili v Delta, the British Columbia Court of Appeal discussed the meaning of “reasonable excuse”.


[10] In Teller, a five-judge division of this Court considered the construction to be placed on the words “reasonable excuse”, taken in the context of s. 755 of the Municipal Act, R.S.B.C. 1979, c. 290.  Section 755 contained the same notice requirement found in s. 286(1) of the Local Government Act as well as the same saving provision now found in s. 286(3).  Although not identically worded, there is no difference in substance between s. 755 of the Municipal Act and s. 286 of the Local Government Act.


[11] Teller did not propound a test to determine what constitutes “reasonable excuse”.  Rather, Teller instructs that “all matters put forward as constituting either singly or together a reasonable excuse must be considered.” (at 388)  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.


[12] Teller expressly overruled those trial decisions which had excluded ignorance of the law as a factor to be considered in deciding whether there was reasonable excuse for the failure to give notice. …


[37] There can be no doubt that after its pronouncement, Teller became – and has remained – the governing authority on the construction of “reasonable excuse” found in the saving provision in s. 755 of the Municipal Act. …


[42] As to the purpose of the section, Southin J.A. said, at 383:


What then is the purpose of the section?  Clearly one of the purposes of the section is to enable a municipality to investigate a claim fully.  But that purpose is addressed by the second branch of the concluding sentence.  The only other purpose I can think of was to protect municipalities against stale claims in order to enable them to estimate their future liabilities and make budgetary provision for them.  But I know of no authority for that surmise.It really is difficult to make much sense out of the words “reasonable excuse” in the context….


[43]         After considering the provenance of the section, the state of the law as revealed by the case authorities in 1957 when the provision was, in effect, newly enacted, and the case authorities, including Horie v. Nelson(1988), 20 B.C.L.R. (2d) 1, [1988] 2 W.W.R. 79 (C.A.), leave to appeal to S.C.C. refused 27 B.C.L.R. (2d) xxxv [Horie], Southin J.A. concluded, at 388:


[T]he maxim “ignorance of the law is no excuse” is not a rule of law determinative of an issue of statutory interpretation in every instance.


In the end, the question is simply what do the words at issue mean in the context.  In my opinion, ignorance of the law is a factor to be taken into account.  So for that matter is knowledge of the law. But all matters put forward as constituting either singly or together a reasonable excuse must be considered.


Those decisions of the court below which exclude ignorance of the law as a factor are, therefore, overruled.


[50] The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse for the failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, taking into account all matters put forward as constituting either singly or together a reasonable excuse.  The determination of whether there is reasonable excuse is contextual.  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.


[53]  The parties are in accord that this Court’s decision in Teller is the leading authority in this province on the interpretation of the provision in s. 286(3)(a) requiring “a reasonable excuse” if there has been a failure to meet the two-month notice requirement.  Based on Teller (at 382), counsel are also in accord that s. 286(3) permits this Court to substitute its opinion or its view of the facts untrammelled by the opinion of the court below, even if the judge was not patently wrong in the decision reached 


Court Dismisses Claim Against Municipality For Lack Of Notification Within 2 Months Of Accident

In Persall v Bond, the Plaintiff brought an action against a municipality for negligent design and maintenance of an intersection, however did not notify the municipality in writing within two months of the accident. The Plaintiff’s claim was dismissed, with the Court commenting:


[16]         When notice is not given to a municipality within two months in accordance with the statutory obligation, the onus is on the plaintiff to prove a reasonable excuse:  Keen v. City of Surrey, 2004 BCSC 1161, ¶ 17.


[17]         What may constitute a reasonable excuse will depend on the circumstances of each case.  Courts in British Columbia have taken various factors into account in assessing whether a plaintiff has a reasonable excuse for providing late notice.  They include:


a)       The plaintiff’s knowledge of the statutory obligation to provide notice;

b)       Actions or representations by the local government which have the effect of lulling the plaintiff into a false sense of security;

c)       The plaintiff’s awareness of his/her injuries and awareness of the seriousness of his/her injuries;

d)       The plaintiff’s awareness of the involvement of the local government in the matter giving rise to the litigation; and

e)       The plaintiff’s capacity to provide notice.


[18]           In Keen, Burnyeat J. held that ignorance of the law alone will not constitute a reasonable excuse for failure to provide timely notice pursuant to s. 286 of the Act.  Rather, it is but one of the factors to be taken into account:  Teller.


[19]           When a plaintiff acts through a solicitor, responsibility for providing a municipality with timely notice of a damages claim is shared.  In Horie v. Nelson (1987) Can LII 2508 (B.C.C.A.), a majority of the British Columbia Court of Appeal held that a solicitor’s negligent failure to deliver timely notice does not necessarily constitute a reasonable excuse.  In response to an argument that the appellants relied on their solicitor to deliver notice, but the solicitor inexplicably failed to do so, MacDonald J.A. stated:


[18]      … That approach can only help the appellants if they can put forward their own reasonable conduct and dissociate themselves from the failure of their solicitor.


[19]      I agree with Locke J. when he said in the course of his reasons [p. 112]:  “I am driven further by the wording of the section of our statute to hold that the responsibility for delivering the notice is collective in that, if the notice is not delivered, it does not matter by whose hand the failure occurred”.  The section requires reasonable excuse for “failure to give the notice”.  That means that when a party acts through a solicitor the conduct of both must be examined to determine whether there was reasonable excuse for failure to give the notice.


[20]      In my opinion the judge was correct in his conclusion. I would dismiss the appeal.


[20]           When a plaintiff is able to establish a reasonable excuse for failing to provide timely notice, the Court must go on to consider whether the municipality has nevertheless been prejudiced in its defence.  If so, the action against it cannot be maintained despite the existence of a reasonable excuse.


[21]           The onus is on the municipality to prove it has suffered prejudice as a result of receiving delayed notice.  Prejudice may be presumed on the basis of inordinate delay.  In such circumstances, however, it is open to the plaintiff to rebut the presumption of prejudice:  Griffiths.


[22]           In most cases, the issue of prejudice cannot be determined until the end of the trial.  This is so because whether a defendant has, in fact, been prejudiced will depend on the allegations pursued by the plaintiff at trial and the conclusions the Court is asked to draw:  Teller.


[25]         Mr. Persall responds that his serious injuries, together with his reasonable conduct in leaving the matter of notification to his solicitors, constitute a reasonable excuse.  He submits the Court should infer he was personally unaware of the notification requirement and unable fully to instruct counsel until he was released from GF Strong in January, 2008.  He emphasises that notice was provided shortly after his present solicitors were retained, but concedes his previous solicitors’ failure to provide timely notice is unexplained.  In the event a reasonable excuse is found, he submits the issue of prejudice should be determined at trial as evidence of the Intersection’s condition at the relevant time may well come to light.


[26]         I accept that Mr. Persall’s discovery evidence as to his knowledge of the statutory notice requirement is less than crystal clear.  I am nonetheless satisfied that an absence of personal knowledge can be reasonably inferred and conclude he was personally unaware.  This does not, however, constitute a reasonable excuse, given Mr. Persall’s demonstrated capacity to instruct counsel within weeks of the Accident and his previous solicitors’ unexplained failure to notify the City of his damages claim.


[29]         In this case, I am satisfied that Mr. Persall acted through his previous solicitors from no later than October 10, 2006 in connection with the Accident.  I am unable to reach a conclusion, however, as to why those solicitors did not provide the City with written notice of his damages as required by the Act.  That being so, I am unable to determine whether Mr. Persall does or does not have a reasonable excuse for his failure to comply with his statutory obligation to provide timely notice to the City.  The onus is on Mr. Persall to establish a reasonable excuse.  The onus has not been met.