Canada: Municipality Successful In Relying On 10-Day Notice Period In Claim Involving A Minor

Last Updated: July 14 2017
Article by Rebecca Bush and Natalie Salafia

Most Read Contributor in Canada, July 2019

In the recent decision of Azzeh v Legendre, 2017 ONCA 385, the Ontario Court of Appeal canvassed the law relating to limitation and notice periods in the context of claims initiated by minor plaintiffs.

This case arose from a motor vehicle accident on September 7, 2007 in the City of Greater Sudbury (the "City") in which the infant plaintiff, Bayden Azzeh ("Bayden"), suffered brain injuries. At the time of the accident, Bayden's mother, Julia Neville ("Ms. Neville"), was driving the vehicle in which Bayden was a passenger.

In June 2014, Ms. Neville commenced an action, on behalf of Bayden, against the driver and owner of the other vehicle involved in the collision. On May 29, 2015, Bayden's grandmother, Ingrid Nancy Dion ("Ms. Dion"), swore an affidavit to officially act as Bayden's litigation guardian. Two days later, Ms. Dion notified the City of a potential claim in relation to the accident. A motion was subsequently brought to amend the Statement of Claim to add various parties, including the City, as defendants to the action and to increase the amount of damages sought.

The City opposed the motion on the basis that the claim against it was statute-barred. It was the City's position that the two-year limitation period under the Limitations Act, 2002 began in April 2008 when Ms. Neville entered into a contingency fee agreement with her lawyer, which included a statement that it was "for both mother and son from the same accident". In the alternative, the City argued that the limitation period began in 2011 when Ms. Neville submitted an application for accident benefits for Bayden, which she signed as Bayden's "guardian". It was argued that, either way, the limitation period had expired. The City also opposed the motion on the basis that it did not receive notice of Bayden's claim within 10 days of the accident, as required under the Municipal Act, 2001.

The motion judge rejected the City's arguments and held that the limitation period began to run in June 2014, at the earliest, when the Statement of Claim was issued on behalf of Bayden. Since the motion was brought within two years of the commencement of the limitation period, the motion judge found that the claim against the City was not statute-barred. The motion judge further held that 10-day notice period began on May 29, 2015 when Ms. Dion was granted authority to act in the action. Because Ms. Dion notified the City of the claim two days after her appointment, the notice requirement was also met. Moreover, even if the notice period had expired, Ms. Neville had a "reasonable excuse" as Bayden was a minor.

The City appealed the decision to the Ontario Court of Appeal. The majority held that, where the person with a claim is a minor, the two-year limitation period under the Limitations Act, 2002 begins to run when the minor is "represented by a litigation guardian in relation to the claim". Thus, the majority agreed with the motion judge that the limitation period began to run in June 2014 when Ms. Neville "held herself out" as Bayden's litigation guardian "in relation to the claim". As a result, the Court of Appeal upheld the decision that the claim against the City was not statute-barred under the Limitations Act, 2002. The Court further noted that Ms. Neville's failure to file an affidavit to officially act as a litigation guardian did not suspend the running of the limitation period, but rather, resulted in an "irregularity".

However, with respect to the City's notice period argument, the majority held that the 10-day notice period under the Municipal Act, 2001 began to run in June 2014 when Ms. Neville commenced the claim on Bayden's behalf. At that point, Ms. Neville had retained a lawyer to pursue claims on Bayden's behalf and the Court found that she was "capable of forming the intention" to sue the City. Despite this, notice was not provided to the City until May 2015, almost one year later. The Court of Appeal noted that under section 44(12) of the Municipal Act , 2001, failure to give notice is not a bar to an action when the claimant has a reasonable excuse for failing to comply with the notice provision and the City is not prejudiced by the delay. In reviewing the evidence, the Court found that the only explanation for the late notice was Ms. Neville's evidence that no steps were taken to sue to City as "this never came up". The Court held that this did not constitute a "reasonable excuse" for the delay. Consequently, because the notice to the City was out of time and there was no reasonable excuse for the delay, the Court determined that it was not "strictly necessary" to deal with the issue of prejudice for the purpose of disposing of the appeal.

Nonetheless, the Court went on to make "some limited comments with a view to providing guidance" on the prejudice issue. The City argued that the late notice prejudiced its ability to defend itself as it destroyed its maintenance records due to the passage of time. This argument was rejected by the motion judge on the basis that the claim against the City related to road design issues and the City had not destroyed its road design records. The Court of Appeal disagreed with the motion judge and found that the claim against the City included allegations about adequate signage and lighting, which are considered maintenance and repair issues. However, as the signage and lighting at the intersection had not changed since the accident, there was no prejudice to the City.

The Court ultimately determined that it was unnecessary to resolve the issue of prejudice, the order of the motion judge was set aside, and the proposed claim against the City was dismissed.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions