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August 31, 2011

Suing a Municipality? Remember the 2 Month Rule

Imagine you are injured in an accident caused by the negligence of a city or municipality. What do you need to know in order to sue for damages?

You must comply with s. 286 of the Local Government Act that states the following:

286 (1) A municipality 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 within 2 months from the date on which the damage was sustained.

In other words, you only have 2 months from the date of the accident to give written notice of damages to the municipality. Failure to do so might mean you are not able to recover damages- even if the municipality is at fault.

The Court can waive the 2 month rule if the Court is satisfied that:

  1. The plaintiff has a reasonable excuse for missing the 2 month deadline, and
  2. The defendant municipality has not been prejudiced in its defence by the failure or insufficiency of the notice.

In BC Supreme Court Case Thauli v. Corporation of Delta, Ms. Thauli slips on a water bottle and falls during an aerobics class at a Delta fitness centre. She dislocates her left knee cap.

Ms. Thauli works as a paralegal in the ICBC group of a law firm. One of her lawyer acquaintances mentions something about a 6 month limitation notice. Ms. Thauli does not retain a lawyer and relies on this advice. She gives written notice to Delta just before the 6 month deadline.

Delta asks that the action be dismissed because Ms. Thauli failed to give written notice to the municipality within 2 months of the accident. Delta’s lawyer says that Ms. Thauli should have actively sought appropriate legal advice or performed her own research into the requirements for taking action against a municipality.

The Judge believes that since Ms. Thauli’s injuries are minor, it’s not surprising that she did not seek official legal advice. He also considers the fact that the wrong information given to her from lawyers at her firm is excusable since they do not regularly practice municipal law.

The Judge says that Ms. Thauli does have a reasonable excuse, and that Delta failed to establish that it has been prejudiced. Because both requirements under section 286 (3) are met, the Judge rules in favour of Ms. Thauli.

Delta appeals the Judge’s decision a year later. Delta’s only reason for appeal is that the Judge was wrong to believe Ms. Thauli had a reasonable excuse to miss the 2 month deadline.

The Court of Appeal agrees with the trial Judge that Ms. Thauli had a reasonable excuse for not complying with the notice requirement.