Executive Summary: Key Legal and Evidentiary Issues

• The City of Windsor sought leave to amend its statement of defence to plead the statutory notice defence under s. 44(10) of the Municipal Act, 2001.

• The plaintiff opposed the amendment, arguing it would cause non-compensable prejudice and was not a triable or meritorious issue.

• The court examined whether the plaintiff would suffer actual or presumed prejudice due to the late amendment, and if such prejudice could be compensated by costs.

• The sufficiency and timing of the plaintiff’s notice to the City, as required by s. 44(10), was a central issue, including whether exceptions under s. 44(12) applied.

• The court considered whether the delay in seeking the amendment was so inordinate as to trigger a presumption of prejudice against the City.

• Ultimately, the court granted the City leave to amend, finding no non-compensable prejudice and that the amendment raised a triable and prima facie meritorious issue.

Background and facts of the case

This case arises from a single-vehicle accident on May 5, 2019, at the intersection of 9th Concession Road and County Road 42 in Windsor, Ontario. The plaintiff, Gordon Hardcastle, alleged that his vehicle entered the Windsor Airport property and struck a concrete barrier, resulting in bodily injury. He claimed that both the City of Windsor and Your Quick Gateway (Windsor) Inc. (YQG), the airport occupier, were negligent and liable for his injuries.

The plaintiff commenced his action on April 27, 2021. Notably, he first provided written notice to the City of his intention to claim damages more than 460 days after the accident, well beyond the 10-day statutory notice period required by s. 44(10) of the Municipal Act, 2001. The City’s initial statement of defence referenced the Municipal Act but did not specifically plead the s. 44(10) notice defence. It was only in January 2025, over three years after the action began and more than five years after the accident, that the City sought to amend its pleadings to explicitly rely on this statutory defence.

The motion to amend and positions of the parties

The City brought a motion for leave to amend its statement of defence to add the s. 44(10) defence. The City argued that under Rule 26.01 of the Rules of Civil Procedure, leave to amend should be granted unless the plaintiff could show non-compensable prejudice. The City maintained that the plaintiff had not demonstrated such prejudice and that sufficient time remained before trial for the plaintiff to respond to the amendment.

The plaintiff opposed the motion, contending that the late amendment would result in prejudice that could not be compensated by costs, particularly given the proximity to trial and the significant resources already expended. The plaintiff also argued that the amendment did not raise a triable or meritorious issue, asserting that the City had actual notice of the accident within the statutory period or, alternatively, that the exceptions under s. 44(12) of the Municipal Act applied.

Discussion of policy terms and statutory clauses

The case turned on the interpretation and application of s. 44(10) of the Municipal Act, which requires written notice to the municipality within 10 days of an injury arising from the alleged non-repair of a public road. The plaintiff’s notice was provided long after the statutory period. The plaintiff attempted to rely on s. 44(12), which allows for exceptions if there is a reasonable excuse for the delay and the municipality is not prejudiced, but the court found insufficient evidence to support these exceptions.

Analysis and findings

Justice Dubé analyzed whether the plaintiff would suffer actual or presumed prejudice from the amendment. The court found that the plaintiff’s evidence of prejudice was speculative and lacked specificity. The court also determined that any prejudice resulting from the amendment could be compensated by costs, including throwaway costs for additional preparation. The delay in seeking the amendment, while unexplained, was not so prolonged as to trigger a presumption of prejudice.

On the merits, the court found that the amendment raised a triable issue and was not scandalous or an abuse of process. The City’s oversight in failing to plead the s. 44(10) defence earlier did not justify denying leave to amend, especially since the plaintiff was aware of the potential for this defence to be raised.

Outcome and ruling

The court granted the City of Windsor leave to amend its statement of defence to plead the s. 44(10) statutory notice defence. The court ordered the City to produce a witness for further examination for discovery on the amendments and set deadlines for related procedural steps. The trial judge was left to determine appropriate costs and throwaway costs, if any, resulting from the amendment. The City was deemed the more successful party on the motion, but the parties were encouraged to resolve costs between themselves. If they could not, a schedule for written submissions was provided. No exact monetary award was determined at this stage, as the ruling addressed only the procedural issue of amending the pleadings and not the underlying liability or damages.