Île Perrot (City of) v. Goulet-Wiseman, [1977] 1 SCR 175

Supreme Court of Canada

Île Perrot (City of) v. Goulet-Wiseman, [1977] 1 S.C.R. 175

Date: 1975-06-26

City of Île Perrot (Defendant) Appelant;

and

Dame Cécile Goulet-Wiseman (Plaintiff) Respondent.

1975: June 19; 1975: June 26.

Present: Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Municipal law—Notice of intention to bring an action—Sufficient reasons to justify failure to give notice—Release from obligation to give notice after expiry of prescribed time limit—Cities and Towns Act, R.S.Q. 1964, c. 193, s. 622.

Respondent, the victim of a street accident for which she holds the appellant responsible, brought an action for damages without first having given notice within the fifteen‑day period of s. 622 of the Cities and Towns Act. The exception to the form made by appellant, based on this failure, was dismissed by the Superior Court and by a majority of the Court of Appeal. These Courts recognized that respondent had valid reasons for not giving notice within the prescribed period, and concluded that the condition precedent to the institution of an action had ceased to exist.

Held: The appeal should be dismissed.

The Court of Appeal correctly held that if no notice of action has been given, and if this failure has sufficient justification, the victim is relieved of his obligation and may institute proceedings without any other previous condition. On the one hand, para. 4 of s. 622, which deals with irregularity in the notice, an expression which includes absence, does not impose on the victim the obligation to correct the situation when the reasons are deemed sufficient. On the other hand, para. 5 of this section establishes two possible starting points of the prescription, one of these being the day of the accident. Thus it is a recognition of the fact that once the time has been exceeded, the victim is permanently released from the obligation to give notice, when the circumstances provided for in the Act occur.

City of Quebec v. Baribeau, [1934] S.C.R. 622; Dufour v. City of Chicoutimi, [1945] Que. Q.B. 127; Méthot v. Montreal Transport Commission, [1972] S.C.R. 387, referred to.

APPEAL from a decision of the Court of Appeal for Quebec affirming a judgment of the

[Page 176]

Superior Court, dismissing an exception to the form. Appeal dismissed.

G.Y. Renaud, for the appellant.

S. Goldwater, for the respondent.

The judgment of the Court was delivered by

DE GRANDPRÉ J.—Appellant, against whom an action for damages was brought by respondent following a street accident, raised against the action an exception to the form, alleging failure to give notice. This exception was dismissed by the Superior Court and by a majority of the Court of Appeal.

The trial judge, on the basis of s. 622(4) of the Cities and Towns Act, R.S.Q. 1964, c. 193, concluded as follows:

Considering that the plaintiff has proven that she was prevented from giving the notice for a reason which the Court deems sufficient.

In the Court of Appeal, the two majority judges came to the conclusion that the trial judge, in the words of Casey J.,

did not abuse the discretionary power conferred on him by the Act.

Casey J. added:

Having successfully explained her failure to give notice within the 15 day period of sec. 622-1 the condition precedent—the giving of notice—to the institution of action ceased to exist. I say this because the Act does not either expressly or by necessary implication, say that the condition continues to exist after the expiry of the 15 day period.

All that the Act says is that the victim must give notice within 15 days of the accident and that action may not be instituted before 15 days after the service of this notice. The Act then goes on to soften the rigour of this rule by adding that the failure to give this notice will not deprive the victim of his right of action ‘if he prove that he was prevented from giving such notice for any reason deemed sufficient by the court or judge’. If as in this case, the victim has satisfied the court the sanction disappears and since the Act requires no other notice he, the victim, is free to sue without further formality or delay.

[Page 177]

In his brief in support of his appeal, appellant submitted two propositions to the Court:

(1) that the discretion given to the courts in s. 622(4) of the Act has not been exercised judicially;

(2) that even if respondent had valid reasons for not giving the notice prescribed by the Act within the fifteen days stipulated therein, she had an obligation before taking action to give this notice as soon as the obstacle recognized as valid by the courts no longer existed.

At the hearing, counsel for the appellant stated that he would not insist on his first argument. I shall therefore not have to consider whether the Court has jurisdiction in this particular case, in the light of s. 44 of our Act, and if so, whether the trial judge had judicial grounds for exercising his discretion in the manner mentioned above.

The only question that arises is the one which was left unanswered by Rinfret J., as he then was, in City of Quebec v. Baribeau[1], at p. 634:

[TRANSLATION] A final question was raised by respondent:

It seems to be clearly established that during the thirty days following the accident, respondent was prevented by irresistible force from giving the required notice; and the question that arises is whether, once the time limit had been exceeded, the obligation to give notice continued to exist, or whether, on the contrary, the obstacle arising during the thirty-day period does not operate as a final release from the obligation to give notice.

We reserve our decision on this point for the time when it will be needed in adjudicating the case. In the case at bar, respondent has proven to our satisfaction that he was prevented from giving the notice sooner than he did for a reason which is similar to those provided for by s. 535, and which we consider to be valid.

The point was also referred to by the Court of Appeal in Dufour v. City of Chicoutimi[2], in which, just as in Baribeau, the victim had actually given notice after the time limits had expired but before commencing an action.

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The Supreme Court has not provided an answer to this question since that time, except for an obiter of Fauteux C.J. found at p. 393 of Méthot v. Montreal Transportation Commission[3]:

[TRANSLATION] Moreover, as a matter of fact, if the reasons relied on to justify the lack of notice are found valid by the trial judge, the latter will recognize in his judgment that the lack of notice has not deprived the accident victim of the right of action given him by the ordinary law, subject however to the exceptional six-month prescription.

At this point, it is worth quoting the relevant subsections of s. 622:

622. (1) If any person claim or pretend to have suffered bodily injury by any accident, for which he intends to claim damages from the municipality, he shall, within fifteen days from the date of such accident, give or cause to be given notice in writing to the clerk of the municipality of such intention, containing the particulars of his claim, and stating the place of his residence, failing which the municipality shall be relieved from any liability for any damages caused by such accident, any provision of law to the contrary notwithstanding.

(3) No such action shall be instituted before the expiration of fifteen days from the date of the service of such notice.

(4) The failure to give such notice shall not, however, deprive any victim of such accident of his right of action, if he prove that he was prevented from giving such notice for any reason deemed sufficient by the court or judge.

The absence of notice or its irregularity because late, insufficient or otherwise defective, must be set up by exception to the form and not by a plea to the merits. Failure to invoke such means by exception to the form within the delays and according to the rules established by the Code of Civil Procedure, constitutes a waiver of such irregularity.

No contestation of the facts may be inscribed until judgment is rendered on the said exception to the form and such judgment must dispose thereof and not reserve it for the merits.

(5) No action in damages shall lie unless such action be instituted within six months after the day on which the accident happened or the right of action accrued.

[Page 179]

I shall deal first with para. 4. In the case of failure with respect to the notice prescribed in the first paragraph, the victim of the accident is not deprived of his remedy if he has sufficient justification to present. As indicated in the second sentence, this failure is either absence or irregularity, and in the latter case it may involve late notice, insufficient notice or defective notice. Whichever of these cases is in question there is, as stated in the third sentence, an “irregularity”, and all irregularities are dealt with on the same footing. It is clear that if the notice is irregular because it is late, insufficient or otherwise defective, the victim does not have to give a second notice in order to rectify his fault. Since the Act does not go into the matter, why should it be necessary, in a case where no notice has been given, to hold that the fault must be rectified before instituting action?

Paragraph 5 bears out my conclusion. With regard to determining the time at which the prescription commences to run, the Act states two propositions:

(1) the day on which the accident happened;

(2) the day on which the right of action accrued.

The second case is clearly one in which notice was given because, as the Court held in Méthot, cited above, on a text referring to “the date when the right of action originated”, the starting point for the prescription is not the day of the accident but a later date, which is at the earliest the date on which the notice was received. If the legislator, in this particular case, mentioned two starting points, that is because he had two different cases in mind, one in which notice was given and the other in which notice was not given, either within the specified time or subsequently. Thus it is a recognition of the fact that once the time has been exceeded, the victim is permanently released from the obligation to give notice.

The Court of Appeal correctly held that if no notice has been given, and if this failure has sufficient justification, the victim is relieved of his obligation and may institute proceedings without any other previous condition.

[Page 180]

Appellant raises the objection that the effect of this conclusion is to suspend the victim’s right of action for the period stated in para. 3 when he gives notice, whereas he is free to take action when he does not give such notice. This objection is not in itself sufficient to allow us, in the absence of an explicit text, and in a case such as the one at bar, to impose on the victim an obligation to give notice. This is especially so in that there is another side to the coin: the victim who has given notice has the advantage of a longer period of prescription.

I would therefore dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Pagé, Beauregard, Duchesne, Renaud & Desmarais, Montreal.

Solicitor for the respondent: Sam Goldwater, Montreal.