Failing to Provide Prior Notice of a Claim for Damages : Deadly Blow for a PlaintiffBy François Laplante Lawyer
A judgment rendered on May 21 by the Superior Court of Québec re-establishes the importance and mandatory nature of the written notice required under section 585 of the Cities and Towns Act (Thanopoulos c. Ville de Montréal, 2019 QCCS 2156).
Mr. Thanopoulos sought an amount of $138 082.26 from Ville de Montréal to replace footing drains and cover landscaping and structural work to repair damages to his building.
He also claimed an amount of $45 000 in moral damages, troubles, inconveniences, loss of use of the building and extrajudicial fees.
The plaintiff's predicament began on October 30, 2017, when he noticed a significant amount of water spurting from his lawn and driveway. He recorded video footage of the incident, which he took to the borough office to inform city representatives.
Within half an hour, a city representative arrived at Mr. Thanopoulos' home to see what was happening. The plaintiff was informed that the leak was caused by a drain that runs under the building and which had not been connected following work carried out in 2016. City workers set up orange cones around the driveway, which Mr. Thanopoulos was told not to use until the situation was corrected due to the risk of landslide and building collapse.
The city representative ensured Mr. Thanopoulos that the corrective work would be undertaken as soon as possible, by December. However, by late February 2018, nothing had been done. The plaintiff sent the city a formal notice, in writing, to immediately address the problem. On April 27, he filed suit against Ville de Montréal.
The city asked the Court to dismiss the action, claiming the suit was unfounded in law. It also argued abuse of process, citing that written notice had to be given to its clerk in the 15 days from the date of the incident and that the plaintiff had failed to notify the city of his intention.
The plaintiff affirmed that the city was duly notified, since he had gone to the borough office with the video footage on the day of the incident, and that it had waived the right to receive written notice, since it had sent a representative to the plaintiff's home to inspect the situation. Mr. Thanopoulos also maintained that Ville de Montréal could not use the argument since it had expressly agreed to carry out corrective measures.
The judge analyzed the criteria in section 585 of the Cities and Towns Act, which are summarized here:
- Give notice in writing
- State the intention to take action
- Provide details on the claim
- Specify the address
The plaintiff never sent written notice to the city in the 15 days following the incident. The formal notice is dated February 28, 2018, four months after the incident.
The Court noted that, despite the simplification of the case law on the form and content of the notice, the fact that there was no notice at all is a death blow, except in the case of a major impediment, which was never proven in this particular case.
The Court also confirmed that it was important not to confuse a notice of claim disclosing an intent to bring an action and the information provided when an incident occurs.
The claim for compensation for material damages to the building was therefore dismissed. The claim for moral (non-pecuniary) damages was upheld and must be pleaded to the merits, since it does not relate to property damages.
In conclusion, the ruling may seem harsh toward the plaintiff. However, the judge simply applied the mandatory criteria of section 585 of the Cities and Towns Act, which few have dared to do in the past. It will be interesting to see the future impacts of the ruling. At the time of writing, an appeal had not been lodged.