Thauli v. Corporation of Delta,


2008 BCSC 437

Date: 20080414
Docket: S062359
Registry: Vancouver


Ravinder Kaur Thauli



Corporation of Delta,
Bernice Kovacevic and Jane Doe 2


Before: The Honourable Madam Justice Loo

Reasons for Judgment

Counsel for the Plaintiff

D. M. Mah

Counsel for the Defendants

D. J. Smith

Date and Place of Trial/Hearing:

19 March 2008


Vancouver, B.C.

[1]                On October 11, 2005, the plaintiff, Ravinder Thauli was participating in a group aerobics class at the Ladner Community Centre when she slipped on a water bottle left on the floor by another class participant and suffered a dislocated left kneecap.

[2]                The defendant Corporation of Delta (“Delta”) operates the Ladner Community Centre.  The defendant Bernice Kovacevic is a fitness instructor employed by Delta.

[3]                This action was commenced on April 10, 2006.

[4]                The plaintiff applies for an order that the action be transferred to the Provincial Small Claims Court of British Columbia.  The defendants apply for an order that the action be dismissed on the basis that the claim against Ms. Kovacevic is barred pursuant to s. 287 of the Local Government Act, R.S.B.C. 1996, c. 323 (the "Act") and the claim against Delta is time-barred pursuant to s. 286 of the Act.

[5]                The plaintiff concedes that the action against Ms. Kovacevic is barred pursuant to s. 287 of the Act.

[6]                It is agreed that if the plaintiff is successful on the application under s. 286, there will be an order transferring these proceedings to Provincial Court.

[7]                Section 286 of the Act reads:

Immunity unless notice given to municipality after damage

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.


(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was a reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

[8]                The parties agree that the onus is on the plaintiff to show a reasonable excuse and the onus is on the defendant to show prejudice.

The Facts

[9]                The facts are not in dispute.

[10]            Ms. Thauli is married and has two children.  For the past 15 years, Ms. Thauli has been employed as a paralegal in the ICBC Group at a Vancouver law firm and assists counsel with the defence of claims arising from motor vehicle accidents.

[11]            On October 11, 2005, Ms. Thauli attended a group aerobic class led by Ms. Kovacevic at the Ladner Community Centre.  The hour-long class began at 6:00 p.m.  During the last 5 to 10 minutes of the class, which involved stretching exercises, Ms. Thauli dislocated her knee cap when she slipped on a water bottle that had been left on the floor by an unknown class participant.

[12]            Ms. Kovacevic asked a colleague to take over the class while she administered first aid to Ms. Thauli.  She also called Ms. Thauli’s husband who arrived and took Ms. Thauli to the hospital.

[13]            A short while later, Ms. Kovacevic filled out Delta’s Accident Report Form.  She noted that Ms. Thauli had slipped on a water bottle, dislocated her left patella, and that her husband had taken her to emergency.  Ms. Kovacevic also noted that the following day, October 12, 2005, she telephoned Ms. Thauli and learned that x-rays disclosed no bone injury; she was given an immobilizer; and she was going to see her doctor later that day and the physiotherapist next week because her knee was swollen.

[14]            The Accident Report Form was signed by Ms. Kovacevic’s supervisor on December 22, 2005 and by the manager on January 10, 2006.

[15]            Ms. Thauli’s family physician diagnosed a dislocation or partial dislocation of her left patella.  On October 12, 2005, he advised her to continue with partial weight bearing, icing her knee regularly, and to take Advil.

[16]            Ms. Thauli returned to work within two weeks of the accident.  She attended physiotherapy on average twice a week for five weeks.  She saw Dr. Long ten times between October 12, 2005 and March 2, 2006, when he told her she could resume all of her activities, including going to the gym.

[17]            Ms. Thauli has never been involved in the practise of municipal law.  She states that prior to the accident, she thought there may be certain limitations for commencing an action against a municipality, but she did not know of the Local Government Act and, specifically, did not know of the s. 286 notice requirement.

[18]            Within the first two months of the accident, Ms. Thauli said that she spoke to several lawyers who are acquaintances of hers.  During one of those conversations, a six month time limit was mentioned.  She cannot recall which lawyer mentioned that and she cannot recall any other time limitations being mentioned other than the six months.  As a result of the conversations, Ms. Thauli understood that written notice of the accident had to be provided to a municipality within six months of the date of the accident.

[19]            As a result, on April 6, 2006, Ms. Thauli sent the following letter to Delta:

Ms. Ravinder Thauli
4653-54th Street
Delta, B.C.
V4K 3T3

April 6, 2006


Corporation of Delta
4500 Clarence Taylor Crescent
Delta, B.C.
V4K 3E2

Attention:  Greg Vanstone

Dear Sirs:

Re:      Date of Incident:    October 11, 2005

Location:               Ladner Community Centre, South Delta, B.C.

I am writing to advise that I sustained significant injuries to my left knee during a "Boot Camp" class at the Ladner Community Centre located at 4734 51st Street in Ladner.  The incident occurred at approximately 7:00 p.m. on October 11, 2005 during the stretching portion of the class.  The incident involved my slipping on a water bottle, which was left on the floor by another participant.  This resulted in the dislocation of the patella in my left knee.

I attended Delta Hospital immediately after the incident where I underwent x-rays to ensure that no fractures had occurred.  I was instructed to immobilize my left leg in a knee brace for 2 weeks.  I was non-weight bearing on my left extremity and mobilized on crutches.

I am writing to put the Corporation on notice that I hereby preserve my right to initiate legal proceedings for damages for the injury I sustained as a result of this incident.

Would you kindly acknowledge receipt of this letter by signing and returning the enclosed copy of this letter to the writer.

Yours truly,

"N. Thauli"

Ravinder (Nikki) Thauli

[20]            On April 10, 2006, Ms. Thauli, acting in person, commenced this action.

[21]            Ms. Thauli received a letter from Delta advising that she had not provided sufficient notice pursuant to s. 286 of the Act.


[22]            Ms. Thauli says that she did not provide written notice to Delta within two months because she did not know about s. 286.  She understood that she had to provide written notice and commence an action within six months of the date of the accident, and she was occupied with her rehabilitation, including diligently attending at the gym at the Ladner Leisure Centre to continue with her rehabilitation after exhausting physiotherapy, and her return to work in a very busy practice.  Ms. Thauli is the primary paralegal for senior counsel of the ICBC Group and is responsible for a significant number of his files.  In addition, throughout this time, she continued to care for her husband and two children.

[23]            The parties agree that the leading decision on reasonable excuse and s. 286 is Teller v. Sunshine Coast (Regional District) (1990), 43 B.C.L.R. (2d) 376 (C.A.).  In Teller, the plaintiff was on his motorcycle and injured his ankle when he collided with a cable stretched across a road on  August 5, 1985.  Between August 6, 1985 and February 21, 1986, he had a cast applied, removed, and reapplied at least four times, and surgery on two occasions.  The plaintiff did not realize that his ankle had been seriously injured until after two months from the date of the accident.  In March 1986, he consulted a lawyer who gave notice on April 16, 1986.  Between the date of the accident and the date of the plaintiff’s notice, an unknown person had removed the cable and posts.  Southin J.A. concluded at 388:

The plaintiff asserts that his "reasonable excuse" consists of:

1)         Ignorance of who placed the post and chains and who was in occupation and control of the road;

2)         The gravity of his injury not becoming apparent until after the expiry of the period of notice;

3)         Ignorance of the statutory requirement.

In my view, taken together those amount to a "reasonable excuse" within the statute.

[24]            Ms. Thauli relies on Chavez v. Burnaby (City), 2004 BCCA 116, which she contends is “very similar to the present case.”  In that case, the plaintiff broke her ankle when the toboggan she was riding struck a fence.  She was a single mother of a young child and Spanish was her first language.  After ankle surgery, she was confined to a bed for about the next two months.  She alleged that she suffered from anxiety and depression.  She contacted Provincial Court about bringing a lawsuit and went to obtain legal advice in Spanish from a lawyer at the Spanish Community Centre.  Neither the Courthouse staff nor the lawyer told her about the two month notice requirement.  In Chavez, Finch C.J.B.C., after considering Teller, held at ¶20 that the plaintiff’s circumstances amounted to a reasonable excuse:

I have been persuaded that, considering all matters together, the plaintiff has shown a reasonable excuse for the late notice of her claim. She was not aware of the time limitation on notice stipulated by the legislation. She made two attempts to obtain legal advice concerning her situation, one from the Provincial Court, and one from the Spanish Community Centre, neither of which resulted in her being advised of the time limitation on the notice requirement. She suffered a significant injury and for some time after the accident was occupied with her physical recovery. In addition, she suffered depression, and of course she had to care for her young daughter. She also does not speak English as her first language.

[25]            Delta relies on Griffiths v. New Westminster (City), 2001 BCSC 1516, where Burnyeat J. found that the plaintiff's immobilized knee did not prevent her from obtaining legal advice and at ¶31 that “it cannot be the case that only ignorance of the section is sufficient excuse”.  Delta also argues that in Hardisty v. North Vancouver (District), 2002 BCPC 188, where the court stated that ignorance of the law is not a persuasive excuse for a lawyer, is applicable because Ms. Thauli as a paralegal is “no stranger to the process” and has more training, experience and legal resources available to her than the ordinary person to determine the applicable notice provisions.

[26]            Delta contends that Ms. Thauli’s conversations with the lawyer or lawyers amount to nothing more than “loose conversations” or “water cooler conversations” and are insufficient to find that she actively sought legal advice.  Either way, her misunderstanding of the law or any negligent advice she received does not amount to a reasonable excuse.  According to Teller and Horie v. Nelson (City) (1987), 20 B.C.L.R. (2d) 1 (C.A.), negligent legal advice alone is not sufficient as a reasonable excuse.  In Horie, Macdonald J.A. found that the plaintiff who missed a limitation period because of his lawyer’s negligence did not have a reasonable excuse (at 8):

I agree with Locke J. when he said in the course of his reasons [p. 112]: "I am driven further by the wording of the section of our statute to hold that the responsibility for delivering the notice is collective in that, if the notice is not delivered, it does not matter by whose hand the failure occurred". The section requires reasonable excuse for "failure to give the notice". That means that when a party acts through a solicitor the conduct of both must be examined to determine whether there was reasonable excuse for failure to give the notice.

[27]            Wallace J.A. (concurring with Macdonald J.A.) expressed that more is required than just a lawyer’s negligence (at 11):

I agree with the observation of Locke J. (as he then was) that negligence by itself will not constitute a reasonable excuse for failure to give the required notice; something more is required, such as a mental or physical disability or other like cause which contributes to the failure to give notice. There is no such element present in this case.

[emphasis added]

[28]            Delta argues that Ms. Thauli has not asserted a “mental or physical disability or other like cause” and that her excuse of being occupied with her rehabilitation, return to work and caring for her family is not a reasonable excuse.   Alternatively, if rehabilitation is a factor, then Ms. Thauli’s injury was not so severe as to prevent her from seeking legal advice.


[29]            Delta suggests that Ms. Thauli ought to have actively sought legal advice or at the least researched into what is required in order to commence an action against a municipality.

[30]            It is clear from Teller and Chavez that all matters should be considered.  In my view, that includes the nature of the injuries sustained.  Unlike the plaintiffs in the cases that have been referred to, Ms. Thauli suffered no fracture, she required no surgery, and she returned to work within two weeks.  In the scheme of things, she suffered a relatively minor injury.  I must ask myself whether it is reasonable to require persons who have sustained a relatively minor injury in a slip and fall to at all times seek legal advice. I do not think it is.

[31]            Ms. Thauli is a paralegal who on her own and through conversations with lawyers understood that there may be a limitation with respect to commencing an action, but she did not know of the notice requirement under s. 286.  It is doubtful that many lawyers who do not regularly practice municipal law know of the notice requirement.

[32]            While the Accident Report Form completed by Ms. Kovacevic does not comply with the notice requirements under s. 286, it is still a matter that cannot be ignored.

[33]            While Ms. Thauli speaks English and does not allege that she was depressed or suffered from anxiety, the facts are similar to those in Chavez: erroneous legal advice or no legal advice, occupation with recovering from her injuries, returning to work in a very busy practise, and taking care of her family.

[34]            While the facts of this case are what may be described as very close to the line, on the whole of the evidence, I find that Ms. Thauli has established a reasonable excuse under s. 286(3)(a) of the Act.  The next issue is whether Delta has established that it has been prejudiced.

[35]            Jennifer Clark, a Risk Management officer with Delta, states that on April 10, 2006, she received Ms. Thauli’s letter of April 6, 2006, and that the delay in not providing notice within the two month statutory time period has resulted in prejudice.  Ms. Clark says that with earlier notice (presumably on or before December 11, 2005), Delta could have reviewed the class list with Ms. Kovacevic and identified the owner of the water bottle.

[36]            Ms. Thauli refers to a number of cases where prejudice was not found: Griffiths, Keen v. Surrey (City), 2004 BCSC 1161, and Horie.  She argues that Delta was immediately aware that she had been injured when she slipped on a water bottle left on the floor by someone else but it failed to investigate the incident at that time, and thus has not proved that it has suffered any prejudice in its defence.

[37]            Delta relies on Griffiths, ¶19, where Burnyeat J. explained that the municipality may establish a rebuttable presumption of prejudice by proving inordinate delay or may prove actual prejudice:

…  The knowledge of whether a municipality has been prejudiced rests with the municipality. If one of the parties is to bear the burden of proof to show that there has been prejudice then it should be the municipality. However, one of the ways that a municipality can meet that burden of proof is to show that there has been inordinate delay in providing the notice required by s. 286 of the Act. What is inordinate will depend on the facts of a particular case but, if inordinate delay can be shown, then a municipality will have met the burden of proof subject to a plaintiff being in a position to show that the presumption of prejudice can be rebutted. In addition to being in a position to have a court presume prejudice because of inordinate delay, a municipality will also be in a position to show that there has been actual prejudice.

[38]            The court in Griffiths did not find that three months was inordinate delay and did not find that the municipality had established actual prejudice.

[39]            I find what Delta relies on as showing prejudice is similar to what occurred in Teller.  Southin J.A. noted “[t]here was no evidence as to how the municipality would be prejudiced in its defence by the disappearance of the offending structure”.  Ms. Thauli slipped on a water bottle but there is no evidence of how Delta would be prejudiced in its defence by not knowing who put the water bottle on the floor.  It is also a bit of a leap to suggest or imply that by looking at a class list two months less a day from the date of the accident, Delta could have identified the owner of a water bottle left on the floor during an aerobics class.

[40]            I do not find that Delta has established that it has been prejudiced.

[41]            Accordingly the defendant’s application is dismissed with costs.  There will be an order transferring these proceedings to Provincial Court.

"Loo J."