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Crown Liability - Notice [CLPA s.18]. Corrigan v. Ontario
In Corrigan v. Ontario (Ont CA, 2023) the Court of Appeal considered, and allowed, a Crown appeal of a motion order failing to dismiss an action on grounds that CLPA notice [under CLPA 18(1)] had not been given. The court considered the 'new' (but similar) notice provisions carried over from the old PACA:(2) The Motion Judge Erred in not Striking the Action
[13] Prior to the enactment of the CLPA, s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, provided, in terms that are in all material respects the same as s. 18(1) of the CLPA, that no action could be brought against the Crown unless prior notice of 60 days was given. It was consistently held under that legislation that proper notice was a precondition to a claim in damages against the Crown, that this requirement could not be abridged, and that an action commenced without proper prior notice was a nullity: Zeus v. Spick, [2000] O.J. No. 3758 (S.C.), at para. 5, aff’d [2001] O.J. No. 2848 (C.A.), at para. 3; Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at paras. 10-12; Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 262 D.L.R. (4th) 222 (Ont. C.A.), at paras. 7-8. In Noddle v. The Ontario Ministry of Health, 2019 ONSC 7337, at para. 32, it was also held that the requirement could not be waived.
[14] The same approach should be followed under the CLPA. First, the legislature, in enacting s. 18(1) of the CLPA in terms that mirror s. 7(1) of the former legislation, should be taken to have intended the same effect. Second, s. 18(6) removes any doubt about this, as it mandates treating an action commenced without complying with the required notice as a nullity from the time of its commencement.
[15] With respect, the motion judge’s conclusion that the Crown was not entitled to have the action struck as a nullity, because it did not move as soon as the respondent indicated she did not intend to comply with s. 18(1) of the CLPA, rewrites the legislation. It conditions the Crown’s right to have the action treated as a nullity on the timing of the motion, a condition not found in the text. It introduces a notion of waiver by delay that is inconsistent with the judicial interpretation of the prior legislation, which held that its requirements could not be abridged or waived. And it cannot stand in the face of s. 18(6) – since the action was a nullity from the time it was commenced, there is no basis on which the Crown’s delay in moving could affect the action’s status as a nullity.
[16] The respondent argues that the motion judge was right to dismiss the Crown’s motion because she had noted the Crown in default, and r. 19.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prevents a defendant who has been so noted from bringing a motion without leave. We reject this argument. First, it was not the ground relied on by the motion judge who heard the Crown’s motion; to the extent leave was required, he implicitly granted it. But more fundamentally, the procedural rule relied on by the respondent cannot trump the clear effect of the CLPA provision that required the court to treat the action as a nullity. Moreover, s. 25 of the CLPA states that the Crown may not be noted in default without leave of the court, obtained on a motion made with notice to the Crown, and there is no evidence such leave was obtained.
[17] The respondent also argues that an effect of the noting in default is that the defendant is deemed to admit the allegations in the claim. Since r. 21.01(1)(a), under which the Crown moved, is available only for questions of law that arise from the pleadings, and the only pleading was the claim, there was no basis to consider facts surrounding the failure to give notice. We reject this argument. On a motion under r. 21.01(1)(a), evidence may be admitted in the discretion of the court: r. 21.01(2)(a). Here, the motion judge properly exercised his discretion to consider such evidence. As this court noted in Beardsley, at para. 10, rejecting a similar argument to the one advanced here by the respondent: “Proper notice is a necessary pre-condition to the right to sue the Crown. It would defeat the interests of justice to restrict a defendant’s right to adduce evidence that proper notice was not given.”
[18] The respondent also argues that estoppel should operate to prevent the Crown from asserting that the action is a nullity. She points to the fact that an application she brought to the Human Rights Tribunal of Ontario (“HRTO”), against the Ministry of the Solicitor General and four individuals, was dismissed in August 2020 on the basis of the existence of her action. Section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, bars an HRTO application where there is an existing civil action dealing with the same alleged rights infringement. The respondent argues that the Crown got the benefit of the existence of the action for the purpose of the dismissal of the HRTO application, and should be estopped from claiming the action is a nullity.
[19] We do not accept this argument.
[20] First, we are not satisfied that estoppel, any more than waiver, could have any effect on the operation of the CLPA given s. 18(6). Second, even assuming it could operate, we are not satisfied it would operate here.
[21] The motion judge made no findings that the respondent changed her position based on anything the Crown said to her or to anyone else, and he found the Crown acted in good faith throughout. The record is clear that the Crown unequivocally told the respondent that it considered the existing action against it to be a nullity. It was the respondent who not only persisted in maintaining the action but also commenced concurrent HRTO proceedings. This is what created the overlap in proceedings attracting the operation of s. 34(11) of the Human Rights Code, under which the HRTO has no discretion but to dismiss a human rights claim if there is a concurrent civil action, without regard to whether the civil action may be unsuccessful or struck out: Aba-Alkhail v. University of Ottawa, 2012 HRTO 656, at para. 26; Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319, at para. 48, leave to appeal refused, M41084. In any event, the respondent was free to make the Crown’s position that the existing action against it was a nullity known to the HRTO if she believed that would assist her in resisting dismissal of her HRTO application.
[22] Moreover, although the Crown is the only formally named defendant in the action, the claim refers to the conduct of various individuals and entities. The motion judge referred to the respondent having taken the position that individual police officers, the police services board, and the City of Quinte West are also defendants to the action. He invited her to have the claim “clearly and on its face stipulate who she is naming as a party defendant”. It remains open to her to pursue that in the Superior Court – it is only as against the Crown that the action is a nullity. The HRTO’s reasons for dismissing the application reflect this uncertainty as to who in addition to the Crown are or may be parties to the action – those reasons referred to the action as being against “all-but-one of the respondents” to the HRTO proceeding. It was that substantial overlap that was relied on by the HRTO in dismissing the application. . Elliot v. Aviva Insurance Company of Canada [PACA repealed 01 July 2019/notice issues]
In Elliot v. Aviva Insurance Company of Canada (Ont CA, 2020) the Court of Appeal commented as follows on the key s.7(1) notice provision of PACA (Ontario's Proceedings Against the Crown Act):Notice of claim
7 (1) Subject to subsection (3), except in the case of a counterclaim or claim by way of set-off, no action for a claim shall be commenced against the Crown unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose, and the Attorney General may require such additional particulars as in his or her opinion are necessary to enable the claim to be investigated.
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[10] The decision of this court in Mattick Estate remains the leading authority on the interpretation of PACA s. 7(1).
[11] Mattick Estate involved a lawsuit commenced by the widow and children of James Mattick, who had suffered a heart attack at his home and was transported to hospital by emergency medical attendants employed by the Province. Prior to commencing the lawsuit, Mr. Mattick’s widow, Laureen Mattick, sent a letter to the Ministry of Health expressing concerns about the care her husband had received on the day he was transported by the emergency medical attendants and about the lack of communication from the Ministry of Health following her earlier telephone complaint about the matter. The Crown moved to dismiss the action on the basis that the letter did not satisfy the requirements of PACA s. 7(1).
[12] The decision in Mattick Estate set down several principles concerning the interpretation of PACA s. 7(1). At paras. 15-18, this court stated:
(i) The legislative purpose of the PACA s. 7(1) notice provision is to allow the Crown to gather sufficient information to permit it to resolve a complaint to the mutual satisfaction of itself and the complainant in advance of any litigation, and failing that, to allow the Crown to properly prepare a defence to the litigation which may result;
(ii) The section requires a claimant to serve a notice that communicates a complaint which, if not satisfied, could reasonably be anticipated to result in litigation against the Crown. When such a notice is coupled with particulars that sufficiently identify the occasion in question to permit the Crown to investigate, resolve the complaint in advance of legal action or prepare to defend the litigation, the notice fulfils the legislative purpose;
(iii) However, a claimant is not required to state expressly in her notice that she intends to take legal action against the Crown as such a requirement would be inconsistent with the legislative purpose of permitting the Crown to investigate in order to resolve the complaint at an early point in time without the commencement of legal proceedings. Nevertheless, not every complaint to the Province must be treated as a PACA s. 7(1) notice; and
(iv) No particular formula or words must be used to give notice.
See also: Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at paras. 8-17; Latta v. Ontario (2002), 2002 CanLII 45117 (ON CA), 62 O.R. (3d) 7 (C.A.), at paras. 26-27, 29.
[13] Applying those principles to the letter written by Laureen Mattick, this court concluded that the letter met the requirements of PACA s. 7(1), stating at para. 19:[The letter] precisely identifies the events of April 24, 1994, which is the occasion concerned. Particularly in the context of her telephone discussion with the Province, her letter clearly constitutes a complaint that her husband had received unacceptable patient care from provincial employees that day. Given the nature of Mrs. Mattick’s concerns and given that her husband died shortly after receiving the care complained of, it would be reasonable for the Province to anticipate that if Mrs. Mattick’s complaint could not be satisfactorily resolved there would be litigation asserting that the unacceptable care caused his death. [14] Although in Mattick Estate this court did not expressly consider the meaning of the word “claimant” in PACA s. 7(1), in the result it found that Ms. Mattick’s letter complied with the section notwithstanding that it did not threaten litigation or refer to a potential claim that included her co-plaintiffs, the children of James and Laureen Mattick. Daoust-Crochetiere v. Ontario (Natural Resources) [PACA repealed at 01 July 2019]
In Daoust-Crochetiere v. Ontario (Natural Resources) (Ont CA, 2014) the Court of Appeal demonstrates how harsh the operation of PACA's (Proceedings Against the Crown) short notice periods can be:The motion judge made no error in granting summary judgment dismissing the appellant’s action in tort because he failed to give the ten day notice required by s. 7(3), or the sixty day notice required by s. 7(1) of PACA.
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