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Proceedings Against the Crown Act (Ontario)

. Elliot v. Aviva Insurance Company of Canada

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.

..........

[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.


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