Court of Appeal for Ontario

Date: 20230215 Docket: C70652

Doherty, Zarnett and Sossin JJ.A.

BETWEEN

Kathleen Corrigan Plaintiff (Respondent)

and

His Majesty the King in Right of Ontario Defendant (Appellant)

Counsel: Heather Mackay and Heather McIvor, for the appellant Kathleen Corrigan, acting in person

Heard: in writing

On appeal from the order of Justice Robert L. Maranger of the Superior Court of Justice, dated March 29, 2022.

Costs Endorsement

[1] By reasons dated January 23, 2023 we allowed the appeal, struck out the respondent’s statement of claim as against the Crown and dismissed the action against the Crown as a nullity. That result was entailed by the fact that the action had been commenced by the respondent without complying with the mandatory prior notice provisions in s. 18(1) of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7 (“CLPA”): Corrigan v. Ontario, 2023 ONCA 39.

[2] The Crown asks for costs of the appeal and of the motion below. It submits that its actual costs were in excess of $25,000, but requests a reduced amount of $7,500 to reflect that the respondent is self-represented and has been out of the workforce since 2018.

[3] The respondent does not challenge the reasonableness of the time spent; she opposes an order for costs, and seeks one in her favour, on the basis that she has a valid claim and there was no legal basis for the Crown’s appeal of the motion judge’s refusal to dismiss her action. In particular, she points out that s. 18(6) of the CLPA, which stipulates that an action commenced without complying with s. 18(1) is a nullity from the time the proceeding was brought, was only added to the CLPA in July 2020, while her action was started in May 2020.

[4] We are unable to give effect to the respondent’s submissions. The Crown was completely successful in overturning the motion judge’s refusal to dismiss the action as a nullity. It was entitled to rely on s. 18(6) of the CLPA since that provision expressly applies to actions commenced before it came into force: CLPA, s. 18(7).

[5] We therefore award costs of the appeal and proceedings below to the appellant in the total sum of $7,500 inclusive of disbursements and applicable taxes.

“Doherty J.A.”

“B. Zarnett J.A.”

“L. Sossin J.A.”