Mattick Estate v. Ontario (Minister of Health)

52 O.R. (3d) 221

[2001] O.J. No. 21

Docket No. C33579

Court of Appeal for Ontario

Carthy, Laskin and Goudge JJ.A.

January 9, 2001

Crown--Actions against Crown--Notice--Section 7(1) of Proceedings Against the Crown Act requires only that notice contain sufficient facts to identify occasion at issue in order that Crown can investigate--Claimant not required to expressly state that he or she intends to take legal action against Crown --Notice required to communicate complaint which could reasonably be anticipated to result in litigation against Crown --Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(1).

The plaintiff's husband suffered a massive heart attack at home. Emergency medical attendants employed by the Province transported him to hospital, where he died several days later, on May 6, 1994. On May 17, 1994, the plaintiff telephoned a senior official of the provincial Ministry of Health to complain about the unacceptable care given to her husband by the emergency medical staff. She was asked to put her concerns in writing and did so in a letter dated June 6, 1994. The Ministry investigated the circumstances surrounding the provision of ambulance services by the Province to the plaintiff's husband. This included a meeting with the plaintiff and her written responses on June 20, 1994 to the list of questions given to her by the Province. The investigation culminated in a report which concluded that acceptable patient care had been given to the plaintiff's husband. The plaintiff was sent a copy of the report on August 8, 1994. On August 23, 1994, the plaintiff sent a notice to the Province that she and her children intended to make a claim against it for torts committed by its employees in rendering care to her husband. The statement of claim was issued 55 days later. The Province brought a motion to dismiss the action pursuant to rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the ground that s. 7(1) of the Proceedings Against the Crown Act was not complied with in that notice of the claim was not served at least 60 days before the commencement of the action. The motion was granted. The plaintiff appealed.

Held, the appeal should be allowed.

Section 7(1) of the Act should not be strictly interpreted. The purpose of the provision is to allow the Crown to gather sufficient information to permit it to resolve the 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 that may result. The language of s. 7(1) requires only that the notice contain sufficient facts to identify the occasion at issue in order that the Crown can investigate. The claimant is not required to state in her notice that she intends to take legal action against the Crown. Rather, s. 7(1) requires that a claimant must serve a notice that communicates a complaint which, if not satisfied, could reasonably be anticipated to result in litigation against the Crown. When coupled with particulars that sufficiently identify the occasion in question to permit the Crown to investigate, such a notice fulfils the legislative purpose. The plaintiff's letter of June 6 , 1994 met the requirements of s. 7(1) of the Act.

APPEAL from an order of Cumming J. (1999), 1999 CanLII 15114 (ON SC), 46 O.R. (3d) 613 (S.C.J.) dismissing an action.

Cases referred to Jos. Zuliani Ltd. v. Windsor (City) (1973), 1973 CanLII 671 (ON SC), 2 O.R. (2d) 598 (H.C.J.); Olesiuk v. LeCompte (1991), 1991 CanLII 7313 (ON SC), 2 O.R. (3d) 473 (Gen. Div.) Statutes referred to Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(1) Public Authorities Protection Act, R.S.O. 1990, c. P.38 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (a)

B.J.E. Brock, S.E. Gunter and Ava M. Hillier, for appellant. Jess C. Bush, for respondent.

The judgment of the court was delivered by

[1] GOUDGE J.A.:--Section 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (the "Act") provides that no action for a claim shall be commenced against the Crown unless, at least 60 days before the commencement of the action, the claimant has served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose. The issue on this appeal is the meaning of this requirement.

[2] At first instance, Cumming J. allowed the motion to dismiss the action brought pursuant to rule 21.01(1)(a) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] by the defendant Crown in Right of Ontario (the "Province"). He decided that in the circumstances of this case the plaintiffs had not met the requirements of s. 7(1) of the Act and he therefore dismissed the action as against the Province.

[3] For the reasons that follow, I have come to the opposite conclusion. I would therefore allow the appeal, dismiss the Province's motion and permit the action to proceed.

The Facts

[4] The appellants, who are the plaintiffs in this action, are the widow and the children of James Mattick. On April 24, 1994, Mr. Mattick suffered a massive heart attack at his home. In response to his wife's 911 call, emergency medical attendants employed by the Province arrived at the home. The statement of claim alleges that they failed to provide cardio- pulmonary resuscitation for Mr. Mattick at the home and failed to apply defibrillation to him en route to the hospital since the ambulance was not equipped with a defibrillator. As a result of prolonged deprivation of oxygen to the brain, Mr. Mattick never regained consciousness and died in hospital on May 6, 1994. The appellants allege that the Province failed to properly train and equip its emergency medical attendants and that this was a material cause of Mr. Mattick's death.

[5] In addition to the statement of claim, Cumming J. had before him affidavit evidence admitted on consent. It revealed that, as documented in the Province's records, Mrs. Mattick first expressed her complaint about the unacceptable care given to her husband by the emergency medical staff employed by the Province in a phone call to a senior official of the provincial Ministry of Health on May 17, 1994. She was asked to put her concerns in writing and did so in the following letter dated June 6, 1994.

24 Christie Drive Brampton, Ontario L6Z 3J4

Mr. Graham Brand Director, Ministry of Health Emergency Health Services Branch #7 Overlea Blvd. Toronto, Ontario M4H 1A8

Dear Mr. Brand,

Re: Pre-hospital care of James P. Mattick (deceased)

This is to confirm our telephone conversation of May 17, 1994, at which time I had expressed my concerns as to the care that my husband had received on the morning of April 24, 1994.

In brief, you indicated that it would appear that I had some justifiable concerns in bringing the matter to your attention. In conclusion you advised that you would have the situation investigated immediately.

On May 17, 1994, I received a follow-up phone call from Mr. Jim Van Pelt, Manager of Investigation & Licensing Service. He advised that he had been directed to investigate my complaint and that he would be sending out an investigator shortly.

As it is now June 6, I am concerned that I have had no further communication from either Mr. Van Pelt or the investigator that he was assigning to my case.

Your further assistance in this matter would be appreciated.

Yours sincerely,

Laureen Mattick

[6] The result of this letter was an investigation by the Ministry of all the circumstances surrounding the provision of ambulance services by the Province to Mr. Mattick on April 24, 1994. This included a meeting with Mrs. Mattick and her written responses on June 20, 1994 to the list of questions given to her by the Province. It culminated in a full seven-page report, which concluded that acceptable patient care had been provided to Mr. Mattick. Mrs. Mattick was sent a copy of this report by the Province on August 8, 1994.

[7] Mrs. Mattick was dissatisfied with this response and on August 23, 1994, through counsel, she sent a notice to the Province that she and her children intended to make a claim against it for torts committed by its employees in rendering care to her husband on April 24, 1994.

[8] The appellants issued the statement of claim in this action on October 17, 1994, some 55 days after the August 23 notice. On March 22, 1995, the Province delivered an amended statement of defence raising as a defence the plaintiffs' non- compliance with s. 7(1) of the Act. However, as found by Cumming J., the Province waited until November 22, 1999 to bring this motion, more than six months after the youngest plaintiff child of Mrs. Mattick had become an adult. This meant that the limitation period provided in the Public Authorities Protection Act, R.S.O. 1990, c. P.38 had finally expired. It precluded the possibility of any new claim if the Province's motion to dismiss was successful.

Analysis

[9] The central question raised by this appeal depends on the interpretation of s. 7(1) of the Act. That section reads as follows:

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 appellants do not contest the proposition that failure to comply with this section renders the action a nullity. See Jos. Zuliani Ltd. v. Windsor (City) (1973), 1973 CanLII 671 (ON SC), 2 O.R. (2d) 598 (H.C.J.).

[11] For its part, the respondent concedes that if they otherwise comply with s. 7(1) of the Act, Mrs. Mattick's letter of June 6, 1994 and her written responses to questions of June 20, 1994 were adequately served on the Province for the purposes of this section.

[12] Since the notice served on August 23, 1994 preceded the commencement of the action by less than 60 days, the issue is whether the letter of June 6, 1994 (alone or together with the responses on June 20, 1994) constitutes compliance with s. 7(1). Is it "a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose"?

[13] In answering this question, Cumming J. found that Mrs. Mattick's request led to a full factual investigation by the Crown very soon after the incident of April 24, 1994. He therefore described any notice requirement of s. 7(1) that remained after her letter of June 6, 1994, as being only a formal prerequisite with no substantive purpose. The substantive purpose was fulfilled by the investigation which in fact took place. Cumming J. nonetheless concluded that neither the June 6, 1994 letter nor the written responses of June 20, 1994 could be said to be a notice of a claim. His reasoning is as follows:

The Concise Oxford Dictionary, 9th ed. (Oxford: Clarendon Press, 1995) at p. 241, defines "claim" when used as a noun as "a demand or request for something considered one's due". An expression of a "concern" in respect of a situation that may give rise to legal liability might give rise to the inference that there is a possibility a "claim" may be made at a later point in time. However, to express a "concern" is not to thereby give notice of a "claim".

[14] In my view this is too narrow an approach to the interpretation of s. 7(1). While the Act displaced the immunity from suit that the royal prerogative accorded to the Crown at common law, it first did so more than 35 years ago. This statutory right to sue the Crown has thus become an accepted part of our legal landscape. Even if the legislated move away from Crown immunity might, in the beginning, have suggested a strict approach to construing the Act, [See Note 1 at end of document] there now seems to me to be no reason to depart from normal principles of statutory interpretation, most importantly, as applied in this case to the statutory language used and the legislative purpose being addressed.

[15] Section 7(1) requires that at least 60 days prior to the commencement of an action, the Crown must receive notice that sufficiently identifies the occasion out of which the claim arose [so] that the Crown can investigate the claim. Investigation at this early point makes it possible to discuss the complaint and settle it before the claimant may have irrevocably fixed on litigation. Thus, in my view, the purpose of this provision is to allow the Crown to gather sufficient information to permit it to resolve the 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.

[16] The language of s. 7(1) requires only that the notice contain sufficient facts to identify the occasion at issue in order that the Crown can investigate. There is nothing in the subsection that expressly requires the claimant to go beyond these facts to expressly state in the notice that the claimant intends to take legal action to recover damages or other relief. Nor do I think that such a requirement is dictated by the definition of "claim". This is an undefined term in the Act. While the Shorter Oxford Dictionary includes the definition relied on by Cumming J., it also offers a simple "contention" or an "assertion" as equally acceptable definitions of a "claim".

[17] Setting the language of s. 7(1) against the backdrop of its legislative purpose, I do not think that any particular formula of words must be used to give notice. Nor is the claimant required to state in her notice that she intends to take legal action against the Crown. 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. It would undercut this objective to insist that a claimant in her notice firmly assert that she had decided to litigate.

[18] Rather, I think that s. 7(1) requires that a claimant must serve a notice that communicates a complaint which, if not satisfied, could reasonably be anticipated to result in litigation against the Crown. When coupled with particulars that sufficiently identify the occasion in question to permit the Crown to investigate, such a notice fulfils the legislative purpose. It allows the Crown to gather sufficient information to permit resolution of the complaint in advance of legal action or, if that fails, to prepare to defend the litigation which the notice makes it reasonable to anticipate. Not every complaint to the Province must be treated as a s. 7(1) notice. The complaint must be such that, in the circumstances, it could reasonably be anticipated by the Crown that if not resolved, litigation could result.

[19] Tested against these criteria, it is my view that the letter of June 6, 1994 meets the requirements of s. 7(1) of the Act. The Province does not contest service. The letter is more than 60 days in advance of the commencement of the action. It 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.

[20] I therefore conclude that the appellants have met the requirements of s. 7(1) of the Act. This conclusion makes it unnecessary to address the other arguments advanced by the appellants.

[21] The appeal is allowed with costs, paras. 2 and 4 of the order of Cumming J. are set aside and in their place it is ordered that the respondent's motion for an order dismissing the claims against the Province is dismissed with costs.

Appeal allowed.

Notes

Note 1: Olesiuk v. LeCompte (1991), 1991 CanLII 7313 (ON SC), 2 O.R. (3d) 473 (Gen. Div.).