Latta v. Her Majesty the Queen in Right of Ontario [Indexed as: Latta v. Ontario]

62 O.R. (3d) 7

[2002] O.J. No. 4106

Docket No. C38123

Court of Appeal for Ontario,

Goudge, MacPherson and Armstrong JJ.A.

October 31, 2002

Crown -- Actions against Crown -- Notice -- Enactment of Occupiers' Liability Act was not intended to alter specific notice period provided in s. 7(3) of Proceedings Against the Crown Act -- Plaintiff required to comply with ten-day notice period in s. 7(3) where action is brought against Crown "in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property" under s. 5(3)(c) of Proceedings Against the Crown Act even where plaintiff also frames action in terms of violation of Occupiers' Liability Act -- "Accident/Injury Report" completed by plaintiff prison inmate indicating time, place and manner of accident and nature of injury -- Report containing sufficient particulars to permit Crown to investigate incident -- Report entailing element of complaint and gave notice to Crown of potential conflict that could reasonably be anticipated to result in litigation against Crown -- Report constituting notice of claim under s. 7(1) of Proceedings Against the Crown Act -- Occupiers' Liability Act, R.S.O. 1990, c. O.2 -- Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 5(3)(c), 7(1), (3).

While incarcerated at a provincial correctional centre, the plaintiff tripped over a bucket and fell on concrete stairs. The defendant Crown admitted that it used buckets to store sand and placed them on stair landings. The plaintiff immediately told the guards on duty in his unit about the accident, and a week later completed a form entitled "Accident/Injury Report" provided to him by prison officials, briefly describing the incident and the fact that he injured his back. Two and a half months later, the plaintiff served a notice of claim on the Crown pursuant to the Proceedings Against the Crown Act ("PACA"). An action for damages for personal injuries was commenced 89 days later. The action was framed in negligence, but the plaintiff also specifically pleaded the Occupiers' Liability Act ("OLA"). The defendant took the position that the action came within s. 5(1)(c) of the PACA (dealing with liability for "any breach of duties attaching to the ownership, occupation, possession or control of property"). Section 7(3) of the PACA provides that no proceeding shall be brought against the Crown under s. 5(1)(c) unless the notice of claim is served on the Crown within ten days after the claim arose. On a motion by the defendant for summary judgment dismissing the action, the motions judge held that s. 5(1)(c) of the PACA was the operative section, so that the ten-day notice requirement in s. 7(3) was applicable. The motions judge also concluded that the Accident/Injury Report was not "a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose" pursuant to s. 7(1) of the PACA. The motion for summary judgment was granted. The plaintiff appealed, arguing that, as he framed his action in terms of a violation of the OLA, it was a claim against the Crown "under any statute" and thus fell within s. 5(1)(d) of the PACA, and that the Accident/Injury Report met the requirements of s. 7(1) of the PACA.

Held, the appeal should be allowed.

Per MacPherson J.A. (Armstrong J.A. concurring): The original intent of the legislature with respect to the PACA was to target occupiers' liability with a special and strict notice requirement. The enactment of the OLA did not reflect a [page8 c]hange in the legislature's intent. When the legislature enacted the OLA, it had no intention of altering the specific notice period governing actions against the Crown provided in s. 7(3) of the PACA. The motions judge was correct to apply the ten-day notice period set out in s. 7(3) of the PACA to this action.

The Accident/Injury Report completed by the plaintiff and provided to the defendant within ten days of the accident constituted notice of the claim under s. 7(1) of the PACA. Adequate notice entails two distinct requirements. The first is that it must contain sufficient particulars to allow the Crown to identify the source of the potential problem, so that it can investigate. The Report provided sufficient particulars, and the defendant did, in fact, investigate the accident. The second requirement is that the notice entail an element of "complaint". It must inform the Crown of a potential conflict that could reasonably be anticipated to result in litigation against the Crown. While this was a close case, the plaintiff's Accident/Injury Report could reasonably be anticipated to result in litigation against the Crown. First, the plaintiff was in custody under the care and control of the Crown at the time of the accident, and his decision to inform prison officials about the accident and his identification of the actions of the Crown as a cause of the accident entailed a certain degree of "complaint". Second, the nature of the accident and the content of the Accident/Injury Report suggested the potential for litigation. Third, the structure and content of the Accident/Injury Report suggested a link between accidents and injuries being reported and potential consequences for the Crown. The instructions for part of the Report referred to "assessment of responsibility for accident" and "anticipated long term effects". Both of those phrases raised the spectre of potential litigation.

Per Goudge J.A. (dissenting): The motions judge was correct to apply the ten-day notice period set out in s. 7(3) of the PACA to this action.

The plaintiff's Accident/Injury Report did not meet the requirements of s. 7(1) of the PACA as it did not communicate a complaint. The statement itself contained no language of complaint, and there was nothing about the nature of the incident, the context from which the statement arose, or the form used for the Report which raised an inference that the plaintiff would seek to hold the Crown accountable for the accident. There was no evidence that the defendant, on receiving the Report, in fact responded by gathering information to permit mutually satisfactory resolution of a claim or, failing that, to properly defend a lawsuit by the plaintiff. Section 7(1) of the PACA does not call for the Crown to react to every accident report it receives as if it marked the commencement of potential litigation.

APPEAL from a summary judgment of McGarry J., [2001] O.J. No. 4890 (S.C.J.) dismissing an action.

Beardsley v. Ontario (2001), 2001 8621 (ON CA), 57 O.R. (3d) 1, 17 C.P.C. (5th) 94 (C.A.), revg in part (2000), 2000 22696 (ON SC), 50 O.R. (3d) 491 (S.C.J.); Mattick Estate v. Ontario (Minister of Health) (2001), 2001 24086 (ON CA), 52 O.R. (3d) 221, 195 D.L.R. (4th) 540, 8 C.P.C. (5th) 39 (C.A.), revg (1999), 1999 15114 (ON SC), 46 O.R. (3d) 613 (S.C.J.); Myshrall v. Toronto (City) (2001), 2001 24165 (ON CA), 52 O.R. (3d) 686, 196 D.L.R. (4th) 680, 18 M.P.L.R. (3d) 49, 4 C.P.C. (5th) 224 (C.A.), apld Other cases referred to Berardinelli v. Ontario Housing Corp. (1978), 1978 42 (SCC), [1979] 1 S.C.R. 275, 8 C.P.C. 100, 90 D.L.R. (3d) 481, 23 N.R. 298 Statutes referred to An Act to amend the Proceedings Against the Crown Act, 1962-63, S.O. 1965, c. 104, s. 1, 5(c) Municipal Act, R.S.O. 1990, c. M.45, ss. 284(1), (5) Occupiers' Liability Act, 1980, S.O. 1980, c. 14 [page9] Occupiers' Liability Act, R.S.O. 1990, c. O.2, s. 10(1) Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 5(1), 7(1), (3) Authorities referred to Côté, P.-A., The Interpretation of Legislation in Canada, 3rd ed. (Toronto: Carswell, 2000)

Thomas F. Delorey, for appellant. Tim Farrell, for respondent.

MACPHERSON J.A. (ARMSTRONG J.A. concurring): --

A. Introduction

[1] This is an appeal from the summary judgment of McGarry J. dated November 8, 2001, in which he granted the respondent's motion to dismiss the appellant's claim against the Crown. The appeal raises two issues: (1) the relationship between an action against the Crown under the Occupiers' Liability Act, R.S.O. 1990, c. O.2 (the "OLA"), and the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (the "PACA"), and (2) the content of an adequate notice under the PACA, especially in light of this court's decision in Mattick Estate v. Ontario (Minister of Health) (2001), 2001 24086 (ON CA), 52 O.R. (3d) 221, 195 D.L.R. (4th) 540 (C.A.) ("Mattick Estate").

B. Facts

(1) The parties and the events

[2] On December 3, 1998, while incarcerated at the Burtch Correctional Centre in Brantford, the appellant, Shawnne Latta ("Latta"), tripped over a bucket and fell on concrete stairs outside the administration building where he had been teaching English to other inmates. The respondent, Her Majesty the Queen, in right of Ontario (the "Crown"), has admitted that it used buckets to store sand and placed them on stair landings.

[3] Latta immediately told the guards on duty in his unit about the accident and, on their advice, he informed the nurse at the institution. On December 10, prison officials provided Latta with a form entitled "Accident/Injury Report". In completing this report, under the heading "Statement", Latta wrote:

Reported 4-12-98

Leaving school (building) and tripped over white pail (filled with sand) that the Burtch C.C. uses as door stopper. When I fell I landed on my back, thought that it was bruised; told to keep an eye on it by nurse on duty during pill parade. [page10]

[4] A prison doctor examined Latta, took x-rays, and treated him for low back pain. After his release from prison, Latta underwent a CT scan which revealed, in the words of the consulting radiologist, Dr. A. Fox, "[h]uge central and right sided disc herniation occupying the majority of the spinal canal . . .". Corrective surgery provided only temporary relief. Latta currently receives social assistance. The diagnosis of Dr. John Girvin in May 2000 was that Latta "continues to be completely disabled with pain which affects both legs".

[5] On February 15, 1999, Latta's counsel served a notice of claim on the Crown. The letter stated: "This shall serve as notice of Mr. Latta's claim pursuant to the Proceedings Against the Crown Act." It appears that this sentence was written with an eye to s. 7(1) of the PACA which requires that a person making a claim against the Crown serve notice of the claim on the Crown "at least sixty days before the commencement of the action". Acting in reliance on this provision, the action was commenced 89 days later on May 15, 1999.

(2) The litigation

[6] Latta's action against the Crown is framed in negligence. However, he also specifically pleads the OLA. All tort actions against the Crown must comply with the PACA.

[7] The PACA provides:

5(1) . . . the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject,

(c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property; and

(d) under any statute, or under any regulation or by- law made or passed under the authority of any statute.

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.

7(3) No proceeding shall be brought against the Crown under clause 5(1)(c) unless the notice required by subsection (1) is served on the Crown within ten days after the claim arose.

(Emphasis added) [page11]

[8] After receiving Latta's statement of claim, the Crown took the position that the action came within s. 5(1)(c) of the PACA and, accordingly, the ten-day notice period in s. 7(3) applied. Hence the Crown brought a motion for summary judgment to dismiss the action.

[9] McGarry J. granted the motion for summary judgment. He held that "subsection 5(1)(c) is the operative section" so that the ten-day period in s. 7(3) was applicable. Hence the formal notice of claim sent to the Crown by Latta's counsel on February 15, 1999 was out of time.

[10] McGarry J. then turned to the question of whether the Accident/Injury Report completed by Latta on December 10, 1998, seven days after the accident, was, pursuant to s. 7(1) of the PACA, "a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose". He concluded that it was not and, therefore, "cannot be considered as notification within the ten-day period".

[11] The appellant appeals from the motion judge's decision.

C. Issues

[12] The issues on the appeal are:

(1) Did the motion judge err by concluding that the ten-day period in s. 7(3) of the PACA applied to the appellant's action against the Crown?

(2) If the answer to the question in (1) is 'No', then did the motion judge err by concluding that the Accident/Injury Report completed by the appellant seven days after the accident was not a notice of claim within the meaning of s. 7(1) of the PACA?

D. Analysis

(1) Does s. 7(3) of the [PACA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p27/latest/rso-1990-c-p27.html) apply to this action?

[13] The appellant contends that his claim against the Crown as occupier can be characterized under either s. 5(c) or (d) of the PACA. It is a claim against the Crown as occupier, but it is also a claim against the Crown "under any statute", namely the OLA. The appellant argues that since he has framed his action in terms of a violation of the OLA, the action is not subject to the ten-day notice period prescribed in s. 7(3) of the PACA.

[14] I begin with the observation that there is not a perfect coherence between the PACA and the OLA. A brief review of the legislative history reveals the problem. The notice requirements [page12] were added to the PACA in 1965. [See Note 1 at end of document] At that time, there was no comprehensive statute dealing with occupiers' liability and, accordingly, the appellant's action would have been under s. 5(c) of the PACA, and subject to the corresponding ten-day notice period.

[15] The OLA was enacted in 1980, [See Note 2 at end of document] creating a statutory duty of care for occupiers. The OLA does not address the issue of notice, [See Note 3 at end of document] and the PACA was not amended to explicitly exclude the OLA from s. 5(d) of the PACA. Thus, the legislature either changed its intention with respect to the PACA, or it simply overlooked the potential implications of the OLA on s. 5(c) and (d) of the PACA.

[16] As a matter of statutory interpretation, provisions that limit a plaintiff's right to bring a cause of action are generally construed strictly, and any ambiguity is resolved in favour of the plaintiff: see, for example, Berardinelli v. Ontario Housing Corp. (1978), 1978 42 (SCC), [1979] 1 S.C.R. 275, 90 D.L.R. (3d) 481. The Crown contends that it is inappropriate to apply this presumption to the PACA for two reasons: first, the PACA does not limit pre-existing rights, but instead expands on those rights; and, second, the PACA reflects the legislature's intent to control the erosion of Crown immunity.

[17] In my view, Goudge J.A. described the proper approach to interpreting the PACA in Mattick Estate, supra, at pp. 225-26 O.R.:

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, 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.

[18] Applying the normal principles of statutory interpretation, I think that the legislative intent with respect to the PACA is clear and, accordingly, there is no need to resort to a presumption. There is no dispute that the original intent of the legislature was to target occupiers' liability with a special and strict notice requirement. Prior to the enactment of the OLA, a plaintiff wishing [page13] to sue the Crown as occupier had to give notice of the claim within ten days or lose the right to sue under the PACA. The crucial question is whether the OLA reflects a change in the legislature's intent in this domain.

[19] The appellant contends that when a later statute becomes law, it is presumed to take account of, and integrate, existing legislation: see Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd ed. (Toronto: Carswell, 2000) at pp. 342-48. However, two factors militate against this conclusion in the present case.

[20] First, the purpose of s. 7(3) of the PACA is to allow the Crown an early opportunity to investigate and address circumstances that might result in an action against the Crown as occupier. The decision to target this specific kind of liability should not be seen as arbitrary. Nothing in the OLA even touches upon, let alone undermines, this legislative purpose. Rather, the OLA simply replaces a common law duty with a statutory duty.

[21] Second, although the OLA is binding on the Crown, by virtue of s. 10(1) it is "subject to the Proceedings Against the Crown Act". The appellant contends that this could as easily refer to s. 5(1)(d) of the PACA -- "liabilities in tort . . . under any statute" -- as to s. 5(1)(c). I disagree. The problem with the appellant's interpretation of the OLA and the PACA is that, as he conceded in oral argument, it would have the effect of implicitly repealing ss. 5(1)(c) and 7(3) of the PACA. I do not think that the legislature intended such consequences when it enacted the OLA 15 years after enacting the notice requirements in the PACA. The better interpretation, in my view, is that when the legislature enacted the OLA, it had no intention of altering the specific notice period governing actions against the Crown provided in s. 7(3) of the PACA. Thus, the specific liability of the Crown for occupiers' liability under s. 5(1)(c) and the corresponding ten-day notice period under s. 7(3) of the PACA both survived.

[22] For the above reasons, I conclude that the motion judge was correct to apply the ten-day notice period set out in s. 7(3) of the PACA applied to this action. It is necessary, therefore, to consider the second issue on the appeal, namely, whether the Accident/Injury Report completed by the appellant seven days after the accident complied with the notice requirements under the PACA.

(2) The accident report and [s. 7(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p27/latest/rso-1990-c-p27.html) of the [PACA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p27/latest/rso-1990-c-p27.html)

[23] The content of the notice required under s. 7(3) is set out in s. 7(1) of the PACA. A plaintiff is required to give "a notice of the claim containing sufficient particulars to identify the occasion out [page14] 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". There is no prescribed form of notice, and no guidelines with respect to service.

[24] The recent decision of this court in Mattick Estate, supra, addresses the content of the notice requirement. This case involved a suit against the provincial government for failing to properly train and equip EMT technicians, alleging that Mr. Mattick died because he did not receive CPR or defibrillation en route to the hospital on April 24, 1994. Mr. Mattick's wife phoned a senior official with the Ministry of Health on May 17, 1994 to complain. She was asked to put her concerns in writing. Her letter, dated June 6, 1994, reads as follows (at p. 224 O.R.):

This is to confirm our telephone conversation on 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.

Dissatisfied with the results of the ensuing investigation, Ms. Mattick sent a notice to the province on August 23, 1994 that she intended to make a claim against it, and issued a statement of claim on October 17, 1994.

[25] The court found that the June 6, 1994 letter on its own constituted adequate notice under s. 7(1) of the PACA. The following paragraphs from Goudge J.A.'s reasons set out the purpose of the notice provisions, and the standard that must be met (at pp. 226-27 O.R.):

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". [page15]

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.

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 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.

[26] Adequate notice, then, entails two distinct requirements. The first is that it must contain sufficient particulars to allow the Crown to identify the source of the potential problem, so that it can investigate. Considering Latta's statements to the guards and nurse, and his written Accident/Injury Report, I think it is clear that he provided sufficient particulars. He identified the nature (fall), time (when leaving school), location (stairs), cause (sand bucket) and consequences (back injury) of his accident. Indeed, it appears that the Crown did investigate the accident. On December 11, 1998, a day after Latta completed the Accident/ Injury Report, Gary Hogarth, the superintendent of the correctional facility, made this notation in the box on the report titled Superintendent's Remarks: "Apparent minor injuries. Appropriate action by staff -- no further action required".

[27] The second requirement is that notice entails an element of "complaint". This requirement flows from the word "claim", and the legislative purpose of the provision. Section 7(1) is intended to allow the Crown either to avoid litigation, or to have an early opportunity to prepare its defence. The court in Mattick Estate indicated that notice of a "claim" does not entail mere notice of the facts underlying the claim. Rather, notice must inform the Crown of a potential conflict "that could reasonably be anticipated to result in litigation against the Crown". It is knowledge of a potential conflict that will alert the Crown to take advantage of the early notice to investigate and resolve the problem prior to the commencement of litigation. [page16]

[28] A month after Mattick Estate, this court released its decision in Myshrall v. Toronto (City) (2001), 2001 24165 (ON CA), 52 O.R. (3d) 686, 196 D.L.R. (4th) 680 (C.A.) ("Myshrall"). This case involved the notice required under the Municipal Act, R.S.O. 1990, c. M.45, before an individual can sue for injuries caused by the City's failure to keep its sidewalks "in repair" (s. 284(1)). Section 284(5) requires "notice in writing of the claim and of the injury complained of . . . within seven days". Although this court decided that the sufficiency of the notice sent to the City by Ms. Myshrall could not be determined on a summary judgment motion, Laskin J.A. discussed the purposes of the notice provision, at p. 690 O.R.:

Whether a notice complies with s. 284(5) should be considered in light of the purposes of the section. These purposes are to give the municipality a reasonable opportunity to investigate the accident and take any necessary corrective action to prevent a similar occurrence. As long as a claimant's notice gives enough information about the claim to permit the municipality to achieve these purposes, it will comply with s. 284(5). Moreover, the courts should read the notice generously, bearing in mind that the time to deliver it is brief and that, in many cases, it will be prepared by a person without legal training.

[29] A third recent case in which this court considered the notice provisions of the PACA is Beardsley v. Ontario (2001), 2001 8621 (ON CA), 57 O.R. (3d) 1, 17 C.P.C. (5th) 94 (C.A.) ("Beardsley"). In that case the court rejected the argument that a complaint under the Police Services Act, R.S.O. 1990, c. P.15, constituted notice under s. 7(1) of the PACA. In its endorsement, the court said, at pp. 4-5 O.R.:

This court's determination in Mattick Estate v. Ontario (Minister of Health) that a potential claimant against the Crown need not expressly state in any notice that he "intends to take legal action to recover damages or other relief" does not mean that every letter of complaint delivered to a provincial agency will fulfil the notice requirements under s. 7(1) of the Proceedings Against the Crown Act. Rather . . . this court explicitly stated:

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.

The Police Services Act . . . provides a mechanism for citizens to file complaints against police officers. However, its focus is on discipline of police officers rather than providing remedies to aggrieved citizens. Accordingly, as a general matter, a letter of complaint against a police officer should not be taken as notice of a possible civil claim.

[30] Against the backdrop of these authorities, it seems clear that the crucial question to be addressed is the one posed in Mattick Estate and confirmed in Beardsley: could the appellant's Accident/Inquiry Report "reasonably be anticipated to result in [page17] litigation against the Crown"? The motion judge gave a negative answer to this question. He reasoned:

Further, I must consider the report of December 10 and compare the information provided with the facts in the Mattick case. In the instant case, there is no indication of a potential claim but rather a factual account of what occurred and it is noted that the supervisor, having reviewed the claim, determined that no further action was required. From this it would appear that a claim was not contemplated. In Mattick there was a phone call and a letter to the Crown complaining of the lack of care. Thus, in my view, the accident report does not amount to a claim and cannot be considered as notification within the ten-day period.

[31] I say, without hesitation, that there is merit in this careful analysis. I also observe that, at least for me, this is a close case. However, in the end I reach the opposite conclusion. I think that the appellant's Accident/Injury Report could reasonably be anticipated to result in litigation against the Crown. I reach this conclusion for several reasons.

[32] First, the appellant was in custody under the care and control of the Crown at the time of the accident. Immediately following the accident, he informed his guards, who instructed him to report the incident to the nurse. In my view, the appellant's decision to inform prison officials about the accident and his identification of the actions of the Crown (leaving a bucket at the top of the stairs) as a cause of the accident entail a certain degree of "complaint". It may not be, in explicit terms, the equivalent of "I fell down the stairs and it is your fault"; however, it goes beyond a simple "I fell down the stairs."

[33] Second, the nature of the accident and the content of the Accident/Injury Report suggest the potential for litigation. The accident itself is a visual paradigm for a lawsuit: a man trips over a bucket being used as a doorstop at the top of some stairs, falls down the stairs and is injured. The report completed by the appellant asserts injury and indicates that medical advice had been received. Although the report does not use the word "claim", the content of the report and the nature of the accident have, in my view, a strong indication of "potential claim" about them.

[34] Third, the structure and content of the Accident/Injury Report suggest a link between accidents and injuries being reported and potential consequences for the Crown. The instructions for s. 7 of the report provide: "Superintendent's Remarks (Include, if appropriate, assessment of responsibility for accident and any anticipated long term effects)". In my view, both the phrases "assessment of responsibility" and "anticipated long term effects" raise the spectre of potential litigation. Moreover, [page18] the superintendent's remarks in this case -- "Appropriate action by staff -- no further action required" -- although perhaps ambiguous, suggest that some assessment of Crown responsibility took place. Finally, I note that the motion judge's description of the superintendent's conduct used the terminology "having reviewed the claim".

[35] In summary, based on these three reasons, I conclude that the appellant's Accident/Injury Report could reasonably be anticipated to result in litigation against the Crown. My conclusion is strengthened by recognition that the appellant's report was sufficient to fulfil the essential purpose of the notice period under the PACA -- to give the Crown time to investigate the accident. Indeed, the Crown conducted an investigation in this case. Finally, I am influenced by what Laskin J.A. said in Myshrall, namely, that "courts should read the notice generously, bearing in mind that the time to deliver it is brief and that, in many cases, it will be prepared by a person without legal training".

E. Disposition

[36] I would allow the appeal with costs fixed at $3,900 inclusive of disbursements and GST. The motion judge awarded the defendant costs of $2,500 plus GST. Unless the court receives submissions to the contrary within seven days of the release of these reasons, I would award the plaintiff his costs of the motion in the same amount.

GOUDGE J.A. (dissenting): --

[37] I have had the benefit of reading the reasons for judgment of my colleague MacPherson J.A. I agree with him that the motions judge was correct to apply to this action the ten-day notice period set out in s. 7(3) of the PACA. That leaves this question: within ten days after the claim arose on December 3, 1998 did the appellant serve the Crown with a notice of his claim as required by s. 7(1) of the PACA? The appellant argues that he did so by filling in the "statement" portion of the respondent's Accident/Injury Report Form and giving it to the respondent on December 10, 1998. The motions judge disagreed with this. MacPherson J.A. does not. With respect, I share the approach of the motions judge, and would therefore dismiss the appeal.

[38] Two preliminary matters can be quickly disposed of. First, both the appellant and the respondent sought summary judgment on this question. Neither argued that a trial was necessary and indeed there appeared to be no disputed facts relevant to this issue. Second, there is no issue here of discoverability. [page19]

[39] The real question is whether the appellant's statement in the Accident/Injury Report meets the requirements of s. 7(1).

[40] In Mattick Estate v. Ontario (Minister of Health) (2001), 2001 24086 (ON CA), 52 O.R. (3d) 221, 195 D.L.R. (4th) 540 (C.A.) at p. 226 O.R., the purpose of this provision was set out by this court in these terms:

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.

[41] Setting the language of s. 7(1) against this legislative purpose, the court in Mattick, at p. 226 O.R., defined the requirement of the subsection as follows:

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.

(Emphasis added)

[42] I agree with MacPherson J.A. that the notice required by s. 7(1) has two elements, the first of which is that it must contain sufficient particulars to allow the Crown to identify the source of the problem so that it can investigate. In my view the second requirement is that it must be a notice that communicates a complaint. That is, it must reasonably bring home to the Crown that the claimant seeks to hold it responsible or accountable for what occurred. Without knowing that there is a complaint, the Crown is unable to gather information to permit a mutually satisfactory resolution of it or failing that to properly defend the litigation which may result from it. If the purported notice does not communicate a complaint, the legislative purpose cannot be properly served.

[43] Therefore, the specific question here is whether the appellant's written statement of December 10, 1998 communicates a complaint to the Crown in the sense I have outlined.

[44] In answering this question the wording of the statement and the context from which it originated are important. The appellant's evidence on this is as follows:

4. Immediately after the fall, I felt pain in my back. I walked back to my unit and I reported to a guard on duty that I had fallen exiting from the school. He told me to tell the nurse who distributes medication. I advised the Nurse that I had fallen. I do not recall any further details of my conversation with the Nurse. Both the guard and the Nurse are employees of the Defendant.

5. Later the Defendant gave me a form called Accident/ Injury Report and instructed me to complete the portion called "Statement:". Attached as Exhibit "A" is a copy of the report. I gave a written statement that: [page20]

Reported 4-12-98

Leaving school (building) and tripped over white pail (filled with sand) that the Burtch C.C. used as a door stopper. When I fell I landed on my back, thought that it was bruised; told to keep an eye on it by nurse on duty during pill parade.

[45] Given these facts, I agree with the conclusion of the motions judge that this did not constitute notice to the Crown for the following reasons.

[46] The appellant's written statement itself contains no language of complaint. There is nothing in the appellant's words to suggest that he is seeking to hold the respondent accountable for what happened. As the motions judge found, the statement is nothing more than a factual account of what occurred.

[47] Nor does the nature of the incident being described raise an inference that he will seek to hold the Crown accountable for the incident. The appellant simply tripped and fell over a white pail of sand being used as a door stop. There is no suggestion, for example, that this was a hidden danger, put there by the respondent, which would inevitably cause people to trip and fall down stairs.

[48] Nor does the context from which the statement arose assist the appellant. Since the statement was not volunteered by the appellant but, rather, was provided on the instruction of the respondent, it cannot be reasonably inferred that by making the statement the appellant was communicating a complaint to the respondent.

[49] Nor does the form used for the Accident/Injury Report leave the recipient Crown with the reasonable inference that those filling it in are thereby communicating a complaint. The Burtch Correctional Centre Policy on such reports suggests that a form is to be completed for every accident or injury to an inmate, not just in those cases where an inmate may be seeking to hold the institution responsible. Moreover, the form provides that the Superintendent's remarks may include an assessment of responsibility for the accident if appropriate, inferring that there will only be a question of blame or accountability in some cases.

[50] Finally, unlike Mattick, there is no evidence that the respondent, on receiving this written statement, in fact responded by gathering information to permit mutually satisfactory resolution of a claim or, failing that, to properly defend a lawsuit by the appellant.

[51] I agree entirely that in making the assessment called for by s. 7(1) courts should read a notice of claim generously, bearing in mind that the time to deliver the notice is brief, and that, in [page21] many cases, it will be prepared by a person without legal training. However, I do not think that s. 7(1) calls for the Crown to react to every accident report it receives as if it marked the commencement of potential litigation. In this case, I must conclude that, even on a generous reading, the appellant's written statement is not a notice that communicates a complaint which if not satisfied could reasonably be anticipated to result in litigation against the Crown.

[52] I would therefore dismiss the appeal with costs if demanded, fixed at $3,900.

Appeal allowed.

Notes

Note 1: An Act to amend The Proceedings Against the Crown Act, 1962-63, S.O. 1965, c. 104, s. 1.

Note 2: Occupiers' Liability Act, 1980, S.O. 1980, c. 14.

Note 3: Indeed, the OLA is entirely silent on procedural issues.