Daoust-Crochetiere v. Her Majesty the Queen in Right of the Province of Ontario as represented by the Minister of Natural Resources for the Province of Ontario

[Indexed as: Daoust-Crochetiere v. Ontario (Minister of Natural Resources)]

Ontario Reports

Court of Appeal for Ontario,

Strathy C.J.O., Feldman and Lauwers JJ.A.

November 6, 2014

123 O.R. (3d) 715 | 2014 ONCA 776

Case Summary

Crown — Proceedings against the Crown — Notice — Plaintiff failing to comply with ten-day notice period in s. 7(3) of Proceedings Against the Crown Act or 60-day notice period in s. 7(1) of Act — Plaintiff not permitted to assert overarching tort falling within s. 5(1)(a) of Act when claim was clearly in respect of breach of duties attaching to ownership, occupation, possession or control of property at defendant's boat launch — Legislature not intending that flexible approach be taken to notice period under Act — Motion judge not erring in dismissing plaintiff's action in tort — Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 5(1)(a), 7(1), 7(3).

The plaintiff sued the defendant for damages arising out of an accident at the defendant's boat launch at a provincial park. The motion judge granted summary judgment dismissing the plaintiff's action in tort because he failed to comply with the ten-day notice period in s. 7(3) of the Proceedings Against the Crown Act or the 60-day notice period in s. 7(1) of the Act. The plaintiff appealed.

Held, the appeal should be dismissed.

The claim as pleaded fell squarely within s. 5(1)(c) of the Act. The plaintiff could not assert an overarching tort falling within s. 5(1)(a) of the Act when the claim was clearly in respect of a breach of the duties attaching to the ownership, occupation, possession or control of property at the defendant's boat launch. The motion judge properly rejected the submission that because part of the launch ramp was under the surface of the water it was not within the scope of s. 5(1) (c). The statement of claim pleaded that the defendant had control [page716] over the facilities at the park and was responsible for the maintenance of the launch. This was not a case in which notice was imperfect but sufficient to put the defendant on notice that a claim could reasonably be anticipated. The defendant had no notice of any kind until more than four months after the injury. The legislature did not intend that a flexible approach be taken to the notice periods under the Act.

Coulter v. Ontario (Ministry of Natural Resources) (2014), 119 O.R. (3d) 571, [2014] O.J. No. 1132, 2014 ONSC 1573 (S.C.J.), distd

Other cases referred to

Crinson v. Toronto (City) (2010), 100 O.R. (3d) 366, [2010] O.J. No. 216, 2010 ONCA 44, 257 O.A.C. 359, 64 M.P.L.R. (4th) 159, 316 D.L.R. (4th) 145, 185 A.C.W.S. (3d) 220; Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469, 294 D.L.R. (4th) 141, 56 C.P.C. (6th) 14, 241 O.A.C. 29, 166 A.C.W.S. (3d) 762; Latta v. Ontario (2002), 2002 45117 (ON CA), 62 O.R. (3d) 7, [2002] O.J. No. 4106, 220 D.L.R. (4th) 157, 165 O.A.C. 135, 26 C.P.C. (5th) 23, 117 A.C.W.S. (3d) 817 (C.A.); Leone v. University of Toronto Outing Club, [2006] O.J. No. 4131, 151 A.C.W.S. (3d) 1170 (S.C.J.)

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 4

Municipal Act, 2001, S.O. 2001, c. 25, s. 44(12) [as am.]

Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 5(1)(a), (c), 7(1), (3)

APPEAL from the order McCarthy J., [2014] O.J. No. 911, 2014 ONSC 1340 (S.C.J.) dismissing an action.

Andrew Kerr, for appellant.

Thomasina Dumonceau, for respondent.

[1] BY THE COURT: -- The appellant's claim as pleaded falls squarely within s. 5(1)(c) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 ("PACA"). It is a claim in tort in respect of a "breach of the duties attaching to the ownership, occupation, possession or control of property" at the respondent's boat launch at Wasaga Beach Provincial Park.

[2] 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 60-day notice required by s. 7(1) of PACA.

[3] The accident occurred on June 13, 2010. The notice given on October 27, 2010 was well beyond the ten-day period and clearly out of time. The motion judge properly rejected the submission that the plaintiff could assert an overarching tort falling within s. 5(1)(a) when the claim was clearly "in respect of" a breach of the duties attaching to the "ownership . . . [etc.]" of property. As this court observed in Latta v. Ontario (2002), 2002 45117 (ON CA), 62 O.R. (3d) 7, [2002] O.J. No. 4106 (C.A.), at para. 18, the purpose of s. 5(1)(c) and s. 7(3) was to "target occupiers' liability [page717] with a special and strict notice requirement". That purpose would not be achieved by the interpretation proposed by the appellant.

[4] Similarly, the motion judge properly rejected the submission that because part of the launch ramp was under the surface of the water it was not within the scope of s. 5(1) (c). The statement of claim pleads that the respondent had control over the facilities at the park and was responsible for the maintenance of the launch.

[5] We did not consider it necessary to call on the respondent with respect to the appellant's submission that strict compliance with s. 7(3) of PACA was not required in the circumstances of this case, including the absence of demonstrated prejudice to the respondent. This is not a case like Leone v. University of Toronto Outing Club, [2006] O.J. No. 4131, 151 A.C.W.S. (3d) 1170 (S.C.J.), where the injuries prevented the appellant giving notice. In this case, the appellant suffered an injury and he knew who was responsible. He simply thought the injury was not as severe or as permanent as it ultimately proved to be.

[6] Nor is this a case in which notice was imperfect but sufficient to put the respondent on notice that a claim could reasonably be anticipated. Coulter v. Ontario (Ministry of Natural Resources) (2014), 119 O.R. (3d) 571, [2014] O.J. No. 1132, 2014 ONSC 1573 (S.C.J.), cited by the appellant, is distinguishable, because there was evidence on which a court might conclude that the defendant had sufficient notice of the incident to satisfy the statutory requirement, notwithstanding the absence of formal notice. In this case, the respondent had no notice of any kind until more than four months after the injury.

[7] The appellant would have the court import into PACA a relieving provision similar to s. 44(12) of the Municipal Act, 2001, S.O. 2001, c. 25 (see the discussion of this provision in Coulter and Crinson v. Toronto (City) (2010), 100 O.R. (3d) 366, [2010] O.J. No. 216, 2010 ONCA 44). We reject this submission. If the legislature intended a flexible approach to be taken to the notice period under PACA, it would have been simple to add a similar relieving provision.

[8] We did call on the respondent to address the appellant's submission that the motion judge erred in not granting leave to amend the claim to plead breach of contract. This proposed reframing of his claim in contract would have avoided the s. 7(3) PACA notice requirement and was premised on the allegation that he had paid a fee to use the boat launch. There was no motion for leave to amend before the summary judgment motion [page718] judge, who appears to have raised the issue of amendment on his own motion.

[9] The motion judge found that the statement of claim, framed in tort, did not plead facts sufficient to disclose a cause of action in contract and that it neither related to nor flowed naturally from the tort cause of action pleaded.

[10] We agree. The statement of claim was issued on June 13, 2012, on the second anniversary of the accident. Reading it generously, there was no reference to a contract or to any contractual claim. The appellant's payment of a fee to use the boat launch, the key factual premise on which he relies for his contractual claim, was not even mentioned.

[11] The amendment was raised at the respondent's summary judgment motion, heard on February 28, 2014 -- more than three and a half years after that cause of action arose. The motion judge properly refused the amendment as the claim was time-barred: Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 4.

[12] The appellant's argument about there being no prejudice to the respondent must be rejected. It presupposes that the basic limitation period under the Limitations Act may be excused in "special circumstances" where there is no prejudice. This suggestion was rejected by this court in Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469.

[13] The appeal is therefore dismissed. Costs, if requested, may be addressed by written submissions.

Appeal dismissed.

End of Document