Court of Appeal for Ontario

Date: 2023-01-23 Docket: C70652

Before: 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.

Reasons for Decision

Introduction

[1] The Crown appeals from the dismissal of its motion to have the respondent’s statement of claim struck out as a nullity due to the failure of the respondent to comply with provisions of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7 (“CLPA”). Section 18(1) of the CLPA requires that notice of a claim be given 60 days before an action claiming damages against the Crown is commenced. The motion judge found that the respondent had failed to comply with the CLPA requirements, but he dismissed the motion because the Crown had delayed in bringing it.

[2] The Crown argues that the motion judge’s conclusion is wrong in law. The respondent supports the result reached by the motion judge and maintains that the appeal is not properly in this court.

[3] As we explain below, the motion judge’s order is a final order and the appeal is properly before this court. As we also explain, the appeal must be allowed. Section 18(6) of the CLPA provides that an action commenced without complying with the notice requirements is a nullity “from the time the proceeding is brought”. There was no legal basis on which the motion judge could refuse to give effect to that provision.

Background

[4] On May 19, 2020, the respondent commenced an action against the Crown. The action included a claim for damages.

[5] The respondent commenced the action without first complying with the terms of s. 18(1) of the CLPA, which provides that no proceeding that includes a claim for damages may be brought against the Crown unless, at least 60 days before the commencement of the proceeding, the claimant serves a specified form of notice on the Crown. As noted above, s. 18(6) of the CLPA provides that an action commenced without complying with the notice requirements is a nullity “from the time the proceeding is brought”.

[6] In June and July 2020, Crown counsel wrote to the respondent drawing to her attention the requirement that notice to the Crown was required before the issuance of the claim. On July 15, 2020, Crown counsel specifically requested that the respondent discontinue her action due to non-compliance with the provisions of the CLPA, pointing out that the action was a nullity because of that non-compliance. Crown counsel suggested that the respondent could start a new action 60 days after the discontinuance of the existing one, as the Crown would treat the service of the claim issued in May 2020 as the prior notice required under the CLPA. On October 2, 2020, Crown counsel again wrote to the respondent advising her that the action was a nullity.

[7] The respondent did not accept Crown counsel’s position or suggestions, or act on them. She consistently advised that she was requesting that the Crown be noted in default.

[8] On August 23, 2021, the respondent wrote to Crown counsel advising that she had brought a motion for default judgment and had been instructed to serve the motion on the Crown. Crown counsel advised that a motion to strike the claim would be brought at the same time as the motion for default judgment. Those were the motions that came before the motion judge in March 2022.

The Motion Judge’s Decision

[9] The motion judge found that the respondent could not obtain default judgment for a number of reasons, including because “[s]he failed to comply with the notice provisions of the CLPA they [sic] are mandatory”. He found that the Crown at all times demonstrated good faith and had tried to assist the respondent in “rationalizing an improperly issued statement of claim”. However, he held that the Crown should have moved as soon as the respondent decided to ignore its advice concerning complying with the CLPA. He dismissed the Crown’s motion to strike the claim as a nullity. He also dismissed the respondent’s motion for default judgment and gave the Crown 20 days to file a defence.

Analysis

(1) The Appeal is Properly Brought in this Court

[10] The order under appeal – dismissing the Crown’s request to strike the claim as a nullity due to the failure to comply with the notice provisions of s. 18 of the CLPA – is a final order, from which an appeal lies directly to this court under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[11] An order is final if it determines a substantive right of a defendant: Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.); Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at paras. 16-17. The right to have the action treated as a nullity, rather than having to defend it, is a substantive right conferred on the Crown by the CLPA.

[12] The motion judge’s order finally determined that substantive right. The order rejected the Crown’s position that the action should be struck as a nullity, and, in giving a fixed period of time for the Crown to deliver a statement of defence, contemplated the Crown having to defend the action or suffer judgment. Either is the antithesis of treating the action as a nullity. The order is final, not interlocutory, for appeal purposes.

(2) The Motion Judge Erred in not Striking the Action

[13] Prior to the enactment of the CLPA, s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, provided, in terms that are in all material respects the same as s. 18(1) of the CLPA, that no action could be brought against the Crown unless prior notice of 60 days was given. It was consistently held under that legislation that proper notice was a precondition to a claim in damages against the Crown, that this requirement could not be abridged, and that an action commenced without proper prior notice was a nullity: Zeus v. Spick, at para. 5, aff’d Zeus v. Spick, at para. 3; Beardsley v. Ontario (2001), 57 O.R. (3d) 1 (C.A.), at paras. 10-12; Miguna v. Ontario (Attorney General) (2005), 262 D.L.R. (4th) 222 (Ont. C.A.), at paras. 7-8. In Noddle v. The Ontario Ministry of Health, 2019 ONSC 7337, at para. 32, it was also held that the requirement could not be waived.

[14] The same approach should be followed under the CLPA. First, the legislature, in enacting s. 18(1) of the CLPA in terms that mirror s. 7(1) of the former legislation, should be taken to have intended the same effect. Second, s. 18(6) removes any doubt about this, as it mandates treating an action commenced without complying with the required notice as a nullity from the time of its commencement.

[15] With respect, the motion judge’s conclusion that the Crown was not entitled to have the action struck as a nullity, because it did not move as soon as the respondent indicated she did not intend to comply with s. 18(1) of the CLPA, rewrites the legislation. It conditions the Crown’s right to have the action treated as a nullity on the timing of the motion, a condition not found in the text. It introduces a notion of waiver by delay that is inconsistent with the judicial interpretation of the prior legislation, which held that its requirements could not be abridged or waived. And it cannot stand in the face of s. 18(6) – since the action was a nullity from the time it was commenced, there is no basis on which the Crown’s delay in moving could affect the action’s status as a nullity.

[16] The respondent argues that the motion judge was right to dismiss the Crown’s motion because she had noted the Crown in default, and r. 19.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prevents a defendant who has been so noted from bringing a motion without leave. We reject this argument. First, it was not the ground relied on by the motion judge who heard the Crown’s motion; to the extent leave was required, he implicitly granted it. But more fundamentally, the procedural rule relied on by the respondent cannot trump the clear effect of the CLPA provision that required the court to treat the action as a nullity. Moreover, s. 25 of the CLPA states that the Crown may not be noted in default without leave of the court, obtained on a motion made with notice to the Crown, and there is no evidence such leave was obtained.

[17] The respondent also argues that an effect of the noting in default is that the defendant is deemed to admit the allegations in the claim. Since r. 21.01(1)(a), under which the Crown moved, is available only for questions of law that arise from the pleadings, and the only pleading was the claim, there was no basis to consider facts surrounding the failure to give notice. We reject this argument. On a motion under r. 21.01(1)(a), evidence may be admitted in the discretion of the court: r. 21.01(2)(a). Here, the motion judge properly exercised his discretion to consider such evidence. As this court noted in Beardsley, at para. 10, rejecting a similar argument to the one advanced here by the respondent: “Proper notice is a necessary pre-condition to the right to sue the Crown. It would defeat the interests of justice to restrict a defendant’s right to adduce evidence that proper notice was not given.”

[18] The respondent also argues that estoppel should operate to prevent the Crown from asserting that the action is a nullity. She points to the fact that an application she brought to the Human Rights Tribunal of Ontario (“HRTO”), against the Ministry of the Solicitor General and four individuals, was dismissed in August 2020 on the basis of the existence of her action. Section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, bars an HRTO application where there is an existing civil action dealing with the same alleged rights infringement. The respondent argues that the Crown got the benefit of the existence of the action for the purpose of the dismissal of the HRTO application, and should be estopped from claiming the action is a nullity.

[19] We do not accept this argument.

[20] First, we are not satisfied that estoppel, any more than waiver, could have any effect on the operation of the CLPA given s. 18(6). Second, even assuming it could operate, we are not satisfied it would operate here.

[21] The motion judge made no findings that the respondent changed her position based on anything the Crown said to her or to anyone else, and he found the Crown acted in good faith throughout. The record is clear that the Crown unequivocally told the respondent that it considered the existing action against it to be a nullity. It was the respondent who not only persisted in maintaining the action but also commenced concurrent HRTO proceedings. This is what created the overlap in proceedings attracting the operation of s. 34(11) of the Human Rights Code, under which the HRTO has no discretion but to dismiss a human rights claim if there is a concurrent civil action, without regard to whether the civil action may be unsuccessful or struck out: Aba-Alkhail v. University of Ottawa, 2012 HRTO 656, at para. 26; Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319, at para. 48, leave to appeal refused, M41084. In any event, the respondent was free to make the Crown’s position that the existing action against it was a nullity known to the HRTO if she believed that would assist her in resisting dismissal of her HRTO application.

[22] Moreover, although the Crown is the only formally named defendant in the action, the claim refers to the conduct of various individuals and entities. The motion judge referred to the respondent having taken the position that individual police officers, the police services board, and the City of Quinte West are also defendants to the action. He invited her to have the claim “clearly and on its face stipulate who she is naming as a party defendant”. It remains open to her to pursue that in the Superior Court – it is only as against the Crown that the action is a nullity. The HRTO’s reasons for dismissing the application reflect this uncertainty as to who in addition to the Crown are or may be parties to the action – those reasons referred to the action as being against “all-but-one of the respondents” to the HRTO proceeding. It was that substantial overlap that was relied on by the HRTO in dismissing the application.

Conclusion

[23] The appeal is allowed. The statement of claim as against the Crown is struck out and the action as against the Crown is dismissed as a nullity.

[24] The parties may make written submissions, not exceeding three pages each, on the costs of the motion before the motion judge and of the appeal. The submissions of the Crown are to be delivered within ten days of the release of these reasons. The submissions of the respondent are to be delivered within ten days of the Crown’s submissions being delivered.

“Doherty J.A.”

“B. Zarnett J.A.”

“L. Sossin J.A.”

[1] The motion judge also dismissed a motion by the respondent for default judgment. That aspect of the order is not in issue on this appeal.