O’Brien v. Horychuk, 2025 ONSC 722
CITATION: O’Brien v. Horychuk, 2025 ONSC 722
DIVISIONAL COURT FILE NO.: DC 004/24
(Thunder Bay) DATE: 20250219
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. CORBETT, S.T. BALE and SHORE JJ.
BETWEEN:
Landen O’Brien, a minor by his Litigation Guardian Katherine O’Brien, and the said Katherine O’Brien
Plaintiffs
– and –
Robert Horychuk, Enterprise Rent-A-Car Canada Company, Brady O’Hanley, Ministry of Transportation and Carillion Canada
Defendants
HEARD at Thunder Bay by ZOOM: May 28, 2024
BETWEEN:
Edwin Arthur Severance, Shannon Rae Severance, Kennedy Jennifer Severance by Her Litigation Guardian, Shannon Rae Severance, and Edwina Severance
Plaintiffs
– and –
Brady O’Hanley, Katherine Anne O’Brien, Robert Horychuk, Enterprise Rent-A-Car Canada Company, Ministry of Transportation, Carillion Canada
Defendants
COUNSEL:
Ian Kirby, for the Appellants Robert Horychuk and Enterprise Rent-A-Car Canada Company
Todd Wasserman, for the Respondent Ministry of Transportation (His Majesty the King in right of Ontario As represented by the Ministry of Transportation)
REASONS FOR DECISION
D.L. Corbett J.
[1] This appeal turns on whether, and in what circumstances, His Majesty the King in Right of Ontario, as represented by the Ministry of Transportation (the “Crown”) is compellable in the process of production and discovery in claims under the Public Transportation and Highway Improvement Act, RSO 1990, c. P-50 (the “Act”). The motion judge, Nieckarz J., found that the Crown is not compellable for discovery, and could not be compelled to answer questions on an examination for discovery, even though a representative of the Crown had appeared for examination and answered some questions (2023 ONSC 2739 [the “Decision”]). Leave to appeal from this decision was granted by this court in respect to the following questions:
a. Does the Court have jurisdiction to compel [the Crown], to answer questions on examinations for discovery with respect to claims brought under the [Act]?
b. If the answer to question one is “no”, has the Crown attorned to the jurisdiction of the Superior Court of Justice, by its conduct in defending the claims at issue in this proceeding?
[2] For the reasons that follow, I would dismiss the appeal. I would answer the stated questions as follows:
a. The court does not have the authority to compel the Crown to answer questions on examination for discovery with respect to claims brought under the Act.
b. The Crown acknowledges that the claims against it are within the jurisdiction of the Ontario Superior Court of Justice and that it is a party over which the court has jurisdiction in respect to those claims. This does not, however, affect the answer to (a.).
[3] As I explain below, the questions at issue in this appeal are subject to binding authority from the Court of Appeal and a consistent history of jurisprudence applying that authority in the Superior Court of Justice. The one case from the Superior Court that reaches a contrary conclusion on these points, Tayler v. Mayes, 2019 ONSC 5651, is wrongly decided.
Jurisdiction and Standard of Review
[4] This court has jurisdiction over this appeal pursuant to s. 19(1)(b) of the Courts of Justice Act, RSO 1990, c. C.43 (the “CJA”). As noted above, leave to bring this appeal was granted by this court on stated questions: 2024 ONSC 1146 (Edwards RSJ, Sachs and Davies JJ).
[5] The issues on appeal are primarily questions of law to which a correctness standard of review applies: Housen v. Nikolaisen, 2002 SCC 33, para. 8.
Background
[6] The background facts are stated succinctly by the motion judge at paragraphs 1-4 and 8-13 of the Decision. The proceedings arise out of collisions in northern Ontario on the Trans-Canada highway during a winter storm that led to the death of Robert O’Brien and serious injuries to Edwin Severance.
[7] The plaintiffs allege that the Crown and its contractor for road maintenance, the defendant Carillion, were negligent in their care and maintenance of the highway in the area of the collisions.
[8] Documentary and oral discoveries took place, prior to which counsel for the Crown advised the other parties, by letter dated May 26, 2017, that production and discovery of the Crown in a case of this nature was voluntary under the Act. Counsel repeated this position at the start of the examination for discovery of a witness produced for examination on behalf of the Crown, Donald Petryna.
[9] During the course of the examination of Mr Petryna, some questions were refused or taken under advisement.[^1] The motion judge summarized the state of the disputed questions at paras. 24-26 of the Decision as follows:
The refusals and matters taken under advisement related to the following broad categories:
a) To provide particulars of the contract between the [Crown] and Carillion with respect to Carillion’s duties for Highway 17 maintenance, sanctions for non-performance in accordance with the terms of the contract, and insurance requirements.
b) To provide records relating to collisions and reports of complaints regarding road conditions for the section of the road where the subject accidents took place.
c) To provide records as to audits done by [the Crown] of Carillion’s performance.
d) To provide GPS records for Carillion vehicles servicing the route where the accidents giving rise to the actions occurred.
Some further answers were provided by [the Crown] by letter dated October 23, 2020, related to the insurance obligation of Carillon under the terms of its contract with [the Crown]. The general nature of insurance required by the contract was set out in the letter.
On October 26, 2020, [the Crown] provided the parties with the raw GPS data disclosing the location of the winter maintenance equipment that had been deployed during the winter event in which the accidents occurred. Additionally, [the Crown] commissioned reports from Forensic Dynamics Inc., to interpret the raw GPS data and provide an opinion as to the adequacy of the winter maintenance in response to the winter storm in question. This report was sent to all counsel on May 4, 2021.
[10] As argued by the appellants and as accepted by the motion judge and acknowledged by the Crown, the Crown is subject to the court’s jurisdiction and has participated voluntarily in the process of production of documents and examinations for discovery in these proceedings.
The Law of Discovery of the Crown in Claims under the Act
[11] The motion judge summarized applicable legal principles relating to discovery of the Crown at paras. 27-32 of the Decision. She concluded that statutes do not bind the Crown unless they expressly state otherwise, and that, absent express statutory authority, discovery is not compellable from the Crown in a civil proceeding. Neither the CJA nor the Rules of Civil Procedure expressly bind the Crown and thus cannot be used as legal authority to compel oral or documentary disclosure by the Crown. These statements of general principle are correct: Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 71; The Queen v. Canadian Transport Commission, 1977 150 (SCC), [1978] 1 SCR 61; Abou-Elmaati v. Canada (A.G.), 2011 ONCA 95; Canada Deposit Insurance Corporation v. Code, 1988 ABCA 36; A.G. Quebec and Keable v. A.G. Canada et al., 1978 23 (SCC), [1979] 1 SCR 218, at 245.
[12] The motion judge then considered the Court of Appeal’s decision in Longo v. The Queen, [1959] OWN 19, in which the issue of compellability of the Crown arose in the context of a claim arising under a predecessor version of the Act.[^2] The motion judge summarized the principle stated in Longo as follows (Decision, para. 34):
In Longo, the court confirmed that the Crown’s privilege to refuse discovery can only be taken away by express words in a statute. After reviewing s. 32(7) of the HIA, which is substantially identical in wording to the relevant provision of the [Act], the Court of Appeal held that in the absence of an express provision in the HIA or the Rules of Practice that specifically provided for a right of discovery against the Crown, a party to an action commenced under the HIA cannot compel oral discovery of the Crown.
This characterization of the principle to be taken from Longo is correct.
[13] The motion judge then considered the relationship between the Act, the Longo decision, and applicable provisions of the Proceedings Against the Crown Act, RSO 1990, c. P.27 (the “PACA”).[^3] At para. 35 of the impugned decision, the motion judge quoted from para. 3 of Longo:
It may be properly concluded that in the absence of an express provision of a like kind to what is found in sec. 10 of The Proceedings Against the Crown Act, that no such examination for discovery from an officer of the Crown can be had.
[14] As noted by the motion judge at para. 36 of the impugned decision, applicable material provisions of the PACA provide as follows:
2(1) This Act does not affect and is subject to… the Public Transportation and Highway Improvement Act….
8 In a proceeding against the Crown, the rules of court as to discovery and inspection of documents and examination for discovery apply in the same manner as if the Crown were a corporation, except that,
(a) The Crown may refuse to produce a document or answer a question on the ground that the production or answer would be injurious to the public interest;
(b) The person who shall attend to be examined for discovery shall be an official designated by the Deputy Attorney General; and
(c) The Crown is not required to deliver an affidavit on production of documents for discovery and inspection, but a list of the documents that the Crown may be required to produce, signed by the Deputy Attorney General, shall be delivered.
[15] The motion judge then considered cases addressing the compellability of the Crown in proceedings arising under the Act. She found, correctly, that there is a conflict in the case law. In one case, Taylor v. Mayes, 2019 ONSC 5651, the court found that the Crown is compellable in an action commenced against the Crown pursuant to the Act. The balance of authority comes to the contrary conclusion on the basis of Longo, including one decision subsequent to Taylor v. Mayes where the court considered and declined to follow Taylor on the basis that it was contrary to Longo and long-established authority (Stegenga v. Jans, 2021 ONSC 7898).
[16] Having noted the conflict in the jurisprudence in the Superior Court of Justice, the motion judge then stated as follows (at para. 57):
This is an issue that would benefit from appellate intervention. On the one hand, Ryan Bell J.’s analysis in Taylor is more attractive to me than the Longo/Stegenga analysis. The conclusions of Ryan Bell J., accord with a modern approach to the issue of Crown prerogative. I note that the Court of Appeal in Longo specifically recognized that the case was decided at a time when discovery rights against the Crown were at an early stage. That is no longer the case. Discovery is an important step in civil matters for the parties to be able to assess the strength and weaknesses of their respective cases and to exchange evidence that will be relevant to a determination of the case.
[17] The motion judge then noted that her view of the “more attractive” policy choice did not relieve her from following binding precedent. She concluded, as did Broad J. in Stegenga, that Longo and the jurisprudence following it are binding and preclude the finding in Taylor v. Mayes:
Other than personal preference, I have no cogent reason to depart from these cases and am bound to follow them. I find there is no right of discovery against the Crown under the [Act]. (Decision, para. 60)
Argument on Appeal
[18] The Appellants argue that the analysis in Taylor is to be preferred to the analysis in Stegenga, and that the motion judge erred in concluding otherwise. They argue that the Act and the PACA can be read to provide for discovery from the Crown, and that such readings are more consistent with current understandings of discovery rights against the Crown.
[19] I cannot accept this argument. I substantially agree with the reasoning of Broad J. in Stegenga and the motion judge’s reasons for following Stegenga.
[20] Longo is binding authority and is directly on point. The provisions of the PACA do not affect this conclusion: as per s. 2(1) of the PACA, it does not “affect” claims under the Act. The language in s. 33(7) of the Act, relied on in Taylor v. Mayes, was characterized by the Court of Appeal in Longo as follows:
It enables a party to commence and maintain that action without the fiat of the Lieutenant-Governor or the consent of the Attorney-General, and it declares that the action in the court is to be carried on and judgment given in the same manner as in ordinary cases. It does not create a right or a remedy of discovery. If such a right or remedy is to be found it must be found in the Rules of Practice of this Court.
This finding is binding on the Superior Court of Justice and on this court. It clearly and expressly precludes the finding in Taylor.
[21] The court in Taylor relies on language from the Court of Appeal in Mattick Estate v. Ontario (Minister of Health) (2001), 2001 24086 (ON CA), 52 OR (3d) 221 (CA) in support of the conclusion that the PACA should not be so strictly construed as it once had been. The motion judge acknowledged this analysis (at para. 49 of the Decision), including the statement by the Court of Appeal that the statutory right to sue the Crown is now “an accepted part of our legal landscape” such that:
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 to this case to the statutory language used and the legislative purpose being addressed. (Mattick, para. 14)
None of this assists with the conclusion of the court in Taylor. As noted above, the PACA does not “affect” claims under the Act. Whether one applies a “strict” approach or “normal principles of statutory interpretation”, the PACA does not affect claims under the Act.
[22] I would not address the policy arguments set out in Taylor, which the motion judge found “more attractive” than the conclusion to which she was driven by binding authority. Where, as here, there is binding authority from the Court of Appeal, and a consistent line of jurisprudence applying this authority in the Superior Court, policy arguments should be addressed to the legislature. Alternatively, if a litigant feels that long-established and long-followed precedent from the Court of Appeal should be overturned, the place to address that argument is the Court of Appeal. However, to be clear, I am not suggesting that further appellate guidance would be advisable: the motion judge was faced with conflicting authority in the Superior Court, a reasonable basis for suggesting some appellate guidance. Further appellate guidance is not required to settle the point for the purpose of proceedings in the Superior Court, and it would be for the Court of Appeal to consider whether there is any good reason to revisit its own established jurisprudence and the longstanding precedent that has followed it.
The “Attornment” Argument
[23] I see little merit to the argument that, because the Crown defends a claim brought against it under the Act, and voluntarily produces some documents and provides some information at examinations for discovery, it has therefore “attorned” to the court’s jurisdiction and may be compelled to produce documents and to attend examinations for discovery. “Attornment” does not enter into it.
The Crown Does Not Contest that it is Subject to the Court’s Jurisdiction
[24] The Appellants argue strenuously that the Crown has attorned to the court’s jurisdiction in this case and has placed considerable legal authority before the court to support its position (Factum, paras. 29-35). It is beyond debate that the Crown has appeared as a party before the court in this proceeding and is subject to the court’s jurisdiction over the claim. The Crown accepts this point.
[25] The Appellant argues that the motion judge found that the Crown “had not attorned to the jurisdiction of the court” (factum, para. 12). That is not what the motion judge found. At para. 63 of the Decision, the motion judge found as follows:
I reject this argument of the moving parties. At issue in Mid-Ohio, Van Damme, Wolfe, and Kaman was the jurisdiction of the court to determine the action itself.[^4] The provincial Crown in this case acknowledges the jurisdiction of the court to determine the action but takes the position it is not compellable for discovery in actions commenced under the [Act]. None of the cases cited by the moving parties dealt with such an argument. On the other hand, there is case law cited by the Crown, and reviewed above, that has held that even in circumstances in which the Crown voluntarily participates in discovery, if the court cannot compel attendance at discovery, then it similarly cannot compel reattendance to answer refusals.[^5]
[26] Claims asserted against the Crown under the Act are, obviously, within the jurisdiction of the court. As noted by the motion judge, that is not the issue here. Just because the court has jurisdiction respecting the claims in this proceeding does not mean that the court has the legal authority to compel disclosure and examination of the Crown. As noted above (at para. 11), “absent express statutory authority, discovery is not compellable from the Crown in a civil proceeding.” Obviously, this principle would have no substance if the Crown was compellable in any proceeding in which it defends a claim. Further, the appellants’ arguments imply that whenever a claim is asserted against the Crown under the Act, and the Crown defends that claim, production and discovery are available against the Crown. That argument runs directly contrary to Longo and conflates jurisdiction over claims with authority to compel production and discovery from the Crown.
[27] The appellants also argue that the court has “the inherent jurisdiction to make Orders against [the Crown], including compelling answers to undertakings, etc.” (Factum, para. 39). No authority is offered for this proposition, and no explanation is offered as to how or why the court can have recourse to its “inherent jurisdiction” to make an order contrary to law. No test is proposed for the exercise of inherent jurisdiction in these circumstances. I conclude that this argument is rhetorical and without substance.
[28] Even if the appellants’ argument were to be refined and restated on the basis suggested by the Crown, that the Crown has somehow waived the exercise of its prerogative by its voluntary participation in disclosure and examinations for discovery, that argument, while coherent, would still be of little merit. The motion judge disposed of this argument correctly in paras. 61-64 of the Decision. In addition, any argument based on waiver fails to take account of the Crown’s clear statement that it was not waiving its prerogative prior to and at the start of examination for discovery: even if waiver could arise in some circumstances (a point I would not decide here), it clearly does not arise on the facts of this case.
Proper Discovery Questions
[29] In light of my conclusion that the motion judge was correct in finding that the Crown cannot be compelled to produce documents or answer questions on discovery, and that this principle is not defeated by the Crown’s voluntary partial participation in production and discovery, it is not necessary to address the motion judge’s decision respecting whether the questions refused were “proper questions”.
Disposition
[30] I would dismiss the appeal.
“D.L. Corbett J.”
I agree: “S.T. Bale J.”
I agree: “Shore J.”
Released: February 19, 2025
CITATION: O’Brien v. Horychuk, 2025 ONSC 722
DIVISIONAL COURT FILE NO.: DC 004/24
(Thunder Bay) DATE: 20250219
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. CORBETT, S.T. BALE and SHORE JJ.
BETWEEN:
LANDEN O’BRIEN et al.
Plaintiffs
– and –
ROBERT HORYCHUK et al.
Defendants
REASONS FOR DECISION
D.L. Corbett J.
Released: February 19, 2025
[^1]: The motion judge correctly noted that questions taken under advisement that are not answered subsequently are refusals within the meaning of rule 31.07 of the Rules of Civil Procedure.
[^2]: The Highway Improvement Act, 1957, c. 43.
[^3]: The PACA was subsequently amended and renamed: Crown Liability and Proceedings Act, 2019, SO 2019, c.7, Sched. 17. The motion judge correctly found that the pre-amendment version of the PACA applied to the claims in this proceeding, being the version that was in force at the time the claims arose (2015) and the proceedings were commenced (2017).
[^4]: Mid-Ohio Imported Car Co. v. Tri-K Investments Ltd. (1995), 1995 2084 (BC CA), 129 DLR (4th) 181 (CA), para. 6, Van Damme v. Gelber, 2013 ONCA 388, para. 22; Wolfe v. Pickar, 2011 ONCA 347, para. 44; Kaman v. British Columbia, 1999 ABQB 216, paras. 5, 8, 17, and 19-20.
[^5]: Ratkevicius et. al. v. The Queen, 1966 244 (ON SC), [1966] 2 OR 774 (Master); Wren v. Superintendent of Insurance (1976), 1976 687 (ON SC), 12 OR (2d) 190, 1 CPC 145, paras. 23 to 28; Cristante v. Grubb, 2016 ONSC 5029; Mitchell v. HMQ, 2017 ONSC 6238, para. 38.