COURT FILE NO.: CV-07-03708-CP

DATE: 2012-12-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AVTAR SIDHU

Plaintiff

– and –

HER MAJESTY THE QUEEN, IN RIGHT OF THE GOVERNMENT OF ONTARIO, AS REPRESENTED BY THE MINISTRY OF THE ATTORNEY GENERAL

Defendant

Sean Dewart and Michael Girard, for the Plaintiff/Responding Party

Dennis W. Brown, Q.C., and Jeremy Glick, for the Defendant/Moving party

HEARD: November 29, 2012

REASONS FOR JUDGMENT

GRAY J.

[1] Notwithstanding the placement of the Crown in much the same position as its subjects in litigious matters some decades ago, the Crown is still accorded some privileges the subject does not have. One of those privileges is to be given written notice of a claim before an action against the Crown can be commenced. If such notice is not given, the Court cannot hear the matter.

[2] The issue on this motion is whether the Crown was given the notice to which it is entitled. For the reasons that follow, I hold that it was not, and the action must be dismissed.

Background

[3] This is an intended class proceeding, and I am the supervising judge. It was commenced in Brampton. On consent of all parties, an Order will issue transferring the action to Milton.

[4] The genesis of the action is a criminal proceeding to which the plaintiff, Mr. Sidhu, was subject. It was alleged that he and others attended a residential address in Brampton and assaulted a number of people by punching and kicking, as well as striking with a hockey stick and the use of a knife. Eventually, he was convicted on summary conviction by a judge of the Ontario Court of Justice on October 21, 2003. He pursued an appeal to this court as a summary conviction appeal.

[5] The matter came on before Justice Hill of this court, and it ultimately became apparent that the interpreter who had been assigned to Mr. Sidhu’s case in the summary conviction proceedings was woefully incompetent. In Reasons for Judgment spanning 391 paragraphs, Justice Hill found that Mr. Sidhu’s rights under ss. 7 and 14 of the Canadian Charter of Rights and Freedoms had been infringed. Partly as a consequence, his right to be tried within a reasonable time pursuant to s. 11(b) of the Charter had been infringed. At some point in the proceedings, a mistrial had been declared. Justice Hill ordered, as a Charter remedy, that the Crown pay costs to Mr. Sidhu.

[6] Counsel for the Crown and Mr. Sidhu engaged in negotiations regarding the costs. Ultimately, a settlement was reached and a release was executed by Mr. Sidhu. The terms of the release and the circumstances under which it was executed assume some importance.

[7] Counsel for the Crown who were involved in the negotiations were John Pearson and Orlando Da Silva. Counsel for Mr. Sidhu was Paul French, now Mr. Justice French of the Ontario Court of Justice.

[8] The settlement itself was confirmed in emails between Mr. Pearson and Mr. French. The emails exchanged are as follows:

From: Pearson, John (JUS)

Sent: June 8, 2006 3:55 PM

To: ‘Paul French’

Cc: Da Silva, Orlando (JUS)

Subject: RE: Sidhu - Disclosure/Costs

Paul, your email accurately sets out the terms of our agreement. Orlando’s e-mail address is Orlando.dasilva@jus.gov.on.ca. I will see you in Brampton tomorrow. John

-----Original Message-----

From: Paul French [mail to:PFrench@hughesamys.com]

Sent: Thursday, June 08, 2006 3:39 PM

To: Pearson, John (JUS)

Subject: Re: Sidhu - Disclosure/Costs

John,

I am pleased that we were able to resolve this matter. My note of the terms of the settlement between the Crown and Mr. Sidhu is the

following:

a) The sum of $124,865.00 shall be paid to Mr. Moustacalis in accordance with the Direction of Mr. Sidhu dated December 21, 2005. This sum is in satisfaction of the Sidhu Bill of Costs inclusive of interest.

b) The sum of $774.36 shall be paid on account of interest with respect to the Norris Accounts. Again, pursuant to the Direction of Mr. Sidhu, this sum shall be made payable to the order of Mr. Moustacalis.

c) The sum of $26,000.00 plus disbursements shall be paid to Hughes Amys LLP in satisfaction of the costs of the Application. This sum is inclusive of the costs of Mr. Gover and Mr. Humphrey. I do not have immediately as [sic] hand all of the disbursements. I am advised that they will probably be less than $2,500.00. I will provide particulars to you as soon as they are available to me.

These sums are to be payable within two weeks.

Mr. Sidhu is to execute a Release concerning the cost claims arising from his Notice of Application dated November 22, 2004. I will confer with Mr. da Silva with respect to the wording of that Release. The Release will contain a confidentiality agreement.

I mentioned to Mr. Moustacalis that you would be calling him directly with respect to the separate matter we discussed. He can be reached at 416-363-2656.

The Trial Co-ordinator has reported that Justice Hill wishes something on the Record with respect to the resolution. While it need not be tomorrow, I suggest that we attend on Friday, June 9, 2006, at 10:00 a.m.

Please let me know if that suits your convenience.

If I have misunderstood any of the settlement terms, please do not hesitate to let me know.

Regards,

Paul

Paul J. French

Hughes Amys

48 Yonge Street, Suite 200

Toronto, Ont. M5E 1G6

Tel: 416 367 1608

Fax: 416 367 8821

email Pfrench@hughesamys.com\

[9] Mr. Orlando proposed a form of release that would release the Crown from any claim of any kind by Mr. Sidhu against the Crown. That was objected to by Mr. French, who wanted the release restricted to the claim for costs, which was the only thing being resolved.

[10] The lawyers exchanged emails about the form of the release. The email chain is as follows:

From: “Pearson, John (JUS)” John.Pearson@jus.gov.on.ca

To: “Paul French” PFrench@hughesamys.com

Date: 12-Jun-06 12:35:33 PM

Subject: RE Sidhu - Release

Paul, I’m going on vacation on Wednesday. The sooner you can get the executed release to me the better so I can approve payment and get the processing started. Thanks

-----Original Message-----

From: Paul French [mail to:PFrench@hughesamys.com]

Sent: Thursday, June 08, 2006 5:43 PM

To: Pearson, John (JUS), Da Silva, Orlando (JUS)

Subject: Re: Sidhu - Release

Gentlemen, thank you for your notes. I assume execution by Mr. Sidhu

can be completed next week. I will get that process underway. I will

keep you advised. John, I will see you tomorrow morning. Regards,

Paul.

“Pearson, John (JUS)” John.Pearson@jus.gov.on.ca08-Jun-06

5:35:14 PM >>>

Looks good to me. Thanks

-----Original Message-----

From: Da Silva, Orlando (JUS)

Sent: Thursday, June 08, 2006 5:26 PM

To: ‘Paul French’

Cc: Pearson, John (JUS)

Subject: Re: Sidhu - Release

Paul,

Subject to any comments John may have, the form of the release is

Acceptable.

Orlando

-----Original Message-----

From: Paul French [mailto: PFrench@hughesamys.com]

Sent: Thursday, June 08, 2006 5:07 PM

To: Da Silva, Orlando (JUS)

Cc: Pearson, John (JUS)

Subject: Re: Sidhu - Release

Orlando, thank you for the draft form of Release. I took the liberty

of

re-wording the Release to reflect its limitation to the cost issue.

Unless you see it otherwise, I believe it will be helpful to attach

the

Notice of Application to the form of Release being executed by Mr.

Sidhu. I attach a copy for your assistance. Please critique the

attached

form of Release and let me have your comments. Please let me know of

any

questions you may have.

Regards,

Paul

Paul J. French

Hughes Amys

48 Yonge Street, Suite 200

Toronto, Ont. M5E 1G6

Tel: 416 367 1608

Fax: 416 367 8821

email Pfrench@hughesamys.com

[11] The Release itself, which included, as an attachment, the Notice of Application regarding the claim for legal costs, reads as follows:

FULL AND FINAL RELEASE

KNOW ALL PERSONS BY THESE PRESENTS that AVTAR SIDHU (“Sidhu”) and

his heirs, executors, administrators, successors, assigns and estate trustees, for good and valuable consideration, the receipt and sufficiency of which is hereby irrevocably acknowledged. HEREBY RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (the “Crown”) from any and all claims, actions, causes of action, manner of actions, debts, suits, accounts, claims over, demands and liabilities of whatsoever kind or nature which Sidhu ever had, now has or hereafter can, shall or may have, against the Crown by reason only of his claim for costs in the attached Notice of Application dated November 22, 2004, bearing Court File No. SCA(CP) 7131/03, commenced in the Superior Court of Justice (Central West Region) Brampton, Ontario.

IT IS FURTHER UNDERSTOOD AND AGREED that for the consideration aforesaid, Sidhu undertakes and agrees not to make any claim or take any proceeding in respect of the claim released herein against any other person or corporation who might claim contribution, indemnity or other relief over against the Crown under the provisions of any statute or otherwise, with respect to the cost issue to which this Release applies.

IT IS FURTHER UNDERSTOOD AND AGREED that Sidhu does not release any claims for any loss or damage he may have suffered other than his claim for costs in the attached Notice of Application dated November 22, 2004.

IT IS FURTHER UNDERSTOOD AND AGREED that notwithstanding the exchange of consideration referred to herein, the Crown does not admit any liability or obligation of any nature or kind whatsoever to Sidhu or the existence of any particular state of facts, and any such liability, obligations or state of facts is specifically and expressly denied.

IT IS FURTHER ACKNOWLEDGED that this Full and Final Release has not been induced by reason of any representation or warranty of any nature or kind whatever, that its terms are fully understood, that it is given voluntarily and under no compulsion or duress for the purpose of making a full and final compromise, adjustment and settlement of the cost claim in the attached Notice of Application dated November 22, 2004, and that there are no other conditions, representations or agreements, express or implied, affecting the said Full and Final Release except as contained herein.

AND SIDHU HEREBY CONVENANTS AND AGREES that the terms and conditions of this settlement are confidential and shall not be discussed with nor disclosed to anyone not a party to this settlement, except for the purpose of receiving or securing financial, legal or other professional advice or as may by law be compelled.

IN WITNESS WHEREOF SIDHU has set his hand and seal to this Full and Final Release this 12th day of June, 2006.

SIGNED, SEALED AND DELIVERED )

in the presence of )

________________________________ ) Avtar Sidhu

Witness

SUPERIOR COURT OF JUSTICE

CENTRAL WEST REGION

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

-and-

AVTAR SIDHU

Applicant

NOTICE OF APPLICATION

TAKE NOTICE that an application will be made on behalf of the Applicant on the 1st day of December, 2004, before the Honourable Mr. Justice C. Hill, at the Superior Court of Justice - Central West Region, 7750 Hurontario Street West, Brampton, at 10:00 o’clock in the forenoon or so soon thereafter as the application can be heard for an order granting costs in favour of the Applicant for legal expenses incurred from the time of the laying of the charge to the hearing of this application.

THE GROUNDS FOR THE APPLICATION ARE:

1. The Applicant’s right to trial within a reasonable period of time as guaranteed by s. 11(b) of the Charter was infringed; and

2. The Applicant’s rights under s. 14 of the Charter were violated by the failure of the Crown to provide adequate interpretation during the proceedings; and

3. Such further and other grounds as counsel may advise and this Honourable Court may permit.

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES UPON THE FOLLOWING:

1. The Application Record; and

2. Transcripts of the proceedings; and

3. The Record of Proceedings before this Court; and

4. The Factum of the Applicant (to be filed).

[12] There is a dispute between the parties as to whether there was any discussion among the lawyers as to what other claim or claims Mr. Sidhu might pursue, that went beyond his claim for costs.

[13] Counsel for Mr. Sidhu sought to examine Mr. Pearson and Mr. Da Silva as witnesses on the motion that is now before me. A motion was brought by counsel for the Plaintiff requesting an order requiring such examinations. On January 29, 2010, R.D. Gordon J. granted such an order, requiring Messrs. Pearson and Da Silva to be examined. On May 26, 2010, van Rensburg J. refused leave to appeal to the Divisional Court from Gordon J.’s order.

[14] Mr. Pearson and Mr. Da Silva were both examined on September 14, 2010. Counsel for Mr. Sidhu was Michael Girard, and counsel for the Crown was John Zarudny. Examination in-chief of each witness was conducted by Mr. Girard, and “re-examination” (actually cross-examination) was conducted by Mr. Zarudny.

[15] On Mr. Pearson’s examination, the following questions were asked by Mr. Zarudny, and the following answers given:

321. Q. With respect to your role in the criminal matter, from the time of the commencement of the costs application and the settlement of that application, officially in court on June the 9th of 2006, did you understand that through your involvement in the costs application, the Crown had been officially served with notice of a separate civil claim by Mr. Sidhu?

322. A. No.

323. Q. And did you ever make any assessment of any such civil claim by Mr. Sidhu?

A. No.

[16] On Mr. Da Silva’s examination, the following questions were asked by Mr. Zarudny and the following answers given:

337. Q. You were talking about the fact that you were not aware of any other claims by Mr. Sidhu other than, the costs and then you mentioned that you might have alerted others if you had. What can you say about...did Mr. French ever say to you that there was any claim other than the cost claim?

A. No, I was aware of no other claim.

338. Q. Did Mr. Moustacalis ever say to you there was any claim other than the cost claim?

A. I never spoke to Mr. Moustacalis.

339. Q. So in any of your travels through this matter, was there ever any document that told you or suggested to you there was a claim other than the cost claim?

A. No.

340. Q. And nothing like that has been put to you here today?

A. No.

[17] On October 27, 2011, more than a year after the examinations of Messrs. Pearson and Da Silva, an affidavit was sworn by Paul French. Paragraph 7 of his affidavit reads as follows:

7. I advised Mr. Pearson and Mr. Da Silva that the form of Release was not acceptable as Mr. Sidhu might be bringing a claim against the Crown for the damages he sustained, other than the costs of the trial and appeal.

[18] As noted earlier, this action was commenced as an intended class proceeding. A Notice of Action was issued on November 16, 2007, and a Statement of Claim was filed on December 14, 2007. The Crown was never served with the original Statement of Claim.

[19] The Notice of Action and an Amended Statement of Claim were served on the Crown Law Office - Civil on April 14, 2008.

[20] On April 16, 2008, Dennis Brown, Q.C., General Counsel at the Crown Law Office - Civil, wrote to counsel for the Plaintiff and advised him that s. 7 of the Proceedings Against the Crown Act requires that a party serve notice on the Crown at least 60 days prior to the issuance of a Statement of Claim. Mr. Brown indicated that the Crown had no record of any such notice, and requested that if such notice was given, he asked that he be provided with a copy together with details as to where and when it was served.

[21] On May 5, 2008, Mr. Brown received a letter from the Plaintiff’s counsel, Mr. Girard. Mr. Girard, without conceding that notice was required, provided a list of documents which Mr. Girard said evidenced notice of the Plaintiff’s damages and losses. Those documents were an Application Record in the criminal matter served on the Crown on or about June 1, 2006; the factum in that Application served on the Crown on or about June 2, 2006; and the revised Release that I have already discussed.

[22] Further correspondence ensued, in which the Crown ultimately advised Mr. Girard that this motion would be brought.

[23] The motion was first discussed in May, 2008. It was argued on November 29th, 2012, over four years later.

Submissions

[24] Mr. Glick, counsel for the Crown, submits that an order should be granted dismissing the Plaintiff’s action. Indeed, Mr. Glick submits that the action is a nullity, since delivery of the required notice under s. 7 of the Proceedings Against the Crown Act is a mandatory pre-condition to the commencement of the action.

[25] Mr. Glick submits that the notice of claim must be in writing and must contain sufficient particulars to identify the occasion out of which the claim arose. Failure to deliver such a notice renders the action a nullity.

[26] Mr. Glick submits that adequate notice entails two distinct requirements:

(a) The notice must contain sufficient particulars to allow the Crown to identify the source of the problem, so that it can be investigated;

(b) The notice must entail an element of complaint in order to allow the Crown to avoid litigation or to have an early opportunity to prepare a defence.

[27] Mr. Glick submits that the Plaintiff failed to provide the Crown with the requisite notice. He submits that none of the documents relied on by the Plaintiff, namely, the Application Record, his Factum, and the Revised Release, qualify as a notice of the claim reflected in the Notice of Action and the Statement of Claim. Even if, individually or collectively, they could be considered to be notice of some kind, they do not provide the Crown with notice of a conflict which reasonably could be anticipated to result in litigation.

[28] Mr. Glick also submits that even if these documents can be construed as notice of Mr. Sidhu’s claim, they cannot be construed to be notice of any of the circumstances surrounding the potential claims of whatever number of people constitute the class of persons sought to be represented in the class proceeding.

[29] Mr. Glick particularly relies on Pfeiffer v. Ontario, [2007] O.J. No. 5487 (S.C.J.); affirmed 2008 ONCA 15, [2008] O.J. No. 55 (C.A.); Beardsley v. Ontario Provincial Police, 2001 CanLII 8621 (ON CA), [2001] O.J. No. 4574 (C.A.); Persaud v. Ontario (Attorney General), [2008] O.J. No. 2953 (S.C.J.); E.P. v. Ontario, [2004] O.J. No. 3039 (S.C.J.); Leclair v. Ontario (Attorney General), [2008] O.J. No. 2701 (Master); affirmed [2009] O.J. No. 2417 (C.A.); Baltrusaitis v. Ontario, [2011] O.J. No. 351 (S.C.J.); Moore v. Ontario (Provincial Police), [2008] O.J. No. 562 (S.C.J.); and Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 262 D.L.R (4th) 222 (Ont. C.A.).

[30] Mr. Dewart, counsel for the Plaintiff, submits that the Crown’s motion should be dismissed. He submits that adequate notice was given to satisfy the requirements of s. 7(1) of the Proceedings Against the Crown Act.

[31] Mr. Dewart submits that the notice need not take any particular form, and the surrounding circumstances can be considered in order to give context to the notice. Those surrounding circumstances can include other documents exchanged, and verbal discussions between the parties.

[32] Mr. Dewart points out that the Release signed by Mr. Sidhu, and delivered to the Crown, specifically leaves open, and does not release the Crown, from “any claims for any loss or damage he may have suffered other than his claim for costs”. On its face, this clearly signals to the Crown that there may be litigation that goes beyond the claim for costs.

[33] Furthermore, the Crown was clearly on notice that Mr. Sidhu had a complaint about the adequacy of the interpretation services that were provided to him during his criminal trial, and that the violation of his Charter rights in that regard resulted in loss or damage to him. This was apparent from the proceedings before Justice Hill, that were originated through a Notice of Application and expanded upon through his Factum.

[34] Mr. Dewart submits that the Crown’s lawyers were advised by Mr. French, as he then was, that Mr. Sidhu might be bringing a claim against the Crown for the damages he sustained. While Mr. Dewart acknowledges that there is a dispute as to whether Mr. French made this assertion to the Crown lawyers, he submits that Mr. French’s evidence should be preferred. He points out that the relevant evidence from the Crown lawyers was elicited by one of their colleagues on what he characterizes as re-examination, and he submits that that evidence should be discounted.

[35] Mr. Dewart points out that this motion is brought under Rule 21.01(1), and before an action can be dismissed under that Rule it must be plain and obvious that the claim cannot succeed.

[36] Mr. Dewart submits that I should not accept the Crown’s argument that the notice, even if valid as it relates to Mr. Sidhu’s claim, is not valid as it relates to the other members of the potential class. He submits that while the question of commonality as it relates to the claims of the other class members is clearly a live issue, it is not relevant at this stage of the proceedings. All that is relevant at this stage of the proceedings is whether Mr. Sidhu has a cause of action, and any issue as to the potential claims of the other class members and their commonality will be considered at the certification stage.

[37] Mr. Dewart particularly relies on Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959; Harris v. GlaxoSmithKline Inc. (2010), 2010 ONSC 2326, 101 O.R. (3d) 665 (C.A.); Mattick v. Ontario (Minister of Health) (2001), 2001 CanLII 24086 (ON CA), 52 O.R. (3d) 221 (C.A.); Latta v. Ontario (2002), 2002 CanLII 45117 (ON CA), 62 O.R. (3d) 7 (C.A.); and Creative Stock Photography Agency Ltd. v. Ontario (Minister of Tourism, Culture and Recreation), [2011] O.J. No. 3915 (S.C.J.).

Analysis

[38] Section 7(1) of the Proceedings Against the Crown Act provides as follows:

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.

[39] It is clear, in my view, that this provision constitutes a jurisdictional hurdle that must be overcome before this Court can entertain an action against the Crown. It has been described as a “necessary pre-condition” to the right to sue the Crown: see Beardsley, supra, para. 10, and it has been stated that failure to give the required notice renders an action against the Crown a nullity: see Miguna, supra, at paras. 7 and 8; and see Olesiuk v. LeCompte (1991), 1991 CanLII 7313 (ON SC), 2 O.R. (3d) 473 (Gen. Div.).

[40] As is the case with respect to any matter involving jurisdiction, the onus is on the Plaintiff to establish that the Court has jurisdiction to entertain his or her claim: see Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] S.C.J. No. 17; and Dovigi v. Razi, 2012 ONSC 1199, [2012] O.J. No. 897 (S.C.J.), at paras. 26 and 27 (reversed on other grounds, 2012 ONCA 361).

[41] As is the case with respect to any jurisdictional determination, any order I make will be final: see M.J. Jones Inc. v. Kingsway General Insurance Co. (2003), 2003 CanLII 37356 (ON CA), 68 O.R. (3d) 131 (C.A.); Abbot v. Collins (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99 (C.A.); and Manos Foods International Inc. v. Coca-Cola Ltd., 1999 CanLII 3022 (ON CA), [1999] O.J. No. 3623 (C.A.).

[42] I disagree with Mr. Dewart that this case is governed by the normal test that arises under Rule 21.01(1), namely, whether it is plain and obvious that the action cannot succeed. As noted by the Court of Appeal in Beardsley, at para. 10, proper notice is a necessary pre-condition to the right to sue the Crown. Evidence as to whether notice was or was not properly given is admissible, and indeed necessary. As is the case with respect to any question of jurisdiction, the Court either has jurisdiction or it does not. In this case, if notice was not given, the action is a nullity. It is appropriate, and necessary, for the Court to determine that issue first, and correctly.

[43] The fundamental question is whether notice as required by s. 7(1) of the Act has been given.

[44] There is no dispute that the notice must be in writing. Counsel for the Plaintiff submits that evidence of surrounding circumstances, including verbal communications, can be admitted in order to give context to the notice itself. Counsel further submits that such evidence can, in fact, provide details that are not included within the notice itself, including details of what the claim encompasses. Mr. Dewart submits that this logically flows from the decisions of the Court of Appeal in Mattick and Latta, supra.

[45] While I agree that evidence of the surrounding circumstances, including some limited evidence of verbal communications, can be utilized to give context to the notice, I do not agree that such evidence, particularly of verbal communications, can substitute for what is required to be in the notice itself. I see nothing in Mattick or Latta, supra, that says otherwise.

[46] Section 7(1) requires service on the Crown of a notice of the claim “containing sufficient particulars to identify the occasion out of which the claim arose”. It is the notice itself that must contain the particulars. If the legislature had intended that something other than the notice could contain the particulars, it would have been a simple matter for the legislature to have said so.

[47] This case illustrates the danger of relying on something other than the notice to specify the particulars of the claim. Verbal communications may occur among a number of different people. As in this case, there is likely to be a dispute as to what the communications were. For the sake of certainty, it is important that the particulars be set out in the notice itself. The Crown should not have to canvass a number of different Crown employees, potentially in the hundreds, to find out if some verbal communication might have been made that sets out the nature of the Plaintiff’s claim.

[48] Mr. Dewart submits that the written notice need not be confined to one document. I agree. However, the documents collectively must make it clear that the particulars set out relate to, and identify, a claim that may be made against the Crown that ultimately is pursued in the civil action that is commenced. That is clear, in my view, from the decision of the Court of Appeal in Beardsley, supra. In that case, the Court held that a notice that identified conduct of a police officer for disciplinary purposes could not be considered a notice of a potential civil claim against the Crown.

[49] In the case before me, the Plaintiff submits that the Release he signed, which left open the possibility of making a claim against the Crown, together with his application before Justice Hill, and his corresponding Factum, identified the circumstances that give rise to the claim now being pursued in this action. With respect, I disagree.

[50] The Application and the accompanying Factum were in support of the claim, in the criminal case, that Mr. Sidhu’s Charter rights had been violated. As in Beardsley, they were submitted for an entirely different purpose than putting the Crown on notice of a potential civil claim. What was pursued was a remedy under s. 24(1) of the Charter in the context of the criminal case.

[51] The Release itself does nothing more than provide a release for the specific relief that was ordered by Hill J., namely, the costs of Mr. Sidhu’s criminal case that resulted in a mistrial. The remedy awarded was costs. Once those costs were settled, the Release that was signed was in respect to that remedy only.

[52] While the Release left open the possibility that Mr. Sidhu might maintain a claim of some sort against the Crown, it was entirely speculative as to what that claim might be. A number of hypothetical possibilities could come to mind. Mr. Da Silva, in his evidence, thought there was a possibility that the Crown could be sued for malicious prosecution.

[53] The application before Hill J., in the context of a criminal case, sought a remedy in the context of the criminal case itself. If a remedy were granted in the criminal case, a number of hypothetical possibilities regarding a further potential civil action could exist. However, any such potential civil proceedings were entirely hypothetical. As noted, no particulars of any potential claim were specified.

[54] As noted by the Court of Appeal in Leclair, supra, at para. 1, in affirming the decision of Master Beaudoin, “the Crown should not be left to guess what possible liability it might have in situations such as these.” In my view, on the Plaintiff’s best case here, assuming that the requisite notice could be a combination of the Release, the Application before Hill J., and Mr. Sidhu’s Factum, the Crown would be left to guess what possible liability it might have.

[55] For these reasons, in my view, the Plaintiff has not complied with s. 7(1) of the Proceedings Against the Crown Act. Thus, the action must be dismissed.

[56] In view of this conclusion, I need not address the Crown’s alternative submission that the notice does not identify the potential claims of class members other than Mr. Sidhu, and would thus be deficient in the context of a class proceeding.

Disposition

[57] For the foregoing reasons, this action is dismissed.

[58] I will entertain written submissions with respect to costs, not to exceed three pages, together with a costs outline. Counsel for the Crown shall have 5 days to file submissions, and counsel for Mr. Sidhu shall have an additional 5 days. Counsel for the Crown shall have 3 days to reply.

GRAY J.

Released: December 7, 2012

COURT FILE NO.: CV-07-03708-CP

DATE: 2012-12-07

ONTARIO

SUPERIOR COURT OF JUSTICE

AVTAR SIDHU

– and –

HER MAJESTY THE QUEEN, IN RIGHT OF THE GOVERNMENT OF ONTARIO, AS REPRESENTED BY THE MINISTRY OF THE ATTORNEY GENERAL

REASONS FOR JUDGMENT

GRAY J.

Released: December 7, 2012