2013 ONSC 2143

COURT FILE NO.: CV-12-53385

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARK GRADY

Plaintiff

– and –

THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERRVICES), ONTARIO PUBLIC SERVICE EMPLOYEES UNION and ROBERT RANGER

Defendants

John H. Yach, for the Plaintiff/Responding party

Paul Meier, Heather McIvor, for the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

HEARD: April 8th, 2013

DECISION ON MOTION

McNamara j.

[1] On this motion the Defendant Ministry seeks an order striking the Statement of Claim on the basis that the Plaintiff failed to provide the Crown with notice of his intention to bring the claim prior to its commencement as required by s. 7(1) of the Proceedings Against The Crown Act, R.S.O. 1990 c. P.27 . The motion is brought pursuant to rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] This is the second motion I have heard in this litigation. In a decision dated February 11th, 2013 I ruled on certain jurisdictional issues. The general background facts are set out therein.

[3] There are a number of facts that are central to the issues on this motion.

[4] On January 18th, 2010 the Grievance Settlement Board (GSB), the statutory tribunal empowered under the Crown Employees Collective Bargaining Act, S.O. 1993 c. 38 to hear grievances under the Collective Agreement, issued a decision. It contained a number of findings of fact against the Plaintiff Mark Grady.

[5] The Plaintiff subsequently filed an application for judicial review of that decision on August 4th, 2010. The Defendant Ministry is named in the application as a Respondent. In it, amongst other things, the Plaintiff asserted:

• that the Ministry failed to call the Plaintiff as a witness at the GSB hearings, nor was he given any opportunity to exercise his rights to participate;

• during the course of the proceedings, the Ministry repeatedly told Grady that it was the Ministry, and its conduct, that was the subject matter of the proceedings, not the conduct of Grady;

• in May 2010 Grady demanded that the Ministry seek judicial review of the decision, and instead the Ministry in July 2010 terminated his employment after 25 years of service.

[6] Subsequent to the service of the application for judicial review the Ministry brought a motion seeking an order quashing the application. In response the Plaintiff delivered a lengthy affidavit dated September 16th, 2011. It reiterated the factual assertions in his notice of application and provided further facts including:

• although the Ministry claimed that Grady’s dismissal from employment was “not for cause”, it was patently obvious that Grady was dismissed as a direct result of the findings contained in the GSB decision since, as of that date, Grady’s performance reviews had been excellent;

• Grady had been unable to secure full time employment that paid more than half of his previous salary with the Ministry;

• Grady’s ability to earn a living had been forever compromised by reason of the release of the decision;

• on January 19th, 2010 Grady had consulted with the Ministry and complained about the GSB decision and had asked the Ministry about his future, particularly since the Ministry had failed to protect Grady’s personal interests and stated that there would be irreparable damage to his reputation and integrity;

• during the hearings, the Ministry had told Grady that he was blowing things out of proportion and that the proceedings were focussed on the Ministry and not Grady.

[7] It is also conceded that on September 26th, 2011 at the conclusion of cross examinations on the affidavit filed in respect of the judicial review application, the Plaintiff’s counsel orally advised counsel for the Ministry that Grady would be bringing a civil action against the Crown based on the alleged factual circumstances as contained in his notice and affidavit.

[8] The Statement of Claim in this matter was issued on January 17th, 2012.

The position of the parties

[9] It is the position of the Defendant Ministry that s. 7(1) of the Act requires the Plaintiff to provide the Crown with notice containing sufficient particulars to indentify the occasion out of which the claim arose at least 60 days before the commencement of any action, and that did not occur here. They also submit that the notice must be in writing. The Defendant argues further that neither the application for judicial review nor the following affidavit fulfill the notice requirements under the Act. They submit that they are part of an administrative law process and do not in any way provide proper notice to the Crown of a civil claim. They further submit that the failure to comply with the notice requirements renders the Statement of Claim a nullity and the action should be dismissed.

[10] The Plaintiff’s position is straightforward. He submits that the service of the notice of application and/or the follow-up affidavit were sufficient notice within the wording of the section, and that was given further context by the hallway conversation on September 26th, 2011. The Statement of Claim was issued more than 60 days subsequent to all of that, and in consequence the section has been complied with.

Analysis

[11] S. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27 provides as follows:

Notice of claim

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.

[12] The case law that has developed under this section makes it clear there are two elements to the notice requirement under this section. MacPherson J.A. of the Ontario Court of Appeal put it as follows in the often cited decision of Latta v. Ontario, , 2002 45117 (ON CA):

[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.

[13] It is my view that there is little doubt that the first of the requirements has been complied with. The notice of action and following affidavit contain sufficient particulars to allow the Crown to indemnify the source of the “potential problem” so that it can investigate.

[14] The second element is, in my view, the real issue here, and the one that was most forcefully argued by counsel for the Applicant. Specifically does the documentation sufficiently inform the Crown of a potential conflict that could reasonably be expected to result in litigation against the Crown.

[15] In my view, it does.

[16] Both documents, as set forth earlier in this decision, clearly indentify the background history of this matter and further, having regard to the actions complained of on the part of the Crown, it would be reasonable to anticipate litigation against the Crown if the complaints made were not satisfied. The contents of both documents are full of complaint, and it is clear that the Plaintiff is suggesting he holds the Defendant Ministry accountable for actions that he alleges led to his dismissal and inability to find full time comparable employment. Further he complains that the Ministry made representations to him that were untrue, and they were relied on to the Plaintiff’s detriment.

[17] As Goudge J.A. of the Ontario Court of Appeal stated in Mattick Estate v. Ontario, (Minister of Health), 2001 24086 (ON CA), at paras. 17 and 18

[17] 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.

[18] 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 a 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.

[18] In my view the documentation in this matter falls squarely within that wording. They communicate a complaint which, if not satisfied, could reasonably be anticipated to result in litigation against the Crown. Sufficient particulars are provided to identify the occasion in question so that the Crown could investigate.

[19] Further there is the conversation of September 26th, 2011 between the same counsel who have appeared on this matter throughout. In a recent decision of this court in Sidhu v. Ontario (Attorney General), 2012 ONSC 6993, [2012] O.J. No. 5846 (S.C.J.) D.K. Gray J. commented at para. 45 as follows:

[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.

[20] I accept that verbal communications cannot substitute for what is required to be in the notice itself, but can be used to give context to it. Specifically counsel for the Plaintiff confirmed in the conversation that he would be bringing a civil claim further to the particulars and complaints outlined in the documentation.

[21] I would add that in the Sidhu decision Justice Gray came to a different decision than I have in this case. He found that the documentary evidence before him did not give sufficient notice of the particulars of the intended action, while I have found to the opposite effect. Further he found that there was a very serious dispute as to whether or not the alleged contextual verbal communication ever took place. That is not the situation in this case.

[22] In summary then, I am satisfied that the documentation relied upon and the contextual conversation were sufficient to fulfill the essential purpose of the notice period under the Act, namely to give the Crown in excess of 60 days to investigate prior to the issuance of a claim.

[23] The motion is dismissed.

[24] If the parties cannot agree on costs, I will receive brief written submissions.

McNamara J.

Released: April 18, 2013

COURT FILE NO.: 12-53385

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARK GRADY

Plaintiff

– and –

THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERRVICES), ONTATRIO PUBLIC SERVICE EMPLOYEES UNION and ROBERT RANGER

Defendants

REASONS FOR JUDGMENT

McNamara J.

Released: April 18, 2013