West v. West et al.
[Indexed as: West v. West]
Ontario Reports
Ontario Superior Court of Justice,
Shaughnessy J.
January 10, 2013
113 O.R. (3d) 632 | 2013 ONSC 247
Case Summary
Crown — Actions against Crown — Notice — Plaintiff injured on July 2, 2010 when wooden swing set on property owned by Ministry of Transportation ("MOT") collapsed — Letter to plaintiff from counsel for MOT stating that his client attempted to inspect swing on day after accident but was unable to do so as swing had been destroyed — MOT moving for summary judgment dismissing claims against it based on failure to give notice of claim within ten days after claim arose as required by s. 7(3) of Proceedings Against the Crown Act — Motion dismissed — Adverse inference drawn from MOT's failure to provide evidence concerning what information it received on July 2 or 3, 2010 and what investigation it carried out on July 3 — MOT receiving notice of claim as of July 3, 2010 — Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(3).
The plaintiff's mother resided on property owned by the Ministry of Transportation ("MOT"). The plaintiff was injured on July 2, 2010 when a wooden swing set on the property collapsed. Counsel for the plaintiff sent a letter to the MOT on July 22, 2010 giving notice of the plaintiff's intention to claim damages. On August 19, 2010, counsel for the MOT and the Ministry of Energy and Infrastructure ("MEI") replied that "Our client attempted to inspect the swing the day after the personal injury was sustained, but could not do so as the swing had been destroyed". The MOT and the MEI brought a motion for summary judgment dismissing the action as against them on the basis that the claims against them were statute-barred by s. 7(3) of the Proceedings Against the Crown Act for failure to provide notice of the claim within ten days after the claim arose. [page633]
Held, the motion should be dismissed.
The legislative purpose of s. 7(3) of the Act is to allow the Crown to investigate and to gather sufficient information to permit it to resolve a complaint or to properly prepare a defence to litigation. There is no prescribed form of notice under s. 7(3). There was no affidavit on this motion from a representative of the MOT or its property manager concerning what information it received on July 2-3, 2010, or what investigation it carried out as a result. An adverse inference was drawn that the information obtained and the investigation carried out did not support the moving parties' position in relation to the contested facts of this motion. The moving parties received notice of the claim as of July 3, 2010.
Cases referred to
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.); Mattick v. Ontario (Ministry of Health) (2001), 2001 24086 (ON CA), 52 O.R. (3d) 221, [2001] O.J. No. 21, 195 D.L.R. (4th) 540, 139 O.A.C. 149, 8 C.P.C. (5th) 39, 102 A.C.W.S. (3d) 212 (C.A.), consd
Other cases referred to
Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764, 286 O.A.C. 3, 97 C.C.E.L. (3d) 25, 14 C.P.C. (7th) 242, 13 R.P.R. (5th) 167, 211 A.C.W.S. (3d) 845, 93 B.L.R. (4th) 1, 10 C.L.R. (4th) 17; Jos. Zuliani Ltd. v. Windsor (City) (1973), 1973 671 (ON SC), 2 O.R. (2d) 598, [1973] O.J. No. 2288 (H.C.J.); Myshrall v. Toronto (City) (2001), 2001 24165 (ON CA), 52 O.R. (3d) 686, [2001] O.J. No. 481, 196 D.L.R. (4th) 680, 141 O.A.C. 331, 4 C.P.C. (5th) 224, 18 M.P.L.R. (3d) 49, 103 A.C.W.S. (3d) 196 (C.A.)
Statutes referred to
Occupiers' Liability Act, R.S.O. 1990, c. O.2
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 5 [as am.], (1)(c), 7, (1), (3)
Residential Tenancies Act, 2006, S.O. 2006, c. 17 [as am.]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), 1.04(1.1), 1.04(2), 1.05, 20.02(1), 20.02(2), 20.04(1)
MOTION by the defendants for summary judgment.
Roger Horst, for Her Majesty the Queen in Right of the Province of Ontario, applicants.
Alastair Simeson, for Tanya West, respondent.
[1] SHAUGHNESSY J.: — Her Majesty the Queen in Right of the Province of Ontario as represented by the Ministry of Energy and Infrastructure ("MEI") and Her Majesty the Queen in Right of the Province of Ontario as represented by the Ministry of Transportation for the Province of Ontario ("MOT") seek an order dismissing this action as against these defendants pursuant to rule 20.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [page634]
Background Information
[2] The applicant served a request to admit and the respondent replied with an admission that the following facts are true:
(a) The defendant Sherry West resides on property located at [address omitted] in the Village of Orono in the Municipality of Clarington in the Regional Municipality of Durham.
(b) The property is owned by the MOT.
(c) The plaintiff Tanya West is the daughter of the defendant Sherry West.
(d) On July 2, 2010, while on the property the plaintiff used a wooden swing set which collapsed, causing the plaintiff to fall to the ground, sustaining personal injuries and to seek medical treatment.
(e) On July 22, 2010, counsel for the plaintiff sent a letter to MOT giving notice of the plaintiff's intention to claim damages for her injuries sustained as a result of the fall.
(f) On August 19, 2010, counsel then representing MOT and MEI acknowledged receipt of the notice letter dated July 22, 2010 from counsel for the plaintiff.
[3] The issue on this motion is whether or not this claim as against these defendants is statute-barred by s. 7(3) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 for failure to provide notice of this claim within ten days after the claim arose.
The Applicable Statute
[4] The Proceedings Against the Crown Act, s. 7(3) provides:
7(3) No proceeding shall be brought against the Crown under clause 5(1)(c) unless notice required by subsection (1) is served on the Crown within ten days after the claim arose.
[5] Section 5(1)(c) of the Act refers to claims against the Crown "in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property". Section 7(1) of the Act requires that the notice of claim served on the Crown contain "sufficient particulars to identify the occasion out of which the claim arose". The combined effect of the relevant provisions of ss. 5 and 7 of the Act is that no claim can proceed unless notice is given within ten days of the incident. [page635]
Position of the Parties
[6] The position of the applicant is that this proceeding is a nullity as against these defendants as the notice of claim was served too late on the Crown. The plaintiff's fall occurred on July 2, 2010 and the Crown was not provided with written notice until July 22, 2010.
[7] The position of the respondent is that the Del Management Solutions Inc. is the property manager for the Province of Ontario in relation to the subject property and their solicitors responded to the July 22, 2010 notice of claim letter by correspondence dated August 19, 2010. It is submitted that the contents of the August 19, 2010 correspondence indicates that the property manager was made aware of the occurrence and "attempted to inspect the swing the day after the personal injury was sustained, but could not do so as the swing had been destroyed". Therefore, it is the position of the respondent that if it is found that the notice of claim has been delayed pursuant to the requirements of s. 7(3) of the Act, the action ought not to be dismissed as the Crown has not been prejudiced by the delay in notice.
[8] Alternatively, it is the position of the respondent that based on the reasoning in Combined Air Mechanical Services Inc. v. Flesch (2011), 2011 ONCA 764, 108 O.R. (3d) 1, [2011] O.J. No. 5431 (C.A.) that it is premature to bring a motion for summary judgment before discoveries have taken place. It is submitted that the motion should be stayed or dismissed as the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery.
Analysis
[9] The July 22, 2010 notice of claim sent by counsel for the plaintiff was addressed to the Ministry of Transportation in Downsview, Ontario. The "Tenancy Agreement" in relation to the subject property filed by the applicant in support of this motion indicates the following:
-- The Tenancy Agreement is dated June 24, 2010.
The "landlord" is Her Majesty the Queen in the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario.
-- The "Tenant" is Sherry West.
The Ontario Realty Corporation, acting as agent on behalf of Her Majesty The Queen in right of Ontario as represented by [page636] the Minister of Energy and Infrastructure, is a signatory to the Tenancy Agreement.
The Tenancy Agreement provides that it is made pursuant to the provisions of the Residential Tenancies Act, 2006, S.O. 2006, c. 17.
The Tenancy Agreement states that "any notice provided for in this Tenancy Agreement or otherwise shall be in writing . . . and if intended for the Landlord shall be in writing and mailed to the Landlord at:
DEL Management Solutions Inc.
310 Highway 7
R.R. # 1, Green River
Locust Hill, ON L0H 1J0
Phone Number: 905-472-7300
Fax Number: 905-472-2784
[10] There is no dispute concerning the adequacy of the particulars provided in the notice of claim letter dated July 22, 2010.
[11] The August 19, 2010 letter is signed by Mr. Angelo D'Ascanio of the law firm of Cohen Highley. In this correspondence, it is indicated that their law firm act for "Del Management Solutions Inc. ("DMS"), the property manager responsible for the Leased Property on behalf of the above two referenced Ontario Ministries". The letter further states that counsel for the plaintiff's letter of July 22, 2010 addressed to the Ministry of Transportation, alleging that Tanya West sustained ankle injuries as a result of a fall on the leased property, has been forwarded to DMS and from DMS to the law firm of Cohen Highley for response. There is a denial of liability in the correspondence. The last paragraph of the correspondence states:
Our information is that your client's injuries were sustained from a fall from a swing on the Leased Property. Our client attempted to inspect the swing the day after the personal injury was sustained, but could not do so as the swing had been destroyed
(Emphasis added)
[12] Both counsel in their submissions referenced the decision of the Ontario Court of Appeal in Mattick v. Ontario (Ministry of Health) (2001), 2001 24086 (ON CA), 52 O.R. (3d) 221, [2001] O.J. No. 21 (C.A.). In the Mattick case, the issue was whether the form of the notice provided sufficient information to comply with the Act. The court found that the notice did provide sufficient information and therefore complied with the Act. In the Mattick decision, the [page637] court stated (para. 10) that the appellants did not contest the proposition that failure to comply with s. 7(1) of the Act renders the action a nullity and the court references Jos. Zuliani Ltd. v. Windsor (City) (1973), 1973 671 (ON SC), 2 O.R. (2d) 598, [1973] O.J. No. 2288 (H.C.J.). Counsel for the applicant on this motion states that based on this reasoning the failure to give notice of the claim within ten days of the occurrence pursuant to s. 7(3) of the Act renders this proceeding a nullity.
[13] Justice Goudge's analysis in Mattick is helpful in relation the "statutory language used and the legislative purpose being addressed" in relation to s. 7 of the Act. At para. 14, Justice Goudge states:
While the Act displaced the immunity from suit that the royal prerogative accorded to the Crown at common law, it did so more than 35 years ago. This statutory right to sue the Crown has thus become an accepted part of our legal landscape. 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 in this case to the statutory language used and the legislative purpose being addressed.
[14] While in the Mattick case the Court of Appeal was reviewing the statutory language and legislative purpose of s. 7(1) of the Act, nevertheless I find that the legislative purpose of s. 7(1) and s. 7(3) are similar. I find that the legislative purpose of s. 7(3) is to allow the Crown to investigate and "to gather sufficient information to permit it to resolve the complaint to the mutual satisfaction of itself and the complainant in advance of any litigation, and failing that, to allow the Crown to properly prepare a defence to the litigation which may result" (Mattick, para. 15).
[15] In Latta v. Ontario (2002), 2002 45117 (ON CA), 62 O.R. (3d) 7, [2002] O.J. No. 4106 (C.A.), the Ontario Court of Appeal considered two issues: (1) the relationship between an action against the Crown under the Occupier's Liability Act, R.S.O. 1990, c. O.2 and the Proceedings Against the Crown Act; and (2) the content of an adequate notice under the PACA, especially in light of the decision in the Mattick case.
[16] Justice Macpherson in Latta, at para. 17, states that Justice Goudge in Mattick (para. 13, above) correctly "described the proper approach to interpreting the PACA". Justice Macpherson further states that there is no prescribed form of notice, and no guidelines with respect to service relating to s. 7(3) and s. 7(1) of the PACA.
[17] In Latta, Justice Macpherson notes that a month after the Mattick case the Court of Appeal released its decision in [page638] Myshrall v. Toronto (City) (2001), 2001 24165 (ON CA), 52 O.R. (3d) 686, [2001] O.J. No. 481 (C.A.). While that case involved the notice (seven days) required under the Municipal Act before an individual can sue for injuries caused by the city's failure to keep its sidewalks "in repair", nevertheless the discussion of Laskin J.A. concerning the purposes of the notice provision is cogent and relevant to the issue in the present case (para. 12 Myshrall):
Whether a notice complies with s. 284(5) should be considered in light of the purposes of the section. These purposes are to give the municipality a reasonable opportunity to investigate the accident and take any necessary corrective action to prevent a similar occurrence. As long as a claimant's notice gives enough information about the claim to permit the municipality to achieve these purposes, it will comply with s. 284(5). Moreover, the courts should read the notice generously, bearing in mind that the time to deliver it is brief and that, in many cases, it will be prepared by a person without legal training.
[18] It is noted in Latta (para. 35) that the essential purpose of the notice period under the PACA is "to give the Crown time to investigate the accident".
[19] There has been no evidence placed before this court to explain how the Crown through its property manager DEL Management Solutions Inc. received notice of an injury sustained by Tanya West on July 2, 2010, and had someone attend on the day after the incident to investigate. As counsel for the applicant, Mr. Horst, stated, it must be reasonably assumed that the mother of the plaintiff, Sherry West, who was the tenant under the lease agreement, must have reported the occurrence.
[20] Rule 20.02(1) provides that on the hearing of a motion for summary judgment the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having knowledge of contested facts. Accordingly, while counsel for the applicant suggests that the court can reasonably assume certain facts, this court prefers not to assume any facts, particularly when those facts directly relate to the issue in dispute. The applicant has chosen not to deliver an affidavit from either a representative of the MOT or DEL Management Solutions Inc. concerning what information it received on July 2-3, 2010, or what investigation it carried out as a result of the information received. I draw an adverse inference that the information obtained and the investigation carried out does not support the defendant's position in relation to the contested facts on this motion.
[21] Rule 20.02(2) provides that on a motion for summary judgment a responding party may not rest solely on the allegations in the party's pleadings, but must set out in affidavit material or other evidence, specific facts showing that there is a [page639] genuine issue requiring a trial. Counsel for the plaintiff introduced the August 19, 2010 letter from Mr. D'Ascanio of Cohen Highley, which is quite relevant to the contested facts on this motion. However, there is no affidavit from the plaintiff providing her information and belief as it pertains to the notice issue, and/or that there is a genuine issue for trial. However, I recognize that the plaintiff's mother, Sherry West, is a party defendant and could not be expected to provide an affidavit in support of the plaintiff's position on this motion or provide information relevant to the contested facts. Sherry West can be examined for discovery in the usual course.
Conclusion
[22] Applying the principles to the facts, I find that the named defendants received notice of the claim and proceeded to investigate the occurrence as of July 3, 2010. What information they obtained and the manner in which it was received has not been disclosed by the applicants on this motion, other than the information detailed in the correspondence dated August 19, 2010 as produced by the respondent. The information available to these defendants could have been disclosed, and as indicated, I draw an adverse inference as noted above. Accordingly, I find that the application of the normal principles of statutory interpretation, in particular considering the legislative purpose of s. 7(1) and s. 7(3), have been addressed by reason of the notice received and the investigation carried out July 2-3, 2010.
[23] Alternatively, I find that based on the information not disclosed by the applicants as discussed above that the plaintiff "faced with a premature or inappropriate summary judgment motion should have the option to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery" (Combined Air Mechanical Services Inc. v. Flesch, supra, at para. 58). Therefore, if so advised, counsel for the plaintiff may bring a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.
[24] In the result, the motion is dismissed.
[25] Alternatively, if I am in error in the first instance I direct that the plaintiff may bring a motion for directions to stay the defendants' application in order to develop a record through discovery to satisfy the full appreciation test.
[26] Counsel may arrange an appointment with the trial coordinator at Oshawa to speak to the issue of costs.
Motion dismissed.
End of Document