SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-688

DATE: 20140228

RE: JASON DAOUST-CROCHETIERE, Plaintiff

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTER OF NATURAK RESOURCES FOR THE PROVINCE OF ONTARIO, Defendant

BEFORE: THE HONOURABLE MR. JUSTICE J.R. McCARTHY

COUNSEL:
A. Kerr, for the Plaintiff
S. Inkol, for the Defendants

HEARD: February 28, 2014

ENDORSEMENT

[1] The Defendants move under Rule 20.01 (3) for summary judgment and a dismissal of the Plaintiff’s action. The action arises out of injuries sustained by the Plaintiff on a boat launch at the Wasaga Beach Provincial Park on June 13, 2010.

[2] The basis for the motion is that the Plaintiff failed to provide the Defendants with sixty days prior notice of the incident described in the statement of claim and failed to provide notice of the claim within ten days after the claim arose. The Crown argues that these notices were both required pursuant to the relevant provisions of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (“PACA”). Failure to abide by those provisions renders the claim a nullity.

[3] I have no hesitation in concluding that the claim in question is based upon allegations in respect of breach of duties by the Defendant’s agents, servants or employees attaching to the ownership, occupation, possession or control of property, namely the boat launch and ramp. That is plain and obvious on the face of the pleading. That being the case, the claim is clearly caught by ss. 5(1)(c) of the PACA. Under s. 7(3), notice of any claim for breach of duty respecting property must be served on the Crown within ten days after the claim arose. In the case before me, no such notice was given in any form whatsoever until well after the expiry of that ten day period. The two notices provided by the Plaintiff to the Crown and the municipality on October 27, 2010, were clearly out of time.

[4] I cannot agree with the Plaintiff that there is an overarching tort engaged here which somehow nullifies the requirement for notice in s. 7(3). Nor do I accept that s. 5(1)(c) deals only with claims under occupiers’ liability law that are specifically pleaded as such. While it is true that the Occupiers Liability Act, R.S.O. 1990, c. 0.2., applies to the PACA, this does not mean that a claim must be framed under that area of law to be included under ss. 5(1)(c) and therefore caught by the notice requirement in s. 7(3) of the PACA. There is nothing ambiguous about ss. 5 (1)(c): the term “property”, given its common usage, would clearly encompass the land on which the incident boat launch in question was located.

[5] In my view, the Ontario Court of Appeal case of Goodwin v. Pine Point Park, (1975), 1974 826 (ON CA), 7 O.R. (2d) 134 does not apply here. This is not a case of a floating diving platform stationed 150 feet from shore. The boat ramp in question was admittedly owned, occupied, managed or controlled by the Crown authority. The suggestion that a portion of the ramp may have been under the surface of the water does not change that fact. There is no evidence to suggest that the ramp and launch were not one and the same structure, part of which was on dry land and all of which were maintained by the provincial park.

[6] I agree with the conclusion reached by my brother Henry J. in Olesiuk v. LeCompte (1991), 2 O.R. (3d) 473 that there is no discretion in the requirement to provide notice under the PACA. A failure to comply with s. 7 of the Act renders the action a nullity.

[7] Whether the notice requirements in the PACA apply to the case at bar is a question of law. I have found that the notice requirements do apply to the claim as pleaded.

[8] I also find that notice as required under s. 7(3) of PACA was not provided. The claim cannot be advanced. That being the case, the motion for summary judgment must succeed. There is no need for me to use any fact-finding powers on this motion. On the plain reading of the claim and the record before me, there is no genuine issue for trial because the claim is barred by operation of statute.

[9] I am not prepared to grant the Plaintiff leave to amend the claim to plead a breach of contract. For one, the Plaintiff is out of time for advancing a brand new clause of action; second, nowhere in the pleading does one find facts sufficient to disclose such a cause of action. The facts as pleaded do not even hint at such a possibility; nor can it be said that a cause of action in contract is related to, or would logically flow from, the cause of action pleaded.

[10] The motion of the Defendants is therefore allowed. The claim is dismissed.

J.R. McCARTHY J.

Date: February 28, 2014