Coulter v. Her Majesty the Queen in Right of the Province of Ontario as represented by the Ministry of Natural Resources

[Indexed as: Coulter v. Ontario (Ministry of Natural Resources)]

Ontario Reports

Ontario Superior Court of Justice,

Koke J.

March 11, 2014

119 O.R. (3d) 571 | 2014 ONSC 1573

Case Summary

Crown — Actions against Crown — Notice — Plaintiff allegedly suffering propane gas poisoning at cabin owned by Ministry of Natural Resources ("MNR") — MNR manager or supervisor attending hospital where plaintiff was being treated, ascertaining details of plaintiff's injuries, making notes and reporting incident to Department of Labour — Notice provisions of Proceedings Against the Crown Act requiring liberal interpretation — Requirements met in circumstances of this case — Notice not required to be in writing and in any event MNR manager's notes meeting requirements of s. 7(3) — Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7.

The plaintiff was allegedly injured on February 3, 2010 when he was poisoned by exposure to propane gas at a cabin owned by the Ministry of Natural Resources. He was admitted to hospital on February 5, 2010. V, who held a supervisory or managerial position with the MNR, attended the hospital on that date, spoke to the plaintiff's parents, ascertained the nature of the plaintiff's injuries, took notes and reported the incident to the Department of Labour. The plaintiff retained counsel, who wrote to the MNR providing written notice of a claim against the Crown on April 20, 2010, outside the ten-day period specified in the Proceedings Against the Crown Act. The defendant brought a motion for summary judgment dismissing the plaintiff's personal injury action for failure to comply with the notice requirements set out in s. 7 of the Act.

Held, the motion should be dismissed.

Section 7 of the Act should receive a liberal construction. The purpose of notice is to allow the Crown to gather sufficient information to permit it to investigate the matter in order to resolve it without requiring court proceedings. The information given to V by the plaintiff's parents complied with s. 7(1) of the Act. There is no clear judicial authority that the notice required by s. 7(3) must be in writing. In any event, the comprehensive notes taken by V at the hospital met the s. 7(3) requirements.

Olesiuk v. LeCompte (1991), 1991 7313 (ON SC), 2 O.R. (3d) 473, [1991] O.J. No. 365, 26 A.C.W.S. (3d) 214 (Gen. Div.), not folld

Mattick v. Ontario (Minister 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.); 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.), apld

Sidhu v. Ontario (Attorney General), [2012] O.J. No. 5846, 2012 ONSC 6993 (S.C.J.), consd

Pfeiffer v. Ontario, [2008] O.J. No. 55, 2008 ONCA 15, affg [2007] O.J. No. 5487 (S.C.J.), distd [page572]

Other cases referred to

Appleyard v. Ontario, [1999] O.J. No. 3942, 38 C.P.C. (4th) 309, 92 A.C.W.S. (3d) 521 (C.A.), affg [1999] O.J. No. 3940, 27 C.P.C. (4th) 329, 85 A.C.W.S. (3d) 174 (Gen. Div.); Berardinelli v. Ontario Housing Corp., 1978 42 (SCC), [1979] 1 S.C.R. 275, [1978] S.C.J. No. 86, 90 D.L.R. (3d) 481, 23 N.R. 298, 8 C.P.C. 100, [1978] 3 A.C.W.S. 185; Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117

Statutes referred to

Municipal Act, R.S.O. 1990, c. M.45 (rep. by S.O. 2001, c. 25, s. 484(1)), s. 284(5)

Municipal Act, 2001, S.O. 2001, c. 25, s. 44(10), (12) [as am.]

Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 5 [as am.], (1)(c), 7, (1), (3)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 21.01(3)

MOTION for summary judgment dismissing an action.

Jonathon Poitras, for plaintiff/responding party.

Stephanie Drisdelle, for defendant/moving party.

Endorsement of KOKE J.: —

Introduction

[1] The defendant (the "Ministry of Natural Resources" or "MNR") brings this motion for an order for summary judgment and a dismissal of the plaintiff's action pursuant to rules 20 and 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"). There are two main issues. The first is whether the notice required by s. 7(3) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 ("PACA" or the "Act") is required to be in writing, and if so, whether the notice provided by the plaintiff to the MNR met this requirement. The second issue is whether the notice provided by the plaintiff contained sufficient particulars to satisfy the requirements of s. 7(1) of the PACA.

[2] There is substantial agreement with respect to the facts. The parties disagree on the legal principles and the application of these principles to the facts.

The Legislation

[3] The PACA s. 7(3) provides:

7(3) No proceeding shall be brought against the Crown under clause 5(1)(c) unless the notice required by subsection (1) is served on the Crown within ten days after the claim arose. [page573]

[4] 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".

[5] 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".

[6] The combined effect of the relevant provisions of ss. 5 and 7 of the Act is that no claim in respect of a breach of duties attaching to property can proceed unless (1) notice is given within ten days of the incident and (2) such notice contains "sufficient particulars to identify the occasion out of which the claim arose".

The Evidence Relevant to this Motion

[7] Four people filed affidavits and were cross-examined in relation to this motion. Their evidence is summarized as follows.

The plaintiff, Kraig Coulter

[8] On February 3, 2010, the plaintiff ("Kraig") was invited by a friend, Ryan McMillan ("Ryan"), who was an employee of the MNR, to stay with him in a cabin at the Ranger Lake MNR base which is located on the shore of Ranger Lake, north of the City of Sault Ste. Marie, Ontario. This property is owned and occupied by the MNR.

[9] Kraig alleges that during his stay at the cabin, he and Ryan were poisoned by either propane gas emitted from a cook stove or heater or by exhaust fumes from a gasoline-powered generator.

[10] Kraig alleges that as a result of the propane poisoning, he suffered a pinched radial nerve in his right arm, permanent cognitive and memory impairment, liver damage and kidney failure.

[11] Kraig and Ryan were transported to the Sault Area Hospital by persons staying in a privately owned cabin located near the MNR cabin on the morning of February 5, 2010, arriving around 11:00 a.m. Upon arrival, they were admitted to triage level one. They were then moved to the intensive care unit where they shared a semi-private room.

[12] The hospital progress notes indicate that Kraig had a visitor at his bedside in the semi-private room at 6:25 p.m. on the day he was admitted. Kraig recalls seeing a man in his room, standing at the foot of his bed asking him questions, and he believes that this is the visitor who was referred to in the notes. He recalls that the visitor was writing down his answers on a notepad. After they finished talking, the visitor closed his [page574] notepad, left his area of the room, closed the curtain separating him and Ryan and spoke to Ryan.

[13] It is Kraig's evidence that he was advised by Ryan that the man who spoke to him in the room was Mr. Paul Viera, Ryan's supervisor at the MNR. He is unable to provide a description of the man or recall the questions which he was asked, due to his memory impairment.

[14] Kraig believes he was discharged from the hospital on February 9 or 10, 2010. Sometime after he was discharged, he recalls that he received a telephone call from Mr. Viera. He does not recall whether he spoke to Mr. Viera or whether Mr. Viera left him a message.

April Sarlo

[15] April Sarlo, Kraig's girlfriend at the time, stated in her examination that she attended at the hospital on February 5, 2010, immediately after hearing that Kraig had been admitted. When she arrived, she met Kraig's parents in the waiting room. While in the waiting room, she and Mr. Coulter encountered two employees from the Ministry of Natural Resources. She believes they arrived at the hospital within one hour of Kraig and Ryan's admission.

[16] She and Kraig's father spoke to the two employees about the incident. They were aware of the injuries sustained by Kraig and Ryan. The employees told them that if they needed anything they should call them. She does not recall their names.

[17] Later, when she was visiting Kraig in his room, she noticed another MNR employee at Ryan's bedside, talking to him.

Kenneth Coulter

[18] Kraig's father, Kenneth Coulter, stated that he arrived at the hospital shortly after noon on February 5, 2010. His wife had arrived earlier together with Kraig and the friend who had driven him from Ranger Lake to Sault Ste. Marie. Mr. Coulter stated that the odour of propane on Kraig's clothes was so strong that they were asked to remove the clothes from the waiting room.

[19] While he was in the waiting room, a Ministry of Natural Resources employee approached him to discuss Kraig's involvement in the incident. The employee identified himself as Paul Viera and informed him that he was Ryan's boss.

[20] Mr. Viera indicated to him that he was aware that Kraig and Ryan had been at an MNR cabin on Ranger Lake, and it was suspected that they had suffered what he believed was [page575] propane poisoning. Mr. Viera informed him that the matter was being looked into, but as part of the investigation he would like to know how Kraig was "doing". Mr. Coulter advised Mr. Viera that his son was incoherent, could not walk and had significant trouble moving his right hand. Mr. Viera took the information down in writing and then asked him for his phone number in the event that he needed to contact him for further information. He also provided Mr. Coulter with his phone number and informed him that Mr. Coulter should feel free to call him if he needed additional information.

[21] According to Mr. Coulter, there was also a second MNR employee in the waiting room who had apparently accompanied Mr. Viera to the hospital.

[22] Mr. Coulter recalls that later in the day after Kraig and Ryan had been moved into an intensive care room, he spoke to a third MNR employee at the hospital who attended at the hospital in relation to the suspected poisoning which had occurred at the Ranger Lake cabin.

[23] During Kraig's stay at the hospital, Mr. Coulter was advised that the Ontario Ministry of Labour had commenced its investigation into the incident.

Paul Viera

[24] Mr. Viera stated that he was in attendance at the hospital between 1:00 p.m. and 2:00 p.m. on February 5, 2010. After arriving at the hospital, he spoke to Ryan, who he described as incoherent. Ryan was able to inform him that he was at the Ranger Lake cabin, that his back was sore and that he had slept for a very long time. He also talked to Ryan's girlfriend and Kraig's father, Ken.

[25] Mr. Viera stated that Ken Coulter informed him that Kraig was incoherent, had a sore back and that his right arm was not working.

[26] That afternoon, Mr. Viera contacted a Carol Scali at the Ministry of Labour and informed her that he had become aware of this incident around 1:00 p.m., that both men were not doing well, and that Ryan was injured and incoherent. Poisoning was suspected.

[27] Later that day, Mr. Viera returned to the hospital at about 7:00 p.m., together with another MNR employee, Murray Radford. However, he was unable to speak to Ryan.

[28] The same day, Mr. Viera also reported this incident to his superior with the MNR, Mr. Karpron.

[29] Mr. Viera took notes of his conversations and the information he received at the hospital. The notes, a redacted version [page576] of which was made available to the court, indicate that he arrived around 1:00 p.m. and met Ryan's girlfriend, Jenny, and Ryan's brother. At that time, he was informed that the friend who accompanied Ryan to the cabin was Kraig Coulter and that Kraig was also in the hospital with his family. Poison Control (the Ontario Poison Centre) had been contacted.

[30] The notes indicate that Mr. Viera then went to Ryan's room but was unable to talk to Ryan because Ryan was incoherent. While he was in Ryan's room, Kraig's mother came into the room. She informed him that Kraig's arm was numb and he was unable to walk, and she told him that her husband, Ken Coulter, was in the cafeteria. He spoke to Ken Coulter, and he obtained the Coulter's telephone number and home address.

[31] There is a second notation that Poison Control had been contacted. The notes then indicate that he left the hospital at 2:00 p.m. and returned with another MNR employee, Murray Radford, at 7:00 p.m. On his return he met Kraig's sister, Kristin, Kraig's girlfriend, April, and was informed that both Ryan and Kraig had been moved to the ICU.

[32] Mr. Viera's notes indicate that at 2:32 p.m. the next day, he phoned the Coulters and spoke to Kraig's mother, who informed him that both boys were still in intensive care but off oxygen, and that Ryan appeared to be recovering more quickly. On February 9, 2010, he obtained additional information and makes a note concerning the blood levels of both Ryan and Kraig. A further note dated March 10, 2010 indicates that Mr. Viera spoke to Ryan and was informed that Kraig was slowly recovering and that his feeling was slowly coming back.

Additional Evidence

The April 20, 2010 notice

[33] Sometime following this incident, Kraig retained a lawyer, Paul J. Daffern, who agreed to represent him in a claim against the MNR. On April 23, 2010, the MNR received a letter dated April 20, 2010 from Mr. Daffern, providing written notice of claim against "Her Majesty the Queen in Right of Ontario" for the damages that Kraig suffered at Ranger Lake. The letter indicates February 3, 2010 as the date of loss.

The investigation by the Ministry of Labour

[34] Mr. Viera agreed that on February 5, 2010, he contacted the Ministry of Labour and spoke to Carol Scali about this incident. The ministry responded by conducting an investigation, a report of which was made available to the parties. [page577]

Court's Findings of Fact

[35] For the purpose of deciding this motion, I am prepared to make the following finding of facts and draw the following inferences:

(a) On or about February 3, 2010, Kraig was invited by his friend Ryan, who was an employee of the defendant, to stay with him in a cabin at the Ranger Lake MNR base. This property is owned and occupied by the MNR.

(b) During their stay at the cabin, Kraig suffered injuries. Kraig alleges that the injuries were sustained as a result of the defective condition of a propane stove or gas generator, but I make no findings with respect to what caused the injuries.

(c) As a result of these injuries, Kraig and Ryan were transported to the Sault Area Hospital by friends and admitted to the hospital at around 11:00 a.m. on February 5, 2010. They spent some time in triage and were then moved to intensive care, where they shared a room.

(d) Kraig was seen by his girlfriend and other family members while in intensive care. Someone was visiting with Kraig in the intensive care room at 6:25 p.m. (I make no finding of fact with respect to whether the 6:25 p.m. visitor was Paul Viera. Kraig's evidence in this regard is based on hearsay (Ryan) and Ryan did not provide evidence in relation to this motion. Mr. Paul Viera denies that he visited and spoke to Kraig at that time. Mr. Viera's evidence is supported by his notes.)

(e) Paul Viera holds a supervisory or managerial position with the MNR. He was Ryan's superior. The incident at Ranger Lake was reported to him, and he attended at the hospital shortly after Kraig and Ryan's admission, at approximately 1:00 p.m., remaining there for about an hour. He reported the incident to his superior, a Mr. Karpron. He returned to the hospital that evening at about 7:00 p.m.

(f) While at the hospital on February 5, 2010, Mr. Viera spoke to a number of people about the incident, including Kraig's girlfriend, April Sarlo, and Kraig's parents, Kenneth and Sherry Coulter. He exchanged contact information with Kraig's parents, and in his conversations with them, he confirmed or ascertained that [page578]

(i) Kraig had been staying at the MNR's cabin on Ranger Lake with Ryan, who was an MNR employee.

(ii) Kraig and Ryan were taken from Ranger Lake to the hospital by friends, suffering symptoms which suggested that they had been poisoned by exposure to propane or gas fumes. The incident was related to their stay at the MNR's Ranger Lake property. Poison Control had been notified.

(iii) Kraig's symptoms included numbness and difficulty in moving his right arm, confusion, memory and cognitive impairment, and pain and discomfort throughout his body.

(iv) Poison Control had been contacted.

(g) Mr. Viera contacted and reported the matter to the Ministry of Labour. He informed Carol Scali at the ministry that Ryan and Kraig were not doing well, that Poison Control had been notified, and that Ryan was injured and incoherent. The Ministry of Labour responded to the incident by conducting an investigation.

(h) Following his visits to the hospital on February 5, 2010, Mr. Viera contacted the Coulters several times and requested an update on Kraig's health.

(i) Mr. Viera made notes of the information he obtained in relation to this matter in such a way that persons he was in contact with at the hospital were aware that he was making these notes.

(j) On April 23, 2010, the MNR received a letter dated April 20, 2010 from Mr. Daffern, a lawyer acting for Kraig, in which he provided a written notice of claim against "Her Majesty the Queen in Right of Ontario" for the damages that Kraig suffered at Ranger Lake. The letter indicates February 3, 2010 as the date of loss. The contents and substance of the notice met the requirements of s. 7 of the PACA, but it was not delivered within the ten-day time period specified in the Act.

Position of the Parties

[36] The parties agree that the plaintiff's claim is a claim "in respect of any breach of the duties attaching to the ownership, [page579] occupation, possession or control of property", and that the ten-day notice provision referred to in s. 7(3) of the PACA applies in the circumstances of this case.

[37] The position of the applicant is first, that this proceeding is a nullity as against the MNR because Mr. Daffern's notice of claim dated April 20, 2010 was served more than ten days after the events occurred giving rise to the claim. The injuries were sustained between February 3 and 5, 2010, and the MNR did not receive Mr. Daffern's formal notice of claim until April 23, 2010.

[38] With respect to Mr. Viera's conversations with Kraig's parents, the applicant submits these conversations do not constitute notice because the PACA requires written notice, and Mr. Viera's communications with Kraig's parents on April 5, 2010 and the days following were not in writing. Furthermore, Mr. Viera was not informed by the Coulters that a legal claim was being contemplated against the ministry, and so the notice did not contain sufficient particulars.

[39] The position of the plaintiff is that Mr. Viera's conversations with Kraig's parents on April 5, 2010, which were recorded in Mr. Viera's notes, comprised valid notice as contemplated by the PACA. The plaintiff bases his position on the following facts:

(a) The injuries occurred "in respect of [a] breach of the duties attaching to the ownership, occupation, possession or control of property", as required by s. 5(1)(c) of PACA. The Ranger Lake cabin was owned by the MNR.

(b) The conversations with Mr. Viera took place within ten days, as required by PACA.

(c) The conversations at the hospital contained sufficient particulars to identify the occasion out of which the claim arose. It is not necessary that the notice specified in PACA contain a threat of an imminent legal claim.

(d) The PACA does not specify that the notice be in writing. If the notice is required to be in writing, Mr. Viera took notes during his conversations at the hospital, and these notes satisfied the requirement that the notice be in writing. In effect, the written notice was dictated to and written down by Mr. Viera.

(e) The notice under s. 7 does not have a prescribed form, does not require service in any particular fashion, or require that service be made on any particular representative of the Crown. [page580]

[40] The validity of the April 20, 2010 notice from Mr. Daffern was not argued before me. For the purposes of the motion, I am assuming that since it was not served within the ten-day time period, that does not constitute valid service. My decision pertains to the adequacy of the notice provided by Kraig's parents only.

Analysis

Should s. 7 receive a strict or a liberal construction?

[41] Relying on the 1991 decision in Olesiuk v. LeCompte (1991), 1991 7313 (ON SC), 2 O.R. (3d) 473, [1991] O.J. No. 365 (Gen. Div.) ("Olesiuk"), the applicant argues that because the PACA removes the immunity of the Crown to lawsuits which it formerly enjoyed as an aspect of the royal prerogative"[i]t is . . . axiomatic that any statutory limitation on the prerogative must be strictly construed" (para. 26).

[42] I agree that the prevailing view at the time Olesiuk was decided was that such statutory limitations were to be strictly construed against a plaintiff when applied to actions against the Crown. However, a review of cases which were decided after Olesiuk suggests that views have changed and that such statutory limitations should no longer receive such a strict interpretation.

[43] The Ontario Court of Appeal dealt with this issue in Mattick Estate v. Ontario (Minister of Health) (2001), 2001 24086 (ON CA), 52 O.R. (3d) 221, [2001] O.J. No. 21 (C.A.) ("Mattick"), where it stated, at para. 14:

In my view this is too narrow an approach to the interpretation of s. 7(1). While the Act displaced the immunity from suit that the royal prerogative accorded to the Crown at common law, it first 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 [footnote omitted], 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.

[44] A month after the Mattick case, the Court of Appeal released its decision in Myshrall v. Toronto (City) (2001), 2001 24165 (ON CA), 52 O.R. (3d) 686, [2001] O.J. No. 481 (C.A.) ("Myshrall"). That case pertained to the notice (seven days) required under the Municipal Act, R.S.O. 1990, c. M.45 ("Municipal Act"), before an individual can sue for injuries caused by the City's failure to keep its sidewalks "in repair". The dicta of Laskin J.A. as to how a court [page581] should interpret and enforce such notice periods is instructive (para. 12):

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.

[45] I accept the plaintiff's position that the approach to interpreting and applying these types of statutory limitations has shifted from a strict approach to a more generous approach, and in deciding this case I will be governed by the approach set out in Mattick and Myshrall.

Does the notice "contain sufficient particulars to identify the occasion out of which the claim arose"?

[46] The sufficiency of the notice given must be understood in the context of the purposes for establishing the limitation period. In Mattick, at para. 18, Goudge J.A. sets out the purpose in the following words:

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.

[47] In summary, according to Goudge J.A. the purpose of the notice is to allow the Crown to gather sufficient information to permit the Crown to investigate the matter in order to resolve the matter without requiring court proceedings.

[48] In the previous paragraph, Goudge J.A. states his view that in order to achieve this purpose it is not necessary that the notice include an intention on the part of the plaintiff to commence legal action, and that in fact such a requirement would be inconsistent with this purpose. Goudge J.A. states, at para. 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. [page582]

[49] The Court of Appeal in Myshrall agreed that the purposes of s. 7 of the PACA and s. 285(4) of the Municipal Act were the same. The court stated, at paras. 12 and 13:

I agree with these comments and therefore I cannot subscribe to an interpretation of s. 284(5) that places even more hurdles in the way of an injured claimant. Whether a notice complies with s. 284(5) should be considered in the 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).

My colleague Goudge J.A. took a similar approach to the notice provision in s. 7(1) of the Proceedings against the Crown Act, R.S.O. 1990, c. P.27. See Mattick Estate v. Ontario (Minister of Health) (2001), 2001 24086 (ON CA), 52 O.R. (3d) 221 (C.A.). So too did the Saskatchewan Court of Appeal in considering the sufficiency of a notice given under s. 237 of the Rural Municipalities Act, S.S. 1960, c. 50, a provision that, like s. 284(5) of the Ontario Act, required "notice in writing of the claim and of the injury complained of". Although the notice in that case gave only a vague description of where the accident happened and did not specify why or when it happened, the court held that the notice was sufficient. Woods J.A. wrote:

The statute does not require particulars in so many words. There is no requirement for a summary of the nature of the proposed action and the facts upon which it is to be based. The requirement is for notice of the claim and injury. There is no requirement that either be spelled out. In my view, the present notice is sufficient to enable the municipality to investigate the matter with a view to protecting its interests. It is sufficient to give the defendant a chance to get the facts while evidence is fresh in the minds of the witnesses. There is no evidence that the defendant was in any way prejudiced by the form and content of the notice. I would, accordingly, hold that the content of the notice meets the requirement of the statute.

See Bozak v. Eagle Creek (Rural Municipality) (1965), 1965 444 (SK CA), 53 D.L.R. (2d) 170 at p. 173, 52 W.W.R. 472 (Sask. C.A.), affd (1967), 1967 662 (SCC), 62 D.L.R. (2d) 64n, 60 W.W.R. 764 (S.C.C.).

[50] Based on the foregoing, the sufficiency of the information which Mr. Viera received from Kraig's parents must be considered in the light of the purposes of the notice requirement. The purposes can be summarized as follows:

(a) to give the government a reasonable opportunity to investigate the accident/complaint and take necessary corrective action;

(b) to communicate a complaint which, if not satisfied, could reasonably be anticipated to result in litigation against the Crown; and [page583]

(c) to provide the Crown with enough information to permit the government to achieve these purposes.

[51] The information communicated by the Coulters to Mr. Viera included the fact that Kraig's injuries appeared to be related to his stay at a property owned by the MNR, that Poison Control had been notified and that he was now hospitalized. Mr. Viera responded to this information by contacting the Ministry of Labour, which conducted an investigation, and he himself made follow-up calls to the Coulters to see how Kraig was doing.

[52] On the evidence before me and for the purposes of deciding this motion, I find that the information given to Mr. Viera by Kraig's parents contained sufficient particulars to identify the occasion out of which the claim arose, as required by s. 7 of the PACA.

Is the Notice Required to be in Writing?

[53] In support of its position that the s. 7(3) notice must be in writing, the applicant relies on the Superior Court decision in Sidhu v. Ontario (Attorney General), [2012] O.J. No. 5846, 2012 ONSC 6993 (S.C.J.) ("Sidhu"). This was a motion by the Crown for a dismissal of an action for failure to comply with s. 7(1) of the PACA. The plaintiff in that action argued that written notice was provided in the form of a release he had signed in an earlier proceeding he had brought against the Crown.

[54] The court in Sidhu found that the release was deficient as notice under the Act.

[55] The plaintiff had argued that particulars had been provided in the form of his court application for costs, the factum he filed in that application and in a number of conversations his lawyer allegedly had with several Crown attorneys.

[56] The motion judge dismissed the claim, finding that valid notice under s. 7(1) could not consist of a cobbling together of information contained in court documents and conversations with different individuals which had taken place over a period of time. The court held, at para. 47 of Sidhu:

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. [page584]

[57] In my view, the court's decision in Sidhu was not based on a finding that the plaintiff's notice was not in writing, but rather on a finding that the notice did not contain sufficient particulars and lacked certainty. The motion judge commented that the nature of a claim based on the purported release was "entirely speculative" (Sidhu, supra, at para. 52).

[58] The applicant points out that the motion judge commented, at para. 44 of Sidhu, that "[t]here is no dispute that the notice must be in writing". In my view, this statement does not help the applicant. This comment simply reflects the views of counsel in that case and confirms that the issue of whether the s. 7(1) notice was required to be in writing was not before the court. Accordingly, I find this judicial comment to be obiter.

[59] The applicant also relies on Pfeiffer v. Ontario, [2008] O.J. No. 55, 2008 ONCA 15, affg [2007] O.J. No. 5487 (S.C.J.) ("Pfeiffer"). In Pfeiffer, the Ontario Court of Appeal upheld the finding of the trial judge who dismissed the appellant's action against the respondent for non-compliance with the notice requirement in s. 7(1) of the PACA. The Court of Appeal agreed with the trial judge's finding that the notice should have been in writing.

[60] In my view, the Pfeiffer decision can be distinguished from the case at bar. In Pfeiffer, the court was dealing with the notice required under s. 7(1) of the PACA. Section 7(1) provides that the notice must be served "at least sixty days before the commencement of the action". I note that in circumstances where s. 7(1) applies, a claimant may have as much as 22 months to provide the required notice (assuming a two-year limitation period applies). By contrast, Kraig Coulter's claim is a property-related claim and therefore the notice provision set out in s. 7(3) of the PACA applies. Section 7(3) requires that a plaintiff provide notice "within 10 days after the claim arose"; clearly, s. 7(3) imposes a much more onerous notice requirement on a claimant.

[61] In my view, it would not be unreasonable for a court to find that the ten-day notice requirement set out in s. 7(3) of the PACA should be construed more liberally in favour of an injured plaintiff than the less onerous notice provision in s. 7(1). Accordingly, for the purposes of deciding this motion, I am not prepared to rely on Pfeiffer as authority for requiring Kraig to have served a formal written notice on the Crown.

[62] In support of his position that the s. 7(3) [notice] does not have to be in writing, the plaintiff points out that unlike the notice provision in s. 44(10) of the Municipal Act, 2001, S.O. 2001, c. 25 ("Municipal Act, 2001"), s. 7 of the PACA does not specifically require that the notice be in writing. He argues that [page585] if the legislature intended that the notice be in writing, it would have specified this as a requirement in this section.

[63] I find considerable merit in this argument. As a matter of statutory interpretation, provisions that limit a plaintiff's right to bring a cause of action are generally construed strictly and any ambiguity is resolved in favour of the plaintiff: see, for example, Berardinelli v. Ontario Housing Corp., 1978 42 (SCC), [1979] 1 S.C.R. 275, [1978] S.C.J. No. 86, 90 D.L.R. (3d) 481 ("Berardinelli"). The legislature has failed to specify whether the ten-day notice referred to in s. 7(3) must be in writing, and the intention of the legislature remains unclear.

[64] The plaintiff also points out that at the time notice was given, he was hospitalized, incoherent and experiencing paralysis and numbness in his writing hand, and he was not in any condition to draft a written notice to the Crown. He reminds the court that s. 44(12) of the Municipal Act, 2001 provides that a failure to give the required notice is not a bar to an action if a judge finds that there is "reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence". No such judicial discretion exists with respect to the notice provisions in s. 7 of the PACA, and he argues that in the absence of such discretion, the court should apply a liberal and generous construction to the notice requirement.

[65] I also find merit in this argument. Courts apply a fairness principle to the interpretation of limitation periods. In Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31 ("Peixeiro"), the Supreme Court commented, at para. 34, that "[w]hatever interest a defendant may have in the universal application of a limitation period must be balanced against the concerns of fairness to the plaintiff " (emphasis added).

[66] In Appleyard v. Ontario, [1999] O.J. No. 3940, 27 C.P.C. (4th) 329 (Gen. Div.), affd [1999] O.J. No. 3942, 38 C.P.C. (4th) 309 (C.A.), Karam J. applied this fairness principle when faced with a similar motion for summary judgment. In that case, the Crown argued that the plaintiff had not served his s. 7(1) notice in time. The court found that the plaintiff, who was an inmate in a correctional institution, was unable to give timely notice due to the constraints and restrictions he faced as a result of being incarcerated. Citing the judgment in Peixeiro, Karam J. denied the motion stating, at para. 19:

Applying the "fairness" requirement referred to earlier, this set of circumstances, if demonstrated at trial to have prevented the Plaintiff from giving notice as required, must constitute an exception of the notice requirement. Furthermore, the period in question and the lack of any demonstrable [page586] prejudice to the defendant, satisfies me, for the purposes of this motion, that in light of these circumstances the length of the delay in question was not unreasonable.

[67] In light of the unusual and particular circumstances which exist in this case, it is my view that the fairness principle must be given considerable weight in deciding the issue of the validity of Kraig's notice.

Summary and Conclusions

[68] I have considered the law and the arguments of counsel, and after doing so I have concluded that the issue of whether the plaintiff meets the notice requirement set out in s. 7(3) of the PACA is an issue which requires a trial. I have come to this conclusion for the following reasons.

[69] First, I find that there is no clear judicial authority to find that the notice required by s. 7(3) of the PACA must be in writing. Furthermore, in the event that the notice is required to be written, the plaintiff makes a compelling case that the comprehensive notes taken by Mr. Viera at the hospital meet the s. 7(3) requirements; clearly, in my view Mr. Viera's notes contained sufficient particulars and certainty to meet the purpose and objectives of the section.

[70] Second, the ten-day notice provision set out in s. 7(3) of the PACA imposes an onerous requirement on an injured claimant. The provision is made even more onerous by the failure of the legislature to provide the court with discretion to extend the notice period in circumstances where it would be fair to do so and there is no prejudice to the Crown. Accordingly, the court should interpret the notice provisions of the PACA generously, and should consider the application of the common law fairness principle referred to in Peixeiro to the circumstances of this case. In doing so, the trial court may find that the plaintiff is in compliance with s. 7(3).

[71] Third, the legislature has failed to specify whether the ten-day notice referred to in s. 7(3) must be in writing. In my view, the trial court could find that this apparent ambiguity should be decided in favour of the plaintiff, in accordance with the dicta set out in Berardinelli.

Decision

[72] The motion is therefore dismissed. If the parties cannot agree on costs, I am prepared to entertain written submissions, to be no more than three pages in length, exclusive of the bill of costs, and to be delivered within 14 days of the release of this [page587] decision. The parties have ten days thereafter to respond to each other's submissions. If no submissions are received within these time periods, costs will be deemed to have been settled.

Motion dismissed.

End of Document