Court File and Parties

Court File No.: CV-13-488428
Date: 20140404
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Clark, Plaintiff

AND:

Her Majesty the Queen in Right of Ontario, Defendant

BEFORE: Justice W. Matheson

COUNSEL:
David Clark, Self-Represented Plaintiff

Heather Burnett, for the Defendant

HEARD: April 1, 2014

ENDORSEMENT

[1] The plaintiff has brought a motion for relief described in his notice of motion as follows:

Leave to note the Defendant in Default (Rule 19.01 – Rules of Civil Procedure) and enter Default (Rule 18 – Proceedings Against the Crown Act) in that the Defendant failed to issue and serve a Defence to the Plaintiff’s Statement of Claim served on the Defendant the 30th Day of December, 2013 and any other Order deemed just.

[2] In brief, the events giving rise to this motion are as follows:

(i) the plaintiff initiated a claim against the defendant by Statement of Claim issued on September 10, 2013;

(ii) the Statement of Claim recounts problems the plaintiff had attempting to obtain a “pass” on the required emissions test for his car, and seeks an order dismissing the “conditional pass” registered against his car, an order that the Ministry of the Environment provide him a “non-conditional pass” and other relief;

(iii) the plaintiff gave notice of his claim by a document that was served on September 25, 2013;

(iv) in reply to the notice of claim, counsel to the defendant wrote to the plaintiff by letter dated October 7, 2013, and noted, among others things, that subsection 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P-27 (the “Act”) required that a plaintiff wait at least 60 days after his or her notice of claim before filing a claim with the courts and that failing to adhere to this timetable renders a claim a nullity;

(v) the plaintiff served the Statement of Claim that he had initiated in September on December 30, 2013;

(vi) the defendant served a Notice of Intent to Defend on January 7, 2014, and followed up with a letter dated January 20, 2014, in which s. 7(1) of the Act was referred to again, this time because it was apparent that the Statement of Claim had been issued before the required notice of claim rather than 60 or more days afterward;

(vii) in the January 20, 2014, letter, counsel to the defendant asked that the plaintiff withdraw the action and issue a new one;

(viii) the plaintiff did not bring a new claim or request that the Registrar note the defendant in default, but brought this motion, which was served on February 25, 2014; and,

(ix) the defendant had not initially delivered a Statement of Defence because it regarded the proceeding as a nullity due to the failure to comply with s. 7(1) of the Act, but given that the plaintiff was moving forward with his action, the defendant delivered a Statement of Defence on March 10, 2014.

[3] The plaintiff submits that the 60-day period in s. 7(1) of the Act relates to the date of service of the Statement of Claim, rather than its issuance. He further submits that he had to bring a motion to note the defendant in default under s. 18 of the Act, rather than requesting that the Registrar do so.

[4] The defendant’s position is that this action is a nullity due to the failure to comply with s. 7(1) of the Act. Further, the defendant relies on subrule 19.01(5) of the Rules of Civil Procedure, which permits a defendant to deliver a Statement of Defence at any time before being noted in default under Rule 19. Since the defendant’s Statement of Defence was delivered within that time, the defendant submits that it is not in default in any event.

Issues and Analysis

[5] Given the above, the key issues are the following:

(1) whether the plaintiff has complied with s. 7(1) of the Act, and with what result;

(2) whether the defendant should be found in default; and,

(3) whether the plaintiff should be given default judgment against the defendant under s. 18 of the Act.

[6] The relevant part of s. 7(1) of the Act provides as follows:

…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 identity the occasion out of which the claim arose... [Emphasis added.]

[7] The purpose of s. 7(1) is to allow the Crown to investigate a complaint and gather sufficient information to discuss and potentially resolve it with the complainant in advance of any litigation: Mattick v. Ontario (Ministry of Health) (2001), 2001 24086 (ON CA), 52 O.R. (3d) 221 (C.A.) at para. 15.

[8] While the Rules of Civil Procedure do allow for a period of time between issuance of a Statement of Claim and the service of it, the court system is engaged as soon as the Statement of Claim is issued. It would be contrary to both Rule 14 and the purpose of s. 7(1) of the Act to interpret the phrase “no action for a claim against the Crown shall be commenced” to relate to the time of service, rather than the time of issuance.

[9] As set out in Rule 14, a proceeding is commenced by the issuing of an originating process, in this case, a Statement of Claim. This is underscored by the required Form 14A, which begins with the statement, “A LEGAL PROCEEDING HAS BEEN COMMENCED…”.

[10] This action was commenced when the Statement of Claim was issued in September 2013, in advance of the service of the notice of claim required by s. 7(1) of the Act. I therefore find that s. 7(1) of the Act has not been complied with in this case.

[11] Compliance with s. 7(1) is a necessary precondition to the right to sue the Crown: Sidhu v. Ontario (Attorney General), 2012 ONSC 6993, [2012] O.J. No. 5846 (S.C.J.) at para. 39; Beardsley v. Ontario, 2001 8621 (ON CA), [2001] O.J. No. 4574 (C.A.) at para. 10.

[12] This action is therefore a nullity: Sidhu v. Ontario (Attorney General) at para. 39.

[13] For this reason alone, the motion must be dismissed. However, I will briefly address the other issues.

[14] This motion was brought by the plaintiff under s. 18 of the Act, which provides as follows:

In a proceeding against the Crown, judgment shall not be entered against the Crown in default of appearance or pleading without the leave of the court to be obtained on motion of which notice has been given to the Crown. [Emphasis added.]

[15] This section requires leave of the court to obtain a default judgment against the Crown, however, it also requires that the Crown must first be “in default of appearance or pleading”.

[16] The question of whether the Crown was or ought to be found to be in default relates to Rule 19, and particularly whether subrule 19.01 applies to Crown. That subrule permits a plaintiff to request that the Registrar note a defendant in default, and allows a defendant to deliver a Statement of Defence in the meantime. I find that subrule 19.01 does apply. It provides for noting in default, not obtaining default judgment, and therefore does not conflict with s. 18 of the Act. Section 13 of the Act provides that except as otherwise provided in the Act, in a proceeding against the Crown, the rights of the parties are as nearly as possible the same as in a suit between persons.

[17] In that it was not noted in default, the defendant was able to rely on subrule 19.01(5) and deliver a Statement of Defence. It is therefore not in default and that precondition to a motion for leave under s. 18 of the Act is not satisfied here. The motion must be dismissed on this basis as well.

Other Relief Sought by the Defendant

[18] The defendant requests that the action be dismissed since it is a nullity, without the need for a formal motion. It submits that the dismissal would be without prejudice to the plaintiff’s ability to bring a new claim based on the same facts.

[19] Given that the plaintiff is self-represented, I am not prepared to grant the defendant’s request on the plaintiff’s motion.

Order

[20] I therefore dismiss the plaintiff’s motion.

[21] If the parties are unable to agree on costs, the defendant shall make its submissions by brief written submissions to be served on the plaintiff by April 24, 2014. The plaintiff may make his brief written costs submissions to be served on the defendant by April 30, 2014. The defendant’s counsel shall then file both written submissions with the court for decision, copying the plaintiff on that correspondence.

Justice W. Matheson

Date: April 4, 2014