SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: C-843-13

DATE: 2015-07-14

RE: Blake Daniel Jeffrey Irwin Holstock, Plaintiff

AND:

Her Majesty the Queen in Right of the Province of Ontario
(Ministry of Community Safety and Correction Services)

and Maplehurst Correctional Complex, Defendants

BEFORE: The Honourable Mr. Justice P.J. Flynn

COUNSEL:
Bernard Verbanac, for the Plaintiff

Domenic Polla, for the Defendant/Moving Party

HEARD: July 3, 2015

ENDORSEMENT

[1] The Defendant (including incorrectly styled Maplehurst Correctional Complex) brings a motion to strike out certain paragraphs of the Statement of Claim without leave to amend, on the grounds that the claims contained in those paragraphs are nullities for failure to comply with the mandatory notice requirements contained in s.7 of the Proceedings Against the Crown Act.

[2] The Plaintiff brings action against the Crown for assault, battery, negligence, intentional infliction of mental distress, breach of Charter rights and misfeasance in public office arising from events said to occur during his incarceration in the Maplehurst Correctional Complex (Maplehurst) and the Windsor jail from July 29, 2011 through January 27, 2012. The Plaintiff seeks general, special, aggravated and punitive damages, as well as damages pursuant to the Charter.

[3] Maplehurst and the Windsor jail are both correctional facilities owned and operated by the Defendant and are not legal entities capable of being sued.

[4] The Act provides that no action may be commenced against the Crown unless the claimant has served the Crown with a Notice of Claim at least 60 days before the action is commenced.

[5] In this case, the Plaintiff served the Crown Law Office – Civil, with his Notice of Claim approximately one month after he commenced the action.

[6] The Crown does concede that proper notice of one claim and one claim only was provided and that is a claim in respect of a slip and fall from the bunk bed inside the Plaintiff’s cell on or about November 2, 2011. That is because on November 3, 2011, the Plaintiff completed an Inmate Statement form in which he described the injury sustained as a result of his slip and fall. The Plaintiff also filled out part of an Accident Injury report in which he described the incident in question. These documents contain particulars only of the slip and fall claim and no other incident.

[7] So the Crown does not seek to strike out the paragraphs associated with the slip and fall claim, nor does it seek to dismiss the action as a whole.

[8] The Crown argues that because the only live claim against it is negligence resulting in the Plaintiff’s slip and fall, the claims for aggravated punitive and Charter damages must be struck on the grounds that there is no longer any pleaded basis upon which these types of damages could be awarded.

[9] Moreover, there are paragraphs of the Statement of Claim which contain allegations of breaches of international treaties and the Crown argues that the Defendant Provincial Crown isn’t a party to those treaties and that those claims cannot be sustained.

[10] Also, the Crown seeks to strike all claims made on behalf of other persons who have been or continue to be incarcerated in Provincial institutions without leave to amend because the Plaintiff lacks standing to bring these claims.

[11] In the end result, the Crown must have the relief it seeks in this motion.

[12] Pursuant to s.5 of the Act, the Crown is subject to all liabilities in tort to which it would be subject, if it were a person of full age and capacity, in respect of a tort committed by any servant or agent and any breach of the duties attaching to the ownership, occupation, possession or control of property. But that is subject to the notice requirements of the Act set out in ss. 7(1) and 7(3):

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.

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.

[13] Section 5(1)(c) deals with a breach of duties attaching to the ownership, occupation, possession or control of property. And really plays no part in the consideration or determination of the Defendant’s rights under question here.

[14] The Plaintiff argues that if there was no compliance with the notice provision, it was because the Plaintiff was incarcerated, though there is no evidence presented to me about his inability to make written notice. And in fact his written notice of complaint with respect to the slip and fall is proof that he could have done that.

[15] Moreover, the Plaintiff says there was enough material in the file of the Plaintiff at the institutions to cause the Crown to investigate matters which could amount to the complaints he made. I simply reject this. Just because there is something in the records of the Defendants does not elevate it to a written notice given by the Plaintiff if there isn’t one.

[16] The Plaintiff argues that the notice is sufficient and that the evidence in the hands of the Crown must lead to inferences that there might be an issue when one puts those records into the context of the chronology set out in the Statement of Claim. I totally reject this argument.

[17] Section 7(1) of the Act requires that at least 60 days prior to the commencement of the action, the Crown must receive notice that sufficiently identifies the occasion out of which the claim arose so that the Crown can investigate the claim. Here, the Plaintiff’s notice came only after the issuance of the claim and does not fit within the criteria set out in subsection 7(1).

[18] Proper notice is a necessary precondition to the right to sue the Crown and evidence that proper notice was or was not given is both necessary and admissible on the motion under Rule 21.01(1)(a).

[19] Moreover the period of 60 days’ notice before the commencement of the action cannot be abridged in any way. Compliance with s.7 is mandatory. Neither the Crown nor this court has any discretion to relieve against its technical requirements.

[20] So failure to comply with the Act’s requirements is fatal to the action. Simply put, any action brought without providing the prescribed notice is a nullity.

[21] The notice must be in writing and must contain sufficient particulars to detail what the claim against the Crown encompasses and what possible liability the Crown might have.

[22] So the Crown argues and I accept that the claims advanced by the Plaintiff, with the one exception of the negligence on the slip and fall claim, are null and void for non-compliance with the Act.

[23] Given that the only live claim is the Plaintiff’s slip and fall, the claims for aggravated, punitive, exemplary and Charter damages are without foundation and must be struck without leave to amend. Those claims are based on the assault and battery among other ill treatment “of the Plaintiff”. So because the assault and battery claims are null for failure to comply with the Act, there is no longer any foundation for the claims for punitive and exemplary damages. Clearly, the slip and fall based on the negligence of the Crown does not support a claim for punitive and exemplary damages.

[24] It seems to me that it is improper to insert a claim for aggravated damages into the material facts for a claim for punitive or exemplary damages and that in this Statement of Claim the Plaintiff improperly conflated the claim for aggravated damages with that of punitive damages and hence that pleading must be struck.

[25] The Plaintiff’s claim for damages pursuant to s.24(1) of the Charter are based on alleged violations of s.7 and s.12. They are found in the Plaintiff’s Statement of Claim at paragraphs 1 (b), 2 and 35.

[26] The claim at paragraph 2 is based on widespread and institutionalized prisoner abuse and is null for failure to comply with the Act as discussed before.

[27] The claim for Charter damages at paragraph 35 is not particularized. In any event, there is no basis for an award of Charter damages because the remaining live claim is a claim only based on negligence which does not give rise to a Charter violation.

[28] In addition to the claims for alleged breaches of international treaties being null for failure to comply with the Act, I agree with the Defendants that they are scandalous and do not disclose a cause of action. The international treaties referred to in paragraph 31 of the Statement of Claim cannot ground a cause of action against the Crown. The Provincial Crown is not a party to these treaties and therefore is not bound by them. Moreover the Plaintiff fails to plead how the Crown is alleged to have breached those treaties. There is simply no basis for any alleged violation of these treaties and the Plaintiff cites none.

[29] At paragraph 2 of the Statement of Claim, the Plaintiff purports to bring this action on behalf of other prisoners in Provincial correctional institutions. Simply put, the Plaintiff lacks standing to do so, absent some form of representative or class action.

[30] Finally, Maplehurst and the Windsor jail are merely the correctional institutions owned and operated by the Crown. They are neither persons nor corporations nor statutory bodies corporate and therefore do not have legal status. So claims against them must be dismissed.

[31] Accordingly:

(i) there shall be an order to go striking out from the Statement of Claim paragraph 1 (a) as it relates to assault, battery and intentional infliction of mental distress, 1 (b) in its entirety, paragraphs 2, 8, 9, 10, 11, 12, 13, 14, 15, 20, 21, 24, 25, 26, 28, 29 (a), (b), (d), (i) and (l), 31, 32 (a), (b), (c), (j), (k), (l), (n), (o) and (p), 33, 34 and 35 of the Statement of Claim without leave to amend;

(ii) there shall be an order to go dismissing the action against Maplehurst Correctional Complex and the Windsor jail; and

(iii) the Plaintiff shall serve and file a Fresh as Amended Statement of Claim leaving only those claims dealing with the slip and fall incident.

Costs

[32] It is clear that the Defendant was completely successful on this motion. At first glance the Defendant should be entitled to costs if sought. Unless I hear something compelling from the Plaintiff to the contrary, that ought to be the case. Nonetheless, if costs are sought by the Crown, it must serve and deliver its Costs Outline not exceeding four double-spaced pages, and Bill of Costs, together with any Offer(s) to Settle to me at my Kitchener chambers by August 14, 2015 and the Plaintiff’s reply costs submissions, including his Costs Outline similarly limited and any Offer to Settle(s) must be served and delivered to me at my chambers in Kitchener on or before September 2, 2015.

P.J. Flynn J.

Date: July 14, 2015