Conners v. Ontario, 2016 ONSC 7238

COURT FILE NO.: CV-11-441030 DATE: 2016-11-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William Conners, Plaintiff AND: Her Majesty the Queen in right of Ontario as represented by the Minister of Community Safety and Correctional Services and John Doe correctional officers, Defendants

COUNSEL: Brendan Jones, for the Moving Party Her Majesty the Queen in right of Ontario Aliza Karoly, for the Plaintiff

BEFORE: D.L. Corbett J. HEARD: August 18, 2016

JUDGMENT

[1] The moving party, the defendant Her Majesty the Queen in right of Ontario, seeks summary judgment dismissing this action against Ontario because the plaintiff, Mr Conners, failed to comply with the notice requirements of the Proceedings Against the Crown Act (“PACA” or the “Act”).

The Notice Requirements in PACA

[2] Subsection 7(1) of PACA provides:

… 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.

[3] Subsection 7(2) of PACA extends an applicable limitation period in certain circumstances where notice is required pursuant to subsection 7(1):

Where a notice of claim is served under subsection (1) before the expiration of the limitation period applying to the commencement of an action for the claim and the sixty-day period referred to in subsection (1) expires after the expiration of the limitation period, the limitation period is extended to the end of seven days after the expiration of the sixty-day period.

[4] A notice of claim must be in writing and must include a complaint which, if not satisfied, could reasonably be anticipated to result in litigation against the Crown.[^1] The focus is on the substance of what is communicated to the Crown rather than rigid formal requirements.[^2]

[5] Compliance with the sixty-day notice requirement in s.7(1) of PACA is mandatory. It cannot be abridged. An action commenced in violation of this requirement is a nullity. And the court has no discretion to relieve from this result.[^3]

Circumstances of this Case

(a) Written Notice From Plaintiff’s Counsel

[6] The plaintiff, William Conners, was assaulted by another inmate while incarcerated at the Central East Correctional Centre (“the prison”), a facility operated by Ontario. The assault took place on December 9, 2009.

[7] On November 30, 2011, Ontario received a letter from counsel for Mr Conners dated November 23, 2011, formally giving notice of a claim pursuant to PACA.

[8] Mr Conners commenced this action by notice of action on December 2, 2011. The notice of action was served together with the statement of claim in this action on February 28, 2012.

[9] This action was commenced less than sixty days after the written notice from plaintiff’s counsel. To the extent that reliance is placed on the written notice from counsel, the action was not commenced in accordance with PACA and is a nullity. Unless there is some other, earlier notice of claim in accordance with PACA, the court has no power to relieve from the non-compliance with the Act, the action is a nullity and should be dismissed as against Ontario.

(b) Alleged Prior Notice of the Claim

[10] During the assault on December 9, 2009, Mr Conners was beaten unconscious and his jaw was broken. Mr Conners was found lying on the floor by a corrections officer. The incident was recorded on an unmonitored prison video camera and a copy of the video was preserved after the incident was discovered.

[11] The corrections officer who found Mr Conner completed an “Accident/Injury Report” on the same day as the incident. That report was also signed by a nurse at the prison to attest to Mr Conners’ injuries and hospital attendance. The report also has a statement from Mr Conners himself relating to the incident. Nothing in Mr Conners’ statement suggests that the prison or its employees were responsible for the assault in any way.

[12] Also on the day of the incident, another statement was obtained by prison authorities from Mr Conners. Pictures were taken of Mr Conners’ swollen face and fractured jaw. There is nothing in the statement or the pictures that casts blame on the prison or its employees.

[13] Also on the date of the incident, Mr Conners was taken to Ross Memorial Hospital for treatment of his broken jaw. Mr Conners returned from the hospital with written instructions for medical staff at the prison. Mr Conners’ condition and course of treatment were recorded in detail in a “Health Care Record” maintained by the prison. Nothing in these documents casts blame on the prison or its employees.

[14] A Unit Manager at the prison, T. Bradley, maintained a log book of events. In it, Mr Bradley recorded for December 9, 2009:

… incident in unit 4C… inmate Conners assaulted…. Reviewed tapes of incident with C/O. Inmate McCartney removed from unit and placed in segregation….

At 1:00 pm the log book states “incident package completed and faxed.”

[15] Mr Bradley then met with Mr Conners and advised him that he had a right to pursue charges against his assaulter. Mr Conners signed a form for criminal charges to be initiated. Nothing in this form casts blame on the prison or its employees.

[16] In January 2010 (by which time Mr Conners was no longer in prison), Mr Conners gave a signed statement to a police officer, Scott Duffy. During that meeting Mr Conners was advised of rights he had arising from the incident and in particular his rights to pursue a claim for compensation from the Criminal Injuries Compensation Board. Nothing in the statement casts blame on the prison or its employees.

[17] I add that there was some debate before me as to whether the notice given to Mr Duffy could satisfy the requirements of PACA, because Mr Duffy was a police officer with the Kawartha Lakes Police Force and not an employee of the prison. Mr Duffy was assigned to investigate offences at the prison and provided Mr Conners with a business card with the name of the prison on it. In view of my conclusion that Mr Conners did not give Mr Duffy notice of a claim under PACA, this issue is not material. Since no notice was given to Mr Duffy, it matters not whether notice to an investigating police officer could, in the circumstances of this case, constitute notice to the Crown under PACA.

[18] My conclusion about the substance of the communications between Mr Conners and Mr Duffy are reinforced by Mr Conners’ conduct after the meeting. He took no steps to pursue a claim until there was a subsequent event causing him injury.

[19] In June 2010, Mr Conners was involved in a car accident. His jaw was re-injured (among other things). On the basis of the record on this motion, the overall results of the two injuries to the jaw have been significant for Mr Conners – far more than the consequences of the original injury in the prison assault.

[20] Mr Conners sought legal counsel in respect to his injuries from the car accident, and during the course of pursuing that claim it became evident that there could be an argument that some of Mr Conners’ injuries were caused, not by the car accident, but as a result the prison assault. It was only after this development that Mr Conners took steps to pursue a claim against Ontario. Thereafter the notice letter from counsel was sent and these proceedings were commenced.

[21] Mr Conners argues that all of these events, taken together, constitute notice to Ontario of Mr Conners’ claim.

[22] I do not accept this argument:

a. the statements given by Mr Conners on the day of the incident do not contain any suggestion that Mr Conners considered that Ontario was to blame for the injuries he suffered at the hands of Mr McCartney.

b. The discussions between Mr Conners and Mr Duffy in January 2010 concerned a possible claim by Mr Conners to the Criminal Injuries Compensation Board arising out of the conduct of Mr McCartney. There is no evidence that either Mr Conners or Mr Duffy raised the possibility of a claim by Mr Conners against Ontario, the prison, or persons working at or associated with the prison. Throughout, the discussion was premised on potential claims in respect to wrongdoing of Mr McCartney.

[23] Mr Conners argues that this case is similar to Latta v. Ontario, where notice of the facts surrounding an injury were found to be sufficient to satisfy the requirements of s.7(1) of PACA, even though the notice did not expressly threaten a claim against the Crown for compensation.[^4] In my view the cases should be distinguished.

[24] Latta was a trip-and-fall case. Mr Latta tripped over a sand-filled bucket left in a dangerous place. As a result he fell down some concrete stairs and suffered serious back injuries. The court held that notice of the circumstances of the accident was sufficient in that case to be notice of a claim because the circumstances were such that the Crown was the obvious entity with legal responsibility for the inherently dangerous situation on its premises. That is simply not the case here: there is no obvious implication that an unprovoked attack by one inmate upon another is the result of any misconduct by the Crown.

[25] In Latta, which was a “close case” (para. 31), the court found that there was “an element of complaint” in Mr Latta’s dealings with prison authorities at the time of the incident (para. 32). The court found:

… the appellant’s decision to inform prison officials about the accident and his identification of the actions of the Crown (leaving a bucket at the top of the stairs) as a cause of the accident entail a certain degree of “complaint”. It may not be, in explicit terms, the equivalent of “I fell down the stairs and it is your fault”; however, it goes beyond a simple “I fell down the stairs.” (para. 32)

In the case before me, there was nothing about Mr Conners conduct that could have led reasonable prison officials to have understood him to be implying “I was assaulted by McCartney and it is your fault.” Rather, what he said, in effect, was “I don’t know what happened because I was hit from behind”. He was told that McCartney did it and that a prosecution and claim for criminal injuries compensation was possible. These circumstances do not entail “a certain degree of ‘complaint’” about the prison or its employees.

[26] In Latta the Court of Appeal also found that the circumstances described by Mr Latta in the Accident/Injury Report suggest, on their face, the potential for litigation. The court found:

The accident itself is a visual paradigm for a lawsuit: a man trips over a bucket being used as a doorstop at the top of some stairs, falls down the stairs and is injured…. Although the report does not use the word “claim”, the content of the report and the nature of the accident have, in my view, a strong indication of “potential claim” about them. (para. 34)

The circumstances of Mr Conners’ case are not a “visual paradigm for a lawsuit”. Unfortunately, assaults by prison inmates on other inmates are not unheard of. The agency for injury is an inmate, not the prison or its employees. Of course could imagine circumstances where it might be possible to assert a claim against a prison for failing to protect an inmate from a known threat. There is no evidence that Mr Conners complained of circumstances that could give rise to such a claim – circumstances that could carry with them the “element of complaint” that would give notice to the prison that Mr Conners was saying to the prison that he was injured in an assault “and it is your fault.”

[27] I find that Mr Conners did not give notice in accordance with PACA on the day of the incident, or thereafter, until he learned that the injuries in the prison assault could affect the claim arising from his car accident. It was only at that stage that Mr Conners understood that he had a potential claim against Ontario and formulated an intention to possibly pursue that claim. At that point his lawyer sent the claim letter. Thus, as a matter of fact, I am satisfied that no notice was given prior to the letter from Mr Conners’ lawyer dated November 23, 2011.

(c) Waiver or Admission by the Crown

[28] The Crown responded to Mr Conners’ claim by delivering a statement of defence. That defence did not assert the PACA defence that is the subject-matter of this motion. Roughly a year after Ontario delivered its statement of defence, Ontario appointed outside counsel to defend the claim and then this motion was brought. Mr Conners argues three related points arising from these events:

(a) if there was non-compliance with PACA, the Crown waived this non-compliance by failing to raise this defence in its statement of defence;

(b) the failure to raise this defence was an admission that effective notice was given under PACA, and Ontario should not be permitted to waive this admission; and

(c) the failure to raise this defence was an admission that as a matter of fact, Ontario had received sufficient information from Mr Conners to constitute notice under PACA.

I do not accept these arguments.

(a) The Waiver Argument

[29] The waiver argument cannot succeed for two reasons. First, neither the court nor government lawyers can waive the requirements of PACA. The requirements of PACA are mandatory and it is for the plaintiff to prove that he has complied with them.[^5]

[30] In any event, Ontario did plead and rely upon PACA in para. 21 of its original statement of defence: that which is expressly pleaded cannot be said to have been waived by the pleading.

(b) The Admission Arguments

[31] It would be possible (and in some cases desirable) for the Crown to admit that it has received the required notice under PACA. When this happens, the plaintiff will not be required to elicit proof at trial of compliance with the provision. But in the absence of a clear, unambiguous admission, compliance with PACA is a condition precedent for a claim against the Crown that is governed by PACA, and the plaintiff is required to prove compliance as part of its case in chief.

[32] There is no pleaded admission by Ontario that Mr Conners complied with PACA. As noted above, there is an unparticularized pleading to the contrary relying on PACA.

[33] In its original statement of defence, Ontario defended the substantive allegations against it. Mr Conners argues that this shows that Ontario was able to investigate the circumstances of his claim on the basis of the information provided to it at the time of the incident, thus fulfilling the purpose of s.7(1) of PACA.

[34] Prison officials investigated the incident to identify Mr Conners’ assailant to remove him from the general prison population. Prison officials also passed the matter along to the Kawartha Lakes police for investigation and possible prosecution. It may well be that the investigation included a broader review of the prison’s response to the incident, reflecting the prison’s interest in maintaining order in prisons, responding to violence when it arises and, to the extent reasonably possible, avoiding incidents of violence in future. These points do not establish, however, that Ontario received a PACA notice from Mr Conners.

[35] The purpose and policy justification for s.7(1) do not subsume the requirements of s.7(1). As noted above under my review of the law, the technical requirements of s.7(1) are mandatory: they cannot be relieved from if there is non-compliance but no prejudice to Ontario. For example, the period prescribed by s.7(1) is sixty days. It might well be that in most cases Ontario conducts its preliminary investigation within fifty-nine days, and the additional 60th day is not necessary to fulfill the purposes of the provision. That is not a basis to reduce the time requirement in s.7(1). The notice requirement is statutory and mandatory and cannot be relieved from by recourse to its underlying purpose.

[36] Mr Conners came at this argument in another way as well: he argued that Ontario’s investigations provide evidence that Ontario did, in fact, receive sufficient notice under PACA. I have already addressed this argument, in substance, in my review of the Latta decision, above. Ontario knew of the incident shortly after it happened. It investigated for its own purposes, and it assisted Mr Conners with a potential criminal complaint against Mr McCartney and a potential claim to the Criminal Injuries Compensation Board. Ontario had its own interests in investigating the incident, in order to maintain order in the prison and protect other prisoners. Ontario had many of reasons to investigate, as it did, and an inference cannot be drawn that because Ontario investigated, it understood that there was an “element of complaint” by Mr Conners against the prison or its employees. In brief, the fact that Ontario did investigate is not a basis to infer that Ontario received notice in accordance with PACA.

Summary Judgment Principles

[37] The parties referenced standard authorities on summary judgment in Ontario.[^6] This case does not raise issues of principle concerning the law of summary judgment. All of the communications by and on behalf of Mr Conners to the prison that could be characterized as notice under PACA are before this court. The only one that could raise an issue of credibility that might require a trial process is the question of whether Mr Conners believed Mr Duffy was an employee of the prison instead of a police officer employed by the Kawartha Lakes police force. For the purposes of this decision I have assumed that this issue would be decided in Mr Conners’ favour.

[38] Mr Conners argued that the question of whether Ontario believed it had been given notice of a claim under PACA is a triable issue and would depend upon the court’s assessment of the totality of evidence respecting the information that came to the prison’s attention at and shortly after the time of the incident and the implications the court should draw from Ontario’s initial statement of defence. In my view those facts cannot lead to the conclusion urged on behalf of Mr Conners, for the reasons I have given.

[39] I am satisfied that I have all the material facts necessary to determine the PACA issue and that it is appropriate to decide the question now, before the parties invest further time and effort in a case that is bound to be decided in Ontario’s favour on the PACA issue.

Decision and Order

[40] The motion is granted and judgment shall issue dismissing the action as against Her Majesty the Queen in right of Ontario. Mr Conners’ point about Ontario’s delay in bringing this motion may have some force on the issue of costs, which the parties may wish to bear in mind when they try to resolve that issue. If the parties cannot agree upon costs then Ontario shall make brief costs submissions by December 1, 2016 and Mr Conners shall make brief responding submissions by December 15, 2016.

D.L. Corbett J.

Date: November 18, 2016

[^1]: Mattick Estate v. Ontario (Minister of Health) (2001), 2001 24086 (ON CA), 52 OR (3d) 221 (CA); Pfeiffer v. Ontario, 2008 ONCA 15; Olesiuk v. LeCompte (1991), 1991 7313 (ON SC), 2 OR (3d) 473 (Gen. Div.); Sidhu v. Ontario (Attorney General), 2012 ONSC 6993 (SCJ). [^2]: See for example Myrshall v. City of Toronto (2001), 52 OR (3d) 366 (CA); Latta v. Ontario, 2002 ONCA 4517; Olesiuk v. Lecompte, 1991 7313 (ON SC), 2 OR (3d) 473 (Gen. Div.); Coulter v. Ontario, 2014 ONSC 1573 (SCJ). [^3]: Miguna v. A.G. Ontario (2005) 2005 46385 (ON CA), 262 DLR (4th) 222 (Ont. CA); Beardsley v. Ontario (2001), 2001 8621 (ON CA), 57 OR (3d) 1 (CA); Holstock v. Her Majesty the Queen, 2015 ONSC 4516 (SCJ); Zuliani Ltd. v. City of Windsor (1973), 1973 671 (ON SC), 2 OR (2d) 598 (S.C.); Garrett v. Oldfield, 2014 ONSC 508 (SCJ). [^4]: Latta v. Ontario (2002), 2002 45117 (ON CA), 62 OR (3d) 7 (CA). [^5]: Holstock v. Her Majesty the Queen, 2015 ONSC 4516 (SCJ); Kirkpatrick v. McIntosh, 1989 1499 (NBQB). [^6]: Hryniak v. Mauldin, 2014 SCC 7; Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200; affd. 2014 ONCA 878, leave to appeal denied 2015 39803 (SCC).