COURT FILE NO.: CV-13-476568 COURT FILE NO.: CV-13-483961 DATE: 20170705

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PAUL ALEXANDER COOPER and CANDICE HOPKINS Plaintiffs – and – MATTHEW COMER, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO and THE ONTARIO MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES Defendants

AND BETWEEN:

PAUL ALEXANDER COOPER and CANDICE HOPKINS Plaintiffs – and – MATTHEW COMER, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO and THE ONTARIO MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES Defendants

Paul Alexander Robson for the Plaintiffs Ian MacLeod for the Defendant, Her Majesty the Queen in Right of Ontario as Represented by the Attorney General for the Province of Ontario and the Ontario Ministry of Community Safety and Correctional Services

HEARD: June 27, 2017

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In what I will describe as the first action, the defendant Her Majesty the Queen in Right of Ontario as Represented by the Attorney General for the Province of Ontario and the Ontario Ministry of Community Safety and Correctional Services (the “Crown”) brings a summary judgment motion. In the first action, the Crown moves to have the action of Paul Alexander Cooper and Candice Hopkins dismissed as statute-barred under s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 and also under ss. 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[2] In what I will describe as the second action, which is a clone of the first action, the court’s registrar administratively dismissed the action. In the second action, Mr. Cooper and Ms. Hopkins bring a motion to have the registrar’s order set aside to have the clone action restored. The Crown opposes the motion to set aside the administrative dismissal.

[3] For the reasons that follow, I set aside the administrative dismissal, and then I dismiss both the first and the second action as statute-barred.

B. Factual and Procedural Background

[4] The co-plaintiff, Candice Hopkins, is Mr. Cooper’s common law spouse and his litigation guardian as of March of this year.

[5] In 2011, Mr. Cooper and the defendant, Matthew Comer, were inmates at the Central North Correctional Centre, which is operated by the Crown, in Penetanguishene, Ontario.

[6] Mr. Cooper and Ms. Hopkins allege that on March 21, 2011 [sic March 22, 2011?], at Central North Correctional Centre, Mr. Comer assaulted Mr. Cooper. After the assault, which was apparently made to coerce Mr. Cooper to plead guilty at a court appearance later that day, he was transferred from the Correctional Centre to court, where he did plead guilty to several Criminal Code offences. Mr. Cooper was sentenced to 85 days in jail to be served intermittently on Mondays and Tuesdays.

[7] Within a day of the assault, Mr. Cooper reported to Curtis DesRoches, a Security Manager at Central North Correctional Centre, and to Jon Beninger, another Security Manager, that he had been assaulted by another inmate known as “Irish”. Mr. Cooper, however, declined to make a formal complaint, and he did not request any medical attention. The Incident Report, which included events after March 21, 2011, prepared by Mr. DesRoches stated:

On Thursday March 22, 2011 [sic March 24, 2011?], I, along with Security Manager, Jon Beninger met with COOPER at on [sic] off-site location. COOPER explained that he wanted to provide use with information. Inmate COOPER went on to state that he had been assaulted at Unit 1D just prior to going to court on Wednesday [sic Tuesday?] March 21, 2011 [sic March 22, 2011?]. COOPER stated that he was punched once by another inmate that is known to him as “Irish”. COOPER stated that he was threatened by Irish that he needed to plead guilty in court because if he came back to CNCC he would regret it. COOPER said that he went to A&D and then to court. He pled guilty and was sentenced to 85 days to be served intermittently commencing March 28, 2011. He was subsequently released. COOPER stated that at no time did he inform anyone at CNCC about the assault. When questioned whether he now wanted to make a formal report of assault, he adamantly refused. He stated that it was out of fear of reprisal. I informed him that I would respect his decision but strongly urged him to reconsider. He stated that he would not “rat” on anyone as it placed him in danger.

[8] Mr. Cooper’s sentence was to be served beginning March 28 on Mondays and Tuesdays, and he attended for the first two sessions.

[9] Between April 9, 2011 and April 11, 2011, Mr. Cooper was admitted and then released from a hospital. He had surgery for a head injury.

[10] On April 14, 2011, Mr. Cooper wrote Mr. DesRoches. The letter stated:

To Whom It May Concern

I, Paul Alexander Cooper, am writing this letter to ask for a change in my sentence. New circumstances have indicated that should my sentence not be changed, it would not only affect my physical well-being, but possibly the well-being of my family.

On March 22, 2011, I was assaulted at Central North Correction Centre prior to my court appearance. Though my intentions were to plead innocent to the charges I was faced with, I was instructed by another inmate to do the opposite followed by the physical violence and further threats. I did not have a medical professional exam [sic] me at that time.

However, the injury from the 22nd had continued to affect my ability to operate my business as my health declined. I was suffering from severe headaches, nausea, and vomiting amongst other symptoms. I was misdiagnosed by my family doctor as well as the physicians at Soldiers Memorial on two occasions.

Finally, on April 9th, I was instructed to attend Sunnybrook Hospital in Toronto. I was admitted into the Intensive Care Unit at approximately 11 p.m. After further testing, the neurosurgeon indicated that they had to operate immediately on April 10th. The injury was causing a crack in my skull, tearing the tissue that surrounds my brain causing brain and spinal fluid to leak through my perforated ear drum.

… Though my operation was completed to repair the damage, my ear drum remains perforated, allowing germs/bacteria to enter my cranium. …

Given the dangerous repercussions of continuing my sentence at the facility, I ask that my sentence be changed to accommodate my current health conditions and safe recovery.

[11] Mr. Cooper failed to serve his scheduled sentence on April 18 and 19 and a warrant was issued for his arrest.

[12] On April 20, 2011, Mr. DesRoches spoke to Ms. Hopkins by telephone and was advised that Mr. Cooper had been admitted to the psychiatric ward of Soldiers’ Memorial Hospital.

[13] On April 21, 2011, Mr. Cooper phoned Mr. DesRoches to say that he should be under house arrest and should not be serving a sentence of incarceration. He said that he had been admitted to the hospital because of a suicide attempt. Mr. DesRoches advised Mr. Cooper that because of the letter of April 14, 2011, he was now going to report the assault incident to the police. Mr. DesRoches suggested that Mr. Cooper consult a lawyer about what to do about the outstanding arrest warrant.

[14] On April 28, 2011, Mr. DesRoches prepared his Incident Report and also reported the incident to the police. There was no follow up by Mr. DesRoches or by the Crown after the incident was reported to the police, and it is not known whether the police followed up either.

[15] Mr. Cooper resumed his intermittent sentence and on May 3, 2011, Mr. Cooper spoke to a healthcare practitioner at the Correctional Centre. The Health Care Record indicates that Mr. Cooper said that he had been punched in the head but had not told anyone about it.

[16] It appears that Mr. Cooper completed his sentence, and the Correctional Services Offender Tracking Information System Client Profile for him indicates that in 2012, he successfully appealed his conviction and his probation order was terminated in April 2012.

[17] Nothing appears to have happened about commencing proceedings for the next year and a half until on March 20, 2013, Mr. Cooper and Ms. Hopkins commenced the first action (Court File No. CV-13-476568) by Notice of Action. In the first action, Mr. Cooper sued Mr. Comer for assault and the Crown for negligence.

[18] Before commencing the first action, Mr. Cooper did not provide any notice under s. 7(1) of the Proceedings against the Crown Act. Section 7 of the Act states:

Notice of claim

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.

Limitation period extended

(2) Where a notice of a 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.

Notice of claim for breach of duty respecting property

(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.

[19] On April 18, 2013, the Notice of Action, now coupled with a separate Statement of Claim in the first action, was served on the Crown.

[20] On April 24, 2013, the Crown wrote Paul Robson, the lawyer of record for Mr. Cooper and Ms. Hopkins, to advise that it would treat the Notice of Action in the first action as notice under s. 7 of the Proceedings against the Crown Act effective April 18, 2013. In the letter, the Crown advised that the first action should be discontinued and a new action commenced. Inconsistently, the Crown also advised that the first action should be consolidated with the first action. The letter from the Crown stated:

…. Please also note that section 7 of the Proceedings Against the Crown Act requires that you serve notice on the Crown at least 60 days before a Notice of Action is issued. We have no record of any notice of your client’s intention to sue Her Majesty the Queen prior to the issuance of the Notice of Action. If such notices were given, we would appreciate your providing use with a copy of the notice, together with details as to where and when it was delivered.

The courts have held that failure to give notice renders the claim a nullity. We are therefore not able to waive or abridge the notice requirement. We are prepared to treat the Notice of Action and Statement of Claim as notice under section 7, effective April 18, 2013. You should discontinue the existing action against Her Majesty the Queen in right of Ontario as represented by the Attorney General of the Province of Ontario and the Ontario Ministry of Community Safety and Correctional Services.

The usual procedure is to commence another action against Her Majesty the Queen in right of Ontario after the expiry of the requisite 60 days and then consolidate the new action with the existing action. However, any new action may have limitation period issues.

In any event, we do not intend to file a Statement of Defence unless you can satisfy us that the requirements of the Proceedings Against the Crown Act have been met.

In the meantime, we have referred the matter to our adjusters.

[21] On July 3, 2013, the Mr. Cooper and Ms. Hopkins commenced the second action (Court File No. CV-13-483961) and filed a Statement of Claim in the second action. Mr. Cooper and Ms. Hopkins did not discontinue the first action.

[22] On October 11, 2013, the Crown served its Statement of Defence and Crossclaim which was numbered in the second action.

[23] However, on October 25, 2013, the Crown filed its Statement of Defence and Counterclaim, which was numbered as the second action, in the court file for the first action.

[24] By way of defence, among other things, the Crown pleaded that the action was statute-barred under the Proceedings against the Crown Act and the Limitations Act, 2002. The crossclaim was for contribution and indemnity from Mr. Comer.

[25] In November 2013, Mr. Robson contacted Ian MacLeod, counsel to the Crown. Mr. Robson advised that he was going to take steps to have a litigation guardian appointed for Mr. Cooper and that he was pursuing obtaining assessments of Mr. Cooper’s mental capacity.

[26] On February 28, 2014, the registrar administratively dismissed the second action as abandoned pursuant to then rule 48.15 of the Rules of Civil Procedure. Neither party was aware of the administrative dismissal of the second action for the next three years.

[27] It seems that both actions were dormant between November 2013 and February 2016, when Mr. Robson advised Mr. MacLeod that he was still looking into an assessment of Mr. Cooper’s mental capacity. During the dormant period, Mr. Robson was experiencing difficulty obtaining instructions. Kevin Roche, Mr. Robson’s law clerk, deposed that during much of the dormant period, because of physical and mental health problems, Mr. Cooper was not communicating with Mr. Robson, and during this period, Ms. Hopkins was estranged from Mr. Cooper. They subsequently reconciled.

[28] In the fall of 2016, the Crown decided to bring a summary judgment motion, to address the long outstanding issue of notice under the Proceedings Against the Crown Act, and on October 28, 2016, the parties attended in Civil Practice Court, and Justice McEwen set a timetable and made the motion returnable on March 8, 2017.

[29] On December 22, 2016, the Crown formally brought its summary judgment motion in the first action.

[30] On March 8, 2017, the summary judgment motion came on before me, and I made the following endorsement:

This is a motion by the defendant Crown for a summary judgment based on several limitation period defences. The plaintiff Paul Cooper seeks an adjournment in order to appoint his co-plaintiff Candice Hopkins his litigation guardian and to file, albeit late, responding material. I grant the adjournment request by appointing by appointing Ms. Hopkins litigation guardian and adjourning the motion to Friday June 9, 2017. The adjournment is peremptory as against the plaintiffs, who have 45 days to deliver responding materials. I shall remain seized of the matter. I award the Crown costs of the adjournment of $1,500 in any event of the cause.

[31] On April 12, 2017, Mr. Cooper attended on a chiropractor, Dr. Roger L. Turner, D.C. for treatment for spine and head injuries.

[32] On May 2, 2017, Mr. Cooper and Ms. Hopkins delivered an affidavit from Neda Pari, Mr. Robson’s other law clerk. In her affidavit, Ms. Pari deposes that Mr. Cooper was incapable of commencing a proceeding because of his physical, mental, or psychological condition and she will attach, upon receipt, a letter from Mr. Cooper’s treating neurologist. Subsequently, no letter from a neurologist was ever delivered to complete Ms. Pari’s affidavit.

[33] On May 25, 2017, the Crown learned that the second action had been administratively dismissed.

[34] On June 5, 2017, Mr. Cooper and Ms. Hopkins became aware of the administrative dismissal of the second action.

[35] On June 5, 2017, Mr. Cooper and Ms. Hopkins served an affidavit from Dr. Turner, D.C. From present purposes, the pertinent parts of Dr. Turner’s report stated:

Cranial Examination

The scar from the surgery was evident …. The whole left section was flat and or intended. The left side of the brain is where language, comprehension, logic and communication are. This is the reason why his ability to understand written and spoken language was interfered with. This is significant in his case and possibly the reason why he missed his deadlines.

There were multiple areas in the skull that were misaligned: …..

Prognosis

Mr. Cooper has had four treatments so far and has improved substantially. There is considerable damage to the brain adjacent to the misaligned segments of the skull. It is possible to correct these misalignments both in the skull and the spine. It will take time to do this and also takes time to regenerate the damaged areas. Brain cells can take up to fourteen months to generate. ….

Observations:

From my observations of his physical and mental and emotional condition upon my initial exam and his subsequent treatments so far that due to the nature and extent of his injury, it is possible if not probable that he was unable to comprehend and comply with the limitation period. It is reasonable to conclude that Mr. Cooper was unable to commence an action prior to expiry of the limitation period and that the limitation period should not commence until after he recovers from his brain injury.

[36] The parties returned on June 9, 2017 for the summary judgment motion, and Mr. Cooper and Ms. Hopkins, notwithstanding that I had made the first adjournment peremptory, requested another adjournment. I granted this request largely to deal with the circumstance of the administrative dismissal of the second action. I made the following endorsement:

This is a motion for summary judgment peremptory today as against the plaintiffs. The plaintiffs request another adjournment to bring a motion in another action that mirrors this action but that was administratively dismissed. The plaintiffs wish to have the administrative dismissal set aside and proceed with one or the other action. It seems to me that both actions should be dealt with and a multiplicity of actions and motions avoided. I am, therefore, granting the adjournment on the following terms: (1) the motion is adjourned to Tuesday June 27, 2017 (11 am) peremptory as against the plaintiff; (2) no additional materials may be filed in this action or motion; (2) the plaintiff shall deliver a notice of motion and supporting affidavit limited to the purpose of setting aside the administrative dismissal in the mirror action (Court File No. CV-13-483961) by June 22, 2017 and the motion shall be heard together with this motion on June 27, 2017; (4) costs reserved to the return of the motions.

[37] On June 9, 2017, Ms. Hopkins delivered an affidavit attaching Dr. Turner’s curriculum vitae. Also on June 9, 2017, Dr. Turner was cross-examined.

[38] The summary judgment motion and the motion to set aside the registrar’s order were argued on June 27, 2017, and I reserved judgment.

C. Discussion and Analysis

1. The Reinstatement of The First Action

[39] The first matter to address is Mr. Cooper’s and Ms. Hopkins’ motion to set aside the registrar’s order dismissing the second action.

[40] To summarize the procedural farce that has been ongoing for four years, in the first action, Mr. Cooper and Ms. Hopkins did not deliver a notice under the Proceedings Against the Crown Act but did deliver a Notice of Action, and a Statement of Claim, and the Crown delivered a Statement of Defence from another action, which is a clone of the first action. In the second action, Mr. Cooper and Ms. Hopkins have delivered a Statement of Claim, but the Crown has served but not filed a Statement of Defence, having filed that pleading in the first action, which is that action in which the Crown brings its summary judgment motion having in an inconsistent way invited Mr. Cooper and Ms. Hopkins to commence the clone action as a replacement for the first action.

[41] The fact that the Crown filed its Statement of Defence from the second action in the court file for the first action probably explains why the registrar administratively dismissed the second action, which was bereft of the defendant’s pleading or a default judgment and appeared to have been abandoned.

[42] The case law has recognized factors for the court to consider and qualifications or prerequisites to satisfy before the order of a registrar will be varied or set aside. The factors, however, are not absolute requirements, and the court will adopt a contextual approach and consider all the relevant factors and balance the interests of the parties in determining whether to set aside the dismissal order: Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 OR (3d) 179 (CA); Marche D’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 OR (3d) 660 (CA); Finlay v. Van Paassen, 2010 ONCA 204, [2010] OJ No. 1097 (CA); Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, [2010] OJ No. 2225 (CA); Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887.

[43] The rights of both the plaintiff and the defendant must be considered to determine ultimately whether it would be fair and just to set aside the dismissal and to allow the action to proceed: Chrisjohn v. Riley, 2015 ONCA 713.

[44] The issue of prejudice is a key consideration on a motion to set aside a dismissal order, and the court must balance the prejudice to the defendant’s ability to defend should the action be restored balanced against the prejudice to the plaintiff from having his or her case dismissed without a determination of its merits: Labelle v. Canada Border Services Agency, 2016 ONCA 187; MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28; 806480 Ontario Ltd. v. RNG Equipment Inc., 2014 ONCA 488; Hamilton (City) v. Svedas Koyanagi Architects Inc., supra.

[45] In the bizarre circumstances of the two actions now before the court, it is not necessary to undertake an analysis of the matrix of factors that the court may consider in determining whether to set aside a registrar’s administrative dismissal of an action. At the moment, the Crown is bringing a summary judgment motion in an action in which technically it served but did not file its Statement of Defence and in which it has taken the position that the action is a nullity for failure to comply with the Proceedings Against the Crown Act.

[46] In my opinion, it is necessary to set aside the administrative dismissal in the second action in the interests of justice so that both the action and its clone can be before the court and may fairly be dealt with in accordance with the obvious intention of the parties to prosecute and defend the second action and not the first action alleged to be nullity.

[47] I, therefore, shall set aside the administrative dismissal of the second action and treat the Crown’s summary judgment motion as being brought in both the first and also the second action.

2. The Test for Summary Judgment

[48] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:

20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[49] In Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[50] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

[51] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., [1998] OJ No. 3240 (CA); Bluestone v. Enroute Restaurants Inc. (1994), 18 OR (3d) 481 (CA); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 SCR 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 OR (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 OR (3d) 423 (Gen. Div.), aff’d [1997] OJ No. 3754 (CA).

[52] To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings: Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.

3. Relevant Provisions of the Limitations Act, 2002

[53] Section 7 of the Proceedings Against the Crown Act is set out above. The relevant provisions of the Limitations Act, 2002 are sections 1, 4, 5, and 7, which state:

Definitions

1. In this Act, …

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; ….

BASIC LIMITATION PERIOD

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

Incapable persons

7. (1) The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b) is not represented by a litigation guardian in relation to the claim.

Presumption

(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.

4. Are Mr. Cooper’s and Ms. Hopkins’ Actions Statute-Barred?

[54] I begin the discussion of whether Mr. Cooper’s and Ms. Hopkins’ actions are statute-barred by noting that Mr. Cooper and Ms. Hopkins abandoned their argument that s. 7 of the Proceedings Against the Crown Act contravened the Canadian Charter of Rights and Freedoms, and they submitted that there was only one issue to be resolved; namely, whether the evidence advanced by Dr. Turner raises a triable issue as to whether s. 15(4)(a) [sic. s 7(1)] of the Limitations Act, 2002 might apply, in which case the Crown’s summary judgment motion should be dismissed and the action should proceed to trial in the normal course.

[55] I disagree with Mr. Cooper’s and Ms. Hopkins’ submission that the only issue to be decided is whether there is a genuine issue for trial about whether the limitation period did not run because Mr. Cooper was incapable of commencing a proceeding because of his physical, mental or psychological condition. I will, however, address that issue first and then consider the other issues associated with whether their claims are statute-barred.

[56] Under s. 7(2) of the Limitations Act, 2002, a person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved. In the case at bar, Mr. Cooper raises the question of his capacity to commence a proceeding in respect of his claim and the onus is on him to rebut the statutory presumption that he was capable of commencing a proceeding. Mr. Cooper has failed to rebut the presumption.

[57] Mr. Cooper did not provide any medical or hospital records to substantiate any mental incapacity or to confirm his apparently short stays in hospital for surgery. Despite the promise to do so, no evidence from a neurologist was proffered. The circumstantial evidence, including the facts that he was attempting on his own initiative to obtain a house arrest rather than an intermittently served sentence and that after the assault, he was able to successfully appeal his criminal conviction rather suggests that whatever his state of mental health, he was competent to instruct counsel and make decisions about his legal rights and obligations.

[58] Albeit late, Mr. Cooper gave instructions to Mr. Robson to commence both the first and the second action, and there was no apparent need to appoint a litigation guardian in 2013 when both actions were commenced.

[59] Dr. Turner’s evidence about an inability to meet limitation period deadlines does not assist Mr. Cooper. Indeed, Dr. Turner’s evidence is useless for a plethora of reasons.

[60] Dr. Turner was not and could not be qualified as an expert having regard to his areas of expertise as a chiropractor. He was not qualified to give opinion evidence as a treating practitioner about Mr. Cooper’s mental capacity. In his affidavit, Dr. Turner incorrectly described himself as a treating physician but he is not a physician, psychiatrist, or a psychologist; he is a chiropractor with no expertise or qualifications to opine about brain injuries and cognitive capacity. Moreover, Dr. Turner demonstrated no facility with the legal test for determining capacity, and he had no basis for forming any opinion, even if he was qualified to give it, which he was not. He did not review Mr. Cooper’s medical or hospital records and performed no tests. Further still, Dr. Turner did not comply with the requirements of delivering a proper expert’s report, and he demonstrated himself to be a partisan for Mr. Cooper and he was not an independent and impartial witness offering assistance to the court. He was unfamiliar with the duties that experts owe to a court.

[61] Dr. Turner did not perform particularly well under cross-examination, and his testimony underscored the above weaknesses in his evidence, which I repeat he was not qualified to give. Under cross-examination, he acknowledged that the scope of authorized practice for chiropractors does not include psychological or psychiatric evaluation but rather is limited to the assessment of conditions related to the spine, nervous system, and joints. He acknowledged that chiropractors cannot perform surgery or provide advice about surgery and chiropractors cannot diagnosis mental illness.

[62] There is thus no genuine issue requiring a trial about Mr. Cooper’s legal capacity to commence a proceeding against the Crown. He had the requisite capacity and the running of the limitation period was never suspended.

[63] Turning then to the issue of whether the first action and the second action are statute-barred. Apart from the issue concerning the suspension of the running of the limitation period due to Mr. Cooper’s alleged incapacity to commence an action, it was not disputed and there is no genuine issue for trial that the second action is statute-barred under the Limitations Act, 2002. Under the Act, pursuant to the operation of s. 5 (2), Mr. Cooper is presumed to have discovered his claim on March 22, 2011 and the second action was not commenced until July 3, 2013, after the tolling of the limitation period.

[64] There is also no genuine issue requiring a trial that the second action is statute-barred under the Proceedings Against the Crown Act for two reasons.

[65] First, for the purposes of the second action, the Notice of Action and Statement of Claim were treated as the notice required under the Act effective April 18, 2013. However, by April 18, 2013, the action against the Crown was already statute-barred, and thus the notice was not served before the expiry of the limitation period and the action was statute-barred under the Proceedings Against the Crown Act.

[66] Second, assuming that the action against the Crown was not already statute-barred as of April 18, 2013, then Mr. Cooper and Ms. Hopkins were statutorily obliged to wait 60 days before commencing an action and then they had seven days to commence their action; i.e., they had to commence the second action by no later than 67 days after the notice of April 18, 2013, but they commenced the action on July 3, 2013 which was on the 76th day, and thus they missed the deadline by nine days, and their action is statute-barred under the Proceedings Against the Crown Act.

[67] The sixty-day notice requirement under the Act cannot be abridged in any way; Beardsley v. Ontario, [2001] OJ No. 4574 at para. 12 (CA). Neither the Crown nor any court has any discretion to relieve against the technical requirements of s. 7(1) of the Proceedings Against the Crown Act: Leclair v. Ontario (Attorney General), [2008] OJ No. 2701 at para. 15 (Master), aff’d 2009 ONCA 470; Holstock v. Ontario (Ministry of Community Safety and Correction Services, 2015 ONSC 4516 at para. 19.

[68] There is also no genuine issue requiring a trial that the first action is statute-barred under the Proceedings Against the Crown Act for two reasons.

[69] First, Mr. Cooper commenced the first action on March 20, 2013, but he did not, at least 60 days before the commencement of that action, serve on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose. Any claim commenced without giving notice is a nullity: Daoust-Crochetiere v. Ontario (Minister of Natural Resources), 2014 ONSC 1340, aff’d 2014 ONCA 776, leave ref’d [2015] SC CA No. 16; Holstock v. Ontario (Ministry of Community Safety and Correction Services, supra at para. 20; Sidhu v. Ontario (Attorney General), 2012 ONSC 6993; Adamson v. Ontario, 2014 ONSC 3787 at para. 51.

[70] Second, on the assumption that the first action was not a nullity and the Notice of Action and Statement of Claim in that action could somehow be treated as a notice of the claim under s. 7 of the Proceedings Against the Crown Act, then once again Mr. Cooper and Ms. Hopkins would have to wait 60 days before asserting their claim, which they never did in first action, and if the Statement of Claim in the second action is taken as the assertion of their claim in the first action, for the reasons already expressed above, the claim was past the deadline.

D. Conclusion

[71] For the above reasons, I dismiss both actions as statute-barred under the Proceedings Against the Crown Act and under the Limitations Act, 2002.

[72] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Crown’s submissions within 20 days of the release of these Reasons for Decision followed by Mr. Cooper’s submissions within a further 20 days.

Perell, J.

Released: July 5, 2017

COURT FILE NO.: CV-13-476568 COURT FILE NO.: CV-13-483961 DATE: 20170705 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PAUL ALEXANDER COOPER and CANDICE HOPKINS Plaintiffs – and – MATTHEW COMER, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO and THE ONTARIO MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES Defendants AND BETWEEN: PAUL ALEXANDER COOPER and CANDICE HOPKINS Plaintiffs – and – MATTHEW COMER, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO and THE ONTARIO MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES Defendants REASONS FOR DECISION PERELL J. Released: July 5, 2017