Conklin v. R, 2017 ONSC 7645

CITATION: Conklin v. R, 2017 ONSC 7645

COURT FILE NO.: CV-15-65350

DATE: 2017/12/20

SUPERIOR COURT OF JUSTICE

ONTARIO

BETWEEN

IAN GORDON CONKLIN Applicant

– and –

Her Majesty the Queen in Right of Ontario, Ministry of Community Safety and Correctional Services, Ottawa Carleton Detention Centre, Gaston Thibodeau, Maureen Harvey, Robert J. Taite, John Doe and Jane Doe Respondent

COUNSEL:

Jonathan M. Richardson, Counsel for the Applicant

Jim Smith and Meagan Williams, Counsel for the Respondent

AMENDED ENDORSEMENT

O’bonsawin, J.

[1] This is a Motion by Her Majesty the Queen in Right of Ontario et al. (HMQ) for the following:

(a) an Order striking all claims against HMQ, John Doe and Jane Doe arising from allegations concerning Mr. Conklin’s detention in the Ottawa Carleton Detention Centre, as statute barred by the clear expiry of the limitation period;

(b) in the alternative, an Order striking the claims, without leave to amend, as disclosing no reasonable cause of action against Maureen Harvey; and

(c) an Order striking the improperly-named Ministry of Community Safety and Correctional Services and Ottawa Carleton Detention Centre from the style of cause as improper parties.

[2] Mr. Conklin was arrested and charged with possession of narcotics, drug trafficking and conspiracy to distribute narcotics on May 30, 2010 and was detained at the Ottawa Carleton Detention Centre (OCDC). He was released from OCDC on August 13, 2013. The charges against Mr. Conklin were stayed on June 27, 2014.

[3] A Notice of Action was issued on August 12, 2015 but was not served on the Crown until May 26, 2016 with the Statement of Claim. Mr. Conklin claimed damages against HMQ arising from his time at OCDC and in respect of the police investigation and criminal charges.

[4] The main issue for issue (a) is that Mr. Conklin’s counsel at the time did not provide the mandatory statutory notice of sixty days prior to commencement of any claim against HMQ pursuant to s. 7 of the Proceedings Against the Crown Act (PACA). Failure to provide the mandatory statutory notice renders the claim a nullity.

[5] Mr. Conklin’s counsel never provided HMQ with the mandatory notice. Instead, he brought an ex parte motion in front of Master Champagne on January 29, 2016 to extend time for the service of the claim. HMQ or any of the other Defendants were not notified of the motion and Mr. Conklin’s counsel did not inform Master Champagne of the requirements under PACA.

[6] Master Champagne ordered that the time for service of the Statement of Claim and the Notice of Action were extended to June 1, 2016. Notwithstanding Master Champagne’s order, the requirement under PACA still applies to this matter.

[7] In Miguna v. Ontario (Attorney General) 2005 CanLII 46385 (ON CA), [2005] O.J. 5346, the Court of Appeal confirmed that if the statutory notice is not served, the action is a nullity and the requirement cannot be waived. The Court of Appeal stated:

The action against Her Majesty the Queen is a nullity because it was not commenced in compliance with s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. That section provides that no action may be commenced against the Crown without sixty days prior notice having been given. Here, the Crown was provided with notice of intention to sue on September 1, 2004. The statement of claim was issued on September 13, 2004.

As a result of the failure to comply with these requirements the action is a nullity and was properly struck. The appeal in this respect must therefore be dismissed (para. 7-8).

[8] Mr. Conklin referred me to Chiarelli v. Wiens (2000) 2000 CanLII 3904 (ON CA), 46 O.R. (3d) 780 (Ont. C.A.). Chiarelli was regarding an extension of time to serve a Statement of Claim. However, it was not a case of an issue relating to the missed notice in accordance with PACA and therefore is not relevant to this matter.

[9] Based on the clear facts that Mr. Conklin did not provide the required notice in accordance with PACA, I strike Mr. Conklin’s claims against HMQ. Consequently, Mr. Conklin’s claim related to HMQ now rests in his negligence claim against his former lawyer for missing the notice period.

[10] With respect to issue (b) regarding Ms. Harvey, she was the superintendent of OCDC at the time of Mr. Conklin’s incarceration. In paragraph 93 of the Amended Statement of Claim, Mr. Conklin states: “that the staff of the OCDC, its management, supervisors and the Crown caused serious and permanent damage and injury to the Plaintiff” and lists 10 related situations.

[11] HMQ refers me to Deep v. Ontario [2004] O.J. No. 2734. In Deep, Spence J. concluded that the action failed to disclose any allegations against the general manager of the Ontario Health Insurer Plan in his personal capacity. “The plaintiff’s action against them reveals no cause of action and it is plain and obvious that his claim against them cannot succeed.”

[12] HMQ also refers me to Persaud v. Ontario (Attorney General) [2008] O.J. No. 2953. In Persaud, the claim against the guard was dismissed because “if an assault occurred then the plaintiff may have a cause of action but it is against Her Majesty the Queen in Right of Ontario, not the guard” (para. 55).

[13] In Mr. Conklin’s case, paragraph 93 of his Amended Statement of Claim does not provide particulars enough to link Ms. Harvey in her personal capacity. It is plain and obvious that Mr. Conklin’s claim against Ms. Harvey cannot succeed. Consequently, I strike the claim against Ms. Harvey.

[14] With regards to issue (c), Mr. Conklin has conceded that the Ministry of Community Safety and Correctional Services and the Ottawa Carleton Detention Centre can be struck from the style of cause since they are Ministries of the Government of Ontario and not appropriate legal entities.

[15] Lastly, Mr. Conklin brings a Cross-Motion to consolidate files CV-15-65350 and CV-17-00073102. It is clear that both cases should be consolidated since they are based on the same set of facts and seek identical relief with the exception of the added parties in the 2017 file. In essence, HMQ agrees that they should be consolidated. I therefore order the consolidation of both files. It must be noted, however, that my ruling regarding the striking of HMQ and Ms. Harvey as parties also applies to file CV-17-00073102. The filing of the 2017 file was seen as a way to move forward with the 2015 claim since there was no procedure to put a 2017 file number to this matter.

[16] Based on the reasons above, I make the following Orders:

(a) all claims against HMQ, John Doe and Jane Doe arising from allegations concerning Mr. Conklin’s detention in the Ottawa Carleton Detention Centre are struck;

(b) all claims against Maureen Harvey are struck;

(c) the Defendants, Ministry of Community Safety and Correctional Services and Ottawa Carleton Detention Centre are struck from the style of cause as improper parties;

(d) files CV-15-65350 and CV-17-00073102 are consolidated and orders (a), (b) and (c) apply to both files; and

(e) based on the Costs Outline that I have reviewed and agree is reasonable, Mr. Conklin must pay HMQ’s costs at a partial indemnity rate of $7,997.57 within 30 days of this Endorsement.

Justice M. O’Bonsawin

Released: 2017/12/20

CITATION: Conklin v. R, 2017 ONSC 7645

COURT FILE NO.: 15-65350

DATE: 2017/12/20

SUPERIOR COURT OF JUSTICE

ONTARIO

IAN GORDON CONKLIN Applicant

– and –

Her Majesty the Queen in Right of Ontario, Ministry of Community Safety and Correctional Services, Ottawa Carleton Detention Centre, Gaston Thibodeau, Maureen Harvey, Robert J. Taite, John Doe and Jane Doe Respondent

AMENDED Endorsement

Justice M. O’Bonsawin

Released: 2017/12/20