COURT FILE NO.: CV-15-0381
DATE: 2018-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GEORGE COLLINS and GAIL COLLINS
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF NATURAL RESOURCES and HEARST FOREST MANAGEMENT INC.
Defendants
E. Morris, for the Plaintiffs
J. Glick, for the Defendant Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Natural Resources
B. Babcock, for the Defendant Hearst Forest Management Inc.
HEARD: March 15 and April 24, 2018, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion
Overview
[1] In this case, a notice of action was issued on August 21, 2015 and a statement of claim was filed on September 17, 2015. The notice of action together with the statement of claim was to be served within six months or by the end of February 2016. No attempts were made to serve the defendants.
[2] Almost two years after service should have been effected, the plaintiffs now seek leave to extend the time for service.
[3] The defendant Her Majesty the Queen in Right of Ontario as represented by the Ministry of Natural Resources (“MNR”) argues that the plaintiffs’ action is a nullity as the plaintiffs did not serve the proper notice as required under s. 7 of the Proceedings Against the Crown Act and, further, that any extension of time for service is unfair in the circumstances of this case.
[4] The defendant Hearst Forest Management Inc. (“HFM”) argues that the delay in service has caused significant prejudice to it.
The Facts
[5] Mr. Collins, one of the plaintiffs, deposed that he retained a lawyer in February 2015 to commence this lawsuit. In the late summer of 2017, Mr. Collins became aware, through a newspaper article, that the lawyer he retained had been suspended by the Law Society. He had no contact with that lawyer he retained since 2015 but assumed the lawyer would take all steps necessary to secure his rights. Shortly thereafter, through contact with LawPro, Mr. Collins learned that service had not been effected. Mr. Collins retained new counsel and this motion was brought within two months of new counsel being retained.
[6] In order to understand the positions of the parties some background is required.
[7] In the statement of claim, the plaintiffs state that, as result of meetings between them, the MNR and HFM, a 1993 agreement was reached whereby timber harvesting would not be allowed in certain buffer zones adjacent to the plaintiffs’ property. The plaintiffs allege that the 1993 agreement was breached. Timber harvesting began in the buffer areas on August 23, 2013.
[8] The plaintiffs rely upon several letters as constituting notice to the defendants and as compliance with the requirements of s. 7 of the Proceedings Against the Crown Act.
[9] The first letter is dated May 9, 2013 and was written by another lawyer to the district manager of the MNR. This letter complained that the plaintiffs did not receive proper notice of proposed harvesting changes and that “our firm is prepared to commence proceedings against HFM or any other party or parties if it becomes necessary.”
[10] The second letter is dated December 20, 2013 and was sent to the Minister of the MNR by the plaintiffs. This letter ends with the following “it is our position that if help is not forthcoming we will have no other option than to seek an injunction in the Ontario Superior Court.”
[11] The next letter, dated February 21, 2014, is from the plaintiffs to the general manager of HFM. In this letter, the plaintiffs complained of timber harvesting and resulting damage in contravention of the 1993 agreement and mentioned loss of the plaintiffs’ property value.
[12] A letter dated April 10, 2014 is from the Minister of the MNR to the plaintiffs and sets out the Ministry’s position that the 1993 letter of intent was honoured and that the Ministry was satisfied with the process.
[13] The final letter dated October 22, 2015 is from Mr. Collins to the acting district manager of the MNR. This letter repeated Mr. Collins’s complaints and was copied to the Minister of the MNR.
[14] Pat Burrough is a retired professional Forester who was employed by the MNR. He deposed that the 1993 agreement was between a cottagers association and HFM and that the MNR was not party to that agreement. He further deposed that any timber harvesting that was complained of by plaintiffs occurred on Crown land. He had no notice of the plaintiffs’ intention to commence proceedings. He deposed that several individuals who would have been employed by the local office of the MNR at the relevant time are, like him, retired or no longer with the MNR.
[15] Denis Cheff was the general manager of HFM from 1990 to May 2016 when he retired. He deposed that the plaintiffs could have followed procedures under the Crown Forest Sustainability Act if the plaintiffs were displeased about changes to the forestry management plan and that he had no knowledge that the plaintiffs were intending to sue HFM. He described his interactions with the plaintiffs and plaintiffs’ counsel back in 2012. From his perspective, this correspondence was simply directed at arranging meetings to hear the cottagers’ concerns. He did not believe that litigation would result.
Positions of the Parties
[16] With respect to notice to the Crown, quite simply, the plaintiffs argue that the letter constitutes notice. The Crown argues that the letters do not.
[17] With respect to the extension of time to serve, all parties agree that the onus is on the plaintiffs to rebut the inference of prejudice to defend to the defendants based on the passage of time. The plaintiffs argue that there is no prejudice. The defendants argue that they had no prior notice and, therefore, the plaintiffs have not displaced their onus.
Analysis and Disposition
[18] The letters to the MNR do not constitute notice. A suggestion that an injunction will be sought or an action commenced without particulars and without a direct statement that the MNR will be a party in not sufficient to constitute notice. As notice has not been provided, the action against the MNR is dismissed.
[19] The letters to HFM also lack sufficient particulars to trigger a “we will be sued” response by HFM. These are complaints about process and I conclude that HFM was correct to interpret these letters as it did.
[20] Lacking from the plaintiffs’ evidence is “real” evidence of records or other proof of claims or damages supporting the claims made in the statement of claim. On the basis of the material filed, I cannot conclude that records, documents or recollections are in existence or preserved to conclude that HFM is not prejudiced by the passage of time. The plaintiffs have not met their onus establishing no prejudice and the action against HFM is also dismissed.
Costs
[21] If the parties are unable to agree to costs within 30 days, then the parties seeking costs shall submit brief written submissions on costs within 40 days from the release of these reasons. The opposite party may deliver submissions in response within five days thereafter. Costs submissions are to be limited to three pages plus costs outline. If no cost submissions are received within 45 days then costs will be deemed settled.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: May 29, 2018
COURT FILE NO.: CV-15-0381
DATE: 2018-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GEORGE COLLINS and GAIL COLLINS
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF NATURAL RESOURCES and HEARST FOREST MANAGEMENT INC.
Defendants
DECISION ON MOTION
Newton J.
Released: May 29, 2018
/sab