COURT FILE NO.: CV-12-465196
DATE: 20181105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LILA DANIS
Plaintiff
– and –
METROLINX and DANIEL LACASSE
Defendants
Cassandra Theune for the Plaintiff
Mark Elkin for the Defendants
HEARD: November 1, 2018
ENDORSEMENT
DIAMOND J.:
[1] The defendant Metrolinx is the owner and operator of Go Transit pursuant to the provisions of section 44(1) of the Metrolinx Act 2006 S.O. 2006 C.16, (the “Metrolinx Act”). In this proceeding, the plaintiff seeks damages for personal injuries she allegedly suffered as a result of a motor vehicle accident which took place on June 1, 2012 when the plaintiff was a passenger on a Go Transit bus.
[2] Metrolinx served and filed a Jury Notice on or about April 2, 2015. The trial of this proceeding is scheduled to commence on November 13, 2018. The plaintiff brings this motion seeking an order striking out the Jury Notice on the grounds that Metrolinx is a Crown agency corporation, and thus pursuant to section 11 of the Proceedings Against the Crown Act, R.S.O. 1990 C.P.27 (the “Act”), the parties are mandated to proceed to trial without a jury.
[3] Section 11 of the Act provides that in any legal proceeding “against the Crown”, a trial shall be without a jury. The issue for me to decide is whether section 11 applies to a Crown agent such as Metrolinx, or whether section 11 is restricted to actions against the Crown itself.
[4] The term “Crown” is explicitly defined under the Act to mean Her Majesty the Queen in Right of Ontario (“Her Majesty”). Pursuant to section 5(1)(a) of the Act, the Crown is subject to liability in respect of tortious conduct committed by any of the Crown’s servants or agents. Under the Act, the term “agent” (when used in relation to the Crown) includes an independent contractor employed by the Crown, while the term “servant” (again, when used in relation to the Crown) includes a Minister of the Crown.
[5] What is a Crown agency? The provisions of the Crown Agency Act, R.S.O. 1990 c. C.48 (the “Crown Agency Act”) defines a Crown agency” as a board, commission, railway, public utility, university, manufactory, company or agency owned, controlled or operated by Her Majesty or by the Government of Ontario. A Crown agency is, for all intents and purposes, an agent of Her Majesty, and any Crown agency’s powers may only be exercised as an agent of Her Majesty.
[6] For completeness, section 3 of the Metrolinx Act defines Metrolinx as a Crown Agency within the meaning of the Crown Agency Act. As such, there is no dispute that Metrolinx is an agent of the Crown.
[7] As Metrolinx engages in the operation of a regional transit system, which is within the scope of the public purpose Metrolinx was statutory empowered to pursue, the plaintiff submits that section 11 of the Act should extend to Metrolinx as a Crown agent,. For the following reasons, I disagree and dismiss the plaintiff’s motion.
[8] To begin, the Act defines the Crown and its agents/servants separately. While the Crown may be vicariously liable for tortious conduct committed by its agents/servants, section 11 clearly states that a trial shall be without a jury in any legal proceeding against the Crown. I adopt the comments of Master McLeod (as he then was) in Bozek v. Toronto Area Transit Operating Authority (2002) CarswellOnt 4457 wherein he found that the main purpose of referring to Crown agents in the Act is to “provide that the Crown is not to be sued in an action against the Crown agent.” The fact that Metrolinx is a Crown agency under the Metrolinx Act and Crown Agency Act does not mean that it stands in the shoes of the Crown for the purposes of section 11 of the Act.
[9] Metrolinx relies upon the decision of the Ontario Divisional Court in Jessome v. Ontario Housing Corporation 1980 1788 (ONSC) to support its position that section 11 does not apply to a Crown agent. In Jessome, the Court heard an appeal from an order dismissing the plaintiff’s claim against the Ontario Housing Corporation, as the plaintiff did not comply with the notice provisions in the Proceedings Against the Crown Act, R.S.O. 1970 C. 365 (the “Old Act”, which was the predecessor to the Act).
[10] Under the Old Act, the Crown needed to be provided with 60 days’ notice of an intended legal proceeding as a condition of such a proceeding being commenced against the Crown. There was no dispute that the Ontario Housing Corporation was a Crown agency that could be sued in tort.
[11] In allowing the appeal in part, the Divisional Court held:
“The position of the defendant is that the plaintiff must serve notice on the Crown under s. 7 before he can commence his action. Section 7 refers to claims against the Crown only and the Crown is defined in the Act as Her Majesty the Queen in right of Ontario. There are references in the statute to both agents and corporations of the Crown. Section 2(2)(b) provides that the Crown is not to be subjected to a proceeding that is enforceable against a corporation or other agency of the Crown. Section 13 provides for the designation of the Crown in proceedings under the Act. In our opinion, s. 7 is confined to claims against the Crown and does not extend to claims against agents or corporations of the Crown.”
[12] The contents of section 7 of the Old Act spell out the requirement to give notice upon the Crown, before any claim may be commenced against the Crown. There is no mention of any agent/servant of the Crown in that section of the Old Act. The Court held that section 7 of the Old Act is restricted to claims against the Crown only.
[13] I see no reason to distinguish the Divisional Court’s approach in Jessome to the case before me. Section 11 of the Act makes no mention of agents/servants of the Crown. If the legislature intended the Act to preclude actions against a Crown agency from being tried by a jury, then the Act would presumably have been drafted accordingly.
[14] I further rely upon the decision of Justice Bell Oyen in Sutherland et al v. Clarke et al 1989 4386 (ONSC). In Sutherland, the Court was asked to strike a Jury Notice in an action against the St. Lawrence Parks Commission which was a Crown agent. In dismissing the motion, and relying upon the Jessome decision, the Court found that section 15 of the Old Act (which is essentially identical to section 11 of the Act) referred to proceedings against the Crown only, and as such that section was “confined to proceedings against the Crown and does not extend to proceedings against agents of the Crown.”
[15] The plaintiff relies upon the decision of Master Davidson in Toronto Star Ltd. et al v. Canadian Broadcasting Corporation, 1975 448 (ONSC). In that case, the Master refused to consolidate two defamation actions, commenced respectively against the Canadian Broadcasting Corporation (“CBC”) and an individual, because section 13 of the federal Crown Liability Act required proceedings against “the Crown” to be tried without a jury (unlike the defamation action against the individual). Master Davidson refused to consolidate the two proceedings, relying at least in part upon the fact that in his opinion the CBC was a Crown agent subject to section 13 of the federal Crown Liability Act.
[16] The CBC was also held to be a Crown agent and subject to section 13 of the federal Crown Liability Act in the decision of Burnett v. The Queen in Right of Canada et al. 1979 1641 (ONSC), although in Burnett that section would have likely applied in any event as her Majesty the Queen was also a named defendant.
[17] While the Toronto Star decision is not binding upon me, both it and the Burnett decisions were decided well before the Ontario Divisional Court’s decision in Jessome. To the extent that the Toronto Star and Burnett decisions may conflict with the Jessome and Sutherland decisions (and I am not certain that they do given that the former decisions deal with federal legislation), I prefer the reasoning and approach in Jessome and Sutherland.
[18] The additional jurisprudence relied upon by the plaintiff does not deal with the application of the Act or its predecessor, and focuses upon other doctrines such as Crown immunity. The Act contains many sections which both mention and distinguish the Crown and its agents/servants. I am not prepared to extend the definition of “the Crown” in the Act to apply to Crown agents.
[19] Accordingly, the motion is dismissed. In accordance with the agreement of the parties, costs of this motion are fixed in the all-inclusive amount of $6,000.00 and payable forthwith by the plaintiff to Metrolinx.
Diamond J.
Released: November 5, 2018
COURT FILE NO.: CV-12-465196
DATE: 20181105
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LILA DANIS
Plaintiff
– and –
METROLINX and DANIEL LACASSE
Defendants
ENDORSEMENT
Diamond J.
Released: November 5, 2018