COURT FILE NO.: CV-15-25-A1
DATE: 2019/10/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: George Taylor, Plaintiff
AND
Sean Mayes and Diane Story, Defendants
AND
Her Majesty the Queen in Right of the Province of Ontario, Represented by the Ministry of Transportation of Ontario, Third Party
BEFORE: Justice R. Ryan Bell
COUNSEL: R. Steven Baldwin, for the Defendants
Andrew Choi, for the Third Party
No one appearing for the Plaintiff
HEARD: July 26, 2019
ENDORSEMENT
Overview
[1] The question before the court on this motion is whether the defendants are entitled to pre-trial discovery of the third party, Her Majesty the Queen in Right of the Province of Ontario (“HMQ”).
[2] The defendants move for an order striking HMQ’s statement of defence to the third party claim and, in the alternative, an order compelling HMQ to deliver a list of documents, together with copies of the Crown’s schedule “A” productions, within 30 days. At the hearing, the defendants focused their submissions on their claim for alternative relief.
[3] HMQ brought a cross-motion for summary judgment dismissing the defendants’ third party claim. Following argument on the defendants’ motion, I adjourned HMQ’s motion for summary judgment to a date to be fixed by the trial coordinator. Both parties are content that I remain seized of the summary judgment motion.
[4] For the following reasons, I have concluded that the defendants are entitled to pre-trial discovery of HMQ. HMQ is required to deliver its list of documents, together with copies of the Crown’s schedule “A” documents, within 30 days. A representative of HMQ is also required to attend an examination for discovery within 60 days thereafter.
History of the Proceedings
[5] The action was commenced on January 16, 2015. The plaintiff alleges injuries and damages caused by the defendants as a result of a motor vehicle collision on February 21, 2013 on Highway 401 between Belleville and Napanee.
[6] On the date of the accident, the plaintiff was employed by the Crown in Right of Ontario as Represented by the Ministry of Community Safety and Correctional Services, and was in the course of his employment as an OPP officer. The Crown in Right of Ontario is a Schedule 2 employer under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, sched. A (“WSIA”).
[7] On May 26, 2016, the plaintiff executed a memorandum of agreement of de-election with his employer in connection with his Workplace Safety and Insurance Board claim.
[8] The defendants served their statement of defence on November 7, 2016.
[9] On November 10, 2016, the defendants issued the third party claim for contribution and indemnity. The defendants allege that HMQ is responsible for road winter maintenance and that the condition of the roadway was a contributing factor to the collision involving the plaintiff. The defendants plead and rely on the provisions of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P. 50 (“PTHIA”).
[10] HMQ served its statement of defence to the third party claim on January 6, 2017. HMQ alleges that the defendants’ claims against it are statute-barred for failure to comply with the notice requirements contained in s. 33 of the PTHIA. HMQ also pleads that because it is a Schedule 2 employer within the meaning of the WSIA, the defendants are, by operation of that statute, precluded from pursuing any claim for contribution or indemnity against it.
[11] Examinations for discovery of the plaintiff and the defendants were conducted on May 28, 2018. HMQ was not examined for discovery. However, counsel for HMQ participated in the examinations of the other parties.
[12] Prior to the examinations for discovery of the plaintiff and the defendants, counsel for HMQ advised that “we will not agree to produce a representative of HMQ for examination until we are satisfied that all available information has been provided [by the other parties],” and that “[o]nce the requested documents are received, we will be in a position to schedule examinations for discovery of our client in this matter.”
[13] In subsequent correspondence, counsel for HMQ took the position that a representative of HMQ cannot be compelled to attend an examination for discovery, and that the third party claim is prohibited pursuant to s. 29(4) of the WSIA and statute-barred pursuant to s. 33(4) of the PTHIA.
The Parties’ Positions on the Motion
The Defendants
[14] The defendants acknowledge that the WSIA precludes recovery against HMQ, a Schedule 2 employer. However, they submit that they need to examine a representative of HMQ and have full production of their materials in order for the court to apportion liability as contemplated under s. 29 of the WSIA. They allege that HMQ implicitly agreed to produce relevant documents, and for a representative to be examined for discovery. The defendants submit that HMQ’s subsequent refusal is unjust, and an order pursuant to Rule 30.08(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is warranted.
HMQ
[15] HMQ attacks the defendants’ motion on a number of grounds. HMQ’s argument includes the following elements:
• The defendants have no legal right to claim contribution and indemnity from HMQ pursuant to the provisions of the WSIA. The practice of commencing litigation against HMQ with a view to obtaining discovery in situations where HMQ cannot be held liable is an abuse of process.
• At common law, the Crown is immune from being sued. The Crown may only be sued where a statute expressly permits it.
• The Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27 (“PACA”) permits proceedings to be brought against the Crown without a special fiat. Section 8 of the PACA provides for a “limited right of discovery” of the Crown in actions commenced pursuant to that statute. However, the PACA is expressly subject to the PTHIA (PACA, s. 2). The PTHIA does not provide for discovery of the Crown; accordingly, there is no right of discovery of the Crown in an action commenced under the PTHIA.
• In any event, the defendants have failed to comply with s. 33(4) of the PTHIA, which requires claimants to provide notice of their claim within ten days of the date of loss. No such notice was provided in this case. The defendants have failed to obtain an order of a judge finding that there is a reasonable excuse for the failure to provide notice, and that the Crown has not been prejudiced by the lack of notice. As these preconditions have not been met, the third party claim is statute-barred.
Analysis
The Issues
[16] The following related issues arise out of the circumstances of the case and the arguments of the parties:
(i) Is the third party claim prohibited by the WSIA?
(ii) Is the third party claim statute-barred under s. 33(4) of the PTHIA?
(iii) Can HMQ be compelled to give documentary and oral discovery in a case where a defendant seeks contribution and indemnity against the Crown based on an allegation of negligent road maintenance?
(iv) Did HMQ voluntarily agree to discovery in this case?
[17] I will address each issue in turn.
- Does the WSIA Prohibit the Third Party Claim?
[18] On the date of the accident, the plaintiff was employed by HMQ, a Schedule 2 employer under the WSIA.
[19] In an action where the worker’s Schedule 2 employer is determined to be at fault or negligent in respect of the accident giving rise to the worker’s entitlement to benefits under the insurance plan, s. 29 of the WSIA applies. Section 29 provides in part:
(2) The employer, director, executive officer or other worker is not liable to pay damages to the worker or his or her survivors or to contribute or indemnify another person who is liable to pay such damages.
(3) The court shall determine what portion of the loss or damage was caused by the fault or negligence of the employer, director, executive officer or other worker and shall do so whether or not he, she or it is a party to the action.
(4) No damages, contribution or indemnity for the amount determined under subsection (3) to be caused by a person described in that subsection is recoverable in an action.
[20] The worker is required to either elect to claim benefits or to commence an action (WSIA, s. 30(2)). In this case, the plaintiff originally elected to claim benefits, and then opted to de-elect.
[21] HMQ submits that it was improper for the defendants to commence an action against it, as a Schedule 2 employer, when there is no prospect of the defendants recovering against HMQ. HMQ asserts that an order striking the third party defence should not be granted where the defendants had no right to sue HMQ for contribution or indemnity in the first place. HMQ also submits that the defendants are not entitled to sue HMQ in order to compel discovery to assist in the defendants’ contention that HMQ or its contractor is wholly or partially liable for the plaintiff’s injuries.
[22] This issue is the subject matter of HMQ’s motion for summary judgment which the parties will argue before me at a later date.
[23] The impact of the WSIA on the defendants’ third party claim is also raised as a reason why the defendants’ motion should fail. However, because of the conclusions I have reached with respect to the remaining issues, it is not necessary for me to address the WSIA issue further on this motion.
[24] Section 33 of the PTHIA sets out the obligation of the Ministry of Transportation for the Province of Ontario to maintain and keep in repair “The King’s Highway.” Section 33 provides in part:
33(1) The King’s Highway shall be maintained and kept in repair by the Ministry and any municipality in which any part of the King’s Highway is situate is relieved from any liability therefor, but this does not apply to any sidewalk or municipal undertaking or work constructed or in course of construction by a municipality or which a municipality may lawfully do or construct upon the highway, and the municipality is liable for want of repair of the sidewalk, municipal undertaking or work, whether the want of repair is the result of nonfeasance or misfeasance, in the same manner and to the same extent as in the case of any other like work constructed by the municipality.
(2) In case of default by the Ministry to keep the King’s Highway in repair, the Crown is liable for all damage sustained by any person by reason of the default, and the amount recoverable by a person by reason of the default may be agreed upon with the Minister before or after the commencement of an action for the recovery of damages.
(4) No action shall be brought for the recovery of the damages mentioned in subsection (2) unless notice in writing of the claim and of the injury complained of, including the date, time and location of the happening of the injury, has been served upon or sent by registered letter to the Minister within ten days after the happening of the injury, but the failure to give or the insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or insufficiency of the notice and that the Crown is not thereby prejudiced in its defence.
[25] The defendants plead and rely upon the PTHIA in their third party claim. There is no question that the PTHIA is engaged.
[26] HMQ submits that discovery of HMQ is not compellable because the third party claim is statute-barred.
[27] Section 33(4) of the PTHIA expressly provides that the failure to give notice will not be a bar to the action if a judge finds that there is reasonable excuse for the “want or insufficiency” of the notice, and that the Crown is not prejudiced in its defence by the lack of notice.
[28] I have no evidence as to the reasonableness of the excuse for non-compliance, nor do I have evidence relating to the issue of prejudice to HMQ. The issue was not before me, and I am in no position to make either of the findings contemplated by s. 33(4) or a finding that the third party claim is statute-barred. This is not a basis upon which to deny the defendants’ motion for discovery of HMQ.
- Can HMQ be Compelled to Give Discovery in a Claim Pursuant to the PTHIA?
[29] Section 33(7) of the PTHIA sets out how the Crown is to be described in an action alleging a default by the Ministry in its obligations, as well as how the action is to be conducted:
In an action against the Crown under this section, the defendant shall be described as “Her Majesty the Queen in right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario”… and it is not necessary to proceed by petition of right or to procure the fiat of the Lieutenant Governor or the consent of the Attorney General before commencing the action, but every such action may be instituted and carried on and judgment may be given thereon in the same manner as in an action brought by a subject of Her Majesty against another subject.
[30] At common law, there is no right of pre-trial discovery against the Crown (Abou-Elmaati v. Canada (Attorney General), 2011 ONCA 95, 104 O.R. (3d) 81, para. 18). Apart from the jurisdiction provided by statute, the Superior Court does not have jurisdiction to compel production from the Crown in a civil proceeding (Abou-Elmaati v. Canada (Attorney General), [2013] ONSC 3176, at para. 39).
[31] Section 8 of the PACA[^1] specifically provides for discovery against the Crown:
In a proceeding against the Crown, the rules of court as to discovery and inspection of documents and examination for discovery apply in the same manner as if the Crown were a corporation, except that,
(a) the Crown may refuse to produce a document or to answer a question on the ground that the production or answer would be injurious to the public interest;
(b) the person who shall attend to be examined for discovery shall be an official designated by the Deputy Attorney General; and
(c) the Crown is not required to deliver an affidavit of documents for discovery and inspection, but a list of the documents that the Crown may be required to produce, signed by the Deputy Attorney General shall be delivered.
[32] HMQ submits that as a result of s. 2 of the PACA, the discovery provisions of that statute do not apply to an action commenced under the PTHIA. Section 2 provides that the PACA “does not affect and is subject to…the Public Transportation and Highway Improvement Act.” Put another way, HMQ submits that actions commenced under the PTHIA are governed by s. 33 of the PTHIA, which does not contain a provision similar to s. 8 of the PACA, and cannot be supplemented by the PACA. Therefore, there is no right to compel discovery of HMQ. HMQ relies, in particular, on Crisante v. Grubb, 2016 ONSC 5029, 270 A.C.W.S. (3d) 766.
[33] In my view, HMQ’s reading of the PTHIA is unduly narrow. Section 33(7), together with s. 33(2), authorizes an action against the Crown without the need to procure the fiat of the Lieutenant Governor or the consent of the Attorney General before commencing the action. That action may be carried on “in the same manner as in an action brought by a subject of Her Majesty against another subject.”
[34] HMQ referred me to the Court of Appeal’s decision in Longo v. The Queen, [1959] O.W.N. 19, which was relied on by the court in Crisante. In Longo, the Court of Appeal concluded that the words “every such action may be instituted and carried on and judgment may be given thereon in the same manner as in an action brought by a subject of Her Majesty against another subject” in s. 32(7) of the Highway Improvement Act, 1957, c. 43 were procedural and did not create a right of discovery. The Court of Appeal observed that where, in other jurisdictions, a right of discovery against the Crown was given, the right was given via a specific statutory provision. The Court of Appeal concluded that, in the absence of such a provision, no examination for discovery against the Crown could be had.
[35] However, Longo was decided before the enactment of PACA and s. 8 therein. Section 8 provides that, with certain qualifications, the rules of court as to discovery apply to the Crown “in the same manner as if the Crown were a corporation.” This expressly addresses the issue with which the Court of Appeal was concerned in Longo.
[36] In my view, on a plain reading of s. 33(7) of the PTHIA, the phrase “carried on in the same manner” includes the discovery obligations to which all parties are subject.
[37] In Mattick Estate v. Ontario (Minister of Health), 2001 CanLII 24086 (ON CA), 52 O.R. (3d) 221 (Ont. C.A.), para. 14, the Court of Appeal described the statutory right to sue the Crown as being “an accepted part of our legal landscape.” In considering the interpretation of s. 7(1) of the PACA (the notice provision), Goudge J.A. observed at paragraph 14 that,
[e]ven if the legislated move away from Crown immunity might, in the beginning, have suggested a strict approach to construing the Act, there now seems to me to be no reason to depart from normal principles of statutory interpretation, most importantly, as applied to this case to the statutory language used and the legislative purpose being addressed.
[38] Applying the normal principles of statutory interpretation to both the PACA and the PTHIA, I conclude that s. 33(7) of the PTHIA contemplates discovery rights against the Crown in relation to an action commenced against the Crown under that statute.
[39] In addition, while the PACA is expressly subject to the PTHIA,[^2] I find that there is no inconsistency between the PACA and the PTHIA on the issue of discovery rights against the Crown that would entail the ousting of the s. 8 discovery provision in the PACA. That provision applies generally to “a proceeding against the Crown.” This is such a proceeding, albeit one that was commenced under the PTHIA.
[40] Accordingly, in my view, HMQ is required to submit to documentary and oral discovery in relation to the defendants’ third party claim.
- Did HMQ Voluntarily Agree to Discovery?
[41] I also find that HMQ voluntarily agreed to discovery in this case.
[42] On April 17, 2018, counsel for HMQ advised that, once the requested documents were received from the plaintiff and the defendants, they would “be in a position to schedule examinations for discovery of [their] client in this matter.” Counsel for the defendants responded that their affidavit of documents and productions had in fact been delivered almost one year earlier, in May 2017.
[43] Subsequent to the examinations for discovery of the plaintiff and the defendants in May 2018, which were attended by HMQ and in which HMQ participated, efforts were made to schedule an examination of a HMQ representative. It was not until June 21, 2018 that counsel for HMQ took the position that any such attendance would be strictly voluntary. Counsel advised that they had instructions to pursue a motion to dismiss the third party claim pursuant to s. 29(4) of the WSIA and s. 33(4) of the PTHIA.
[44] In my view, the only fair reading of counsel’s correspondence of April 17, 2018 is that HMQ agreed to submit to an examination for discovery. The agreement was certainly implicit, if not explicit, in counsel’s statement that “they would be in a position to schedule examinations for discovery of our client.”
[45] The only caveat attached to this statement was the prior receipt of documents from the plaintiff and the defendants. Counsel for HMQ said nothing to the contrary in response to the correspondence from counsel for the defendants advising that they had provided their clients’ documents the year before. No other caveat was raised by counsel for HMQ at the examinations for discovery of the plaintiff and the defendants.
[46] On these facts, I find that HMQ agreed to discovery in this matter, including the provision of its list of documents, copies of its schedule “A” documents, and attending on an examination for discovery. In these circumstances, it is just and appropriate that HMQ be required to comply with its agreement.
Disposition
[47] HMQ is required to deliver its list of documents, together with copies of its schedule “A” documents, within 30 days. A representative of HMQ is also required to attend an examination for discovery within 60 days thereafter.
[48] If the parties are unable to agree on the costs of this motion, they may make written submissions limited to a maximum of three pages. The defendants shall deliver their costs submissions within 15 days. HMQ shall deliver responding costs submissions within 15 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as amongst themselves.
Justice R. Ryan Bell
Date: October 1, 2019
COURT FILE NO.: CV-15-25-A1
DATE: 2019/10/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: George Taylor, Plaintiff
AND
Sean Mayes and Diane Story, Defendants
AND
Her Majesty the Queen in Right of the Province of Ontario Represented by the Minister of Transportation of Ontario, Third Party
BEFORE: Justice R. Ryan Bell
COUNSEL: R. Steven Baldwin, for the Defendants
Andrew Choi, for the Third Party
No one appearing for the Plaintiff
ENDORSEMENT
Ryan Bell J.
Released: October 1, 2019
[^1]: The PACA was repealed and replaced by the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17. Section 31(3) of the Crown Liability and Proceedings Act, 2019 provides that the PACA continues to apply with respect to proceedings commenced against the Crown before the section comes into force.
[^2]: A similar provision exists in the Crown Liability and Proceedings Act, 2019.