Court File and Parties

COURT FILE NO: CV-18-7782 DATE: 2021-01-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Faye Campeau, administrator of the estate of Raymond Campeau, deceased, Faye Campeau personally and Jamie Campeau and Kevin Campeau, Plaintiffs

v.

Her Majesty the Queen in Right of Ontario (Ministry of Labour Ontario and its agents or servants Dan Beaulieu, Electrical/Mechanical Inspector, Jill Bennett, Manager, Bar Albanese, Manager, Candys Ballanger-Michaud, Director, Northern Region, Sophie Dennis, Deputy Minister of Labour, and Tim Merla, Professional Engineer, Regional Engineer Professional and Specialized Services, Ontario Ministry of Labour) as represented by the Attorney General of Ontario, Defendant

BEFORE: R.D. Gordon J

COUNSEL: Stephen J. Moreau, Lara Koerner Yeo and Rafeena Bacchus, on behalf of the Plaintiffs

HEARD: In Writing

Endorsement

[1] On May 25, 2006, Raymond Campeau died in a mining accident at the Podolsky Mine, located near Sudbury.

[2] Mr. Campeau’s wife, Faye Campeau, brought this action against Her Majesty the Queen in Right of Ontario, represented by the Attorney General of Ontario (“Ontario”). She has brought the action in her personal capacity and in her capacity as administrator of the estate of her deceased husband. Jamie Campeau and Kevin Campeau, the children of the deceased are plaintiffs as well.

[3] The plaintiffs seek damages arising from Mr. Campeau’s death. In essence, the plaintiffs allege liability of the provincial government on the basis that a mine inspector employed by the Ministry of Labour failed in his duty to properly inspect the equipment involved in the accident and failed to follow up to ensure compliance with work orders that had been issued.

Background Facts

[4] Mr. Campeau was a mechanic. On the day of his death he was attempting to replace the motor on a piece of equipment known as a winch when the winch “exploded”, sending metal fragments travelling at a high velocity. Mr. Campeau’s legs were severely injured as a result. He had been working 2000 feet below the surface of the ground when the accident took place. Although co-workers got him to the surface for medical treatment, he died approximately 90 minutes after the accident.

[5] A coroner’s inquest was held. The coroner determined that Mr. Campeau’s death was caused by equipment failure – that the winch failed because required engineered tie-offs had not been installed to secure it.

Procedural Background

[6] Mrs. Campeau has been incredibly diligent in her efforts to determine why this accident happened and who, if anyone, was responsible. It was not until August 31, 2016 that she received from the Ministry of Labour the documents in its possession setting out the basis for Ontario’s liability.

[7] A notice of claim was served on Ontario as was then required by the Proceedings Against the Crown Act on June 15, 2018. On July 11, 2018, Mrs. Campeau received a letter from Alexandra Mingo, a lawyer with Crown Law Office – Civil confirming receipt of the notice of claim, advising that she was counsel assigned to the matter and asking that the statement of claim be directed to her attention.

[8] The statement of claim was served on Ms. Mingo personally on August 27, 2018 as had been requested.

[9] No response was made to the statement of claim. Eventually, Mrs. Campeau brought a motion to note Ontario in default and to obtain default judgment. That motion was made on notice to Ontario and heard on December 6, 2019 by me. Ontario did not appear. I subsequently released an endorsement by which I noted Ontario in default but required its appearance to address certain legal issues. I directed that a copy of the endorsement be served on Ms. Mingo and that Ontario provide the court and the plaintiffs with its position by March 31, 2020. The matter was put over to April 24, 2020 in anticipation of securing Ontario’s involvement in resolving the legal issues I had identified. The endorsement was served on Ms. Mingo by email on January 27, 2020.

[10] Neither the court nor the plaintiffs received anything from Ontario. The plaintiffs, who had been representing themselves, retained counsel. On April 28, 2020 counsel sent a letter to the Director of Crown Law Office – Civil and to Ms. Mingo advising once again of the earlier endorsement of the court, Ontario’s failure to reply and the plaintiffs’ intention to proceed with their motion for default judgment. This too fell on deaf ears. The plaintiffs have heard nothing from Ontario. The court has heard nothing from Ontario. The plaintiffs have brought this motion for default judgment. Out of courtesy to Ontario the motion materials were served on it. Once again no appearance has been made.

[11] Since Ontario was noted in default it is, by virtue of rule 19.02(1)(a), deemed to admit the truth of all allegations of fact made in the statement of claim.

Liability of Ontario

[12] Consistent with the Supreme Court of Canada decision in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, I am satisfied that once a government inspector makes an operational decision to inspect a mine, a duty of care is owed to the workers employed in that mine to conduct the inspection in a non-negligent manner and thereby ensure that the equipment used by the workers is safe.

[13] The statement of claim sets out the following facts which establish that Ontario breached the duty of care owed to Mr. Campeau and his family:

i. Inspector(s) of the Ministry of Labour, had the authority and obligation to monitor the mine for statutory and regulatory compliance and to enforce regulatory safety requirements.

ii. Ministry of Labour agents regularly inspected the mine, knew the winch was a potential safety hazard, expressed concerns to the mine operators and ordered the production of the commissioning report and engineering report in respect of the winch to establish its safety.

iii. Ministry of Labour agents, having identified this danger and having ordered evidence of its compliance with safety regulations, thereafter failed to monitor and enforce their orders. Had the commissioning and engineering reports been provided, they would have known that the winch was being improperly used to lift heavy equipment, that its brakes could fail as a result of such improper use, that the winch had no inherent safety features such as engineered tie-offs, and that a cable had been installed on the winch backwards. Had this been known to it, Ontario would not have allowed the winch to be used until safe.

iv. But for Ontario’s failure to enforce its orders the winch would not have been in use, or if it had been in use it would have been equipped with engineered tie-offs which would have prevented this accident. Ontario’s negligence in failing to monitor and enforce its orders was a cause of the accident and Mr. Campeau’s death.

The Applicability of the Crown Liability and Proceedings Act, 2019

[14] When this matter was before me to note Ontario in default, I identified the application of the Crown Liability and Proceedings Act, 2019 (the “Act”) as an issue that would need to be addressed. Although I noted Ontario in default, I required it to appear for the limited purpose of determining the applicability and impact of the Act. It is most unfortunate that Ontario has elected not to appear. There have been no reported decisions on sections 11(2) and (3) of the Act and it would have been of assistance to have its input.

[15] In this case it is alleged that the inspector(s) representing the Ministry of Labour inspected the mine but were negligent in ensuring that noted deficiencies were properly rectified before the equipment was put into use.

[16] In this circumstance, the relevant sections of the Act provide as follows:

11(2) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of a regulatory decision made in good faith, where,

(a) A person suffers any form of harm or loss as a result of an act or omission of a person who is the subject of the regulatory decision; and

(b) The person who suffered the harm or loss claims that the harm or loss resulted from any negligence or failure to take reasonable care in the making of the regulatory decision.

11(6) In this section,

“regulatory decision” means a decision respecting,

(a) Whether a person, entity place or thing has met a requirement under an Act,

(b) Whether a person or entity has contravened any duty or other obligation set out under an Act,

(c) Whether a licence, permission, certificate or other authorization should be issued under an Act,

(d) Whether a condition or limitation in respect of a licence, permission, certificate or other authorization should be imposed, amended or removed under an Act,

(e) Whether an investigation, inspection or other assessment should be conducted under an Act, or the manner in which an investigation, inspection or other assessment under an Act is conducted,

(f) Whether to carry out an enforcement action under an Act, or the manner in which an enforcement action under an Act is carried out, or

(g) Any other matter that may be prescribed.

11(7) No proceeding may be brought or maintained against the Crown or an officer, employee or agent of the Crown in respect of a matter referred to in subsection (1), (2), (3) or (4).

[17] It is to be noted that the immunity contained in s. 11(2) relates to the making of a regulatory decision. It does not extend to the implementation of a regulatory decision once made. This essentially codifies the common law distinction between policy and operations that the Supreme Court of Canada summarized in Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298:

To determine whether an inspection scheme by a local authority will be subject to a private law duty of care, the court must determine whether the scheme represents a policy decision on the part of the authority, or whether it represents the implementation of a policy decision, at the operational level. True policy decisions are exempt from civil liability to ensure that governments are not restricted in making decisions based upon political or economic factors. It is clear, however, that once a government agency makes a policy decision to inspect, in certain circumstances it owes a duty of care to all who may be injured by the negligent implementation of that policy.

[18] It might also be noted that when questioned concerning the Act, the Attorney General stated on more than one occasion that it was simply a codification of the existing state of the law of negligence. [See Ontario Legislative Assembly, Official Report of Debates (Hansard), 2nd Parl., 1st sess., No. 94 (16 April 2019, p. 4401 [16 April 2019 Ontario Hansard]; Ontario Legislative Assembly, Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 97 (29 April 2019), p. 4555 [29 April 2019 Ontario Hansard].

[19] In my view, this action deals not with the making of a regulatory decision, but the negligent implementation of that decision once it was made. Accordingly, it is not barred by the Act.

Damages

Damages for Loss of Services

[20] As a result of the death of her husband, Mrs. Campeau has suffered a loss of familial household services. An expert report has been filed quantifying the loss. The assumptions used in the preparation of the report are fair. I find that the present value of Mrs. Campeau’s past and future loss of services is $511,196.

Damages for Loss of Income

[21] As a result of the death of Mr. Campeau, Mrs. Campeau and her children suffered economic loss. An expert report has been filed quantifying those losses. For the most part, I accept the underlying assumptions used by the expert in arriving at his conclusions. The loss is defined as the difference between the projected income he would have earned from the date of his death to his assumed retirement age, plus projected retirement income, after deductions for taxes, employment insurance premiums, Canada Pension Plan premiums, and less an amount attributable to his personal consumption. Although Mrs. Campeau submitted that her husband would have continued to work until the age of 70, I note that Mr. Campeau’s work was physical in nature and undertaken in harsh conditions. In these circumstances, I find it doubtful that he would have continued to work beyond the age of 65 and I have assessed future loss of income on the basis that he would have retired at age 65.

[22] The expert report also claimed dependency of both children until the age of 22. However, with respect to Kevin, the affidavit evidence indicates that following his graduation from high school in June 2008 at age 18 he was largely financially independent. I have reduced the damages accordingly.

[23] I assess past economic loss at $762,436. I assess future economic loss at $415,776.

Damages for Loss of Guidance, Care and Companionship

[24] There can be little doubt that Mr. Campeau’s death had a significant and long-lasting impact on his wife and children. They were a closely knit family and Mr. Campeau was an active and involved father and husband.

[25] I accept that the high end of damages for loss of guidance, care and companionship, adjusted for inflation, is currently approximately $150,000 but in my view this size of award would most often go to parents with respect to the death of a child. My review of the authorities reveal damages for guidance, care and companionship related to the death of a spouse would normally fall into a range of $70,000 to $120,000; and for children related to the death of a parent, into a range of $40,000 to $80,000.

[26] Given the significant impact of her husband’s death on her as described in the affidavits filed, I assess Mrs. Campeau’s damages at $100,000 plus prejudgment interest of $72,500. The award is reduced by $156,610 on account of damages received in settlement of another action, for a net award of $15,890.

[27] Given the significant impact of her father’s death on her, but considering that Jamie had, when her father died, assumed a level of independence and moved from the home, I assess her damages at $45,000 plus prejudgment interest of $32,625. The award is reduced by $11,900 on account of damages received in settlement of another action, for a net award of $65,725.

[28] Given the significant impact of his father’s death on him and considering that when his father died Kevin was still at home and under his father’s direct influence, I assess his damages at $60,000 plus prejudgment interest of $43,500. The award is reduced by $11,900 on account of damages received in settlement of another action, for a net award of $91,600.

Damages to Mr. Campeau Payable to his Estate

[29] There can be no doubt that Mr. Campeau would have endured significant and perhaps even excruciating pain and suffering following the accident. However, and perhaps mercifully, that suffering was not prolonged. In my view an appropriate award of damages for the approximately 90 minutes of pain and suffering he endured would be $40,000 plus prejudgment interest in the amount of $29,000 for a total of $69,000.

Management Fee

[30] It is not uncommon to include in a damages award an amount to reflect the costs of managing the award being made for future pecuniary loss where it is likely to be necessary to generate the investment return required to finance the loss that has been quantified. The evidence supports Mrs. Campeau’s need for such management advice and the requested 5% is not unreasonable. However, in my view it would apply only to the award related to future loss of income which is $415,776 and future loss of services which is $297,565. Accordingly, the sum of $35,668 is awarded as a management fee.

Legal Fees and Disbursements

[31] The partial indemnity costs claimed by the plaintiff in the amount of $72,176.94 are reasonable and appropriate.

Conclusion

[32] Judgment shall issue in favour of the plaintiffs against Her Majesty the Queen in Right of Ontario as follows:

1. To Faye Campeau for past and future loss of services the sum of $511,196.
2. To Faye Campeau for past and future economic loss the sum of $1,178,212.
3. To Faye Campeau for loss of guidance, care and companionship the sum of $15,890.
4. To Jamie Campeau for loss of guidance, care and companionship the sum of $65,725.
5. To Kevin Campeau for loss of guidance, care and companionship the sum of $91,600.
6. To Faye Campeau, administrator of the estate of Raymond Campeau, the sum of $69,000.
7. To Faye Campeau for the future costs of management of funds the sum of $35,668.
8. Costs in the amount of $72,176.94 inclusive of disbursements and HST.

[33] These sums include prejudgment interest (where appropriate) calculated to November 25, 2020. Post judgment interest shall accrue thereafter at the applicable rate.

[34] In accordance with COVID protocols, this endorsement is effective as of the day it is made and is enforceable without the need for entry and filing.

The Honourable Mr. Justice Robbie D. Gordon

Date: January 6, 2021