Court File and Parties

Court File No.: 16-59247 Date: 2021-12-13 Superior Court of Justice - Ontario

Re: Morgan Stegenga, Plaintiff And: Jeffrey Jans, Budget Environmental Disposal Inc., Wesley Pennings, Calibre Concrete Inc. operating as Johns Concrete Forming Inc., Her Majesty the Queen in the Right of the Province of Ontario represented by the Minister of Transportation for the Province of Ontario, The City of Hamilton and Economical Mutual Insurance Company, Defendants

Before: Justice D.A. Broad

Counsel: M. Edward Key and Veronica Gorrell for the Defendants Wesley Pennings and Calibre Concrete Inc. operating as Johns Concrete Forming Inc., Defendants/Moving Parties Marie Sydney, for the Defendant Her Majesty the Queen in the Right of the Province of Ontario represented by the Minister of Transportation for the Province of Ontario, Defendant/Responding Party

Heard: October 25, 2021

Endorsement

Motion

[1] The defendants, Wesley Pennings and Calibre Concrete Inc. operating as Johns Concrete Forming Inc., (the "moving parties") have brought a motion for an order:

(a) compelling the Crown to serve a further and better List of Documents; and

(b) compelling the Crown to produce a representative to attend at an examination for discovery.

[2] The Crown takes the position that it is not compellable to provide discovery in any form in a claim under the PTHIA.

Threshold Issue

[3] The threshold issue on this motion is whether the defendant Her Majesty the Queen in the Right of the Province of Ontario represented by the Minister of Transportation for the Province of Ontario (the "Crown"), in a claim made against it under the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50 (the "PTHIA") can be compelled to submit to documentary and oral discovery.

[4] There is an apparent conflict in the jurisprudence on the question of whether the Crown can be compelled to give documentary and oral discovery in a claim under the PTHIA. The Court's tasks on the threshold issue are firstly, to determine whether the apparent conflict in the jurisprudence respecting the Crown's discovery obligations can be resolved, and secondly, if the conflict cannot be resolved, to consider and apply the convention respecting horizontal judicial comity and the doctrine of stare decisis to determine the issue.

[5] The Court need only go on to determine whether all or part of the discovery sought by the moving parties should be ordered in the circumstances if it is determined, as a matter of law, that the Crown can be compelled to give documentary and oral discovery in an action under the PTHIA.

Background

[6] The action arises from a motor vehicle collision in 2011 on Westover Road/Highway 52 near Highway 8 in Hamilton, Ontario. The intersection where the collision occurred was part of a system of intersections in the area known as "Peter's Corners."

[7] The plaintiff, a 14-year-old minor child at the time, was a passenger in a vehicle owned and operated by the defendant Jeffrey Jans. The defendant Wesley Pennings was the driver of the vehicle that collided with the Jans vehicle.

[8] The collision occurred when Jans, after stopping at a full stop sign, pulled into the intersection intending to cross the highway that had an 80 km/h speed limit. The Jans vehicle was struck by the Penning's vehicle travelling on the perpendicular highway.

[9] Jans claimed that he did not see Pennings' vehicle because his view was restricted by the pillar of his vehicle and contended that the angle of the intersection contributed to the other vehicle being hidden behind the pillar.

[10] The plaintiff commenced the action by Statement of Claim issued October 24, 2016.

[11] The plaintiff named the Crown as a defendant pursuant to the PTHIA essentially alleging negligent design and traffic control of the intersection. The owners and drivers of the vehicles involved in the collision and named as defendants cross-claimed against the Crown, essentially on the same basis.

[12] Studies and plans for the reconstruction of the complex of intersections known as Peter's Corners existed within the Ministry of Transportation for some time prior to the accident and in November, 2009 a Preliminary Design Report was produced respecting the need for and proposed method of reconstructing the roads and intersections in the area.

[13] The 2009 Report on the intersection indicated that the historical number of collisions at the intersection where the accident occurred fell below the collision threshold for intersection improvements.

[14] Peter's Corners, including the intersection where the collision occurred, were reconstructed into a roundabout by the summer of 2012, approximately six months after the accident.

[15] The 2009 Report and other documents, including maintenance records and Ontario Provincial Police investigation records, were voluntarily disclosed by the Crown prior to examinations for discovery that took place in 2018. Counsel for the Crown at that time made it clear that it was not volunteering any other discovery.

[16] The Crown participated in examinations for discovery of other parties to the action but did not produce a representative for examination.

[17] The motion is supported by the affidavit of Stephen Schenke, counsel for the defendants Jans and Budget Environmental Disposal Inc. Mr. Schenke deposed that he and counsel for the Pennings defendants have jointly retained a road authority expert (the "road expert") who has communicated that he requires additional documents to render his opinions in the case. A list of the additional documents which the road expert requires was provided to counsel for the Crown by letter dated March 22, 2021. In summary, Mr. Schenke deposed that the documents are requested as it is apparent from the documents produced to date that the Crown was aware of problems with the subject intersection prior to February, 2001 and chose not to remediate the problems until the spring of 2012. He says that the reasonableness of that course of action by the Crown will be at issue at trial.

[18] The Crown disputes that the additional documentary production sought by the moving parties is relevant and that the scope of the requested discovery is proportional to the issues in the action.

Legal Framework respecting discovery of the Crown under PTHIA

(a) No right of discovery against the Crown at common law

[19] In Abou-Elmaati v. Canada (Attorney-General), 2011 ONCA 95, 104 O.R. (3d) 81, the Court of Appeal confirmed at para. 18 that, at common law, there is no right of pre-trial discovery against the Crown and that in the absence of jurisdiction provided by statute, the Superior Court lacks jurisdiction to compel production from the Crown in a civil proceeding. This principle is often referred to as the Crown prerogative.

(b) Legislation

[20] Section 71 of the Legislation Act 2006, S.O. 2006, c. 21, Sched. F. stipulates that 71 "No Act or regulation binds Her Majesty or affects Her Majesty's rights or prerogatives unless it expressly states an intention to do so."

[21] Neither the Courts of Justice Act nor the Rules of Civil Procedure expressly provide that they bind the Crown.

[22] Pursuant to ss. 33(1) of the PTHIA the Ministry of Transportation has an obligation to maintain and keep The King's Highway in repair.

[23] Section. 33(2) of the PTHIA provides that, in the 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.

[24] Section. 33(7) of the PTHIA provides that:

(7) 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" in English or as "Sa Majesté du chef de l'Ontario, représentée par le Ministre des Transports de l'Ontario" in French, 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.

[25] The Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (the "PACA"), which was in force at the time of commencement of the action in the case at bar, provided at s. 2(1) that:

"This Act does not affect and is subject to, ... the Public Transportation and Highway Improvement Act..."

[26] Section 8 of the PACA provides as follows with respect to discovery in a proceeding 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 on production 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.

(c) Jurisprudence denying a right of discovery against the Crown in respect of claims for non-repair of highways

[27] In Longo v. Ontario (Minister of Highways), [1958] O.J. No. 402, the Court of Appeal dealt with the question of whether or not a plaintiff in an action against the Crown under The Highway Improvement Act, S.O. Chap. 43, 1957, (the "HIA"), which was the predecessor to the PTHIA, had the right to examine an officer of the Crown for discovery.

[28] Laidlaw, J.A., writing for the panel, made reference to s. 32(7) of the HIA, which was substantially identical to s. 33(7) of the PTHIA, including 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": at para. 2.

[29] Laidlaw J.A. observed that s. 32(7) of the HIA is remedial legislation of a procedural character, enabling a party seeking to enforce a claim under the HIA, to bring the action in the ordinary courts and in accordance with the ordinary procedure in substitution for proceedings by way of petition of right. However, he held that the provision "does not create a right or remedy of discovery," observing that "if such a right or remedy is to be found it must be found in the Rules of Practice of this Court."

[30] Laidlaw J.A. went on to note at para. 3 that there are two things that bore heavily against the appellant's claim for a right of discovery against the Crown: first, that whenever in other jurisdictions it was sought to give the remedy of discovery to a party as against the Crown, there was specific provision made for such a remedy; and second, that while the Proceedings Against the Crown Act of 1952 had not been declared and brought into force, the observation may be made that by s. 10 of that statute, express provision was made in respect of proceedings against the Crown for examination for discovery of the Crown officer. Laidlaw, J.A. stated "it may be properly concluded that in the absence of an express provision of a like kind to what is found in s. 10 of the Proceedings against the Crown Act, that no such examination for discovery from an officer of the Crown can be had."

[31] Laidlaw J.A. concluded that the remedy of discovery against an officer of the Crown is a new, important and far-reaching remedy, with very wide application, and that "in the absence of express provisions creating the remedy now sought by the appellant, I would hold that it does not exist."

[32] The case of Ratkevicius v. R., [1966] 2 O.R. 774 (Master) dealt specifically with the interplay between the HIA and s. 10 (now s. 8) of the PACA on the question of whether a plaintiff in an action under the HIA could compel documentary and oral discovery against the Crown. Senior Master Rodger noted at para. 5 the submission of counsel for the Crown that by virtue s. of 2(1) the PACA "does not affect and is subject to" a number of statutes including the HIA, and that in Longo the Court of Appeal held that the HIA did not create any right of discovery.

[33] At paragraph 7 Senior Master Rodger concluded that, as the action was brought under the HIA, the application seeking discovery against the Crown must be dismissed.

[34] Although it did not deal with an action under the HIA or PTHIA but rather dealt with an action under The Motor Vehicle Accident Claims Act, R.S.O 1990, c. 1970, c. 281, (the "MVACA") the case of Wren v. Ontario (Superintendent of Insurance), [1976] O.J. No. 2012 (S.C.) bears on the issue of whether discovery against the Crown may be compelled in an action under the PTHIA. This is because the MVACA was stipulated to be unaffected by the PACA in the same manner as the PTHIA is currently by virtue of s. 2(1) of PACA.

[35] The plaintiff in Wren sought to strike out the statement of defence of the defendant Superintendent of Insurance for failure to attend on an examination for discovery

[36] Cory, J. (as he then was), after, finding that the Superintendent of Insurance was a Crown agent (see para. 15), held as follows at paras. 23-26:

At common law, there exists a royal prerogative and as a result of it the Crown cannot be compelled to give discovery. Pursuant to the provisions of The Crown Agency Act, that prerogative would appear to apply to the Superintendent.

The royal prerogative exists unless it is taken away by clear and precise language of a statute.

The Proceedings Against the Crown Act, R.S.O. 1970, c. 365 specifically provides in s. 2 [am. 1973, c. 10, s. 17], that it does not affect The Motor Vehicle Accident Claims Act.

It would seem, therefore, that the Legislature specifically provided that the provisions of The Proceedings Against the Crown Act were not to be applicable in those actions where the Superintendent was named as defendant.

[37] Cory J. observed that, whereas specific provisions are made in the PACA with regard to discovery and production by or on behalf of the Crown, there was no comparable provision providing for production and discovery of the Superintendent of Insurance in the MVACA: at para. 27.

[38] At para. 28 he concluded that the Superintendent was not compellable upon an examination for discovery.

[39] In the more recent case of Cristante v. Grubb, 2016 ONSC 5029, Mitrow, J. considered the question of whether a claimant against the Crown under the PTHIA had a right of discovery against the Crown. Mitrow J. began his analysis with the observation that at common law there was no right of pretrial discovery against the Crown and that the Crown's immunity from the discovery process, described as a royal prerogative, exists unless it is taken away by clear and precise language of the statute (citing Wren, Longo and Abou-Elmaati as well as s. 71 of the Legislation Act).

[40] Mitrow, J. followed Longo and held that in third-party claim in the case, which he found had been commenced under PTHIA and not under PACA, the Crown's participation in the discovery process was a voluntary and not a compellable process: at para. 24. He considered s. 2(1) of PACA and rejected the submission of the defendants seeking discovery against the Crown that it was not a foregone conclusion that an action commenced pursuant to PTHIA may not also be subject to PACA.

[41] Parenthetically, it is noted for completeness that in Michigan Fruit Co. v R. [1937] O.W.N. 685 (Master), a case which predated Longo, it was held that a claimant under the HIA did not have a right of discovery against the Crown. The Master held that there was nothing in s. 5 of the HIA then in force (which provided that "but every such action may be instituted and carried on...in the same manner as in an action brought by a subject of His Majesty against another subject") which took away by express words the prerogative of the Crown to refuse production and "it is only where such express words appear that this prerogative can be taken away."

Case granting a right of discovery against the Crown in respect of claims for non-repair of highways

[42] The case of Taylor v. Mayes, 2019 ONSC 5651, a decision of Ryan Bell J. was the only case cited by counsel in which it was held that parties advancing a claim against the Crown under the PTHIA (in that case defendants who had issued a third-party claim against the Crown alleging a lack of winter maintenance of the highway) were entitled to compel the Crown to submit to documentary and oral discovery.

[43] Counsel did not draw the court's attention to any cases which have followed Taylor on the issue, and I have likewise been unable to discover any.

[44] I find that the circumstances in Taylor are functionally indistinguishable from those in the case at bar for the purpose of the motion.

[45] Ryan Bell, J. began her analysis in Taylor by noting at para. 30, citing Abou-Elmaati, that at common law there is no right of pre-trial discovery against the Crown and apart from the jurisdiction provided by statute, the Superior Court does not have jurisdiction to compel production from the Crown in a civil proceeding,

[46] The Crown submitted, in reliance on Cristante, that by virtue of s. 2(1) of PACA which provides that it "does not affect and is subject to" the PTHIA, there is no right to compel discovery of the Crown in actions commenced under s. 33 of PTHIA, and the PTHIA cannot be supplemented by PACA.

[47] At para. 33 Ryan Bell J. rejected the Crown's submission, finding that its reading of the PTHIA was unduly narrow. At para. 35 she distinguished Longo on the basis that it was decided before the enactment of PACA and particularly s. 8 therein which provides that, with certain qualifications, the rules of court as to discovery applied to the Crown "in the same manner as if the Crown were a corporation." She concluded that, 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.

[48] At para. 38 Ryan Bell, J. held that, in applying the normal principles of statutory interpretation to both the PACA and the PTHIA, s. 33(7) of the PTHIA contemplates discovery rights against the Crown in actions commenced against it under that statute.

[49] She added at para. 39 that, while PACA is expressly subject to the PTHIA, there is no inconsistency between the two statutes on the issue of discovery rights against the Crown and that s. 8 of the PACA applies generally to "a proceeding against the Crown" including a proceeding commenced under the PTHIA.

Judicial Comity and Stare Decisis

[50] It is recognized at common law that there is a strong convention of horizontal judicial comity. In the case of Horne v. Horne Estate, [1986] O.J. No. 243 (H.C.J.) Galligan, J. observed that until the Court of Appeal has had the opportunity to deal with an issue, "it is desirable that there be consistency of decisions among judges" and that "a decision of a court of co-ordinate jurisdiction ought to be followed in the absence of strong reason to the contrary."

[51] Strathy, J. (as he then was) addressed the issue of judicial comity in the case of R. v. Scarlett, 2013 ONSC 562 at para. 43 as follows:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Hansard Spruce Mills Ltd., Re, [1954] 4 D.L.R. 590 (B.C. S.C.); R. v. Northern Electric Co., [1955] O.R. 431, [1955] 3 D.L.R. 449 (Ont. H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills Ltd., Re, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

[52] In the case at bar I am faced with a sharp divergence in the jurisprudence between a line of cases commencing with the early case of Michigan Fruit Co. and continuing with the Court of Appeal decision in Longo and other cases following it, in which it has been held that a party advancing a claim against the Crown under PTHIA (and its predecessor HIA) cannot compel documentary and oral discovery against the Crown, and the most recent reported case considering the issue, Taylor, holding that such a claimant may compel such discovery by the Crown.

[53] On the one hand I am subject to the convention of judicial comity providing that I should follow the decision of Ryan Bell J. in Taylor unless there is a cogent reason to depart from it. On the other hand, I am bound by the doctrine of stare decisis to follow the decision of the Court of Appeal in Longo unless I determine it is distinguishable on the ground cited by Ryan Bell, J. in Taylor, or on some other ground.

[54] The following observations respecting the doctrine of stare decisis made by Steel and Freedman, JJ.A. of the Manitoba Court of Appeal in the case of R. v. Neves, 2005 MBCA 112, at para. 90 are important and relevant to the dilemma faced by the Court in the case at bar:

The principle of stare decisis is a bedrock of our judicial system. There is great value in certainty in the law, but there is also, of course, an expectation that the law as expounded by judges will be correct, and certainly not knowingly incorrect, which would result when a decision felt to be wrong is not overruled. The tension when these basic principles are in conflict can be profound.

Determination

[55] I have concluded that I am bound by the Court of Appeal's decision in Longo as it has been understood and applied by the subsequent authorities including Ratkevicius and Cristante.

[56] I am unable to find that Longo is distinguishable on the basis found in Taylor or on any other ground and I am therefore bound by it.

[57] Ryan Bell, J. distinguished Longo on the basis that it was decided before PACA came into force.

[58] It is noteworthy that Wren appears not to have been cited to Justice Ryan Bell. In Wren Cory, J. dealt head-on with the effect of the PACA on discovery rights against the Crown and found that it specifically provided in s. 2 that it did not affect the MVACA and therefore the provisions of PACA respecting discovery against the Crown were not applicable to actions under that Act.

[59] In my view, given that the PTHIA and the MVACA were both excluded from the application of PACA, the analysis is identical in respect of actions commenced under each of these statutes.

[60] Mitrow J. in Cristante dealt specifically with the effect of s. 2 of PACA and concluded that the Crown could not be compelled to submit to discovery in an action under PTHIA by virtue of that section, notwithstanding the PACA.

[61] Ryan Bell J. did not specifically distinguish Cristante in Taylor, nor did she address the principle of judicial comity in relation to it.

[62] Finally, it is noted that, although PACA was not in force at the time that Longo was decided, the Court of Appeal did make reference to it as an example of a statute that specifically included an express provision for discovery against the Crown, unlike the HIA in that case.

[63] I conclude that observance of the doctrine of stare decision in relation to Longo precludes the application of the convention of judicial comity in relation to Taylor. I find, with respect to Ryan Bell J., that there is a cogent reason not to follow Taylor in these circumstances.

Disposition

[64] For the foregoing reasons, I find that the moving parties may not compel documentary or oral discovery against the Crown. The motion is therefore dismissed.

Costs

[65] The parties are strongly urged to settle the issue of the costs of the motion.

[66] If the parties are unable to do so, the responding party may make written submissions as to the costs of the motion within 14 days of the release of this Endorsement. The moving parties shall have 10 days after receipt of the responding party's submissions to respond. The written submissions shall not exceed four (4) double-spaced pages exclusive of attachments such as Bills of Costs, Costs Outlines and Offers to Settle. All such written submissions are to be forwarded to me via email to the Trial Coordinator at Brantford, at the same email address as was utilized for the release of this Endorsement.

D.A. Broad, J.

Date: December 13, 2021