COURT FILE NO.: CV-21-00674538-0000 DATE: 20230130

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TANYA REBELLO Plaintiff – and – HIS MAJESTY THE KING IN RIGHT OF ONTARIO as represented by the Ministry of Transportation, Ministry of Government and Consumer Services and ServiceOntario Defendant

Tanya Rebello, on her own behalf Adam Mortimer and Bhavini Lekhi, for the Defendant

HEARD: December 5, 6, and 20, 2022

E.M. Morgan, J.

I. Background

[1] On April 16, 2018, ServiceOntario mistakenly transferred the Plaintiff’s Vehicle Identification Number (“VIN”) from her name to the name of Hollywood North Auto Parts Inc. (“Hollywood North”), a third party unrelated in any way to the Plaintiff or her vehicle. At the same time, ServiceOntario apparently recorded her car as being in “wrecked” condition and detached, or invalidated, the vehicle’s license plate.

[2] No one seems to know how this could have happened. But it was clearly a mistake.

[3] The erroneous transfer was brought to the attention of ServiceOntario on May 16, 2018. The Plaintiff had apparently reported the matter to the police. Two weeks later, on June 1, 2018, following confirmation by Hollywood North and the Toronto Police Service that Hollywood North did not own or possess the Plaintiff’s vehicle and that the transfer was in error, the MTO transferred the VIN back to the Plaintiff’s name.

[4] The MTO also acknowledged that the car was not wrecked, and it began the process of re-attaching, or re-associating, the license plate with the Plaintiff’s vehicle. The plates were in any case due for renewal, and the MTO went through its usual renewal process. In doing so, it then discovered that the Plaintiff had numerous outstanding parking tickets registered against her in the Defaulted Fines Control Centre of the Ontario Court of Justice.

[5] Pursuant to Part II of the Highway Traffic Act, RSO 1990, c. H.8, s. 7(10) and Parking Infractions, RRO 1990, Reg. 949, s. 9(2), the supervisor of the Defaulted Fines Control Centre “shall direct that any permit issued to the person in default under Part II of the Highway Traffic Act not be validated and no new permit be issued to that person until the fine is paid.” The MTO therefore applied this mandatory policy to the Plaintiff and refrained from issuing new plates or renewing the previous plates and re-associating them with the Plaintiff’s vehicle until such time as the outstanding fines relating to her parking tickets were paid.

[6] The Plaintiff has objected to this course of action by the Defendant. She claims that she had received no parking tickets and that she owed no fines for any parking infractions. In pursuing this position, she refused to pay what the MTO said was owing, and has sued the government of Ontario claiming damages for the ongoing harm she says the government has caused her.

II. Limitation period

[7] On June 18, 2018, the Plaintiff issued a Statement of Claim bearing Court File No. CV-18-599902. In that pleading, the Plaintiff sued the Ontario Crown in respect of the erroneous April 16, 2018 transfer and the MTO not re-validating her license plate. That action was dismissed by Order of Dunphy J. on March 29, 2019 for failure to comply with the 60-day notice provision that at the time applied under section 7(1) of the Proceedings Against the Crown Act, RSO 1990, c. P.27.

[8] In his endorsement, Justice Dunphy explained that he was dismissing the claim without leave to amend. He did indicate, however, that the Plaintiff was at liberty to issue a new claim that complies with the statutory requirements, provided, of course, that the limitation period has not by then expired. The present claim was issued by the Plaintiff on December 31, 2021. That date, of course, is well beyond the two-year limitation with respect to the events that transpired in April to June 2018 and even more than two years beyond the March 29, 2019 endorsement of Justice Dunphy.

[9] In my view, the current claim is time barred, having been issued beyond the two-year period set out in section 4 of the Limitations Act, 2002, SO 2002, c 24, Sch B. Pursuant to section 5(2) of that statute, actions are presumed to have been discovered at the time the events that underlie them transpired, unless there is evidence establishing that the claim was only discovered at a later time. Section 5(1) makes it clear that discovery of the claim occurs (a) at the time at which the Plaintiff knew of the facts giving rise to the claim, or (b) a reasonable person in the Plaintiff’s circumstances would have known of the facts giving rise to the claim.

[10] The present claim was commenced more than three years and eight months after the events giving rise to it. Those were events in which the Plaintiff herself was fully engaged and aware of at the time they transpired. Indeed, her original Statement of Claim, issued on June 18, 2019, demonstrates conclusively that she knew as of that date she had a claim, since the present version of the Plaintiff’s claim is based on the identical facts and incidents. Moreover, the present claim was commenced more two years and nine months after Justice Dunphy, in his March 29, 2019 endorsement, indicated that she could start her claim again if she were so inclined.

[11] It should be noted that the limitations bar for this case is not countered by the pandemic-era tolling of limitation periods. Under O. Reg. 73/20, limitation periods were suspended for the six months between March 16, 2020 and September 16, 2020. Any limitation period running during that period was tolled until the suspension ended on September 16, 2020. Even accounting for this extension, the limitation period applicable to the Plaintiff’s claim elapsed before she commenced the current action on December 31, 2021.

[12] In the current iteration of her pleading, the Plaintiff has added a negligence claim relating to a medical suspension of her drivers license under s. 47 of the Highway Traffic Act, RSO 1990, c. H.8 and s. 14 of O. Reg. 340/94. That cause of action was not part of her original Statement of Claim.

[13] The medical suspension on which the Plaintiff’s new cause of action is based occurred on May 5, 2016. The Defendant submits that this claim is untenable as there is no recognized duty of care not to suspend a drivers license for medical reasons. Regardless of whether that is accurate – I make no finding with respect to the merits of that particular issue here – the fact is that this claim is beyond the applicable limitation period. That much is beyond any doubt.

[14] The record before me shows that the Plaintiff wrote a letter addressed to the MTO ‘Medical Review Board’ on July 12, 2016. In that letter she responded to the medical revocation of her drivers license and sought reinstatement of her licence. It is evident that the Plaintiff was aware of the basis of her medical suspension claim, and voiced her objection to it, at the time of writing the letter. Having waited until December 2021 to issue a claim relating to a matter she had already discovered in July 2016, the Plaintiff is out of time and statute barred.

[15] Under any counting, the present Statement of Claim, issued on December 31, 2021, was commenced more than two years after any conceivable date that the Plaintiff could have discovered any of the cause of action contained within it. It is therefore barred in its entirety by the Limitations Act.

III. Causes of action and defenses

[16] Defendant’s counsel raises several potential defenses to the Plaintiff’s claim other than the Limitations Act. These defenses are designed to respond to the multiple causes of action put forward by the Plaintiff in respect of the incidents in issue. Given my finding that the entire claim is limitation-barred, it is not necessary to analyze each and every one of the Plaintiff’s claims and Defendant’s defenses in detail.

[17] That said, a brief summary will suffice for the sake of completeness. The following tracks the Defendant’s arguments in response to the Plaintiff’s claims. It therefore summarizes both the causes of action and the defenses put forward in the case.

• The Crown can only be vicariously liable in tort where the individual committing the tort is a Crown officer, employee, or agent. ServiceOntario and its employees are independent contractors and are separately suable. Their acts are not Crown acts.
• The Crown is not liable to the Plaintiff in negligence because there is no private law duty of care with respect to vehicle registration. The Crown has no existing or analogous relationship with the Plaintiff on which a duty of care could be based. Further, there is no reason in policy or principle for recognizing a novel prima facia duty under the circumstances; indeed, there are overriding policy considerations that negate a duty of care.
• The standard of care with respect to the 2016 medical revocation of the Plaintiff’s license was met. With respect to the 2018 erroneous transfer of the Plaintiff’s VIN, MTO personnel acted promptly, effectively, and in compliance with all policy guidelines in responding to the notification that ServiceOntario has mistakenly transferred the VIN to Hollywood North.
• A car owner’s VIN is not confidential information, and so there can be no breach of confidence in disclosing it to a third party. In any case, the record contains no evidence that the Plaintiff suffered any detriment or loss by virtue of the disclosure of her VIN; no one made improper use of the VIN before it was transferred back to the Plaintiff in June 2018.
• There is no separate cause of action for breach of a statutory duty in Canadian law. In any event, there is no basis for the claim that Crown employees breached any duties under the Freedom of Information and Protection of Privacy Act, RSO 1990, c F31 (“FIPPA”). A car owner’s VIN does not constitute “personal information” as defined in section 2 of FIPPA, and so it warrants no special protection under that statute.
• A claim of intrusion upon seclusion requires a claimant to demonstrate deliberate and significant invasions of personal privacy that a reasonable person would consider to be highly offensive. The only information of the Plaintiff’s that was accessed by Crown employees or agents was her VIN information, which was accessed for the inoffensive purposes of correcting the error and transferring the vehicle registration back to the Plaintiff.
• The relationship between the Crown and/or ServiceOntario and a vehicle registrant is not a contractual one. Administration of a regulatory scheme does not in itself impose contractual obligations on the Crown, nor does it create contractual rights in private persons. Accordingly, there can be no claim of breach of contract arising therefrom.
• Driving a motor vehicle is not a Charter-protected right, and the transfer of a VIN does not constitute a denial of life, liberty, or security of the person. Moreover, although an administrative error was made and promptly corrected, the record does not establish that any principle of fundamental justice was breached in the transactions at issue. In addition, the record does not establish any ground for awarding damages for breach of the Charter as an independent wrong suffered by the Plaintiff in these circumstances.

[18] Separate from all of the other causes of action contained in the Statement of Claim, the Plaintiff also relies heavily on what she sees as an admission of liability by ServiceOntario on behalf of the Defendant. On November 26, 2018, Sharon Cameron, an administrator at ServiceOntario, wrote a letter to the Plaintiff, the salient portions of which are as follows:

I am writing today to apologize for a matter that recently came to my attention.

As a result of human error at the ServiceOntario counter, your vehicle was mistakenly recorded in our system on April 16, 2018 as being transferred to another owner and was incorrectly shown as being in wrecked status. At the same time, your plates CBBK 152, were detached from your vehicle.

The error came to our attention on May 15, 2018 and was partially corrected. Your vehicle information is correct at this time; however, your plates are still showing in our system as unattached.

Please take this letter, along with your vehicle permit/ownership and plate permit to any ServiceOntario location. It is important that you bring your documents above along with your identification for us to reattach your plates at no charge…

On behalf of ServiceOntario, I apologize for this error.

[19] Regardless of how the Plaintiff may perceive or interpret this letter, it is not, and cannot be, an admission of liability on behalf of the Defendant. Section 2 of the Apology Act, 2009, SO 2009, c. 3, provides:

2. (1) An apology made by or on behalf of a person in connection with any matter,

(a) does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter;

(b) does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter; and

(c) shall not be taken into account in any determination of fault or liability in connection with that matter.

[20] The same statute defines an “apology” as an “expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration”. Ms. Cameron’s letter fits within this definition. It expresses regret and twice uses the word “apologize” to express the import of the letter.

[21] Ms. Cameron testified at trial, and in response to questions asked by the Plaintiff in cross-examination explained that the letter was intended as an apology for the error that occurred on April 16, 2018 at the ServiceOntario counter. It likewise expresses regret for the inconvenience the Plaintiff would experience by having to attend ServiceOntario to have her vehicle permit re-issued.

[22] In her testimony, Ms. Cameron also confirmed that the letter contained standard apology language that government offices from time to time send to members of the public. As is evident from section 2 of the Apology Act, the Crown does not admit civil liability in issuing such a letter of regret.

[23] Accordingly, the November 26, 2018 letter is admissible only as evidence of the fact that a letter which apologized to the Plaintiff was sent and received. It cannot be relied upon by the Plaintiff as evidence of liability; in that respect, it has no significance whatsoever.

IV. Causation and mitigation

[24] Counsel for the Defendant submits, and I agree, that although she was at first the subject of an error, the Plaintiff has been the author of her own misfortune. The initial error by a ServiceOntario provider was within a short time resolved by Crown servants insofar as they were able to do so within the bounds of the law and MTO policy. Any other harm suffered by the Plaintiff was caused by the Plaintiff herself, or could have been entirely mitigated by the Plaintiff.

[25] The Plaintiff asserts that on May 16, 2018 she paid ServiceOntario $194.45 in fines. Her bank statement shows a payment in this amount, but it does not specify what the payment was for. In any case, as of May 16, 2018 the certified Ontario Court of Justice records in evidence show that the Plaintiff owed $743.75. Even if her $194.45 payment was in respect of parking tickets – which the record does not in fact establish – it would not have sufficed to cover the outstanding parking fines. There is no evidence that the Plaintiff has paid off her accumulated parking fines to date.

[26] But for the Plaintiff’s failure to deal with her parking tickets, and her continued unwillingness to acknowledge and to pay the fines relating to those tickets and the outstanding fines, the Plaintiff would have had her licence plates validated and re-associated with her vehicle. The refusal to pay her outstanding fines has been the only obstacle in the licensing of the Plaintiff’s vehicle since the VIN was transferred back to her on June 1, 2018.

[27] To put the matter at its most elementary level, the Plaintiff cannot recover damages against the Defendant for the consequences that flow from unpaid parking tickets. All she had to do to renew her plates and complete the righting of the error with respect to her vehicle was to pay her parking tickets like everyone else.

[28] In cross-examination, the Plaintiff herself confirmed that her annual license validation was due on March 18, 2018, and that she would have been required to pay outstanding parking tickets and fines on that date. This was a month before the erroneous transfer to Hollywood North took place. In other words, the parking tickets that the Plaintiff has refused to pay would have had to have been paid in March 2018 in order to renew her vehicle plate registration, regardless of whether the mistaken transfer to Hollywood North occurred that April. Nothing done by ServiceOntario or the Crown caused the Plaintiff any harm that she did not cause to, or fail to immediately remedy, herself.

[29] In her testimony at trial, the Plaintiff took what seemed to me to be the surprising position that the parking tickets were suspicious because she had never received them. She took the position that in her view they probably had never really been issued. She also questioned whether the copies of the tickets produced by the Defendant were true copies, since the Defendant did not produce the yellow-coloured originals that would have appeared on her windshield had she really received them.

[30] These arguments, or this viewpoint, sounded conspiratorial and, frankly, doubtful to me. I can see no reason why a government party would produce copies of parking tickets that were never issued and that the Plaintiff had never received.

[31] In cross-examination, counsel for the Defendant put to the Plaintiff the court records of her parking infractions, all of which showed that she not only had received the tickets but that she had actively defended them in court. Each of the records indicated that she had an agent – Gary Curtis – sign in and represent her in defense of those provincial offenses charges. I am not sure why the presiding judge allowed a non-lawyer to represent the Plaintiff without the Plaintiff being present herself, but that is what appears to have transpired.

[32] The Plaintiff responded that Mr. Curtis is an acquaintance of hers but that she does not know why he appeared in court and that she did not authorize him to do so or know that he was doing so. This testimony left unexplained how Mr. Curtis would know about each of those parking tickets and when and where to respond to them if the Plaintiff had not told him about receiving them. It also left unexplained why Mr. Curtis, who she described as no more than an acquaintance of hers, would sign an official document as her agent and purport to represent her with respect to a parking infraction or any other matter.

[33] In further cross-examining her, Defendant’s counsel put to the Plaintiff that, in fact, she had tried this tactic at least once before in court. In his questioning, he suggested that the Plaintiff and Mr. Curtis were frequent collaborators in their litigation tactics. The Plaintiff denied any such suggestion.

[34] In pursuing this line of questioning, Defendant’s counsel showed her a copy of Justice Myers’ decision in Rebello v Bank of Nova Scotia, 2018 ONSC 7127, at para 50. That published decision made, in explicit terms, precisely the same point that was contained in Defendant’s counsel’s question to the Plaintiff: “For the first many months of this proceeding, the plaintiff was ostensibly self-represented. In fact, however, she was represented by a non-lawyer named Gary Curtis.”

[35] The Plaintiff had no cogent explanation for this repeat performance by Mr. Curtis on her behalf.

[36] I note that after identifying Mr. Curtis as the Plaintiff’s representative, Justice Myers observed that a non-lawyer should not be playing that role in a court proceeding. Those observations are worth quoting in full, at para 50:

Moreover, Mr. Curtis’s role is more than just a small concern. He received and abused the discretionary largesse of several judges by continuing to appear in court without the plaintiff after being told that this was improper and even after being ordered to stop doing so. In her letter to the Divisional Court seeking a stay of the orders of Masters Short and Jolley, the plaintiff now asserts that those orders were made without notice to her. That is, now she seems to be denying that Mr. Curtis was representing her. That does not explain her absence or the signed documents purporting to give Mr. Curtis authority to act as the plaintiff’s agent that he submitted. But it does show the risk of abuse inherent in repeatedly allowing a non-lawyer to appear in this court even if done as a matter of seeming largesse.

[37] Justice Myers did not find it credible that Mr. Curtis represented the Plaintiff without her authority or that she did not know about the allegations considered in the case before him, and neither do I in the case before me. Mr. Curtis did not suddenly materialize at the Ontario Court of Justice to defend the Plaintiff’s parking infractions without having been told of the parking tickets and the time and place of those hearings by the Plaintiff. And the Plaintiff herself did not suddenly become aware of the time and place of the court hearings without having received the tickets in the first place, or she would not have known about them to send Mr. Curtis as her representative.

[38] The Plaintiff’s entire story with respect to her parking tickets rings untrue. The fact that this is the second time the Plaintiff has engaged in this tactic with Mr. Curtis – sending him to represent her and then denying his authority to do so when he is unsuccessful on her behalf – only augments her lack of credibility.

[39] The trial evidence here includes certified copies of records from the Ontario Court of Justice, Provincial Offences Office for the City of Toronto, of a number of parking tickets issued for an automobile bearing the Plaintiff’s vehicle’s licence plate number. Those records also include a detailed Court Summary listing the events that happened during the course of the prosecutions under the Provincial Offences Act, RSO 1990, c. P.33, including the dates that denials were issued against the Plaintiff’s vehicle plate. These records are admissible for the truth of their content as public official documents under sections 29 or 32(1) of the Evidence Act, RSO 1990, c. E.23, sections 29, 32(1).

[40] I find that the Plaintiff received and knew about her parking tickets and the outstanding fines related thereto. I also find that the Defendant acted validly and in accordance with prescribed policy in seeking payment of those fines before re-validating her vehicle plates.

[41] I make no findings with respect to the specific losses or harms that the Plaintiff claims to have suffered. I find that if she has suffered any such loss or harm, it would not have been caused by any act that she alleges against the Defendant; rather, it would be a result of her not having paid her outstanding parking fines.

V. Disposition

[42] The Plaintiff’s claim is dismissed.

[43] The parties may make written submissions as to costs. I would ask for Defendant’s counsel to send my assistant by email brief submissions within two weeks of the date hereof, and for the Plaintiff to send equally brief submissions by email to my assistant within two weeks thereafter.

Released: January 30, 2023 Morgan J.