Court File and Parties

Court File No.: CV-21-00669368-0000
Date: 2025-05-30
Court: Superior Court of Justice – Ontario

Plaintiff: Ewa Dranska
Defendants: Gurjit Singh, J. Doe #1, Constable Khabra, The Crown in Right of Ontario on behalf of the Ontario Provincial Police, Lorenzo Stampatori, Lorenz Food Distributors Ltd., Canadian Road Management Company/Compagnie de Gestion Canadian Road, and Certas Home and Auto Insurance

Before: Mark L. Koehnen

Counsel:

• Sarah Reisler for the defendants, Constable Khabra and The Crown in Right of Ontario on behalf of the Ontario Provincial Police
• Peter Yoo, Damian Di Biase for the defendant Certas Home and Auto Insurance

Heard: February 13, 2025, further written submissions on March 19 and March 24, 2025

Endorsement

Overview

[1] The defendant, the Crown in Right of Ontario on behalf of the Ontario Provincial Police (the “Crown” or “Ontario”) moves to dismiss all claims against it. It asks the court to do so either under Rule 21 by determining an issue before trial, or under Rule 20 by granting summary judgment. In both cases it seeks an order dismissing all claims against the Crown. It bases its request on the plaintiff’s failure to notify the Crown of the claim as required by s. 18 of the Crown Liability and Proceedings Act (the “CLPA”). The issue argued before me concerned not so much the continued validity of the plaintiff’s claim against the Crown but the continued validity of crossclaim against the Crown by the defendant Certas Home and Auto Insurance.

[2] For the reasons set out below, I allow the Crown’s motion against the plaintiff but dismiss its motion against Certas. I order that the Certas crossclaim be allowed to continue despite striking the main action against the Crown. On my reading of the CLPA, its notice requirements do not apply to crossclaims. In my view, the crossclaim is not subject to the notice requirements under the CLPA. I also allow the cross-motion of Certas to compel the defendant Constable Khabra to re-attend on a continued examination for discovery to answer questions arising out of his answers to undertakings.

Background Facts

[3] The action arises out of a motor vehicle accident that occurred on July 15, 2020. The plaintiff alleges that the defendant Constable Khabra was engaged in a police chase in which he was pursuing a car driven by the defendant Gurjit Singh which, during the course of the alleged pursuit, struck the car being driven by the plaintiff.

[4] The plaintiff has brought an action against Khabra and the Ontario Provincial Police (the “OPP”). To bring a claim against the OPP, the plaintiff must sue the Crown in Right of Ontario. The parties agree that the action can continue against Khabra.

[5] The plaintiff has also claimed against her insurer, the defendant, Certas Home and Auto Insurance. The plaintiff claims against Certas because the defendant Singh was an uninsured motorist at the time of the accident. To recover against Singh, the plaintiff must bring a claim against her insurer. Certas has in turn crossclaimed against Ontario alleging that the OPP is vicariously liable for the conduct of Khabra and/or that the OPP was negligent in training Khabra.

[6] Ontario moves to dismiss the action as against it on three grounds:

i. Ontario did not receive prior notice of the claim which renders the proceeding a nullity.
ii. Non-compliance extends to crossclaims.
iii. Certas has no reasonable cause of action against Ontario because Khabra and Ontario are insured under the same $5,000,000 motor vehicle liability policy. As a result, if Khabra is found even 1% liable, the plaintiff can obtain full recovery under the insurance policy.

[7] The plaintiff did not contest the motion. The real dispute on the motion before me was therefore between Certas and the Crown. Certas submits that the plaintiff’s failure to notify the Crown does not affect its crossclaim or, in the alternative, should lead the court to allow Certas to issue a third party claim against the Crown if necessary.

[8] Although the Crown moves because of lack of notice, it nevertheless participated in the action by attending examinations for discovery and attending mediation. The pleadings were closed on November 15, 2021. The Crown did not bring this motion until 2024. The Crown did, however, defend the statement of claim by, among other things, pleading that no notice was provided.

[9] In addition to the Crown’s motion, Certas brings a cross-motion to require that Khabra attend on a continued examination for discovery to answer questions arising out of answers to undertakings and that Ontario produce for discovery, a representative from the OPP who has specific knowledge, information and belief about the protocols, rules, practices, and directions governing police pursuits.

I. No Prior Notice of the Claim

[10] Section 18(1) and (6) of the CLPA provide:

18 (1) No proceeding that includes a claim for damages may be brought against the Crown unless, at least 60 days before the commencement of the proceeding, the claimant serves on the Crown, in accordance with section 15, notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose.

(6) For greater certainty, failure to give notice of a claim as required by this section renders a proceeding brought without such notice a nullity in respect of the claim, from the time the proceeding is brought.

[11] Courts have held that the notice requirement cannot be waived.

[12] There is no evidence that the plaintiff provided 60 days notice to the Crown before commencing the claim as a result of which Ontario submits the action against it is a nullity and should be dismissed.

[13] As noted, the plaintiff has not defended against Ontario’s motion. As a result, the plaintiff’s claims against the Crown are struck out.

II. Does the Notice Requirement Apply to Cross-Claims?

[14] Ontario submits that because the plaintiff’s claims against Ontario are a nullity by virtue of the lack of notice, Certas’ claim against Ontario is also a nullity and must be struck out because Certas did not give notice of its crossclaim to the Crown.

[15] In response, Certas relies on s. 18(5) of the CLPA which provides:

This section does not apply with respect to a counterclaim, crossclaim or claim by way of set-off.

[16] In response to that argument, Ontario submits that s. 18(5) must be interpreted as presuming that the plaintiff in the underlying action has already provided notice to the Crown. In doing so it relies on s. 97(1) of the Legislation Act, which provides:

Where words referring to actions or other proceedings for damages are used in a provision excluding or limiting the liability of the Crown or any other person, third or subsequent party proceedings and proceedings for contribution and indemnity or restitution are included.

[17] Ontario submits that s. 18(1) of the CLPA “excludes or limits” liability and therefore extends the requirement for 60 days notice under s. 18(1) to Certas’ crossclaim. Given that Certas did not provide any notice, the Crown argues that the crossclaim against the Crown must also be struck out. I am unable to agree with that submission.

[18] The following oft repeated canon of statutory interpretation applies here:

Today there is only one principle or approach; namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[19] A plain reading of s. 18(5) would hold that the requirement for notice under section 18(1) does not apply to, among other things, crossclaims.

[20] Section 97 of the Legislation Act does not override the plain meaning of s. 18(5) of the CLPA. Section 97(1) applies only to provisions that “exclude or limit” liability of the Crown. In Francis v. Ontario, Perrell J. held that s. 18 does not exclude or limit the liability of the Crown. Rather, it merely provides a notice requirement for claims against the Crown.

[21] The language of s. 18 contrasts with other statutory language which has been held to exclude or limit Crown liability. By way of example, in Portuguese Canadian Credit Union v. 1141931 Ontario Ltd., the Court of Appeal for Ontario applied section 97(1) to s. 253(1) of the Credit Unions and Caisses Populaires Act, which provided that:

No action or other proceeding for damages shall be instituted against ... [the Crown entity] ... for any act done in good faith in the execution or intended execution of a duty of ... [the Crown entity] or for any neglect of default in the execution, in good faith, of that duty.

[22] If anything, in respect of claims of the sort that are at issue here, the CLPA does not exclude or limit Crown liability but affirms it. For example, s. 8(1) of the CLPA provides:

8 (1) Except as otherwise provided under this Act or any other Act, the Crown is subject to all the liabilities in tort to which it would be liable if it were a person,

(a) in respect of a tort committed by an officer, employee or agent of the Crown;

(b) in respect of a breach of duty attaching to the ownership, occupation, possession or control of property;

(c) in respect of a breach of an employment-related obligation owed to an officer or employee of the Crown; and

(d) under any Act, or under any regulation or by-law made or passed under any Act.

[23] At a minimum, the allegations in the crossclaim fall within s. 8(1)(a). Certas also alleges that they fall within clauses (b) and (c).

[24] The Crown points to a competing canon of statutory interpretation; namely that interpretations ought to avoid absurd results. A result is said to be absurd if it “defeat[s] the purpose of a statute or render[s] some aspect of it pointless or futile”.

[25] The Crown submits that if s. 18(5) were not limited to counterclaims, crossclaims or set-off claims where the plaintiff had given proper notice to the Crown of the underlying proceeding, it would exempt Certas from the consequence of Section 18(6) of the CLPA. This, the Crown argues, would lead to an absurd result because it would in effect circumvent a mandatory notice requirement and validate a crossclaim against the Crown when the Crown was never a proper defendant to begin with.

[26] I am unable to accept this submission. Section 18(6) renders certain parts of a proceeding a nullity only for “failure to give notice of a claim as required by this section.” Section 18(5) states explicitly that section 18 does not apply to crossclaims. As a result, s. 18(6) never even comes into play.

[27] If s. 18(5) were based on the assumption that the plaintiff had given the Crown proper notice, it could, and should, have said so. In this regard it is worth noting that s. 7 of the predecessor statute to the CLPA, the Proceedings Against the Crown Act, did not exempt crossclaims from the notice provision, although counterclaims and set off claims were subject to it. While the legislature took the additional step of adding crossclaims to section 18(5), it did not restrict its application to cases where the plaintiff had given appropriate notice in the underlying action. Where the legislature has turned its mind to a specific provision, the preferable judicial approach is to apply the plain words of the statute and have further refinements provided by the legislature, especially where such further refinements would limit the rights of the subject.

[28] At first blush, there may appear to be a logical gap in finding that a claim against the Crown is a nullity but nevertheless maintaining a crossclaim against the Crown. If there is such a gap, it is of the statute’s own making and should not affect the rights of the subject. Moreover, a similar problem is addressed by Rule 23.03 which provides that a crossclaim is dismissed within 30 days of the main action being discontinued unless the court orders otherwise within the 30-day period. The Rules therefore contemplate the notion that a crossclaim can survive in the absence of an underlying claim.

[29] The wording of ss. 18(1) and 18(6) supports this view. Recall that s. 18(1) provides that “no proceeding” for damages against the Crown can be brought unless the Crown has been given 60 days notice. Section 18(6) provides that:

(6) For greater certainty, failure to give notice of a claim as required by this section renders a proceeding brought without such notice a nullity in respect of the claim, from the time the proceeding is brought.

[30] Section 18(6) does not nullify the “proceeding” but only the “claim” in respect of which notice is required. The only “claim” in respect of which notice is required is the plaintiff’s claim against the Crown. As a result, other “claims” in the “proceeding” survive. By way of contrast, other provisions of the CLPA specifically provide for consequences to the entire “proceeding” if certain requirements are not met.

[31] Finally on the point of any alleged conflict between s. 97(1) of the Legislation Act and s. 18(5) of the CLPA, I note that the former was introduced on the Act’s inception in 2006. Section 18(5) was introduced in 2019. To the extent that there is a conflict between the two, the provision later in time should prevail.

[32] The Crown further argues that Certas’ claim against the Crown must be dismissed because it is not a crossclaim but is a subrogated claim. The Crown further argues that a subrogated claim is a creature of statute created by the Insurance Act. This is significant because s. 71 of the Legislation Act provides that:

No Act or regulation binds the Crown or affects the Crown’s rights or prerogatives unless it expressly states an intention to do so.

[33] The Insurance Act does not expressly state an intention to bind the Crown.

[34] The Crown’s theory is that Certas does not have a crossclaim because a crossclaim is a claim for contribution and indemnity. Certas does not have a claim for contribution and indemnity because it is not a joint tortfeasor that caused the plaintiff damages. Instead, Certas has a subrogated claim in which Certas steps into the shoes of the insured and is subject to the same rights and obligations as is the insured. Since the Insurance Act which create subrogated claims does not bind the Crown, there can be no subrogated claim against the Crown. I am unable to agree with that submission.

[35] The first problem with the argument is that it assumes that a crossclaim can only be one for contribution and indemnity. The plain language of r. 28 defines a crossclaim more broadly and allows a defendant to crossclaim against a co-defendant who:

(a) is or may be liable to the defendant for all or part of the plaintiff’s claim;
(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,
(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or
(ii) a related transaction or occurrence or series of transactions or occurrences; or
(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.

[36] On their plain language, all of those provisions potentially apply here. They are not limited to claims for contribution and indemnity by joint tortfeasors. To the extent that Certas is liable to the plaintiff, the Crown may be liable to Certas or should arguably be bound by a determination of an issue arising between the plaintiff and Certas or other defendants. On its plain language, Rule 28 encompasses claims which could be characterized as being subrogated claims. I note in this regard, that in Freudmann-Cohen v. Tran, the Court of Appeal permitted an insurer to bring a subrogated third party claim in its own name rather than under the name of the insured under rule 29.01 of the Rules noting that the issue of naming was procedural rather than substantive in nature. The availability of a third party claim is described in the same language in rule 29 as is the availability of a cross claim under rule 28. In addition, the Court held that it was not necessary for the person against whom the third party claim is brought to be liable to the defendant, but it was sufficient if the target of the third party claim “should be bound by the determination of an issue arising between the plaintiff and the defendant.” In addition, a number of cases have held specifically that insurers can advance subrogated claims against the Crown.

[37] Moreover, even if the Insurance Act does not contain a provision binding the Crown, subrogation was also available at common law.

[38] Ontario further submits that the crossclaim should be struck out because the Crown pleaded lack of notice as a defence to the plaintiff’s claim and Certas took no steps to remedy the issue. Although the Crown may have raised notice as a defence to the plaintiff’s claim, it did not raise notice as a defence to Certas’ crossclaim. As a result, the combination of s. 18(5) and the absence of any notice defence in the Crown’s defence to crossclaim gave Certas no reason to believe that its crossclaim was subject to a notice requirement. To allow the Crown to raise that issue four years after the fact causes unfair prejudice to Certas.

Leave to Issue a Third Party Claim

[39] In the alternative, to allowing the crossclaim to continue, Certas asks me to grant leave for it to issue a third party claim against the Crown, should the crossclaim technically not survive if the action against the Crown is dismissed. If that were the case, I would grant the plaintiff leave as requested.

[40] Although the time to issue a third party claim against the Crown without leave has passed, Rule 29.02(1.2) provides that the Court shall grant leave unless the plaintiff would be prejudiced. No one has argued that issuing a third party claim at this point would prejudice the plaintiff; nor do I see how it could.

[41] I can see an argument for prejudice to the Crown given that the limitations period has arguably expired. Prejudice caused by the expiry of a limitations period, however, usually relates to the defendant being taken by surprise at a claim that is out of time and in respect of which the defendant has lost the opportunity to preserve documentary evidence or the recollections of witnesses. Here, the concept of a claim by Certas should not take the Crown by surprise. The Crown has known of Certas’ cross claim since November 16, 2021, when it was served as a crossclaim. The Crown participated in the claim for several years before bringing this motion. If anything, it is Certas that is prejudiced because the Crown’s four year delay in bringing this motion has deprived Certas of the opportunity to begin a third party claim within the limitation period.

[42] I would nevertheless prefer to continue the crossclaim rather than direct the initiation of a third party claim. Initiating a third party claim at this late stage would create limitations issues that, in my view, Certas should not be obliged to address because of the Crown’s failure to raise notice as a defence to the Certas crossclaim.

III. No Reasonable Cause of Action Because of Insurance

[43] Ontario submits that there is no need to have the Crown as a defendant because both Khabra and Ontario are insured under a $5 million motor vehicle liability policy which would fully cover the plaintiff’s claims. Ontario observes that if Khabra is found only 1% liable, the insurance policy would fully cover the plaintiff’s damages. In addition, Ontario submits that suing Ontario for vicarious liability adds nothing because there is “no scenario in which the Crown, but not Khabra may be found liable for the plaintiff’s alleged damages.” I do not accept those submissions.

[44] Ontario’s submissions in this regard conflate the concepts of vicarious liability with the ability to enforce a judgment. An action for vicarious liability does not depend on the plaintiff’s inability to collect a judgement from the primary tortfeasor. Both the primary tortfeasor and the party vicariously liable for them can always be sued in the same action. Similarly, the fact that one tortfeasor is liable under a policy of insurance does not mean that a co-insured under the policy cannot also be sued at the same time. Moreover, s. 8(1)(a) of the CLPA does not make the Crown’s vicarious liability conditional on the absence of insurance for the Crown employee or the inadequacy of insurance for the Crown employee. Once again, I would be reluctant to impose restrictions on the plain language of the statute.

[45] I also disagree with the proposition that there is no scenario in which the Crown but not Khabra could be found liable. I can foresee circumstances in which Khabra would not be found negligent because he acted in accordance with what he was trained to do. It may, however, be the case that Khabra was trained improperly and that the Crown is liable for the failure to train properly.

[46] The Crown disputes the possibility of a finding of liability against it for failure to train properly. In doing so it relies on Tongtae v. Her Majesty the Queen (Ontario). In Tongtae, the plaintiff was identified by police as person of concern for mental health reasons. A police officer coincidently stopped the plaintiff, learned he was a person of concern, but nevertheless let him go. When a second officer detained him, the plaintiff fled on foot. While fleeing, the plaintiff fell under the path of a moving train which severed his legs. The plaintiff sued the police. The court dismissed the claim holding, among other things, that there was no recognized duty of care in relation to police training and that there should be no such duty. That finding was based on the view that training is a form of policy from which the Crown is immune by virtue of s. 11 of the CLPA which provides:

11 (1) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care while exercising or intending to exercise powers or performing or intending to perform duties or functions of a legislative nature, including the development or introduction of a bill, the enactment of an Act or the making of a regulation.

Regulatory decisions

(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.

[47] The essence of the court’s finding in Tongtae is not that there can never be an action for inadequate training but that there can be no action for legislative or policy decisions and that training, as presented in Tongtae, was a policy decision. Training can also, however, also be an operational decision for which Ontario can be liable. Whether training is legislative or operational in nature will turn on the individual facts of a particular case. If for example, the OPP had directed that officers should be trained in a particular way, but Khabra was not so trained because of inadvertence as opposed to policy, the training issue could be an operational one for which liability could exist. Just where Khabra’s training or lack thereof fits on this spectrum will be an issue for trial.

IV. The Application of Rules 21 and Rule 20

[48] As noted, the Crown moves under Rules 21 and 20. Given the nature of my reasons, not much turns on which rule applies. I would arrive at the same result under either Rule.

[49] The test to determine a question of law before trial under Rule 21.01(1)(a) is whether the determination of the issue of law is “plain and obvious.” No evidence is admissible on such a motion except with leave of a judge or on consent of the parties. There was a minor issue about the extent to which the court could take into account the absence of notice of the statement of claim to the Crown. To the extent that is an issue, I grant leave and accept that there is no evidence that the Crown was given notice.

[50] For the reasons set out above, I dismiss the Crown’s motion under Rule 21. It is not “plain and obvious” that Certas was required to give the Crown notice of a crossclaim against the Crown given the language of s. 18(5) of the CLPA.

[51] Alternatively, the Crown moves for summary judgment. Summary judgment shall be granted if the court is satisfied that there is no genuine issue requiring a trial.

[52] The Supreme Court of Canada summarized the test as follows in Hryniak v. Mauldin:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[53] As indicated, I am not satisfied that Certas was obligated to notify the Crown of its crossclaim. In addition, I am not prepared to grant summary judgment on the issue of police training. Whether training is a policy or operational issue will depend on the facts of the case. There was no factual record before me in that regard. That is a genuine issue that requires a trial to resolve.

V. Order Requiring Constable Khabra to Re-Attend for Discovery

[54] Certas seeks an order requiring Khabra to attend on a continued examination for discovery to answer questions arising out of his answers to undertakings. Khabra and the Crown oppose any such attendance. They submit that Rule 31.03(1) requires a party to seek leave of the court to examine a party more than once. In addition, they rely on case law which holds that there is no absolute right to compel a re-attendance.

[55] I am satisfied that a re-attendance should be ordered.

[56] Courts have drawn a distinction between a second examination for discovery and questions arising out of undertakings. Courts will more readily order an examination to answer questions arising out of undertakings than they will an entirely new, second discovery. Even then, the Crown and Khabra submit that the delivery of answers to undertakings does not give an automatic right to further examinations on those undertakings.

[57] Re-attendance to answer questions arising out of undertakings is available only if the re-attendance would serve a useful purpose, that is to say if it would enable the examiner to know the case to be met, obtain admissions, define and narrow the issues, and promote settlement.

[58] I am satisfied that a re-attendance would further those goals and is equitable in the circumstances. The re-attendance arises out of training manuals that Khabra and the Crown delivered after Khabra’s examination for discovery. Khabra referred to those manuals in the course of his answers to questions on discovery. It would in my view, be inequitable to allow a witness to base his answers during an examination for discovery on documents that the opposing party has not seen and on which it cannot examine. Given that the documents were referred to by Khabra in answers to questions on discovery, they were arguably relevant documents that ought to have been produced before the examination occurred.

[59] A reattendance will also be required where the remaining questions are critical to a party’s case. To the extent that Khabra is relying on training manuals to explain his conduct, those training manuals are critical to the case against him and his vicariously liable employer, the Crown.

[60] In Abdulwasi v. Pietrantonio et al., Master McGraw noted that the provisions of Rule 29.2.03(1) are relevant to the question of re-attending to answer questions arising out of undertakings. That rule provides:

29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

[61] Those factors all favour a re-attendance. The documents ought to have been produced earlier. Had they been produced in a timely manner Certas could have examined on them at the first attendance. A party should not be able to use its failure to produce documents as an excuse to avoid answering questions on those documents by creating an unnecessarily high bar to a re-attendance to complete the examination. Any time required for, expense associated with, or prejudice arising out of a re-attendance here is the fault of the party who failed to produce the documents in the first place. Moreover, I have not been directed to any evidence of unreasonable time, unjustified expense or undue prejudice. Similarly, I have not been provided any evidence or argument about how a continued examination would interfere with the orderly progress of the action.

[62] Finally, the Crown relies on the decision of Master Brott noted in Guaze v. Toronto Hydro Corp. for the proposition that receipt of additional documents since an examination for discovery was insufficient grounds for a re-attendance, particularly when the appropriate next step was to put their questions to an expert. The Crown argues here that the appropriate next step is to put the manuals and Khabra’s answers to an expert for a response.

[63] Guaze is clearly distinguishable on its facts. In Guaze, the defendants sought to re-examine the plaintiff after they received additional medical documents after the plaintiff’s discovery had been completed. The defendants argued that the new documents showed that the plaintiff’s condition had deteriorated and that they needed further examination to determine why that was so. Master Brott found that the plaintiff’s condition had not substantially deteriorated but that his prognosis had deteriorated and was more definitive. She concluded that the defendant might wish to conduct a defense medical examination to have its expert answer why the condition has allegedly worsened but that the plaintiff himself was not in a position to answer why. That makes eminent sense on the facts of Guaze.

[64] In the case before me, we are dealing with documents that ought to have been produced before the examination for discovery took place and are documents in respect of which Khabra and others will be able to answer questions. It would be quite normal for a plaintiff to examine a defendant about what he did or did not do in light of the contents of training manuals. Indeed, that would be necessary information for an expert to have in order to opine on the matter.

VI. Order Specifying Crown Witness for Discovery

[65] Certas asks that the Court order that the representative to be examined on behalf of the Crown be someone with specific experience, knowledge and information relating to the protocols, rules, practices and directions governing police pursuits.

[66] The Crown objects to such a direction relying on s. 19(1) of the CLPA which provides:

19 (1) In a proceeding to which the Crown is a party, the rules of court respecting discovery and inspection of documents, examination for discovery, evidence by cross-examination on affidavits and examination of witnesses apply in the same manner as if the Crown were a corporation, with the following exceptions…

2. The person who shall attend to be examined for discovery shall be an official designated by the Deputy Attorney General…

[67] The Crown submits that for the Court to impose directions about the identity of the Crown’s discovery witness before any such witness has been designated would deprive the Crown of its rights under s. 19(1). I tend to agree.

[68] That said, Certas has made it clear that it wishes to examine the Crown on protocols concerning police pursuits and training in relation to police pursuits. To the extent that the Crown produces a witness that is not capable of testifying to those issues with reasonable knowledge, it faces the risk of a re-attendance to have another witness examined on behalf of the Crown with a likely order for costs thrown away on the first examination.

Conclusion and Costs

[69] For the reasons set out above I dismiss the Crown’s motions and grant Certas’ motion to have Khabra re-attend discovery to answer questions arising out of answers to undertakings. In addition, I order that the Certas crossclaim may continue despite the plaintiff’s claim being struck out.

[70] The parties have agreed on costs. Costs on the Crown’s motion to dismiss are fixed at $7,000 including disbursements and HST in favour of Certas, payable within 30 days.

[71] The parties have agreed that costs in relation to Certas’ cross-motion for a third party claim against the Crown, continued discovery of the defendant Khabra and an order that the Crown produce for discovery purposes a representative that has specific knowledge regarding police pursuits be fixed at $3,000; although in the event of divided success the parties may need to make submissions on who pays and in what amount.

[72] I fix the costs of the Certas motions at $3,000 in favour of Certas. They have been substantially successful on those issues. The only point on which the Crown succeeded concerned directions about the sort of witness the Crown is required to produce. That issue is more academic than real given that the Crown’s failure to produce such a witness would likely result in a second discovery. Moreover, the amount of costs for that point is getting to a level of refinement that would require a disproportionate use of party and judicial resources to debate further.

Date: May 30, 2025

Mark L. Koehnen