CITATION: Sorensen v. Ontario, 2026 ONSC 3998
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEPHEN SORENSEN
Plaintiff
– and –
HIS MAJESTY THE KING IN RIGHT OF ONTARIO, ATTORNEY GENERAL OF CANADA and COUNTY OF FRONTENAC
Defendants
Roberto Aburto and Jessica Chen, for the plaintiff
Michael Saad, for the defendant, His Majesty the King in Right of Ontario
Joshua Toews, for the defendant, Attorney General of Canada
James McCarthy, for the defendant, County of Frontenac
HEARD at Kingston: 13 April 2026
REASONS FOR DECISION
(Motions to strike the statement of claim –
Rule 21.01(1) (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194)
MEW J.
1Howe Island lies in the St. Lawrence River, just east of Kingston. It is not far from the city; a ferry crossing will take a traveller there in a matter of minutes. Yet those who live on the island often experience it differently. Realtors describe it as a place marked by scenic landscapes and a friendly community, where daily life unfolds at a quieter pace and where, despite its proximity to the mainland, the island offers the peaceful lifestyle of being worlds away.
2It is this quality – at once close and apart – that gives the island its character. Residents go about the ordinary business of life: they work, they travel, they depend on regular passage to and from the mainland. That dependence lies at the heart of the matter now before the court.
The Claim
3Stephen Sorensen is a longtime resident of Howe Island. He and the other residents of Howe Island rely on the Howe Island ferry (the “Howe Islander”) as the primary means of access to the mainland. The ferry, owned by the Province of Ontario, operated by the County of Frontenac, and regulated by Transport Canada, has historically carried up to fifteen vehicles across three lanes.
4In October 2022, the capacity of the ferry was reduced from fifteen vehicles to ten vehicles by eliminating one of the three lanes. The plaintiff’s action, brought against three levels of government, alleges that the reduction in capacity of the Howe Islander was implemented in an arbitrary and non-transparent manner, without adequate explanation to residents, and in the face of opposition from the Howe Island community. He further alleges that the reduction was prompted by a single complaint and ensuing regulatory communications, including a Transport Canada inspection report and a consultant’s memorandum, which concluded that vehicle spacing on the ferry did not permit adequate emergency egress.
5Mr. Sorensen pleads that the defendants knew or ought to have known that the reduction in capacity would adversely affect ferry users, including the plaintiff, by increasing wait times and disrupting regular access to and from the island. He alleges that the defendants failed to provide justification for the reduction, failed to act reasonably in implementing it, and failed to take steps to mitigate its consequences.
The Motions to Strike
6The defendants bring motions under Rule 21.01(1) (b) of the Rules of Civil Procedure to strike the statement of claim, without leave to amend, on the basis that it discloses no reasonable cause of action.
7It is common ground that the threshold on such a motion is a stringent one. A claim will be struck only where it is “plain and obvious” that it cannot succeed, and where it discloses no reasonable prospect of success. The pleadings are to be read generously, with a view to permitting claims to be adjudicated on their merits where possible. At the same time, the court is required to undertake a critical analysis of the claim in order to ensure that untenable proceedings are not permitted to advance further.
8Each of the defendants seeks an order striking the plaintiff’s claim in its entirety against them. They submit that the pleadings, taken at their highest, fail to disclose a viable cause of action in negligence or negligent misrepresentation. The defendants further submit that the deficiencies in the statement of claim are not capable of being cured by amendment, and that the claims should therefore be struck without leave to amend. They argue that even taking the facts as pleaded as true, the essence of the claim is that the reduction in ferry capacity resulted in increased wait times and inconvenience to users. Properly characterised, they say, Mr. Sorensen seeks to impose a duty of care on public actors to maintain a particular level of public service, or to avoid delay to users, notwithstanding the statutory and regulatory framework governing the operation of the ferry.
9The defendants further submit that the statement of claim does not plead material facts capable of establishing a private law duty of care owed by any of them to the plaintiff in the circumstances. In particular, they argue that the actions complained of arise from the exercise of statutory responsibilities or public functions – namely, the ownership, operation and regulation of a public ferry service – and that recognising a duty of care in respect of such decisions would intrude upon matters of public policy.
10The defendants also contend that, even if a duty of care on their respective parts could be established, the pleadings do not disclose a breach of the applicable standard of care. They submit that the reduction in ferry capacity is alleged to have been undertaken in response to identified safety concerns, and that compliance with regulatory requirements cannot, as a matter of law, constitute negligence.
11Further, the defendants argue that the damages pleaded are deficient. They submit that the only concrete harm alleged is increased delay and frustration, which they characterise as non-compensable inconvenience. They further submit that the broader heads of damage, including diminution in property value and loss of income, are pleaded in a general and conclusory manner without supporting material facts.
12While these arguments are advanced collectively, each defendant also relies on its particular role in relation to the ferry. The County emphasises its position as operator, acting within a broader regulatory scheme. Ontario emphasises its role as owner, and a statutory framework governing Crown liability. Canada emphasises its role as regulator, exercising statutory inspection and certification functions. Each submits that, in light of these roles, no actionable duty of care arises on the facts pleaded.
13Mr. Sorensen submits that the statement of claim, read generously, pleads a viable cause of action against each of the defendants. He argues that the defendants owed him a duty of care arising from their respective responsibilities in relation to the ferry, and their relationship to a defined group of users who rely on it for access to their homes and community. Mr. Sorensen submits that it is not plain and obvious that the claim cannot succeed, and that the issues raised – particularly those relating to the duty of care, standard of care and causation – are best determined on a full evidentiary record.
14In the alternative, the plaintiff submits that if any deficiencies in the pleadings are identified, they ought to be addressed by granting leave to amend, rather than by striking the claim in its entirety.
Discussion
15The analytical framework for assessing whether to strike out a pleading on the ground that it discloses no reasonable cause of action is summarised by Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 5th ed. (Toronto: LexisNexis, 2025), at ¶6.216:
(a) the material facts pleaded must be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous or incapable of proof;
(b) the claim is deemed to include any statement or documents incorporated in it by reference and which form an integral part of a plaintiff's claim and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings;
(c) a claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses; the facts pleaded are the basis upon which the claim is evaluated;
(d) the statement of claim must be read generously to allow for drafting deficiencies; and
(e) if the claim has some chance of success, it must be permitted to proceed.
Morden and Perell continue, at ¶6.217:
The case law establishes that issues that are novel, complex, and important should normally be decided on a full factual record after trial. However, novelty by itself is not a reason to allow a cause of action to proceed to trial and a novel claim must also be arguable, have some elements of a cause of action recognized in law, be a reasonable and arguable incremental extension of established law and have a reasonable prospect of success.
Do the pleadings disclose a recognisable duty of care?
16The motions question whether the operator, owner and regulator, respectively, of the Howe Islander owe a private law duty of care to an individual ferry user.
17The determination of whether a duty of care exists is governed by the two stage “Anns/Cooper” test (set out in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as modified by Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537):
Do the pleadings disclose a prima facie duty of care based on proximity and reasonable foreseeability; and
Are there residual policy considerations that would negate that duty.
18Where a defendant is a public authority, a relationship of proximity giving rise to a duty of care may arise: (a) explicitly, or by necessary implication from the language of the applicable legislation; or (b) from the nature of the interactions between the parties: R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, 2011 SCC 42, at paras. 43-45; Am-Stat Corporation v. Ontario, 2018 ONCA 877, at para. 6.
19In Nelson (City) v. Marchi, [2021] 3 S.C.R. 55, 2021 SCC 41, the Court distinguished between core policy decisions, which would attract immunity, and operational delivery of a service or implementation of a policy, in respect of which ordinary negligence principles would govern.
20The County argues that Mr. Sorensen is seeking to push a public authority’s duty one step further, “effectively arguing that, where a public authority has offered a means of transportation – in this case, a ferry – it has a duty to continue to operate that transportation or service in the same manner and at the same levels or capacity”.
21In answer, Mr. Sorensen invokes the established category of cases, originating in Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228, and applied in Ontario in Deering v. Scugog (Township), 2010 ONSC 5502, aff’d 2012 ONCA 386, and Frank v. Central Elgin (Municipality), 2010 ONCA 574, in which public authorities have been held to owe a duty of care to those whom they invite to use publicly offered transportation infrastructure.
22Those cases do not assist the plaintiff. The duty they recognise is a duty to keep the infrastructure in a reasonably safe condition, so that those who use it are not exposed to physical injury from hazards or disrepair. The category has never been extended to a duty to maintain a particular level or capacity of service. Nor should it be. The harm of which Mr. Sorensen complains is not physical injury caused by an unsafe ferry; it is inconvenience and economic loss said to flow from a reduction in service. The claim therefore falls within no established or analogous category, and the existence of a duty of care must be assessed under the Anns/Cooper framework.
23As the statement of claim records, on 3 October 2022, the County released a notice of the ferry lane reduction. Mr. Sorensen complains that the County made no attempt to inform residents what regulation was violated or what deficiency, if any, had arisen to persuade the Ministry of Transportation and Transport Canada to reduce the ferry’s capacity. However, as the pleading discloses, following an access to information request made by Mr. Sorensen, Transport Canada produced a Flag State Inspection Report (“FSI Report”) which stated that the stowage of vehicles was not such that ready escape from any vehicle in an emergency could be provided, a breach of the Hull Construction Regulations, C.R.C., c. 1431, s. 92, and the Fire and Boat Drills Regulations, SOR/2010-83, s. 15.
24The statement of claim pleads and makes reference to an inspection memorandum from 3GA Marine Ltd., which was commissioned by Transport Canada. That memorandum recommended the reduction of the number of vehicle lanes from three to two. In doing so, it recognised that “the reduced vehicle capacity will negatively impact the visitors and residents of Howe Island”.
25Mr. Sorensen asserts that the conclusion in the 3GA Marine Ltd. memorandum is “incorrect”. He similarly pleads that the FSI Report is wrong, and that the ferry “does comply with all applicable laws and regulations” – a pleading which, he submits, must be accepted as true for the purposes of these motions.
26That submission cannot be accepted. The presumption of truth on a motion to strike attaches to material facts, not to bald conclusions of law: Imperial Tobacco, at paras. 17 and 22. Whether the ferry complied with s. 92 of the Hull Construction Regulations, and whether the FSI Report was “incorrect”, are conclusions of law. They are not facts which the court is bound to assume.
27In any event, the point is beside the mark. The federal regulator, in the exercise of its statutory mandate, took the position that the stowage arrangement of vehicles on the ferry contravened the regulations and posed a risk to the public. Whether a prosecution for non-compliance would ultimately have succeeded, or whether passengers would in fact have been harmed in an emergency, is irrelevant. No standard of care could require the operator of the ferry to defy the regulator while the correctness of the regulator’s position was debated.
28The defendants each argue, from different perspectives, that no private duty of care can be established on the facts as pleaded.
29The parties all make reference to Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, which recognises that legislative compliance can constitute evidence of reasonable conduct. Nevertheless, this does not detract from the requirement that, as in any case involving allegations of negligence, the pleaded elements must include:
A duty of care;
A breach of the standard of care;
Damage; and
Causation.
30Mr. Sorensen’s core allegation against Canada is that:
A reasonable regulator would ensure the Ferry is capable of operating at full capacity and providing uninterrupted service, would provide reasonable justification for any reduction of the Ferry's capacity, and make reasonable assistance to mitigate the damages arising from the Ferry's reduced capacity.
31Mr. Sorensen alleges that Transport Canada fell below the standard of care by reducing the capacity of the ferry in an arbitrary manner, failing to provide reasonable justification for the reduction of the ferry’s capacity, and failing to reasonably mitigate the damages arising from the ferry’s reduced capacity, which was detrimental to Mr. Sorensen. The statement of claim continues by alleging that Transport Canada’s negligence amounts to “more than a slight error”.
32In the case of Ontario, the effect of section 8 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, is that the Crown cannot be held directly liable in tort. It can, however, be held vicariously liable for the tortious acts of its officers, employees or agents: Ontario v. Madan (2023), 165 O.R. (3d) 510 (C.A.), 2023 ONCA 18, at paras. 50-53.
33The statement of claim does not plead any direct or close interactions between Mr. Sorensen and any Ontario employee. Ontario, in the exercise of its authority pursuant to s. 99 of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, acquired the Howe Islander and entered into an agreement with the County to operate and maintain the ferry.
34Mr. Sorensen answers that s. 8 of the Crown Liability and Proceedings Act, 2019 does not confine Ontario’s exposure to vicarious liability. He points to s. 8(1)(b), which provides that the Crown is subject to liability in tort “in respect of a breach of duty attaching to the ownership, occupation, possession or control of property”.
35Section 8(1)(b) does not assist him. Section 8 removes the Crown’s immunity from suit; it does not create duties of care. Whichever route into liability is invoked, a duty of care must still be established under ordinary negligence principles. Moreover, s. 8(1)(b) is directed at duties of the kind owed by an owner or occupier of property – duties concerned with the condition of the property and the harm which that condition may cause to persons upon or affected by it. The complaint here is not that the condition of the ferry caused Mr. Sorensen harm. It is that a decision about the level of service delivered by means of the ferry inconvenienced him. That is not a breach of a duty “attaching to” the ownership or control of property within the meaning of s. 8(1)(b).
36There is a further statutory obstacle. To the extent that the claim impugns Ontario’s decisions concerning the funding of the ferry service – including any failure to fund a retrofit of the vessel or the acquisition of a replacement – s. 11(4) of the Crown Liability and Proceedings Act, 2019 provides that no cause of action in negligence arises in respect of a decision made in good faith respecting a “policy matter”, which is defined by s. 11(5)(b) to include the funding of a programme, project or other initiative.
37The County, as the operator of the ferry, is a contractor for Ontario. It is said to have breached a duty of care owed to “residents” of Howe Island. According to the statement of claim:
The County knew or ought to have known that the lane reduction of the Ferry was arbitrary, and of the likelihood that the lane reduction could harm the users of the Ferry. The County owes the Plaintiff a duty of care in part due to the close and direct relationship.
38Mr. Sorensen pleads that a reasonable municipality would have provided him and other residents with a reasonable justification for the reduction of the ferry’s capacity, and would make reasonable attempts to mitigate the damages the reduction of the ferry’s capacity has caused. He alleges that the County failed to do so.
39When the rhetoric is stripped away from the allegations made against the defendants, the essence of Mr. Sorensen’s allegations is that the defendants were wrong to have accepted the conclusion of the inspection memorandum from 3GA Marine Ltd. that the Howe Islander had inadequate escape routes, in contravention of the Hull Construction Regulations, and that the ensuing reduction in the ferry’s vehicle carrying capacity to comply with the regulations and ensure adequate escape routes was unreasonable. As Transport Canada put it:
The Plaintiff is effectively arguing that the Defendants have a duty to disregard marine safety laws and endanger others.
40Mr. Sorensen resists this characterisation. He submits that the duty pleaded is a narrow one: not a duty to guarantee outcomes, to ensure convenience, or to disregard safety requirements, but a duty to exercise reasonable care in the decision-making process itself – to inspect, to test, and to provide a transparent justification before imposing a significant operational restriction on a community which depends upon the ferry for access to the mainland.
41The reframing does not save the claim. Complaints that a public decision was “arbitrary”, “non-transparent” and unaccompanied by adequate reasons are the language of public law. Defects of that kind in the process of public decision-making are the proper subject of an application for judicial review; they do not, without more, ground an action for damages. The law of negligence does not recognise a freestanding duty, owed to members of the public affected by a decision about the delivery of a public service, to give reasons for that decision or to justify it to their satisfaction. Dressed in the clothing of “process”, the claim remains in substance a complaint that the decision itself ought not to have been made, and that the plaintiff should be compensated because a public service was reduced.
42Canada argues that Mr. Sorensen has only advanced a bald allegation that the FSI Report and subsequent lane reduction were arbitrary. He has not pleaded any facts concerning this alleged arbitrariness. Nor has he pleaded any facts concerning specific interactions that could give rise to a private duty of care. Mr. Sorensen was not involved in Transport Canada’s inspection, he was not a recipient of the report, and he was not the resident who complained about the ferry. He simply makes a broad pleading that Transport Canada is accountable to him and to residents who rely on the ferry.
43To the extent that Transport Canada’s compliance with a regulatory regime informs the standard of care, legislative compliance can constitute evidence of reasonable conduct: Ryan, at para. 29. The implication of Mr. Sorensen’s allegations is that Canada acted unreasonably by complying with the legislation. That is an untenable position in law.
44The essence of Mr. Sorensen’s allegation against the County is that it should have ignored the Transport Canada advice. The County cannot change the regulations. Nor can it retrofit the Howe Islander. Other than lobby the other levels of government for regulatory changes, what else could the County do? Mr. Sorensen’s answer is that the County failed to act reasonably and in the best interests of the residents of Howe Island.
45Even reading the pleading generously, Ontario argues that no relationship of proximity can be established between the plaintiff and an Ontario employee. Paragraph 12 of the statement of claim pleads that Ontario’s responsibilities include “procurement and hiring of a Contractor to carry out work on Provincial Assets”, and “approving and accepting the design of the Ferry” – responsibilities which would have been discharged over twenty years ago.
46Ontario, in addition to its partial immunity under section 8 of the Crown Liability and Proceedings Act, 2019, adopts similar arguments to the County and Canada.
47It does not matter how often a plaintiff inserts words and phrases such as “arbitrary”, “ordinary, reasonable and prudent”, “failing to provide” a service, or “reasonable assistance to mitigate”. The absence of particulars that would support the language used is fatal.
48The plaintiff has failed to establish the existence of an actionable duty of care.
Are There Residual Policy Considerations That Would Negate a Duty of Care?
49If I am wrong in my conclusion on the duty of care, then, having regard to the second branch of the Anns/Cooper test, Mr. Sorensen pleads that no policy reason exists to fail to recognise the existence of a duty of care.
50I do not accept that submission. The duty of care proposed by the plaintiff cannot be reconciled with the statutory scheme within which each of the defendants was required to act. The objects of the Canada Shipping Act, 2001, S.C. 2001, c. 26, include the protection of the health and well-being of individuals who participate in marine transportation and the promotion of safety in marine transportation: ss. 6(a) and 6(b). The Hull Construction Regulations give effect to those objects by prescribing standards, one of which – s. 92 – the regulator concluded the ferry did not meet.
51To recognise a duty of care requiring the defendants to weigh the convenience of ferry users against compliance with those standards would set private interests against the very public interest that the legislation exists to protect. It would leave operators and regulators hesitating before complying with, or enforcing, safety requirements, for fear of incurring liability to those inconvenienced by them. A duty with that tendency undermines, rather than complements, the statutory scheme. That is a compelling policy reason to negate it.
52Nor is the conflict of duties an abstraction. Where a proposed duty of care would conflict with an overarching statutory or public duty, that conflict is a compelling reason to negate the duty: Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, at para. 28; McKee v. Shahid, 2025 ONCA 666, at paras. 58 and 61. Faced with the FSI Report and the 3GA Marine Ltd. memorandum, the County had three options: it could continue to operate the ferry at fifteen vehicles, in defiance of the regulator and at the risk both of prosecution and of harm to passengers; it could implement the recommended reduction; or it could cease operating the ferry altogether. On the plaintiff’s theory, the second and third courses would breach the duty of care that he proposes, while the first would breach statute and imperil the safety of passengers. A duty which renders every course of action open to the defendant a potential source of liability cannot be recognised.
53This also answers Mr. Sorensen’s submission that the defendants’ policy arguments rest upon a false dichotomy – that regulators must either be immune from negligence claims or be deterred from enforcing safety standards. The difficulty with the proposed duty is not that regulators and operators might be “deterred”. It is that the duty is logically incapable of being discharged alongside the statutory duties to which the defendants are subject.
54Mr. Sorensen would have the court tell the three levels of government, all of which are elected to provide public services, how to provide and prioritise those services. There are very sound policy reasons for limiting the imposition of a duty of care to claims arising from operational delivery of a service or implementation of a policy. Nothing in the claim pleaded by the plaintiff would justify a policy exception to that rule.
Breach of the Duty of Care?
55Even if the duty of care asserted by the plaintiff existed, it is inconceivable that such a duty would be breached because each of the defendants followed, enforced, or complied with, their statutory obligations.
56That is effectively what the plaintiff alleges. It is an untenable claim.
57As noted above, whether the FSI Report was legally correct is beside the point. A federal regulator, acting within its statutory mandate, took the position that the operation of the ferry at its historic capacity contravened the regulations and posed a risk to the public. The reasonable and prudent course – indeed, the only reasonable and prudent course – was to retain expert advice and to implement it. That is what occurred.
Damage?
58Assuming that the plaintiff could overcome the existence of a duty of care and breach of the applicable standard of care hurdles, he has not pleaded a tenable claim for compensable damage.
59Mr. Sorensen pleads that, as a direct and foreseeable result of the defendants’ negligence, he, and the residents of Howe Island, have suffered “substantial damages including diminution of property value, pain and suffering, stigma, loss of income and general damages”. No particulars are pleaded. Aside from residents being frustrated and inconvenienced, the pleading is vague at best. There is no basis upon which Mr. Sorensen can claim damages on behalf of other residents of Howe Island. The pleading does not identify whether the substantial damages that he claims have resulted from the defendants’ breaches are damages suffered by him or by others.
60There is a further difficulty. The damages claimed – diminution in property value, loss of income, and the inconvenience of delay – are pure economic loss, unaccompanied by any physical injury to the plaintiff or damage to his property. There is no general right in tort protecting against the negligent infliction of pure economic loss; recovery depends upon the claim falling within a category of proximate relationship recognised by the authorities: 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at paras. 18-21. The pleaded claim falls within none of them.
61The plaintiff argues that impairment of access to a property can constitute substantial interference to their enjoyment of property and cause a reduction in property value: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, at paras 49-51. Antrim does not assist the plaintiff. It was a claim in private nuisance, advanced by way of the injurious affection provisions of the Expropriations Act, R.S.O. 1990, c. E.26. It says nothing about the existence of a duty of care in negligence, and no claim in nuisance is pleaded here.
62The plaintiff argues that the court should reject the defendants’ claims about the lack of particulars of damages, reasoning that Mr. Sorensen’s claim of damages for the replacement of the ferry would remedy the issue of diminished property values. However, his alternative claim for damages for the cost of a replacement ferry is made in the absence of any pleaded basis upon which he would have standing, as an individual, to be compensated for the cost of purchasing a new ferry.
63In short, the statement of claim fails to plead viable claims for damages. Were it not for the far more fundamental deficiencies in pleading – the lack of a duty of care – a generous reading of the statement of claim might forgive the absence of particulars of the damages claimed. However, reading the pleading as a whole, the claim for damages is unsupportable.
The Alternative Claim: Negligence in the Purchase and Operation of a Deficient Ferry
64Mr. Sorensen pleads, in the alternative, that if the FSI Report is correct, then a defective ferry was purchased and was operated for almost two decades, and that the defendants were negligent in purchasing, certifying, monitoring and operating a vessel which did not comply with the applicable regulations.
65This claim fails for want of any compensable damage. The plaintiff does not plead that any emergency occurred, that he was ever unable to escape his vehicle, or that he suffered any harm attributable to the alleged non-compliance. The danger, if it existed, never materialised; and, since the configuration complained of has been discontinued, it never will. It is well established that negligence law does not compensate for exposure to a risk of harm that has not materialised: Palmer v. Teva Canada Limited, 2024 ONCA 220, at para. 47; Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, at para. 77.
66The alternative claim is also incoherent. The relief that Mr. Sorensen seeks is, in substance, the restoration of the fifteen-vehicle configuration – the very arrangement which, on the premise of this alternative claim, was dangerous. A pleading which asserts that the plaintiff has been harmed by the defendants’ response to a danger, while demanding the reinstatement of that danger, is incapable of grounding a claim in negligence. The pleading is, moreover, internally inconsistent as to who purchased the ferry, alleging in one paragraph that Transport Canada did so and elsewhere that MTO (the Ontario Ministry of Transportation) did.
The Alternative Claim: Negligent Misrepresentation
67An alternative claim pleaded by Mr. Sorensen is that of negligent misrepresentation. The elements of that tort are set out in Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87, and require a plaintiff to plead:
The existence of a duty of care based on a special relationship;
A representation that is untrue, inaccurate, or misleading;
Negligence in making the representation;
Reasonable reliance; and
Resulting damage.
68Although the prayer for relief seeks damages for negligent misrepresentation, the statement of claim fails to plead any untrue statement made by the defendants. Nor is a special relationship between Mr. Sorensen and any of the defendants pleaded. Nor could Mr. Sorensen establish the fundamental element of reasonable reliance. It is inconceivable that it could be concluded as reasonable for any ferry passenger to expect that the ferry would run at full capacity in violation of regulatory safety requirements.
69In short, the negligent misrepresentation claim has not been properly pleaded. It is inconceivable that it could be properly pleaded.
Conclusion
70The plaintiff may well have a viable complaint that public authorities have let the people of Howe Island down by the quality of the ferry service that has been provided to them.
71There are remedies for that. But they are not remedies that a court can provide.
72The elected officials who are responsible for the decisions that have led to the provision of inadequate service can be replaced through the ballot box. Those public authorities can also be lobbied. But in the circumstances pleaded by the plaintiff, there is no private law duty owed. No operational conduct on the part of the defendants has been identified that would give rise to a duty of care.
73If, by bringing this action, Mr. Sorensen is attempting to advance some form of public interest litigation in order to provoke a political response, it is a misguided one.
74The public resources that have been consumed by this lawsuit to date, not to mention Mr. Sorensen’s own resources, could and should have been far more prudently deployed.
75In short, the action is without legal merit. The statement of claim should be struck in its entirety.
Leave to Amend?
76The only remaining question is whether the plaintiff should be given leave to amend. Such leave should only be refused in the clearest of cases: South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.
77I can conceive of no reasonable route by which the defects in the current statement of claim could be cured or rehabilitated by amendment. None of the defendants owe the plaintiff a private law duty of care in the circumstances pleaded. The absence of proximity, and the conflict between the duty proposed and the defendants’ public obligations, are not defects of drafting; they are inherent in the claim itself, which in substance seeks to litigate choices about the provision of a public service, the quality and adequacy of that service, and the application of the regulatory regime applying to the operation of that service.
78In his factum, Mr. Sorensen identified additional facts which, he submitted, have occurred since the issuance of the claim and could be pleaded by amendment pursuant to Rule 14.01(4): in particular, that in 2025 MTO retained 3GA Marine Ltd. to report on options for retrofitting or replacing the ferry, and that the resulting report recommends replacement with a larger vessel. He submits that these facts demonstrate that the defendants, and in particular MTO, are “already implicitly acknowledging the negligence”.
79These facts, even if pleaded, would not assist him. A decision by MTO to study the retrofit or replacement of the ferry is a matter of funding and policy. It neither creates a duty of care where none exists nor amounts to an acknowledgement, implicit or otherwise, of negligence. Public authorities must remain free to review, improve and reinvest in the services they provide without their doing so being treated as an admission of liability. The radical defect in this claim – the absence of any private law duty of care – is not one which facts of this kind are capable of curing.
80In light of that conclusion, it is unnecessary to address the limitation issue raised by the County concerning the amendment of pleadings at this stage of the proceedings.
81For the foregoing reasons, the three motions brought by the defendants are granted. The statement of claim is struck without leave to amend.
Costs
82The parties reached an agreement on costs, the result of which is that, based on the outcome, the plaintiff will pay costs of $10,000 to the County and $6,000 to each of Ontario and Canada.
Mew J.
Released: 9 July 2026