BARRIE COURT FILE NOS.: CV-17-1913 and CV-18-1014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JESSE PRIMOSIG Plaintiff
– and –
TIMOTHY PROCTOR, DEBRA PROCTOR, LINDON CHAMBERS, TAMMIE MAY PEARSON CHAMBERS, ONTARIO PROVINCIAL POLICE, the CORPORATION OF THE TOWNSHIP OF SPRINGWATER, COUNTY OF SIMCOE, STEPHEN ROMPHF, STEPHEN ROMPHF operating as LONG HORN CATERING AND PERSONAL CHEF SERVICE, JANE DOE, JOHN DOE Defendants
AND BETWEEN:
JESSE PRIMOSIG Plaintiff
– and –
HIS MAJESTY THE KING IN RIGHT OF ONTARIO on behalf of the ONTARIO PROVINCIAL POLICE and HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO Defendants
Counsel: Jay Ralston, for the Plaintiffs
Jonathan Schrieder, for the Defendants, Timothy Proctor and Debra Proctor Harold Sterling and Andrew Choi, for the Defendant, Ontario Provincial Police Christopher R. Martyr, for the Defendant, Tammie May Pearson Chambers
COURT FILE NO.: CV-18-1014 Jay Ralston, for the Plaintiff Harold Sterling and Andrew Choi, for the Defendants
HEARD: September 19, 2025
REASONS FOR DECISION
I. Overview
A. Nature of the Motion
1New Year’s Eve can be a dangerous time. Midnight revelry abounds. Party goers often over imbibe. Weather conditions can make travel difficult. Finding a ride home is a challenge. Parents worry. Accidents can happen.
2On January 1, 2016, an accident did happen.
3Jesse Primosig was hit by a car. He first sued the driver and owner of the car, the Proctors (the first action). Later, he discontinued the first action and commenced a second action naming, among others, alleged party hosts and the Ontario Provincial Police (the “OPP”).
4The Crown, His Majesty the King in Right of Ontario (“HMK”), defended the action against the OPP asserting that the OPP is not a proper party as only the Crown can be held liable for torts committed by OPP officers. This is not contested.
5HMK also pleaded that, Mr. Primosig did not give notice to the Crown under s. 7(1) the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (“PACA”) which at the time governed proceedings against the Crown. PACA was repealed in 2019. PACA required that a Plaintiff give 60 days notice to the Crown before commencing an action.
6Mr. Primosig then gave the required notice and, after the 60 days passed, commenced a third action. The third action was brought only as against His Majesty the King in Right of Ontario on behalf of the Ontario Provincial Police and His Majesty the King in Right of the Province of Ontario, Represented by the Minister of Transportation for the Province of Ontario (“HMK”).
7HMK seeks summary judgment in the second and third actions. HMK asserts that both actions are statute barred. HMK further submits that the facts do not establish a special relationship between Mr. Primosig and the OPP to ground an action in negligence or to claim that HMK is vicariously liable for the actions of an OPP officer.
8The Plaintiff acknowledges in response to this motion that it did not give proper notice to HMK in the second action and that, as a result, his action against HMK is a nullity. In the second action, Mr. Primosig also sued “Her Majesty the Queen in right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario”. The Plaintiff now states that it is not proceeding against the roadway authority, the MTO.
9However, in respect of the third action, the Plaintiff asserts that the claim against the OPP was only discoverable after a successful third-party production under P.(D.) v. Wagg, 2001 28033 (ON SC), 52 O.R. (3d) 625. The Plaintiff submits that only after receiving those productions, were the facts leading to a proximate relationship discovered. Mr. Primosig argues that it is from this discovery that the limitation period must run. Alternatively, he states that his injuries prevented him from discovering the claim on January 1, 2016.
B. Background
10On January 1, 2016, Mr. Primosig was walking home along Highway 26 from Springwater, just north of Barrie after attending a New Year’s Eve party. He and another person were struck by a car while walking in a live lane of traffic on Highway 26. Luckily, he survived but he suffered a brain injury, multiple fractures, lost teeth, and soft tissue injuries.
11Mr. Primosig states that he was one of 150 people who went to the party which ended early because it was shut down. The party goers all had to find their way home. Many chose to walk home along Highway 26 (Bayfield Street).
12Mr. Primosig does not remember the accident or the party.
13He commenced the first action by a Statement of Claim issued on April 10, 2017 (Court File No.: CV-17-560) (“the first action”) against the Proctors (the driver and owner of the motor vehicle he alleges struck him).
14After the Wagg motion brought by the Proctor Defendants, Plaintiff’s counsel learned that the OPP allegedly received calls about the party, were ticketing some persons who left the party, and at least five OPP members and three cruisers were in the area prior to the accident.
15The Statement of Claim in the second action was commenced December 29, 2017 against the OPP and other Defendants (Court File No. CV-17-1913). The Defendant Tammie May Pearson Chambers and the Proctor Defendants each crossclaimed against HMK and others.
16After receiving HMK’s defence in the second action, on April 23, 2018, Mr. Primosig gave notice to HMK. On June 29, 2018 the Statement of Claim in the third action was issued under Court File No. CV-18-1014. The Defendant HMK is the only Defendant in the third action. The Defendant HMK asserts that that claim is statute barred as it was not brought in time and that the Plaintiff did not exercise due diligence.
17The Proctor Defendants and the Defendant Chambers take no position with respect to HMK’s motions or the Plaintiff’s response but seek orders preserving their crossclaims against HMK in the second action, in the event that summary judgment is granted against HMK. HMK resists any declaration, despite acknowledging the clear operation of the Rules of Civil Procedure.
18The parties agreed that these motions could be heard in a blended fashion.
C. Orders Sought
19The orders sought on these motions are:
a. The Defendant HMK seeks orders dismissing the Plaintiff’s claim as against HMK on behalf of the OPP and His Majesty the King in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario in CV-18-1014.
b. The Defendant Proctors request that any order issued in the actions expressly confirm that their crossclaim against HMK remain in effect.
c. The Defendant Tammy May Pearson Chambers requests that any order made in either of the proceedings provide that her crossclaim against HMK survives.
d. HMK asks that I make no declaration or order with respect to the survival of the crossclaims in the second action.
20There is no motion to dismiss the crossclaims in the second action.
21For the reasons set out below, I find that the claim against the OPP in CV-17-1913 (the second action) as against HMK is a nullity and I grant summary judgment as against the OPP only.
22I find that it is in the interest of justice and the most cost effective and efficient use of the resources of the Court and the parties to acknowledge that the crossclaims survive the dismissal of the Plaintiff’s action.
23However, I dismiss HMK’s motion for summary judgment in the third action finding that the action is not statute barred and that there is a genuine issue requiring a trial regarding the duty of care. I cannot make the necessary factual findings on this motion to decide it.
24The actions CV-17-1913 and CV-18-1014 shall be heard together or one after the other, in the discretion of the trial judge.
II. Issues
25The issues that must be decided are:
a. What is the test on a summary judgment motion?
b. What is the applicable notice period?
c. Is the action statute barred?
d. Is there a genuine issue requiring a trial on the duty of care owed by the police?
e. Do the crossclaims in the second action survive a dismissal?
f. If the third action survives, should it be heard at the same time as the second action or immediately one after the other?
III. Analysis
26In this analysis, I examine each of the issues as I have set them out above.
A. Test on Summary Judgment Motion
27Rule 20.04(2) provides that the court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
28Under subrule (2.1), to determine whether there is a genuine issue requiring a trial, a judge may weigh the evidence, evaluate credibility of a deponent, and draw reasonable inferences from the evidence.
29Summary judgment motions must be granted when there is no genuine issue requiring a trial. 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 allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. See: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 47-51.
30A responding party must put its best foot forward rather than wait for future evidence to materialize. See Boltyansky v. Joseph-Walker, 2024 ONCA 682, at para. 15.
31I must first determine whether on the evidence before me there is a genuine issue requiring a trial. If there appears to be a genuine issue requiring a trial, I must then decide if the need for a trial could be avoided by using the powers under Rules 20.04(2.1) and (2.2). See: Royal Bank of Canada v 1643937 Ontario Inc., 2021 ONCA 98, at para. 24.
B. Notice under the Proceedings Against the Crown Act
32To determine the requisite notice period, I first examine the statutory framework. I then examine whether s. 5(1)(c) applies.
(a) Statutory Framework
33PACA requires a plaintiff to give notice in accordance with the statute before commencing a claim. If a plaintiff does not give notice, a claim is a nullity under s. 7(3). PACA was repealed July 1, 2019 and proceedings against the Crown are now governed by Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17. As the actions were all commenced before July 1, 2019, PACA applies.
34I must decide the applicable notice period. This applicable notice period turns on the type of claim being made.
35HMK asserts that the claim is one about property, as the action is about what occurred on a highway, and the Plaintiff must give notice within 10 days of the claim arising. The Plaintiff argues that the claim is not about control of property but rather, is about the actions of police officers such that it is required to give notice 60 days before the commencement of a proceeding.
36Mr. Primosig acknowledges that he did not comply with the requisite notice period in the second action. However, he asserts that he complied with the requisite notice period in the third action.
37Section s. 5(1) of PACA provides:
Except as otherwise provided in this Act, and despite section 71 of the Legislation Act, 2006, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject,
(a) in respect of a tort committed by any of its servants or agents;
(b) in respect of a breach of the duties that one owes to one’s servants or agents by reason of being their employer;
(c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property; and
(d) under any statute, or under any regulation or by-law made or passed under the authority of any statute.
(1) Subject to subsection (3), except in the case of a counterclaim or claim by way of set-off, no action for a claim shall be commenced against the Crown unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose, and the Attorney General may require such additional particulars as in his or her opinion are necessary to enable the claim to be investigated.
(2) Where a notice of a claim is served under subsection (1) before the expiration of the limitation period applying to the commencement of an action for the claim and the sixty-day period referred to in subsection (1) expires after the expiration of the limitation period, the limitation period is extended to the end of seven days after the expiration of the sixty-day period.
(3) No proceeding shall be brought against the Crown under clause 5 (1) (c) unless the notice required by subsection (1) is served on the Crown within ten days after the claim arose.
39It follows, therefore, that if an action concerns a tort committed by any of its servants or agents of the Crown, the notice period must be given 60 days before the commencement of the action.
40However, where a claim is about duties attaching to the ownership, occupation, possession or control of property, a plaintiff must give notice within 10 days after the claim arose by operation of s. 5(1)(c) and s. 7(3) of PACA.
(b) What notice period applies?
41In my view, the s. 5(1)(c) notice period was relevant only to the issue of the road authority which is now abandoned by the Plaintiff. The applicable notice period is one of 60 days before the commencement of the proceeding, as the Plaintiff’s action is about the decisions undertaken by the OPP officers.
42HMK argues that because the allegations relate to how the OPP controlled Bayfield Street (Highway 26), that s. 5(1)(c) applies. HMK relies upon Daoust-Crochitiere v. Her Majesty the Queen in Right of the Province of Ontario as represented by the Minister of the Province of Ontario, 2014 ONCA 776, a case about a boat launch. I distinguish it, as there the plaintiff pleaded that the Crown had control of the facilities and was responsible for the boat launch.
43This is not a case about an occupier as in Latta v. Ontario, 2002 45117 (ON CA) which involved a prisoner tripping over a bucket in a correctional centre. This action is about the actions of the officers. Several facts support my conclusion.
44First, on the night in question, the OPP received multiple calls in respect of the party. OPP officers had been en route to the party one hour before the accident.
45Next, an OPP officer had witnessed approximately 26 inebriated young people walking toward Highway 26 before the accident and knew that between 100 to 200 revelers had been told to leave the party and that there was no public transportation.
46One member of the OPP called for assistance to deal with the young people. An OPP member subsequently put out a call to ignore the request for assistance.
47The productions also revealed that 911 was notified that there were people walking on Highway 26 and that they were not wearing jackets.
48Further, Officer Kyle Peloso, in his examination for discovery acknowledged attending at the house party, that there was a large group of people leaving the house, that he had seen approximately 150 persons walking on the roadway, that “everybody was yelling out to call them a cab”.
49Based on these facts and a reading of the claim, I conclude that the s. 5(1)(c) notice period does not apply. Rather, the action is about the decision making by members of the OPP in the context of all the information that its members were receiving, and decisions that they were taking.
50As a result, I find that the requisite notice period under PACA is 60 days before the commencement of the action and the action does not fall within s. 5(1)(c) because it is a claim about the acts and omissions of the officers.
C. Is the Action Statute Barred?
51To determine whether the action is statute barred, I must determine the limitation period. This will depend on when the claim was discovered. I will address governing principles first and then turn to the question of discovery of the claim.
(a) Governing Principles
52Under s. 4 of the Limitations Act, 2002, S.O. 2002, c.24, a proceeding shall not be commenced more than two years after the claim was discovered.
53Under s. 5(1) a claim is discovered on the earlier of the day on which the person with the claim first knew that the injury, loss or damage had occurred, as further qualified by s. 5(1)(a), and the day on which a reasonable person ought to have known of the injury, loss or damage.
33Section 5(2) of the Limitations Act, 2002, provides that “a person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.”
54I note that by operation of s. 7(2) of PACA, where a notice of a claim is served in accordance with s. 7(1) of PACA before the applicable limitation period expires, and the sixty-day period referred to in subsection (1) expires after the expiration of the limitation period, the limitation period is extended to the end of seven days after the expiration of the sixty-day period.
55A defendant who raises the expiration of a limitation defence has the burden of proving that defence. A defendant bears the onus of establishing that there is no issue requiring a trial with respect to the limitation period. In AssessNet Inc. v. Taylor Leibow Inc., 2023 ONCA 577, at para. 34, the Court of Appeal held:
A defendant may rely on the presumption in s. 5(2) that the claim was discovered on the day the act or omission on which the claim is based took place. In order to rebut the presumption in s. 5(2) the plaintiff need only prove that its actual discovery of the claim within the meaning of s. 5(1)(a) was not on the date of the events giving rise to the claim: Fennell v. Deol, 2016 ONCA 249, at para. 26; Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, at para. 31; Ridel, at para. 28. Once the presumption is rebutted, the burden remains on the defendant, who is asserting the defence, to prove that the plaintiff knew or ought reasonably to have known the elements of s. 5(1)(a) more than two years preceding the commencement of the proceeding.
Determining whether an action is statute-barred or declaring when a claim was discovered requires the court to make specific findings of fact about each element set out in s. 5 of the Limitations Act. If the record does not permit the summary judgment motion judge to make those findings with the certainty required by Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, then a genuine issue requiring a trial may exist: Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, at paras. 34-39.
56In Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc., 2024 ONCA 889, at paras. 24-26, Dawe JA set out that the presumption in s. 5(2) applies only to the issue of actual knowledge under s. 5(1)(a) and not to the issue of constructive knowledge under s. 5(1)(b). The moving party must show on a balance of probabilities that a reasonable person ought to have learned of the cause of action before the expiry of the limitation period.
(b) Application to the Facts
57HMK argues that the two-year limitation period commenced on January 1, 2016, the date of the accident and that the second action was not commenced in time.
58Mr. Primosig argues that the actual discovery was November 24, 2017 when it received the Wagg motion productions.
59HMK learned of the second action on March 9, 2018, when the second action was served incorrectly naming the OPP rather than HMK.
60On April 12, 2018, HMK counsel wrote to the Plaintiff’s counsel enclosing a Statement of Defence which plead lack of notice under s. 7(1) of PACA.
61On April 23, 2018, the Plaintiff’s counsel provided notice to HMK counsel and particularized Mr. Primosig’s allegations of negligence against HMK.
62The third action was issued on June 29, 2018.
63The Plaintiff asserts that between January 1, 2016 and November 24, 2017, he had no knowledge of the OPP’s involvement beyond investigating the collision. Early requests for information produced a redacted accident report which included the names of the driver and the car owner which were necessary to commence the action.
64Mr. Primosig asserts that these facts were unknown before November 24, 2017, when the productions from the Wagg motion were received by his counsel. Mr. Primosig has retained an expert who opines that the OPP breached the requisite standard of care.
65The Plaintiff has rebutted the presumption in s. 5(2) of the Limitations Act, 2002.
66It is important to note that Mr. Primosig had no memory of the events, although an OPP officer left with him his business card.
67HMK asserts that the facts discovered by the Plaintiff were discoverable before November 24, 2017, because Officer Peloso left a business card with Mr. Primosig while he was in the hospital. I disagree. The card suggests no police involvement beyond investigating the collision.
68The affidavit evidence tendered by the Plaintiff shows that the Plaintiff took steps to discern the facts as best it could before the action was commenced. The OPP produced only limited information and suggested that counsel make a freedom of information request. Counsel intended to bring a Wagg motion relating to the redacted portions of the police records once the action was commenced. On April 26, 2016, Plaintiff’s counsel made a request for information under the Freedom of Information and Protection of Privacy Act. It received no records in response to that motion.
69The Plaintiff asserts that HMK must prove that a reasonable person in his circumstances, that is someone struck by motor vehicle, hospitalized with a brain injury with post-traumatic amnesia and multiple fractures, ought to have by April 23, 2016 (two years before notice of the claim was served), been able to obtain the initial documents including the accident report; identify the driver and the car owner; start an action; obtained a motion date, prepare, serve, file, argue and receive the Court’s determination on a Wagg motion. The reasonable person, the Plaintiff argues, would also need to provide the Crown with at least 60 days to produce documents resulting from an order and review those documents to identify the scope of the OPP’s involvement on the night in question.
70I accept this submission. I find that HMK has not met its burden to prove under the AssessNet framework to prove that the Plaintiff knew or ought reasonably to have known the elements of s. 5(1)(a) more than two years preceding the commencement of the proceeding.
71I find there is no genuine issue for trial. I am able to determine on the facts before me that the action is not statute barred.
D. Is there a genuine issue requiring a trial regarding duty of care?
72HMK asserts that police do not owe a private law duty to victims of crime and their families. Rather, they owe a duty to the public at large. See: T.L. v. Ottawa Police Services et al., 2021 ONSC 4753, at para. 17. HMK asserts that there is no duty of care by police officers to prevent members of the public from entering dangerous places.
73To establish a private law duty of care, a plaintiff must demonstrate that the harm was reasonably foreseeable and that there was a relationship of proximity between the defendant and the plaintiff. The Court must examine whether there are residual policy considerations which ought to negate or limit that duty of care. Different relationships call for difference considerations. See: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 SCR 129, at paras. 20-29.
74In Hill v. Hamilton-Wentworth Regional Police Services Board, the Supreme Court found that a special relationship of proximity existed between the suspect and the police, thereby giving rise to a private law duty of care to a suspect under investigation. The Court notes, at para. 27, that its decision was concerned only with the particular relationship of a police officer and suspect and that that a fresh analysis would need to be undertaken for persons other than police and suspect. Further, at para. 29, the Court stated, “[t]he most basic factor upon which the proximity analysis fixes is whether there is a relationship between the alleged wrongdoer and the victim, usually described by the words “close and direct””.
75I find that the evidence establishes that there is a genuine issue for trial regarding the duty of care. The Plaintiff has advanced several facts that support both foreseeability and a proximate relationship between the Plaintiff and HMK as being close and direct.
76I reach this conclusion based on the unique facts of this case. This included that the police had knowledge of the New Year’s Eve party and that inebriated, poorly dressed young persons were leaving the party and walking on both a roadway that led to the highway and Highway 26 itself and that there was no public transportation.
77The evidence establishes that the police made decisions responsive to the issues with the party and the persons walking on the road. The only entity that may be found vicariously liable for torts committed by OPP officers is the Crown. See: Police Services Act, R.S.O. 1990, c. P.15, s. 50(1) and s. 63(1) of the Community Safety and Policing Act, 2019, S.O. 2019, c.1, Sched. 1 (“CSPA”) which repealed and replaced the Police Services Act and came into force on April 1, 2024.
78I find that there is a genuine issue for trial. I am not able to make the necessary factual findings to resolve it. A trial of these issues is required.
E. Do the Crossclaims Survive?
79Rule 28.01 governs crossclaims and provides that a defendant may crossclaim against a co-defendant. Crossclaims are separate action from the main claim.
80The Court of Appeal for Ontario has held that a crossclaim is its own independent action and survives a discontinuance. See: Lucas (Litigation Guardian of) v. Gagnon (1992), 1992 7541, 11 O.R. (3d) 422, [1992] O.J. No. 2727 (C.A.).
81The crossclaims survive the dismissal of the claim against HMK in the second action, without prejudice to the right of the Defendant HMK to bring any motion in respect of them.
F. Should the actions be heard one after the other or the same time?
82The actions raise common issues of fact and law should be heard together for judicial economy and to ensure just and efficient proceedings.
IV. Disposition
83I therefore make the following orders:
a. The Defendant HMK’s summary judgment motion in CV-17-1913 is granted and the Plaintiff’s claim as against HMK is dismissed as a nullity;
b. The crossclaims in CV-17-1913 survive the dismissal of the claim against HMK in the second action, without prejudice to the right of the Defendant HMK to bring any motion in respect of them;
c. The Defendant HMK’s motion for summary judgment in CV-18-1014 is dismissed;
d. The actions CV-17-1913 and CV-18-1014 shall be heard together or one after the other, in the discretion of the trial judge; and
e. Given the age of the proceedings, the parties shall forthwith timetable the remaining steps in order bring this matter to trial. If agreement cannot be reached on a timetable, a case conference may be sought in accordance with the Consolidated Practice Direction for the Central East Region: Consolidated Practice Direction for the Central East Region – Ontario Superior Court of Justice.
84I ask that the parties please try to resolve costs.
85If they cannot agree, they shall notify me by February 13, 2026 and I will deal with costs by way of written submissions as follows:
a. The Plaintiff shall provide his written submissions on costs, no longer than two double-spaced pages, exclusive of any offers and Bill of Costs, by 4:00 p.m. on February 13, 2026, filed through the portal, uploaded to Case Center and emailed to my Judicial Assistant. Submissions shall be electronically indexed and bookmarked.
b. The Plaintiffs to the crossclaims shall provide their written submissions on costs, subject to the same limitations, by 4:00 p.m. on February 23, 2026.
c. The Defendant HMK shall respond with submissions subject to the same directions, by March 6, 2026.
86An order shall issue in accordance with these Reasons.
87I thank counsel for their assistance and helpful oral and written submissions.
Justice S.E. Fraser
Date: January 22, 2026