Ontario: notice to the crown doesn’t toll the limitation period

Francis v. Ontario is a remainder that giving notice under the Proceedings Against the Crown Act (now replaced by the Crown Liability and Proceedings Act, which has similar notice requirements in s. 18) doesn’t toll the limitation period:

[273]    I agree with Ontario’s submission that that the limitation period in this proceeding was not tolled as soon as Mr. Francis filed the notice of his claim. It continued to run against claimants until the Statement of Claim was issued. Under s. 7(1) of the Proceedings Against the Crown Act, a claimant must serve notice of the claim at least 60 days before commencing a claim against the Crown (Ontario). However, the notice itself does not effect the limitation period, and there is nothing in the Act that suggests that the notice has this effect. Indeed, what is in the Act suggests the opposite, i.e., that the giving of the notice does not end the running of the limitation period.

[274]     In one circumstance, the delivery of the notice may extend the limitation period, but the notice does not toll the limitation period, which continues to run and to bar claims. An extension of the limitation period is provided for in s. 7(2) of Act which states:

Limitation period extended

(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.

[275]    Section 7(2) does not apply in the circumstances of the immediate case.

Ontario: the principles of notice under the PACA

The decision in McCarthy v. 2065943 Ontario Ltd. provides a good summary of the principles applicable to the notice requirement in s. 7 of the Proceedings Against the Crown Act:

18.           The legislation in s. 7(1) offers a much more forgiving limitation period with respect to tort claims, employment claims, and statutory claims, but s. 7(3) imposes the 10-day deadline for notice “in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property”. This 10-day notice provision is considered an essential step in a proceeding against the Crown when occupiers’ liability is concerned, and for the most part it must be strictly observed.  Failure to comply with the notice provision renders the proceeding a nullity:  Zuliani Ltd. v. Windsor (City) (1973), 1973 CanLII 671 (ON SC), 2 O.R. (2d) 598 (H.C.), at para. 6.

 19.           The purpose of this notice requirement is to “target occupiers’ liability” with a special and strict notice requirement”: Latta v. Ontario (2002), 2002 CanLII 45117 (ON CA), 62 O.R. (3d) 7 (C.A.), at para. 18.  Such notice has been held to be driven by a policy that permits the Crown to gather sufficient information either to seek to resolve a claim or prepare a defence to an anticipated action: West v. West2013 ONSC 247, at para. 14cfMattick Estate v. Ontario (Ministry of Health)2001 CanLII 24086 (ON CA), [2001] O.J. No. 21 (C.A.), at para. 15.

 20.           Strict compliance with the notice provision has been relaxed in certain circumstances.  Thus, imperfect notice that takes into account the frailties or limitations of an injured plaintiff may nevertheless be deemed sufficient to put the Crown on notice that a claim could reasonably be anticipated: Latta, at paras. 30-35Leone v. University of Toronto Outing Club[2006] O.J. No. 4131 (Sup. Ct.), at paras. 75-76. Moreover, there is no indication in the PACA that the notice must be in writing, written by the hand of the plaintiff, or be in any particular prescribed form, so long as it provides the requisite elements of proper notice: Coulter v. Ontario (Ministry of Natural Resources)2014 ONSC 1573, at paras. 61-67.

The court also explains why attempting to circumvent the notice requirement by framing an occupier’s liability claim as negligence is fraught:

21.           No notice to the MNR was given by anyone within the ten days following the date of the incident in this proceeding, August 10, 2014.  Even on a generous interpretation of the PACA, reading a “discoverability” requirement into the determination of the date that constitutes “after the claim arose” for the purposes of a third party claim under  7(3) of the PACA, no notice was provided within 10 days of the date the defendant points to for discovery of the claim, July 11, 2018.  Notice to the MNR was not provided until September 14, 2018, more than 60 days after the “discoverability” date.

 22.           The defendant raises two main arguments against the PACA notice requirement advanced by the MNR.  It asserts that its third party claim addresses negligence, and not occupier’s liability, and is not therefore subject to the 10-day limitation.  It further submits that no such notice is necessary in the circumstances of this case, and that the MNR has suffered no prejudice from the absence of notice.

 23.           The defendant argues that its claim involves negligence of MNR servants and employees in the placement, clarity, and maintenance of necessary signage, and is not a claim “in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property.”  On such an argument, the claim relates to negligence, and not to occupier’s liability, and is subject to the more lenient notice requirement in  7(1) of the PACA.

 24.           However, such an argument rings hollow in the circumstances of this case, where all of the defendant’s allegations in its third party claim actually appear to relate to issues of occupiers’ liability, and duties attaching to the ownership of property.  Indeed, a claim that is, in substance, “in respect of a breach of duties attaching to the ownership of property” does not escape into the tort claim provision under  5(1)(a) of the PACA, so as to bypass the 10-day notice required for s. 5(1)(c) property-related claims, merely by disguising its true nature under an over-arching assertion of negligence: Daoust-Crochetiere v. Ontario (Minister of Natural Resources)2014 ONCA 776, at para. 3Latta, at para. 18.  This argument fails.

 25.           Given the passage of time before the defendant became aware of the signage issue that was raised by the plaintiff only at her discoveries, the defendant submits that the purposes served by strict application of the notice requirement cannot be fostered in any way in relation to this third party claim, which almost necessarily arose much later than ten days after the date of loss.  By the time the defendant was served with the plaintiff’s claim, the MNR’s opportunity to investigate was already significantly attenuated.  It is submitted that strict application of  7(3) of the PACA to defendants seeking to launch third party claims will result in injustices.

 26.           The defendant also argues that in this case the MNR suffered no prejudice as a result of the failure by the defendant to provide notice, as Ms. Snarr conducted her own investigation that must have contemplated the possibility of litigation, since the MNR now seeks to wrap her report in “litigation privilege”.  The defendant argues that the policy behind the PACA notice has therefore been met, even if the notice requirement has not been.

 27.           To accede to this argument would require a court to read into the provisions of the PACA an exception that its legislators did not see fit to include.  While some areas of plaintiff incapacity have resulted or may result in a forgiving application of the PACA notice requirements in certain circumstances, such as with respect to the form of notice, a flexible approach that would bypass a notice requirement altogether, even in the absence of prejudice to the Crown, reads into the legislation an exception that does not exist.  The Ontario Court of Appeal has specifically rejected such an approach: Daoust-Crochetiere, at para. 12.

 28.           This argument also does not take into account the elements that make up proper notice under the PACA.  Adequate notice must contain both sufficient particulars to allow the Crown to identify the source of the potential problem, so that it can investigate, and a complaint in some form, to alert the Crown to the importance of investigation to avert a potential claim or prepare a defence to an impending claim: Latta, at paras. 26-27, 42Mattick Estate, at paras. 15-18Conners v. Ontario (Minister of Community Safety and Correctional Services)2016 ONSC 7238, at paras. 21-22.

 29.           The Crown had a right under the legislation to be alerted to the defendant’s third party complaint relating to signage long before September 14, 2018, so that it would be encouraged to conduct what investigation it still could in as timely a way as possible.  Ms. Snarr’s report, though it may contain significant details of the incident, the names of individuals involved, and injuries sustained, has not been shown to have been directed to the plaintiff’s allegations about improper signage in the Park.  This argument must fail.

Ontario: notice under the Proceedings Against the Crown Act

Conners v. Ontario considers compliance with the notice requirement of the Proceedings Against the Crown Act.

The plaintiff was assaulted by another inmate while incarcerated at a facility operated by Ontario.  On the date of the incident, the corrections officer who found the plaintiff completed an accident/injury report.  A nurse at the prison signed the report attesting to the injuries.  The prison authorities obtained two statements from the plaintiff.  They transferred the plaintiff to a hospital where hospital staff recorded his condition and course of treatment.  Meanwhile, a manager at the prison maintained a log-book of the events.

The plaintiff argued that all of these events, taken together, constituted notice to Ontario of his claim.

Justice Corbett rejected this argument:

[22]           I do not accept this argument:

a.      the statements given by Mr Conners on the day of the incident do not contain any suggestion that Mr Conners considered that Ontario was to blame for the injuries he suffered at the hands of Mr McCartney.

b.      The discussions between Mr Conners and Mr Duffy in January 2010 concerned a possible claim by Mr Conners to the Criminal Injuries Compensation Board arising out of the conduct of Mr McCartney.  There is no evidence that either Mr Conners or Mr Duffy raised the possibility of a claim by Mr Conners against Ontario, the prison, or persons working at or associated with the prison.  Throughout, the discussion was premised on potential claims in respect to wrongdoing of Mr McCartney.

[23]           Mr Conners argues that this case is similar to Latta v. Ontario, where notice of the facts surrounding an injury were found to be sufficient to satisfy the requirements of s.7(1) of PACA, even though the notice did not expressly threaten a claim against the Crown for compensation.[4]  In my view the cases should be distinguished.

[24]           Latta was a trip-and-fall case.  Mr Latta tripped over a sand-filled bucket left in a dangerous place.  As a result he fell down some concrete stairs and suffered serious back injuries.  The court held that notice of the circumstances of the accident was sufficient in that case to be notice of a claim because the circumstances were such that the Crown was the obvious entity with legal responsibility for the inherently dangerous situation on its premises.  That is simply not the case here: there is no obvious implication that an unprovoked attack by one inmate upon another is the result of any misconduct by the Crown.

[25]           In Latta, which was a “close case” (para. 31), the court found that there was “an element of complaint” in Mr Latta’s dealings with prison authorities at the time of the incident (para. 32).  The court found:

… the appellant’s decision to inform prison officials about the accident and his identification of the actions of the Crown (leaving a bucket at the top of the stairs) as a cause of the accident entail a certain degree of “complaint”.  It may not be, in explicit terms, the equivalent of “I fell down the stairs and it is your fault”; however, it goes beyond a simple “I fell down the stairs.” (para. 32)

In the case before me, there was nothing about Mr Conners conduct that could have led reasonable prison officials to have understood him to be implying “I was assaulted by McCartney and it is your fault.”  Rather, what he said, in effect, was “I don’t know what happened because I was hit from behind”.  He was told that McCartney did it and that a prosecution and claim for criminal injuries compensation was possible.  These circumstances do not entail “a certain degree of ‘complaint’” about the prison or its employees.

[26]           In Latta the Court of Appeal also found that the circumstances described by Mr Latta in the Accident/Injury Report suggest, on their face, the potential for litigation.  The court found:

The accident itself is a visual paradigm for a lawsuit: a man trips over a bucket being used as a doorstop at the top of some stairs, falls down the stairs and is injured….  Although the report does not use the word “claim”, the content of the report and the nature of the accident have, in my view, a strong indication of “potential claim” about them. (para. 34)

The circumstances of Mr Conners’ case are not a “visual paradigm for a lawsuit”.  Unfortunately, assaults by prison inmates on other inmates are not unheard of.  The agency for injury is an inmate, not the prison or its employees.  Of course could imagine circumstances where it might be possible to assert a claim against a prison for failing to protect an inmate from a known threat.  There is no evidence that Mr Conners complained of circumstances that could give rise to such a claim – circumstances that could carry with them the “element of complaint” that would give notice to the prison that Mr Conners was saying to the prison that he was injured in an assault “and it is your fault.”

The plaintiff also argued that the Crown had waived any non-compliance with PACA.  Justice Corbett rejected these arguments well.

(a)   The Waiver Argument

[29]           The waiver argument cannot succeed for two reasons.  First, neither the court nor government lawyers can waive the requirements of PACA.  The requirements of PACA are mandatory and it is for the plaintiff to prove that he has complied with them.[5]

[30]           In any event, Ontario did plead and rely upon PACA in para. 21 of its original statement of defence: that which is expressly pleaded cannot be said to have been waived by the pleading.

(b)   The Admission Arguments

[31]           It would be possible (and in some cases desirable) for the Crown to admit that it has received the required notice under PACA.  When this happens, the plaintiff will not be required to elicit proof at trial of compliance with the provision.  But in the absence of a clear, unambiguous admission, compliance with PACA is a condition precedent for a claim against the Crown that is governed by PACA, and the plaintiff is required to prove compliance as part of its case in chief.

The decision includes a helpful summary of the notice requirement:

The Notice Requirements in PACA

[2]               Subsection 7(1) of PACA provides:

… 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.

[3]               Subsection 7(2) of PACA extends an applicable limitation period in certain circumstances where notice is required pursuant to subsection 7(1):

Where a notice of 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.

[4]               A notice of claim must be in writing and must include a complaint which, if not satisfied, could reasonably be anticipated to result in litigation against the Crown.[1]  The focus is on the substance of what is communicated to the Crown rather than rigid formal requirements.[2]

[5]               Compliance with the sixty-day notice requirement in s.7(1) of PACA is mandatory.  It cannot be abridged.  An action commenced in violation of this requirement is a nullity.  And the court has no discretion to relieve from this result.




Ontario: notice provisions are not limitation periods

Does the Limitations Act render the notice provision in section 44(10) of the Municipal Act of no force and effect? Nope.  Section 44(10) is a notice provision, notice provisions are not limitation periods, and therefore it’s not subject to the Limitations Act.

In Bourassa v Temiskaming Shores (City), the plaintiff argued that section 44(10) is not listed in section 19 of the Limitations Act (which includes the schedule of limitation periods in other acts which remain in force), and therefore is not a limitation period.  The flawed of premise of this argument is that a notice provision is a limitation period, which it’s not.  Justice Wilcox accepted the defendant’s argument that the legislature did not intend to void all the statutory notice provisions by leaving them out of the section 19 schedule.