{"id":994,"date":"2020-04-06T21:03:27","date_gmt":"2020-04-07T01:03:27","guid":{"rendered":"http:\/\/limitations.ca\/?p=994"},"modified":"2020-04-06T21:03:27","modified_gmt":"2020-04-07T01:03:27","slug":"ontario-the-principles-of-notice-under-the-paca","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=994","title":{"rendered":"Ontario: the principles of notice under the PACA"},"content":{"rendered":"

The decision in McCarthy v. 2065943 Ontario Ltd.<\/a>\u00a0<\/em>provides a good summary of the principles applicable to the notice requirement in s. 7 of the Proceedings Against the Crown Act<\/em><\/a>:<\/p>\n

18. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0The 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 \u201cin respect of any breach of the duties attaching to the ownership, occupation, possession or control of property\u201d. This 10-day notice provision is considered an essential step in a proceeding against the Crown when occupiers\u2019 liability is concerned, and for the most part it must be strictly observed.\u00a0 Failure to comply with the notice provision renders the proceeding a nullity:\u00a0 Zuliani Ltd. v. Windsor (City)<\/em>\u00a0(1973),\u00a01973 CanLII 671 (ON SC)<\/a>,\u00a02 O.R. (2d) 598 (H.C.), at para.\u00a06<\/a>.<\/p>\n

\u00a019. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0The purpose of this notice requirement is to \u201ctarget occupiers\u2019 liability\u201d with a special and strict notice requirement\u201d:\u00a0Latta v. Ontario<\/em>\u00a0(2002),\u00a02002 CanLII 45117 (ON CA)<\/a>,\u00a062 O.R. (3d) 7 (C.A.), at para.\u00a018<\/a>.\u00a0 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:\u00a0West v. West<\/em>,\u00a02013 ONSC 247<\/a>, at para.\u00a014<\/a>;\u00a0cf<\/em>.\u00a0Mattick Estate v. Ontario (Ministry of Health)<\/em>,\u00a02001 CanLII 24086 (ON CA)<\/a>,\u00a0[2001] O.J. No. 21 (C.A.), at para.\u00a015<\/a>.<\/p>\n

\u00a020. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0Strict compliance with the notice provision has been relaxed in certain circumstances.\u00a0 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:\u00a0Latta<\/em>, at paras.\u00a030-35<\/a>;\u00a0Leone v. University of Toronto Outing Club<\/em>,\u00a0[2006] O.J. No. 4131 (Sup. Ct.), at paras.\u00a075-76<\/span>. Moreover, there is no indication in the\u00a0PACA<\/a><\/em>\u00a0that 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:\u00a0Coulter v. Ontario (Ministry of Natural Resources)<\/em>,\u00a02014 ONSC 1573<\/a>, at paras.\u00a061-67<\/a>.<\/p>\n<\/blockquote>\n

The court also explains why attempting to circumvent the notice requirement by framing an occupier\u2019s liability claim as negligence is fraught:<\/p>\n

21. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0No notice to the MNR was given by anyone within the ten days following the date of the incident in this proceeding, August 10, 2014.\u00a0 Even on a generous interpretation of the\u00a0PACA<\/a><\/em>, reading a \u201cdiscoverability\u201d requirement into the determination of the date that constitutes \u201cafter the claim arose\u201d for the purposes of a third party claim under\u00a0 7(3)<\/a>\u00a0of the\u00a0PACA<\/a><\/em>, no notice was provided within 10 days of the date the defendant points to for discovery of the claim, July 11, 2018.\u00a0 Notice to the MNR was not provided until September 14, 2018, more than 60 days after the \u201cdiscoverability\u201d date.<\/p>\n

\u00a022. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0The defendant raises two main arguments against the\u00a0PACA<\/a><\/em>\u00a0notice requirement advanced by the MNR.\u00a0 It asserts that its third party claim addresses negligence, and not occupier\u2019s liability, and is not therefore subject to the 10-day limitation.\u00a0 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.<\/p>\n

\u00a023. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0The 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 \u201cin respect of any breach of the duties attaching to the ownership, occupation, possession or control of property.\u201d\u00a0 On such an argument, the claim relates to negligence, and not to occupier\u2019s liability, and is subject to the more lenient notice requirement in\u00a0 7(1)<\/a>\u00a0of the\u00a0PACA<\/a><\/em>.<\/p>\n

\u00a024. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0However, such an argument rings hollow in the circumstances of this case, where all of the defendant\u2019s allegations in its third party claim actually appear to relate to issues of occupiers\u2019 liability, and duties attaching to the ownership of property. \u00a0Indeed,\u00a0a claim that is, in substance, \u201cin respect of a breach of duties attaching to the ownership of property\u201d does not escape into the tort claim provision under\u00a0 5(1)<\/a>(a) of the\u00a0PACA<\/a><\/em>, so as to bypass the 10-day notice required for\u00a0s. 5(1)<\/a>(c) property-related claims, merely by disguising its true nature under an over-arching assertion of negligence:\u00a0Daoust-Crochetiere v. Ontario (Minister of Natural Resources)<\/em>,\u00a02014 ONCA 776<\/a>, at para.\u00a03<\/a>;\u00a0Latta<\/em>, at para.\u00a018<\/a>.\u00a0 This argument fails.<\/p>\n

\u00a025. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0Given 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.\u00a0 By the time the defendant was served with the plaintiff\u2019s claim, the MNR\u2019s opportunity to investigate was already significantly attenuated.\u00a0 It is submitted that strict application of\u00a0 7(3)<\/a>\u00a0of the\u00a0PACA<\/a>\u00a0<\/em>to defendants seeking to launch third party claims will result in injustices.<\/p>\n

\u00a026. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0The 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 \u201clitigation privilege\u201d.\u00a0 The defendant argues that the policy behind the\u00a0PACA<\/a><\/em>\u00a0notice has therefore been met, even if the notice requirement has not been.<\/p>\n

\u00a027. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0To accede to this argument would require a court to read into the provisions of the\u00a0PACA<\/a><\/em>\u00a0an exception that its legislators did not see fit to include.\u00a0 While some areas of plaintiff incapacity have resulted or may result in a forgiving application of the\u00a0PACA<\/a><\/em>\u00a0notice 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.\u00a0 The Ontario Court of Appeal has specifically rejected such an approach:\u00a0Daoust-Crochetiere<\/em>, at para.\u00a012<\/a>.<\/p>\n

\u00a028. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0This argument also does not take into account the elements that make up proper notice under the\u00a0PACA<\/a><\/em>.\u00a0 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:\u00a0Latta<\/em>, at paras.\u00a026-27, 42<\/a>;\u00a0Mattick Estate<\/em>, at paras.\u00a015-18<\/a>;\u00a0Conners v. Ontario (Minister of Community Safety and Correctional Services)<\/em>,\u00a02016 ONSC 7238<\/a>, at paras.\u00a021-22<\/a>.<\/p>\n

\u00a029. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0The Crown had a right under the legislation to be alerted to the defendant\u2019s 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.\u00a0 Ms. Snarr\u2019s 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\u2019s allegations about improper signage in the Park.\u00a0 This argument must fail.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The decision in McCarthy v. 2065943 Ontario Ltd.\u00a0provides a good summary of the principles applicable to the notice requirement in s. 7 of the Proceedings Against the Crown Act: 18. \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0The legislation in s. 7(1) offers a much more forgiving limitation period with respect to tort claims, employment claims, and statutory claims, … Continue reading Ontario: the principles of notice under the PACA<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[307,209,578,306],"class_list":["post-994","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-notice-periods","tag-notice-provisions","tag-ontario-proceeding-act-s-7","tag-ontario-proceedings-against-the-crown-act"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/994","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=994"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/994\/revisions"}],"predecessor-version":[{"id":995,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/994\/revisions\/995"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=994"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=994"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=994"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}