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.