The Proceedings Against the Crown Act
("PACA") requires that 10 days' notice be
provided to the Crown where the action involves occupier's
liability, failing which, the claim is a nullity. Courts have been
critical of the 10 day PACA notice and have been loath to
The recent decision of the Court of Appeal in Daoust-Crochetiere v. Ontario (Natural
Resources) signals a welcome change in the Court's
perspective. In that decision, the Plaintiff fractured his ankle
while on Crown land - a boat launch at Wasaga Beach Provincial
Park. The incident occurred on June 13, 2010. The Plaintiff did not
provide the Crown with notice until October 27, 2010 - well beyond
the 10 day notice period.
The Crown moved on February 28, 2014 to have the action
summarily dismissed for failure to provide 10 days notice.
Blaney's lawyers Sheldon Inkol and Thomasina Dumonceau
represented the Crown.
The motion judge granted summary judgment and dismissed the
Plaintiff's action. In turn, the motion judge denied the
Plaintiff leave to amend his claim to plead a cause of action in
contract as the basic two-year limitation period had expired.
The Plaintiff appealed and argued that the dismissal be set
aside based on, amongst other things, discoverability, unfairness
and the application of maritime law. The Court of Appeal dismissed
the Plaintiff's appeal.
The Court of Appeal held that purpose of the 10 day notice
provision under PACA is to "target occupiers'
liability with a special and strict notice requirement," which
would not be achieved by the interpretation proposed by the
appellant. In turn, the Court refused to allow the Plaintiff to
amend his claim to assert a new cause of action. By doing so, the
Court effectively precluded the Plaintiff from recasting his action
to circumvent the 10 day notice provision, thereby, preserving the
integrity of the 10 day notice requirement and the essential nature
of the action which was one grounded in occupier's
The Court of Appeal's decision leaves no room for doubt that
the "special and strict" notice requirements under
PACA remain in full force and effect.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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