The Court of Appeal, in Daoust-Crochetiere v Ontario (Natural
Resources), [2014 ONCA 776], considered the ten day
notice period which is required to maintain a claim against the
Crown pursuant to the Proceedings Against the Crown Act
("Act"). Ultimately, the Court of
Appeal confirmed a strict interpretation of the notice
The accident occurred on June 13, 2010. The Plaintiff
alleged that he was injured at a boat launch at a Provincial Park.
The notice was given on October 27, 2010, well beyond the ten day
The Court of Appeal found that the claim fell squarely within
the Act. It was a claim being advanced with respect
to a "breach of the duties attaching to the ownership,
occupation, possession or control of property" at a boat
launch owned by the Defendant.
The Court of Appeal upheld the motions Judge's decision and
found that there was no error in granting summary judgment
dismissing the action in tort because the Plaintiff failed to give
the ten day notice required under section 7 of the
The Court of Appeal held that the motions Judge properly
rejected the Plaintiff's submission that he could commence an
overarching claim when the claim was "in respect of" a
breach of the duties attaching to the ownership of property.
The Court of Appeal found that the motions Judge appropriately
rejected the Plaintiff's argument that because part of the
launch ramp was under the surface of the water, it was not within
the scope of the notice provision in the Act. The
Court of Appeal noted that the Statement of Claim pled that the
Defendant had control over the facilities at the Provincial Park
and was responsible for the maintenance of same.
The Court of Appeal noted that this was not a case where notice
was imperfect but sufficient to put the Defendant on notice that
the claim could reasonably be anticipated. Further, this was not a
case where the Plaintiff's injuries prevented him from giving
notice. The Plaintiff suffered an injury and knew who was
responsible within the notice period.
The Plaintiff suggested that a relieving provision should be
imported into the Act similar to the one contained in the
Municipal Act. This submission was also
rejected. The Court of Appeal held that if the legislature
intended a flexible approach to be taken to the notice period under
the Act, it would have been simple to add a similar
The Plaintiff attempted to amend the claim. The Court of
Appeal noted that reframing of the claim in contract would have
avoided the notice requirement and was premised on the allegation
that the Plaintiff had to pay a fee to use the boat launch.
The motions Judge had found that the Statement of Claim, as
drafted, did not plead facts sufficient to disclose a cause of
action in contract. It neither related to nor flowed naturally from
the cause of action as had been pleaded. The Court of Appeal
upheld the finding and found that there was no reference to a
contract or any contractual claim. While the claim was issued
on June 13, 2012, the amendment was not raised until the summary
judgment motion (which was heard on February 28, 2014) – more
than three and a half years after the cause of action arose.
The motions Judge properly held that the amendment was time
The Court of Appeal recognized that the purpose of the ten day
notice period was to "target occupiers' liability with a
special and strict notice requirement." That purpose
would not be achieved by the interpretation proposed by the
This decision once again confirms the Court's strict
interpretation of the 10 day notice period. The case serves as a
further instance of the Court's willingness to grant summary
judgment where the Plaintiff has failed to comply with their notice
Originally published March 2015
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