Canada: Crown Still Holds Trump – The Court of Appeal's Recent Comments on Notice Obligations

Last Updated: March 10 2015
Article by Laura Emmett

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 provision.

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 period.

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 Act.

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 relieving provision.

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 barred.

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 Plaintiff.

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 obligations.

Originally published March 2015

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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Laura Emmett
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