Compelling the Crown to Participate in Discovery
Background
Two actions have arisen out of a fatal motor vehicle accident that occurred in February of 2015 on a highway in Northern Ontario in the midst of a winter storm. It is alleged that the road conditions were poor.
His Majesty The King, In Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario (referred to in the decision and this blog post as “HMK”) was named as one of the various defendants, along with their highway winter maintenance contractor. It is alleged that these parties were negligent in undertaking snow and ice removal on the subject highway.
This blog post will focus on the recent decision of the Divisional Court in relation to these claims, which was an appeal decision from a motion to compel HMK to answer questions on discovery: O’Brien v. Horychuk, 2025 ONSC 722.
The initial Motion was heard on November 17, 2022 by Justice Nieckarz (O’Brien et al. v. Horychuk et al.,Severance et al. v. O’Hanley et al. 2023 ONSC 2739). The relief sought on the motion was for an Order requiring a representative of HMK to answer refusals and questions taken under advisement at Examination for Discovery, and that said representative reattend at HMK’s expense to answer those refusals.
At the time this matter initially proceeded to discoveries, counsel for HMK provided productions and produced a witness to testify on its behalf. It was noted in correspondence and stated on the record that this was done on a voluntary basis. HMK provided a number of answers to undertakings after the discoveries. There were a number of refusals and answers taken under advisement during this discovery.
Ultimately, Justice Nieckarz found that HMK is not compellable for discovery.
Her Honour reviewed the relevant statute and case law in arriving at this decision. The key case law is Ontario Court of Appeal case Longo v. The Queen, [1959] O.W.N. 19 (C.A.), [1958] O.J. No. 402. Longo stands for the proposition that the Crown’s privilege to refuse discovery can only be taken away by express words in a statute. In Longo, the Court of Appeal held that there was no such express wording in the Highway Improvement Act (“HIA”), which is the predecessor to the Public Transportation and Highway Improvement Act (“PTHIA”), RSO 1990, c P.50 and contains substantially identical wording on this point.
The Proceedings Against the Crown Act (“PACA”) and the current iteration of theCrown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 (“CLPA”) came into force after the Longo decision. However, there have been several cases decided in the interim reaching the conclusion that PTHIA is not subject to PACA, and that the Crown accordingly cannot be compelled to answer questions on discovery.
A different finding was reached in the motion decision of Taylor v. Mayes, 2019 ONSC 5651. In my previous blog post, I reviewed three decisions in relation to the Taylor v. Mayes case, one of which addressed the ability of counsel to compel the MTO to appear for and answer questions on discovery in the context of highway winter maintenance. In this decision, the MTO was ordered to complete both documentary and oral discovery.
The plaintiffs argued that Taylor v. Mayes should be followed in this case and therefore the Crown should be compelled to answer questions on discovery. The Crown argued that the more recent decision of Stegenga v. Jans, 2021 ONSC 7898 should be followed. The court in Stegenga declined to follow Taylor v. Mayes. In fact, the Court found in Stegenga that Taylor v. Mayes “represented a sharp divergence in the jurisprudence that pre-dated even Longo” [para 52].
Although Justice Nieckarz noted a preference for the analysis in Taylor v. Mayes given a more modern approach to discovery, ultimately Her Honour found that there was no cogent reason to depart from the precedent case law.
The moving parties advanced a secondary argument that HMK had attorned to the jurisdiction of the court and therefore should be compelled to answer questions. Justice Nieckarz also rejected this argument.
The motion judge’s decision was upheld on appeal. The Divisional Court agreed with the motion judge’s assessment of the applicable law on appeal and held that Longo remained binding authority directly on point for the Superior Court of Justice. With respect to the argument that he analysis in Taylor v. Mayes should be preferred, the Division Court wrote at para 22:
[22] I would not address the policy arguments set out in Taylor, which the motion judge found “more attractive” than the conclusion to which she was driven by binding authority. Where, as here, there is binding authority from the Court of Appeal, and a consistent line of jurisprudence applying this authority in the Superior Court, policy arguments should be addressed to the legislature. Alternatively, if a litigant feels that long-established and long-followed precedent from the Court of Appeal should be overturned, the place to address that argument is the Court of Appeal. However, to be clear, I am not suggesting that further appellate guidance would be advisable: the motion judge was faced with conflicting authority in the Superior Court, a reasonable basis for suggesting some appellate guidance. Further appellate guidance is not required to settle the point for the purpose of proceedings in the Superior Court, and it would be for the Court of Appeal to consider whether there is any good reason to revisit its own established jurisprudence and the longstanding precedent that has followed it.
With respect to the argument that HMK had attorned to the Court’s jurisdiction by defending the action, and therefore may therefore be compelled to produce documents and attend examinations for discovery, the Divisional Court ruled that this would run “directly contrary to Longo, and conflates jurisdiction over claims with authority to compel production and discovery from the Crown” [para 26].
Key Takeaways
This most recent decision on the issue of whether the Crown can be compelled for discovery and compelled to produce documents adds another case to the ever-growing stack of case law against compelling the Crown to participate in discovery, even where they have voluntarily participated in some capacity already.
Taylor v. Mayes remains the outlier in terms of Superior Court decisions on this point. Given the Divisional Court’s comments at para 22, it seems unlikely that further guidance from the Court of Appeal is warranted.