Fridays with Rogers Partners

At our weekly meeting, Itai Gibli discussed the recent decision of the Ontario Superior Court in Barry v. His Majesty the King in Right of Ontario, 2023 ONSC 4299.

Overview

The plaintiff brought an action against the Crown for damages arising from an alleged trip and fall. The Court dealt with three main issues:

1. Did the plaintiff provide proper notice per the Proceedings Against the Crown Act?
2. Did the plaintiff suffer a trip and fall as alleged in her statement of claim?
3. Did the Crown act unreasonably as an occupier?

This blog post will focus primarily on the first question.

Facts

The plaintiff and her husband were staying at the Rideau River Provincial Park campground. The plaintiff was playing fetch with her dog near a grassy common use area along the water’s edge. She was throwing her dog’s toy into the river for it to retrieve.

The parties had different narratives about what happened next, but ultimately, the plaintiff fell into the river and injured herself.

The plaintiff claimed that at one point, the dog retrieved the toy but dropped it six or eight inches from the water’s edge. Unbeknownst to her due to overgrown foliage, there was a raised edge on the retaining wall before the water. As she walked to retrieve the toy, she tripped over the lip of the retaining wall. Then she somersaulted into the river, injuring herself.

The Crown argued that the plaintiff was carelessly standing on the edge of the retaining wall when she slipped and fell into the river.

A park warden arrived a few minutes later and arranged for the plaintiff to be taken to hospital.

The park warden prepared a park “complaint and occurrence report”. The park warden was also involved in the preparation of an “incident report”, which was faxed to the Ministry of Labour.

The plaintiff brought an action in negligence against the Crown as occupier of the premises, but served notice 175 days after the incident.

Did The Plaintiff Give Proper Notice?

The Crown was an occupier under the Occupiers Liability Act. Therefore the plaintiff’s action was subject to the Proceedings Against the Crown Act.

Section 7(3) of the PACA requires the plaintiff to serve notice of the proceeding (in respect of any breach of duties attaching to the ownership, occupation, possession, or control of property) on the Crown within ten days after the claim arises. This provision exists to allow the Crown an early opportunity to investigate and address circumstances that might result in an action against the Crown as occupier.

Section 7 requires the notice to contain sufficient particulars to identify the occasion out of which the claim arose. Again, the purpose is to empower the Crown to investigate the matter.

Section 7 also requires the notice include an element of “complaint”. While not made explicit in the text, the Ontario Court of Appeal in Latta v. Ontario (2002 CanLII 45117) explained that this inference flows from two elements. First, from the word “claim”. Second, from the legislative purpose of the provision – to allow the Crown either to avoid litigation or to have an early opportunity to prepare its defence.   Merely setting out the facts of the underlying claim is insufficient notice. The notice must inform the Crown of a potential conflict that could reasonably be anticipated to result in litigation.

The plaintiff suffered her injury on August 3^rd, 2016. On the same day, the park warden prepares a “complaint and occurrence report” and an “incident” report. On January 25, 2017, the plaintiff’s counsel notified the Crown of her intention to litigate. Problematically, the plaintiff served notice of the proceeding on the Crown 165 days after the expiry of the 10-day notice period. She thus attempted to overcome this hurdle.

The plaintiff relied on the aforementioned park “complaint and occurrence report” as notice for her claim. The plaintiff argued that the PACA notice requirement does not have a prescribed form, is not expressly required to be in writing, does not require service of a particular fashion, and does not require service be made on any particular Crown representative.

The plaintiff asked the Court to consider Latta. There, a prisoner was injured when he tripped over a bucket that was left atop some stairs by a Crown employee. The prisoner submitted an accident/injury report to the Crown.

The ONCA ruled this report satisfied the PACA notice requirement. It established sufficient particulars to identify the source of a potential problem and allow the Crown an opportunity to investigate. The report made out the nature (fall), time (when leaving school), location (stairs), cause (sand bucket), and consequence (back injury) of the incident. The ONCA in Latta held that the nature of the accident and content of the report suggested a complaint with the potential for litigation. 

The Court in this case held Latta was not analogous. The Park “complaint and occurrence report” was standard protocol for any occurrence in the Park, even those unrelated to potential liability. The assistant park supervisor’s evidence supported this finding. She described this report as a “catchall for everything that happens in the park”, including a natural event. Neither the park warden’s field notes nor the Ministry of Labour’s order documented evidence of a potential conflict or litigation. Further, the Park report did not identify a clear hazard.

In Mattick Estate v. Ontario (Minister of Health), the Ontario Court of Appeal ruled that a potential claimant against the Crown need not expressly state in the notice that they intend to take legal action to recover damages or other relief. However in Beardsley v. Ontario, the Court of Appeal explained that this does not mean every complaint letter delivered to a provincial agency will fulfill the notice requirement. Rather, the complaint must be such that, in the circumstances, it could be reasonably anticipated by the Crown that if not resolved, litigation could result.

The plaintiff argued evidence of reasonably anticipated litigation could be inferred from a specific statement in the report. It read “the area where the incident occurred is not a designated swimming area for pets and dogs are not permitted to be off leash at any time”. The plaintiff claimed this reflected a consideration of fault, which the defendant denied. The assistant warden who authored the statement testified that she believed the sentence was included in the report because an offence was occurring at the time of the injury. The Court preferred the assistant warden’s evidence.

The plaintiff also argued that two apologies referenced in the Park report showed reasonable evidence of litigation potential. They read: “[Mr. Grosset] apologized to Bob for what had happened to his wife” and “[Mr. Grosset] apologized for the inconvenience”. The Court disagreed.

The Court finally held that the Crown’s responding, recording, and reporting of the plaintiff’s injury did not constitute notice under Section 7 of the PACA. Thus the claim was statute barred.

Did the plaintiff prove she tripped on the retaining wall?

The plaintiff’s statement of claim alleged her injury occurred because she tripped over the retaining wall at the park. To succeed in the action, she therefore had to prove, on a balance of probabilities, that this happened. The evidence at trial only showed the plaintiff slipped and fell over the retaining wall, rather than a finding that she tripped on the retaining wall.

The Court held that the plaintiff’s version of events was implausible and contradicted by other evidence. Essentially, the mechanics of her described fall would not result in her tripping into the water. Moreover, her testimony at trial was that she landed chest first on her arms, whereas she testified at discovery that she fell on her tailbone.

The plaintiffs submitted photos of the retaining wall taken by the plaintiff’s husband 11 days after the incident. The Court held the photos did not show an edge or lip on the grassy side of the retaining wall – which was clearly visible.

The park warden testified that immediately after the incident, the plaintiff told him she slipped into the water. He wrote the same in his field notes. The plaintiff denied this, but the Court found the warden a credible and reliable witness, and preferred his evidence.

The Court also relied – though with limited weight – on records from Kemptville Hospital and Ottawa General Hospital containing statements by the plaintiff which were inconsistent with her testimony that she tripped rather than slipped.

Did the Crown Act Unreasonably as an Occupier?

In short, no. The Court emphasized the occupier’s standard of care is reasonableness, rather than perfection. The evidence suggested no unreasonable conduct on the Crown’s part. Ultimately, the Court ruled the plaintiff was the author of her own misfortune.

Takeaways

1. While notice of proceedings against the Crown need not be a formal notice letter, notice is only valid if it: a)contains sufficient particulars of the event to allow the Crown to investigate the source of the issue; and b)reasonably communicates a complaint to the Crown that indicates that there is potential for litigation if the matter is not resolved.
2. The nature of the report is an important factor in determining whether informal notice satisfies the PACA or CLAPA notice requirement.
3. Informal notice must still be served within the limitation period.