



COURT OF APPEAL FOR ONTARIO

CITATION: Daoust-Crochetiere v. Ontario (Natural Resources), 2014 ONCA 776

DATE: 20141106

DOCKET: C58577

Strathy C.J.O., Feldman and Lauwers JJ.A.

BETWEEN

Jason Daoust-Crochetiere

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of the Province of
    Ontario as represented by the Minister of Natural Resources for the Province of
    Ontario

Defendant (Respondent)

Andrew Kerr, for the appellant

Thomasina Dumonceau, for the respondent

Heard: October 28, 2014

On appeal from the order of Justice J.R. McCarthy of the
    Superior Court of Justice, dated February 28, 2014.

BY THE COURT:

[1]

The appellants claim as pleaded falls squarely within s. 5(1)(c) of the
Proceedings Against the Crown Act
, R.S.O. 1990, c. P.27 (
PACA
).
    It is a claim in tort in respect of a breach of the duties attaching to the
    ownership, occupation, possession or control of property at the respondents
    boat launch at Wasaga Beach Provincial Park.

[2]

The motion judge made no error in granting summary judgment dismissing
    the appellants action in tort because he failed to give the ten day notice
    required by s. 7(3), or the sixty day notice required by s. 7(1) of
PACA
.

[3]

The accident occurred on June 13, 2010. The notice given on October 27,
    2010 was well beyond the ten day period and clearly out of time. The motion
    judge properly rejected the submission that the plaintiff could assert an
    over-arching tort falling within s. 5(1)(a) when the claim was clearly in
    respect of a breach of the duties attaching to the ownership [etc.] of
    property. As this court observed in
Latta v. Ontario
(2002), 62 O.R.
    (3d) 7, at para. 18, the purpose of s. 5(1)(c) and s. 7(3) was to target
    occupiers liability with a special and strict notice requirement. That
    purpose would not be achieved by the interpretation proposed by the appellant.

[4]

Similarly, the motion judge properly rejected the submission that
    because part of the launch ramp was under the surface of the water it was not
    within the scope of s. 5(1)(c). The statement of claim pleads that the
    respondent had control over the facilities at the park and was responsible for
    the maintenance of the launch.

[5]

We did not consider it necessary to call on the respondent with respect
    to the appellants submission that strict compliance with s. 7(3) of
PACA
was not required in the circumstances of this case, including the absence of
    demonstrated prejudice to the respondent. This is not a case like
Leone v.
    University of Toronto Outing Club
, 151 A.C.W.S. (3d) 1170, [2006] O.J. No.
    4131 (S.C.), where the injuries prevented the appellant giving notice. In this
    case, the appellant suffered an injury and he knew who was responsible. He
    simply thought the injury was not as severe or as permanent as it ultimately
    proved to be.

[6]

Nor is this a case in which notice was imperfect but sufficient to put
    the respondent on notice that a claim could reasonably be anticipated.
Coulter
    v. Ontario (M.N.R.)
, 2014 ONSC 1573, 119 O.R. (3d) 571, cited by the
    appellant, is distinguishable, because there was evidence on which a court
    might conclude that the defendant had sufficient notice of the incident to
    satisfy the statutory requirement, notwithstanding the absence of formal notice.
    In this case, the respondent had no notice of any kind until more than four
    months after the injury.

[7]

The appellant would have the court import into
PACA
a relieving
    provision similar to s. 44(12) of the
Municipal Act 2001
, S.O. 2001,
    c. 25 (see the discussion of this provision in
Coulter
and
Crinson
    v. Toronto (City)
, 2010 ONCA 44, 100 O.R. (3d) 366)
.
We reject
    this submission.

If the legislature intended a flexible approach to be
    taken to the notice period under
PACA
, it would have been simple to add
    a similar relieving provision.

[8]

We did call on the respondent to address the appellants submission that
    the motion judge erred in not granting leave to amend the claim to plead breach
    of contract. This proposed reframing of his claim in contract would have
    avoided the s. 7(3)
PACA
notice requirement and was premised on the
    allegation that he had paid a fee to use the boat launch. There was no motion
    for leave to amend before the summary judgment motion judge, who appears to
    have raised the issue of amendment on his own motion.

[9]

The motion judge found that the statement of claim, framed in tort, did
    not plead facts sufficient to disclose a cause of action in contract and that
    it neither related to nor flowed naturally from the tort cause of action
    pleaded.

[10]

We agree. The statement of claim was issued on June 13, 2012, on the
    second anniversary of the accident. Reading it generously, there was no
    reference to a contract or to any contractual claim.   The appellants payment
    of a fee to use the boat launch, the key factual premise on which he relies for
    his contractual claim, was not even mentioned.

[11]

The amendment was raised at the respondents summary judgment motion,
    heard on February 28, 2014  more than three and a half years after that cause
    of action arose. The motion judge properly refused the amendment as the claim
    was time-barred:
Limitations Act
,
2002
, S.O. 2002, c. 24,
    Sch. B, s. 4.

[12]

The appellants argument about there being no prejudice to the
    respondent must be rejected. It presupposes that the basic limitation period
    under the
Limitations Act
may be excused in special circumstances
    where there is no prejudice. This suggestion was rejected by this court in
Joseph
    v. Paramount Canadas Wonderland
, 2008 ONCA 469, 90 O.R. (3d) 401.

[13]

The appeal is therefore dismissed. Costs, if requested, may be addressed
    by written submissions.

G.R. Strathy C.J.O.

K. Feldman J.A.

P. Lauwers J.A.

Released: November 06, 2014


