



COURT OF APPEAL FOR ONTARIO

CITATION: Elliot v. Aviva Insurance Company of Canada, 2020
    ONCA 36

DATE: 20200121

DOCKET: C67081

Pardu, Brown and Huscroft JJ.A.

BETWEEN

William Elliot

Plaintiff/Responding Party (Respondent)

and

Aviva Insurance Company of Canada,
Her Majesty the Queen in Right of Ontario
, Philip Howell
    and Brian Mills

Defendants/Moving Party (
Appellant
)

And in the following 13 actions:

Shelli-Lynn
    Black v. Belair Insurance Company Inc. c.o.b. Belair
    Direct, et al.

CV-18-00607931-00CP

Catherine
    Brooks v. Intact Financial Corporation c.o.b. Intact Insurance, et al.

CV-18-00607933-00CP

Jill Nicholson
    v. Unifund Assurance Company, et al.

CV-18-00607937-00CP

Fernanda
    Sampaio v. Certas Home and Automobile Insurance Company, et al.

CV-18-00607939-00CP

David Macleod
    v. The Commonwealth Mutual Insurance Group, et al.

CV-18-00608382-00CP

Madeleine
    Bonhomme v. Co-Operators General Insurance Company, et al.

CV-18-00608386-00CP

John Ross Robertson
    v. Echelon General Insurance Company, et al.

CV-18-00608390-00CP

Bradley Dorman
    v. Economical Mutual Insurance Company, et al.

CV-18-00608396-00CP

Mark
    Cicciarelli v. Wawanesa Mutual Insurance Company, et al.

CV-18-00608399-00CP

Kristopher
    Baron v. St. Paul Fire and Marine Insurance Company, Travelers Insurance
    Company of Canada, et al.

CV-19-00611894-00CP

Garry Gibbons
    v. TD Insurance, et al.

CV-19-00611895-00CP

Brian Nagle v.
    Gore Mutual Insurance Company, et al.

CV-19-00611899-00CP

David Sura v.
    Cumis General Insurance Company, et al.

CV-19-00611901-00CP

L. Glenn Frelick and Dona Salmon, for the appellant

Ron Bohm and David Lee, for the respondents

Heard: January 7, 2020

On appeal from the
    order of Justice Edward Belobaba of the Superior Court of Justice, dated May 9,
    2019, with reasons reported at 2019 ONSC 2827.

BROWN J.A.:

OVERVIEW

[1]

At issue on this appeal is the motions judges
    decision that a letter dated July 13, 2018 (Notice Letter) satisfied the
    notice requirement contained in s. 7(1) of the
Proceedings Against the
    Crown Act
, R.S.O. 1990, c. P.27 (
PACA
), for 15 class actions
    commenced in late 2018 and early 2019 against the appellant, Her Majesty the
    Queen in right of Ontario, Philip Howell, Brian Mills, and 15 Ontario
    automobile insurers. Howell acted as Superintendent of the Financial Services
    Commission of Ontario (FSCO) from 2009 until 2014; Mills is his successor.

[2]

PACA
s. 7(1)
    states, in part, that no action for a claim shall be commenced against the
    Crown unless the claimant has, at least sixty days before the commencement of
    the action, served on the Crown a notice of the claim containing sufficient
    particulars to identify the occasion out of which the claim arose.
[1]


[3]

The 15 actions assert a common allegation
    against the Crown defendants: FSCO failed to enforce its guidelines concerning
    the Harmonized Sales Tax (HST) against all automobile insurers in Ontario in
    respect of the payment of benefits set out in the Statutory Accident Benefits
    Schedule (SABS) made under the
Insurance Act
, R.S.O. 1990, c.
    I.8
. The actions allege that the FSCO guidelines directed
    Ontario automobile insurers to pay applicable HST in addition to the cost of
    the goods and/or services provided under the SABS and not to include HST within
    the calculation of any cap on benefits under the SABS. The actions contend that
    insurers consistently breached those guidelines and FSCO was aware of that
    wrongful conduct but took no steps to stop it.

[4]

The commencement of the 15 actions was proceeded
    by the delivery of the July 13, 2018 Notice Letter, which was styled as NOTICE
    PURSUANT TO PROCEEDINGS AGAINST THE CROWN ACT. The Notice Letter stated that
    pursuant to
PACA
s. 7(1), Jeannette Mieyette intended to commence an
    action against the appellant and the other defendants in respect of class
    members, whom the letter described as:

all
persons who
    suffered loss or damage arising from the use or operation of an automobile who
    were entitled to receive [benefits under the SABS], who submitted an
    application or applications for Statutory Accident Benefits that were approved
    pursuant to an automobile policy of insurance issued in Ontario, and whose
    entitlement to benefits was reduced by the amount of [HST]. [Emphasis added.]

The Notice Letter concluded with the
    sentence: This shall be your good and sufficient notice of the intention to
    commence proceeding
s
as
    against Her Majesty the Queen in Right of Ontario (emphasis added).
[2]

[5]

Jeannette Mieyette is named as the
    representative plaintiff in the first of the 15 actions (the Mieyette
    Action). The remaining 14 actions name other individuals as the representative
    plaintiffs (the Other Actions). Each action names a different Ontario
    automobile insurer as the defendant. All 15 actions name the appellant as a defendant
    and were commenced more than 60 days after service of the Notice Letter.

[6]

Before the motions judge, the appellant accepted
    that the Notice Letter satisfied
PACA
s. 7(1)
    for the Mieyette Action but moved to strike out the statements of claim in the
    Other Actions because they named different representative plaintiffs. The
    appellant was prepared to treat the statements of claim in the Other Actions as
    notices under
PACA
s. 7(1) but argued that the representative
    plaintiffs in the Other Actions would have to issue new statements of claim.

[7]

The motions judge dismissed the appellants
    motions, holding that the Notice Letter satisfied
PACA
s. 7(1), as
    interpreted by this court in
Mattick Estate v. Ontario (Minister of Health)
(2001),
52 O.R. (3d) 221 (C.A.),
for the Other Actions.

[8]

The appellant appeals. It argues that the word
    claimant in
PACA
s. 7(1) can refer only to the plaintiff in one
    action, with the result that the motions judge erred in interpreting and
    applying s. 7(1) to permit the Notice Letter to satisfy the statutory notice
    requirement for the Other Actions.

[9]

For the reasons set out below, I would dismiss
    the appeal.

ANALYSIS

[10]

The decision of this court in
Mattick Estate
remains the leading authority on the interpretation of
PACA
s. 7(1).

[11]

Mattick Estate
involved a lawsuit commenced by the widow and children of James Mattick, who
    had suffered a heart attack at his home and was transported to hospital by
    emergency medical attendants employed by the Province. Prior to commencing the
    lawsuit, Mr. Matticks widow, Laureen Mattick, sent a letter to the Ministry of
    Health expressing concerns about the care her husband had received on the day
    he was transported by the emergency medical attendants and about the lack of
    communication from the Ministry of Health following her earlier telephone
    complaint about the matter. The Crown moved to dismiss the action on the basis
    that the letter did not satisfy the requirements of
PACA
s. 7(1).

[12]

The decision in
Mattick Estate
set down
    several principles concerning the interpretation of
PACA
s. 7(1
)
. At paras. 15-18, this court stated:

(i)

The legislative purpose of the
PACA
s. 7(1) notice provision is to allow the Crown to gather sufficient
    information to permit it to resolve a complaint to the mutual satisfaction of
    itself and the complainant in advance of any litigation, and failing that, to
    allow the Crown to properly prepare a defence to the litigation which may
    result;

(ii)

The section requires a claimant to serve a
    notice that communicates a complaint which, if not satisfied, could reasonably
    be anticipated to result in litigation against the Crown. When such a notice is
    coupled with particulars that sufficiently identify the occasion in question to
    permit the Crown to investigate, resolve the complaint in advance of legal
    action or prepare to defend the litigation, the notice fulfils the legislative
    purpose;

(iii)

However, a claimant is not required to state expressly
    in her notice that she intends to take legal action against the Crown as such a
    requirement would be inconsistent with the legislative purpose of permitting
    the Crown to investigate in order to resolve the complaint at an early point in
    time without the commencement of legal proceedings. Nevertheless, not every
    complaint to the Province must be treated as a
PACA
s. 7(1) notice; and

(iv)

No particular formula or words must be used to
    give notice.

See also:
Beardsley v.
    Ontario
(2001), 57 O.R. (3d) 1 (C.A.), at paras. 8-17;
Latta
    v. Ontario
(2002), 62 O.R. (3d) 7 (C.A.), at paras.
    26-27, 29.

[13]

Applying those principles to the letter written
    by Laureen Mattick, this court concluded that the letter met the requirements
    of
PACA
s. 7(1), stating at para. 19:

[The letter] precisely identifies the events
    of April 24, 1994, which is the occasion concerned. Particularly in the context
    of her telephone discussion with the Province, her letter clearly constitutes a
    complaint that her husband had received unacceptable patient care from
    provincial employees that day. Given the nature of Mrs. Matticks concerns and
    given that her husband died shortly after receiving the care complained of, it
    would be reasonable for the Province to anticipate that if Mrs. Matticks complaint
    could not be satisfactorily resolved there would be litigation asserting that
    the unacceptable care caused his death.

[14]

Although in
Mattick Estate
this court
    did not expressly consider the meaning of the word claimant in
PACA
s. 7(1), in the result it found that Ms. Matticks letter complied with the
    section notwithstanding that it did not threaten litigation or refer to a
    potential claim that included her co-plaintiffs, the children of James and
    Laureen Mattick.

[15]

The motions judge correctly stated the
    principles set out in
Mattick Estate
: at paras. 10 and 15-18. He
    concluded that the Notice Letter satisfied those principles as (i) it
    communicated a complaint which, if not satisfied, could reasonably be
    anticipated to result in litigation against the Crown and (ii) set out a
    precise description of the Crown defendants that would be sued, the conduct
    complained about, and the class members impacted by the impugned conduct: at
    paras. 11 and 18. Those conclusions are fully supported by the language of the
    Notice Letter.

[16]

The motions judge held that the Notice Letter satisfied
    the requirements of
PACA
s. 7(1) for all 15 actions
    stating, at paras. 6, 14 and 20:

I pause here to note that it was not completely clear from the
    [Notice Letter] whether at the time of this notice just one proposed class
    action would proceed (naming the FSCO defendants and the 15 insurers) or, as it
    turned out, 15 separate proposed class actions would proceed with the same
    claim being made against the FSCO defendants in each of the 15 separate
    actions. Both possibilities, given Mr. Ralstons use of proceeding and
    proceedings were covered in the [Notice Letter].



The fact that the [Notice Letter] did not make
    clear if the proposed class action would be a single proceeding or 15 separate
    proceedings and did not explicitly name the other 14 proposed representative
    plaintiffs was really of no concern to the Crown. Whether the proposed class
    action continued as one proceeding or fifteen is something that class counsel
    would have to decide in the months ahead. The important point is that the FSCO
    defendants were being sued regardless; the claims against the FSCO defendants
    would remain the same, unaltered and identical; and the Crown was sufficiently
    notified of these claims in the [Notice Letter].



The identification and suitability of the representative
    plaintiff is a procedural issue that is best dealt with as part of the
    certification process. The identification of every proposed representative
    plaintiff months before certification is impracticable and would serve no
    useful purpose when considering the legislative purpose of
s. 7(1)
of
PACA
.

[17]

I see no error in that analysis. First, the
    motions judge applied the interpretative approach to
PACA
s. 7(1) adopted by this court in
Mattick Estate
and subsequent decisions.

[18]

Second, the issue before the motions judge was
    not whether the representative plaintiffs named in each of the 15 actions met
    the certification criteria of s. 5(1)(e) of the
Class Proceedings
    Act, 1992
, S.O. 1992, c. 6, or whether Ms. Mieyette would
    have qualified to act as the representative plaintiff in the Other Actions. The
    issue was whether the Notice Letter, having identified Ms. Mieyette as the
    intended representative plaintiff, satisfied
PACA
s. 7(1), as interpreted by this court, in respect of all 15 class
    actions that ensued.

[19]

In determining that issue, the assessment of the
    adequacy of the Notice Letters language was required to take into account the
    nature of the complaint it alleged. The Notice Letter made a complaint against
    FSCO on behalf of a broad class of persons: 
all
persons who suffered loss or damage arising from the use or
    operation of an automobile who were entitled to receive [benefits under the SABS],
    who submitted an application or applications for [benefits], and whose
    entitlement to benefits was reduced by the amount of [HST] (emphasis added).
    The Notice Letter alleged that FSCO failed to enforce its HST guidelines
    against
all
automobile insurers in Ontario, not
    just some, and that class action litigation was intended in respect of those
    failures. The Notice Letter did not name a particular insurer nor did the
    letter limit its complaint to only one insurer.

[20]

The language of complaint in the Notice Letter
    was broad enough to bring each of the 15 actions within its scope. The fact
    that 15 class actions ensued does not detract from the breadth of the complaint
    asserted in the Notice Letter, including its description of the broad class of
    persons impacted by the alleged wrongful conduct. It appears that multiple
    actions were started to ensure that each named representative plaintiff was an
    insured of the named automobile insurer. As well, each of the class actions
    commenced against the different insurers joined the same Crown defendants and
    asserted the same claims against the Crown, as were described in the Notice Letter.

[21]

Finally, I do not accept the appellants
    submission that the form of notice accepted by the motions judge resulted in
    significant prejudice to the appellant. The affidavit of Ms. Zuyin Wang filed
    by the appellant in support of its motion did not identify any prejudice
    resulting from the form of the notice. Nor did the November 7, 2018 letter from
    Crown counsel that responded to service of the first statements of claim.
    Indeed, it is difficult to conceive how the Crowns ability to gather sufficient
    information to permit it to resolve a complaint could be prejudiced when the
    complaint against the Crown asserted in the Notice Letter was the same as those
    pleaded in the 15 actions.

[22]

Accordingly, given the breadth of the complaint
    described in the Notice Letter and its clear signal that class action
    litigation would follow in respect of that broad complaint, I see no reason to
    interfere with the motions judges dismissal of the Crowns motion on the basis
    that the Notice Letter (i) satisfied the legislative purpose of
PACA
s. 7(1), (ii) set out a specific grievance, (iii) identified the
    class members impacted by the impugned conduct, (iv) threatened litigation, and
    (v) was not an impediment to the resolution of the claim against FSCO, thereby
    complying with
PACA
s. 7(1): at paras. 13 and
    17-19.

DISPOSITION

[23]

For the reasons set out above, I would dismiss
    the appeal.

[24]

The parties agreed that the successful party is
    entitled to its costs of the appeal in the amount of $7,500, inclusive of
    disbursements and applicable taxes. Consequently, the appellant shall pay such
    costs to the respondents.

Released: DB JAN 21 2020

David Brown J.A.

I agree. G. Pardu
    J.A.

I agree. Grant
    Huscroft J.A.





[1]

PACA
was repealed on July 1, 2019 and replaced by the
Crown Liability
    and Proceedings Act, 2019
, S.O. 2019, c. 7, Sched. 17, s. 18(1) of which
    states: No proceeding that includes a claim for damages may be brought against
    the Crown unless, at least 60 days before the commencement of the proceeding,
    the claimant serves on the Crown, in accordance with section 15, notice of the
    claim containing sufficient particulars to identify the occasion out of which
    the claim arose.



[2]

Other references to proceeding in the Notice Letter used the
    singular form of the word.


