Motion by defendant Crown to dismiss action on basis of failure to provide notice pursuant to s. 7 of Proceedings Against the Crown Act (Ont.). Plaintiff was subject to criminal proceedings on allegations he attended home with others and assaulted number of people. Plaintiff was convicted but on his appeal, it soon became apparent that interpreter assigned to case was woefully incompetent. Judge found plaintiff’s ss. 7 and 14 Charter rights had been violated and, partly as a consequence, his right to be tried within a reasonable time was infringed. Mistrial was declared and Crown ordered to pay costs as remedy under Canadian Charter of Rights and Freedoms. Crown and plaintiff negotiated and settled with respect to costs and release was executed with respect to costs only. Plaintiff commenced notice of action in 2007 as intended class proceedings and filed statement of claim. Crown was served with both in 2008 and advised plaintiff notice was required 60 days before statement of claim was issued and it had no record of such. Plaintiff provided list of documents he claimed constituted notice application record in criminal matter served on Crown in 2006, factum served on Crown in 2006 and revised release. Crown argued none of these items constituted notice so action was nullity. Plaintiff argued notice could take any form and he had insisted on release that specifically did not release Crown from other complainants and Crown clearly knew he had complaint about interpreter services and Charter rights violation. Motion allowed. It was clear s. 7 was necessary precondition before court could entertain action against Crown, and onus was on plaintiff to establish court had jurisdiction. There was no dispute notice had to be in writing; while surrounding circumstances may provide relevant context, they could not substitute written notice. Section 7(1) required notice contain sufficient particulars to indentify occasion out of which claim arose, so plaintiff could not rely on something other than notice to provide particulars. Application and factum were filed in support of Charter claim in criminal proceedings, entirely different purpose than putting Crown on notice of civil claim. Release did nothing more than provide release with respect to costs; while it left open possibility of other civil actions and plaintiff’s counsel at time may have indicated other actions were possible, it was entirely speculative what such actions would be. Plaintiff did not provide required notice so action dismissed.
Sidhu v. Ontario (Attorney General) (Dec. 7, 2012, Ont. S.C.J., Gray J., File No. CV-07-03708-CP) 223 A.C.W.S. (3d) 386.