Murray v. Ontario

Murray v. Ontario Collection Decisions of the Court of Appeal Date 2003-08-20 Docket numbers C38617 Judges McMurtry, Roy; O’Connor, Dennis; Simmons, Janet M. Subject Civil Decision Content DATE: 20030820 DOCKET: C38617 COURT OF APPEAL FOR ONTARIO MCMURTRY C.J.O., O'CONNOR A.C.J.O. AND SIMMONS J.A. BETWEEN: SANDRA MURRAY Plaintiff (Appellant) - and - HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendant (Respondent) - and - VELMA DEMERSON Intervenor Susan M. Vella for the appellant Walter Myrka and Tamara D. Barclay for the respondent Heard: May 22, 2003 On appeal from the order of Justice Douglas Coo of the Superior Court of Justice dated June 20, 2002. SIMMONS J.A.: [1] The main issue on this appeal is whether ss. 28 and 29 of the Proceedings Against the Crown Act, R.S.O. 1970, c. 365 (the "1970 Act") bar the appellant from claiming damages against the Crown by way of statement of claim for incidents (the "pre-1963 claims") that the appellant alleges occurred prior to the enactment of the Proceedings Against the Crown Act, 1962-63, S.O. 1962-63, c. 109 (the "1963 Act"). [2] The 1963 Act came into force on September 1, 1963. Although s. 3 of the 1963 Act authorized proceedings against the Crown by way of action for claims that formerly had to proceed by way of petition of right, ss. 27 and 28 of the 1963 Act preserved Crown immunity from action and the petition of right regime with respect to claims that existed on September 1, 1963. [3] Sections 27 and 28 of the 1963 Act were re-enacted as ss. 28 and 29 of the 1970 Act. However, ss. 28 and 29 were not included in either the Proceedings Against the Crown Act, R.S.O. 1980, c. 393 (the "1980 Act") or the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (the "1990 Act"). [4] Coo J. held that, despite their omission from subsequent consolidations, ss. 28 and 29 of the 1970 Act remain in effect and bar the appellant from proceeding against the Crown for the pre-1963 claims by way of statement of claim. [5] The appellant appeals against the motion judge's order. [6] For the reasons that follow, I would dismiss the appeal. Background [7] On October 10, 2001, the appellant issued a statement of claim alleging that, between 1942 and 1956, while a ward of a children's aid society, she was physically and sexually abused by a foster parent and other wards. Pleading causes of action based on breach of statutory duty (including fiduciary duty and non-delegable duty), negligence, vicarious liability, occupier's liability and breach of contract, the appellant claimed that the provincial Crown is responsible in law for the pre-1963 claims. [8] On May 24, 2002, relying on ss. 28 and 29 of the 1970 Act, the respondent moved to strike the pre-1963 claims from the appellant's statement of claim. [9] The respondent claimed that, prior to September 1, 1963, it was not possible in Ontario to commence an action for damages against the Crown; rather, it was necessary to proceed by way of petition of right, which required a fiat from the Lieutenant Governor. In addition, the respondent submitted that the pre-1963 claims are torts and that prior to the enactment of s. 5 of the 1963 Act, authorizing tort claims against the Crown, they could not have proceeded by way of petition of right. [10] In response to the Crown's position, the appellant submitted that ss. 28 and 29 of the 1970 Act are no longer in force. She pointed out that they were not included in either the 1980 Act or the 1990 Act and also claimed that they were repealed when the Revised Statutes of Ontario, 1990 (the "1990 R.S.O.'s") were enacted. [11] The appellant relied on ss. 3 and 5 of the 1990 Act as authority for proceeding with the pre-1963 claims against the Crown by way of statement of claim. In particular, she submitted that, even if ss. 28 and 29 of the 1970 Act remain in effect, as a matter of statutory interpretation, the specific provisions in ss. 3 and 5 of the 1990 Act take precedence over the unconsolidated provisions. [12] The motion judge concluded that ss. 28 and 29 of the 1970 Act bar the appellant from proceeding with the pre-1963 claims by way of statement of claim. He found that those sections remain in effect even though they were not included in subsequent consolidations of the Act, that they were not repealed by the enactment of the 1990 R.S.O.'s, and that they can be read in harmony with ss. 3 and 5 of the 1990 Act. [13] Finally, the motion judge said that he was not prepared to deal, in obiter, with the issue of "whether a petition of right … would be an historically and traditionally legitimate weapon in pursuing the [pre-1963] claims". The Motion Judge's Reasons [14] In his reasons, the motion judge focused on whether ss. 28 and 29 of the 1970 Act remain in effect. Although the appellant now concedes that ss. 28 and 29 are likely in effect, she submits that they apply only to claims initiated under the 1970 Act. Because of the nature of this submission, the motion judge's reasons for determining that ss. 28 and 29 remain in effect are still important. [15] The motion judge relied on four factors to find that, although not contained in either the 1980 Act or the 1990 Act, ss. 28 and 29 of the 1970 Act remain in effect. [16] First, Schedule B of the 1980 R.S.O.'s refers to ss. 28 and 29 of the 1970 Act as being unconsolidated and unrepealed. Second, ss. 28 and 29 of the 1970 Act are listed in Schedule C of the 1980 R.S.O.'s, which sets out provisions enacted after July 1, 1867, that were unconsolidated but still in effect as of the enactment of the 1980 R.S.O.'s. The first two factors therefore make it clear that ss. 28 and 29 of the 1970 Act remained in effect following the enactment of the Revised Statutes of Ontario, 1980 (the "1980 R.S.O.'s"). [17] Third, while Schedule A of the 1990 R.S.O.'s lists the 1980 Act as being among the acts repealed by the 1990 consolidation, it does not refer to ss. 28 and 29 of the 1970 Act. The 1990 R.S.O.'s therefore did not expressly repeal ss. 28 and 29 of the 1970 Act. Fourth, ss. 28 and 29 of the 1970 Act are listed in Schedule C of the 1990 R.S.O.'s, which sets out provisions enacted after July 1, 1867, that were unconsolidated but still in effect as of the enactment of the 1990 R.S.O.'s. [18] The motion judge concluded that, having placed ss. 28 and 29 of the 1970 Act "to one side as still valid and unrepealed [by including them in Schedule B to the 1980 R.S.O.'s]….[t]hat protective step did not have to be taken again in 1990." Accordingly, the 1990 R.S.O.'s did not operate to repeal ss. 28 and 29 of the 1970 Act. Relevant Statutory Provisions (i) Sections 28 and 29 of the 1970 Act [19] The relevant portions of ss. 28 and 29 of the 1970 Act are as follows: 28. No proceedings shall be brought against the Crown under this Act in respect of any act or omission, transaction, matter or thing occurring or existing before the 1st day of September, 1963. 29. (1) A claim against the Crown existing on the 1st day of September, 1963 that, if this Act had not been passed, might have been enforced by petition of right may be proceeded with by petition of right, subject to the grant of a fiat by the Lieutenant Governor as if this Act had not been passed. … (4) Subject to subsections 1, 2 and 3, proceedings against the Crown by petition of right are abolished, and except for the purposes of subsections 1, 2, and 3, the rules of court respecting petitions of right are revoked. (ii) Sections 3 and 5 of the 1990 Act [20] The relevant portions of ss. 3 and 5 of the 1990 Act are as follows: 3. A claim against the Crown that, if this Act had not been passed, might be enforced by petition of right, subject to the grant of a fiat by the Lieutenant Governor, may be enforced as of right by a proceeding against the Crown in accordance with this Act without the grant of a fiat by the Lieutenant Governor. 5. (1) Except as otherwise provided in this Act, and despite section 11 of the Interpretation Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject, (a) in respect of a tort committed by any of its servants or agents; (iii) Section 3 of the 1980 Act [21] The appellant also relies on s. 3 of the 1980 Act, which provides as follows: 3. Except as provided in section 29, a claim against the Crown that, if this Act had not been passed, might be enforced by petition of right, subject to the grant of a fiat by the Lieutenant Governor, may be enforced as of right by proceedings against the Crown in accordance with this Act without the grant of a fiat by the Lieutenant Governor [emphasis added]. Grounds of Appeal [22] The appellant raises three main grounds of appeal: i. the motion judge erred in finding that ss. 28 and 29 of the 1970 Act apply to claims initiated under the 1990 Act; ii. in the alternative, if ss. 28 and 29 of the 1970 Act apply to claims initiated under the 1990 Act, the motion judge erred in finding that the petition of right procedure prescribed by s. 29(1) of the 1970 Act applies to claims that had not been discovered as of September 1, 1963; and iii. if ss. 28 and 29 of the 1970 Act apply to claims initiated under the 1990 Act, the motion judge also erred in failing to find that s. 28 of the 1970 Act applies only to claims made under provisions of the Act that effected substantive changes in the law of Crown immunity. Analysis i) Did the motion judge err in finding that ss. 28 and 29 of the 1970 Act apply to claims initiated under the 1990 Act? [23] As already noted, on appeal, the appellant concedes that ss. 28 and 29 of the 1970 Act are likely in effect. However, she submits that they apply only to claims initiated under the 1970 Act and that the motion judge erred in finding that they apply to claims initiated under the 1990 Act. [24] In particular, the appellant contends that the period from September 1, 1963 until the enactment of the 1990 Act represents a transition period during which the legislature preserved Crown immunity from action for claims that existed on September 1, 1963. She submits that the legislature signalled its intention to abolish Crown immunity from action completely when it amended s. 3 of the 1980 Act by deleting the opening words of the section "[e]xcept as provided in section 29." She also contends that the words "under this Act" in s. 28 of the 1970 Act refer, obviously, to the 1970 Act. [25] The appellant therefore contends that, because the pre-1963 claims were initiated under the 1990 Act, the motion judge erred in finding that they are governed by ss. 28 and 29 of the 1970 Act. [26] I do not accept the appellant's submission that ss. 28 and 29 of the 1970 Act apply only to claims initiated under the 1970 Act for three reasons. [27] First, I conclude that, although not contained in either the 1980 Act or the 1990 Act, ss. 28 and 29 of the 1970 Act remain in effect and were not repealed by the enactment of the 1990 R.S.O.'s. In this respect, I adopt the motion judge's reasoning. [28] Second, I see no indication of a legislative intent to effect a substantive change in the law relating to Crown immunity when s. 3 of the 1980 Act was amended to remove "[e]xcept as provided in section 29." [29] Contrary to the submissions on appeal, s. 3 was amended by specific legislation, and not as part of the enactment of the 1990 R.S.O.'s. However, the amendment was made by the Courts of Justice Act, S.O. 1984, c. 11, described as "An Act to revise and consolidate the Law respecting the Organization, Operation and Proceedings of Courts of Justice in Ontario" and not by a specific bill addressing Crown immunity. [30] The Courts of Justice Act, 1984 repealed the Judicature Act, R.S.O. 1980, c. 223 and provided for the promulgation of the Rules of Civil Procedure. Subsection 203(1) of the Courts of Justice Act, 1984 amended s. 3 of the 1980 Act by striking out the section's opening words, "[e]xcept as provided in section 29". However, s. 29 does not appear in the 1980 Act. Accordingly, in my view, the deletion of the opening words of s. 3 reflects nothing more than a legislative intention that there be no facial inconsistency in the consolidated version of the Act. [31] Moreover, I agree with the motion judge's conclusion that ss. 28 and 29 of the 1970 Act can be read in harmony with the amended version of s. 3. It is customary to read legislative provisions so that all of the provisions in a statute have meaning. Because the 1970 Act is now repealed, on a practical level, s. 29 of the 1970 Act, which is listed in Schedule C of the 1990 R.S.O. would be rendered meaningless if s. 3 of the 1990 Act were read in the way the appellant suggests. [32] In addition, I note that s. 203 is found in Part X of the Courts of Justice Act, 1984. Part X is titled "Complementary Amendments to Statute Law" and includes a series of amendments to other acts made necessary by the repeal of the Judicature Act and the enactment of the new legislation. Subsections 203(2) and (3) of the Courts of Justice Act, 1984 contain other amendments to the 1980 Act. There is no reference in the legislation to an intention to effect a substantive change in the law relating to Crown immunity nor was that issue referred to in the legislative debates that occurred surrounding the enactment of the Courts of Justice Act, 1984. In my view, s. 3 of the 1980 Act was amended simply as part of a process of legislative housekeeping and I conclude that deleting the words "[e]xcept as provided in section 29" did not alter the meaning of s. 3 within the overall statutory scheme. [33] Third, I view the appellant's submission that ss. 28 and 29 of the 1970 Act apply only to claims initiated under the 1970 Act as amounting to a claim that there is more than one Proceedings Against the Crown Act. I reject that contention. [34] Although ss. 28 and 29 of the 1970 Act were not included in subsequent consolidations, I am not aware of any authority that limits their application to the 1970 Act (which the 1980 R.S.O.'s repealed). Moreover, in my view, s. 9 of the Statutes Revision Act, S.O. 1979, c. 109 and s. 8 of the Statutes Revision Act, S.O. 1989, c. 81, make it clear that a reference to a repealed and consolidated act in an unconsolidated provision should be construed as a reference to the consolidated act. Section 9 of the Statutes Revision Act, 1979, provides as follows: Any reference in an unrepealed and unconsolidated Act … to an Act or enactment repealed and consolidated shall, after the Revised Statutes of Ontario, 1980 come into force, be held, as regards any subsequent transaction, matter or thing, to be a reference to the Act or enactment in the Revised Statutes of Ontario, 1980 having the same effect as such repealed and consolidated Act or enactment. Section 8 of the Statutes Revision Act, 1989 is to the same effect. [35] I conclude that there is one Proceedings Against the Crown Act, and that the words "under this Act" in s. 28 of the 1970 Act refer to that Act. (ii) Did the motions judge err in finding that the petition of right procedure prescribed by s. 29(1) of the 1970 Act applies to claims that had not been discovered as of September 1, 1963? [36] As an alternative position, the appellant contends that, even if ss. 28 and 29 of the 1970 Act apply generally to claims initiated under the 1990 Act, in the presenting circumstances, neither provision applies to the pre-1963 claims and she is therefore free to advance the pre-1963 claims by way of statement of claim under s. 3 of the 1990 Act. [37] In order to succeed in this alternative argument, the appellant must demonstrate that neither s. 28 nor s. 29 of the 1970 Act operates as a bar to her proceeding with the pre-1963 claims by way of statement of claim. [38] I reject the appellant's alternative argument and I conclude that both sections prevent the appellant from proceeding with the pre-1963 claims by way of statement of claim. [39] I will deal with s. 29(1) of the 1970 Act first because the appellant began with that section. [40] The appellant submits that, on a plain reading of s. 29(1) of the 1970 Act, the discoverability principle applies, and s. 29(1) does not apply to claims that were first discovered after September 1, 1963. As she pleaded that she did not discover the pre-1963 claims until recently, the appellant claims that s. 29(1) of the 1970 Act does not require that she proceed with the pre-1963 claims by way of petition of right. [41] The appellant relies on K.L.B. v. British Columbia[1], in which it was held that the discoverability principle applies to s. 17 of the Crown Proceeding Act[2]. Section 17 of the Crown Proceeding Act provides that notwithstanding its repeal, the Crown Procedure Act[3] applies to "cause[s] of action … that arose before August 1, 1974." However, applying the discoverability principle, the court held that the Crown Procedure Act does not apply to causes of action that were first discovered on or after August 1, 1974. [42] Relying on the definition of "claim" in Black's Law Dictionary[4], the appellant submits that it is the equivalent of "cause of action" and that s. 29(1) does not apply to claims that were first discovered after September 1, 1963. [43] I reject the appellant's submissions. Interpreting s. 29(1) of the 1970 Act in context, I conclude that "claim" in s. 29(1) refers back to s. 28, and that the existence of a claim is tied to the event creating the claim and not to its discovery. [44] I repeat ss. 28 and 29(1) of the 1970 Act for ease of reference. 28. No proceedings shall be brought against the Crown under this Act in respect of any act or omission, transaction, matter or thing occurring or existing before the 1st day of September, 1963. 29. (1) A claim against the Crown existing on the 1st day of September, 1963 that, if this Act had not been passed, might have been enforced by petition of right may be proceeded with by petition of right, subject to the grant of a fiat by the Lieutenant Governor as if this Act had not been passed. [45] In my view, ss. 28 and 29(1) are inter-related on their face. Section 28 prohibits proceedings for a particular class of claims. Section 29(1) preserves the petition of right procedure for a sub-class of the class of claims referred to in s. 28. [46] The class of claims prohibited by s. 28 is those "in respect of any act or omission, transaction, matter or thing occurring or existing before the 1st day of September, 1963". The sub-class of claims referred to in s. 29(1) is those "existing on the 1st day of September, 1963 that, if this Act had not been passed, might have been enforced by petition of right". [47] "[C]laim" in s. 29(1) accordingly refers to a sub-category of "act[s] or omission[s], transaction[s], matter[s] or thing[s] occurring or existing before the 1st day of September, 1963". Read in the context of s. 28, "act[s] or omission[s], transaction[s], matter[s] or thing[s] occurring or existing before the 1st day of September, 1963 relate to the event giving rise to the claim and not to its discovery. In my view, interpreted contextually, "claim" in s. 29(1) is inextricably linked to the event creating it, not to its discovery, and it is not the equivalent of "cause of action". I conclude that the discoverability principle does not apply to s. 29(1) of the 1970 Act and that s. 29(1) requires that the appellant proceed with the pre-1963 claims by way of petition of right. (iii) Did the motion judge err by failing to find that s. 28 of the 1970 Act applies only to claims made under provisions in the Act that effected substantive changes in the law of Crown immunity? [48] Turning to s. 28 of the 1970 Act, the appellant takes issue with the respondent's assertions that the pre-1963 claims are tort claims and that, had she discovered the pre-1963 claims prior to September 1, 1963, she could not have proceeded with them by way of petition of right. Moreover, the appellant claims that s. 28 of the 1970 Act was intended to prohibit only those claims that existed on September 1, 1963 that could not previously have been advanced by way of petition of right or by way of a common law exception to Crown immunity from action. Accordingly, assuming that s. 29(1) of the 1970 Act does not require that she proceed with the pre-1963 claims by way of petition of right, the appellant submits that she is entitled to advance them by way of statement of claim under s. 3 of the 1990 Act. [49] Put another way, the appellant contends that s. 29(1) of the 1970 Act and s. 3 of the 1990 Act are procedural provisions, in the sense that they address the mechanism for bringing a claim against the Crown rather than creating entitlement. She submits that s. 28 of the 1970 Act was not intended as a bar to claims authorized by sections of the Act that are merely procedural; rather, it was intended as a substantive bar, designed to prohibit claims that are authorized by sections of the Act that effect a substantive change in the law of Crown immunity. [50] I reject the appellant's submissions. [51] I repeat s. 28 of the 1970 Act for ease of reference: 28. No proceedings shall be brought against the Crown under this Act in respect of any act or omission, transaction, matter or thing occurring or existing before the 1st day of September, 1963. [52] In my view, on a plain reading of s. 28, it applies to all proceedings initiated under the Proceedings Against the Crown Act. I see no basis for interpreting it as applying only to these sections of the Act that provided authority, for the first time, for a particular class of claims to proceed against the Crown. The words "[n]o proceedings" are clear and all encompassing. The interpretation suggested by the appellant would require reading additional words into the section. [53] Moreover, even if there were a basis for interpreting s. 28 as the appellant suggests, I do not agree that s. 3 is merely procedural. [54] I repeat ss. 3 of the 1990 Act for ease of reference: 3. A claim against the Crown that, if this Act had not been passed, might be enforced by petition of right, subject to the grant of a fiat by the Lieutenant Governor, may be enforced as of right by a proceeding against the Crown in accordance with this Act without the grant of a fiat by the Lieutenant Governor. [55] Section 3 was first enacted in the Proceedings Against the Crown Act, 1962-63. Prior to September 1, 1963, subject to rare exceptions, the Crown was immune from action in the courts. The only mechanism for claiming damages was by petition of right, which required a fiat from the Lieutenant Governor. Although fiats authorizing a petition of right may have been available routinely for certain types of claims, s. 3 effected more than a change in procedure. It established a substantive entitlement to bring an action in the courts against the Crown without a grant of permission. [56] In summary, I see no basis for interpreting s. 28 as suggested by the appellant. [57] In light of the conclusions I have reached, it is unnecessary that I deal with the issue of whether the appellant could have availed herself of the petition of right procedure had she discovered the pre-1963 claims prior to September 1, 1963. However, for the sake of completeness, I note that, on appeal, without conceding that a fiat should or will issue, the respondent acknowledged that it was open to the respondent to apply for a petition of right. Disposition [58] For the reasons given, I would dismiss the appeal. If the respondent is seeking costs, I would permit counsel to file submissions on costs within 10 days following the release of these reasons and I would permit the appellant to respond within 10 days thereafter. RELEASED: August 20, 2003 "RRM" "Janet Simmons J.A." "I agree R.R. McMurtry C.J.O." "I agree Dennis O'Connor A.C.J.O." [1] B.(K.L.) v. British Columbia [1996] B.C.J. No. 3036 (Q.L.) aff’d. (1999), 172 D.L.R. (4th), (B.C.C.A.), leave to appeal to S.C.C. dismissed, [1999] S.C.C.A. No. 259. [2] R.S.B.C. 1979, c. 86. [3] R.S.B.C. 1960, c. 89. [4] Black's Law Dictionary, 7th ed.,