Kendal McKinney

The appellants appealed a motion judge's refusal to grant leave to amend their statement of claim to allege malice and substitute a named defendant.

The underlying action against the police defendants had previously been dismissed by another judge, and that dismissal was confirmed by the Court of Appeal.

The Court of Appeal held that it was now too late to challenge the validity of the original order dismissing the action.

The appeal was dismissed with costs.

The appellants sued the respondent police officers and municipality for negligent and malicious investigation after criminal charges against the appellant were dropped.

The motion judge dismissed the action as statute-barred under the six-month limitation period in the Public Authorities Protection Act.

On appeal, the Court of Appeal held that while the cause of action arose when the charges were dropped rather than upon arrest, the claim was still issued one day late.

The Court further held that the 'special circumstances' doctrine does not permit the commencement of a new action after a limitation period expires, and that the respondents did not require leave under Rule 2.02 to bring their motion.