Court File and Parties

CITATION: Louangrath v. Ottawa (Police Services Board), 2009 ONCA 411

DATE: 20090519

DOCKET: C49569

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Simmons JJ.A.

BETWEEN

Phouthone Louangrath

Plaintiff (Appellant)

and

Ottawa Police Services Board, Department of Public Works and Government Services Canada

Defendants (Respondents)

Bruce F. Simpson, for the plaintiff (appellant)

Jeremy Wright, for the defendants (respondents), Ottawa Police Services Board

Alexandre Kaufman, for the defendants (respondents), Department of Public Works and Government Services Canada

Heard and orally released: May 14, 2009

On appeal from the judgment of Justice G.T. Roccamo of the Superior Court of Justice dated August 29, 2008.

ENDORSEMENT

[1] The police seized the vehicle that is the subject of this action on the basis that it was the proceeds of crime. The police then obtained an appropriate detention order under s. 490(1)(a) of the Criminal Code on the basis that they would seek a forfeiture order in respect of the vehicle.

[2] The appellant who claims to be the owner of the vehicle and to be innocent of any criminal conduct, started a civil action to recover the vehicle. He also seeks damages based on the detention of the vehicle by the police. There is no allegation in the appellant’s claim of any police misconduct. Nor is there an allegation that the seizure was not authorized by the Criminal Code or that the continued detention of the vehicle was not authorized by the relevant provisions of the Criminal Code.

[3] We agree with the motion judge that in respect of the claim as framed, the Criminal Code provisions providing for innocent third party remedies in respect of property seized and held under the relevant provisions of the Criminal Code constitute a complete code. In allowing the motion, the motion judge said:

To permit the Plaintiff to carry on parallel proceeding for recovery of his property, for damages and for legal costs would leave open the possibility that in circumstances such as those before me, a court could arrive at a conclusion at variance with the court’s power to order forfeiture under Part XII.2, and could thereby undermine the important legislative object behind the statutory scheme set out in Part XII.2 of the Criminal Code. I conclude that the Code is a comprehensive Code, even if it does not provide for the payment of damages and legal costs to the Plaintiff.

[4] We agree with the motion judge’s comments and analysis in the context of the claim as pleaded in the Statement of Claim. The motion judge quite properly did not address the viability of a claim based on actionable police misconduct. That was not the claim put forward by the appellant. The question of whether a claim for damages could be brought based on actionable police misconduct in the context of a seizure of property and an application for forfeiture must await a case in which that issue arises.

[5] The appeal is dismissed. The parties agree that each of the successful respondents should have costs in the amount of $3,000, inclusive of disbursements and GST.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“Janet Simmons J.A.”