Alexis v. Darnley et al.; Heiber, Respondent/Intervenor

[Indexed as: Alexis v. Darnley]

100 O.R. (3d) 232

2009 ONCA 847

Court of Appeal for Ontario,

Moldaver, R.P. Armstrong and Rouleau JJ.A.

December 2, 2009

Limitations -- Charter of Rights and Freedoms -- Limitation periods of general application applying to action brought as individual for personal remedy under s. 24(1) of Charter -- Motion judge not erring in disposing of issue of applicability of limitation periods to s. 24(1) claims [page233] on motion for summary judgment -- Canadian Charter of Rights and Freedoms, s. 24(1).

Limitations -- Discoverability -- Plaintiff bringing action for damages for unlawful detention more than two years after being admitted as involuntary patient for psychiatric assessment -- Plaintiff given Form 42 at time of her assessment -- Form 42 setting out name of physician who requested assessment -- Plaintiff consulting counsel shortly after her assessment and advised that she had good case -- Motion judge not erring in finding that limitation period began to run shortly after assessment as all four elements of discoverability listed in s. 5(1)(a) of Limitations Act existed at that time -- No genuine issue for trial existing with respect to discoverability -- Motion judge properly granting defendants' motion to strike claim -- Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 5(1)(a).

In October 2005, the plaintiff was admitted to hospital as an involuntary patient for a psychiatric assessment pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. At the time, she was given a Form 42 which informed her of the reason for her detention, the physician who had requested it and her right to retain counsel. She was released the following day. She consulted counsel shortly after her release and was advised that she had a strong case. She commenced an action in March 2008 alleging that she was unlawfully detained by the defendants. The defendants moved for summary judgment dismissing the claim and the plaintiff moved to add as a defendant the doctor who had requested her psychiatric evaluation. The plaintiff's motion was dismissed and the defendants' motion was granted. The plaintiff appealed.

Held, the appeal should be dismissed.

The motion judge correctly determined that the two-year limitation period began to run on or about October 7, 2005. All four elements of discoverability listed in s. 5(1)(a) of the Limitations Act, 2002 existed at that time. Assuming, without deciding, that legal advice is required to fulfill the requirement in s. 5(1)(a)(iv) of knowledge that a proceeding is an appropriate means to seek a remedy, the plaintiff consulted counsel in December 2005, more than two years before the claim was issued. As a result of being given the Form 42, the plaintiff knew, or by due diligence could have ascertained, the name of the physician who requested her assessment. Discoverability was not a genuine issue for trial.

Limitation periods of general application apply to claims for personal remedies made by individuals under s. 24(1) of the Canadian Charter of Rights and Freedoms. The issue of the applicability of limitation periods to s. 24(1) claims is sufficiently settled that the motion judge did not err in disposing of the issue on a motion for summary judgment.

APPEAL from the judgment of O'Marra J., [2009] O.J. No. 376 (S.C.J.) dismissing the action.

Cases referred to

Prete v. Ontario (1993), 1993 3386 (ON CA), 16 O.R. (3d) 161, [1993] O.J. No. 2794, 110 D.L.R. (4th) 94, 68 O.A.C. 1, 86 C.C.C. (3d) 442, 18 C.C.L.T. (2d) 54, 18 C.R.R. (2d) 291, 45 A.C.W.S. (3d) 235, 22 W.C.B. (2d) 157 (C.A.); Ravndahl v. Saskatchewan, [2009] 1 S.C.R. 181, [2009] S.C.J. No. 7, 2009 SCC 7, 183 C.R.R. (2d) 1, 65 C.P.C. (6th) 1, 301 D.L.R. (4th) 513, [2009] 2 W.W.R. 385, 320 Sask. R. 305, EYB 2009-153531, J.E. 2009-205, 383 N.R. 247, affg [2007] S.J. No. 282, 2007 SKCA 66, [2007] 10 W.W.R. 606, 299 Sask. R. 162, 43 C.P.C. (6th) 201, 159 A.C.W.S. (3d) 746, consd

Other cases referred to

Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161, [1998] O.J. No. 459, 156 D.L.R. (4th) 222, 107 O.A.C. 115, 17 C.P.C. (4th) 219, 77 A.C.W.S. (3d) 520 (C.A.); [page234] Garry v. Canada, [2007] A.J. No. 761, 2007 ABCA 234, 429 A.R. 292, 160 A.C.W.S. (3d) 402 [Leave to appeal refused [2008] 1 S.C.R. viii, [2007] S.C.C.A. No. 546]; Jourdain v. Ontario (2008), 2008 35684 (ON SC), 91 O.R. (3d) 506, [2008] O.J. No. 2788, 169 A.C.W.S. (3d) 309 (S.C.J.); Kingstreet Investments Ltd. v. New Brunswick (Finance), [2007] 1 S.C.R. 3, [2007] S.C.J. No. 1, 2007 SCC 1, 276 D.L.R. (4th) 342, 355 N.R. 336, J.E. 2007-115, 309 N.B.R. (2d) 255, 51 Admin. L.R. (4th) 184, 25 B.L.R. (4th) 1, 2007 D.T.C. 5029, 2007 G.T.C. 1399, 152 A.C.W.S. (3d) 1151, EYB 2006-112095; Romano v. D'Onofrio (2005), 2005 43288 (ON CA), 77 O.R. (3d) 583, [2005] O.J. No. 4969, 262 D.L.R. (4th) 181, 143 A.C.W.S. (3d) 1141 (C.A.); St-Onge v. Canada, 1999 8991 (FC), [1999] F.C.J. No. 1842, 178 F.T.R. 104, 96 A.C.W.S. (3d) 146 (T.D.) [Leave to appeal to S.C.C. refused [2002] 3 S.C.R. xi, [2001] S.C.C.A. No. 638]; Zadworny v. Manitoba (Attorney General), [2007] M.J. No. 413, 2007 MBCA 142, 161 A.C.W.S. (3d) 892

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 24, (1) Constitution Act, 1867, R.S.C. 1985, App. II, No. 5, s. 52 Constitution Act, 1982, s. 35 Limitations Act 2002, S.O. 2002, c. 24, Sch. B, ss. 5, (1)(a), (iv), (b) Mental Health Act, R.S.O. 1990, c. M.7, ss. 15(1), 38.1 Public Authorities Protection Act, R.S.O. 1980, c. 406, s. 11(1)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.04(4)

Osborne G. Barnwell, for appellant. Anna Marrison, for respondents/defendants. Stuart Zacharias, for respondent/intervenor.

The judgment of the court was delivered by

1ROULEAU J.A.: -- The appellant, Gladys Alexis, appeals the motion judge's order dismissing her motion to add the intervenor, Dr. Michael Heiber, as a defendant and granting summary judgment dismissing her action against the respondents P.C. Darnley and P.C. McParland, the Toronto Police Services Board, Scarborough General Hospital and Jane Doe, a nurse at the hospital. The appellant argues that the motion judge misinterpreted the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B ("Limitations Act") and erred in applying it to an action brought as an individual for personal remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms.

Facts

2On October 5, 2005, the appellant sent an e-mail to the office of the Premier of Ontario in which she appeared to be [page235] contemplating suicide. The police were notified and the next day the appellant was escorted by the respondent police officers to the Scarborough General Hospital, where she was admitted as an involuntary patient for a psychiatric assessment pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. In conformity with the Act, she was given a Form 42 which informed her of the reason for her detention, the physician who had requested it and her right to retain counsel. The next day, she was assessed by a physician, found not to be a danger to herself and released.

3Shortly after her release, the appellant became upset with the manner in which she had been treated by the police and hospital personnel. Over the following weeks, she met several times with counsel who advised her that she had a strong case. In July 2007, she terminated her relationship with counsel and retained her present counsel. On March 12, 2008, the appellant issued her claim alleging that she was unlawfully detained by the respondents under the Mental Health Act. The respondents then moved to strike the claim and the appellant sought to add Dr. Heiber as a defendant. The motion judge dismissed the appellant's motion and dismissed the claim in its entirety. He found that the appellant had actual knowledge of the material facts on October 7, 2005, and that the claim was therefore issued outside of the applicable limitation period in the Limitations Act, and was statute barred.

Issues

4The appellant raises two principal grounds for the appeal: (1) the motion judge misinterpreted s. 5 of the Limitations Act; and (2) the motion judge should have left the issue of whether the Limitations Act applies to claims made pursuant to s. 24(1) of the Charter to be dealt with at trial.

Analysis

(1) The discoverability issue

5With respect to the first issue, the appellant argues that the motion judge misinterpreted and misapplied s. 5 of the Limitations Act. Section 5 reads in relevant part as follows:

5(1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, [page236] (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

6The appellant does not seriously dispute that, with respect to the respondents, the first three elements of discoverability listed in s. 5(1)(a) were known to her on October 7, 2005. She submits, however, that until she received her legal aid certificate in June 2006, less than two years before the claim was issued, the fourth element for discoverability was not satisfied. With respect to the intervenor, Dr. Heiber, she argues that the claim was not discoverable under s. 5(1)(b) and the limitation period did not begin to run until her counsel was advised in June 2007 that Dr. Heiber was the physician who had requested her psychiatric evaluation.

7I disagree. In my view, the motion judge correctly determined that the limitation period began to run on or about October 7, 2005.

(a) Knowledge that a proceeding was an appropriate means to seek a remedy

8With respect to the claim against the police and hospital, the appellant argues that there was a triable issue as to when she knew or ought reasonably to have known that a proceeding would be the appropriate means to seek to remedy her injury, loss or damage, as provided for by s. 5(1)(a)(iv). In the appellant's submission, until she had received clear legal advice, this element of the discoverability criteria was not satisfied.

9I would not give effect to this submission. Assuming, without deciding, that legal advice was required to fulfil this requirement, I note that the appellant had obtained legal advice in December 2005 and re-attended the lawyer's office in February 2006 and several times thereafter. This advice was received in excess of two years before the claim was issued. The appellant's evidence is that her counsel consistently expressed his opinion that she had a good case. The fact that counsel advised her that he would have to review the various hospital and police [page237] records before being sure does not, in my view, delay the start of the running of the limitation period.

(b) Knowledge of the physician's identity

10The substance of the appellant's claim is that she was illegally detained in the psychiatric unit of the Scarborough General Hospital. It is undisputed that on October 7, the appellant was given a Form 42. Pursuant to s. 38.1 of the Mental Health Act, this form is given to patients who are the subject of an application for psychiatric assessment and advises them of the basis for their detention. Section 15(1) of the Mental Health Act provides that the application for psychiatric assessment is made by a physician after examination of the person. The physician's name and the fact that he had examined the appellant on October 6, 2008 were set out on the form.

11As a result of being provided with the Form 42, the appellant knew or by due diligence could have ascertained the name of the physician who completed the form. The fact that Dr. Heiber's name as the physician who completed the form is difficult to read is no basis for suggesting that the appellant did not know the identity of the physician or could not have discovered it with reasonable diligence. All that was required was for the appellant to re-attend at the hospital to confirm the physician's name.

(c) Disposition of discoverability on motions for summary judgment

12Because discoverability is a factual analysis, it will often be inappropriate to dispose of the issue on a motion for summary judgment. This court has thus held that such motions should not be granted unless the material facts are not in dispute: Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161, [1998] O.J. No. 459 (C.A.), at paras. 31-32. In the present case, the facts noted above and relied on by the motion judge were not in dispute. They clearly establish that, in excess of two years before the claim was issued, the appellant knew, or with reasonable diligence ought to have known, the injury, loss or damage suffered; the cause of the injury, loss or damage; the persons allegedly responsible; and, having regard to the nature of the injury, loss or damage, that a proceeding would be an appropriate means to seek to remedy the injury, loss or damage she allegedly suffered. Discoverability is thus not a genuine issue for trial and the motion judge correctly concluded that the claim was issued beyond the two-year limitation period set out in the Limitations Act. [page238]

(2) Application of Limitions Act to s. 24(1) claims for personal remedies

13Turning to the appellant's second ground, it is submitted that, until it is overruled, this court's 1993 decision in Prete v. Ontario (1993), 1993 3386 (ON CA), 16 O.R. (3d) 161, [1993] O.J. No. 2794 (C.A.) insulated claims made under s. 24 of the Charter from the Limitations Act. Further, the appellant submits that this issue should not have been disposed of on a motion for summary judgment as the question is not sufficiently settled: Romano v. D'Onofrio (2005), 2005 43288 (ON CA), 77 O.R. (3d) 583, [2005] O.J. No. 4969 (C.A.), at paras. 6-7.

(a) Scope of the Prete decision

14In Prete, this court found that the Crown could not rely on the six-month limitation period set out in s. 11(1) of the Public Authorities Protection Act, R.S.O. 1980, c. 406 to shield it from s. 24(1) Charter claims. In the appellant's view, the effect of this decision is that the new Limitations Act does not apply to her claim.

15I disagree. The Prete decision does contain language that could be read as suggesting that the question of whether a s. 24(1) claim is time-barred should be governed by the doctrine of laches and not by statutory limitation periods: para. 13. However, read in context, these comments express the court's preference for the laches approach over the limitation period set out in the Public Authorities Protection Act. They do not support the far broader proposition that s. 24(1) claims, brought by an individual and seeking personal remedies, cannot be subject to any statutory limitation period.

16As noted by the motion judge, Prete has been distinguished by courts of other jurisdictions on the basis that the six-month limitation period being addressed was an exception to the six-year limitation period of general application that was available only to the Crown. This more favourable treatment of the government by the government was, with respect to Charter claims, found to be unfair. Chief Justice Scott of the Manitoba Court of Appeal found in Zadworny v. Manitoba (Attorney General), [2007] M.J. No. 413, 2007 MBCA 142, at para. 13, that the court in Prete had proceeded on the basis that in an action where Charter relief is claimed "it does not behoove government to immunize itself in a unique way from the application of the Charter through a provision which benefits only the government itself". Similar conclusions have been adopted by courts in several other jurisdictions: St-Onge v. Canada, 1999 8991 (FC), [1999] F.C.J. No. 1842, 178 F.T.R. 104 (T.D.), leave to appeal to S.C.C. denied [2002] 3 S.C.R. xi, [2001] S.C.C.A. No. 638; [page239] Garry v. Canada, [2007] A.J. No. 761, 2007 ABCA 234, leave to appeal to S.C.C. denied [2008] 1 S.C.R. viii, [2007] S.C.C.A. No. 546; Jourdain v. Ontario (2008), 2008 35684 (ON SC), 91 O.R. (3d) 506, [2008] O.J. No. 2788 (S.C.J.); Ravndahl v. Saskatchewan, [2007] S.J. No. 282, 2007 SKCA 66.

17The appellant points out that the Ravndahl decision, raised by the respondents, has since been appealed to the Supreme Court and that the Supreme Court made no mention of the Saskatchewan Court of Appeal's treatment of Prete. In my view, the Supreme Court's reasons in Ravandahl ([2009] 1 S.C.R. 181, [2009] S.C.J. No. 7, 2009 SCC 7) are of no assistance to the appellant. Ravndahl involved what, in essence, was a s. 24(1) claim coupled with relief sought pursuant to s. 52 of the Constitution Act, 1867. At the Supreme Court, counsel for the appellant Ravndahl abandoned the argument made before us that limitation periods of general application do not apply to claims made under s. 24(1) of the Charter. At para. 17 of her reasons, McLachlin C.J.C. described counsel's decision as being consistent with the Supreme Court's earlier decision in Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3, [2007] S.C.J. No. 1. In my view, therefore, the Supreme Court's reasons clearly signal that limitation periods of general application will apply to claims made under s. 24(1) of the Charter that are "brought as an individual for personal remedy".

(b) Disposition of the issue on a motion for summary judgment

18Rule 20.04(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that pure questions of law can be disposed of on a motion for summary judgment. The appellant submits that the issues she has raised regarding the Prete decision have not been fully settled in the jurisprudence and should not have been disposed on a motion for summary judgment: Romano v. D'Onofrio.

19The issue then is whether the appellant's proposed interpretation of the Prete decision raises an issue that is unsettled or novel, such that it could not be disposed of on a motion for summary judgment. In my view, a full trial was not necessary to dispose of this issue. Although a very broad reading of the Prete decision would support the appellant's argument, the issue of the applicability of limitations periods to s. 24(1) claims is sufficiently settled that it was within the motion judge's discretion to read Prete as several other Canadian courts have -- as standing for the proposition that the Crown cannot insulate itself from s. 24(1) claims through uniquely short limitation periods. [page240]

20With the adoption of the Limitations Act, the law of Ontario relating to limitation periods has now been substantially altered from that under consideration in Prete. The new Act applies to everyone and the limitation provisions of the Public Authorities Protection Act have been repealed. As a result, public authorities in Ontario no longer benefit from a preferential position in relation to others and plaintiffs are no longer disadvantaged in bringing Charter claims against public authorities.

21A plain reading of the Limitations Act makes it apparent that, in adopting the new Limitations Act, the legislature intended that the two-year limitation would apply to claims brought as an individual for personal remedy under s. 24(1). Section 4 states that "Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered." The exclusions set out in the Act are listed in ss. 2 and 16. Among the exceptions is a class of constitutional claims. Section 2(1)(e) excludes claims based on aboriginal and treaty rights recognized and affirmed in s. 35 of the Constitution Act, 1982. There is however no exclusion for claims brought under s. 24(1) of the Charter, and certainly none such as the one brought by the appellant as an individual claim for a personal remedy. It is apparent in my view that, at a minimum, the Act was intended to apply to such claims. Nothing in the statute or in the legislative debates surrounding the adoption of the Act suggests otherwise.

22In conclusion, therefore, I agree with the motion judge that the Limitations Act applies to claims such as the one advanced by the appellant. No challenge to the constitutionality of the Limitations Act was brought and I do not accede to the appellant's submission that the Prete decision renders any statutory limitation period inapplicable to Charter claims brought as an individual for personal remedies until specifically overruled by this court. Once the Public Authorities Protection Act limitation was repealed and the new Limitations Act was adopted, Prete, in my view, was overtaken.

Disposition

23I would dismiss the appeal and would fix costs payable to each of the intervenor, the hospital and the police defendants at $2,500, inclusive of GST and disbursements, for a total award of $7,500.