Lochner v. Toronto Police Services Board, 2015 ONCA 626

Lochner v. Toronto Police Services Board et al.

[Indexed as: Lochner v. Toronto Police Services Board]

Ontario Reports

Court of Appeal for Ontario,

Gillese, Pepall and Lauwers JJ.A.

September 17, 2015

128 O.R. (3d) 318 | 2015 ONCA 626

Case Summary

Limitations — Discoverability — Plaintiff commencing action against police officer in January 2012 alleging that defendant disclosed his criminal record to his employer and that disclosure caused his employer to terminate his employment — Plaintiff acknowledging that he was aware in November 2009 that defendant had disclosed his criminal record to his employer — Two-year limitation period starting to run at that time — Fact that plaintiff did not know whether defendant was liable for disclosure not preventing limitation period from running. [page319]

The plaintiff commenced an action in January 2012 alleging that the defendant police officer disclosed his criminal record to his employer and that disclosure caused his employer to terminate his employment. The plaintiff acknowledged that he was aware in November 2009 that the defendant had disclosed his criminal record to his employer, but argued that he did not discover his claim at that point because the defendants never admitted that the disclosure was wrongful. The motion judge granted the defendants' motion for summary judgment dismissing the action as statute-barred. The plaintiff appealed.

Held, the appeal should be dismissed.

The two-year limitation period started to run no later than November 2009. The fact that the plaintiff did not know whether the defendants were culpable or liable for the disclosure did not prevent the limitation period from running. The action was statute-barred.

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], s. 5(1)(a)

APPEAL from the summary judgment of Spence J. of the Superior Court of Justice dated February 12, 2015 dismissing an action.

Silvano Lochner, acting in person.

Robert L. Love and Damian Hornich, for respondents.

1Endorsement BY THE COURT: -- On January 30, 2012, Mr. Lochner issued a statement of claim and began this action. In it, he alleges that Det. Will disclosed his criminal record to his employer and that disclosure caused his employer to terminate his employment. At para. 26 of his amended statement of claim, Mr. Lochner acknowledges that on November 16, 2009, he gave a copy of a memorandum dated February 14, 2008 (the "memorandum") to the Information and Privacy Commissioner. The memorandum summarized what had taken place in a meeting between representatives of Mr. Lochner's former employer and Det. Will. The memorandum indicated that Det. Will had disclosed Mr. Lochner's criminal convictions to his employer.

2The defendants in this action moved for summary judgment. By judgment dated February 12, 2015, the motion judge granted the motion. He found that Mr. Lochner learned by November 16, 2009, at the latest, that he had a claim against Det. Will and, therefore, Mr. Lochner's claim was out of time because it had not been brought within the two-year limitation period prescribed by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

3Mr. Lochner appeals. He recognizes that in his pleadings he admits having had a copy of the memorandum but submits that he did not discover his claim, for the purposes of the limitation period, because the defendants have never acknowledged that disclosure of his criminal record to his employer [page320] was wrongful. He contends that without knowledge of the defendants' liability or culpability, he did not know that he had a claim against Det. Will, for the purposes of the running of the limitation period.

4We do not accept this submission.

5Section 5(1)(a) of the Limitations Act, 2002 reads 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,

(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[.]

6Mr. Lochner is the person with the claim. He knew, when his employment was terminated, that injury, loss or damage had occurred. He also knew, no later than November 16, 2009, that Det. Will had disclosed his criminal record to his employer. It was the act of disclosing his criminal record to his employer which he alleges caused or contributed to his injury, loss or damage. Thus, no later than November 16, 2009, the two-year limitation period began to run. Accordingly, the limitation period expired no later than two years following November 16, 2009. Mr. Lochner commenced this action on January 30, 2012, more than two years after November 16, 2009. Therefore, the action is out of time and there is no genuine issue requiring a trial.

7The fact that Mr. Lochner does not know whether the defendants are culpable or liable for the disclosure does not prevent the limitation period from running. Knowledge of liability on the part of the injured person is not part of discoverability for the purposes of the running of the limitation period. It is the lawsuit itself which is the process by which liability for an act is determined.

8For these reasons, the appeal is dismissed. If costs are sought, the respondents shall file written submissions within ten days of the date of release of this endorsement and the appellant shall file any response no later than 15 days after the date of release of this endorsement. The written submissions shall not exceed two double-spaced, typewritten pages in length.