Efthymiadis v. G4S et al., 2017 ONSC 7097
CITATION: Efthymiadis v. G4S et al., 2017 ONSC 7097
DIVISIONAL COURT FILE NO.: 54/16
DATE: 20171128
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
J. Henderson, H. Pierce, J. Fregeau JJ.
BETWEEN:
George Efthymiadis and Elizabeth Efthymiadis Appellants
– and –
G4S Secure Solutions (Canada) Ltd., Tina Baldwin, Randy Smith, London Police Service Board, Former Police Chief Brad Duncan, Constable Darrin Brown, Constable Monica Loureiro, Minto Properties Limited, Jan Hetherington Respondents
Self-represented
Amanda Shaw, for the respondents
HEARD: November 27, 2017
J. HENDERSON J.
[1] This is an appeal brought by the plaintiffs in this proceeding from the endorsement of Justice Rady, released November 1, 2016 whereby the motions judge dismissed the plaintiffs’ claim against the defendant, Former Police Chief Brad Duncan, pursuant to rule 21.
[2] The appellants raise numerous grounds of appeal and the appellants also ask for leave to appeal the costs decision dated December 20, 2016.
[3] Regarding the request for leave to appeal the costs decision, we note that the Ontario Court of Appeal has held that the awarding and fixing of costs is highly discretionary and is afforded significant deference. Therefore, leave to appeal a costs order is granted sparingly.
[4] In the present case, the motions judge referenced the costs submissions of both parties, determined that substantial indemnity costs were not appropriate and fixed an amount of costs on a partial indemnity basis. We find there are no grounds on which an appellate court could find an error by the motions judge. Therefore leave to appeal the costs decision is denied.
[5] Regarding the grounds for the appeal, the most significant is the limitation period issue. In her endorsement, the motions judge found that the appellants’ claim against Mr. Duncan was commenced more than two years after the appellants knew or ought to have known the facts on which they based their claim and, therefore, the motions judge found that the appellants’ claim against Mr. Duncan is barred by reason of the expiry of the limitation period.
[6] We accept that in the absence of a factual dispute, and if it is pleaded defensively, rule 21 is an appropriate mechanism to determine a limitation issue.
[7] At para. 23 of the endorsement, the motions judge wrote:
The essence of the claim arises from the December 2012 investigation and the preparation of certain reports, all of which were disclosed to the plaintiffs on October 23, 2013. The notice of action was issued within two years of that date, but did not name Mr. Duncan. The first time he is named is in the amended amended claim dated March 29, 2016, more than three years after the events giving rise to the lawsuit.
[8] There is no factual dispute that Mr. Duncan was not a party to this proceeding until he was named as a defendant in the amended amended statement of claim, dated March 29, 2016.
[9] Further, there is no factual dispute that the police officers’ notes and records that had been redacted were released to the appellants on October 23, 2013.
[10] It is the appellants’ position as set out in the pleadings that the harm to them arises out of the police notes and records and the manner in which they were used or disclosed.
[11] The motions judge concluded that the limitation period started to run on October 23, 2013 as the appellants had all of the information on which to base their claim against Mr. Duncan upon receiving the redacted notes and records on that date.
[12] The appellants contend that the limitation period started to run on May 23, 2014, the date on which the appellants received the same police notes and records they had previously received, but with fewer redactions. There is also no factual dispute that this further disclosure was made.
[13] As to the standard of review, we find that the application of the facts to the law regarding a limitation period is a question of mixed fact and law. Therefore, the standard of review is palpable and overriding error.
[14] The motions judge found that the appellants knew or, with the exercise of reasonable diligence, ought to have known the facts on which they based their claim as of October 23, 2013, when the appellants received the redacted police notes and records.
[15] Having reviewed those notes and records, we find that the basis for the appellants’ claim against Mr. Duncan is set out in the un-redacted portion of those notes and records disclosed on October 23, 2013.
[16] Therefore, we find no palpable and overriding error in the decision of the motions judge that the limitation period against Mr. Duncan had expired.
[17] Accordingly, we will not set aside the decision of the motions judge with respect to the limitation period issue.
[18] Further, given our decision regarding the limitation period, the appellants’ claim against Mr. Duncan cannot proceed. There is no need to address the other grounds of the appeal. The appeal is dismissed.
“Justice J. Henderson” J. Henderson J.
I agree
“Justice J. Pierce”
H. Pierce J.
I agree
“Justice J. Fregeau”
J. Fregeau J.
Date of Oral Reasons for Judgment: November 27, 2017
Date of Release: November 28, 2017
CITATION: Efthymiadis v. G4S et al., 2017 ONSC 7097
DIVISIONAL COURT FILE NO.: 54/16
DATE: 20171128
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
J. Henderson, H. Pierce, J. Fregeau JJ.
BETWEEN:
George Efthymiadis and Elizabeth Efthymiadis Appellants
– and –
G4S Secure Solutions (Canada) Ltd., Tina Baldwin, Randy Smith, London Police Service Board, Former Police Chief Brad Duncan, Constable Darrin Brown, Constable Monica Loureiro, Minto Properties Limited, Jan Hetherington Respondents
ORAL REASONS FOR JUDGMENT
J. Henderson J.
Date of Oral Reasons for Judgment: November 27, 2017
Date of Release: November 28, 2017