Court File and Parties

COURT FILE NO.: 1455-16 DATE: 2017/04/24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Winmill, Plaintiff AND: Woodstock Police Services Board, Police Constable Dopf, Police Constable Campbell, Police Constable John Doe(s) and Police Constable Jane Doe(s), Defendants

BEFORE: Justice A. K. Mitchell

COUNSEL: K. Egan, counsel for the plaintiff D. Thompson, counsel for the defendants

HEARD: April 3, 2017

Endorsement

Overview

[1] The defendants bring this motion pursuant to r. 21.01(1) of the Rules of Civil Procedure seeking an order dismissing the plaintiff’s claim in battery on the basis it is statute-barred.

Background

[2] This action arises out of events which took place on June 1, 2014. At approximately 8:50 pm on that date, the police were summoned to the plaintiff’s residence as a result of an altercation ongoing between the plaintiff and his son. The police attended and ultimately arrested the plaintiff later that same evening. The plaintiff alleges that, during his arrest, police used excessive force causing him injuries thereby committing the tort of battery. Following his arrest for assaulting a police officer and resisting arrest, the plaintiff was transported to the police station where he was processed and released shortly after midnight on June 2, 2014.

[3] On February 17, 2016, the plaintiff was found not guilty of the offences arising out of the events of June 1, 2014.

[4] A notice of action was issued on June 2, 2016 claiming damages arising from the defendants’ alleged negligent investigation and assault including head trauma and other bodily injuries. The date of the incident was not pleaded in the notice of action.

[5] A statement of claim was issued on June 22, 2016 wherein the plaintiff seeks $1,500,000 on account of general, special, punitive, aggravated, and exemplary damages.

[6] In their statement of defence served September 6, 2016, the defendants deny the allegations of excessive force and plead the action based on the tort of battery is statute-barred because the plaintiff failed to bring the action within two years of the police conduct underlying the plaintiff’s claim of assault.

[7] No reply was filed by the plaintiff in response to the limitation period defence raised by the defendants in their pleading.

[8] By motion record dated September 30, 2016, the defendants sought to have the statement of claim struck pursuant to r. 21.01 of the Rules of Civil Procedure on the basis the claim based in battery was statute-barred and the claim based in negligent investigation, as pleaded, disclosed no reasonable cause of action.

[9] In response, the plaintiff brought a motion to amend its claim to particularize its claim for negligent investigation. The statement of claim insofar as it referred to the tort of battery remained unchanged. The defendants consented to the proposed amendments. The defendants’ r. 21.01 motion proceeded on the sole issue of whether the plaintiff’s claim in battery is statute-barred.

[10] At the outset of the motion, plaintiff’s counsel conceded that the clinical notes and records of Mr. Winmill’s family doctors and the clinical notes and records of his counsellor, Laurie Ponsford-Hill, were not properly before the court as evidence of a medical condition or diagnosis rather were relied upon for the limited purpose of establishing Mr. Winmill sought medical treatment and psychological counselling following the incident on June 1, 2014.

Analysis

Test Under Rule 21.01

[11] Pursuant to r. 21.01(1) of the Rules of Civil Procedure, a defendant to an action may move for a determination of a question of law raised by a pleading where the determination of the question may dispose of all or part of the action. The question here is whether the claim in battery is statute-barred as the defendants allege in their statement of defence.

Limitations Act, 2002

[12] Section 4 of the Limitations Act, 2002 (the “Act”), provides that a claim is statute-barred if an action is not commenced within two years following the date on which it is discovered.

[13] When a claim is discovered is determined after applying the criteria set forth in s. 5 of the Act, which states:

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; 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). (emphasis added)

[14] Pursuant to s. 5(2) of the Act, in these circumstances the onus rests with the plaintiff to establish the action founded in battery is not statute-barred. Section 5(2) provides:

A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[15] Despite his onus to prove the claim was not discoverable on June 1, 2014, the plaintiff did not serve a reply containing the particulars of his abilities and circumstances preventing him from discovering the claim on June 1, 2014. Moreover, the plaintiff did not plead any particulars that he was not in a position to know a proceeding was an appropriate means to remedy the harm done to him until after June 1, 2014.

[16] There is no cross-motion of the plaintiff seeking to strike the statement of defence insofar as it pleads the action is statute-barred. Similarly, there is no summary judgment motion before me with regard to the limitation period. However, I am prepared to consider the issue taking into consideration the evidence of the plaintiff provided in response to this motion despite the state of the pleadings. In doing so, I have treated the motion more akin to a motion for summary judgment than a Rule 21 motion.

The Evidence

[17] It is undisputed that any assaultive conduct of the police towards Mr. Winmill occurred at the plaintiff’s residence on June 1, 2014. There is no suggestion any assaultive conduct of police occurred or “spilled over” into the early morning hours of June 2, 2014 while Mr. Winmill was at the police station. Although, the plaintiff argues the “transaction” continued beyond June 1, 2014.

[18] On cross-examination the following evidence was given by the plaintiff:

• he believed he had been injured by Woodstock police right from the time he was escorted from the house to the Woodstock police station on June 1, 2014 to the present time;
• he was able to retain and instruct a lawyer regarding the conduct of his defence in the criminal proceedings from sometime shortly after the charges were laid in June 2014;
• the criminal proceedings were never delayed because of his health issues;
• he wanted to wait until after the criminal proceedings had been completed before suing Woodstock Police Service or taking any action against them;
• he first met with his lawyer about civil proceedings in April 2016;
• he knew he could sue the police before he went to get a lawyer; and
• he has no explanation for why proceedings were not commenced before June 2, 2016 except that he “didn’t know there was a deadline”.

[19] It is undisputed the plaintiff was aware of his injuries and was aware he had suffered damages on June 1, 2014. Likewise, the plaintiff was aware that members of the Woodstock Police Services had caused his injuries.

Plaintiff’s Position

[20] The plaintiff argues there are 3 reasons the motion should fail:

(i) the limitation period does not expire until February 17, 2018; (ii) the plaintiff was unable to commence the action until June 2, 2014 following his release from custody; and (iii) the plaintiff was incapable of commencing an action while suffering from depression and other psychological injuries.

1. Discoverability

[21] The plaintiff argues the same discoverability principles that apply to claims founded in negligent investigation apply to other claims stemming from the same police conduct. With respect to a claim based on the tort of negligent investigation (or malicious prosecution), the case law establishes that the limitation period does not begin to run until the date of acquittal. The policy underlying this discoverability principle was articulated by MacPherson J. in Chimienti et al. v. The Corporation of the City of Windsor, 2011 ONCA 72 at para. 15 as follows:

I also have some sympathy for the appellant’s policy arguments. In my view, it is unrealistic to ask a person already preoccupied with defending a criminal charge to take on the additional effort and cost of mounting a civil action, particularly given the likely unfounded but understandable concern that, in doing so, he might antagonize the police and Crown counsel. Furthermore, there is something of a logical inconsistency in asking a civil court to rule on the propriety of a criminal prosecution before the criminal court has had the opportunity to assess the merits of the underlying charge.

[22] The comments of the court in Chimienti were made in the context of when it is appropriate to commence a claim against police for negligent and malicious investigation - claims based primarily on the alleged negligence of police. Citing McLachlin C.J.C. in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at paras. 96-98, MacPherson J. adopted her reasoning that “a cause of action in negligence arises not when the negligent act is committed but rather when the harmful consequences of the negligence result.”

[23] It is also important to remember the distinction between claims for negligent investigation and malicious prosecution and other types of claims against police. The former have as a common element the requirement that the criminal proceedings on which the torts are based must have terminated in favour of the plaintiff. See Romanic v. Johnson et al., 2013 ONCA 23 at para. 6.

[24] Here the claim in question is based on the tort of battery. The tort of battery is not based in negligence (or a failure to have done something) rather is based on the use of excessive force (an intentional act). The harm was immediate and the harmful consequences of the excessive force alleged to have been used by police were known to Mr. Winmill on June 1, 2014. It matters not that the injuries then later became more extensive and manifested themselves in psychological and emotional injury.

[25] It is clear from the evidence the plaintiff had knowledge that litigation was available to him as a remedy for the damages he had suffered at the hands of the police. Whether and to what extent he may have been found criminally responsible for the offences with which he had been charged was in no way determinative of whether or not he had been the subject of excessive force and assaulted by police. The assault is a separate and distinct cause of action from the negligent investigation cause of action. As was recognized in West v. Her Majesty the Queen in Right of Ontario, 2015 ONCA 147, where the two claims protect different legal interests, they cannot be joined by the same limitation period. In West, the court noted the difference between a claim in negligent investigation and a claim based on a breach of privacy and upheld the finding of the lower court dismissing the negligent investigation claim as being statute-barred and allowing the breach of privacy claim to proceed.

[26] I find it curious that despite the criminal proceedings being concluded some 3 and one-half months prior to the issuance of a notice of action, Mr. Winmill elected to issue a notice of action on June 2, 2016 – two years and one day after the alleged police assault. Surely, if the plaintiff had believed the clock did not begin to run on his claim in battery until February 17, 2016, his notice of action would have followed closer in time to two years out from that date, namely, February 17, 2018.

[27] The plaintiff admitted he knew litigation was an option and by extension he is therefore deemed to know it was appropriate to sue the Woodstock Police Service for redress of his injuries suffered on June 1, 2014. Contrast this with the circumstances in Brown v. Baum, 2016 ONCA 325, where the court agreed that the limitation period commenced on the date of the last surgery performed by the defendant doctor in an attempt to correct the complications and damages arising from the original surgery. Similar circumstances do not exist here. The police conduct comprising the alleged assaultive behaviour began and ended on June 1, 2014. At no time after June 1, 2014, were any efforts made by the police to remedy or alleviate the harm suffered by Mr. Winmill in order to stave off a lawsuit.

[28] Furthermore, I am not persuaded by the plaintiff’s argument that the determination of when an action is appropriate should be driven by a desire to avoid multiplicity of proceedings. The plaintiff suggests it would not have been appropriate to commence an action in battery before the acquittal when it was not yet appropriate to commence a claim for negligent investigation. The assessment of whether or not it is appropriate to commence a claim is undertaken in the context of the claim itself and not in the context of other possible or potential claims stemming in part from the same police action. Regardless, the acquittal occurred long before the expiration of the limitation period for the claim in battery thus eliminating any potential risk for a multiplicity of proceedings.

2. Unable to commence an action on June 1, 2014

[29] Simply because the courthouse was not open for business on June 1, 2014 and Mr. Winmill was in custody during the hours (or minutes) between his arrest and midnight on June 1, 2014 does not postpone the running of the limitation period to the first business day following his release from custody.

[30] The application of this type of logic would lead to absurd results if the limitation period for claims otherwise discoverable on a holiday or other non-business day or, as here, otherwise discoverable while a plaintiff is in custody, do not begin to run until the plaintiff is administratively able to issue a claim. This is not the situation s. 5(1)(a)(iv) of the Limitations Act, 2002 was enacted to address.

3. Incapacity of the plaintiff

[31] The plaintiff argues s. 7 of the Limitations Act, 2002 applies to suspend the limitation period during such periods of time as Mr. Winmill was incapable of commencing a proceeding because of a physical, mental or psychological condition.

[32] Assuming s. 7 of the Act had been properly pleaded (which it has not), there is no evidence Mr. Winmill lacked capacity (for any reason) to commence an action at any time post-June 1, 2014. To the contrary, his defence of the criminal charges, without interruption, is evidence of his capacity to commence and maintain a civil action.

[33] A limitation period is not to be ignored, even where circumstances may be unfortunate and the consequences of its application harsh. See Kowal v. Shyiak, 2012 ONCA 512 at para. 20. I find that the limitation period for the plaintiff’s claim based on the tort of battery expired on June 1, 2016, two years following the date of the alleged assault by police and is, therefore, statute-barred.

Disposition

[34] The defendants’ motion is granted and the plaintiff’s claim for battery is dismissed. The limitation period for the tort of negligent investigation began to run on February 17, 2016 (the date Mr. Winmill was found not guilty) and, therefore, the plaintiff’s claim for negligent investigation is unaffected and may continue.

Costs

[35] As the successful party, the defendants are presumptively entitled to their costs of the motion. Absent agreement of the parties, written costs shall be submitted in accordance with the following schedule:

(a) Defendants’ submissions not exceeding 5 pages in length to be served and filed within 15 days; (b) Plaintiff’s responding submissions not exceeding 5 pages in length, 15 days thereafter; and (c) any reply submissions not exceeding 3 pages in length, 5 days thereafter.

“Justice A. K. Mitchell” Justice A. K. Mitchell Date: April 24, 2017.