DATE: 20011220
DOCKET: C35717
COURT OF APPEAL FOR ONTARIO
BORINS, MACPHERSON AND CRONK JJ. A.
B E T W E E N :
ANDRÉ FISET and THE LAUNDRY LOUNGE INC.
Plaintiffs(Appellant)
- and -
THE TORONTO POLICE SERVICES BOARD, THE ATTORNEY GENERAL OF ONTARIO, FRANK MOSKOFF, JOHN DOREY, BERNARD FLOHR, FRANK BERGEN, ERNEST COSSITT, ROBERT GORDON, JOE DI GESO, MARIA DI GESO, ROCCO LUISI, GINO DI GESO, GEORGE RESTIAUX, LEONARD JOHNSON, BILL HERSCHAL, ASSOCIATED BAILIFFS & CO. LTD. and GARDINER ROBERTS
Defendants(Respondents)
Julian N. Falconer, for the appellant
Kalli Y. Chapman, for the respondents
Heard: December 7, 2001
On appeal from the judgment of Justice Ian Nordheimer dated October 7, 1999.
MACPHERSON J.A.:
A. BACKGROUND
[1] In a judgment dated October 7, 1999, Nordheimer J. rendered decisions on five motions in this proceeding. He dismissed the appellant André Fiset’s claims against the Attorney General of Ontario, the prosecutor Frank Moskoff and the law firm Gardiner Roberts. He also dismissed the claims of the corporate plaintiff The Laundry Lounge Inc. against all of the police and prosecution defendants. No appeal is taken from these decisions.
[2] The motions judge also struck out the appellant’s claims for negligence relating to the police defendants. The formal Order provides:
- THIS COURT ORDERS that, on motion by the Toronto Police Services Board, John Dorey, Bernard Flohr, Frank Bergen, Ernest Cossitt and Robert Gordon pursuant to Rule 21 of the Rules of Civil Procedure to strike out those portions of the statement of claim in which allegations are made against the defendants John Dorey, Bernard Flohr, Frank Bergen, Ernest Cossitt and Robert Gordon based on negligence or failure to perform their public duties in a proper manner, such portions are to be struck out, and the allegation against the Toronto Police Services Board for negligence in the training of the defendant police officers is also to be struck out.
- [3] The appellant appealed from this Order. However, at the hearing of the appeal he abandoned his appeal relating to the negligent training claim against the Toronto Police Services Board.
B. ISSUES
- [4] The appeal in relation to the negligence and failure to perform public duties claims against the five individual police respondents (the “respondents”) is advanced on two grounds:
(1) The motions judge erred in striking tenable negligence claims; and
(2) The motions judge erred in failing to grant the appellant leave to amend the negligence allegations in the Statement of Claim.
- [5] In the alternative, the appellant seeks leave before this court to amend the Statement of Claim to further particularize the negligence claims against the respondents. He also seeks leave to introduce fresh evidence in support of this amendment request.
C. ANALYSIS
(1) Striking out the negligence claims
[6] The events at the appellant’s place of business and residence which gave rise to this action occurred on February 18, 1997. The appellant was charged with obstructing justice and assaulting a police officer. The obstruct justice charge was withdrawn on the first day of trial. The appellant was acquitted of the assault charge on January 20, 1998. He issued a Notice of Action against a large number of defendants, including the respondents, on July 20, 1998, precisely six months after the acquittal.
[7] The respondents brought a motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking an order striking out the claims of the appellant grounded in negligence and alleged failure to perform public duties. The basis of the motion was that these claims, which relate to police conduct on February 18, 1997, had been initiated outside the six-month limitation period prescribed in s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P-38 (“PAPA”):
7(1) No action, prosecution or other proceeding lies or shall be instituted against any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution of any such duty or authority, unless it is commenced within six months next after the cause of action arose, or, in case of continuance of injury or damage, within six months after the ceasing thereof.
[8] The Statement of Claim does allege negligence by the respondents. Under the heading NEGLIGENCE, there is a claim (now abandoned) that the Attorney General and the Toronto Police Services Board “were negligent in training and supervising the officers”. There is also a claim that “the police officers were themselves negligent in the exercise of their duties as set out herein”.
[9] However, there is nothing in the Statement of Claim advancing claims of negligent investigation or negligent prosecution against the respondents. The word “negligently” is used in several places, but explicitly in relation to the torts of false arrest, assault and false imprisonment. These allegations are made in the context of the events of February 18, 1997; they do not relate to the respondents’ conduct between that date and the acquittal of the appellant on January 20, 1998.
[10] Before the motions judge, counsel for the appellant (not his present counsel) did not contend that the Statement of Claim covered any police conduct after February 18, 1997. His only argument was that the limitation period did not apply because on that evening the police officers were not acting, in the words of s. 7(1) of the PAPA, “in pursuance . . . of any statutory or other public duty or authority”. The motions judge rejected this argument, relying on a passage from the judgment of Hoilett J. in Wason v. Gillis, [1996] O.J. 1767 at para. 9 (Gen. Div.):
It is quite clear from s. 42 of the Police Services Act that the scope of a police officer’s powers is broad. It is not necessary for the purposes of this motion, indeed, there is not the evidentiary basis, to determine how well or how poorly the two constables executed their duties on the night in question. What I think may reasonably be concluded, however, is that whatever they did was “in pursuance or execution or intended execution of any statutory or other public duty or authority . . .”
[11] I agree with the motions judge’s conclusion on this issue.[^1] On February 18, 1997, the respondents were on duty and responded to a call from the appellant. The question is not whether they were acting in pursuance of their public duties; rather it is how they performed those duties.
[12] In short, neither in the pleadings nor in the submissions made to the motions judge did the appellant assert that there was any claim for negligent investigation or negligent prosecution which survived a six-month limitation period which commenced to run on February 18, 1997.[^2] On appeal, his present counsel has tried to breathe new life into the existing negligence claims by asserting that the Statement of Claim, “interpreted generously”, includes claims of negligent investigation and negligent prosecution. In our view, this attempted stretch must fail. Even if such claims could succeed (a possibility in light of Beckstead v. Ottawa (City) Chief of Police (1997), 1997 CanLII 1583 (ON CA), 37 O.R. (3d) 62 (C.A.)), they would be new causes of action requiring leave to amend the Statement of Claim in order to be asserted.
(2) Leave to amend – Motions Judge
[13] The appellant contends that the motions judge erred in failing to grant the appellant leave to amend the negligence claims. In my view, there are two problems with this submission.
[14] First, an amendment relating to the then existing negligence claims to add the new causes of action in negligence would not have assisted the appellant because the amended allegations would still all relate to allegations about police conduct on February 18, 1997 or even earlier (the negligent training allegation). The motions judge precluded these claims on the basis of a breach of a limitation period. This type of amendment could not overcome the limitation period defence.
[15] Second, and of more importance because it relates directly to what the appellant now seeks, at no time before the motion was heard, or indeed even during the hearing, did the appellant’s counsel request leave to amend the Statement of Claim to assert the new and different claims of negligent investigation and negligent prosecution. The motions judge cannot be faulted for not considering something not put to him.
(3) Leave to amend – Court of Appeal
[16] If the appellant is unsuccessful on the appeal, he seeks leave in this court, by way of a motion, to amend the Statement of Claim “to further particularize the negligence claim”. It is the appellant’s intention to include claims for negligent investigation and negligent prosecution in an amended Statement of Claim. This request is based on rule 26.01 which permits amendments “at any stage of an action” unless non-compensable prejudice would result. In support of his request, the appellant also seeks leave to introduce fresh evidence, namely, an affidavit by the appellant in which he asserts, in essence, that his former counsel never advised him about the six-month limitation period for commencing a lawsuit against the police.
[17] In my view, the fresh evidence should not be admitted. The Notice of Motion is dated November 12, 2001 and was sworn and served on the respondents on November 16, 2001. The appellant’s present counsel has been engaged in the matter since August 2000. The Notice of Appeal was served on January 31, 2001 along with the Certificate Respecting Evidence. The appellant, through his counsel, certified that no evidence other than the pleadings was required for the hearing of the appeal. The appeal was perfected on April 20, 2001. There was no mention of the allegation of his previous counsel’s failure in the appellant’s factum. In June 2001, the appeal was listed for hearing. The respondents’ factum was served on June 27, 2001. Given this chronology, the appellant’s attempt to introduce fresh evidence a mere three weeks before the appeal hearing must fail. In any event, whatever relevance this evidence may have in respect to whether the appellant should receive leave to amend his Statement of Claim, by its nature it is clear that it was available to the appellant when he was before the motions judge.
[18] I am also of the view that this court should not make an order amending the Statement of Claim. In their factum the respondents’ submit:
- On November 9, 2001 the appellant for the first time served the respondents with his draft proposed amended pleadings. It is respectfully submitted that the motion with the proposed new claim should be adjourned to the Case Management Master who has been assigned to this case (Master Abrams).
- [19] I agree. A proper consideration of the merits of the proposed amendments will depend on a full record of facts and legal argument. The respondents must be given an opportunity to respond to the appellant’s amendment request. In light of the chronology thus far, they have not had this opportunity.
D. DISPOSITION
- [20] I would dismiss the appeal and the motion for leave to file fresh evidence. I would also dismiss the motion before this court for leave to amend the Statement of Claim, but without prejudice to the appellant’s right to bring the motion before the case management master within 30 days of the release of these reasons for judgment. I would award the respondents their costs of the appeal.
RELEASED: December 20, 2001
“J. C. MacPherson J.A.”
“I agree S. Borins J.A.”
“I agree E. A. Cronk J.A.”
[^1]: Indeed, the appellant has not appealed on this issue.
[^2]: In a case where claims of negligent investigation and prosecution are properly pleaded, the issue of when the six-month limitation period would start to run – the date of the police conduct or the date on which a determination at trial is reached – is an interesting and important one. In resolving this issue, particular attention would need to be paid to Mayor of Montreal v. Hall (1885), 1885 CanLII 50 (SCC), 12 S.C.R. 74. There are other useful discussions in Nicely v. Waterloo Regional Police (Chief of Police) (1991), 1991 CanLII 7338 (ON SC), 2 O.R. (3d) 612 (Div. Ct.) and McNabb v. Ontario (Attorney General) (2000), 2000 CanLII 22413 (ON SC), 50 O.R. (3d) 402 (S.C.J.).