Beardsley v. The Crown in Right of Ontario on behalf of the Ontario Provincial Police et al.

Indexed as: Beardsley v. Ontario

57 O.R. (3d) 1 [2001] O.J. No. 4574 Docket No. C35452

Court of Appeal for Ontario Abella, Goudge and Simmons JJ.A. November 28, 2001

Crown -- Actions against Crown -- Notice -- Charge of criminal harassment against plaintiff withdrawn by Crown after plaintiff agreed to enter into peace bond -- Plaintiff bringing action against Crown and investigating O.P.P. officers for damages for false arrest and false imprisonment -- Notice provisions of s. 7(1) of Proceedings Against the Crown Act not applicable to individual defendants -- Letter of complaint against police officer not generally constituting notice of possible civil claim -- Plaintiff failing to comply with s. 7(1) -- Proceedings Against The Crown Act, R.S.O. 1990, c. P.27, s. 7(1).

Limitations -- Public authorities -- Charge of criminal harassment against plaintiff withdrawn by Crown after plaintiff agreed to enter into peace bond -- Plaintiff bringing action against Crown and investigating O.P.P. officers for damages for false arrest and false imprisonment -- Defendants bringing motion to strike statement of claim under rule 21.01(1)(a) based on expiry of six-month limitation period in s. 7(1) of Public Authorities Protection Act -- Motions judge erred in dealing with motion prior to delivery of statement of defence and prior to plaintiff having opportunity to reply -- Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7(1) -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(a).

Civil procedure -- Pleadings -- Striking action -- Motion to strike based on expiry of limitation period usually requiring filing of statement of defence -- Filing of defence not a prerequisite only where it being plain and obvious from review of statement of claim that limitation period had expired -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (a)

The plaintiff was charged with criminal harassment, breaking and entering and possession of stolen property. Those charges were withdrawn in April 1999 after he entered into a common law peace bond. The plaintiff issued a statement of claim in July 1999 claiming damages against the Crown and two O.P.P. officers for false arrest, false imprisonment, malicious prosecution, negligence and breach of his Canadian Charter of Rights and Freedoms rights. A formal letter of notice under s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 was sent by counsel for the plaintiff the day after the statement of claim was issued. On a motion brought pursuant to rule 21.01(1)(a) and (b) of the Ontario Rules of Civil Procedure, the motions judge held that the claims against the Crown and the police officers were void, having been instituted without the appropriate notice under s. 7(1) of the Proceedings Against the Crown Act, and that the six-month limitation period under s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38 was a bar to the plaintiff's claims against the officers. The plaintiff appealed.

Held, the appeal should be allowed in part.

The plaintiff could not rely on the formal notice letter to assert that proper notice was given. The period of 60 days notice "before the commencement of the action" set out in s. 7(1) cannot be abridged in any way. The notice period must run before the action is commenced. The plaintiff could also not rely on a letter of complaint against the individual police officer sent by his counsel soon after the charges were withdrawn. As a general matter, a letter of complaint against a police officer should not be taken as notice of a possible civil claim. The existence of the earlier complaint against the officers was apparently not before the motions judge. Without determining whether a complaint against a police officer could ever constitute compliance with s. 7(1) of the Proceedings Against the Crown Act absent an express reference to the possibility of litigation, there was no reason to interfere with the motions judge's finding that sufficient notice was not given in this case.

The notice requirements of the Proceedings Against the Crown Act do not extend to individual defendants. The motions judge's finding that the claims against the police officers were a nullity on this basis should be set aside.

The causes of action for false arrest and false imprisonment accrue as of the date of the arrest or imprisonment. There was no reason to abrogate that standard rule based on the plaintiff's hypothetical assertion that the rule may give police officers who have wrongfully arrested or detained an individual an incentive to persist in a wrongful prosecution.

The motions judge erred in dealing with the motion to strike portions of the statement of claim based on the expiry of a limitation period prior to the delivery of a statement of defence and prior to the plaintiff having an opportunity to reply. The motion to strike based on the expiry of a limitation period could only be made pursuant to rule 21.01(1)(a), which provides that a party may move for the determination of a question of law "raised by the pleading". The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded. That portion of the order that dismissed the claims for false arrest, false imprisonment and negligence should be set aside.

APPEAL from order of Lalonde J. (2000), 2000 CanLII 22696 (ON SC), 50 O.R. (3d) 491 (S.C.J.) striking out a statement of claim.

Mattick Estate v. Ontario (Minister of Health) (2001), 2001 CanLII 24086 (ON CA), 52 O.R. (3d) 221, 195 D.L.R. (4th) 540 (C.A.), revg (1999), 1999 CanLII 15114 (ON SC), 46 O.R. (3d) 613 (S.C.J.), consd Other cases referred to Montreal Trust Co. of Canada v. Toronto Dominion Bank (1992), 40 C.P.C. (3d) 389 (Ont. Gen. Div.); Nicely v. Waterloo Regional Police (Chief of Police) (1991), 1991 CanLII 7338 (ON SC), 2 O.R. (3d) 612, 44 O.A.C. 147, 79 D.L.R. (4th) 14, 7 C.C.L.T. (2d) 61, 47 C.P.C. (2d) 105 (Div. Ct.) (sub nom. Nicely v. Bass); Pollakis v. Corner (1975), 1975 CanLII 597 (ON SC), 9 O.R. (2d) 691 (H.C.J.); R. v. White (1968), 1968 CanLII 849 (BC SC), [1969] 1 C.C.C. 19, 64 W.W.R. 708, 5 C.R.N.S. 30 (B.C.S.C.) (sub nom. R. v. Chohan); Vaillancourt v. Watson (1994), 1994 CanLII 637 (ON CA), 111 D.L.R. (4th) 729, 1 M.V.R. (3d) 246 (Ont. C.A.) Statutes referred to Canadian Charter of Rights and Freedoms Highway Traffic Act, R.S.O. 1990, c. H.8 Police Services Act, R.S.O. 1990, c. P.15 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(1) Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7(1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1), (2)

Lawrence Greenspon, for appellant. D. Thomas H. Bell and Sonal Gandhi, for the Crown and police respondents. Michael A. Chambers, for respondent Bona Lamarche.

Endorsement

[1] BY THE COURT: -- The appellant appeals from an order of Lalonde J., dated October 23, 2000, striking out a statement of claim.

[2] The appellant issued a statement of claim on July 13, 1999 claiming damages against the Crown in right of Ontario, and two Ontario Provincial Police constables, for false arrest, false imprisonment, malicious prosecution, negligence and breach of his Canadian Charter of Rights and Freedoms rights; and against those same defendants and his ex-wife, for conspiracy. He alleges that these torts were committed when he was investigated, arrested and prosecuted for charges that included breaking and entering his ex-wife's home, possession of stolen property and criminal harassment.

[3] All of the charges were withdrawn on April 6, 1999 after the appellant entered into a common law peace bond prohibiting him from initiating contact or association with his ex-wife for a period of one year.

[4] On a motion brought pursuant to rule 21.01(1)(a) and (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motions judge held that the claims against the Crown and the police officers are void, having been instituted without the appropriate notice under s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27; and that the six-month limitation period under s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38 is a bar to the appellant's claims against the O.P.P. officers for false imprisonment, false arrest and negligence.

[5] The motions judge also determined that entering the peace bond precluded satisfaction of two of the requirements for successful prosecution of a malicious prosecution claim, first, that the proceedings were instituted without reasonable cause, and second, that they were terminated in his favour; and that it precluded the existence of a cause of action for breach of Charter rights.

[6] Finally, the motions judge held that the conspiracy claim as pleaded disclosed no reasonable cause of action.

[7] The appellant raises several issues on appeal.

Did the motions judge err in finding proceedings void for lack of notice under s. 7(1) of the Proceedings Against the Crown Act?

[8] The statement of claim was silent on the issue of whether notice had been given in compliance with s. 7(1) of the Proceedings Against the Crown Act. The motions judge permitted the respondents to rely on a formal notice letter sent by appellant's counsel on July 14, 1999, after the statement of claim was issued, to assert that s. 7(1) had not been complied with, and that the claims against the Crown and the police officers were therefore a nullity. The motions judge relied on Montreal Trust Co. of Canada v. Toronto-Dominion Bank (1992), 40 C.P.C. (3d) 389 (Ont. Gen. Div.) as authority for the proposition that the letter did not constitute evidence within the meaning of the prohibition contained in rule 21.01(2) against adducing evidence on a rule 21.01(1)(b) motion.

[9] We agree that the motions judge erred in ruling that admission of the July 14, 1999 letter would not contravene the rule 21.01(2) prohibition against adducing evidence. The letter was not referred to in the statement of claim. Its contents could not therefore be viewed as an integral component of that pleading.

[10] Nevertheless, in our view, evidence of the notice was properly admissible pursuant to the discretion contained in rule 21.01(2) to permit evidence on a motion under rule 21.01(1)(a). Proper notice is a necessary pre-condition to the right to sue the Crown. It would defeat the interests of justice to restrict a defendant's right to adduce evidence that proper notice was not given.

[11] The appellant relies on the July 14, 1999 letter, as well as a letter of complaint against the individual police officers sent by his counsel soon after the charges were withdrawn, to assert that proper notice was given.

[12] We reject these submissions. None of the authorities relied on by the appellant establish that the period of 60 days notice "before the commencement of the action" set out in s. 7(1) can be abridged in any way. The notice period must run before the action is commenced.

[13] This court's determination in Mattick Estate v. Ontario (Minister of Health) [^1] that a potential claimant against the Crown need not expressly state in any notice that he "intends to take legal action to recover damages or other relief" does not mean that every letter of complaint delivered to a provincial agency will fulfil the notice requirements under s. 7(1) of the Proceedings Against the Crown Act. Rather, at p. 227 O.R., this court explicitly stated:

Not every complaint to the Province must be treated as a s. 7(1) notice. The complaint must be such that, in the circumstances, it could reasonably be anticipated by the Crown that if not resolved, litigation could result. [^2]

[14] The Police Services Act, R.S.O. 1990, c. P.15 provides a mechanism for citizens to file complaints against police officers. However, its focus is on discipline of police officers rather than providing remedies to aggrieved citizens. Accordingly, as a general matter, a letter of complaint against a police officer should not be taken as notice of a possible civil claim.

[15] Here, the existence of the earlier complaint against the officers was not apparently before the motions judge. The actual letter of complaint is not before us. Without determining whether a complaint against a police officer could ever constitute compliance with s. 7(1) of the Proceedings Against the Crown Act absent an express reference to the possibility of litigation, we are not satisfied the motions judge erred in finding there had been no sufficient notice in this case.

[16] The respondents do not contest the appellant's submission that the notice requirements of the Proceedings Against the Crown Act do not extend to individual defendants. We agree. The motions judge's finding on this basis that the claims against the police officer defendants are a nullity is accordingly set aside.

[17] The appellant's contention that s. 7(1) does not extend to claims for vicarious liability has no merit. Section 7(1) is clear in requiring that "no action for a claim shall be commenced against the Crown" (emphasis added) unless the appropriate notice is given. It is necessary to name the Crown as a defendant to maintain an action for vicarious liability, and the appellant's claim on this ground fails.

Did the motions judge err in finding the appellant is barred from proceeding with his claims for false imprisonment, false arrest, and negligence because the six-month limitation period had expired?

[18] The appellant pleaded that he was arrested on July 28, 1998, and September 9, 1998, and held in custody immediately following both arrests. He asserted, as an alternative pleading, that the police officers actions were "such as to place them outside the scope and authority of their duties as O.P.P. Provincial Constables". He also asserted that they prosecuted him when they knew he had not committed a criminal offence, and that they participated in the prosecution maliciously, with an intent to harm him, motivated by a sexual relationship with his ex-wife in the case of one officer, and by a desire to cover-up that relationship and protect his brother officer on the part of the other officer. The appellant further alleged that the officers were negligent in their investigation.

[19] The appellant concedes that causes of action for false arrest and false imprisonment accrue as of the date of arrest or imprisonment based on Nicely v. Waterloo Regional Police (Chief of Police) (1991), 1991 CanLII 7338 (ON SC), 2 O.R. (3d) 612, 79 D.L.R. (4th) 14 (Div. Ct.), but questions the policy rationale for this rule. We reject his contention that we could somehow abrogate a standard rule pertaining to accrual of those causes of action based on his hypothetical assertion that the rule may give police officers, who have wrongfully arrested or detained an individual, an incentive to persist in a wrongful prosecution.

[20] In our view, however, the trial judge erred in dealing with the motion to strike portions of the statement of claim based on the expiry of a limitation period, prior to delivery of a statement of defence, and prior to the appellant having an opportunity to reply.

[21] The motion to strike based on the expiry of a limitation period could only be made pursuant to rule 21.01(1)(a), which provides that a party may move for the determination of a question of law "raised by a pleading". The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded. Although we agree that it would be unduly technical to require delivery of a statement of defence in circumstances where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired, [^3] a plain reading of the rule requires that the limitation period be pleaded in all other cases. See Pollakis v. Corner (1975), 1975 CanLII 597 (ON SC), 9 O.R. (2d) 691 (H.C.J.).

[22] Plaintiffs would be deprived of the opportunity to place a complete factual context before the court if limitation defences were determined, on a routine basis, without being pleaded. Adherence to rules that ensure procedural fairness is an integral component of an appearance of justice. The appearance of justice takes on an even greater significance where claims are made against those who administer the law. The limitation defence to the claims for false arrest, false imprisonment and negligence should not therefore be determined, without being pleaded, and the pleadings being completed. That portion of the order that dismisses the claims for false arrest, false imprisonment and negligence will accordingly be set aside.

[23] In this case, we agree that the appellant's pleadings are sparse and vague, and we also agree that allegations he relies on to justify these claims are in some instances, set out only in relation to other torts. Nevertheless, this court's decision in Vaillancourt v. Watson (1994), 1994 CanLII 637 (ON CA), 111 D.L.R. (4th) 729, 1 M.V.R. (3d) 246 makes it clear that although allegations such as malice or acting for an improper purpose, standing alone, would be insufficient to deprive officers otherwise apparently acting within the scope of their duty of the protection afforded by s. 7(1) of the Public Authorities Protection Act, situations may exist where the protection will not apply to egregious conduct by police. If necessary, the question of whether the bald pleading of malice in the claim is enough to escape the limitation period in s. 7(1) can be decided once the pleadings are complete.

Did the motions judge err in striking the appellant's claims for malicious prosecution and for breach of his Charter rights?

[24] As with the July 14, 1999 letter, we agree that the peace bond transcript was inadmissible on a rule 21.01(1)(b) motion; however, the motion was also made pursuant to rule 21.01(1)(a). Again, it would defeat the interests of justice not to admit the transcript for the purpose of a motion under that rule. The transcript provides an essential factual context, which was omitted from the statement of claim, concerning the withdrawal of the criminal charges.

[25] The appellant's assertions that his comments on entering the peace bond should colour its significance are without merit. The order for a peace bond reflects a finding by the court that there was a basis for apprehending that the appellant would commit a breach of the peace: R. v. White (1968), 1968 CanLII 849 (BC SC), [1969] 1 C.C.C. 19, 64 W.W.R. 708 (B.C.S.C.). The appellant is not entitled to challenge the validity of that finding, except by means of an appeal. Hence this ground of appeal fails.

Did the motions judge err in striking the appellant's claim for conspiracy?

[26] The motions judge concluded that the appellant failed to plead whatever agreement he says existed, the relationship between the alleged conspirators, and any overt acts performed in furtherance of the conspiracy. We can see no error in these findings. We would not interfere with the motions judge's exercise of discretion in determining the appropriate remedy.

Conclusion

[27] For the reasons given, the appeal is allowed in part, and the order striking the statement of claim and dismissing the action against all defendants is set aside with respect to the claims for false arrest, false imprisonment and negligence against the police officer defendants. This order is without prejudice to any further motions which may be made, either to strike, or for dismissal, once the pleadings are complete.

[28] Success on this appeal is significantly divided. Moreover, it is far from clear that any tenable cause of action exists. Costs of the appeal will therefore be in the cause.

Appeal allowed in part.

Notes

[^1]: (2001), 2001 CanLII 24086 (ON CA), 52 O.R. (3d) 221, 195 D.L.R. (4th) 540 (C.A.), at p. 226 O.R. [^2]: Mattick, supra, at para. 18. [^3]: For example expiry of the two-year limitation period under the Highway Traffic Act, R.S.O. 1990, c. H.8, in connection with a claim for property damage only, in circumstances where it is clear the discoverability rule does not apply.