DATE: 20060919

DOCKET: C44797

COURT OF APPEAL FOR ONTARIO

RE:

MYRA M.D. SIMANEK (Appellant) – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (THE CROWN) and THE ATTORNEY GENERAL OF ONTARIO (Respondents)

BEFORE:

McMURTRY C.J.O., BLAIR J.A. and CUNNINGHAM A.C.J. (ad hoc)

COUNSEL:

Myra M.D. Simanek in person

W. J. Manual

for the respondents

HEARD AND ENDORSED:

September 19, 2006

On appeal from the judgment of Mr. Justice Frank N. Marrocco of the Superior Court of Justice dated December 30, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The fundamental issue in this appeal is whether it is statute barred by reason of Section 7 of the Public Authorities Protection Act which states that the proceeding must be “commenced within six months next after the cause of action arose or in the case of continuance of injury or damage within six months after the ceasing thereof”.

[2] The law is clear that the phrase “in case of continuance of injury or damage means the continuance of the act which causes the damage and not the consequences of an act.

[3] In cases of malicious prosecution, the limitation period commences from the date the proceedings terminated, which in this case was March 24, 2003 at the latest on October 20, 2003 when the appellant admits knowing she had a possible claim.

[4] The appellant submits, however, that the respondents were motivated by malice and therefore they are not protected by s. 7 of the Public Authorities Protection Act. In our view there is no air of reality to the appellant’s allegations that the respondents acted with malice. She has not identified any crown attorney nor has she pleaded any material fact with respect to the allegation of malice.

[5] Therefore, in our view, the appellant’s claims are statute barred by s. 7 of the Public Authorities Protection Act and s. 24 of the Limitations Act, 2002.

[6] The appellant also makes a claim for relief under s. 24 (1) of the Charter. In our view the appellant has failed to plead any material facts that would sustain a Charter claim and again such a claim has no air of reality.

[7] Furthermore, the appellant seeks in a civil action to make an improper collateral attack on the final decision of a criminal court, which in our opinion is simply an abuse of process.

[8] Therefore the appeal is dismissed without costs.