Court of Appeal for Ontario

Chimienti et al. v. The Corporation of the City of Windsor et al. [Indexed as: Chimienti v. Windsor (City)]

105 O.R. (3d) 72

2011 ONCA 16

Court of Appeal for Ontario,

Rosenberg, MacPherson and LaForme JJ.A.

January 11, 2011

Civil procedure -- Irregularity -- "Irregularity" in rule 2.02 of Rules of Civil Procedure restricted to non-compliance with Rules -- Defendants not requiring leave under rule 2.01 to bring motion to dismiss action for non-compliance with limitation period in Public Authorities Protection Act -- Public Authorities Protection Act, R.S.O. 1990, c. P.38.

Limitations -- Public authorities -- Plaintiff bringing action against police officers for damages for negligent and malicious investigation after charges against him were dropped -- Limitation period in s. 7(1) of Public Authorities Protection Act beginning to run when charges were dropped and not when plaintiff was arrested -- Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7(1).

Limitations -- Extension -- Special circumstances -- Special circumstances doctrine limited to allowing court to add or substitute party or add cause of action after expiry of limitation period -- Doctrine not allowing commencement of new action following expiry of limitation period.

The plaintiff was arrested on March 30, 2000 and charged with assault causing bodily harm. The charges were dropped on January 30, 2003. He and his mother issued a Statement of Claim on July 31, 2003 claiming damages for negligent and malicious investigation. The defendants moved successfully to dismiss the action on the basis that it was brought outside the six-month limitation period in s. 7(1) of the Public Authorities Protection Act. The plaintiffs appealed.

Held, the appeal should be dismissed.

The motion judge erred in finding that the limitation period started to run when the plaintiff was arrested. The cause of action arose when the charges were dropped. However, the Statement of Claim was issued one day outside the six-month limitation period in s. 7(1) of the PAPA. The court did not have an inherent jurisdiction to relieve against the strict enforcement of the limitation period. The "special circumstances" doctrine is limited to allowing a court to add or substitute a party or to add a cause of action after the expiry of a limitation period where special circumstances exist. The doctrine does not allow the commencement of a new action following the expiry of the limitation period.

The defendants were not required to obtain leave under rule 2.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to bring the motion to dismiss the action for non-compliance with the PAPA. The word "irregularity" in Rule 2 is limited to situations involving non-compliance with the Rules.

APPEAL from the order of M.J. Quigley J., [2010] O.J. No. 1174, 2010 ONSC 1699 dismissing the action as statute-barred.

Cases referred to Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, 2007 SCC 41, 285 D.L.R. (4th) 620, 368 N.R. 1, J.E. 2007-1867, 230 O.A.C. 253, 64 Admin. L.R. (4th) 163, 50 C.C.L.T. (3d) 1, 50 C.R. (6th) 279, 40 M.P.L.R. (4th) 1, 160 A.C.W.S. (3d) 573, EYB 2007-124525, apld [page73 ] Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469, 294 D.L.R. (4th) 141, 56 C.P.C. (6th) 14, 166 A.C.W.S. (3d) 762, 241 O.A.C. 29, consd Other cases referred to Basarsky v. Quinlan, 1971 CanLII 5 (SCC), [1972] S.C.R. 380, [1971] S.C.J. No. 118, 24 D.L.R. (3d) 720, [1972] 1 W.W.R. 303; Leadbeater v. Darlington (Township), [1949] O.J. No. 115, [1949] O.W.N. 365 (H.C.J.); Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567, 207 D.L.R. (4th) 492, 152 O.A.C. 201, 15 C.P.C. (5th) 235, 109 A.C.W.S. (3d) 880 (C.A.); Meady v. Greyhound Canada Transportation Corp. (2008), 90 O.R. (3d) 774, [2008] O.J. No. 2338, 2008 ONCA 468, 53 C.P.C. (6th) 1, 61 M.V.R. (5th) 195, 294 D.L.R. (4th) 152, 166 A.C.W.S. (3d) 763, 240 O.A.C. 188; Tummillo v. Prouty, [1990] O.J. No. 808, 42 C.P.C. (2d) 308, 20 A.C.W.S. (3d) 1190 (Dist. Ct.) Statutes referred to Justice Statute Law Amendment Act, 2002, S.O. 2002, c. 24, Sch. B, s. 25 Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 89(6) [as am.] Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], s. 24(5) [as am.] Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7 [rep. S.O. 2002, c. 24, Sch. B, s. 25], (1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 2, 2.01(1), 2.02, 21.01(1) Rules of Practice and Procedure of the Supreme Court of Ontario, R.R.O. 1980, Reg. 540, Rules 186 [rep. O. Reg. 560/ 84], 187 [rep. O. Reg. 560/84] Authorities referred to Gale, Hon. George Alexander, Q.C., A.S. Marriott and William J. Hemmerick, eds., Holmested and Gale on the Judicature Act of Ontario and Rules of Practice, looseleaf (Toronto: Carswell, 1983) Perell, Paul M., and John W. Morden, The Law of Civil Procedure in Ontario (Markham, Ont.: LexisNexis Canada, 2010) Watson, Garry D., and Lynne Jeffrey, Holmested and Watson: Ontario Civil Procedure, looseleaf (Toronto: Thomson Reuters, 1993)

Kendal McKinney, for appellants. Alex Szalkai, Q.C., for respondents except Kim Bertholet. No one appearing, for respondent Kim Bertholet.

The judgment of the court was delivered by

MACPHERSON J.A.: -- Introduction

[1] The appellants appeal from the order of Quigley J. of the Superior Court of Justice, dated May 23, 2010, dismissing their action against the respondents for failure to file their Statement [page74 ]of Claim within the six-month limitation period prescribed by s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38 ("PAPA"). Section 7(1) of the PAPA has been repealed (Justice Statute Law Amendment Act, 2002, S.O. 2002, c. 24, Sch. B, s. 25) but the parties agree that it applies for the purposes of this motion.

Facts

(1) The parties and events

[2] The appellant Mark Chimienti was arrested along with several other persons by the Windsor Police Services ("WPS") on March 30, 2000 following a brawl at a tavern in Windsor. The charge against Mr. Chimienti was assault causing bodily harm. The respondents allege that the arrest was made on the basis of eyewitness evidence. The appellants (Mark and his mother, Patricia Chimienti) claim that Mr. Chimienti was a victim in the brawl, he co-operated with the investigation, there was no evidence to support the WPS allegations against him and other witnesses made exculpatory statements concerning Mr. Chimienti's involvement.

[3] Mr. Chimienti was released on the day of his arrest and was arraigned on April 27, 2000 on a charge of assault causing bodily harm. After a 17-day preliminary inquiry process, the charges were dropped on January 30, 2003.

[4] The appellants issued their Statement of Claim on July 31, 2003. They allege that Mr. Chimienti was arrested despite the absence of evidence supporting the allegations and that the preliminary inquiry was unnecessarily prolonged "for the purpose of using him as a bargaining tool against the other defendants". Their claim against the police officers is framed in terms of negligent and malicious investigation.

[5] The action proceeded for several years with both sets of parties taking normal steps, albeit slowly. Service of the Statement of Claim took place on January 27, 2004. The WPS group of defendants filed their Statement of Defence on May 31, 2004. Documents have been exchanged. Discovery of the parties was held in December 2007 and January 2008. The parties have agreed to non-party examination of two witnesses, which is still pending. The parties agreed to transfer the matter from Chatham-Kent to Windsor, which was done in December 2008.

[6] The WPS defendants brought a motion to dismiss the action against them on April 15, 2009, five years and three months after they had been served with the claim. The motion was brought pursuant to rule 21.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and asserted that the appellants' [page75 ]cause of action was outside the six-month limitation period prescribed in s. 7(1) of the PAPA.

(2) The motion judge's decision

[7] In a decision released on March 23, 2010, the motion judge held that since the respondents were acting within the scope of their duties when they arrested Mr. Chimienti, the six-month limitation period in the PAPA applied. He further determined that the cause of action against the respondents arose on the day Mr. Chimienti was arrested, March 30, 2000. Accordingly, the Statement of Claim was issued 40 months after the cause of action arose, well outside the PAPA limitation period.

[8] Alternatively, and in obiter, the motion judge held that even if the cause of action arose on January 30, 2003, the date on which the charges against Mr. Chimienti were dropped, his claim was still outside (by one day) the six-month period in s. 7 of the PAPA.

[9] The motion judge also ruled against extending the limitation period. He stated: "I was presented with neither an explanation that might mitigate against the application of the limitation period, nor persuasive law in support of that proposition."

[10] The appellants appeal from the motion judge's decision.

C. Issues

[11] The issues on the appeal are: (1) Did the motion judge err by determining that the appellants' cause of action arose on March 30, 2000? (2) If the answer to (1) is "yes", so that the appellants' cause of action arose on January 30, 2003, did the motion judge err by determining that the cause of action still arose outside the six-month limitation period in the PAPA? (3) If the answer to (2) is "no", is relief against the operation of the limitation period available and, if it is, should it be granted?

D. Analysis

(1) When did the cause of action arise?

[12] The motion judge held that the appellants' cause of action against the respondents arose on March 30, 2000, the date of Mr. Chimienti's arrest. He cited no authority for this conclusion.

[13] With respect, I do not agree. In Hill v. Hamilton- Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, [page76 ]McLachlin C.J.C. discussed the interpretation of s. 7(1) of the PAPA in the context of a claim of negligent investigation. She stated, at paras. 96-98:

The limitation period for negligent investigation begins to run when the cause of action is complete. This requires proof of a duty of care, breach of the standard of care, compensable damage, and causation. A cause of action in negligence arises not when the negligent act is committed, but rather when the harmful consequences of the negligence result. (See G. Mew, The Law of Limitations (2nd ed. 2004), at p. 148, citing L. N. Klar et al., Remedies in Tort (loose- leaf), ed. by L. D. Rainaldi, vol. 4 (release 5), c. 27, at para. 217, n. 23.)

As discussed above, the loss or injury as a result of alleged police negligence is not established until it is clear that the suspect has been imprisoned as a result of a wrongful conviction or has suffered some other form of compensable harm as a result of negligent police conduct. The wrongfulness of the conviction is essential to establishing compensable injury in an action where the compensable damage to the plaintiff is imprisonment resulting from a wrongful conviction. In such a case, the cause of action is not complete until the plaintiff can establish that the conviction was in fact wrongful. So long as a valid conviction is in place, the plaintiff cannot do so.

It follows that the limitation period in this case did not start to run until December 20, 1999 when Mr. Hill, after a new trial, was acquitted of all charges of robbery. The action was commenced by notice of action on June 19, 2000, within the six-month limitation period set out in the Public Authorities Protection Act. Therefore, the relevant limitation period was met.

[14] In my view, this reasoning is directly applicable to this appeal. In Hill, the "compensable harm" arising from the alleged negligent police conduct consisted of the incarceration of Mr. Hill, despite the fact that the police were not directly responsible for his incarceration. While the alleged harm in this case -- the inconvenience, indignity and cost of defending a criminal charge for a 34-month period -- is different from that in Hill, it also is a result flowing directly from the alleged wrongful actions of the police. If Mr. Hill's incarceration was properly considered harm arising from police misconduct, I fail to see how Mr. Chimienti's prosecution could be considered too distinct from the police actions to be viewed in the same way.

[15] I also have some sympathy for the appellants' 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. [page77 ]

[16] For these reasons, I conclude that the motion judge erred by determining that the appellants' cause of action was complete on the date of Mr. Chimienti's arrest, March 30, 2000. On the contrary, Hill instructs that the cause of action was complete on the date that the charge against Mr. Chimienti was dropped, January 30, 2003.

(2) The January 30, 2003 cause of action and the six-month limitation period

[17] The appellants submit that the motion judge erred in concluding that the Statement of Claim issued on July 31, 2003 was issued outside the six-month limitation period if that period began on January 30, 2003.

[18] The computation of time in months is addressed in s. 89(6) of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, which provides:

89(6) If a period of time is described as a number of months before or after a specified day, the following rules apply:

1. The number of months are counted from the specified day, excluding the month in which the specified day falls.

2. The period includes the day in the last month counted that has the same calendar number as the specified day or, if that month has no day with that number, the last day.

[19] The "specified day" for the purposes of s. 7(1) of the PAPA is the day "the cause of action arose, or, in the case of continuance of injury or damage, within six months after the ceasing therefore". For this case, that date is the day the charge against Mr. Chimienti was withdrawn. Accordingly, the specified day in this case was January 30, 2003. Rule 2 therefore indicates that July 30, 2003 would be included within the limitation period while the following day, July 31, would be excluded.

[20] It follows that I agree with the motion judge that if the appellants' cause of action was complete on January 30, 2003, their Statement of Claim was issued one day outside the six-month limitation period in s. 7(1) of the PAPA.

(3) Relief from strict enforcement of the limitation period

[21] If the appellants' Statement of Claim was issued one day outside the six-month limitation period in the PAPA, the appellants contend that they should be granted relief from the strict enforcement of this period. The appellants make this submission on two bases: (1) the court has inherent jurisdiction to grant such relief; and (2) rule 2.02 required the respondents to obtain leave to bring their motion, they did not do so, and, in any event, leave should not have been granted. [page78 ]

(a) Inherent jurisdiction

[22] The law governing the court's power to relieve against the operation of a limitation period changed with the enactment of the new Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. In Joseph v. Paramount Canada's Wonderland (2008), 2008 ONCA 469, 90 O.R. (3d) 401, [2008] O.J. No. 2339 (C.A.), Feldman J.A. held that the new statute eliminated the "special circumstances" doctrine, which had previously granted courts the discretion to allow a plaintiff to amend a claim by adding parties or causes of action following the expiry of a limitation period where no prejudice to the opposing party would result and where special circumstances existed justifying the exercise of such discretion. See, also, Basarsky v. Quinlan, 1971 CanLII 5 (SCC), [1972] S.C.R. 380, [1971] S.C.J. No. 118 and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.).

[23] As Joseph was firmly grounded in the interpretation of the new Limitations Act, 2002, it left open the continued operation of the "special circumstances" doctrine in cases governed by limitation periods found in statutes other than the Limitations Act, 2002. This point was expressly made by Feldman J.A. in a companion case to Joseph released on the same day, Meady v. Greyhound Canada Transportation Corp. (2008), 2008 ONCA 468, 90 O.R. (3d) 774, [2008] O.J. No. 2338 (C.A.), at para. 24:

[T]he court can continue to apply the common law special circumstances doctrine, where appropriate, to extend a former limitation period when the transition provision, s. 24 of the new Act, applies.

[24] In the present case, the PAPA limitation period, and therefore the special circumstances doctrine, continues to apply by virtue of s. 24(5) of the Limitations Act, 2002:

24(5) If the former limitation period did not expire before January 1, 2004 and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, the following rules apply: . . . . . 2. if the claim was discovered before January 1, 2004, the former limitation period applies.

[25] Since the appellants' claim was "discovered" on January 30, 2003, the six-month PAPA limitation period, and its common law "special circumstances" overlay, are potentially available to the appellants.

[26] However, as explained by Feldman J.A. in Joseph, at para. 12, the scope of the "special circumstances" doctrine is limited to allowing the court "to add or substitute a party or to add [page79 ]a cause of action after the expiry of a limitation period where special circumstances exist". The doctrine does not allow the commencement of a new action following the expiry of the limitation period. As Feldman J.A. stated, at para. 28:

Both the common law doctrine from Basarsky v. Quinlan and the Rules of Civil Procedure contemplate only the power to amend or add a claim or party to an existing action. They did not give the court the authority to allow an action to be commenced after the expiry of a limitation period.

[27] For these reasons, I do not accept that the court has an inherent jurisdiction to relieve against the strict enforcement of the six-month limitation period in the PAPA.

(b) Rule 2.02 -- leave

[28] Rule 2.02 of the Rules of Civil Procedure provides:

2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court, (a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity; or (b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.

[29] In their supplementary submissions filed at the direction of the motion judge after the motion hearing, the appellants submitted that the motion judge should refuse leave. Unfortunately, the motion judge did not address this issue although he touched on it tangentially in the final paragraph [at para. 25] of his reasons: "In view of Rule 21.02 requiring a timely filing of this Motion by the defendants, there will be no order as to costs."

[30] In my view, the motion judge should have considered this issue. However, if he had done so, he would have had to reject the appellants' submission on this point. I say this for three reasons.

[31] First, although the unqualified word "irregularity" in rule 2.02 has the potential to apply to statutes other than the Rules of Civil Procedure, both the wording of the rest of Rule 2 and its title suggest otherwise. Rule 2.01(1) provides: "A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity . . ." (emphasis added). The title of Rule 2 is "Non-Compliance with the Rules". This wording and title suggest an internal ambit to the operation of Rule 2.

[32] Second, this interpretation is supported by the authors of Holmested and Watson: Ontario Civil Procedure [page80 ](Garry D. Watson, Q.C., and Lynne Jeffrey), looseleaf (Toronto: Thomson Reuters, 1993) at 2-4 and 2-5:

The provisions of Rule 2 deal with the subject of non- compliance with the Rules and fall into two groups . . . Rule 2.02 is concerned with non-compliance with the Rules, in the sense that it requires an attack on a proceeding for irregularity to be made promptly and before a further step is taken by the moving party.

[33] Similarly, the authors of Holmested and Gale on the Judicature Act of Ontario and Rules of Practice (Hon. George Alexander Gale, Q.C. et al., eds.), looseleaf (Toronto: Carswell, 1983), in their discussion of Rules 186 and 187 of the Rules of Practice and Procedure of the Supreme Court of Ontario, R.R.O. 1980, Reg. 540, as revoked by Rules of Civil Procedure, O. Reg. 560/84, the predecessors to Rule 2 of the Rules of Civil Procedure, stated, at 1394:

The principles embodied in RR. 186 and 187 do not apply to the precise and imperative directions of a statute, and must be deemed to apply only to the rules themselves, and the fact that these rules have the force of a statute does not widen the scope of their application[.]

[34] Finally, I observe that in their recently published text The Law of Civil Procedure in Ontario, Justice Paul Perell and John Morden (Markham, Ont.: LexisNexis Canada, 2010) state, at 25:

[T]he three rules in Rule 2, entitled "Effect of Non- Compliance" . . . are concerned not so much with the meaning of provisions in the Rules but rather how they should be applied or whether they should be applied at all and, more specifically, with the legal consequences of non-compliance with the Rules. (Emphasis in original)

[35] Third, the case law, albeit limited, supports an interpretation limiting the word "irregularity" in Rule 2 to situations involving non-compliance with the Rules: see, for example, Leadbeater v. Darlington (Township), [1949] O.J. No. 115, [1949] O.W.N. 365 (H.C.J.) and Tummillo v. Prouty, [1990] O.J. No. 808, 42 C.P.C. (2d) 308 (Dist. Ct.).

[36] For these reasons, the respondents did not require leave under rule 2.02 to bring their motion to dismiss the appellants' action for non-compliance with the limitation period in the PAPA.

E. Disposition

[37] I would dismiss the appeal. The parties agreed that there should be no costs order. I would so order.

Appeal dismissed.