Court of Appeal for Ontario
Date: 2017-12-06 Docket: C63892
Judges: Strathy C.J.O., Juriansz and Huscroft JJ.A.
Between
Nora Thomson and Peter King Plaintiffs (Appellants)
and
Durham Regional Police Services Board and Paulo Dellipizzi Defendants (Respondents)
Counsel
Joshua Evans, for the appellants
Nadia Marotta, for the respondents
Heard: December 4, 2017
On appeal from: the order of Justice Myrna L. Lack of the Superior Court of Justice, dated May 16, 2017.
Reasons for Decision
[1] This is an appeal from an order, made on the respondents' summary judgment motion, dismissing the appellants' action on the basis it was not brought within the two-year limitation period set out in s. 4 of the Limitations Act.
[2] The appellants submit that s. 4 of the Limitations Act does not apply to their action as it is a proceeding to enforce a court order. Section 16(1)(b) of the Limitations Act provides there is no limitation period for the enforcement of a court order.
[3] An order of disposition under s. 490(9) of the Criminal Code issued December 14, 2011 and revised June 27, 2012, ordered that specified items of property among property seized by the respondents from the appellants in 2010 be released to them, and the remaining property be forfeited to the Crown. The appellants picked up some items from the Police Services' Property Bureau on November 20, 2012 and January 24, 2013, but on January 9, 2013 claimed some of that property was missing or damaged. On March 2, 2013 a lawyer representing the appellants threatened but did not commence a civil action in respect of the missing and damaged property. On May 24, 2014 all remaining property in the respondents' possession was forfeited to the Crown in accordance with the order of disposition. The appellants commenced this action on November 4, 2015.
[4] The respondents moved for summary judgment on the basis that the action was barred by s. 4 of the Limitations Act because the appellants' action was commenced more than two years after they knew that the property they claimed was missing or damaged. The motion was granted and the appellants have brought this appeal.
[5] The appellants submit that the motion judge erred by saying "The plaintiff's knew when they began the action that the defendants no longer had any of the seized property in their possession. They pleaded that. They were aware that the order of June 27, 2012 could not actually be enforced." The appellants point to paragraph 10 of their statement of claim that pleads they learned only on March 15, 2015 that the seized property had been forfeited to the Crown. They argue that they commenced their legal action within two years of that date and so the action was commenced in time.
[6] The appellants misunderstand the import of the motion judge's reasons. The remark of the motion judge is precisely correct. When the appellants commenced their action on November 4, 2015, they already knew all remaining property in the hands of the respondents had been forfeited to the Crown. They pleaded they knew that on March 15, 2015. Therefore, the motion judge reasoned the true and actual object of the action could not have been to enforce the order for the return of the goods. Instead, she reasoned the appellants actually started their action to claim for new court order for monetary damages based on allegations of neglect or refusal to return goods and damage to property.
[7] We agree with the motion judge's characterization of the appellants' action and with her conclusion that it falls outside the scope of s. 16(1)(b) of the Limitations Act, 2002. The latest that the limitation period for the appellants' action for monetary damages could have begun was March 2, 2013 when they threatened legal action. They did not commence their action until more than two years later and the motion judge properly dismissed it.
[8] The appeal is dismissed with costs in favour of the respondents fixed in the amount of $9,000.00 inclusive of disbursements and all applicable taxes.
"G.R. Strathy C.J.O."
"R.G. Juriansz J.A."
"Grant Huscroft J.A."