Winmill v. Woodstock Police Services Board

[Indexed as: Winmill v. Woodstock Police Services Board]

Ontario Reports

Court of Appeal for Ontario

K.N. Feldman, MacPherson and Huscroft JJ.A.

December 7, 2017

138 O.R. (3d) 641 | 2017 ONCA 962

Case Summary

Limitations — Discoverability — Plaintiff commencing action against police for battery and negligent investigation two years and one day after alleged assault — Motion judge erring in dismissing battery claim as statute-barred — Plaintiff not aware that action would be appropriate means to seek remedy for battery until criminal charges against him of assault and resisting arrest arising out of same incident were dismissed.

The plaintiff was charged with assaulting a police officer and resisting arrest as a result of an incident at his home on June 1, 2014. He was acquitted of both charges on February 17, 2016. On June 2, 2016, he commenced an action against the defendants for damages for battery and negligent investigation arising from the June 1, 2014 incident. On a motion by the defendants for summary judgment, the motion judge dismissed the battery claim as statute-barred as it was not brought within two years of the alleged battery. The plaintiff appealed.

Held, the appeal should be allowed.

Per MacPherson J.A. (K.N. Feldman J.A. concurring): The plaintiff did not know that a legal proceeding "would be an appropriate means to seek to remedy" the injuries caused by the alleged battery within the meaning of s. 5(1)(a)(iv) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B until he was acquitted of the charges against him on February 17, 2016. The battery claim and the negligent investigation claim, which was proceeding, were inextricably intertwined. In the specific factual setting of this case, it made sense for the plaintiff to postpone deciding whether to make a battery claim against the defendants until his criminal charges were resolved. As the discoverability date for the battery claim was February 17, 2016, the claim was not statute-barred.

Per Huscroft J.A. (dissenting): The plaintiff knew that a legal proceeding would be an appropriate means to seek redress for his injury on June 1, 2014. "Appropriate" means "legally appropriate". A claimant cannot delay the start of a limitation period for an intentional tort in order to await the outcome of related proceedings.

Authorities Considered

Chimienti v. Windsor (City), 2011 ONCA 16

Other Cases Referred To

407 ETR Concession Co. v. Day, 2016 ONCA 709

Boyce v. Toronto (City) Police Services Board, 2012 ONCA 230, affirming 2011 ONSC 53

Brown v. Baum, 2016 ONCA 325

Brown v. Woodstock (City) Police Service Board, 2017 ONSC 4218

F. (E.B.) (Litigation guardian of) v. Ontario, 2013 ONSC 2581

Kolosov v. Lowe's Companies Inc., 2016 ONCA 973

Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218

Novak v. Bond

Roda v. Toronto (City) Police Services Board, 2017 ONCA 768, affirming 2016 ONSC 743

West v. Ontario, 2015 ONCA 147

Wong v. Toronto Police Services Board

Statutes Referred To

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5(1)(a)(iv), (b)

APPEAL

From the order of A.K. Mitchell J. of the Superior Court of Justice dated June 14, 2017 dismissing a battery claim.

Counsel:

Kevin A. Egan, for appellant

David S. Thompson, for respondent

DECISION

MACPHERSON J.A. (K.N. FELDMAN J.A. concurring):

A. Introduction

[1] The appellant, Robert Winmill, appeals from the decision of Mitchell J. of the Superior Court of Justice dismissing, on a motion, the appellant's claim for battery against the respondents Woodstock Police Service and various police officers as statute-barred by virtue of s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B ("LA").

[2] The central issue is when the appellant discovered his potential claim in battery against the respondents. Resolution of this issue focuses on the interpretation of s. 5(1)(a)(iv) of the LA, and in particular on when the appellant knew that a legal proceeding would be "an appropriate means to seek to remedy" the alleged battery against him.

B. Facts

(1) The parties and events

[3] On the evening of June 1, 2014, there was an altercation at the appellant's home between the appellant and one of his sons. The appellant's wife called the police.

[4] According to the appellant's statement of claim, several officers from the Woodstock Police Service arrived at his home. By the time of their arrival, he was alone in the home. According to the appellant, Constables Dopf and Campbell entered the home and confronted him in the living room. Constable Dopf initiated unnecessary and aggressive physical contact with him. Constable Campbell joined in. The two constables forced the appellant to the ground and struck the appellant in the back and head with knee strikes and punches. In the process, the constables handcuffed the appellant in such an aggressive manner that he suffered cuts and bruises to his arms.

[5] The appellant was taken to the police station. He was charged with assaulting Constable Dopf and resisting arrest. He was not charged with any offence relating to the altercation with his son.

[6] On February 17, 2016, the appellant was acquitted of both charges by Graham J. of the Ontario Court of Justice. The trial judge concluded:

I cannot state with a requisite degree of certainty that Robert assaulted Constable Dopf at that moment. It is possible as it would explain the robust police reaction. However, it is equally plausible that Dopf pushed Robert with a fair degree of force and that the defendant reacted to an unlawful assault by actively trying to disengage from police. There is no suggestion he kneed or punched the officers.

In any event, during the subsequent interaction I am not certain that Robert was lawfully under arrest. It is possible that police advised him during the course of that struggle. It is equally likely that he was arrested inside the police cruiser once he had been secured. The photographs show injuries to the defendant, but they do not assist me in resolving the matter.

Based on the evidence that I do accept I am left with a reasonable doubt with respect to both charges. The defendant is found not guilty.

[7] On June 2, 2016, the appellant filed a notice of action against the respondents, signalling that he would be seeking damages for negligent investigation and assault. This was two years and one day after the alleged battery had taken place.

[8] On June 22, 2016, the appellant filed a statement of claim sounding in the tort of battery, abuse of authority as police officers and negligence in the discharge of police duties.

[9] On September 16, 2016, the respondents filed a notice of motion seeking to dismiss the action because the relevant limitation period had expired. The motion was not argued in the autumn of 2016.

[10] On February 24, 2017, Gorman J. of the Superior Court of Justice made a consent order permitting the appellant to make factual allegations to support a claim for negligent investigation.

[11] On March 24, 2017, the respondents filed an amended amended notice of motion seeking an order that "[t]he limitation period for the Plaintiff's claim for damages arising from assault or battery has expired". The respondents did not say that the appellant's claim grounded in negligent investigation was statute-barred.

(2) The motion

[12] The respondents' motion was argued on April 3, 2017. The appellant resisted a limitation period expiration date of June 1, 2016 (two years after the alleged battery) on three bases -- discoverability; inability to commence an action because he was in custody and/or the courthouse was closed on June 1, 2016; and incapacity to commence a proceeding because of a physical, mental or psychological condition.

[13] The motion judge rejected the appellant's arguments. She concluded:

The defendants' motion is granted and the plaintiff's claim for battery is dismissed. The limitation period for the tort of negligent investigation began to run on February 17, 2016 (the date Mr. Winmill was found not guilty) and, therefore, the plaintiff's claim for negligent investigation is unaffected and may continue.

[14] The appellant appeals from the motion judge's decision.

C. Issue

[15] The sole issue on the appeal is did the motion judge err by concluding that the appellant's claim in battery against the respondents was not made inside the two-year limitation period prescribed by s. 4 of the LA?

D. Analysis

[16] The analysis of the limitation period in this case must take place within the confines of ss. 4 and 5(1) of the LA, which provide:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it [.]

(b) [...]

[17] I begin with a structural point. In a single case where a plaintiff alleges different torts, it is possible and permissible for different limitation periods to apply to the different torts: see West v. Ontario, 2015 ONCA 147, at paras. 2-3.

[18] Turning to s. 5(1)(a) of the LA, in this case there is no issue with respect to the first three of the four factors set out in this clause. The appellant knew that he had been injured on June 1, 2014, that the injury was caused by physical blows to his body, and that at least some of the respondents administered those blows.

[19] The crucial issue is the fourth factor: did the appellant know on June 1, 2016 that a legal proceeding would be an appropriate means to seek to remedy the injuries caused by the alleged battery committed against him?

[20] The motion judge answered this question in the affirmative. She reasoned:

It is clear from the evidence the plaintiff had knowledge that litigation was available to him as a remedy for the damages he had suffered at the hands of the police. Whether and to what extent he may have been found criminally responsible for the offences with which he had been charged was in no way determinative of whether or not he had been the subject of excessive force and assaulted by police.

The plaintiff admitted he knew litigation was an option and by extension he is therefore deemed to know it was appropriate to sue the Woodstock Police Service for redress of his injuries suffered on June 1, 2014.

[21] In assessing whether the motion judge erred in reaching this conclusion, I begin with three contextual points about subclause (iv) of s. 5(1)(a) of the LA.

[22] First, the word "appropriate" means "legally appropriate". As explained by Sharpe J.A. in Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, at para. 34:

In my view, when s. 5(1)(a)(iv) states that a claim is "discovered" only when "having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it", the word "appropriate" must mean legally appropriate. To give "appropriate" an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions.

[23] Second, this does not mean that determining whether a limitation period applies involves pulling two simple levers -- date of injury and date of initiation of legal proceeding -- and seeing whether the result is inside or outside the limitation period prescribed by the relevant statute. On the contrary, other important factors can come into play in the analysis. As Laskin J.A. cautioned in 407 ETR Concession Co. v. Day, 2016 ONCA 709, at paras. 33-34:

The appropriateness of bringing an action was not an element of the former limitations statute or the common law discoverability rule. This added element can have the effect -- as it does in this case -- of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant's actions.

Also, when an action is "appropriate" depends on the specific factual or statutory setting of each individual case: see Brown v. Baum, 2016 ONCA 325, at para. 21. Case law applying s. 5(1)(a)(iv) of the Limitations Act, 2002 is of limited assistance because each case will turn on its own facts.

[24] Third, within the rubric of "the specific factual or statutory setting of each individual case", s. 5(1)(b) of the LA requires that attention be paid to the abilities and circumstances of the person with the claim: see Novak v. Bond, at para. 85; and 407 ETR, at paras. 44-46.

[25] Against this background of general principles, I turn to the motion judge's conclusion that the appellant's battery claim was outside (by one day) the two-year limitation period prescribed by s. 4 of the LA. With respect, I think that the motion judge erred, essentially for three reasons.

[26] First, the appellant's negligent investigation claim is proceeding. The parties agree that the discoverability date for this claim is February 17, 2016, the day the appellant was acquitted on the criminal charges against him. Factually, the negligent investigation claim covers almost precisely the same parties and events as the battery claim. There was virtually no investigation in this case. The police were called, they arrived and immediately entered the appellant's home, and some kind of altercation quickly unfolded.

[27] In my view, the appellant's amended statement of claim shows how inextricably intertwined are the two alleged torts:

14 e. The Defendant officers were present and knew or ought to have known that the Plaintiff did not commit an assault against any police officer. There was no reasonable cause for the Defendant officers to arrest or charge the Plaintiff with assault of a police officer.

14 f. As the Plaintiff stood motionless, he was pushed violently in the chest by the Defendant Dopf. He was then thrown to the floor. Knee strikes and punches were then delivered by both the Defendants Dopf and Campbell. He was handcuffed, removed from the house and taken to the police station.

[28] Second, I agree with the appellant that, in the specific factual setting of this case (407 ETR), and bearing in mind the circumstances of the person with the claim (Novak), it made sense for him to postpone deciding whether to make a battery claim against the respondents until his criminal charges for assault and resisting arrest were resolved. The criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are, in reality, two sides of the same coin or mirror images of each other.

[29] In general terms, McLachlin J. said this in Novak, at para. 85:

Litigation is never a process to be embarked upon casually and sometimes a plaintiff's individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely.

[30] In my view, a good specific example of the operation of this general point is Brown v. Baum, 2016 ONCA 325, a case involving the determination of a limitation period where a patient contemplated suing her doctor following a poor surgical result, but did not do so until after the doctor made subsequent efforts to correct the damage. In upholding the motion judge's decision to extend the commencement of the limitation period to "the date of Ms. Brown's last ameliorative surgery by Dr. Baum" (para. 5), Feldman J.A. said, at para. 24:

[The motion judge] was entitled to find that Ms. Brown did not know that it was appropriate to sue Dr. Baum until after the last surgery he performed to try to correct the complications and improve the outcome of the original surgery. As the motion judge observed, it is not simply an ongoing treatment relationship that will prevent the discovery of the claim under s. 5. In this case, it was the fact that the doctor was engaging in good faith efforts to remediate the damage and improve the outcome of the initial surgery. This could have avoided the need to sue.

[31] In a similar vein, it strikes me as obvious that the verdict in the appellant's criminal trial, especially on the assault charge, would be a crucial, bordering on determinative, factor in the appellant's calculation of whether to proceed with a civil action grounded in a battery claim against the respondents.

[32] Third, and overlapping with the second reason, there is a case almost directly on point suggesting that the appellant was justified in waiting for the verdict in his criminal trial before commencing a civil claim against the respondents. In Chimienti v. Windsor (City), 2011 ONCA 16, the plaintiff was charged with assault following a tavern brawl. The charge was dropped. The plaintiff commenced a civil action with claims of negligent and malicious investigation. The motion judge dismissed the action on the basis of the relevant statutory limitation period. This court, although dismissing the appeal on other grounds, disagreed with the motion judge's analysis of the discoverability issue. In doing so, the court said, at para. 15:

[T]here 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.

[33] In my view, this passage is particularly applicable to this appeal. As I said earlier, the criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are very close to being two sides of the same coin or mirror images of each other. Accordingly, it made sense for the appellant to focus on his criminal charges and deal with those before making a final decision about a civil action against the respondents.

[34] For these reasons, I am of the view that the discoverability date for the appellant's battery claim was the same as the discoverability date for his negligent investigation claim -- February 17, 2016, the date of his acquittal on the criminal charges -- and, accordingly, his notice of action on June 2, 2016 brought both claims within s. 4 of the LA.

E. Disposition

[35] I would allow the appeal, set aside the order of the motion judge and permit the appellant's battery claim against the respondents to proceed to trial.

[36] The appellant is entitled to his costs of the appeal which I would fix at $5,000. I would set aside the motion judge's costs award in favour of the respondents and replace it with an award of $8,948.56 in favour of the appellant. Both amounts are inclusive of HST and disbursements.

DISSENTING OPINION

HUSCROFT J.A. (dissenting):

[37] I have had the benefit of reading the draft reasons prepared by my colleague, MacPherson J.A. With respect, I do not agree with his analysis and would dismiss the appeal for the reasons that follow.

[38] This is a straightforward case. On June 1, 2014, the appellant knew that he had suffered an injury, knew how the injury was caused, knew who he alleged had caused his injury, and knew that a legal proceeding would be an appropriate means to seek redress. He failed to bring his claim by June 1, 2016, and in my view his claim is now barred by operation of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[39] My colleague concludes that the limitation period did not begin to run from the date of the alleged battery, but instead almost 21 months later -- February 17, 2016, when the appellant was acquitted of assaulting the police officers he alleges were responsible for the battery. He concludes that the appellant did not know -- and a reasonable person in the appellant's position ought not have known -- that a legal proceeding would be an appropriate means to seek to remedy the injuries caused by the alleged battery within the meaning of s. 5(1)(a)(iv) of the Act until this much later date.

[40] In my view, the decision of this court in Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218 is key to the correct outcome in this case. In that case, Sharpe J.A. explained that "appropriate" under s. 5(1)(a)(iv) of the Act must mean "legally appropriate", and, at para. 34, admonished against giving the term a broad meaning:

To give "appropriate" an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened . . . would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions.

[41] My colleague acknowledges the authority of Markel, but in my view undermines it by emphasizing the need to attend to the factual circumstances of individual cases, drawing on this court's subsequent decisions in 407 ETR Concession Co. v. Day, 2016 ONCA 709 and Brown v. Baum, 2016 ONCA 325. But both of these cases are clearly distinguishable. An action in 407 ETR was not "appropriate" at the time of the injury because an alternative administrative means of settling the dispute had not been completed. An action in Brown was not "appropriate" at the time of the injury because the defendant surgeon was providing further treatment in an attempt to rectify the harm he was alleged to have caused in the initial surgery.

[42] There was no alternative means of resolving the appellant's allegations in this case, nor were the defendants in a position to rectify the harm they were alleged to have caused. My colleague considers it obvious that the appellant should await the outcome of the criminal proceedings against him, relying on dicta from Chimienti v. Windsor (City), 2011 ONCA 16. But that case, too, is distinguishable, among other reasons because it concerned claims of negligent and malicious investigation -- claims that depended on the completion of the relevant criminal proceedings on which they were based.

[43] The claim of battery in this case did not. And although the appellant also seeks to advance a claim for negligent investigation, it is a separate tort to which a separate limitation period applies: West v. Ontario, 2015 ONCA 147, at paras. 2-3. A claimant cannot delay the start of a limitation period for one tort claim by tying it to another tort claim with a later limitation date, even where the claims arise out of common circumstances.

[44] Nor can a claimant delay the start of a limitation period for an intentional tort in order to await the outcome of related criminal proceedings. This approach has been followed by Ontario trial courts in many cases. For example, in Brown v. Woodstock (City) Police Service Board, 2017 ONSC 4218, the court held that a limitation period involving various claims against police including battery during an arrest ran from the date of the plaintiff's arrest, not the date of his acquittal on criminal charges; in Boyce v. Toronto (City) Police Services Board, 2012 ONCA 230, affirming 2011 ONSC 53, the limitation period in a civil action against police ran from the date of the battery rather than the officers' conviction on assault charges. See, also, F. (E.B.) (Litigation guardian of) v. Ontario, 2013 ONSC 2581 and Wong v. Toronto Police Services Board. Similarly, in Kolosov v. Lowe's Companies Inc., 2016 ONCA 973, this court affirmed the trial judge's decision that a limitation period involving intentional tortious conduct alleged to have occurred on arrest ran from the date of the arrest rather than the date of the withdrawal of the criminal charges. See, also, Roda v. Toronto (City) Police Services Board, 2017 ONCA 768, affirming 2016 ONSC 743. My colleague offers no reason to depart from this body of law.

[45] In this case, the appellant decided, for tactical reasons, not to bring his battery action until after the criminal proceedings against him had concluded. My colleague acknowledges as much in stating that "it made sense for [the appellant] to postpone deciding whether to make a battery claim against the respondents". That was an improvident decision, and this court has no discretionary power to relieve against the consequences of it, whether the appellant's claim is a day late or year late.

[46] In my view, the motion judge made no errors. The battery claim is late. The negligent investigation claim is not. I would dismiss the appeal.

Result

Appeal allowed.

End of Document