Court of Appeal for Ontario
Date: 2018-03-20 Docket: C64141
Judges: Rouleau, Huscroft and Fairburn JJ.A.
Between
Everton Brown Plaintiff (Appellant)
and
The Woodstock Police Services Board, Detective Sergeant Becks, Officer Wright, Officer Sylvester and Officer Westlake Defendants (Respondents)
Counsel
For the Appellant: Osborne G. Barnwell and Darryl Singer
For the Respondents: Brian McCall and Beth Belanszky
Heard: March 9, 2018
On appeal from: The judgment of Justice Russell M. Raikes of the Superior Court of Justice, dated July 7, 2017.
Reasons for Decision
[1] The appellant appeals from the order of the motion judge dismissing his action seeking damages for battery, illegal search, wrongful arrest and detention, and various related Charter breaches on the basis that it is time barred.
[2] The appellant was arrested by the respondent police officers on February 13, 2013. Subsequently he was prosecuted for possession of crack cocaine, possession for the purpose of trafficking, possession of the proceeds of crime, and resisting arrest. On October 22, 2015, the appellant entered into a peace bond and the charges against him were withdrawn. The appellant commenced this civil action against the respondents on May 13, 2016.
[3] The motion judge applied case law holding that a claim for damages for false arrest, false imprisonment, and breach of Charter rights crystallizes on the date of arrest, and that the limitation period for an assault or battery runs from the date the assault or battery occurs. He concluded that the appellant had sufficient facts within his knowledge on the day he was arrested – February 13, 2013 – and as a result, his action was commenced well outside the two-year limitation period.
[4] The parties were permitted to file supplementary factums in light of this court's decision in Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, which was released following the motion judge's decision.
[5] In our view, Winmill cannot be distinguished from this case on the basis that the charges in this case are different, or that the prosecution of the appellant ended with his entering into a peace bond rather than an acquittal. Nor is it relevant that Winmill was also concerned with a claim for negligent investigation. The key point is that, as in Winmill, the battery action is essentially a mirror image of the criminal charge the appellant was facing. As a result, it was open to the appellant to await the outcome of the criminal proceedings against him before finally deciding whether to bring his action, regardless of when he first formed the intention to sue.
[6] Specifically, the discovery date for the appellant's action was October 22, 2015 – the date the criminal charges against him were brought to a conclusion with a peace bond. The appellant had two years from that date in which to bring his action. Therefore, the appellant's action, which was commenced May 13, 2016, is not time barred. The respondent fairly concedes that, if the claim in battery is to proceed, then it is appropriate to reinstate the entire action, with the exception of the appellant's claim for malicious prosecution, which the appellant has abandoned.
[7] Accordingly, the appeal is allowed.
[8] The appellant is entitled to his costs on the appeal in the agreed amount of $10,500, and costs on the motion in the agreed amount of $12,000, both amounts inclusive of taxes and disbursements.
Paul Rouleau J.A. Grant Huscroft J.A. Fairburn J.A.



