COURT OF APPEAL FOR ONTARIO
CITATION: Vu v. Canada (Attorney General), 2021 ONCA 574
DATE: 20210823
DOCKET: C68398
Fairburn A.C.J.O., Miller and Zarnett JJ.A.
BETWEEN
Huan Vu
Plaintiff (Respondent)
and
Attorney General of Canada
Defendant (Appellant)
Kristina Dragaitis and Aleksandra Lipska, for the appellant
Subodh S. Bharati and W. Cory Wanless, for the respondent
Heard: March 4, 2021 by video conference
On appeal from the order of Justice Paul B. Schabas of the Superior Court of Justice, dated April 21, 2020, with reasons reported at 2020 ONSC 2447.
Fairburn A.C.J.O.:
A. Overview
[1] The respondent started a claim for false arrest, false imprisonment, and breaches of his rights under the Canadian Charter of Rights and Freedoms. The appellant brought a motion for summary judgment pursuant to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that the respondent’s action is statute-barred pursuant to ss. 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24. That motion was dismissed.
[2] This appeal is predicated on multiple alleged errors in the motion judge’s reasons, all of which are said to have led to the erroneous conclusion that the respondent’s action is not statute-barred. For the reasons that follow, I would dismiss this appeal.
Brief Factual Overview
[3] In 1999, the respondent, a Vietnamese citizen, came to Canada as a student. In 2001, his legal status in Canada expired, but he did not leave the country. In 2007, Citizen and Immigration Canada ordered his removal from Canada, but he remained in the country. Also in 2007, he was charged with and convicted of one count of possession of marijuana, for which he received a 3-month conditional sentence.
[4] In 2009, the respondent was placed into immigration detention. He was later released on terms, including that he reside at the home of his friend and bondsperson, Mr. John Le, and adhere to a nightly curfew from 2:00 a.m. to 6:00 a.m. Mr. Le also signed a $10,000 performance bond and a $15,000 cash bond to guarantee the respondent’s compliance with his release terms.
[5] In 2010, the respondent married his current wife. In 2012, he and his wife had a child. The respondent quickly became the child’s primary caregiver as his wife was the sole income earner. The respondent maintained that he would spend his days caring for the child in the home where his wife and child lived, but that he would always return to the residence of his bondsperson at night in order to comply with the terms of his release.
[6] The crux of the allegation leading to the respondent’s arrest, lengthy detention, and eventual deportation from Canada occurred on June 25, 2013 at about 10:00 a.m. On that day, Canada Border Services Agency (“CBSA”) officers, including Officer Erin McNamara, conducted a compliance check at the bondsperson’s residence. The respondent was not there. According to Officer McNamara’s statutory declaration, used at the immigration proceeding resulting in the respondent’s detention and ultimate deportation from Canada, she “spoke to an English speaking resident Ms. Than Luong.”
[7] Officer McNamara said that she showed Ms. Luong a picture of the respondent and asked if he was home. According to Officer McNamara, Ms. Luong responded that the respondent used to reside “in the basement with her daughter”, but that he had “moved out last summer” and did not live there anymore.
[8] On June 27, 2013, the respondent was arrested for breach of the terms of his release and placed into detention. The respondent attended two detention reviews before the Immigration Division tribunal on July 2, 2013 and July 9, 2013. At the second review, the respondent filed the sworn affidavit evidence of Ms. Dau Thi Le, the mother of the bondsperson, Mr. Le.
[9] In Ms. Le’s affidavit, she said that she was the woman who spoke to the CBSA officers on June 25, 2013, not Ms. Luong. Ms. Le said that she was present in the home that day because, despite her health problems, her daughter asked her to babysit her grandchildren. Ms. Le said that she does not “speak or understand English well, but [is] fluent in Vietnamese.” Even so, she said that she communicated with the officers in English. She described her interaction with the CBSA officers as follows:
Around 12 noon on that day, two people, a man and a woman, came to my daughter’s home, and when I opened the door, I saw them in bullet proof vests and they looked like police officers to me. I asked them in English what happened and they showed me a photograph and asked me in English if Hoan Vu lived at my daughter’s house, and I answered that I did not know.
When my daughter returned home at 3pm on that day, I told her that those two people came to her home to inquire if Hoan Vu lived there. My daughter then told me that Hoan Vu did live in her house, … but only at night.
[10] Ultimately, the Immigration Division tribunal accepted Officer McNamara’s evidence about what Ms. Luong said in English at the residence and ordered the respondent detained. The detention stretched over 467 days in what he described as a maximum-security facility.
[11] On October 7, 2014, well over a year after he was placed into detention, the respondent was escorted by CBSA officers to Vietnam, where he was released the next day.
[12] Because the respondent breached his terms, Mr. Le’s bonds were forfeited. Mr. Le contested the forfeiture of the bonds in Federal Court. In the context of that litigation, CBSA Officer Derek Sliwka authored a document entitled “Notes to File” (“Notes”), dated March 2, 2015. Of course, this was after the respondent had already been removed from the country.
[13] The Notes were disclosed and ultimately made their way to the respondent. In the Notes, Officer Sliwka wrote that, in preparation for writing the Notes, he “reviewed the electronic systems and the case file along with the submission from counsel”.
[14] Officer Sliwka summarized Mr. Le’s counsel’s position that Officer McNamara actually encountered Ms. Le at the door of the bondsperson’s home on June 25, 2013, and that she “does not speak English.” Officer Sliwka explained that Officer McNamara maintains that she spoke to Ms. Luong during her investigation and that “an interpreter was contacted by phone to translate the specific questions asked by Officer McNamara.”
[15] As a result of those Notes, the CBSA decided to reverse its position on the bond, settling the litigation with Mr. Le on June 13, 2016, ultimately agreeing to return his previously forfeited funds. In an internal email disclosed as part of the appellant’s motion record, it is clear that a decision had been reached to not forfeit the bonds because it “could not be defended due to the inconsistencies between the [statutory declaration of Officer McNamara] and the notes to file.”
[16] In affidavit evidence, the respondent explained the many things he was dealing with during his lengthy period in custody, including attempting to navigate the complexities involved with being removed from the country while having a child who would remain in Canada. Ultimately, though, the respondent explains that it was not until the Notes were released in the context of the bonds litigation that he came to realize that he had a claim. As he puts it:
Previously, I had trusted the Canadian government and had trusted the CBSA. I had put my faith in the adjudicators at my detention review hearings. I believed that they were doing their job and had not questioned them. I had thought that at worst the CBSA had made a mistake and misunderstood what I had done or what was going on. I thought maybe the Officer didn’t realize that John’s mom didn’t speak English. I had never believed that the CBSA would have withheld disclosure from the Immigration Division indicating that it knew the Statutory Declaration of Officer McNamara contained errors.
[17] Accordingly, the respondent commenced his action on October 7, 2016. The motion judge summarized the respondent’s claim for false arrest, detention, and Charter breaches as follows: “[t]he claim arises from the actions of the CBSA in arresting and supporting the [respondent’s] detention in June and July 2013, and specifically presenting false evidence at the review hearing on July 9, 2013, regarding the information allegedly obtained from the woman McNamara spoke to” at the bondsperson’s home.
B. The Reasons for Dismissing the Motion
[18] In addition to his claims for false arrest, false imprisonment, and breaches of Charter rights, the respondent made other claims, including malicious prosecution and breach of a settlement. Those latter claims were struck by Schreck J. on June 1, 2018 because they disclosed no reasonable cause of action.
[19] The appellant then moved for summary judgment, asking that the balance of the claim be struck on the basis that it was statute-barred by virtue of s. 5(2) of the Limitations Act, because the causes of action of false arrest, false imprisonment, and breaches of Charter rights are said to have been discoverable more than two years prior to the commencement of the action.
[20] Before reviewing the motion judge’s reasons for dismissing the motion, it is perhaps helpful to provide a chart that summarizes the key dates informing the limitation period:
| Date | Event |
|---|---|
| June 25, 2013 | Officer McNamara visits bondsperson’s home and communicates with what she describes as the “English speaking resident” |
| June 27, 2013 | Respondent is arrested and detained |
| July 9, 2013 | Immigration Division accepts Officer McNamara’s evidence over the respondent’s evidence, as captured in the sworn affidavit of Dau Thi Le, and orders the respondent detained |
| October 7, 2014 | Respondent is escorted by CBSA officers to Vietnam |
| October 8, 2014 | Respondent is released in Vietnam |
| June 10, 2015 | Notes disclosed in the context of the bonds litigation state that an interpreter was used to communicate with the person with whom the CBSA officers spoke on June 25, 2013 |
| June 13, 2016 | Decision communicated to the bondsperson that the $15,000 cash bond and $10,000 performance bond are “no longer required” and would be returned to him |
| October 7, 2016 | Action commenced by the respondent |
[21] The motion judge provided lengthy and considered reasons, commencing with a discussion of the legal principles that apply to both summary judgment and Limitations Act matters.
[22] The appellant argued that the torts of false arrest and false imprisonment arise upon arrest. As the alleged breaches of the respondent’s Charter rights are tied to the allegations involving false arrest and false imprisonment, they are also said to arise on the date of arrest. Therefore, according to the appellant, the torts advanced by the respondent were discoverable on June 27, 2013 – the date the respondent was arrested.
[23] The motion judge perceived some conflict in the law relating to when a limitation period commences for purposes of unlawful arrest and detention. Ultimately, though, he determined that he did not need to decide that issue because, in his view, even if the limitation periods for the intentional torts of false arrest and false imprisonment usually start on the date of arrest and detention, this is nothing more than a presumption. Like all limitation date matters, that presumption must be considered against the four-part test set out in s. 5(1)(a) of the Limitations Act.
[24] When considered against the four-part test in s. 5(1)(a), the motion judge was satisfied that the presumption had been displaced because the respondent did not have sufficient facts on which to base his claim of arrest and detention until the Notes were disclosed on June 10, 2015. In addition, the motion judge found that, pursuant to s. 5(1)(a)(iv) of the Limitations Act, even if the respondent had sufficient facts by July 9, 2013 on which to allege wrongdoing, it would not have been appropriate to bring a claim until after the disclosure of the Notes.
[25] The motion judge also rejected as “speculative and unpersuasive” the appellant’s suggestion that, even if the claim was not discoverable at the time of arrest, this resulted from the respondent’s failure to exercise due diligence in discovering his claim within two years of his arrest.
[26] Finally, the motion judge determined that, pursuant to s. 5(1)(b) of the Limitations Act, the respondent acted reasonably in the circumstances in which he found himself and could “not reasonably have been expected to have discovered his claim earlier than June 2015.”
[27] In the end, the motion judge concluded that June 10, 2015 was the pertinent discoverability date. Since the claim was started on October 7, 2016, the motion judge concluded that the claim was made well within the two-year limitation period.
C. ISSUES
(i) Overview
[28] The appellant argues that the motion judge made multiple errors in his decision to dismiss the motion for summary judgment.
[29] First, leaning on this court’s decision in Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973, the appellant argues that the limitation periods for the torts of false arrest and false imprisonment automatically commence upon arrest. As the alleged breaches of the respondent’s Charter rights are tied to the allegations involving false arrest and false imprisonment, the limitation periods for those breaches are also said to commence upon the date of arrest. Therefore, according to the appellant, the motion judge erred by failing to appreciate that the torts advanced by the respondent were, for all intents and purposes, automatically discoverable on June 27, 2013, the date the respondent was arrested, or, at the very latest, July 9, 2013, when the respondent learned of Officer McNamara’s evidence.
[30] Second, the appellant argues that the motion judge erred in law by failing to articulate and apply the correct test for discoverability.
[31] Third, even if the motion judge articulated the right test for discoverability, the appellant argues that he erred by making palpable and overriding errors of fact in arriving at the conclusion that the respondent had no claim to bring until the Notes were disclosed in June 2015.
[32] Fourth, the appellant contends that the motion judge erred by failing to appreciate that the respondent did not act with due diligence.
[33] Finally, the motion judge is said to have erred in concluding that it was appropriate within the meaning of s. 5(1)(a)(iv) and the circumstances of this case to delay bringing this action until after the Notes were disclosed.
[34] The respondent advances an alternative argument in the event that the appellant’s position finds favour in this court. In particular, the respondent argues that because he was transported by the CBSA to Vietnam, rendering him detained for a period of time outside of Ontario, s. 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 governs the limitation period in this case. If he is right on this, then a six-year (as opposed to two-year) limitation period would apply and the respondent’s claim would easily fall within that zone. As will become clear, there is no need to address this alternative argument
(ii) The Application of Kolosov
[35] The appellant argues that the motion judge erred in failing to find that this court’s decision in Kolosov stands for the clear proposition that the limitation period for wrongful arrest and detention commences on the date of arrest.
[36] The appellant argued before the motion judge that the Limitations Act barred the respondent’s action because the causes of action of false arrest, false imprisonment, and breaches of Charter rights (as linked to the other causes of action) all crystallized and were discoverable on the date of the respondent’s arrest on June 27, 2013 and, at the latest, at the time of the detention hearing on July 9, 2013. In support of this proposition, the appellant relies upon this court’s decision in Kolosov, at para. 11:
The law in relation to the commencement of the limitation period for the intentional torts of false arrest and false imprisonment, and associated Charter breaches, is well settled. As Chiappetta J. noted in Fournier-McGarry (Litigation guardian of) v. Ontario, 2013 ONSC 2581, at para. 16:
A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising there-from crystallizes on the date of arrest (see, Nicely v. Waterloo Regional Police Force, 1991 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14; [Ferri] v. Root, 2007 ONCA 79, [2007] O.J. No. 397 (Ont. C.A.), para. 102).
[37] The respondent, citing different and earlier appellate authority that he argued was not overturned by Kolosov, urged the motion judge to instead conclude that the limitation period commenced not on the date of arrest, but on the date of his release from detention in Vietnam: Mackenzie v. Martin, 1952 85 (ON CA), [1952] O.R. 849 (C.A.), at paras. 6-8, aff’d 1954 10 (SCC), [1954] S.C.R. 361.
[38] The motion judge reviewed the issue in some detail, clearly expressing misgivings about the broad interpretation of Kolosov being urged upon him by the appellant. Among other things, the motion judge looked behind the cases cited in Kolosov in an effort to explain why the appellant’s position about the reach of Kolosov was not as clear as suggested. The motion judge also expressed some “concern that a false arrest and an unlawful imprisonment may not occur at the same time.”
[39] Despite expressing these misgivings, in the end, the motion judge concluded that he need not resolve the parties’ disparate views as to whether the limitation period commenced on the date of arrest or release given that, even taking Kolosov at its highest, it only created a rebuttable presumption under s. 5 of the Limitations Act and that the presumption had been rebutted in this case:
While I have concerns with the broad application of Kolosov urged on me by the defendant, I do not need to resolve the conflict in the cases in this matter. … [S]ince section 5(1)(a) of the Limitations Act establishes a four-part test, I regard Kolosov as simply setting up a presumption (which was not rebutted in that case) that the cause of action arose on the date of arrest and detention or, at latest, the date of the second detention hearing [July 9, 2013], but it does not address all four parts of the test. This means I must still consider when the plaintiff had sufficient facts on which to base an allegation of wrongful arrest and detention ….
[40] Significantly, Kolosov has been cited by this court in subsequent decisions for the very proposition disputed by the respondent, that the limitation period presumptively runs from the date of arrest: see, for example, Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, 138 O.R. (3d) 641, at para. 44, per Huscroft J.A. (dissenting), leave to appeal refused, [2018] S.C.C.A. No. 39; McHale v. Lewis, 2018 ONCA 1048, 144 O.R. (3d) 279, at para. 42. Therefore, the appellant’s argument has some traction as to when limitation periods commence in cases of this nature.
[41] At the same time, I understand the appellant’s concern to be the motion judge’s characterization of the appellant’s reading of Kolosov, and his expression of misgiving about it. At the end of the day, though, the motion judge did not find that Kolosov stands for any principle broader than the presumption that a cause of action arises on the date of arrest and detention or, at the latest, the date of the second detention hearing a few weeks later. Indeed, the motion judge was prepared to resolve the motion on that basis. In the end, he simply resolved that the date of arrest – the Kolosov date – was the presumptive date for the commencement of the limitation period, but that the respondent had effectively displaced that presumption.
[42] Therefore, despite having expressed misgivings about the appellant’s submissions, I do not read the motion judge’s reasons as unfaithful to the plain language of Kolosov. Rather, he accepted, however reluctantly, the appellant’s position that the limitation period presumptively begins to run at the date of arrest. This makes sense legally, given that the arrest is the act on which the claim is based, and is therefore the presumptive date of discovery of the claim: Limitations Act, s. 5(2). It makes sense practically as well, as the plaintiff will often know at the time of arrest and detention whether the facts alleged to justify that arrest and detention are false, as was the case in Kolosov: see 2016 ONSC 1661, at para. 119. Accordingly, despite his expressed concerns, the motion judge’s reasoning turned on whether the Kolosov presumptive date was rebutted pursuant to ss. 5(1) and (2) of the Limitations Act.
[43] I see no error in that approach. Section 4 of the Limitations Act requires an action in respect of a claim to be commenced within two years of the claim being discovered. Sections 5(1) and (2) of the Limitations Act read as follows:
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; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. [Emphasis added.]
[44] Despite the presumption that Kolosov creates in relation to the running of the limitation period, s. 5(2) permits the contrary to be proved in accordance with the matters referred to in s. 5(1)(a). While that presumption was not rebutted in Kolosov, it was rebutted here. Accordingly, regardless of the hesitation expressed by the motion judge as to the reach of Kolosov, nothing in this case turns on those observations.
(iii) The Proper Articulation of the Test for Discoverability Based on Sufficient Facts
[45] The appellant next argues that, despite referring to the correct legal authorities respecting how to determine the date of discoverability based upon sufficient facts, the motion judge erred in his articulation and application of that test.
[46] The appellant notes that the discoverability principle is satisfied once the party has sufficient information to infer the material facts underlying the claim, a test that does not turn in any way upon the viability of the claim. The motion judge is said to have erred in failing to appreciate that the respondent knew all material facts by, at the latest, the Immigration Division hearing on July 9, 2013. By extending the discoverability date to June 10, 2015 – the date the Notes were disclosed – the motion judge is said to have erred by focusing on when the claim was more likely to succeed, rather than when the respondent knew the claim existed.
[47] Limitation periods are driven by when the “material facts on which [a cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”: Central Trust Co. v. Rafuse, 1986 29 (SCC), [1986] 2 S.C.R. 147, at p. 224; see also Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at paras. 29, 42. As noted by this court in Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, at para. 41, leave to appeal refused, [2019] S.C.C.A. No. 91: “discoverability means knowledge of the facts that may give rise to the claim. The knowledge required to start the limitation running is more than suspicion and less than perfect knowledge.”
[48] In my view, the motion judge identified the correct law relating to limitation periods. Notably, the motion judge cited to this court’s judgment in Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 22, which in turn quoted from this court’s earlier judgment in Aguonie v. Galion Solid Waste Material Inc.(1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.), at p. 170:
The principle of discoverability provides that “a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence. This principle conforms with the generally accepted definition of the term ‘cause of action’ — the fact or facts which give a person a right to judicial redress or relief against another”: Aguonie v. Galion Solid Waste Material Inc. [citation omitted.]
[49] As emphasized by the motion judge, the real question is whether the plaintiff knows enough facts with which to bring forward the claim: Lawless, at para. 23. If the plaintiff does know “enough facts”, then the claim is discovered and the limitation period begins to run. Knowing enough facts means knowing the “material facts” that are necessary to make the claim: Lawless, at para. 28.
[50] I reject the suggestion that the motion judge did not appreciate that the principle of discoverability does not turn on whether the claim has a likelihood of success. As the motion judge put it, “the discovery of a claim is also not dependent upon the plaintiff knowing that his claim is likely to succeed”. The motion judge was right in this regard. As noted by Hourigan J.A. in Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005, 441 D.L.R. (4th) 393, at para. 19, a determination of when it is appropriate to proceed with a claim does not include “whether a civil proceeding will succeed.” I see nothing in the motion judge’s reasons that would suggest he was unfaithful to that statement of law.
[51] To the contrary, the motion judge’s reasons demonstrate that he was alive to the applicable law concerning discoverability. The law having been correctly stated, the question really becomes whether the motion judge made palpable and overriding errors of fact. I will now explain why he did not.
(iv) No Palpable and Overriding Errors of Fact
[52] The appellant acknowledged during oral argument that the real core of this appeal turns on what is said to be a palpable and overriding error of fact made by the motion judge.
[53] The appellant claims that the motion judge erred in concluding that the Notes disclosed in the context of the bonds litigation brought anything new to the appellant’s attention. According to the appellant, the only way that the motion judge could have come to this conclusion would be if he had completely forgotten about or disregarded the Le affidavit that the appellant filed at the Immigration Division hearing on July 9, 2013.
[54] The argument goes like this. At the latest, the respondent knew by July 9, 2013 (the Immigration Division hearing date) that Officer McNamara claimed to have spoken to an “English speaking resident Ms. Than Luong” at the doorway on June 25, 2013. Also by July 9, 2013, it is clear from the evidence filed by the respondent at the Immigration Division hearing that he maintained that it was not Ms. Luong but rather Ms. Le who spoke with the CBSA officers at the front door of the residence, and that she did not speak English well. The appellant places importance on the fact that the Le affidavit suggests that she attempted to communicate with the CBSA officers in English and makes no mention of an interpreter.
[55] The appellant argues that the Le affidavit was fundamental to the resolution of the motion because it demonstrates that there was no interpreter used. And, even if there was an interpreter used, the appellant says that, with the McNamara statutory declaration and the Le affidavit in hand by July 9, 2013, it is clear that the respondent knew he had a claim if he wished to proceed. Therefore, the motion judge’s palpable and overriding error is said to be implicit in the failure to appreciate the importance of the Le affidavit, thereby leaving the motion judge with a distorted view of the importance of the new information provided in the Notes.
[56] Based upon this line of argument, the appellant contends that the motion judge could not have come to the following conclusion:
In the particular context of this case, therefore, I find as a fact that Vu did not have sufficient facts on which to allege wrongdoing by the CBSA for which he could seek damages until June 10, 2015, when he received the [Notes] disclosing that McNamara had used an interpreter when conducting her investigation in June 2013. [Emphasis added.]
[57] In my view, it was open to the motion judge to arrive at this factual finding.
[58] Importantly, he based the finding upon the respondent’s affidavit evidence explaining that, prior to receiving the Notes and learning that an interpreter had been used during the interaction at the doorway of the bondsperson’s home, he thought that the CBSA had only made a mistake and misunderstood what had been communicated by the woman who answered the door. As the respondent put it: “I thought maybe the Officer didn’t realize that John’s mom didn’t speak English.” It was only after receiving the Notes that the respondent came to realize, as he suggests in his affidavit, that the CBSA had actively misled the Immigration Division. I see no error in the motion judge leaning on that evidence to arrive upon his conclusion as reproduced above.
[59] As well, the motion judge was not oblivious to the Le affidavit. To the contrary, he specifically referenced it in his reasons, albeit in his factual overview of the case:
July 9, 2013 – Vu attends his second detention review before the ID. he submits affidavits that the woman the CBSA spoke to at [the bondsperson’s home] on June 25, 2013, Dau Thi Le, his bondsperson’s mother, did not speak English well, that she did not live there but rather was babysitting that day, and that she said she did not know if Vu lived there.
[60] Clearly, the motion judge was alive to the Le affidavit.
[61] In my view, it was open to the motion judge to come to the conclusion that he did. The Notes make clear reference to the fact that “Officer McNamara indicates that during her investigation, she was talking with Ms. Than Luong and an interpreter was contacted by phone to translate the specific questions asked by Officer McNamara.” Yet this stood in direct contrast with Officer McNamara’s statutory declaration. While the truth undoubtedly lies somewhere and, at some point, may see the light of day, it cannot be said that the motion judge committed a palpable and overriding error when he concluded that the respondent did not have sufficient facts on which to allege wrongdoing until he received the Notes. Nor can it be said that there is anything in the Le affidavit that detracts from that conclusion.
(v) The Motion Judge Did Not Err on Due Diligence
[62] The appellant also argues that, even if a later discoverability date applies, the respondent did not act with due diligence in discovering his claim within two years of his arrest. The motion judge is said to have erred in concluding that this argument was, at best, “speculative and unpersuasive”. To the contrary, the appellant contends that the respondent could have discovered additional details if he had proceeded with an application for leave and judicial review of his detention in Federal Court.
[63] While a plaintiff is required to act with due diligence when determining if they have a claim to bring forward, the content of the duty of due diligence depends on the circumstances of each case: Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 42.
[64] I see no error in the motion judge’s conclusion that the appellant’s argument on due diligence was speculative and unpersuasive.
[65] In light of all of the harsh circumstances involved in the respondent’s detention – all 467 days of them, including being detained outside of Toronto, far from family and his lawyer; enduring strip searches and frequent lockdowns; and having limited resources to investigate the lawfulness of his arrest and subsequent detention while incarcerated – it was open to the motion judge to find that the respondent did not fail to exercise due diligence in discovering his claim.
[66] Moreover, the respondent explained that he did not pursue a review of the Immigration Division’s determination because the CBSA led him to believe that his detention would be brief and removal imminent, making what he believed to be a lengthy judicial review application pointless. This context is relevant to understanding what degree of due diligence was required of the respondent.
[67] In any event, it was not clear how a review would have led to the disclosure of the content of the Notes.
[68] The motion judge’s finding on this point is owed deference and I would not interfere with it.
(vi) The Motion Judge’s Alternative Finding
[69] Finally, the appellant argues that the motion judge erred in arriving at the alternative conclusion that it would not have been “legally appropriate” to bring the claim earlier than June of 2015: Federation Insurance Co. of Canada v. Markel Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34.
[70] In light of the resolution of the former issues, there is no need to address this one, other than to say that I see no error in the motion judge’s alternative reasoning.
D. Conclusion and Costs
[71] The appeal is dismissed.
[72] The appellant raised the issue of costs, arguing that the $54,000 ordered by the motion judge was too high. I see no error in how the motion judge arrived at this amount. His decision is owed deference. Therefore, the appeal as to costs is dismissed.
[73] Costs for the appeal will be fixed in the amount of $15,000, all inclusive.
Released: “August 23, 2021 JMF”
Fairburn A.C.J.O.”
“I agree B.W. Miller J.A.”
“I agree B. Zarnett J.A.”