WARNING THIS APPEAL IS SUBJECT TO a publication ban issued October 31, 2019 by Justice Thomas M. Wood:

“1. THIS COURT ORDERS that there will be an order that the publication of any material that could identify either of the plaintiffs is prohibited.”

Court of Appeal for Ontario

Date: 2022-04-06 Docket: C69700

Doherty, Huscroft and Harvison Young JJ.A.

BETWEEN

X.H. and C.H. Respondents

and

Her Majesty the Queen in Right of Ontario and OPP Sergeant Randy Cota Appellant

Counsel: Norman Groot and Erin Stoik, for the appellant Randy Cota Shahana Kar and Michael Saad, for the defendant Her Majesty the Queen Daniel Zacks, Cara Valiquette and Jay Herbert, for the respondents

Heard: March 28, 2022 by video conference

On appeal from the order of Justice Mark L. Edwards of the Superior Court of Justice, dated June 22, 2021.

Reasons for Decision

[1] The respondents issued a statement of claim on September 19, 2016, alleging that the appellant police officer, Randy Cota, had committed various torts including negligence, intrusion upon seclusion, extortion/intimidation, misfeasance in public office, and intentional infliction of nervous shock. The claim alleged that the appellant attempted to manipulate and control the respondents, and to exact revenge on them for C.H.’s rejection of his sexual advances. The respondents were granted leave to amend their claim in October 2019 to include sexual assault and battery. The amended claim pleaded that the appellant used his authority as a police officer to force sex on C.H.

The motions to strike and for summary judgment

[2] The appellant brought a number of motions, including motions to strike the 2016 claims and for summary judgment. The appellant argued the claims were statute barred and that the respondents added allegations of sexual assault to their 2016 claims in order to circumvent the defence the appellant would otherwise have had under the Limitations Act, 2002, S.O. 2002 c. 24, Sch. B.

[3] The motion judge found that the pleadings of sexual assault triggered s. 16(1)(h) of the Act, which provides that there is no limitation period in respect of a proceeding based on a sexual assault. The motion judge found, further, that s. 16(1.3) operated to bring the claims arising from the other torts within the scope of s. 16(1)(h) and s. 16(h.1), because the appellant was a police officer at the time the acts were alleged to have occurred and so was in a position of trust and authority over C.H.

[4] Consequently, the motion judge dismissed the appellant’s motion to strike the claim and motion for summary judgment. In addition, the motion judge declared that no limitation period applied to any of the respondents’ claims.

[5] The appellant makes two arguments on appeal. First, he argues that s. 16(1.3) applies only to claims against third parties. We disagree.

[6] This argument proceeds from a misreading of the decision in Jane Doe v. Weinstein, 2018 ONSC 1126 and of s. 16(1.3), which provides:

(1.3) For greater certainty, clauses (1)(h), (h.1) and (h.2) are not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act, which may include claims for negligence, for breach of fiduciary or any other duty or for vicarious liability.

[7] This section makes plain that no limitation period applies to any claim in relation to the sexual misconduct. Jane Doe applied but did not limit the application of the s. 16(1.3) to third parties. It applies to claims against the perpetrator of the sexual misconduct as well as third parties.

[8] The motion judge did not err in finding that the claims in the amended Statement of Claim were in relation to sexual misconduct. The record before the motion judge established a connection between the alleged sexual assaults and the non-sexual torts alleged. That connection was sufficient to potentially afford all of the claims the protection of s. 16.

[9] The motion judge properly dismissed the appellants’ motion for summary judgment. We do, however, agree with the appellant’s further submission that the motion judge erred in not only dismissing the summary judgment motion, but also declaring that no limitation defence applied to the claims. Paragraph 2 of the order reads:

THE COURT DECLARES that no limitation period applies to any of the Plaintiffs’ claims.

[10] The effect of this declaration was to deny the appellant the opportunity to establish at trial that s. 16 did not apply to the non-sexual torts. For example, if the trial judge were to conclude that the sexual assaults alleged by the plaintiffs did not occur, s. 16 would not be engaged and the non-sexual assault torts would be subject to the normal two-year limitation period. Under that limitation period, those claims are statute-barred.

[11] The motion judge should have left the ultimate determination of the application of s. 16 to the non-sexual assault torts to the trial judge. The trial judge could make that determination based on the findings of fact made at trial, especially any finding as to whether the alleged sexual assaults actually occurred.

[12] Accordingly, the declaration must be set aside.

The costs order

[13] The appellant argues that success on the motion was divided and the motion judge erred in principle by awarding costs on a substantial indemnity basis.

[14] We disagree.

[15] Success on the motion was not divided. The appellant’s motion was largely dismissed. The motion judge considered it appropriate to award costs on a blended substantial/partial indemnity basis because he found that the appellant had, by his conduct, needlessly inflated the costs of the motion. That was the motion judge’s call to make.

[16] Finally, we note that the blended amount fixed by the motion judge was only slightly lower than what the respondents had sought on a partial indemnity basis. The costs awarded were not unreasonable and there is no basis for this court to interfere with them.

Conclusion

[17] The appeal is allowed in part. The declaration in s. 2 of the order is set aside. The other terms of the order remain in place.

[18] The appeal from the costs decision is dismissed.

[19] As success on the appeal was divided, each party shall bear its own costs of the appeal.

“Doherty J.A.”

“Grant Huscroft J.A.”

“Harvison Young J.A.”