Court of Appeal for Ontario

Date: 2022-11-15 Docket: C70103

Simmons, Benotto and Favreau JJ.A.

Between

Fabia Deluca Plaintiff (Appellant)

And

Roberto Bucciarelli and John Doe Accomplice Defendants (Respondent)

Counsel: Jordan Bronte Robertson Palmer, for the appellant Jennifer Vrancic, for the respondent

Heard: October 27, 2022

On appeal from the judgment of Justice Leanne E. Standryk of the Superior Court of Justice, dated November 10, 2021, and from the costs order dated January 11, 2022.

Reasons for Decision

[1] On a summary judgment motion, the motion judge dismissed the appellant’s action against the respondent because the motion judge found that the action is barred by the basic two-year limitation period set out in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Act”). The appellant appeals. For the reasons that follow, we dismiss the appeal.

Background

[2] The appellant and the respondent were involved in a romantic relationship between 2003 and 2010. The appellant ended the relationship in early November 2010.

[3] In January 2019, the appellant issued a statement of claim against the respondent claiming damages of $1.4 million for multiple causes of action, including assault, arising from the respondent’s conduct toward her between December 2010 and sometime in 2012 after she had ended the relationship.

[4] The appellant does not claim that the appellant harmed her physically, i.e., committed battery. Rather, she asserts that after she terminated the parties’ relationship, beginning in December 2010 until sometime in 2012, the respondent engaged in a campaign of harassing and threatening behaviour toward her that caused her to fear for her safety.

[5] In her statement of claim, among other things, the appellant alleged that the respondent:

• falsely reported to the Workplace Safety and Insurance Board (“WSIB”) that she was claiming benefits fraudulently;
• convinced his friends and associates to provide false or exaggerated testimony to a WSIB investigator;
• falsely reported to the Hamilton Police Service that she was harassing him;
• made disparaging remarks about her indicating she was a “fraud and a liar”; and
• sent her messages designed to threaten and harass her, including that she “better start looking for work” and “[had] enemies now”.

[6] As part of her evidence on the summary judgment motion, the appellant attached as exhibits to her affidavit various emails that she sent to herself during the period she alleges she was being harassed and threatened. She explained in her affidavit that she did so to document her fear of the respondent and the “violent and aggressive behaviour [she had] seen him manifest.” These emails included statements such as the following:

• he always talked about vengeance. Which lawyer he’d hire. … or how he’d get off by using a ‘crime of passion’ defence;
• he said he would never do the dirty work. He’d get natives to do it so he’d always have an aliby [sic];
• he told me many weird things and many times he’d get away with these things bc it’s a crime of passion; and
• I was afraid to push for an arrest bc I thought when he came out he’d kill me.

[7] The appellant also deposed in her affidavit that she had been advised to seek a peace bond and she attached as an exhibit copies of police occurrence reports related to this advice, one of which stated, in part, the following:

On February 22, 2011, writers contacted the Crown Attorney’s office. Writers spoke with an available Crown who was advised of the substance of the investigation. It was determined the matter was on the cusp of becoming criminal harassment, however, would be difficult to prosecute at this time. The direction was to encourage the complainant to proceed with the peace bond process and to document any further contacts and advise police immediately.

[8] Although the appellant acknowledged in her affidavit that she abandoned her peace bond application, she deposed that the respondent hired a lawyer and was going “to fight tooth and nail”. She said she stopped the process “due to exhaustion … and lack of resources”.

[9] The appellant does not dispute that she was aware that the conduct she alleged in her statement of claim occurred more than two years before she issued her statement of claim. However, she relies on ss. 5(1)(a)(iv) and 16(1)(h.2)(i) of the Act to assert that there is a genuine issue for trial concerning whether she was prevented from discovering her claim within the two-year period because of her fear of the respondent (s. 5(1)(a)(iv)) or whether her claim falls within the exception to the two-year period because her proceeding is based, at least in part, on an assault that occurred in an intimate relationship (s.16(1)(h.2)(i)).[^1]

The Motion Judge’s Reasons

[10] Among other things, the motion judge found that the appellant had not brought herself within the ambit of s. 16(1)(h.2)(i) of the Act because she had not demonstrated she had reasonable grounds to believe that she was in danger of imminent harmful, offensive conduct or violence from the appellant. In other words, the motion judge was not satisfied the appellant had adduced evidence of conduct by the appellant that could meet the definition of “an assault” as it appears in s. 16(1)(h.2)(i) of the Act.

[11] In addition, the motion judge said, “[t]he affidavit evidence proffered in support of the [appellant's] alleged fear for her personal safety and the safety of her family [lacked] particulars and [was not] persuasive.”

Discussion

[12] The appellant raised several arguments on appeal. We group them into four main categories.

[13] First, the appellant argued that the motion judge reversed the burden of proof on a summary judgment motion.

[14] We do not accept this submission. As we have said, the appellant does not dispute that she was aware that the conduct alleged in her statement of claim occurred more than two years before the statement of claim was issued. In these circumstances, it was not up to the respondent to prove a negative, i.e., that the appellant was not prevented by fear from discovering her claim or that he did not assault the complainant. Rather, it was up to the appellant to put her best foot forward and adduce sufficient evidence to demonstrate a genuine issue requiring a trial concerning whether she could rely on either of ss. 5(1)(a)(iv) or 16(1)(h.2)(i) of the Act. The motion judge was not satisfied she had done so. For reasons that we will explain in relation to the remaining grounds of appeal, we see no error in this conclusion.

[15] Second, the appellant raised a variety of arguments asserting that the motion judge erred in appreciating the scope of s. 16(1)(h.2)(i) of the Act or in articulating or applying the elements of the tort of assault.

[16] The motion judge relied on Bruce v. Dyer, [1966] 2 O.R. 705 (H.C.) aff’d , [1970] 1 O.R. 482 (C.A.), for a description of the elements of the tort of assault. The motion judge said, “[t]he [appellant] must prove on a balance of probabilities that she had reasonable grounds to believe that she was in danger of violence from [the respondent], that she feared imminent harmful or offensive contact (emphasis in the original).” The motion judge was not satisfied the appellant had adduced evidence that could meet this standard.

[17] The appellant submitted that, particularly when viewed in the context of an evolving understanding of domestic violence and controlling behaviour, in assessing her evidence, the motion judge took too narrow a view of “imminence” and of the scope of “an assault” as that term appears in s. 16(1)(h.2)(i) of the Act. The appellant pointed to Warman v. Grosvenor (2008), 92 O.R. (3d) 663 (S.C.) and Dunne v. Gauthier, 2000 BCSC 1603, as examples of cases that illustrate that imminence can mean different things in different contexts. The appellant also argued that the motion judge erred in failing to recognize that the term “assault”, as it appears in s. 16(1)(h.2)(i), can and should be interpreted broadly, so as to encompass threatening and harassing behaviour giving rise to fear of harm at some future unspecified point in time.

[18] We do not accept these submissions. Section 16(1)(h.2)(i) of the Act provides that there is no limitation period in respect of “a proceeding based on an assault” where at the time of the assault the parties “had an intimate relationship.” In our view, the appellant’s arguments are foreclosed by this court’s recent decision in Barker v. Barker, 2022 ONCA 567, [2022] O.J. No. 3526 (C.A.), in which this court considered the scope of the tort of assault. At paras. 137-138, this court explained that a tortious assault “involves intentionally causing another to fear imminent contact of a harmful or offensive nature (citations omitted, emphasis added).” At para. 171 of Barker, this court confirmed that “imminence is a critical component of the tort of assault.”

[19] This court went on in Barker to consider the decisions in both Warman and Dunne on which the appellant relied.

[20] At para. 173 of Barker, this court described the conduct in Warman, which the trial judge found amounted to an assault, as involving a relentless, two-year campaign of harassment involving internet postings and email. The communications were homophobic and anti-Semitic. Among other things, the defendant’s internet posts referred to the victim as a “dead [] walking”, shared his address including a map of his residence, and urged readers to “pay him a visit” and let him “meet his fate – execution at the hands of a people’s government”. One post concluded, “I have a Ruger P-90 and its bullets have your name on them”.

[21] At para. 174 of Barker, this court emphasized that the Warman trial judge recognized that damages are recoverable for assault “by someone who is made apprehensive of immediate physical contact” (emphasis in the original). Significantly, the Warman trial judge stated: “Frightening or threatening someone, however, does not constitute an assault unless the event feared is imminent….”

[22] At para. 176 of Barker, this court described Dunne as a case that involved a conditional threat to cause harm if the plaintiff school bus driver ever drove on the defendant’s laneway again. Significantly, in Dunne, the conditional threat was made immediately after the defendant finished physically battering the school bus driver. Moreover, the victim was aware that the defendant drove a large tractor trailer unit that could “take out” the victim and his bus.

[23] At para. 176 of Barker, this court agreed with comments of the Saskatchewan Court of Appeal that “[b]oth Dunne and Warman are useful examples of how imminence might be understood, but they do not attenuate the fundamental requirements of the tort of civil assault.”

[24] Given this court’s decision in Barker, we see no error in the motion judge’s appreciation of the scope of s. 16(1)(h.2)(i) of the Act or in her articulation or application of the elements of the tort of assault. The motion judge’s articulation of the elements of assault is consistent with Barker. Based on the evidence adduced by the appellant, the motion judge concluded that the appellant had not adduced evidence capable of demonstrating a genuine issue for trial concerning whether the respondent’s alleged conduct met the threshold of “an assault”. In general, she assessed the appellant’s evidence as lacking in particulars and unpersuasive. Concerning the police occurrence reports on which the appellant relied, the motion judge noted that they contained a comment that the appellant did not fear for her safety. The facts of both Warman and Dunne are distinguishable from the facts of this case. The Warman trial judge was satisfied based on the specific facts of that case that the plaintiff was “reasonably apprehensive of imminent physical contact”. The physical battering that preceded the conditional threat in Dunne and the victim’s knowledge of the appellant’s capabilities were specific circumstances creating support for the finding of an assault. Here, the appellant’s allegations and evidence did not rise to a similar level. We see no basis on which to interfere with the motion judge’s findings and conclusions.

[25] The appellant’s third submission was that the motion judge failed to address her argument under s. 5(1)(a)(iv) of the Act that she was prevented from discovering her claim because of her fears for the safety of herself and her family. While the motion judge may not have referred to that section specifically in her reasons, her finding that the evidence proffered in support of that assertion “[lacked] particulars and [was not] persuasive” is fatal to this assertion.

[26] The appellant’s fourth argument was that the motion judge’s reasons are infected by assumptions based on myths and stereotypes or palpable and overriding error. We see no such error. In particular, we reject the appellant’s submission that the motion judge erred in failing to rely on her assertion on cross‑examination that the respondent had threatened to harm her. Her statement was no more than a bald assertion. She provided no particulars of date, time or context. She also acknowledged that the record did not include additional particulars of any such threats.

Conclusion

[27] Based on the foregoing reasons, the appeal is dismissed.

[28] The appellant also sought leave to appeal the motion judge’s costs award. The appellant asked the motion judge to exercise discretion to decline to award costs to the successful party and to award costs to the appellant even though unsuccessful on the motion based on the novel issues raised. The motion judge denied the request and awarded partial indemnity costs to the respondent fixed in the amount of $21,517.72 inclusive of disbursements and HST. We see no basis on which to grant leave. Leave to appeal is denied.

[29] Costs of the appeal are to the respondent on a partial indemnity scale fixed in the amount of $10,000.

“Janet Simmons J.A.”

“M.L. Benotto J.A.”

“L. Favreau J.A.”

[^1]: Section 5 of the Act addresses when a claim is discovered under s. 4. Section 5(1)(a)(iv), on which the appellant relies, provides that a claim is only discovered when the claimant knew or ought to have known that “a proceeding would be an appropriate means to seek to remedy” the injury, loss or damage. Section 16(1)(h.2)(i) provides that there is no limitation period where the proceeding is based on “an assault” in the context of an intimate relationship.