Osborne Godfrey Barnwell

The appellant appealed the dismissal of his civil action for damages arising from his arrest on February 13, 2013.

The motion judge had dismissed the action as time-barred, finding that the limitation period for battery and false arrest claims crystallized on the date of arrest.

The Court of Appeal allowed the appeal, holding that where a battery action is a mirror image of criminal charges, the discovery date is when the criminal proceedings conclude, not when the arrest occurs.

The appellant's action, commenced May 13, 2016, was within two years of the October 22, 2015 conclusion of the criminal charges via peace bond and therefore not time-barred.

An appeal from a Superior Court judgment was adjourned pending receipt of the trial transcript and Digital Court Recording.

The Court of Appeal determined that it could not properly hear the appeal without these materials and ordered the Registrar to obtain copies for the panel and parties.

The appeal was rescheduled for February 2, 2018, with supplementary factums to be filed by both parties.

The plaintiff sued police for battery, illegal search, wrongful arrest and detention, Charter breaches, and malicious prosecution.

The defendants moved for summary judgment, arguing that all claims except malicious prosecution were statute-barred by the two-year limitation period, and the malicious prosecution claim failed because the criminal proceedings did not terminate in the plaintiff's favour due to his entry into a peace bond.

The court dismissed the claims for battery, illegal search, wrongful arrest, detention, and Charter breaches as time-barred, finding the plaintiff knew of the injury and the appropriateness of a civil action at the time of arrest.

The court also dismissed the malicious prosecution claim, holding that entering into a peace bond does not constitute a termination of proceedings in the plaintiff's favour, and there was no evidence of improper motive by the Crown or police in offering the peace bond.

The plaintiffs moved for summary judgment against the defendants for breach of an Agreement of Purchase and Sale.

The defendants raised five defenses.

The court granted summary judgment on four defenses (unenforceability due to waiver, bad faith, mitigation, and insufficient funds to close a secondary property purchase), finding no genuine issue for trial on these points.

However, a trial of an issue was ordered to determine the foreseeability of the quantum of forfeited deposits related to the secondary property purchase, as there was conflicting evidence regarding the defendants' knowledge of the deposit amounts at the time of contract.

The defendant brought a motion to set aside a default judgment and writ of possession obtained by the mortgagee after the defendant defaulted on a second mortgage secured against residential property.

The defendant argued she did not recall receiving the originating process due to mental health issues and advanced a proposed defence alleging a fiduciary relationship involving a bank that referred her to the mortgage broker.

The court held the defendant failed to provide a credible explanation for the default, noting evidence that she had been personally served and that her counsel was aware of the motion date but chose not to attend or send an agent.

The court further found that the proposed defence lacked an air of reality because the mortgage relationship between the parties remained a straightforward debtor‑creditor relationship.

The motion to set aside the default judgment was dismissed.

The plaintiff brought a medical negligence action alleging a wrongful hysterectomy performed during a scheduled myomectomy procedure.

The physician converted the surgery intra-operatively to a hysterectomy after discovering adenomyosis, asserting that the patient had been informed of and accepted the risk.

The court found the physician failed to disclose the possibility of a non-emergency hysterectomy performed solely to relieve pain and bleeding symptoms, and that the patient had not consented to such a procedure.

Applying the informed consent test from Reibl v Hughes and Arndt v Smith, the court held that a reasonable person in the patient’s circumstances—who strongly desired pregnancy and had an upcoming fertility consultation—would not have accepted the risk.

Liability was established and the court awarded $75,000 in general damages for loss of reproductive capacity and related psychological harm.