Court File and Parties

COURT FILE NO.: 07-CV-37333

DATE: 2012/03/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SHERIDAN GARDNER

Plaintiff (Responding Party)

– and –

ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendant (Moving Party)

Paul Champ, for the Plaintiff (Responding Party)

Brian Harvey, for the Defendant (Moving Party)

HEARD: February 16, 2012

REASONS FOR JUDGMENT

R. SMITH J.

Overview

[1] The Attorney General of Canada (the “Attorney General”) has brought a motion for summary judgment seeking to dismiss the plaintiff’s claim for damages for malicious prosecution on the grounds that a reassessment of her income taxes is not a criminal prosecution. The Attorney General also seeks a dismissal of the remaining causes of action alleged by the plaintiff for abuse of power, negligence and Canadian Charter of Rights and Freedoms (“Charter”) breaches on the basis that the limitation period had expired before the action was commenced.

[2] The plaintiff submits that the limitation period had not expired for the torts of abuse of power by a public official, declaratory relief for breaching her sections 15 and 7 Charter rights and for intentional or negligently causing her mental suffering. Ms. Gardner submits that the limitation period for these torts only commenced after her income tax appeal was resolve in her favour and her action is not statute barred because it was commenced within two years of this date.

[3] The Attorney General submits that while the time limit for the tort of malicious prosecution may commence to run when the prosecution is resolved in favour of the plaintiff, the limitation period for the other torts commenced to run in 1998 when the plaintiff became aware of the alleged wrongful conduct of the CRA officials and when she became aware that she had suffered damage, namely a major depression and severe anxiety, both of which occurred in 1998. By the time her action was commenced in 2007, the limitation period had expired.

Issue to be Decided

[4] The issue to be decided is as follows: Did the limitation period for the torts of abuse of power, negligence, and breach of her Charter rights commence in 1998, when Ms. Gardner became aware that she had suffered damage because of the actions of Canada Revenue Agency (“CRA”) officials reassessing her income tax return, or in February of 2005 when her income tax appeal was resolved in her favour?

Malicious Prosecution

[5] The Attorney General seeks dismissal of the claim for malicious prosecution on the ground that an income tax reassessment is not a criminal proceeding or a proceeding which impugns an individual’s reputation and as a result, the tort of malicious prosecution is not available. The plaintiff agreed at the hearing that she did not have valid cause of action for malicious prosecution as a result of reassessment of her income tax returns in 1997 by CRA officials, as this was not a criminal or quasi criminal prosecution.

[6] The plaintiff’s claim for damages for malicious prosecution is therefore dismissed.

Limitation Issue

[7] Both parties agreed that the limitation issue should be decided on a summary motion as the facts related to this issue were not disputed.

Positions

[8] The plaintiff submits that the limitations period for the tort of abuse of power by a public official or public misfeasance (hereinafter referred to as “abuse of power”) only commenced in February of 2005 when her income tax appeal was resolved in her favour. The plaintiff alleges that the tort of abuse of power was committed by CRA officials in 1997 when she alleges that the CRA officials initiated a reassessment of her income tax returns for 1993 and 1994 for the improper purpose of causing her harm andassisting the CRA in their reassessment of her husband’s income tax return for the same years.

[9] The plaintiff submits that the tort of abuse of power is very similar to the tort of malicious prosecution as both allege malicious actions by a government official, one by initiating a criminal prosecution and the other by allegedly initiating a reassessment of her income tax return, and in doing so intentionally misapplied the law for an improper purpose which caused harm to the plaintiff.

[10] The alleged actions of the CRA officials underlying the tort of intentional or negligent inflicting of mental distress on the plaintiff (damages for negligent actions) are the same as those underlying her claim for abuse of power.

[11] The plaintiff also seeks a declaration that her section 15 Charter rights were breached because the CRA officials initiated a reassessment of her income tax return which resulted in an unequal application of the law because of her marital status, namely because she was married to Neil McFadyen, whose income tax return the CRA had also reassessed for the 1993 and 1994 years.

[12] Finally, the plaintiff also alleges that the CRA officials have breached her section 7 Charter rights. The plaintiff alleges that the actions of the state through the officials at CRA, by initiating a reassessment for an improper purpose and by intentionally or negligently causing her mental distress, adversely impacted her psychological integrity by forcing her to endure a stressful process for a lengthy period of time. She alleges that psychological harm was caused by CRA deliberately misapplying the law when they initiated a reassessment of her income taxes in 1997 thereby breaching her section 7 Charter right of security of the person.

[13] The Attorney General submits that the plaintiff was aware of the alleged tortious actions of CRA officials and that she had suffered damage as a result of these actions in August of 1998 as she went on long term disability as a result of her dispute with the tax officials. As a result, the Attorney General submits that her cause of action arose and was discovered by her in 1998 and that the limitation period expired well before 2007 when the action was commenced.

Res Judicata

[14] A previous summary motion was heard by McLean J. on the issue of whether Ms. Gardner’s claim for malicious prosecution was statute barred as a result of the expiration of the limitation period. McLean J. held that the plaintiff’s main claim was for malicious prosecution and that it was not statute barred.

[15] On the summary motion judgment before me, the plaintiff agreed that she did not have a cause of action for the tort of malicious prosecution. She agreed with the Attorney General’s position that a reassessment of her income tax return by a regulatory body was not a criminal or quasi criminal prosecution. In the first summary motion, Mc Lean J. did not decide on whether the other causes of action pleaded were statute barred and specifically declined to decide the limitations issue with regards to the other causes of action. As a result, I find that the limitation issue with regards to the other causes of action alleged by the plaintiff is not res judicata.

[16] The issues of whether the tort of malicious prosecution was available to the plaintiff and whether the remaining causes of action were statute barred should have been argued at the first summary motion. However, this is a matter for costs.

Factual Background

[17] The factual background has been largely taken from the factums filed by the parties and also paragraphs 2-5 of McLean J.’s decision.

[18] The plaintiff was employed by the Federal Government. She was posted to Japan between the years 1992 and 1995 where she moved with her husband and children.

[19] The Income Tax Act deems a government employee posted abroad to be a resident of Canada for tax purposes. Ms. Gardner’s husband, however was not employed by the Federal Government and therefore was not a deemed resident and filed his taxes in Japan. In 1997, Revenue Canada reassessed the plaintiff’s husband as a Canadian Resident. They also reassessed the plaintiff as a “factual resident of Canada”.

[20] The plaintiff claims that Revenue Canada, through its employees and agents, deliberately misapplied the Income Tax Act to her in an effort to support a tax case against her husband. In addition, she alleges that Revenue Canada delayed the tax objection in an appeal to ensure that her case would not be decided before her husband’s case was determined. The following is a summary of events which occurred:

(1) On June 10, 1997, the plaintiff and agents of Revenue Canada exchanged correspondence dealing with the Agency’s assessment of, and the plaintiff’s objection to her tax assessment for the years 1993 and 1994.

(2) On August 7, 1998, Ms. Gardner sent a letter to the Agency claiming that she had been discriminated against, that her privacy had been invaded, that her mobility rights were violated, and that the Agency had breached her confidentiality.

(3) On August 17, 1998, Ms. Gardner retained legal counsel.

(4) As alleged in her Statement of Claim, the plaintiff became unable to work due to the ongoing income tax reassessment dispute in August of 1998.

(5) On September 15, 1998, Ms. Gardner submitted a letter in which she alleged that the manner in which she was being assessed was discriminatory, constituted harassment and inferentially that it amounted to malicious prosecution.

(6) On January 29, 1999, a medical report linking the plaintiff’s disability and inability to work due to her conflict with the Agency was received.

(7) On March 29, 1999, the plaintiff filed a complaint with the Canadian Human Rights Commission (the “Commission”), alleging discrimination on the basis of her marital status by the Agency and its agents in the reassessment of her 1993‑1994 income taxes.

(8) On April 29, 1999, the reassessments were confirmed by the appeal’s branch of Revenue Canada.

(9) On August 13, 2001, the plaintiff wrote to the Commission alleging discrimination by the Attorney General seeking an adjournment on the related proceeding in the Tax Court of Canada.

(10) On September 27, 2001, a Notice of Tax Appeal to the Ontario Superior Court was filed appealing Ms. Gardner’s tax assessment. The notice of tax appeal also sought amongst other things, damages for negligence, abuse of power and Charter violations.

(11) On December 20, 2001, Maranger J. struck the claims for damages based on the tort claims asserted and held that these claims were distinct from her appeal of her income tax assessment in the Superior Court.

(12) On May 13, 2003, the Commission issued its investigation report recommending that the complaint be dismissed as the evidence did not support the complainant’s allegations of discrimination.

(13) On August 17, 2003, the complainant delivered a 40 page response to the investigator’s report which included descriptions of both physical and psychological harm resulting in her being on long‑term disability since 1998 as well as particularizing financial damages.

(14) On September 26, 2003, the plaintiff provided a further nine page response to the Agency’s submissions on the investigator’s report, in which she again reiterated her complaint of discrimination and added an allegation of retaliation and harassment.

(15) On December 15, 2003, the Commission wrote to the plaintiff and informed her that her complaint was dismissed pursuant to section 44(3)(b) of the Canadian Human Rights Act.

(16) On January 19, 2004, she filed an application for judicial review of the Commission’s decision including a plea to convert her application into an action to permit claims of negligence, misrepresentation, abuse of process, discrimination, misfeasance in public office and breach of her Charter rights.

(17) On April 19, 2004, Ms. Gardner discontinued her judicial review of the Commission’s decision.

(18) On January 18, 2005, Minutes of Settlement signed in the income tax appeal wherein the parties agreed that section 2 of the Ontario Income Tax Act would not be applied to the plaintiff in the material tax years.

(19) On February 17, 2005, the order was issued to complete the settlement of Ms. Gardner’s income tax appeal which was resolved in her favour for approximately $5,000.

(20) On February 16, 2007, Ms. Gardner issued a notice of action seeking damages for the torts of abuse of power, intentional and negligent inflicting of mental suffering and breach of her sections 15 and 7 Charter rights.

Analysis

[21] The parties do not dispute the underlying facts which could start a limitation period under the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B. The Limitations Act, 2002 came into effect on January 1, 2004 and it establishes a limitation period of two years following the discovery of the cause of action. I will not address the limitation period under Public Authorities Protection Act, R.S.O. 1990, c. P. 38 (“PAPA”) and will only with the longer limitation period in the Limitations Act, 2002.

[22] Section 4 of the Limitations Act, 2002, reads as follows:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[23] Section 5 of the Limitations Act, 2002, sets out when a claim is discovered and reads 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

[24] The Limitations Act, 2002, has adopted the common‑law discoverability principle in section 5(1) which postpones the commencement of a statutory limitation period until the plaintiff knows, or by reasonable diligence could have known, the material facts on which the action is based. Once a plaintiff knows that some damage has occurred and has identified the person that caused the damage, the cause of action has accrued. See Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R., 147 at paragraph 77, and Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549.

[25] The plaintiff argues that her cause of action only arose after she knew that she had been successful on her the appeal of her income tax reassessment. The plaintiff’s tax appeal was finally resolved in her favour by way of a judgment dated February 17, 2005. A Notice of Action was issued by the plaintiff on February 16, 2007 which would be within the two year limitation period, if the limitation started to run from when the plaintiff first became aware that she had been successful on her income tax appeal.

[26] The plaintiff submits that the core of her claim for damages is her allegation that the CRA officials knew that section 2 of the Ontario Income Tax Act did not apply to her, yet they reassessed her returns for an improper purpose. The plaintiff acknowledged that in 1998 she was aware of the alleged wrongful actions of the CRA officials and was aware that these actions had caused her to suffer some damage.

[27] The plaintiff argues that her causes of action against the Attorney General depended on a successful resolution of her income tax appeal, and therefore the cause of action did not accrue until this occurred in February of 2005. She relies on the Federal Court of Appeal decision of Canada v. Roitman, 2006 FCA 266, at paragraph 20; leave to appeal dismissed, [2006] S.C.C.A. No. 353 to support her position in this regard.

[28] In Roitman, supra, Mr. Roitman accepted a settlement proposal from the CRA with regards to the reassessment of his 2000, 2001 and 2002 income tax returns. As part of the settlement, he agreed that he could not object or appeal under the Income Tax Act. The Minister then reassessed Mr. Roitman in accordance with the terms of the settlement agreement.

[29] Mr. Roitman then commenced an action against the Crown, alleging that in reassessing him, the Crown engaged in “deliberate conduct … to deny … the plaintiff the benefit of the law”. He sought damages for misfeasance in public office, as well as special, punitive, exemplary and aggravated damages.

[30] In Roitman, supra, the Federal Court of Appeal held that the abuse alleged by Mr. Roitman was a deliberate incorrect interpretation of the law. The allegation assumed that the law had been incorrectly interpreted, and that the reassessment was invalid. This was a determination that could only be made by the Tax Court. The Federal Court of Appeal stated that it was clear that “the claim for damages can only succeed if the reassessment is first found to be invalid. The Statement of Claim is, at best, premature.”

[31] The Federal Court of Appeal went on to cite with approval Smith et al. v. Canada (Attorney General) et al, 2006 BCCA 237. In the Smith case, a class action was brought on behalf of truck drivers who alleged that they should be allowed deductions for meals at the same rates the federal government paid its employees. The claim was made against the Minister of National Revenue, CCRA and others. The appellants pleaded negligence, breach of fiduciary duty, etc. and abuse of public office against the defendants. All of the causes of action pleaded shared the common element of alleging that the respondents acted wrongfully in rule making and in the administration of the tax scheme regarding their meal expenses, which was in reality a challenge to the assessments by the Canada Revenue Agency. In Smith, supra, the court held that “[s]ince the Income Tax Act provides administrative remedies for disputes regarding income tax assessments, the issues lie outside the jurisdiction of the Supreme Court.”

[32] In Roitman, supra, and in Smith, supra, the Courts held that where the essence of the claim for damages in the Superior Court was a challenge to the assessments made by the CRA, the Superior Court did not have jurisdiction, and held that disputes regarding income tax assessments lie outside the jurisdiction of the Superior Court. Both of these cases deal with the issue of jurisdiction and not the issue of the commencement of a limitations period.

[33] The Attorney General submits that the case of Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585 has overruled previous decisions including the Roitman decision and specifically Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287.

[34] The Grenier decision previously held that the Superior Court did not have jurisdiction to hear a claim for damages against the federal government for breach of contract, negligence, and unjust enrichment before judicial review had occurred as the Federal Court had exclusive judicial review jurisdiction in relation to all federal boards, commissions and other tribunals.

[35] In TeleZone Inc., supra, the Supreme Court held that the Superior Court had concurrent jurisdictions with the Federal Court in claims for damages against the Crown pursuant to section 17 of the Federal Courts Act, R.S.C., 1985, c. F‑7 and section 21 of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C‑50. The Supreme Court held that the grant of exclusive jurisdiction to judicially review federal decision makers in section 18 “is best understood as a reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s. 17 “in all cases in which relief is claimed against the [federal] Crown”.”

[36] Damages cannot be awarded on an application for judicial review. A claimant must commence an action in order to recover damages. An appeal of a reassessment of federal income tax returns is similar to judicial review of a federal decision maker; where exclusive jurisdiction is given to the Tax Court and the Federal Court respectively. The remedies sought in an appeal of a tax reassessment and in a judicial review application are fundamentally different from those in a claim for damages as a result of tortious actions committed by a federal official.

[37] The appeal of Ms. Gardner’s Ontario Tax reassessment was to the Superior Court and not to the Federal Tax Court. The Superior Court had exclusive jurisdiction for the purpose of the Ontario tax appeal. In these circumstances, Ms. Gardner’s tax appeal is analogous to a situation where the tax appeal was in the exclusive jurisdiction of the Federal Tax Court.

[38] Ms. Gardner acknowledged that she had discovered the material facts underlying her claim for damages in 1998, as she was aware of the actions of the CRA officials which she alleged were wrongful, malicious, carried out for an improper purpose and in breach of her Charter rights. She was also aware at that time that she had suffered damage as she went on long term disability as a result of the stress caused by the reassessment of her Ontario income tax return.

[39] Following the reasoning in the TeleZone Inc., supra, the Superior Court had jurisdiction to deal with Ms. Gardner’s claim for damages based on the tortious conduct she alleged. However, I agree with the reasoning in Roitman, supra and Smith, supra that if the essence or pith and substance of her tort claim for damages was a challenge to her income tax reassessments, that the Court having jurisdiction to deal with her tax appeal would have exclusive jurisdiction over that issue.

[40] The plaintiff submits that the remaining torts pleaded and in particular the tort of abuse of power by a public official is analogous to the tort of malicious prosecution with regards to when the cause of action arose.

[41] The decision of Leroux v. Canada (Revenue Agency), 2010 BCSC 865 referred to during the motion, was upheld on appeal in Leroux v. Canada (Revenue Agency), [2012] BCJ No. 235, 2012 BCCA 63, released on February 8, 2012.

[42] In Leroux, supra, the plaintiff Leroux was a businessman who was subjected to a 13 year sequence of audits, assessments, reassessments and collection procedures by CRA that caused the collapse of his business empire and consequent impoverishment. He alleged that CRA officials wrongfully took, retained and shredded or lost his original business documents, and as a result, he was subsequently denied tax deductions due to the lost documents. CRA filed certificates of indebtedness against the plaintiff’s properties and subjected him to collection procedures which resulted in Mr. Leroux losing his properties. He commenced an action claiming damages for misfeasance in public office, for negligence of CRA employees, and for other torts.

[43] In the appeal decision in Leroux, supra, the court recognized the exclusive jurisdiction of the Tax Court over the validity of tax assessments and also the limited jurisdiction of the Tax Court. At paragraph 34, the Court stated:

The Court noted that courts have consistently held that the actions of CRA (then the “CCRA”) cannot be taken into account in an appeal against assessments because the issue in an appeal is the validity of the assessment and not the process by which it is established. In other words, the question is not whether CRA officials exercised their powers properly, but whether the amounts assessed can be shown to be properly owing under the ITA. [Emphasis added]

[44] In the Leroux, supra appeal decision, the court held that it must look beyond the cause of action alleged and determine if the claim is in pith and substance an action questioning the validity of the tax assessments. In Ms. Gardner’s case, she challenged the validity of the tax reassessment in the appropriate court having jurisdiction to determine her tax appeal. However, she did not commence a separate action for tort damages based on CRA officials allegedly exercising their powers improperly at the same time as she appealed her tax assessment.

[45] Ms. Gardner had included her claims for damages for abuse of power, intentional and negligently causing mental suffering, and breaches of sections 15 and 7 of the Canadian Charter of Rights and Freedoms in her Notice of Tax Appeal. The tort claims were struck from her tax appeal by order of Maranger J. on December 20, 2001 as he held that her income tax appeal was distinct from her claim for damages based on alleged tortious actions of CRA officials. Ms. Gardner chose not to commence a separate action for tort damages in the Superior Court at that time.

[46] The fact that Ms. Gardner included her tort claim in her Notice of Tax Appeal in 2001 specifically claiming damages for negligence and abuse of power demonstrates that she was aware of all of the material facts underlying her claim for tort damages by at least September 27, 2001, when she filed her Notice of Tax Appeal. Ms. Gardner also included the same allegations in her complaint to the Canadian Human Rights Commission (“Commission”) which was dismissed on December 15, 2003.

[47] In her complaint to the Commission, Ms. Gardner claimed that she had been subject to discrimination by the CRA officials based on her marital status when they reassessed her 1993‑94 income taxes. On August 17, 2003, Ms. Gardner wrote to the Commission outlining the physical and psychological harm she had suffered and particularized her financial damages.

[48] The pith and substance or the essence of Ms. Gardner’s claim for tort damages against the CRA is her allegation that CRA officials reassessed her 1993‑94 income tax return for the improper primary purpose of assisting them in their reassessment of Ms. Gardner’s spouse and to harass her and cause her mental suffering.

[49] The question to be determined is whether there a requirement for Ms. Gardner’s income tax appeal to be successfully resolved in her favour before the tort of public misfeasance or abuse of power accrues, as is the case for malicious prosecution.

[50] In Leroux, supra, at paragraph 33, the British Columbia Court of Appeal set out the criteria to establish the tort of misfeasance in a public office and stated as follows:

To establish the intentional tort of misfeasance in a public office, Mr. Leroux must prove: (i) deliberate unlawful conduct in the exercise of public functions; (ii) awareness that the conduct is unlawful and likely to injure the plaintiff; (iii) the tortious conduct was the legal cause of injury to him; and (iv) the injury is compensable in tort law (Odhavji, para. 32). To disclose a reasonable cause of action, the statement of claim must disclose material facts supporting each of those constituent elements.

[51] In 1998, Ms. Gardner was aware that she had suffered injury, loss or damage allegedly caused by the actions of CRA officials who reassessed her 1993‑94 income tax for the allegedly improper purpose and unlawful conduct of harassing her intentionally and negligently causing her mental suffering, and to assist in their reassessment of her spouse, Neil McFadyen. She was also aware that the alleged actions of the CRA officials were the legal cause of her injury and she knew that her injuries were compensable in tort law, as she claimed damages for these torts in her income tax appeal in 2001.

[52] To summarize, Ms. Gardner was aware of the constituent elements of the tort abuse of power or misfeasance in a public office, the torts of intentional and negligent causing her mental suffering and the details the alleged breaches of her sections 15 and 7 Charter rights by 2001. Ms. Gardner had advanced her claim for Charter breaches in her Human Rights complaint which was dismissed in 2003 and she had included her claim for damages for the torts of public misfeasance and intentional and negligent causing of mental suffering in her notice of appeal of her Notice of Tax Appeal in 2001. She was also aware of the nature of her injuries caused by the actions of CRA officials in reassessing her income tax returns, namely that she had suffered anxiety and a major long term depression since 1998.

[53] I conclude that the tort of abuse of power or misfeasance in a public office, did not require a successful appeal of her tax reassessment in order for the cause of action to accrue in Ms. Gardner’s circumstances. Ms. Gardner was aware of all four elements of the tort of public misfeasance as set out in paragraph [50] above by 1998 and certainty by 2001 as she included them in her Notice of Tax Appeal. The TeleZone Inc, supra, decision confirms that Ms. Gardner could have commenced an action for damages for the tort of misfeasance in a public office in 1998 or at the latest by 2001 in the Superior Court because in pith and substance, she was not seeking to challenge her tax assessment in her claim for tort damages. By 2001, Ms. Gardner was aware of all of the material facts that she relied on as the basis for her tort claims.

[54] Ms. Gardner’s claim for tort damages depended on the alleged improper process and improper purpose for which the CRA officials acted in reassessing her tax return. The issue in her tort claim was not whether or not the taxes were owing but rather her allegation that the process followed by CRA officials constituted tortious conduct which caused her to suffer damage.

[55] I conclude that whether or not Ms. Gardner was successful on her appeal of her income tax reassessment would only be additional evidence in the proceeding. The issue of whether the taxes were really owing is a different issue from whether the CRA officials’ actions were tortious, namely that they followed an improper process and acted for an improper purpose and thereby caused Ms. Gardner to suffer damage.

[56] Therefore, I find that the torts of intentional and negligently causing mental distress as well as the alleged breaches of Ms. Gardner’s sections 7 and 15 Charter rights would also have accrued when Ms. Gardner became aware of the material facts underlying these claims, namely that the CRA officials allegedly acted for an improper purpose in reassessing her income tax return and that she suffered damage as a result of their actions. She was aware of this information in 1998 and at the latest in December of 2003.

Disposition

[57] I therefore find that the remaining causes of action pleaded by Ms. Gardner, after abandoning the tort of malicious prosecution, accrued when she discovered that she had a claim for damages, and when she became aware of the requirement for her claim as set out in section 5 of the Limitations Act which occurred at the latest by September 27, 2001 when she advanced these claims in her Notice of Tax Appeal.

[58] Ms. Gardner issued her notice of action on February 16, 2007 which is well beyond the two year limitation under the Limitations Act which was in force as of January 1, 2004 and as a result, her claim is statute barred.

[59] The plaintiff’s claim for damages and declaratory relief for causes of action alleging breach of her Charter rights, alleging abuse of power, alleging intentional and negligent infliction of mental suffering, and negligence are therefore dismissed. The plaintiff’s complete claim is dismissed for the above reasons.

Costs

[60] The defendant shall have ten (10) days to make submissions on costs, the plaintiff shall have ten (10) days to respond and the defendant shall have seven (7) days to reply.

R. Smith J.

Released: March 20, 2012

COURT FILE NO.: 07-CV-37333

DATE: 2012/03/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SHERIDAN GARDNER

Plaintiff (Responding Party)

– and –

ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendants (Moving Parties)

REASONS FOR JUDGMENT

R. Smith J.

Released: March 20, 2012