Ontario Superior Court of Justice

Mongeon v. Sammon et al. [Indexed as: Mongeon v. Sammon]

108 O.R. (3d) 789
2012 ONSC 409

Ontario Superior Court of Justice,
Ratushny J.

January 24, 2012

Limitations -- Discoverability -- Plaintiff's son murdered in 1999 while serving sentence in federal penitentiary -- Internal investigation by Correctional Service of Canada resulting in board of investigation report which stated that correctional officers had failed to follow policies and procedures -- Report not provided to plaintiff until May 2005 because of ongoing criminal investigation -- Plaintiff receiving copy of coroner's verdict and report in September 2008 and learning for first time that correctional officers had been disciplined for negligence and that OPP believed that certain correctional officers had possibly obstructed police investigation -- Plaintiff commencing negligence action in April 2010 -- Action statute-barred -- Plaintiff having all necessary information to recognize and pursue negligence action after her receipt of board of investigation report in May 2005 -- Defendants not engaging in fraudulent concealment.

The plaintiff's son was murdered in 1999 while serving a sentence in a federal penitentiary. The Correctional Service of Canada ("CSC") convened a board of investigation ("BOI") to examine the circumstances surrounding the murder. The BOI report, produced in February 2000, found that correctional officers had failed to follow certain policies and procedures. The report was not disclosed to the plaintiff at that time because of an ongoing criminal investigation. She was provided with a copy of the BOI report in May 2005, with certain names redacted. An inquest was held in September 2008. The plaintiff received a copy of the coroner's verdict and report in November 2008, and learned for the first time that correctional officers had been disciplined for their negligence around the time of her son's death and that the OPP had concluded that certain correctional officers were possibly lying and obstructing the police in the criminal investigation. She commenced a negligence action against the defendants in April 2010. The defendants brought a motion for an order dismissing the action as statute-barred.

Held, the motion should be granted.

Despite the lengthy delays, there was no evidence that the defendants had fraudulently concealed information from the plaintiff. The plaintiff had all the necessary information to recognize and pursue an action for negligence after her receipt of the BOI report in May 2005, and the new evidence that she obtained in November 2008 amounted to further information in support of that pre-existing claim. The allegations in the statement of claim were each dealt with in the BOI report, where various failures by the CSC and its correctional officers were confirmed. In May 2005, the plaintiff knew from the BOI report that her son's death was "caused by or contributed to by an act or omission" of the defendants ( Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 5(1) (a)(ii)). While the names of the offending correctional officers were redacted in the plaintiff's copy of the BOI report, their employment status with the CSC was sufficient for the purpose of being able to pursue an action for negligence against the CSC after May 2005. The action was not brought within the applicable two-year limitation period. While the plaintiff's circumstances were sympathetic, the Limitations Act, 2002 does not allow for the application of the common law doctrine of special circumstances to permit a court to exercise its discretion to extend the limitation period.

MOTION for an order dismissing an action as statute-barred.

Cases referred to
Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469 , 294 D.L.R. (4th) 141, 56 C.P.C. (6th) 14, 166 A.C.W.S. (3d) 762, 241 O.A.C. 29, apld

Other cases referred to
Giakoumakis v. Toronto (City), [2009] O.J. No. 55, 55 M.P.L.R. (4th) 105 (S.C.J.) ;
Home Savings & Loan v. Linton, 1999 1832 (ON CA) , [1999] O.J. No. 1999, 120 O.A.C. 316, 38 C.P.C. (4th) 278, 88 A.C.W.S. (3d) 881 (C.A.);
M. (K.) v. M. (H.), 1992 31 (SCC) , [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, 96 D.L.R. (4th) 289, 142 N.R. 321, J.E. 92-1644, 57 O.A.C. 321, 14 C.C.L.T. (2d) 1, 36 A.C.W.S. (3d) 466, EYB 1992-67549;
Oakville Hydro Electricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004), 2004 13633 (ON SC) , 71 O.R. (3d) 330, [2004] O.J. No. 2170, 131 A.C.W.S. (3d) 166 (S.C.J.);
Soper v. Salvation Army Scarborough Grace Hospital, [2009] O.J. No. 427, 174 A.C.W.S. (3d) 274, 2009 CarswellOnt 512 (S.C.J.)

Statutes referred to
Access to Information Act, R.S.C. 1985, c. A-1, ss. 13 - 26 [as am.]
Corrections and Conditional Release Act, S.C. 1992, c. 20 [as am.]
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], ss. 4 , 5 , (1) , (a)(ii), (iii), 7, (1), (a), (2)

Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20.01(3) , 25.08

Susan Mongeon, self-represented.
Abigail Martinez and Alexander Gay, for defendants.

[1] RATUSHNY J.: -- The moving parties/defendants seek an order pursuant to rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 dismissing the respondent/ plaintiff's statement of claim on the ground she is barred because of the two-year limitation period governing the commencement of her action under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Limitations Act, 2002").

[2] The defendants succeed in their motion. An order is made declaring the plaintiff's action statute-barred.

1. Relevant Facts

[3] The following recitation of facts has been distilled from the volumes of material filed by the parties on the motion and focuses on and summarizes only those relevant to the issues involving the Limitations Act, 2002.

[4] On or about the evening of January 16-17, 1999, the plaintiff's 27-year-old son, Donald Mongeon, was murdered while he was serving a five-year sentence for robbery at Collins Bay Institution ("Collins Bay"), a medium-security federal penitentiary.

[5] Correctional officers discovered his body in his cell in the early morning of January 17, 1999. Rigor mortis had already set in when Mr. Mongeon was pronounced dead at 6:45 a.m. There was blood spray on the cell walls as well as all over Mr. Mongeon's face and chest.

[6] A post-mortem examination conducted on January 18, 1999 concluded the death had been due to a stab wound to the heart, and Mr. Mongeon had been murdered. There were a total of 26 marks of violence on his body, including two other deep stab wounds to his chest and multiple smaller wounds on the face, neck, back and right arm.

[7] The plaintiff learned of her son's death on January 18, 1999.

[8] The police immediately began to investigate the death, and the Ontario Provincial Police (the "OPP") were contacted and took over the criminal investigation.

[9] The OPP Anti-Rackets Section also conducted a separate investigation into the correctional officers on duty in the area of Mr. Mongeon's cell on the evening and morning of his death. The OPP found the correctional officers to have answered questions untruthfully and wanted to bring obstruction of justice charges against them; however, it was determined there was no reasonable prospect of conviction and no one was ever charged.

[10] The Correctional Service of Canada ("CSC") conducted two separate internal investigations.

[11] The first was a board of investigation (the "BOI") convened under the Corrections and Conditional Release Act, S.C. 1992, c. 20. Its three Board members were directed to examine the circumstances surrounding the murder, to analyze a number of issues and to make recommendations. The BOI produced its report dated February 21, 2000 (the "BOI report"); however, it was not disclosed to the plaintiff at that time at the request of the OPP due to their ongoing criminal investigation.

[12] The BOI report described the circumstances surrounding Mr. Mongeon's death and made 21 recommendations. It analyzed the appropriateness of Mr. Mongeon's placement at Collins Bay, the possibility that racial factors contributed to the incident, the frequency and adequacy of monitoring inmates in the area where the murder occurred, the number of staff on duty at the time of the incident, the adequacy of staff's response to the murder and whether CSC or its staff were in compliance with the law as well as with institutional policies and procedures. It found that correctional officers had failed to follow certain policies and procedures.

[13] The second of CSC's internal investigations resulted in an internal fact-finding report dated February 8, 1999 (the "CSC Internal Fact Finding Report"). This led to the disciplining of three correctional officers who had been on duty in the area of Mr. Mongeon's cell. It found they had been seriously negligent in the performance of their duties. Each was suspended for a period of time ranging between 15 and 20 days. Those who grieved their suspensions had them reduced.

[14] In June 1999, the plaintiff contacted CSC and requested a copy of the BOI report, stating that she might sue CSC for negligence. She was not then aware of the CSC Internal Fact Finding Report. She did not receive a copy of the BOI report at this time because the OPP's criminal investigation was ongoing.

[15] In December 2004, the OPP announced they would be putting their investigation on hold since all leads had been exhausted and there was insufficient evidence to lay criminal charges. The OPP informed CSC that it could now provide information to the public, including the BOI report.

[16] In February 2005, the plaintiff requested CSC to release all information pertaining to her son's death. She was advised by CSC that she needed to submit a formal request under the Access to Information Act, R.S.C. 1985, c. A-1, ss. 13 - 26 (the "ATI Act").

[17] On February 8, 2005, the OPP notified the coroner, the Crown attorney, the CSC and the plaintiff that, although the homicide investigation was still open, it was inactive. This meant that the mandatory coroner's inquest could proceed; however, it was not able to commence until more than three years later, in September 2008 (the "inquest"), due to scheduling problems in the Office of the Chief Coroner.

[18] The plaintiff first received a copy of the BOI report in May 2005. It was a version with certain names and other parts redacted so as to comply with the ATI Act, although it is clear where redacted names refer to correctional officers. Legal counsel was representing the plaintiff at that time. She did not commence an action against CSC after receiving a copy of the BOI report and focused her attention on preparing for the inquest that she understood would be proceeding in 2005 or 2006.

[19] By 2008, the plaintiff was representing herself. She was granted standing to participate in the inquest that was finally scheduled for September 2008.

[20] In June 2008, and in preparation for the inquest, the plaintiff was provided with two volumes of the OPP brief for the inquest (the "OPP brief"). The OPP brief included significant additional information from the OPP and CSC in connection with the criminal investigation, including correctional officers' statements of the events on the day of her son's death and the subsequent examination of those correctional officers by the OPP. It was from the OPP brief that the plaintiff also first learned of the CSC Fact Finding Report that had resulted in the suspension of three correctional officers for their serious negligence in the performance of their duties around the time of Mr. Mongeon's death.

[21] The inquest was held in September 2008. The jury heard from 18 witnesses and received 32 exhibits over nine days. inquest witnesses were cross-examined by the plaintiff.

[22] The plaintiff received a copy of the coroner's verdict in November 2008 along with the 19 recommendations made by the jury (the "coroner's report"). The jury found that Mr. Mongeon's death was a homicide, and its recommendations echoed the findings made previously and released in the BOI report, although the inquest proceedings and the subsequent coroner's report revealed, particularly by way of the OPP brief and evidence from the inquest witnesses, much greater detail of the circumstances of death and the subsequent investigations.

[23] As a result of the inquest, the plaintiff learned for the first time, as stated in her affidavit sworn October 18, 2010, at paras. 27-32, of the disciplining of correctional officers for their negligence around the time of her son's death, of missing deister equipment used to perform and make a record of those officers' counts or walks in the area of her son's cell around the time of his murder, of the conclusion by the OPP that certain correctional officers were possibly lying in their accounts of their performance of their duties and obstructing the police in the criminal investigation, and of examples of inadequate institutional procedures and practices that had been occurring before her son's death in January 1999.

[24] On April 28, 2010, the plaintiff issued a statement of claim against the defendants, claiming they were negligent in their supervision of inmates at Collins Bay and that this caused or materially contributed to her son's death. She also claims their negligence either prevented her son's life being saved after he was stabbed or failed to preserve vital evidence once his body was discovered.

[25] The defendants issued a statement of defence on July 9, 2010 denying any liability and claiming, in any event, that the limitation period for the plaintiff's action had expired.

[26] The plaintiff did not file a reply as required by rule 25.08 to address the issue of the limitation period.

[27] No one has been charged in relation to Mr. Mongeon's death. The OPP have informed the plaintiff that no charges have been laid as it has been determined there is no reasonable prospect of conviction on the state of the evidence to date. During an interview by the OPP of one of the correctional officers at Collins Bay, as contained in the OPP brief, the OPP officer stated that the OPP have three suspects they know were involved; however, they do not know which of the three actually did the stabbing.

2. Limitations Act, 2002 and the Positions of the Parties

[28] There is no disagreement that the "new" Limitations Act, 2002 applies with its two-year limitation period for the commencement of an action after "the claim was discovered". The relevant sections are the following.

[29] Section 4 of the Limitations Act, 2002 states:

4. 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.

[30] Section 5(1) of the Limitations Act, 2002 defines when a claim is discovered:

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).

[31] Section 7 of the Limitations Act, 2002 removes from the calculation of the limitation period the time during which a plaintiff is mentally incapacitated, whether that incapacity existed at the time the cause of action accrued or developed later: Soper v. Salvation Army Scarborough Grace Hospital, [2009] O.J. No. 427, 2009 CarswellOnt 512 (S.C.J.), at para. 49.

[32] Subsections 7(1) and (2) of the Limitations Act, 2002 state:

7(1) The limitation period established by section 4 does not run during any time in which the person with the claim, (a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and (b) is not represented by a litigation guardian in relation to the claim.

(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.

[33] The moving parties' position is that the plaintiff's claim was "discovered", as defined in s. 5, when the plaintiff received the BOI report in May 2005; the two-year limitation period expired, therefore, in May 2007; the plaintiff has not proved she was mentally incapacitated at any point of time after her son's death pursuant to s. 7(1) (a); there is no evidence the moving parties fraudulently concealed a cause of action from the plaintiff as she alleges; and the result is that the plaintiff's April 28, 2010 statement of claim is statute-barred.

[34] The moving parties argue that the plaintiff's claim of negligence was discovered by the findings in the BOI report describing the circumstances surrounding her son's death and finding that correctional officers had failed to follow certain institutional policies and procedures. They submit that in May 2005, as a result of the plaintiff's receipt of the BOI report, she had all the necessary information to pursue an action for negligence.

[35] The moving parties further submit that all the subsequent information flowing from the OPP brief, the inquest and the coroner's report was simply a subsequent discovery of new evidence in support of her pre-existing claim that could not restart the two-year limitation period: Oakville Hydro Electricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004), 2004 13633 (ON SC) , 71 O.R. (3d) 330, [2004] O.J. No. 2170 (S.C.J.); Giakoumakis v. Toronto (City), [2009] O.J. No. 55, 55 M.P.L.R. (4th) 105 (S.C.J.), at paras. 18-21.

[36] The plaintiff's situation is very sympathetic. She is a mother committed to bringing a measure of justice to the circumstances of her son's murder. She wants accountability. She is sincere and dedicated. She says she included her doctor's letters in her materials only in support of her credibility and not to claim under s. 7 of the Limitations Act, 2002 that she has ever been mentally incapacitated to the degree that she was incapable of commencing her action after 2005. The CSC Internal Fact Finding Report found correctional officers to have been seriously negligent in the performance of their duties, and she wants further accountability.

[37] The plaintiff says she could not start her action in 2005 because facts remained hidden from her until the inquest and her receipt of the coroner's report. She says it was not until her receipt of the coroner's report in November 2008 that she discovered her claim and, as a consequence, on April 28, 2010 when she issued the statement of claim, she was still within the two-year limitation period. She alleges that the moving parties fraudulently concealed information from her that would have allowed her to bring her action sooner. She argues CSC ought not to be able to shelter its own wrongdoing under the passage of time, referring, as I understand her submissions, to her allegations of negligence surrounding the death of her son as well as the concealment of evidence.

3. Analysis

[38] I do not deal with the issue of the plaintiff's mental state after her son's death, as she does not rely on it as a reason for her issuance of the statement of claim in April 2010.

Fraudulent concealment

[39] Fraudulent concealment will suspend a limitation period until the plaintiff can reasonably discover her cause of action: M. (K.) v. M. (H.), 1992 31 (SCC) , [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, at para. 61.

[40] I have concluded there is no evidence of the moving parties/defendants having fraudulently concealed information from the plaintiff. There have been, however, long timelines in the investigation process and, from the plaintiff's perspective, these are delays that she has had to endure.

[41] The plaintiff's son was murdered in January 1999. She learned of his murder a day later. The OPP immediately commenced a homicide investigation. In February 1999, CSC produced its CSC Fact Finding Report and disciplinary action was taken against certain correctional officers. In February 2000, the BOI produced its BOI report. In June 1999, the plaintiff asked for a copy of the BOI report; however, the OPP were conducting their criminal investigation and it was unable to be released. It was not until five and a half years later, in December 2004, that the OPP authorized CSC to release the BOI report. In February 2005, the OPP notified the coroner that the inquest could proceed. In May 2005, the plaintiff received a redacted version of the BOI report. In June 2008, the plaintiff received the OPP brief in preparation for the inquest. In September 2008, the inquest proceeded and the plaintiff participated in it. In November 2008, she received the coroner's report. In April 2010, the plaintiff issued her statement of claim.

[42] Even given these extended timelines, the evidence does not give rise to an inference of fraudulent concealment of information from the plaintiff by the defendants. The delays between the murder of the plaintiff's son in January 1999 and the inquest and coroner's report in 2008 are primarily due to the length of the OPP investigation and scheduling difficulties within the Office of the Chief Coroner.

[43] The OPP criminal investigation began immediately after Mr. Mongeon's death and continued as an active investigation for the next almost six years. During that time and so as not to compromise the integrity of the criminal investigation, access to information from CSC was withheld at OPP request. After the Office of the Chief Coroner was authorized by the OPP to commence the inquest because the criminal investigation had become inactive, he was unable to schedule the inquest until more than three years later. As a party granted standing at the inquest, the plaintiff received the OPP brief a few months before its commencement. Two months after the inquest, she received the coroner's report.

[44] There is no evidence of CSC involvement in any of these delays. The CSC Internal Fact Finding Report and the BOI report were produced in a timely fashion after Mr. Mongeon's death. CSC was requested by the OPP not to release their investigative information on the death during the currency of the criminal investigation. It was only in December 2004 that CSC was finally authorized by the OPP to release those investigative reports. When the BOI report was released to the plaintiff in May 2005, it contained redactions pursuant to the ATI Act.

[45] I conclude, therefore, notwithstanding the passage of almost nine years after Mr. Mongeon's murder until the release of the coroner's report, that there is no evidence of deliberate delay by the moving parties/defendants for the purpose of improperly withholding information from the plaintiff about a cause of action.

Discoverability

[46] The issue of discoverability under the Limitations Act, 2002 amounts in this case to an analysis of the information disclosed to the plaintiff in May 2005 by the BOI report and of the information disclosed to the plaintiff in November 2008 by the OPP brief, the inquest and the coroner's report to determine when the plaintiff first had sufficient information to "recognize that she had a cause of action" against the defendants: Home Savings & Loan v. Linton, 1999 1832 (ON CA) , [1999] O.J. No. 1999, 38 C.P.C. (4th) 278 (C.A.), at para. 7 , referred to in Oakville Hydro, supra, at para. 8. In addition, and more precisely, the inquiry of when the plaintiff's claim is discovered is governed by s. 5(1) of the Limitations Act, 2002.

[47] As the plaintiff states in her affidavit sworn October 18, 2010, at paras. 19 and 20, the BOI report did not make any explicit findings of negligence; however, it was very critical of certain correctional officers and of Collins Bay in general, and found that correctional officers had failed to follow a total of at least 17 different institutional policies and procedures at the time of her son's murder.

[48] By November 2008, after the inquest and the receipt of the coroner's report, the plaintiff had learned of CSC findings of serious negligence by the correctional officers on duty in the area of her son's cell, of suspiciously missing deister evidence, of possible attempts by these officers to obstruct the OPP in their criminal investigation and of more evidence regarding the circumstances of her son's death.

[49] I have reviewed the information available to the plaintiff after May 2005 and after November 2008. My review leads to the conclusion that the plaintiff did have all the necessary information to recognize and pursue an action for negligence after her receipt of the BOI report in May 2005 and that her subsequent discovery of new evidence in November 2008 is properly characterized as amounting to further information in support of that pre-existing claim.

[50] My analysis of the allegations in the plaintiff's statement of claim indicates that they are each dealt with in the BOI report, where various failures by CSC and its correctional officers are confirmed. The moving parties have performed a similar analysis, as set out at tab 1 of their compendium filed on the motion. Those analyses further support the conclusion that the inquest and the coroner's report provide additional evidence and detail of the failures already identified in the BOI report.

[51] I find, therefore, that beginning in May 2005 it can be said the plaintiff knew from the BOI report that her son's death was "caused by or contributed to by an act or omission" of the defendants ( Limitations Act, 2002, s. 5(1) (a)(ii)) and that, notwithstanding the redacted names of the offending correctional officers in the BOI report, the plaintiff knew from their identification as correctional officers that her son's death was "caused by or contributed to by their acts or omissions" (Limitations Act, 2002, s. 5(1)(a)(iii)). The plaintiff did not require the personal names of the offending correctional officers to know that correctional officers committed those acts or omissions. Their employment status with CSC was sufficient for the purposes of being able to pursue an action for negligence against CSC after May 2005.

[52] I come to these conclusions regretfully, given the plaintiff's sympathetic circumstances and her clear cause of action arising out of the BOI report.

[53] I have also considered, although the parties did not raise this issue, whether this court is able to exercise any discretion to extend the time to commence an action on the grounds of a form of equitable relief. I rely on Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469 , a decision of the Ontario Court of Appeal, as being binding in this respect. There, the court dealt with the issue of whether the Limitations Act, 2002 allowed for the application of the common law doctrine of special circumstances to permit a court to exercise its discretion to extend the limitation period. It determined, at para. 13, the answer was no.

[54] I conclude, therefore, that I am unable to afford the plaintiff any equitable relief in connection with her two year limitation period under the Limitations Act, 2002.

[55] It is for these reasons that I allow the motion and dismiss the plaintiff's statement of claim as being statute- barred.

[56] If the parties cannot agree on costs, brief written costs submissions (a maximum of three pages from each party, exclusive of attachments) are to be forwarded to me before February 17, 2012.

Motion granted.