COURT FILE NO.: CV-13-3811-00
DATE: 20131126
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BRUCE MACDONALD, Plaintiff
AND:
CONSTABLE FELIX TAM, CONSTABLE A. TAYLOR, THE MUNICIPALITY OF PEEL POLICE SERVICES BOARD, THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, Defendants
BEFORE: Tzimas J.
COUNSEL:
Bruce MacDonald, In Person
Rafal Szymanski, for the Defendants/Moving Parties, Constable Felix Tam, Constable A. Taylor and The Municipality of Peel Police Services Board
HEARD: November 15, 2013
ENDORSEMENT
[1] The defendants in this action have brought a motion pursuant to Rule 21.01(1)(a) to dismiss the plaintiff’s action without leave to amend on the basis that it is statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c.24, Sch.B., as amended.
[2] As a preliminary note, I acknowledge that the plaintiff asked the court’s permission to have the hearing of the motion digitally recorded for the purposes of assisting him with his note-taking. Leave was granted specifically and only for the requested purpose.
A. Overview of the Defendants’ Motion
[3] The grounds for the motion are that the action relates to the Plaintiff’s arrest that took place on March 26, 2009. In his action, the Plaintiff claims damages arising out of the intentional torts of trespass and unlawful arrest, and breaches of ss.7, 8, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms. The events that give rise to this action were discovered on March 26, 2009. The limitation period expired on March 26, 2011. The plaintiff commenced his action on September 3, 2013, over two years after the limitation period.
[4] The defendants submitted that it is “plain and obvious” that the expiry of the limitation period is fatal to the plaintiff’s claim and the action should be dismissed.
[5] Furthermore, the defendants took the position that neither discoverability nor an amendment of the statement of claim can cure the problem. The period of time that the plaintiff could commence an action expired over two years ago.
B. Overview of the Plaintiff’s Legal Submissions
[6] The plaintiff opposed the motion. His submissions were focused on the details as to what occurred on March 26, 2006, how reprehensible the police conduct was and why his claim was meritorious. Insofar as the basis for denying the dismissal was concerned, the Plaintiff’s submissions may be distilled into two legal arguments: a) the common law trumps any legislation including legislation concerning limitation periods; and b) discoverability.
[7] First, the plaintiff explained that the common law claim cannot be diluted by statute. Common law he said is the foundation of the Ontario legal system. The plaintiff specifically explained that “the superiority of the inherent law jurisdiction, in turn, claimed by a private person of full capacity, nullifies any claim to dismissal by statute.” He unpacked that concept by drawing an analogy to the immutability of our genetic make-up, except perhaps by the effect of radiation. In a nutshell, the Limitations Act, could not possibly operate to limit a common law claim, except “where such sufficient time has passed that there is no reasonable possibility of reconstructing or re-examining the facts of a circumstance due to the passing of witnesses or any such matter delimited by entropy that seeps into the material examination of circumstance”. He said that there were no impediments to the reconstruction of his experience and therefore the expiry of the limitation period should not operate to bar an otherwise strong claim.
[8] Second, and perhaps more significantly, the plaintiff attempted to advance a nuanced discoverability argument. He explained that the allegedly offending actions of the police occurred on March 26, 2009. Full particulars of the extent of the offending conduct are pleaded in the statement of claim from paragraphs 10 – 66. The plaintiff said that he was wronged by the trespass into his apartment by the police, by the police’s unlawful entry into his home, by their refusal to leave, by his unlawful arrest, by the breaches of his Charter rights and more particularly ss. 7, 8, 10(a) and (b), and by the criminal acts of break and enter, aggravated by home invasion and assault. He was definite in his view that he was wronged on March 26, 2009 and that he knew that he was wronged on that date.
[9] The plaintiff states in his statement of claim that he was told by the police that he was under arrest. He said that he did not resist the arrest order. Rather than go to Division 12, he pleads that the police gave him a Notice to Appear. The plaintiff pleads that he declined signature on the notice and he expressed his lack of understanding “of the entire affair and the appearance notice.”. He also pleads that he did not go to court per the appearance notice, which was returnable on April 27, 2009. He explains in his pleading that he did not attend because, “It was the Plaintiff’s belief that the constables, under advice from their shift supervisor, would not submit the notice because it was not lawfully served”.
[10] The plaintiff did not hear anything further about “this affair” and he thought that the problem went away. When he failed to attend on his scheduled appearance, the court issued a bench warrant for his arrest. Three years later, he was arrested by the Ontario Provincial Police in Sundridge, Ontario, after a background check revealed the outstanding bench warrant.
[11] In his submissions on this motion, the plaintiff proceeded to explain that the revival of the matter from 2009, as a result of the arrest in 2012, crystallized his damages arising from the wrongs of March 26, 2009. As a result, he believed that the revival of the whole affair in May 29, 2012 meant that the limitation period ran from that later date and not from March 26, 2009. When asked to explain when the wrongs occurred and when the damage was discovered, the plaintiff said that the physical wrongs most definitely occurred on March 26, 2009 and he was aware of those wrongs instantaneously.
[12] The legal implications of those “wrongs” he said were “legally consummated” with his arrest on May 29, 2012. In other words, the second arrest caused him mental distress and anguish, but the source of that was not the 2012 arrest, it was the events of 2009. Taken at its best, implication of the plaintiff’s submission seemed to be that the plaintiff chose not to act on the wrongs of 2009 and but for his arrest in 2012 he would not have acted on the wrongs. The “legal consummation” seemed to be advanced as a nuanced definition of discoverability.
C. Legal Analysis
i. Common Law v. Legislation
[13] Beginning with the relationship between the common law and legislation, it is an accepted legal principle that legislation can encroach on the common law. It is also accepted that if it is clear that it was the intention of legislation in passing a statute to abrogate the common law, the common law must give way and the legislation in question prevails. There are several cases that stand for that proposition, though the ones that are more frequently cited include: Schiell v. Morrison, 1930 102 (SK CA), [1930] 2 W.W.R. 737 at 741, Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] S.C.R. 842, at para. 38, R v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 at para.60, Garland v. Consumers Gas Co., 1998 766 (SCC), [1998] 3 S.C.R. 112 at para. 29; and Attorney General of Quebec v. Carrieres St. Therese Ltee., 1985 35 (SCC), [1985] 1 S.C.R. 831 at 607.
[14] The plaintiff offered R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13 for the opposite proposition though he did not have the case with him and he could not remember the specific reference in the case. I have reviewed that case. There is nothing in it to support the plaintiff’s proposition. If anything the discussion contrasting the approaches to warrantless searches before and after the Charter, serves to underscore the primacy of legislation over common law principles.
[15] In the result, the Limitation Act applies to this action. That gives rise to the question of whether or not the limitation period has expired and if so can the expiry be cured in some way.
ii. Expiry of Limitation Period and Discoverability
[16] In this instance, there is no question that the Plaintiff’s claims are subject to the Limitations Act, 2002 which provides for a basic limitation period of two years after the date on which the claim is discovered. It is presumed that the Plaintiff discovered the claims on the date of his arrest unless he can prove the contrary. A claim is discovered on the earlier of the day on which he first knew that damages occurred or the day on which a reasonable person with the Plaintiff’s abilities and his circumstances first ought to have known of the damages. All litigants, including “private persons” are subject to a two-year limitation imposed by the Limitations Act, 2002. See: Alexis v. Toronto Police Service Board, 2009 ONCA 847, [2009] O.J. No. 5170 at para. 20.
[17] In his statement of claim and in his submissions, the Plaintiff stated that he was wronged by the police on March 26, 2009. He admits to discovering his claims in 2009. The Plaintiff had until September 2012 to act on the wrongs that he said he suffered, but he did not. He said that he forgot about the experience. He did not attend in court pursuant to his Notice of Appearance because he formed the belief that the police would not act on the arrest of March 26, 2009. Instead, he went on with his life and thought the problem had gone away. All that changed in May 29, 2012 when he was arrested.
[18] The Plaintiff tried to use the fact of his subsequent arrest to resurrect his claims from 2009. He advanced the argument that he suffered the physical wrongs on March 26, 2009 but that they were “legally consummated” after his 2012 arrest as a way of curing the limitation period. But he also said that he chose not to do anything about the wrongs. Deliberately forgetting about a claim or failing to attend on a belief is not the same as discoverability.
[19] The overriding difficulty with this argument is the fact that he admits the wrongs he alleges occurred on March 26, 2009. That is the earliest that he knew that he was wronged. Whatever happened later, even with respect to his failure to attend on his Appearance is a separate issue. His claims, as articulated in the statement of claim arose out of the events of March 26, 2009. The unlawful trespass in his property occurred on March 26, 2009. His unlawful arrest, he admits, occurred on March 26, 2009. And, the breach of his Charter Rights, he also pleaded were breached on March 26, 2009. In accordance with Nicely v. Waterloo Regional Police (Chief of Police), 1991 7338 (ON SC), [1991] O.J. No. 460 at para.3, Jourdain, supra., and Alexis, supra., all the elements of the torts being claimed were complete on March 26, 2009 and the action should have been commenced within 2 years of March 26, 2009.
[20] The case law is clear that a cause of action for wrongful arrest and wrongful detention arises on the date of the arrest or detention, not on the date of the conclusion of any prosecution that arises from the facts at issue.
[21] The Plaintiff’s failure to act on those breaches until well after the limitations period expired, cannot be remedied by the explanation that he thought that the problem had gone away. Nor can he rely on the 2012 arrest as a basis for “consummating” his legal rights. The wrongs of March 26 were not discovered on May 29, 2012. They were known to the Plaintiff on March 26, 2009. What he discovered were not the wrongs. What he discovered in 2012 was that the problem from 2009 had not in fact gone away.
[22] Had the Plaintiff commenced the action within the two year period following March 26, 2009, he would not have been faced with this motion and he likely would have been in a position to pursue his claim on its merits. Having failed to commence the action on time, his claim is barred by the Limitations Act, and he may not pursue his claim at this point in time.
iii. Rule 21.01(1)(a) and the Effect of an Expired Limitation Period
[23] A defendant may use Rule 21.01(1)(a) to strike a claim on the basis of an expired limitation period after the statement of defence has been served and filed, unless it is plain and obvious from the statement of claim that no additional facts could be claimed to alter the conclusion that the limitation period has expired.
[24] The “plain and obvious test” governs motions under Rule 21.01(1)(a). In the context of this case, the question to determine is whether the Plaintiff’s claims of unlawful arrest, trespass to property, and the alleged Charter breaches are statute barred by operation of the Limitations Act, 2002, See MacDonald v. Ontario Hydro, 1995 10628 (ON SC), [1995] O.J. No. 3048 at para. 13, Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, and, R v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] S.C.J. No. 42 at para.20. Where a cause of action is barred by the Limitation Act, that cause of action is not tenable and it cannot stand. See Jourdain v. Ontario, 2008 35684 (ON SC), [2008] O.J. No. 2788 at para.33.
[25] The plaintiff spent significant time commenting on the conduct of the defendants. His factum enumerated in painstaking detail the wrongs that he says that he suffered and what he described as being egregious conduct by the police. The plaintiff sought to supplement the pleading with his affidavit that echoed the pleading.
[26] What is most important however for the purposes of this motion was that the plaintiff also confirmed that there were no other facts in relation to the wrongs that were discovered after the expiry of the limitation period to enable a cure. In other words, there are no additional facts that could be asserted in this case to support a discoverability argument and to cure the expiry of the limitation period.
Disposition
[27] The motion to dismiss the plaintiff’s action is allowed without leave to amend on the basis that the claim is statute barred.
[28] On the issue of costs, the plaintiff was very complementary of defence counsel and conceded that the costs were reasonable. I have reviewed the Bill of Costs filed by the defendants. Although some of the hours spent for preparation are generous, they are counter-balanced by the low billable rates. I am therefore content that the costs claimed are reasonable.
[29] Costs are therefore awarded to the defendants in the sum of $3,879.37 inclusive of disbursements and applicable taxes.
Tzimas J.
Date: November 26, 2013
COURT FILE NO.: CV-13-3811-00
DATE: 20131126
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BRUCE MACDONALD, Plaintiff
AND:
CONSTABLE FELIX TAM, CONSTABLE A. TAYLOR, THE MUNICIPALITY OF PEEL POLICE SERVICES BOARD, THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, Defendants
ENDORSEMENT
Tzimas, J.
DATE: November 26, 2013