ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 6761/13
DATE: 2014-03-17
B E T W E E N:
Nicodemos Albano and Francesco Albano
Margaret A. Hoy, for the Plaintiffs
Plaintiffs
- and -
Niagara Regional Police Service,
Regional Municipality of Niagara Police Services Board,
Michelle Dywan and Joseph Payk, Employees of the Niagara Regional Police Service
Stephen Chisholm, for the Defendants
Defendants
HEARD: February 10, 2014
THE HONOURABLE JUSTICE B. H. MATHESON
DECISION
[1] This is a motion brought by the defendants to strike the plaintiffs’ action.
[2] The basis of the defendants’ motion was that the action was statute-barred by virtue of the limitation period in the Limitations Act, 2002, S.O. 2002, c.24.
[3] The plaintiffs started their action March 12, 2013.
[4] The Statement of Claim states that the claim is based on malicious prosecution, negligent investigation and breach of the Canadian Charter of Rights and Freedom.
[5] The claim is based on an incident on January 7, 2011. There was an assault at the plaintiffs’ tavern known as Park Tavern located at 10 Park Street in the City of Welland. The plaintiff Francesco Albano is the owner of the tavern. His brother Nicodemos Albano was present at the relevant time at the tavern.
[6] They were taken to the police station in Welland. According to the affidavit of Michelle Dywan sworn on the 9th day of August 2013, they were detained because a witness had given the police information that they might be the perpetrators of the assault on the 7th of January. They were in custody of the police for some four and a half hours. Officer Dywan in her affidavit stated that the police had doubts, after questioning two of the witnesses who had given the police the information, that they might be the persons who had done the assault. As a result of those doubts, the plaintiffs were released from detention.
[7] Officer Dywan in her affidavit stated that, “There has been no involvement or communication between the Defendants and the Plaintiffs in furtherance of the assault investigation since January 7, 2011.”
[8] The plaintiffs issued a Statement of Claim against the defendants on March 12, 2013. The defendants brought this motion for summary judgment relying on the Limitations Act. This was some two years and two months after the incident at 10 Park Street in Welland.
[9] The plaintiffs rely on the discoverability rule that should be applied in this case.
THE LAW
[10] The Limitations Act 2002, S.O. 2002, c.24 states the following at ss. 4 and 5:
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.
(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).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[11] In Giakoumakis v. Toronto (City), [2009] O.J. No. 55 Justice Pitt wrote the following at paras. 18 to 20:
“The plaintiff’s position is tantamount to an assertion that until a party is able to determine that it is likely to be successful in a lawsuit, the limitation period does not begin to run. As the defendant (moving party) has argued, the plaintiffs’ position is that they require evidentiary discovery before the limitation period is triggered.
The respondent is required to put its best forward to resist a motion for summary judgment: 1061590 Ontario Ltd. v. Ontario Jockey Club, (1995) 1995 1686 (ON CA), 21 O.R. (3d) 547, 16 C.E.L.R. N.S. 1, 43 R.P.R. (2d) 161, 77 O.A.C. 196 (C.A.). As I said earlier, the plaintiffs have offered no evidence to support the assertion that they could not have discovered whether the City was liable for any injury and if so on what basis. Nor have they offered any authority to support their position.
The defendant, on the other hand, has offered at least one case rejecting the plaintiffs’ position. The ratio in Oakville Hydro Electricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004), 2004 13633 (ON SC), 71 O.R. (3d) 330 (S.C.J.) at paras. 10-13 (S.C.J.) is that although the material facts giving rise to a cause of action must be discoverable, the probability of success on the applicable law is irrelevant. Rather, the limitation period will run from the time the prospective plaintiffs had, or ought to have had, knowledge of their potential claim, and the later discovery facts which change a borderline claim into a viable one does not give rise to the discoverability principle.
[12] Justice Major in Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 wrote the following at p. 565:
In balancing the defendant’s legitimate interest in respecting limitations periods and the interest of the plaintiffs, the fundamental unfairness of requiring a plaintiff to bring a cause of action before he could reasonably have discovered that he had a cause of action is compelling consideration.
[13] Smyth v. Waterfall (2001), 2000 16880 (ON CA), 50 O.R. (3d) 481, at p. 485 states the following:
The discoverability rule is a rule of fairness which provides that a limitation period does not begin to run against a plaintiff until he or she knows, or ought reasonably to know by the exercise of due diligence, the fact, or facts, upon which his or her claim is based.
[14] In summary, the position as I understand the law with respect to the Limitations Act, is that the period to start an action is within two years of the event being sued on, unless the plaintiff becomes aware of information outside that period that would allow him or her to reasonably start an action.
[15] The Limitation Act does not overrule limitation periods that are different in other statutes. The court has a duty of fairness to both parties, bearing in mind that the party claiming an exception from the limitation period has the onus of showing that the litigant used due diligence
POSITION OF THE PLAINTIFFS
[16] The plaintiffs’ position is that there was an ongoing investigation of their business and the limitation period did not stop with the events of December 18, 2010. There was an ongoing investigation both by the defendants and by the Alcohol and Gaming Commission, when there was a hearing. It is the plaintiffs’ position that this indicates that there was an ongoing investigation and the limitation period did not start to run until after March of 2012.
[17] The plaintiffs state that the limitation period starts to run March 2012. The plaintiffs state that notes of Officer Dywan of the NRPS, which are attached at Tab 2 of the responding record, state “advised that investigation ongoing”.
[18] The plaintiffs state that this is further confirmed by the fact that the Alcohol and Gaming Commission was conducting an investigation into the plaintiffs’ license.
[19] The position of the plaintiffs’ is that a liberal interpretation should be given to the discoverability rule.
POSITION OF THE DEFENDANTS
[20] There is no evidence before the court that the investigation into the stabbing that occurred on January 7, 2011, whereby the two plaintiffs were taken to the police station for questioning, was caused by an ongoing investigation by the police. As stated earlier, there was an individual that gave a statement to the police that the plaintiffs were involved. After about four hours they were released.
[21] The note of Officer Dywan does state that the investigation is ongoing. However, there was no evidence that the plaintiffs were under investigation as a result of the assault that took place that day.
[22] The plaintiffs had the right to examine the officer on the notes. They did not do so. Certainly one would have expected the officer to be examined. There was a responsibility to put the best foot forward.
[23] The police had a responsibility and duty to report incidents such as occurred on January 7, 2011 to the Alcohol and Gaming Commission. Any investigation would be with respect to the license that the plaintiffs were working with. There was no evidence that any investigation that the Commission carried out had anything related to the police investigation of the assault on January 7, 2011.
[24] The plaintiffs did not provide the court with any definitive evidence that there was a link between the investigation by the Alcohol and Gaming Commission and the hearing on March 2012. The plaintiffs had an obligation to put their best foot forward. They did not do so. The Statement of Claim is dated March 12, 2013. No mention was made of the investigation by the Alcohol and Gaming Commission of March 2012. This would indicate that at the time of the issuance of the Statement of Claim, the plaintiffs did not consider that there was any relation to the events of January 7, 2011.
[25] The plaintiffs state that their license was suspended on July 22, 2012. No evidence was introduced at the motion as to what the investigation was about. There was no evidence that that suspension has anything to do with the events of January 7, 2011. Again, there was no reference to that suspension in the Statement of Claim of March 12, 2013. An inference can be drawn that there was no relationship between that suspension and the events of January 7, 2011.
[26] The plaintiffs refer to an event that occurred on January 26, 2014. There was a stabbing on the street and the police came and put a “caution tape” on the building and shut it down. Certainly, if the police acted improperly, that would be a possible cause of action. In my opinion, that situation does not help the plaintiffs’ in this motion.
DECISION
[27] The plaintiffs are relying on some events that occurred after the event of January 7, 2011. They occurred before the issuance of the Statement of Claim. No mention was made of those events in the Statement of Claim, the inference being those did not help their argument. The one event that they say occurred after the issuance of the Statement of Claim refers only to the allegation. There is nothing to support the claim. It would be a possible cause of action, but it does not help in extending the time to issue a Statement of Claim for the event of January 7, 2011.
[28] Therefore, I am granting the motion of the defendants dismissing the claim of the plaintiffs. It was started after the limitation period had expired.
[29] There will be costs to the defendants. If the parties are not able to agree on the costs, there will be written costs argument of the defendants, limited to five pages, and filed within 15 days of receiving this judgment. The plaintiffs will respond with their costs argument, also limited to five pages, within 10 days of receiving the defendants’ written argument. The defendants may respond within 5 days after receiving the plaintiffs’ argument, the response being limited to three pages.
Matheson J.
Released: March 17, 2014
COURT FILE NO.: 6761/13
DATE: 2014-03-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Nicodemos Albano and Francesco Albano
Plaintiffs
- and –
Niagara Regional Police Service,
Regional Municipality of Niagara Police Services Board,
Michelle Dywan and Joseph Payk, Employees of the Niagara Regional Police Service
DECISION
Matheson J.
Released: March 17, 2014