Court File and Parties

Court File No.: CV-16-555292 Date: 2017-01-04 Superior Court of Justice – Ontario

Re: Jamie Clark, Donald Belanger and Steven Watts, Plaintiffs/Responding Parties And: The Attorney General of Ontario, Defendant/Moving Party

Before: Stinson J.

Counsel: Michael W. Lacy and Lorne Honickman, for the Plaintiffs/Responding Parties Heather C. Mackay and Ananthan Sinnadurai, for the Defendant/Moving Party

Heard at Toronto: October 25, 2016

Endorsement

Background

[1] This endorsement concerns a motion under Rule 21 of the Rules of Civil Procedure by the defendant the Attorney General for Ontario, to dismiss the plaintiffs’ action on the ground that the action is barred by the expiry of a limitation period. The defendant has also moved pursuant to Rule 21 to strike the statement of claim as disclosing no cause of action.

[2] Because the limitation period issue might be dispositive of the action and in view of the fact that the defendant has not yet served a statement of defence, by agreement of the parties the limitation period point was argued as a preliminary question. The balance of the defendant’s Rule 21 motion was adjourned.

Facts

[3] In light of the conclusion I have reached regarding the preliminary question, at this stage I need recite only the basics of the plaintiffs’ allegations. To state the obvious, these facts are drawn from the statement of claim and are, for purposes of a motion such as this, assumed to be true or capable of proof.

[4] All three plaintiffs are police officers with the Toronto Police Service. They were the investigating officers with respect to a complaint of armed robbery and forcible confinement which took place in 2009. Two individuals were charged.

[5] The Assistant Crown Attorney assigned to the prosecutions elected to stay the charges against one of the accused because he alleged that his confession was involuntary since he had been assaulted by police. At the trial of the other accused, he too alleged he had been assaulted by police. The Assistant Crown Attorney did not challenge the allegations of assault and did not call the investigating police officers to testify. The other accused was convicted, but his sentence was reduced when the trial judge found that he had also been assaulted by police. That accused appealed his conviction.

[6] Subsequent to the trial, the Professional Standards Unit of the Toronto Police Service investigated the complaints of assault. The PSU found that the allegations could not be substantiated.

[7] The report of the PSU was not filed before the Court of Appeal. The Crown did not contest the trial judge’s findings regarding the officers’ misconduct. The Court found that the accused had been a victim of an assault by police and the conviction was overturned.

[8] The decisions of the trial court and the Court of Appeal received widespread publicity, and highlighted those courts’ conclusions that the plaintiffs had mistreated the two accuseds. The plaintiffs assert that their professional reputations were harmed as a result.

[9] The plaintiffs now allege that the Attorney General is liable to them in negligence and misfeasance in public office because of the conduct of Crown counsel with carriage of the prosecutions and appeal. The plaintiffs assert that Crown counsel were negligent in failing to further investigate the claims of assault and committed misfeasance in public office for not calling evidence (including their testimony) or otherwise attempting to refute the allegations made against them. They further assert that the Crown should have brought a fresh evidence application to file the PSU report with the Court of Appeal.

The limitation period issue

[10] The decisions of the trial judge and the Court of Appeal containing comments critical of the plaintiffs’ conduct were released on March 28, 2012 and December 12, 2013, respectively. It is a reasonable inference that they came to the plaintiffs’ attention at that time or soon thereafter. By then the plaintiffs were aware that they had not been called to testify at trial to respond to the allegations of misconduct and that the allegations had not been contested either at trial or in the Court of Appeal. Despite that knowledge, this action was not commenced until June 22, 2016 (following service of notice under the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 ("PACA")).

[11] Taking into account the extension of time provided by service of notice under PACA, the defendant submits that the two year limitation period prescribed by the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, expired, at the very latest, on October 12, 2015 in relation to the conduct of trial Crown counsel, and on February 16, 2016, in relation to the conduct of Crown counsel who argued the appeal. The defendant therefore asserts that the claims are statute barred and should be dismissed on this ground, now.

[12] By way of response the plaintiffs argue that, save in exceptional cases (of which this is not one) courts do not entertain motions to decide limitation period issues prior to service of a statement of defence. In any event, they further contend, there are live factual issues that bear on the limitation issue, which are expressly raised in the statement of claim and preclude determination of the question on a pleadings-based motion such as this.

[13] Strong authority for the former proposition can be found in Beardsley v. Ontario Provincial Police (2001), 57 O.R. (3d) 1 (C.A.) where the Court of Appeal stated as follows (at paras 21 and 22):

[21] The motion to strike based on the expiry of a limitation period could only be made pursuant to Rule 21.01(1)(a), which provides that a party may move for the determination of a question of law “raised by a pleading”. The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded. Although we agree that it would be unduly technical to require delivery of a statement of defence in circumstances where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired [for example expiry of the two-year limitation period under the Highway Traffic Act … in connection with a claim for property damage only, in circumstances where it is clear the discoverability rule does not apply], a plain reading of the rule requires that the limitation period be pleaded in all other cases. See Pollakis v. Corner (1975), 9 O.R. (2d) 691 (H.C.J.).

[22] Plaintiffs would be deprived of the opportunity to place a complete factual context before the court if limitation defences were determined, on a routine basis, without being pleaded. Adherence to rules that ensure procedural fairness is an integral component of an appearance of justice. The appearance of justice takes on an even greater significance where claims are made against those who administer the law. …

[14] More recently, Brown J. observed in Portuguese Canadian Credit Union Ltd. v CUMIS General Insurance (2010), 2010 ONSC 6107, 104 O.R. (3d) 16 (S.C.J.) as follows (at para. 33):

… I do not accept the submission of the Credit Union that its Rule 21 motion falls within the category of cases alluded to in Beardsley "where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted". In Beardsley the possibility of bringing a Rule 21.01(1)(a) motion before the close of pleadings was discussed in the context of a determination as to whether an action was statute-barred - for example, such as in cases where the injuries suffered in a car accident occurred on a date certain and nothing more could be said about that fact. That type of case is a far cry from the complex claim asserted in this proceeding. [Footnote omitted.]

[15] In Canadian Real Estate Assn. v. American Home Assurance Co., 2015 ONCA 389 (at para. 2) the Court of Appeal again reminded us that “the exception in Beardsley … must be confined to cases that involve no legal or factual complexities.”

[16] It is fair to say that the claims being asserted by the plaintiffs in the present case are by no means uncomplicated. They involve the examination of the relationship between the police and Crown attorneys generally and the conduct of the underlying prosecutions in this case specifically. They involve the potential expansion of Crown liability to a new class of claimants.

[17] This leads me to the potential disputed factual issue regarding the plaintiffs’ knowledge of their possible claim against the defendant. This issue engages s. 5(1)(a)(iv) of the Limitations Act, 2002, which provides 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

(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).

[18] The statement of claim expressly addresses the issue of the plaintiffs’ knowledge of the potential for a lawsuit being the appropriate means to seek redress for their complaints regarding the conduct of the Crown attorneys, as follows (at para. 50):

Several months after the Court of Appeal released its judgment in December of 2013, the officers retained counsel, who had the opportunity to review the entire record, and to listen to the audio of the oral arguments that were made in the Court of Appeal. It was only then that the officers were made fully aware of the tortious conduct of the defendant, and discovered their cause of action in negligence and malfeasance in a public office.

[19] Generally, the failure to appreciate the legal significance of discoverable facts does not stop a limitation period from running. However, there is an arguable exception for novel claims. In Boyce v. Toronto (City) Police Services, 2011 ONSC 53 (at para. 23), Low J. stated:

Section 5(1)(a)(iv) [of the Limitations Act, 2002] does not import an idiosyncratic limitation period calibrated by the claimant's familiarity with or ignorance of the law. The test is an objective one. While it is possible to envisage that a new kind of right might arise that has not been hitherto protected, thus making it arguable that a civil proceeding might not be seen objectively as an appropriate means to seek to remedy, a battery causing personal injury is a classic example of the kind of wrong that is appropriate for redress by court action. A citizen is presumed to know the law of the land. [Emphasis added.]

[20] Aside from the limitation issues addressed in this endorsement, the balance of the defendant’s Rule 21 motion asserts that this case involves “a new kind of right … that has not been hitherto protected”: i.e. the duty owed (if any) by Crown attorneys to police officers who are engaged as participants and witnesses in the criminal justice process. On this basis, the exception posited by Low J. in Boyce is engaged.

[21] As the Court of Appeal indicated in Beardsley, plaintiffs should not routinely be deprived of the opportunity to place a complete factual context before the court, by a defendant who asks the court to decide a limitation defence before it is pleaded. I therefore conclude that the question whether the plaintiffs should have known that a civil remedy was appropriate before they obtained legal advice, is a determination that should not be made at a preliminary stage such as this. At this stage, and based on the record as it currently exists, it is not plain and obvious that the limitation issue will be decided against the plaintiffs.

Conclusion and Disposition

[22] For these reasons, I decide the preliminary question in favour of the plaintiffs. By so doing, I am by no means determining the Limitations Act issue in their favour with finality. Rather, my decision is based on the directive of the Court of Appeal that pleadings should be closed before the court is asked to decide such an issue, except in situations where it is plain and obvious from a review of the statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired. Save in those exceptional situations, such a motion should only be brought after pleadings have been exchanged, whether by way of a Rule 21 motion (if appropriate) or a motion for summary judgment.

[23] In light of the conclusion I have reached, I find it unnecessary to address the parties’ submissions regarding the scope of evidence that I may consider on the limitation period point at this stage. I direct the parties to return before me to complete their submissions on the remainder of the defendant’s Rule 21 motion.

Stinson J. Date: January 4, 2017