Court File and Parties

COURT FILE NO.: CV-17-74188 DATE: 2018/09/28

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Scott MacNeil and Marie MacNeil Plaintiffs – and – Master Corporal Scott Brown and Attorney General of Canada Defendants

Counsel: Joshua M. Juneau for the Plaintiffs Jyll Hansen for the Defendants

HEARD: August 16, 2018

Reasons for Decision

O’Bonsawin J.

Overview

[1] The Defendants bring a motion for Summary Judgment dismissing the Plaintiffs’ claim as being statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

Background

[2] The Plaintiffs, Mr. Scott MacNeil and Mrs. Marie MacNeil (“MacNeils”), were involved in an altercation at Canadian Forces Base Trenton (“CFB Trenton”) on October 29, 2010 as they were leaving an Oktoberfest party held at the Junior Rank Mess. A dispute arose over the use of a taxi and an altercation ensued, involving the MacNeils and several others, including Canadian Armed Forces members and civilians.

[3] The Canadian Forces Military Police (“MP”) had jurisdiction over the policing of the incident and were dispatched to deal with the situation. The MP also had jurisdiction over the events and the power to charge persons involved.

[4] Master Corporal Scott Brown (“MCpl. Brown”), who was not at the scene of the altercation when the events occurred, led the team charged with investigating the incident. Between November 1, 2010 and November 16, 2010, MCpl. Brown and his team interviewed several witnesses including the MacNeils.

[5] On November 16, 2010, Mrs. MacNeil was charged with one count of assault causing bodily harm contrary to s. 267 (b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 and Mr. MacNeil was charged with four counts of assault contrary to s. 266 of the Criminal Code. All charges were referred to the Crown Prosecutor and addressed in provincial court.

[6] On October 26, 2011, Mr. MacNeil entered into a peace bond pursuant to s. 810 of the Criminal Code for a period of 12 months in order to resolve the criminal charges against him without the need for a trial.

[7] On July 21, 2011, the charge against Mrs. MacNeil was withdrawn by the Crown and referred to the Regional Military Prosecutor Central. On November 23, 2011, the Regional Military Prosecutor Central did not prefer the charge against Mrs. MacNeil stating that there was “insufficient evidence to conclude, beyond a reasonable doubt, that she had committed an assault causing bodily harm”. Mrs. MacNeil received notice that all criminal charges against her were resolved on December 6, 2011.

[8] After the conclusion of their criminal matters, the MacNeils sought legal advice from a lawyer regarding the possibility of “grieving the actions of the MPs against [them]” (legal opinion dated February 13, 2012 at para. 2 [“legal opinion”]). The lawyer provided them with a lengthy seventeen page opinion.

[9] On February 15, 2012, the MacNeils filed a conduct complaint against the MP, including MCpl. Brown with the Military Police Office of Professional Standards (“MPPS”). This office investigates the conduct of the MP and its members as per Part IV of the National Defence Act, R.S.C. 1985, c. N-5. At the conclusion of an investigation, the MPPS provides a report setting out its findings and a summary of any action taken respecting the disposition of the complaint. The MPPS does not have the jurisdiction to award monetary damages or take administrative action against a member of the MP.

[10] On April 23, 2013, the MPPS concluded its investigation and dismissed the MacNeils’ complaint.

[11] On December 31, 2014, the MacNeils expressed their dissatisfaction with the result of the MPPS review to the Military Police Complaints Commission (“MPCC”) and requested a second stage review by the MPCC. This office is an independent civilian body also established pursuant to Part IV of the National Defence Act. Like the MPPS, the MPCC investigates complaints against the MP and provides recommendations to the Canadian Forces Provost Marshal regarding the complaint. The MPCC does not have the jurisdiction to award monetary damages or take administrative action against a member of the MP.

[12] The MPCC released its Final Report on July 4, 2017. The MPCC concluded that five of the allegations against the MP and MCpl. Brown were substantiated and one allegation was not substantiated. The report provided three recommendations for the improvement of MP investigations and conduct.

[13] On October 6, 2017, the MacNeils brought an action against the Defendants claiming a negligent investigation.

Issues

[14] The issues in this matter are as follows:

1. Is the legal opinion provided to the MacNeils dated February 13, 2012, admissible in this legal proceeding?
2. Are the claims of Mr. MacNeil and Mrs. MacNeil statute barred or is there a genuine issue requiring a trial?

Position of the Parties

Legal Opinion

The MacNeils

[15] The MacNeils raise the preliminary issue of whether or not the legal opinion received by them is admissible in this legal proceeding. They argue as follows:

• the legal opinion was solicited by them and it was clearly marked “WITHOUT PREJUDICE”;
• the legal opinion was presented by the MacNeils to the Canadian Armed Forces with the sole intention of assisting the resolution of a workplace grievance;
• it is unknown how the legal opinion was incorporated as part of the MP investigative file;
• it is inappropriate for the Defendants to produce and rely on the legal opinion in this legal proceeding;
• for more than a century, the courts have consistently held that materials provided “with a view to a settlement of dispute, especially where they are expressly stated to be without prejudice are inadmissible in evidence on well known principles” (Guimond v. Fidelity-Phoenix Fire Insurance Co. of New York, [1912] 2 D.L.R. 654 at para. 4);
• the purpose of marking documents “without prejudice” is to “[enable] parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation. This promotes honest and frank discussions between the parties, which can make it easier to reach a settlement” (Bombardier Inc. v. Union Carbide Canada Inc., 2014 SCC 35, [2014] 1 S.C.R. 800 at para. 31);
• if the legal opinion is admitted in this legal proceeding, it will have a prejudicial effect on them; and
• the legal opinion must be struck from this legal proceeding.

The Defendants

[16] MCpl. Brown and the Attorney General of Canada (“Defendants”) argue as follows:

• in their Affidavits, the MacNeils affirmed they were not aware how the MPCC received a copy of the legal opinion. It is important to note however, that the legal opinion was provided to the MPCC as an attachment to the complaint filed by the MacNeils in which they advised they had sought legal advice;
• as per their Affidavits, the legal opinion was willingly provided by the MacNeils to the MPCC;
• by their actions, it is clear that the MacNeils’ intention was to waive solicitor-client privilege;
• the legal opinion is also an important and relevant document in this legal proceeding; and
• it is also clear that the law firm was providing the MacNeils with advice that they could take legal action against the Defendants. This is in addition to the issue of a workplace grievance.

The Claims

The Defendants

[17] The Defendants argue that there is no genuine issue requiring a trial since the claims of the MacNeils are barred by the Limitations Act, 2002, or fail to establish the requirements for the tort of negligent investigation. The action raises no genuine issue requiring trial and is without merit. The Court can determine this matter without the need for a trial on the evidentiary record before it. This action can be summarily dismissed under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as an action not requiring a trial.

[18] The Defendants argue that Mr. MacNeil was not acquitted of the charges against him. On October 26, 2011, he entered into a peace bond under s. 810 of the Criminal Code to resolve all criminal charges against him. This was not a resolution in his favour. The jurisprudence is clear that entering into a peace bond is not a resolution of criminal charges in favour of a Plaintiff (Fragomeni v. Greater Sudbury Police, 2015 ONSC 3937, [2015] O.J. No. 3797, para. 59).

[19] The Defendants submit that without the resolution of the criminal charges in his favour, Mr. MacNeil cannot make out the essential elements of the tort of negligent investigation. His claim in negligence is certain to fail and should be dismissed without the requirement of trial.

[20] Furthermore, according to s. 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, the applicable limitation period in proceedings against the Crown is that of the province in which the cause of action occurred. As the MacNeils’ negligence claim arose in Ontario, the Limitations Act, 2002 applies to this proceeding.

[21] It is the Defendants’ position that the MacNeils bear the burden of rebutting the presumption of discoverability, and that the failure to adduce sufficient evidence relating to discoverability is fatal. Discoverability of an alternate date for an act or omission must be established on both an objective and a subjective measure. Discoverability is a fact-based analysis. The question is whether the MacNeils’ have knowledge of enough facts on which to base a claim against the Defendants. If this is the case, then the claim has been ‘discovered’ and limitation period begins to run.

[22] The Defendants argue the following principles regarding the Limitations Act, 2002:

• pursuant to s. 5(1) of the Limitations Act, 2002, the date of discovery is the earlier date of when the person with the claim either first knew or reasonably ought to have known the act or omission occurred;
• a Plaintiff bears the onus of leading evidence to displace both the objective and subjective components of the tests set out in ss. 5(1) (a) and 5(1)(b) of the Limitations Act, 2002;
• a Plaintiff must show that: (1) he/she was not subjectively aware of the factors set out in s. 5(1) (a) of the Limitations Act, 2002; and, (2) that a reasonable person “with the abilities and in the circumstances of the person with the claim” would also not have been aware of these factors;
• a Plaintiff is required to act with due diligence in determining the existence of a claim, and a limitation period “is not tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1) (a)” (Longo v. MacLaren Art Centre, 2014 ONCA 526, para. 42). The Courts have made it clear that Plaintiffs should not “have an infinite period of time to acquire the requisite knowledge”. The Plaintiff is required to display the due diligence of a prudent person in attempting to acquire the knowledge necessary to move forward with a claim;
• a Plaintiff is not required to possess a comprehensive understanding of a potential claim for the limitation period to commence. The discovery of a claim does not depend upon a Plaintiff’s knowledge that the claim is likely to succeed, or awareness of the totality of a defendant's wrongdoing. Knowledge of the material facts, and not the elements of a cause of action, will inform the Court’s assessment of the commencement of a limitation period; and
• the fact that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if the person knows or ought to have known the existence of the material facts, which is to say the constituent elements of the cause of action. Error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period.

[23] The Defendants concede that a criminal investigation delays the commencement of the limitation period. In the present case, Mrs. MacNeil is therefore presumed to have discovered her cause of action, at the latest, on December 6, 2011, the day she was advised that all charges against her were withdrawn.

[24] Furthermore, Mr. MacNeil was not acquitted of the charges against him and therefore cannot make out the legal requirements of the tort of negligent investigation. In the alternative, it is the Defendants’ position that upon a liberal reading of Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, and the subsequent jurisprudence, even an untenable claim of negligent investigation would be deemed to be discovered at the conclusion of the criminal proceedings against a Plaintiff. Therefore, in the present case, Mr. MacNeil is presumed to have discovered his alleged cause of action against the Defendants on or before October 26, 2011.

[25] The Defendants argue that the MPCC proceedings cannot stay a limitation period. The MacNeils take the position that they could not have discovered their claims against the Defendants until the conclusion of the MPCC review process on July 4, 2017. The Defendants submit that this position has no basis in law and has been expressly rejected by the Ontario Court of Appeal in Cassidy v. Belleville Police Service, 2015 ONCA 794, 128 O.R. (3d) 387.

[26] As in Cassidy, the complaint before the MPCC in the current case is a parallel proceeding. The MPCC is an independent civilian review body whose mandate is limited to the issuance of findings and recommendations with respect to complaints about the conduct of the MP. The MPCC cannot compensate the Plaintiffs for out of pocket expenses or pain and suffering. This is separate and distinct from the powers of a Court in determining liability in an action. Therefore, as in Cassidy, relief sought before the MPCC is separate and distinct from that available in a civil action and did not bar the commencement of this action. The MacNeils cannot rely on this parallel proceeding to explain their delay in proceeding with an action against the Defendants.

[27] The Defendants further argue that the MacNeils’ claims are statute barred by the Limitations Act, 2002. Mrs. MacNeil knew, or ought to have known, that she had a cause of action against the Defendants at the time she was notified that the criminal charges against her were withdrawn on December 6, 2011. She cannot establish the objective or subjective components of discoverability found in ss. 5(1) (a) and 5(1)(b) of the Limitations Act, 2002. Mrs. MacNeil had enough material facts on which to base a claim of negligence, and a reasonable person, with her capabilities and in her circumstances, would also have been aware she had potential legal recourse against members of the MP.

[28] In fact, shortly after receiving notice of the withdrawal of charges against her, Mrs. MacNeil sought legal advice on avenues of recourse available to her from a lawyer. It can be seen from the legal opinion of February 13, 2012, that Mrs. MacNeil was aware of the following material facts:

• she and Mr. MacNeil had been involved in an altercation at CFB Trenton on October 29, 2010;
• she and Mr. MacNeil had been interviewed and investigated by the MP following the altercation;
• the MP had jurisdiction to conduct investigations into the conduct of CAF members and civilians on CAF property;
• she had been charged with assault causing bodily harm contrary to the Criminal Code;
• the charges against her had been referred to a Crown Prosecutor and had been dealt with, initially, in provincial court;
• on July 21, 2011, the charge against her was withdrawn and the matter was referred back to military authorities;
• on November 23, 2011 the Regional Military Prosecutor Central decided not to prefer the charge against her;
• the Regional Military Prosecutor Central report indicated that there was insufficient evidence to conclude, beyond a reasonable doubt, that she had committed an assault causing bodily harm;
• the Regional Military Prosecutor Central report indicated that the evidence established that, even if the assault could have be established, Mrs. MacNeil had acted in such a way to defend her husband;
• she and Mr. MacNeil believed there were witness interviews and evidence that were supressed, mishandled, or ignored during the MP investigation; and
• she and Mr. MacNeil believed that they had been harmed by the MP investigation.

[29] As noted, all of these material facts were summarised by the lawyer in his legal opinion of February 13, 2012. The lawyer advised the MacNeils that, in his opinion, the MP’s investigation was flawed and this flaw resulted in the MP’s decision to charge her and the Crown Prosecutor’s decision to pursue the charges. Counsel advised that these actions harmed her and Mr. MacNeil financially, subjected her and Mr. MacNeil to administrative review for alcohol misuse, and caused her great stress.

[30] In addition, the legal opinion advised the MacNeils of possible avenues of recourse against the CAF and the MP, including commencing a legal action. The lawyer advised the MacNeils that they could pursue a claim against the MP and other authorities involved in this matter, in a Court for damages. He advised them that a lawsuit would determine liability of the Defendants and that, “if liability is established, the court is then concerned with the level of damages - the losses that you actually suffered as a dollar value”.

[31] The lawyer advised the MacNeils that there is a 2-year limitation period to file a claim against the Defendants in British Columbia and that in his opinion, the limitation period would expire on December 6, 2013. He referred to British Columbia since the MacNeils resided in that province on the date the legal opinion was provided to them. The lawyer advised the MacNeils that any suit relating to these events must be commenced before this date.

[32] The Defendants argue that following a review of the legal opinion from the lawyer, Mrs. MacNeil knew or ought to have known that she had a potential cause of action against the Defendants, that the right to pursue this action was limited to 2 years, and that her counsel believed that this right would expire on December 6, 2013. The fact the lawyer had advised her regarding an action commenced in British Columbia does not affect discoverability, as it does not change the date in which she knew or ought to have known material facts sufficient to commence an action against the Defendants. Further, the Courts have held that the provision of legal service in and of itself does not limit or delay the discoverability of a claim.

[33] The Defendants argue that Mrs. MacNeil cannot establish that she did not know, or that a reasonable person similarly situated to her would not have known, that she had a cause of action against the Defendants on or before December 6, 2011 and that this cause of action would expire on December 6, 2013. Therefore, this claim for negligent investigation was filed outside of the prescribed limitation period and is statute barred by the Limitations Act, 2002. Mrs. MacNeil’s claim raises no issue requiring trial and should be summarily dismissed.

[34] The Defendants argue that Mr. MacNeil’s claim is also barred by the Limitations Act, 2002. In the alternative to the Defendants’ arguments above that Mr. MacNeil fails to meet the requirements of the tort of negligent investigation, Mr. MacNeil cannot establish an alternative date of discovery of his claim on the objective or subjective components of discoverability found in ss. 5(1) (a) and 5(1)(b) of the Limitations Act, 2002. Mr. MacNeil had enough material facts on which to base a claim of negligence, and a reasonable person, with his capabilities and in his circumstances, would also have been aware that he had potential legal recourse against members of the MP.

[35] It is the Defendants’ position that Mr. MacNeil had also retained the lawyer to provide legal advice on recourse against the MP. The lawyer’s legal opinion addressed the claims of both Mr. and Mrs. MacNeil. Therefore, the Defendants adopt the same submissions it made regarding the issue of discoverability for Mrs. MacNeil in relation to discoverability of Mr. MacNeil’s cause of action with the following additions.

[36] Mr. MacNeil entered into a peace bond on October 26, 2011, to resolve all criminal charges against him. Therefore, any cause of action he may have had against the Defendants is presumed to have been known on or before this date. Further, Mr. MacNeil was aware of the following additional material facts at the time of the preparation of the legal opinion:

• he had been charged with four counts of assault contrary to the Criminal Code;
• he had instructed his counsel to settle all charges against him without the requirement for trial; and
• on October 26, 2011 he entered into a peace bond and the criminal charges against him were withdrawn.

[37] The Defendants argue that like Mrs. MacNeil, Mr. MacNeil cannot establish that he did not know, or that a reasonable person similarly situated to him would not have known, that he had a cause of action against the Defendants on or before October 26, 2011. Therefore, his claim for negligent investigation was filed outside the prescribed limitation period and is statute barred by the Limitations Act, 2002. Mr. MacNeil’s claim raises no issue requiring trial and should be summarily dismissed.

The MacNeils

[38] The MacNeils argue that a limitation period will not start to run until a Plaintiff “has knowledge, or reasonably ought to have had knowledge, of the material facts on which the cause of action is based.” This discoverability principle and the purpose of this rule is to prevent injustice by “depriving a plaintiff of the opportunity to bring an action before that party knows to raise it”; Babjak v. Karas, 2018 ONSC 2093, [2018] O.J. No. 1673 at para. 45, citing Central & Eastern Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at p. 224; Nielsen v. Kamloops, [1984] 2 S.C.R. 2.

[39] A limitation period may be delayed provided that a Plaintiff can show that he/she acted diligently to seek out information to support his/her claim; Babjak v. Karas at para. 45, citing Zapfe v. Barnes, [2003] 66 O.R. (3d) 397 (C.A.) at para. 24. Diligence of the Plaintiff is a key component to invoking the discoverability principle.

[40] In this matter, the MacNeils argue there was simply no way for them to know the extent of the negligence against them until after reviewing the MPCC Report dated July 4, 2017. Prior to this, the MacNeils had no actual knowledge of what went on ‘behind the scenes’ of the police investigation. In fact, the MPPS Report dated April 23, 2013 fully exonerated the MP of any wrongdoing, and so at that time, there was no cause to file a Statement of Claim as the MacNeils had no evidence upon which to base any of their apprehensions. To do so would have been perceived as embarking on a fishing expedition.

[41] Prior to receiving the MPCC Report, the MacNeils:

a) would have been unable to discover the material facts on which to base a cause of action against the Defendant; b) did not know enough facts on which to base an allegation of negligence; and/or c) did not have sufficient particulars to meaningfully call into question the actions and prescribed treatment of the named Defendants.

[42] Prior to July 4, 2017, the MacNeils may have had an apprehension of MP wrongdoing. Consequently, they exercised their rights and filed a complaint that was investigated by the internal Professional Standards team.

[43] The MacNeils take the position that all evidence upon which this claim is based was only made available through the release of the MPCC Report which provided justification to the MacNeils and verified their apprehensions. In their Report, the MPCC concluded, inter alia, that:

• the MP investigation was incomplete in that MCpl. Brown and/or other members of the MP detachment failed to complete a thorough and accurate investigation, which led to wrongful criminal charges being filed against both complainants. The first time that the MacNeils learned of this was after receiving and reviewing the MPCC Report;
• the MP file did not accurately reflect the information provided by at least one witness in that MCpl. Brown knowingly suppressed, misrepresented or falsified information in a report or statement, as he did not accurately capture and disclose information gathered from witnesses during the investigation. The first time that the MacNeils learned of this was after receiving and reviewing the MPCC Report;
• the MP were also unprofessional in their dealings with other witnesses. The first time that the MacNeils learned of this was after receiving and reviewing the MPCC Report;
• evidence considered by the investigator did not support the arrest and laying of charges against Mrs. MacNeil, and possibly Mr. MacNeil. The first time that the MacNeils learned of this was after receiving and reviewing the MPCC Report. There was no way for the MacNeils to understand the reasons for their arrest and incompetence of the MP until after reviewing the MPCC Report; and
• Mrs. Geert was not charged despite there being ample evidence, including a witness description of her as the person who struck Mrs. MacNeil, to justify charges. Though the MacNeils were aware that no charges were brought against Mrs. Geert, the first time that the MacNeils learned that there was ample evidence including a witness description of her as the person who struck Mrs. MacNeil was after receiving and reviewing the MPCC Report.

[44] The MacNeils argue it was only after receiving the MPCC Report that they had enough material facts to understand that there was a basis for a claim of negligence both against the MP and MCpl. Brown. Indeed, prior to complaining to the MPCC, remarkably, the MPPS team had concluded that there had been no wrongdoing by the Defendants.

[45] In their factum, the Defendants argue that an MPCC proceeding cannot stay a limitation period. The MacNeils argue that generally this would be true. However, in this case, there is new evidence that was disclosed to the MacNeils through issuance of the MPCC Report that was not known to them prior to this Report being disclosed. Without the MPCC Report, the claimed issues would never have become known to the MacNeils. Hence, the limitation period rightly commenced on receipt of the MPCC Report, pursuant to s. 5(1) (a)(ii) of the Limitations Act, 2002.

[46] The MacNeils submit that neither Mr. MacNeil nor Mrs. MacNeil’s claims are barred by the Limitations Act, 2002. The police negligence that led to the charges against the MacNeils only became known after receiving and reviewing the MPCC Report released on July 4, 2017. An earlier MPPS Report dated April 23, 2013 concluded that there was no wrongdoing by the MP and provided the MacNeils with no evidence to support their apprehensions. Once the actions taken by the MP became known to the MacNeils, they moved swiftly and issued a Statement of Claim approximately three months later.

[47] Lastly, the MacNeils submit it would be wrong to strike their Statement of Claim. The existence of prejudice and a cause of action was only first evidenced by the MPCC Report, and pursuant to s. 5(1) (a)(ii) of the Limitations Act, 2002, the issuance of that report establishes the start of the time available for the MacNeils to issue their claims.

Analysis

Is the legal opinion provided to the MacNeils dated February 13, 2012, admissible in this legal proceeding?

[48] The short answer to this question is that the legal opinion provided to the MacNeils is admissible. In their Affidavit sworn on August 8, 2018, the MacNeils stated: “To assist in resolving this grievance, we provided the Canadian Forces with a legal opinion produced by Dinning, Hunter, Lambert & Jackson LLP dated February 13, 2012. We have come to learn that this legal opinion has been included as part of a military police investigative file and are unaware under what authority a grievance decision maker can pass along ‘without prejudice’ information, provided for the intent of resolving a grievance, to a military police investigation”. However, the evidence shows the MacNeils did not only provide the legal opinion to the Armed Forces for their grievance issues, according to Lieutenant Colonel Lionel Smith’s Affidavit sworn on August 2, 2018, but they also provided a copy to the MPCC when they attached it to their letter of complaint on February 15, 2012. The MacNeils argue it is unknown how the legal opinion was incorporated as part of the MP investigative file. The answer to this is quite simple: the evidence demonstrates the MacNeils wilfully disclosed the legal opinion that they received from the lawyer to the MPCC. The MacNeils’ actions constituted a waiver of the solicitor-client privilege. They were aware of the existence of the solicitor-client privilege since they commissioned the legal opinion from the lawyer. They revealed the presence of the opinion letter when they provided it to the MPCC.

[49] The MacNeils argue that this letter is covered by settlement privilege. It is important to note that the caveat or header “without prejudice” does not automatically render the letter protected by privilege. Rather, it is the content of the document that dictates the privilege accorded. For settlement privilege to apply, the content of the document must be an attempt to settle a dispute. The letter of February 13, 2012 constitutes more than a settlement of a grievance. It delves into all aspects of the matter: what evidence justified the serious criminal charges made against the MacNeils, whether the investigation of their case was performed satisfactorily, incompetently or maliciously by the MP, whether the MacNeils were aggrieved by the decision, act or omission in the administration of their matter by the MP and if so, what options were available to the MacNeils and what redress could the MacNeils seek (legal opinion at p. 3).

Are the claims of Mr. MacNeil and Mrs. MacNeil statute barred or is there a genuine issue requiring a trial?

[50] Per r. 20.01(1) of the Rules of Civil Procedure, after a Defendant has delivered a Statement of Defence or served a Notice of Motion, a Plaintiff may move for Summary Judgment on all or part of the claim in the Statement of Claim. Per r. 20.04(2)(a), the Court shall grant Summary Judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. The framework for the granting of Summary Judgments is stated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at paras. 47-49:

Summary judgment motions must be granted whenever there is no genuine issue requiring a trial. … There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[51] Furthermore, Hryniak sets out the obligations of a judge on a motion for Summary Judgment. In order for a judge to first determine if there is a genuine issue requiring a trial, he/she must make a determination based only on the evidence before him/her without using the new fact-finding powers. The new powers can be used by a judge if there appears to be a genuine issue requiring a trial. The new powers under r. 20.04(2.1) include the weighing of evidence, evaluating the credibility of a deponent, and drawing any reasonable inference from the evidence. In addition, per r. 20.04(2.2), a judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation. As per Ray J. in Ali v. Toyota Canada Inc., 2016 ONSC 5909, [2016] O.J. No. 4827 at para. 8, when a defendant brings a motion for Summary Judgment, the plaintiff must put his/her best foot forward. The parties must “lead trump or risk losing” (Da Silva v. Gomes, 2018 ONCA 610, [2018] O.J. No. 3549 at para. 18, citing 1061590 Ontario Ltd. v. Ontario Jockey Club, [1995] 21 O.R. (3d) 547 (C.A.) at para. 36).

[52] With regards to the limitation period, pursuant to s. 4, the Limitations Act, 2002 requires that actions in negligence be commenced within two years of the date the claim was discovered:

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.

[53] Section 5 of the Limitations Act, 2002 details when a claim is discovered for the purposes of the Act:

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).

Presumption

(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.

[54] There is a rebuttable presumption that the date of discovery is the day the act or omission occurred. Subsection 5(2) of the Limitations Act, 2002 creates a presumption that a claim is discoverable “on the day the act or omission took place”. In other words, a Plaintiff is presumed to have discovered the material facts upon which his/her claim against a Defendant is based on the day the act or omission took place.

[55] I will turn to the Defendant’s alternative argument regarding Mr. MacNeil’s claim: the law of tort of negligent police investigation. In Hill v. Hamilton-Wentworth, the Supreme Court of Canada recognized the existence at common law of the tort of negligent police investigation. In doing so, Canada recognized a tort in which an investigating police officer owes a duty to a suspect to act reasonably in conducting an investigation.

[56] In establishing this new duty of care, the Supreme Court of Canada indicated that the Plaintiff must establish each element of the tort, including “that the damage incurred, be it a conviction, imprisonment, prosecution or other compensable harm, would not have been suffered but for the police’s negligent investigation” (at para. 64). The Court also stated that “lawful pains and penalties imposed on a guilty person do not constitute compensable loss. It is important as a matter of policy that recovery under the tort of negligent investigation should only be allowed for pains and penalties that are wrongfully imposed” (at para. 92).

[57] Therefore, while the Supreme Court cautioned that an acquittal alone was not proof positive of an existence of a negligent investigation, it is clear that it is one of the elements required by a plaintiff in asserting their claim. In the cases which have followed Hill, the Courts have summarised the requirements of the tort of negligent investigation. These requirements were summarised by the Court in Romanic v. Johnson, 2012 ONSC 3449, [2012] O.J. No. 2642, aff’d 2013 ONCA 23, [2013] O.J. No. 229, as follows:

[9] The judicial authorities establish that the tort of negligent investigation is very similar to the tort of malicious prosecution, with some overlapping components. More particularly, the jurisprudence dictates that, in order to establish the tort of negligent investigation (at least in cases where the investigation has resulted in criminal charges) the plaintiff must establish four necessary elements, namely: (a) the proceedings must have been initiated by the defendant; (b) the proceedings must have been terminated in favour of the plaintiff; (c) there must have been an absence of reasonable and probable grounds to commence the proceedings against the plaintiff; and (d) in conducting the investigation the defendant owed a duty of care to the plaintiff, and did not meet the objective standard of a reasonable police officer in similar circumstances…Again, the law is clear that with respect to any allegation of negligent investigation in a case where charges were pursued the plaintiff must establish, among other things, that the criminal proceedings were terminated in his or her “favour” (emphasis added).

[58] In Fragomeni v. Greater Sudbury Police Service, Kane J. noted at para. 59 that:

[w]here a plaintiff enters into a peace bond to resolve criminal charges, that is not a termination of proceedings in the plaintiffs favour: Fournier-McGarry (Litigation guardian of) v. Ontario, supra, para. 29; Holland v. Ontario (Ministry of the Attorney General), [2000] O.J. No. 566 (Ont. S.C.J.), paras. 17-18 and Khan v. Peel (Regional Municipality) Police Services Board, [2008] O.J. No. 3494 (Ont. S.C.J.), para. 4 [sic].

[59] Writing a review of the jurisprudence and the effect of a Peace Bond in a negligent investigation action, Campbell J. provided the following summary statement in Romanic v. Johnson:

[23] There are a number of cases that make it clear that where the criminal proceedings against the accused are resolved or settled by the Crown withdrawing the charges in return for the accused entering into a peace bond, this result is not one that is in favour of the accused. Accordingly, in such circumstances this result prevents the accused from subsequently pursuing a malicious prosecution or negligent investigation action. This line of authority has continued after the Court of Appeal decision in Ferri v. Root. See: Lauber v. Atkinson, [2011] O.J. No. 3503 (Ont. S.C.J.) at para. 4-9.

[60] I agree with the Defendants that Mr. MacNeil was not acquitted of the charges against him. He entered into a peace bond on October 26, 2011. This is not a resolution in his favour. Consequently, without the resolution in his favour, Mr. MacNeil cannot make out the essential elements of the tort of negligent investigation.

[61] With regards to the limitation period, the question in this matter is whether the MacNeils had knowledge of enough facts on which to base a claim against the Defendants. Pursuant to s. 5(1) of the Limitations Act, 2002, the date of discoverability is the earlier date of when the person with the claim either first knew or reasonably ought to have known the act or omission occurred. The Plaintiff has the burden to lead evidence to displace both the objective and subjective components of the tests set out in ss. 5(1)(a) and 5(1)(b) of the Limitations Act, 2002 (Attayee v. Pickering (City), 2015 ONSC 7701, [2015] O.J. No. 6617 at para. 37; Smith v. GCAT Group Inc., 2017 ONSC 7542, [2017] O.J. No. 6631 at para. 10).

[62] In Liu v. Silver, 2010 ONSC 2218, 101 O.R. (3d) 702, Allen J. stated at para. 35 that “a plaintiff does not have an infinite period of time to acquire the requisite knowledge. The determination of whether a plaintiff could have reasonably discovered the basis for a cause of action is evaluated in terms of the diligence a prudent person in the plaintiff’s place would exercise in seeking out and acquiring the facts.”

[63] In addition, the Plaintiff is not required to have a comprehensive understanding of a potential claim in order for the limitation period to commence (Attayee at para. 36). Knowledge of the material facts and not the elements of a cause of action will inform the Court’s assessment of the commencement of the limitation period (Attayee at para. 37; Smith at para. 10).

[64] The fact that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if the person knows or ought to have known the existence of the material facts, which is to say the constituent elements of the cause of action (Nicholas v. McCarthy Tétrault, [2008] O.J. No. 4258 at para 27; aff’d 2009 ONCA 692, [2009] O.J. No. 4061, leave to appeal to SCC refused 2010 CarswellOnt 1566 (S.C.C.)). Error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period (Canada Mortgage and Housing Corp. v. Greenspoon, 2015 ONSC 6882, 64 R.P.R. (5th) 99 at paras. 36 and 52; Nicholas at para. 27).

[65] In recognising the tort of negligent investigation in Hill, the Supreme Court of Canada noted that a cause of action in negligence arises only when the elements of the tort are complete. Therefore the limitation period for negligent investigation can only begin to run when the harmful consequences of the negligence are realised. The Court stated:

97 … [T]he loss or injury as a result of alleged police negligence is not established until it is clear that the suspect has been imprisoned as a result of a wrongful conviction or has suffered some other form of compensable harm as a result of negligent police conduct. The wrongfulness of the conviction is essential to establishing compensable injury in an action where the compensable damage to the plaintiff is imprisonment resulting from a wrongful conviction. In such a case, the cause of action is not complete until the plaintiff can establish that the conviction was in fact wrongful. So long as a valid conviction is in place, the plaintiff cannot do so.

[66] The Court concluded that the limitation period did not commence until the conclusion of the criminal proceedings in favour of Mr. Hill, after a new trial was held and he was acquitted of all charges of robbery. Courts have consistently applied this principle, noting that the elements of the tort of negligent investigation cannot be known until a matter is resolved in favour of a Plaintiff.

[67] In Mrs. MacNeil’s case, she is presumed to have discovered her cause of action against the Defendants at the latest on December 6, 2011, the day that she was advised that the charges against her were withdrawn. For his part, Mr. MacNeil is presumed to have discovered his cause of action against the Defendants on October 26, 2011, the day he entered into a peace bond. As previously stated, Mr. MacNeil’s charges were not resolved in his favour. The evidence supports that he cannot make out a cause of action for the tort of negligent investigation.

[68] The MacNeils argue that they did not truly discover their claim against the Defendants until they received the MPCC Report on July 4, 2017. This position is not supported by the recent Court of Appeal decision in Cassidy v. Belleville Police Service. In Cassidy, the Court of Appeal considered the effect of an internal police investigation on the advancement of a limitation period stating:

[8] The appellant maintains that the limitation period did not begin to run until November 29, 2012, the date she learned of the decision of the Ontario Civilian Police Service regarding its review of her complaint. This is the date, according to the appellant, that she was informed of the standard of care required of police officers.

[9] The appellant’s arguments must be rejected. We see no error in the motion judge’s discoverability analysis.

[13] The administrative processes the appellant invoked concerned the oversight of police conduct and maintenance of police standards. Although these processes provided additional information in support of the appellant’s claim, discovery of her claim did not depend on them. Discovery of sufficient material facts to trigger commencement of the limitation period did not depend on precise knowledge of the applicable standard of care and whether Officer Groen’s conduct fell below it.

[69] As in Cassidy, the MacNeils’ complaint to the MPCC is a parallel proceeding. The MPCC has a limited mandate to issue findings and recommendations regarding the conduct of the MP. The MPCC cannot provide damages. The Court has separate and distinct powers from the MPCC. The MacNeils’ complaint to the MPCC did not put a hold on their issuance of a claim in our Court. Their delay cannot be attributed to such an action on their part.

[70] What is clear in this case is that due to the legal opinion the MacNeils’ had received from the lawyer on February 13, 2012, they knew that a statute of limitations applied to their filing of a claim in Court. The lawyer specifically reviewed the material facts regarding the MacNeils’ claims against the Defendants (as listed in para. 28 of these Reasons for Decision).

[71] The lawyer’s opinion was that the investigation of the MP was flawed and that this flaw resulted in the MP’s decision to charge Mrs. MacNeil and the Crown Prosecutor’s decision to pursue the charge against her. He was also of the view that these actions caused the MacNeils to disburse funds related to the criminal charges. In addition, an Administrative Review for Alcohol Misconduct was conducted against the MacNeils and was dismissed. Finally, the lawyer advised the MacNeils that they had three option to seek redress in their matter: 1) they could file a grievance; 2) they could complain to the MPCC; and 3) they could bring a legal action against the MP. He specifically advised them: “You should also be aware that there is a 2-year limitation period to sue on this matter in the Supreme Court of British Columbia, so a suit must be commenced before December 6, 2013, in my opinion” (p. 15 of the letter of opinion). It must be noted that the limitation period in British Columbia is the same as in Ontario. The fact that the lawyer referred to British Columbia does not affect discoverability as it does not change the date in which they knew or ought to have known the material facts sufficient to commence their actions against the Defendants.

[72] For the sake of clarity, a legal opinion does not limit or delay the discoverability of a claim (Attayee at paras. 14, 19, 40, 41 and 48).

[73] Based on the evidence in this matter, it is clear to this Court that the MacNeils knew or ought to have known that their potential causes of action had to be pursued in Court prior to December 6, 2013. They knew the material facts relevant to deciding whether to proceed with this action. Consequently, the MacNeils’ claims were filed outside of the prescribed limitation period and are statute barred by the Limitations Act, 2002. Their claims raise no issue requiring a trial.

Conclusion

[74] I grant an Order for Summary Judgment dismissing the MacNeils’ Statement of Claim as containing no genuine issue requiring trial.

Costs

[75] At the end of the hearing, the parties provided me with their Costs Outlines and arguments. I make the following findings regarding the issue of Costs.

[76] A successful party is presumptively entitled to costs in a reasonable amount (Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (C.A.), at para. 26). The amount awarded is intended to be fair and reasonable for the unsuccessful party, but not fixed by the actual costs incurred by the successful party (Boucher at paras. 24, 26).

[77] The Court has discretion to award costs pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (Goldman v. Weinberg, 2017 ONSC 4743, [2017] O.J. No. 4093 at para. 4 (citing Chandra v. Canadian Broadcasting Corp., 2015 ONSC 6519, [2015] O.J. No. 5934)). Rule 57.01(1) sets out a number of factors to be considered in determining costs.

[78] Parties often argue that costs should follow the event. This principle was confirmed by the Court in Schreiber v. Mulroney, [2007] O.J. No. 3191 (Sup. Ct.) at para. 2. Substantial indemnity costs are the exception to the rule.

[79] Upon reviewing the factors listed in Rule 57.01(1), I find that the amounts claimed in this action are significant. The MacNeils claimed damages in excess of $1,000,000. The motion was moderately complex and since it was successful, the claims are resolved without the necessity of a trial. Mrs. Hansen’s year of call is 2009 and her hourly rate is $195.88. Ms. Michel’s year of call is 2018 and her hourly rate is $157.45. The hourly rates and the hours worked are reasonable.

[80] Since the Defendants are clearly successful on the Motion for Summary Judgment, I order the MacNeils to pay the Defendants the partial indemnity amount of $10,938.63 within 30 days of this Decision.

Justice M. O’Bonsawin

Released: September 28, 2018