Introduction

[1] This is an action brought against the Government of Canada alleging that the Canada Border Services Agency (“CBSA”) falsely arrested and imprisoned the plaintiff, and breached his rights under the Canadian Charter of Rights and Freedoms, prior to and during his removal from Canada to Vietnam. The plaintiff was arrested on June 27, 2013 and was detained in two maximum-security prisons from that date until his removal from Canada and released from CBSA custody in Vietnam on October 8, 2014. However, the plaintiff did not commence this action until October 7, 2016, more than two years after his arrest and detention. The defendant therefore submits that the action is statute-barred by operation of ss. 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24 (the “Limitations Act”), and moves for summary judgment to dismiss the action.

[2] This is not the first motion attacking the claim. On June 1, 2018, the defendants moved to strike out the claim as disclosing no reasonable cause of action. Schreck J. struck out several claims, including malicious prosecution and breach of a settlement, but permitted the claims of false arrest, false imprisonment and breach of Charter rights to continue, subject to the plaintiff amending his pleading to address discoverability since, as Schreck J. noted, those claims “are prima facie statute-barred.” The plaintiff then pleaded that his claim was not discoverable while he was in the harsh conditions of detention, and that he did not obtain information indicating that an action would be “appropriate” until at least June 10, 2015. It was only at that time that the defendant, in a related action dealing with the forfeiture of the bond posted for the plaintiff’s release, disclosed a document casting doubt on the CBSA’s basis for arresting and detaining the plaintiff, and which led to the return of the bond by the defendant.

[3] Nevertheless, the defendant now moves for summary judgment based on s. 5(2) of the Limitations Act, and on the basis of a lack of a reasonable cause of action, although on this motion, unlike the motion before Schreck J., the defendant’s grounds address the merits and must meet the test for summary judgment.

[4] For the reasons that follow, I dismiss the motion. In my view, applying s. 5(1) of the Limitations Act, the claim was only discoverable in June 2015 and therefore the action is not out of time. I also conclude that the merits of the claim should not be dismissed on a summary judgment motion, but rather require a trial.

Background Facts

[5] The plaintiff, Huan Vu (“Vu”), is a Vietnamese citizen who came to Canada as a student in 1999. His legal status in Canada expired in 2001, but he did not leave. He settled in Canada and made efforts to legalize his status. Although he was ordered to leave in 2007, he did not do so, and continued to take steps to remain in Canada. From at least 2009 onward, he complied with all orders and conditions imposed on him while he remained in the country, including strict reporting requirements. In 2012, he became a father and as he was not permitted to be employed he became the principal caregiver to his infant daughter while his wife worked outside the home full-time. Since his removal in 2014, he has been living in Vietnam, separated from his wife and child in Canada.

[6] The chronology of dates relevant to this motion are as follows:

(a) 1999 – Vu arrives in Canada on a student visa, which expired in 2001.

(b) June 2007 – Exclusion (removal) order is issued against Vu by Citizenship and Immigration Canada.

(c) July 2009 – After being detained following a criminal conviction for possession of marijuana, Vu is released on terms, which includes requiring him to reside at the home of his bondsperson, John Le, between the hours of 2AM and 6AM.

(d) 2010 – Vu marries Thu Trang Nguyen.

(e) May 2012 – Vu and Thu Trang Nguyen have a baby girl, Chloe. Vu becomes Chloe’s primary caregiver.

(f) May 2013 – Thu Trang Nguyen files an application for Vu to become a permanent resident of Canada through an In-Canada Spousal Sponsorship Application. During his regular reporting to CBSA, Vu provides CBSA with a copy of the application, and confirms that he spends daytime hours at his wife’s residence caring for his daughter, but returns to John Le’s residence at 21 Andes Crescent in Vaughan, Ontario, every night in accordance with the terms of his release. As well, at CBSA’s request, he completes a travel document application to facilitate his travel to Vietnam if he is removed.

(g) June 25, 2013 – CBSA officers conduct a compliance check on Vu’s release at 21 Andes Crescent at about 10AM. Vu is not present and the CBSA officers speak to a woman who is babysitting there and who, the CBSA asserted, spoke English and told them that Vu no longer lived there.

(h) June 27, 2013 – Vu attends at the CBSA office for regular reporting, at which time he is arrested and placed in maximum-security detention at the Toronto West Detention Centre. CBSA declares he is in breach of his terms of release by not residing at 21 Andes Crescent, and that the $15,000 bond posted by John Le is forfeited.

(i) July 2, 2013 – Vu attends his first statutorily mandated monthly detention review before the Immigration Division tribunal (“ID”). He is ordered detained because it is determined he would be unlikely to appear for removal.

(j) July 9, 2013 – Vu attends his second detention review before the ID. He submits affidavits that the woman the CBSA spoke to at 21 Andes Crescent on June 25, 2013, Dau Thi Le, his bondsperson’s mother, did not speak English well, that she did not live there but rather was babysitting that day, and that she said she did not know if Vu lived there. However, the ID accepted the Statutory Declaration of the CBSA officer, Erin McNamara (“McNamara”), who interviewed the woman. Officer McNamara’s affidavit said that the woman she spoke to was Than Luong, who was “English speaking,” and who said that Vu moved out the previous summer. The ID ordered Vu’s continued detention on the basis that he would not attend for removal.

(k) Fall 2013 – Vu is moved to the Central East Correctional Centre in Lindsay, Ontario, and continues to be held in maximum security.

(l) December 23, 2013 – Vu’s counsel contests the forfeit of the bond.

(m) January 2014 – McNamara’s Statutory Declaration is provided to Vu’s counsel for the first time.

(n) October 7 - 8, 2014 – After approximately 467 days in detention, Vu is escorted in handcuffs, in the custody of CBSA officers, to Vietnam, where he is released by the CBSA on October 8, 2014. He remains there today.

(o) March 13, 2015 – The forfeiture order is upheld.

(p) June 10, 2015 – CBSA discloses an internal memorandum which indicates that McNamara used an interpreter to speak to whoever it was she obtained information from at 21 Andes Crescent on June 25, 2013.

(q) March 7, 2016 – CBSA proposes to have the forfeiture matter reconsidered in seeking to settle the bond litigation.

(r) June 13, 2016 – The forfeiture litigation is settled and John Le’s counsel is advised that the funds will be returned to him.

(s) October 7, 2016 – This action is commenced.

(t) June 1, 2018 – Schreck J. strikes out some causes of action, but permits the actions for false arrest, false imprisonment and breaches of the Charter to proceed, subject to the plaintiff amending his pleading to plead discoverability.

(u) May 7, 2019 – The plaintiff delivers the Amended Amended Statement of Claim addressing discoverability.

[7] While in custody, Vu was not provided with McNamara’s Statutory Declaration until January 2014, after his counsel made a number of requests for disclosure and a request under the Access to Information Act, R.S.C. 1985, c. A-1. When first detained, the ID stated that it expected his time in custody before removal to be brief as he was “removal ready;” however, before he could be removed the Vietnam government required the issue of custody of his child to be resolved. According to Vu, the CBSA initially sought to have him sign a blank declaration, or to give up custody of Chloe, and he was unwilling to do that. Vu then sought to be able to take Chloe with him to Vietnam. He was then told that would not be possible (which may not have been correct). Despite the toll it was taking on his wife to raise the child herself, including developing mental health issues, Vu eventually signed documents to facilitate his removal as he became desperate to get out of maximum security detention.

[8] As to why he did not consider suing while he was in detention, Vu states:

I also didn’t contemplate any civil action at that time since the only remedy I required – getting out of jail and holding my daughter, was supposedly imminent. The CBSA kept advising me that I would be removed shortly and were waiting on the Vietnamese officials. At that time, I didn’t want compensation, I wanted to get out and touch my daughter. And as I mentioned, at that time, I didn’t have the ATIP disclosure [McNamara’s Statutory Declaration], nor did I know that the CBSA had truly used a false statutory declaration. All of this only came out after I was deported.

[9] Despite the poor prospects for release, the plaintiff was active in the detention review process, advocating on his own behalf, seeking legal aid and retaining a lawyer, requesting early detention reviews, securing bondspersons and disclosing evidence to show that he had not breached the terms of his previous release order.

[10] As well, during the period of his detention Vu continued to pursue his application for permanent residence under the In-Canada Spousal Sponsorship Application.

[11] Vu’s affidavit also explains why he did not commence this action until 2016, after disclosure of the internal CBSA memorandum (the “Notes to File”) on June 10, 2015 and the settlement of the bond litigation in June 2016:

Though the disclosure of the Notes to File and the settlement of the Federal Court litigation provided me the proof required to contemplate a civil action, it was only after the June 13, 2016 letter indicating that the CBSA was returning all of John’s bond monies and thus accepting that its previous determination that I had breached was wrong that I was confident that my detention had been unlawful.

Previously, I had trusted the Canadian government and had trusted the CBSA. I had put my faith in the adjudicators at my detention review hearings. I believed that they were doing their job and had not questioned them. I had thought that at worst the CBSA had made a mistake and misunderstood what I had done or what was going on. I thought maybe the Officer didn’t realize that John’s mom didn’t speak English. I had never believed that the CBSA would have withheld disclosure from the Immigration Division indicating that it knew the Statutory Declaration of Officer McNamara contained errors.

[12] The claim arises from the actions of the CBSA in arresting and supporting the plaintiff’s detention in June and July 2013, and specifically presenting false evidence at the review hearing on July 9, 2013, regarding the information allegedly obtained from the woman McNamara spoke to at 21 Andes Crescent. This resulted in the plaintiff spending over 15 months in harsh conditions in a maximum-security prison where he suffered assaults, robbery, and physical and mental hardship and distress, including lack of medical care, strip searches and frequent lockdowns, before being removed from Canada. Much of his time in prison was in Lindsay, Ontario, where he was geographically removed from his family and other supports, including his counsel.

[13] More generally, the claim is summarized at paragraph 42 of the Amended Amended Statement of Claim, as follows:

i) The CBSA targeted the Plaintiff. They attended John’s home looking for the Plaintiff when they knew or ought to have known he was not there;

ii) The CBSA arrested the Plaintiff while ignoring corroborative evidence that he did not breach his release conditions;

iii) The CBSA failed to obtain and consider all of the required evidence to complete a fair investigation;

iv) The CBSA failed to undertake an impartial investigation;

v) The CBSA provided a false statutory declaration to justify its arrest;

vi) The CBSA engaged in a reckless course of conduct which it knew or ought to have known would result in a breach of Charter rights and personal injury to the Plaintiff;

vii) The CBSA acted in an incompetent manner lacking in reasonable skill; and

viii) The CBSA’s determination that the Plaintiff breached his release conditions was ultra vires.

Positions of the Parties

[14] On this motion, the defendant’s position is that the remaining causes of action in the Amended Amended Statement of Claim were discoverable more than two years prior to the commencement of the action. Canada’s position is that these torts, based on facts outlined in paragraph 42 of the pleading, “crystallized” and were discoverable upon Vu’s arrest on June 27, 2013 or, at latest, at the second detention hearing on July 9, 2013 when Vu was aware of the evidence that was relied upon to support his detention. Canada submits that the law is clear that the limitation period for the torts of false arrest and false imprisonment commence upon arrest, and so too for the breach of Charter rights which are intertwined with the two intentional torts.

[15] The defendant also submits that the arrest and detention were reasonable, based on a myriad of factors and not just the breach of terms of release, and therefore there is no genuine issue requiring a trial.

[16] In response, the plaintiff submits that the limitation period only commences once one is released from custody, and that in the context of this case it was not clear whether or for how long he would be detained. The plaintiff submits that the time period only began to run upon either his release from custody following his arrival in Vietnam on October 8, 2014, or following the receipt, on June 10, 2015, of the internal memorandum disclosing that the evidence given to the ID to justify his detention on July 9, 2013 was incorrect, at which point he became aware that an action for damages was an “appropriate means” to seek a remedy, invoking s. 5(1)(a)(iv) of the Limitations Act. Alternatively, the plaintiff submits that because the actions of the CBSA included transporting him, under detention, outside Ontario when taking him to Vietnam, the six-year limitation period in s. 32 of the federal Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, applies.

[17] Regarding the causes of action, the plaintiff submits that the defendant has not led evidence to meet its burden that there is no issue requiring a trial. On the other hand, the plaintiff submits that he has led evidence of the harm he has suffered and identified many disputed facts and issues requiring a trial, including issues of credibility and the need for a full airing of the context of immigration detention.

Analysis

Test for Summary Judgment

[18] The test for summary judgment under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is whether there is a genuine issue for trial. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada stated, at paras. 49-50:

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.

These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[19] Further, on a summary judgment motion the parties must put their best foot forward; they cannot simply assert what the evidence will be at trial or what they will challenge. They must put their evidence before the Court on the motion: 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, 83 B.L.R. (5th) 186, at para. 49.

The Limitations Act

[20] Section 4 of the Limitations Act provides, with some exceptions that are not applicable here, that all proceedings must be commenced within two years of the date on which the claim is discovered.

[21] The date of discovery is fact-driven, to be decided on the particular circumstances of each case: Liu v. Silver 2010 ONSC 2218 101 O.R. (3d) 702, at para. 9. “Discoverability” is governed by s. 5 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).

(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.

[22] Section 5(1)(a) identifies the four elements a court must examine cumulatively to determine when a claim was discovered: Clarke v. Sun Life Assurance Company of Canada, 2020 ONCA 11, O.J. No. 71, at para. 20 (“Clarke”). These four criteria constitute the subjective knowledge date.

[23] Section 5(1)(b) sets out a modified objective test that asks when a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the four elements identified in s. 5(1)(a). Under s. 5(1)(b), the commencement of the two-year limitation period can be deferred if the plaintiff can prove that the cause of action was neither discovered nor discoverable until a later date. The limitation period runs from the earlier of the subjective and objective knowledge dates: Kamalanathan v. CAMH et al, 2019 ONSC 56, at para. 40 (“Kamalanathan”).

[24] Section 5(2) creates a rebuttable presumption that a person with a claim shall be assumed to have known of the matters referred to in s. 5(1)(a) on the day on which the act or omission took place unless the contrary is proved. Section 5(2) places an onus on the plaintiff to satisfy the Court that “it would be highly unlikely, if not impossible, with due diligence to have obtained the necessary information within two years of the wrongdoing occurring:” Daphne Dukelow, Guide to Ontario and Federal Limitation Periods (Toronto: Thomson Reuters, 2020), Tab 66 (Torts).

[25] In Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, O.J. No. 3242, at para. 42 (“Longo”), the Court of Appeal discussed the content of the duty of due diligence:

A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a). While some action must be taken, the nature and extent of the required action will depend on all of the circumstances of the case.

[26] Importantly, “discoverability” means knowledge of the facts, not the law: Lawless v. Anderson, 2011 ONCA 102, O.J. No. 216, at paras. 23, 28 (“Lawless”). The claim arises when the plaintiff acquires enough knowledge of the facts to ground an allegation of wrongdoing against the defendant. At least one court has opined that the level of knowledge required to start the limitation period running is “more than suspicion and less than perfect knowledge:” Kydd v. Abolarin, 2008 ABQB 310, [2011] A.J. No. 1245 (Alta Q.B.). Error, ignorance or uncertainty of the law does not postpone the starting of the limitation period: Lawless; Longo; Kowal v. Shyiak, 2012 ONCA 512, O.J. No. 3420; Buys (appeal by Dale) v. Frank, 2017 ONCA 32, O.J. No. 216 (“Dale”). The discovery of a claim is also not dependent upon the plaintiff knowing that his claim is likely to succeed: Sosnowski v. MacEwen Petroleum, 2019 ONCA 1005, 441 D.L.R. (4th) 393, at paras. 19, 27-29 (“Sosnowski”).

[27] In Nasr Hospitality Services v Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, at para. 35 (“Nasr”), the Court of Appeal set out the analysis for when a limitation period defence is raised on a summary judgment motion:

[A] typical summary judgment motion involving the basic limitation period requires the judge to determine whether the record enables making a series of findings of fact, with the certainty required by Hryniak, on the following matters: (i) the date the plaintiff is presumed to know the matters listed in ss. 5(1)(a)(i)-(iv) - namely, the day on which the act or omission on which the claim is based occurred; (ii) the date of actual knowledge under s. 5(1)(a), in the event the evidence proves the contrary of the presumptive date; (iii) the s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances analysis; and (iv) finally, which of the actual knowledge and objective knowledge dates is earlier, for that will be day on which the plaintiff discovered the claim for purposes of applying the basic limitation period of two years.

Date of Arrest or Date of Release?

[30] Not surprisingly, the defendant takes the position that the limitation period commenced when Vu was detained, on June 27, 2013. At that time, they say, he must have known that his arrest and detention were wrongful. Alternatively, the defendant argues that Vu would certainly have known it was wrongful by July 9, 2013, following the second detention hearing when the ID accepted the evidence contained in McNamara’s Statutory Declaration.

[31] The plaintiff, on the other hand, asserts that the limitation period runs from the date of his release from detention in Vietnam, on October 8, 2014. The plaintiff argues that he could not have initiated his claim for false imprisonment when first arrested and the act of wrongful detention was still ongoing. Plaintiff’s counsel analogized this to suing for battery while the knife is still in your arm. Further, the plaintiff claims that the CBSA represented to him many times that his release from immigration detention was “imminent,” yet he remained detained for a total of 15 months, without knowing or being able to know for how long he would remain in custody.

[32] The defendant relies upon Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973, O.J. No. 6702 (“Kolosov”), in which the Court of Appeal seems to accept that the limitation period commences on the first date of detention, stating at para. 11:

The law in relation to the commencement of the limitation period for the intentional torts of false arrest and imprisonment … is well-settled. As Chiapetta J. noted in Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581 at para. 16,

A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising therefrom crystallizes on the date of arrest (see Nicely v. Waterloo Regional Police Force, 1991 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), at para. 14).

[33] The plaintiff, on the other hand, cites a conflicting Court of Appeal decision, Mackenzie v. Martin, 1952 85 (ON CA), [1952] O.R. 849 (Ont. C.A.), at paras. 6-8, aff’d 1954 10 (SCC), [1954] S.C.R. 361 (S.C.C.), which refers to case law dating back to the 18th century, and states that the limitation period for a false imprisonment claim commences upon the date of release. To my knowledge, while the case is dated, Mackenzie v. Martin has never been overturned.

[34] The conflict is not easily resolved by the jurisprudence. In Fournier-McGarry (Litigation Guardian of) v. Ontario, at para. 16, Chiapetta J. relied on Nicely v. Waterloo Regional Police Force (“Nicely”) in making her statement that the Court of Appeal subsequently adopted in Kolosov. However, while the Divisional Court held in Nicely, at para. 15, that the test “is as of the date of arrest and imprisonment,” it was discussing the question of liability and the grounds for arrest when the arrest took place, not the limitation period. This point was not addressed by Chiapetta J. in Fournier-McGarry, or by the Court of Appeal in Kolosov, both of which simply accept the statement as dealing with limitation periods. Elsewhere, the Divisional Court in Nicely suggested, at paras. 8-9, that the time period begins to run when the tort is “complete,” or upon release. In Nicely, however, the arrest, detention and release all occurred on the same day, as was also the case in Fournier-McGarry.

[35] Ferri v. Root, 2007 ONCA 79, O.J. No. 397, leave to appeal refused, [2007] S.C.C.A. No. 175 (“Ferri”), is another, more recent, case in which the plaintiff was arrested and released on the same day. There, the Court of Appeal, at para. 102, reiterated the finding in Nicely that “the test for these torts is at the date of arrest and imprisonment,” but addressed the limitation period in the same context that it arose in Nicely, which was under s. 7 of the Public Authorities Protection Act , R.S.O. 1990, c. P.38. (“PAPA”). That Act required that an action be “commenced within six months next after the cause of action arose or in case of continuance of injury or damages within six months after the ceasing thereof” (emphasis added). Accordingly, the Court in Ferri, at para. 103, concluded that the injury of false imprisonment ceased when the plaintiff was released.

[36] There is also the concern that a false arrest and an unlawful imprisonment may not occur at the same time. One may be lawfully arrested but unlawfully detained, or a detention that is lawful at the outset may become unlawful at a subsequent point in time. For example, a lawful immigration detention can become unlawful due to its conditions, its length, procedural fairness, or if it is “no longer reasonably necessary to further the machinery of immigration control:” Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, at paras. 81, 86; Re Charkaoui, 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 123; Scotland v. Canada (Attorney General), 2017 ONSC 4850, 139 O.R. (3d) 191.

[37] The plaintiff submits that the approach in Mackenzie v. Martin is also consistent with the law in the United States, where time runs from the date of release, not the date of detention: Milliken v. City of South Pasadena, 158 Cal. Rptr. 409, 412 (Cal. Ct. App. 1979); Donaldson v. O'Connor, 493 F.2d 507, 529 (5th Cir. 1974).

[38] While I have concerns with the broad application of Kolosov urged on me by the defendant, I do not need to resolve the conflict in the cases in this matter. This case does not arise under the PAPA, which would cause me to consider a continuing injury. Rather, since section 5(1)(a) of the Limitations Act establishes a four-part test, I regard Kolosov as simply setting up a presumption (which was not rebutted in that case) that the cause of action arose on the date of arrest and detention or, at latest, the date of the second detention hearing, but it does not address all four parts of the test. This means I must still consider when the plaintiff had sufficient facts on which to base an allegation of wrongful arrest and detention, and whether, “[h]aving regard to the nature of the loss or damage, a proceeding would have been an appropriate means to seek to remedy it.”

Discoverability and the Need for Sufficient Facts

[39] The concept of discoverability means that a claim crystallizes when the plaintiff has enough facts at hand to understand that he may have a legal claim against a defendant. Rouleau J.A. put it this way in in Lawless, at para. 23:

Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run: see Soper v. Southcott (1998) , 1998 5359 (ON CA), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 2000 5744 (ON CA), 132 O.A.C. 304 (C.A.).

[40] As the defendant points out, time is not measured from when the plaintiff realizes he has a legal claim for false imprisonment in particular, or a viable legal claim that was likely to succeed. Similarly, the late discovery of facts that change a borderline claim into a viable one does not postpone the discovery date. Rather, it is a fact-based inquiry as to when the plaintiff acquired enough facts on which to base an allegation of wrongdoing by the defendant.

[41] Vu was aware by July 9, 2013 that his arrest and detention were based on incorrect grounds, as he had been in compliance with his terms of release. He knew something was wrong and that the CBSA was presenting incorrect information to the ID. However, Vu did not have facts on which to base an allegation of wrongdoing. He did not have facts to suggest that the CBSA officer was lying, or had misled the tribunal, or was not disclosing important facts, which would likely have led to a different result – facts Vu only learned of in June 2015.

[42] Although Vu did not need to know that the CBSA’s acts were “culpable” (see Dale, at para. 7), this is not a typical case of causation such as from an accident or negligence. Here, the plaintiff had been arrested and a tribunal had ordered him detained on the basis of evidence. There was a judicial finding against him that was difficult to challenge in the absence of new evidence pointing to some wrongdoing. While I am mindful that the test sets a low bar, it should not be so low as to encourage parties to rush into litigation when they may have nothing more than suspicion of wrongdoing to go on. Suspicion is not knowledge, as the cases and texts remind us. For example, in Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, at para. 41, the Court of Appeal recently quoted with approval from Mew, Rolph and Zacks, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016), at s. 3.50:

[I]t has been recognized that discoverability means knowledge of the facts that may give rise to the claim. The knowledge required to start the limitation running is more than suspicion and less than perfect knowledge. Or, to put it another way, the plaintiff need not be certain that the defendant's act or omission caused or contributed to the loss in order for the limitation period to begin to run. The limitation begins to run from when the plaintiff had, or ought to have had, sufficient facts to have prima facie grounds to infer the defendant's acts or omissions caused or contributed to the loss. It is reasonable discoverability - rather than the mere possibility of discovery - that triggers a limitation period.

[43] In the particular context of this case, therefore, I find as a fact that Vu did not have sufficient facts on which to allege wrongdoing by the CBSA for which he could seek damages until June 10, 2015, when he received the memorandum disclosing that McNamara had used an interpreter when conducting her investigation in June 2013. Prior to June 2015, as Vu stated, he “thought that at worst the CBSA had made a mistake and misunderstood what I had done or what was going on. I thought maybe the Officer didn’t realize that John’s mom didn’t speak English. I had never believed that the CBSA would have withheld disclosure from the Immigration Division indicating that it knew the Statutory Declaration of Officer McNamara contained errors.”

Discoverability and “Appropriate Means”

[44] If my analysis above is incorrect and the plaintiff had sufficient facts on which to allege wrongdoing by July 9, 2013, I must still consider the “appropriate means” test under s. 5(1)(a)(iv) of the Limitations Act, and whether that extends the limitation date. Section 5(1)(a)(iv) provides that as part of the discoverability analysis I must consider when the claimant first knew that a civil suit would be the “appropriate means” to seek a remedy for the injury, loss or damage. The “appropriateness” of an action is also a fact-based and case-specific inquiry: Nasr, at para. 46. However, as Sharpe J.A. stated in Federation Insurance Co. of Canada v. Markel Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34 (“Markel Insurance”), an action will only be appropriate where it is “legally appropriate:”

This brings me to the question of when it would be "appropriate" to bring a proceeding within the meaning of s. 5 (1)(a)(iv) of the Limitations Act. Here as well, I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims. In my view, when s. 5(1)(a)(iv) states that a claim is "discovered" only when "having a regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it," the word "appropriate" must mean legally appropriate. To give "appropriate" an evaluative gloss allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the Court to assess the tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. [Emphasis in original.]

[45] Markel Insurance makes clear that a claim will not be legally appropriate where it is brought prematurely or for tactical reasons. As the Court of Appeal stated more recently in 407 ETR Concession Co. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, at para. 47, “a plaintiff could not claim it was appropriate to delay the start of the limitation period for tactical reasons, or in circumstances that would later require the Court to decide when settlement discussions had become fruitless.” On the other hand, in Markel Insurance at para. 34, Sharpe J.A. also warned that parties “should be discouraged from rushing to litigation,” which means the bar should not be set too low.

[46] In this case, however, the plaintiff did not delay the bringing of his claim for reasons of strategy. Rather, in the absence of the memorandum disclosing that McNamara’s Statutory Declaration was incorrect, he simply had no claim to bring. At the ID hearing on July 9, 2013, Vu tried to persuade the tribunal that he was in compliance with his terms of release and that the CBSA was mistaken, but the tribunal preferred McNamara’s more detailed evidence and made a finding of fact against the plaintiff. The plaintiff was without any evidence to rebut that finding until the disclosure on June 10, 2015. At no point during the hearing on July 9, 2013, or at any subsequent hearing, did McNamara reveal that she had relied on an interpreter; rather, the evidence in her Statutory Declaration (which itself was only disclosed in January 2014) was that the she and the witness had spoken to each other in English.

[47] Further, prior to receiving the memorandum in June 2015, Vu was pursuing other, more pressing and appropriate remedies, including detention reviews, the spousal sponsorship application, and attempts to address living arrangements for his infant daughter. I find, as the Court of Appeal did in Presidential MSH Corporation v. Marr, Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321 (“Presidential MSH Corporation”), at para. 32, that “it would have been inappropriate to require the plaintiff to prematurely resort to court proceedings while the statutory alternative process was ongoing, which might make the proceedings unnecessary.” Moreover, a lawsuit would not have achieved Vu’s objective of being released.

[48] Had Vu known of the evidence that McNamara’s Statutory Declaration was incorrect when he was in custody, he undoubtedly would have raised that before the ID. Although he did not seek to review the ID’s detention order in the Federal Court, as his counsel explained Vu had good reasons not to do so: he accepted the CBSA’s representations that his removal was “imminent,” and perceived that making an application would have been a waste of time and money and might have delayed his deportation due to the CBSA’s need to defend the claim. Further, as the Supreme Court of Canada observed recently in Canada (Public Safety and Emergency Preparedness) v. China, 2019 SCC 29, 433 D.L.R. (4th) 381, at paras. 61-67, judicial review of an Immigration Division decision is challenging. The onus is squarely on the applicant to establish the decision is unreasonable, leave is required, and remedies are limited. Instead of releasing an applicant, Karakatsanis J. noted, at para. 65 that even a successful judicial review “will generally result in an order for redetermination, requiring further hearings to obtain release and thereby extending detention” (emphasis added).

[49] The cases on the “appropriate means” provision have identified two circumstances, which frequently delay the date of discovery. The first is when the plaintiff relied on the “superior knowledge” and expertise of the defendant, and the second is where a legal action is not appropriate because an alternative dispute resolution process “offers an adequate legal remedy and that process has not run its course:” Presidential MSH Corporation, at paras. 26 – 29; Nasr, at para. 50.

[50] These two circumstances provide some guidance as to how the provision ought to be applied. I have already addressed the other steps Vu was taking to obtain his release – the remedy he sought until his removal, which could not have been obtained by starting a lawsuit, which is similar to the second branch identified in Presidential MSH Corporation. The first circumstance is also relevant, as Vu trusted the CBSA and the process, and he had no reason to suspect that the evidence was misleading in not disclosing that McNamara had used an interpreter. In this regard, Vu was relying on the “superior knowledge,” or at least on the good faith, of the CBSA, which was misplaced. Had the CBSA, with its superior knowledge, provided full disclosure and not misled the ID, Vu would likely have been released, and would then have been in a position to realize he had a claim for damages (albeit for a much shorter period of detention), and could have brought that claim more promptly against the CBSA. In the absence of that disclosure, and given the representations that his removal was imminent (which at a certain point he welcomed as it would get him out of a maximum security jail), Vu cannot be faulted for relying on the superior knowledge of the CBSA and for expecting it to act in good faith.

[51] The facts of this case may also be contrasted with those in Kolosov, which was discussed by the Court of Appeal in McHale v. Lewis, 2018 ONCA 1048, 144 O.R. (3d) 279, another wrongful arrest case. In McHale, at para. 42, the Court of Appeal noted that in Kolosov the plaintiffs sought to persuade the Court that the limitation period should not run until they had received full disclosure of the case against them. This was rejected because the disclosure would have had little, if any, impact on the existence of reasonable grounds for arrest as the plaintiffs admitted that they were in possession of fraudulently obtained goods, which was the basis of the charge.

[52] In this case, however, rather than the contents of the disclosure having a negligible impact on the reasonable and probable grounds for Vu’s arrest and detention, the revelation that McNamara had used an interpreter while interviewing the witness was not merely a finding of helpful evidence – it was a finding that turned the evidence against Vu on its head, as it threw doubt on the veracity of the testimony that was used to justify the arrest and detention. This was evidence upon which the Tribunal clearly relied during the July 9, 2013 hearing and throughout Vu’s fifteen months in detention. As a result, I do not accept the defendant’s submission that the disclosure of the memorandum in June 2015 was simply something that strengthened an already “discovered” claim: see, e.g., Sosnowski, at paras. 19, 27-29. The plaintiff’s affidavit might have invited this argument where he stated that only after the June 13, 2016 disclosure he became “confident that my detention had been unlawful.” However, that date was in fact when the government actually settled the bond litigation, one year after the memorandum was released to him in June 2015. In any event, in my view this statement was simply recognition that he now had a basis for a civil action for damages, something that, it is to be remembered, is not to be embarked upon lightly. As the Supreme Court stated in Novak v. Bond, 1999 685 (SCC), [1999] 1 S.C.R. 808 (S.C.C.), at para. 85:

Litigation is never a process to be embarked upon casually and sometimes a plaintiff’s individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely.

[53] The purpose of s. 5(1)(a)(iv) was recently addressed by Petersen J. in McNeil v. van Gulik, 2019 ONSC 5816, at para. 182:

The fourth criterion in s. 5(1)(a)(iv) of the Limitations Act, 2002 did not exist in Ontario’s prior limitations statute. Its underlying rationale is to ensure the efficient use of court resources. It was added as a disincentive to unnecessary litigation. Rushing to commence litigation is not an “appropriate” remedial recourse for a plaintiff in circumstances where the defendant is making good faith efforts to correct the damage caused (especially if the plaintiff is relying on the defendant’s specialized knowledge and expertise). However, allowing a plaintiff to delay the commencement of proceedings beyond two years from the date when her claim fully ripened in circumstances where the plaintiff is receiving remedial help from someone other than the defendant would, in my view, inject an unacceptable element of uncertainty into the law of limitations. It would thwart the very purpose for which limitation periods exist.

[54] McNeil dealt with a medical malpractice allegation that featured an issue of a defendant attempting to remedy the situation. That is not this case, but nevertheless it highlights the point that the “appropriate means” test is intended to delay the running of limitation periods when parties are pursuing other procedures to address and remedy a situation, and to discourage litigation which, at the very least, may be premature. In this case, Vu was not considering seeking damages against the CBSA while in custody but rather was only seeking his release, and an action for damages arising from his arrest and detention would in any event have failed in the absence of the disclosure of June 10, 2015, wasting court resources and, perhaps, causing his detention to be extended.

[55] Applying these principles, in my view, a lawsuit for damages over Vu’s arrest and detention was not an “appropriate means” to redress the wrong done to him when he was arrested and held in custody until he obtained the disclosure in June 2015 that the CBSA had misled the ID. This was many months after he had been removed from Canada. Prior to receiving that information, Vu appropriately pursued other avenues to address his detention and removal, relied on the good faith of the CBSA and the ID process, and did not have grounds for suing for damages. A lawsuit would have been premature, and therefore was not an appropriate means under s. 5(1)(a)(iv) until June 2015.

Due Diligence Requirement

[56] The defendant nevertheless submits that the plaintiff failed to exercise due diligence in discovering his claim within two years of his arrest. It argues that Vu could have discovered additional details had he proceeded with an application for leave and judicial review of his detention in the Federal Court.

[57] I find this argument speculative and unpersuasive. It is not clear when or how a judicial review would have proceeded or been determined, or whether it would have led to the disclosure of the fact that McNamara had used an interpreter. In this context it is worth noting that Vu only received the Statutory Declaration in January 2014, some six months after he had been arrested.

[58] The Court of Appeal has stated that the content of the duty of due diligence will depend on the circumstances of each case: Longo, at para. 42. In this case, the context of immigration detention is important. The CBSA represented to Vu that his detention would be brief as his removal was imminent, which would have made a lengthy judicial review application pointless. As a detained person under the control of the immigration detention authorities, the avenues available to the plaintiff to investigate and challenge his detention were limited. Further, while being incarcerated does not necessarily render a plaintiff incapable of commencing a proceeding, the fact is that Vu was housed in maximum-security facilities, subject to frequent lockdowns. For much of his detention he was at a maximum-security facility in Lindsay, Ontario, where his access to counsel and other supports was restricted even further than when he was at Toronto West. Although the defendant notes correctly that incarceration does not prevent a plaintiff from commencing an action, it is certainly relevant to a consideration of due diligence.

[59] Accordingly, I find that Vu did not fail to exercise due diligence in discovering his claim.

Section 5(1)(b): the Objective Test

[60] The Court of Appeal decision in Clarke, at para. 20, requires this court to identify both the subjective knowledge date under s. 5(1)(a) of the Limitations Act and the modified objective knowledge date under s. 5(1)(b) in order to fully determine the issue of discoverability. Under s. 5(1)(b), the Court must determine “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 four elements identified in s. 5(1)(a).

[61] For the reasons I have outlined above, Vu acted reasonably in the circumstances in which he found himself, and could not reasonably have been expected to have discovered his claim earlier than June 2015. Put another way, following the wording of s. 5(1)(b), a reasonable person with the abilities and in the circumstances of Vu would not have discovered his claim for false arrest, imprisonment and Charter breaches any earlier than Vu himself discovered it. As a result, the date of discovery does not change with the application of the modified objective test. The date of discovery under s. 5(1)(b) remains June 10, 2015.

Conclusion on the Limitation Issue

[62] Accordingly, in my view the plaintiff has successfully rebutted the presumption in s. 5(2) that his claims were discoverable in June or July 2013. In the circumstances of this case, the claim was discoverable and the limitation period began to run on June 10, 2015, upon the disclosure of the error in the Statutory Declaration of Officer McNamara.

Does the Crown Liability and Proceedings Act Apply?

[63] The plaintiff makes an alternative argument that the s. 32 of the federal Crown Liability and Proceedings Act (“CLPA”) applies to this case to extend the limitation period to 6 years. Section 32 provides as follows:

32 Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.

[64] In particular, the plaintiff submits that although Vu’s detention began and took place almost entirely in Ontario, it continued on an international flight under escort by CBSA officers and was only completed in Vietnam. Therefore his false imprisonment and breach of rights also occurred “otherwise than in a province” and engages CLPA s. 32.

[65] While it is not necessary for me to address this issue in light of my findings on the Limitations Act, I would in any event reject this argument. In Hislop v. Canada (Attorney General), 2008 8248 (ON SC), [2008] O.J. No. 793 (Ont. Sup. Ct.) (“Hislop”), Ellen Macdonald J. stated, at para. 14, that “[t]he thrust of these sections is that when a cause of action involving the Crown accrues in one province, the provincial rules of civil procedure will apply to the determination of interest and limitation periods. If the cause of action accrues other than in one province, the provisions of the CLPA will apply.” Justice Macdonald noted that the Supreme Court of Canada, when considering s. 32 of the CLPA in Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94 (“Markevich”), observed, at para. 27, that a cause of action is “only a set of facts that provides the basis for an action in court.”

[66] The CLPA sets up a presumption that provincial limitation periods apply. The exceptions are where it is not clear which province, if any, has jurisdiction over the cause of action, including when a “set of facts” is interprovincial such that the action could be brought in more than one province. Justice Perell made this finding in Brazeau v. Canada, 2019 ONSC 1888, 431 C.R.R. (2d) 136, at para. 384 (partially overturned but not on this point, 2020 ONCA 184), and cited Hislop and Markevich: “Courts have interpreted “otherwise than in a province” to include actions arising in more than one province or a combination of provinces.”

[67] In this case, the only province with a connection to the causes of action pleaded is Ontario. All of the elements of the tort were committed here, and Vu simply continued to be detained until his release in Vietnam. There is no evidence that Vu was transported through, or over, any other provincial border that would suggest his action can or should have been brought anywhere else. Accordingly, the CLPA has no application to extend the limitation period to six years.

Should the Action be dismissed on the Merits?

[68] I now turn to the motion for summary judgment that addresses the merits of the claim. In my view the defendant has failed to put forward evidence that would cause me to conclude that there are no genuine issues requiring a trial. The defendant’s evidence on this motion was presented through an affidavit from a law clerk attaching documents, which fails to provide a record that adequately addresses the plaintiff’s claims. Perhaps it is for this reason that the defendant’s counsel spent little time on this argument in her factum or in oral submissions.

[69] However, taking the defendant’s submissions at their highest, the Attorney General argues that the evidence establishes that the CBSA had a basis for arresting Vu because McNamara had reasonable grounds to believe that he would not appear for his removal. Further, as the ID upheld his detention and its decisions were never challenged in Federal Court, the decisions are final. Finally, it is submitted that Vu would have been deported in any event, and so the arrest and detention were not causative of his removal.

[70] The defendant’s position takes an unreasonably narrow approach to the plaintiff’s claim. In this case, the plaintiff provided an extensive affidavit outlining the nature of his claim and the harms suffered by him. Those harms are not limited to his arrest, or even what resulted from his removal, but include the hardships he suffered, the impact it had on his ability to pursue other avenues to remain in Canada and potential breaches of his Charter rights, both substantive and procedural, while in custody. The defendant chose not to cross-examine the plaintiff, leaving the Court with unchallenged evidence from the plaintiff that provides substantive facts grounding the claim and presents genuine issues for trial.

[71] Furthermore, there are disputed material facts and conflicting evidence on key issues which cannot be fairly and fully adjudicated based on the incomplete record before the Court. For example, the existence of a reasonable ground for arrest cited by the defendant, that Vu would not have attended for removal, is hotly contested. It is arguably undermined even by the defendant, which acknowledged that Vu was diligent in maintaining his reporting conditions and that he did everything that he was being asked to do in order to facilitate his own removal to Vietnam, and was not attempting to abscond. Indeed, two days prior to the CBSA compliance check, Vu provided the addresses of the two locations where he spent his time to the CBSA, and he was arrested when he next came in to report as required.

[72] As to the Charter breaches and the standard of care owed by the CBSA to Vu, in my view these are issues that cannot be determined on the limited record put forward by the defendant here and require a trial. The plaintiff has raised issues of procedural fairness and standards to be met by immigration authorities that require a thorough evidentiary record, which is lacking here. How Vu was treated in detention, including both his placement in a maximum-security prison as opposed to an immigration detention facility, and alleged efforts by the CBSA to have him give up custody of his child to speed his removal, raise triable issues as well.

Conclusion

[73] The motion for summary judgment is dismissed. Should the parties be unable to agree on costs, the plaintiff may make written submissions to me not exceeding three pages (not including supporting materials) within 21 days of the release of these Reasons, and the defendant may respond within 14 days in submissions of the same length.

Schabas J.

Date: 2020-04-21

Vu v. Attorney General of Canada, 2020 ONSC 2447

Case Summary

Introduction

Background Facts

Positions of the Parties

Analysis

Test for Summary Judgment

The Limitations Act

Date of Arrest or Date of Release?

Discoverability and the Need for Sufficient Facts

Discoverability and “Appropriate Means”

Due Diligence Requirement

Section 5(1)(b): the Objective Test

Conclusion on the Limitation Issue

Does the Crown Liability and Proceedings Act Apply?

Should the Action be dismissed on the Merits?

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 6