Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROBERT MacKINNON, Plaintiff
AND:
HALTON REGIONAL POLICE SERVICES BOARD, DETECTIVE JOE BARR, CONSTABLE ERIN COOPER, DETECTIVE CONSTABLE JACK OLEWNICZAK, DETECTIVE CONSTABLE JULIE POWERS, CONSTABLE KATHY WALKER, DETECTIVE CONSTABLE NADA JOVIC, DETECTIVE CONSTABLE MARK URIE, CONSTABLE TORRANCE WENTZELL, DETECTIVE SERGEANT RON HANSEN, THE TORONTO DOMINION BANK, and BRENDA EASY, Defendants
BEFORE: Gibson J.
COUNSEL: Paul Marshall, Counsel for the Plaintiff
Douglas O. Smith and Samantha Bonanno, Counsel for the Defendants, Halton Regional Police Services Board, Detective Joe Barr, Constable Erin Cooper, Detective Constable Jack Olewniczak, Detective Constable Julie Powers, Constable Kathy Walker, Detective Constable Nada Jovic, Detective Constable Mark Urie, Constable Torrance Wentzell, and Detective Sergeant Ron Hansen
HEARD: July 23, 2020
ENDORSEMENT
Overview
1This action arises out of charges instituted against the plaintiff, Robert MacKinnon (“MacKinnon”) on September 6, 2014, by police officers of the Halton Regional Police Service (“HRPS”) in respect of an alleged fraud. MacKinnon has alleged causes of action in malicious prosecution, negligent investigation and breach of his Charter rights. MacKinnon also named the Toronto Dominion Bank (“the Bank”) and a Bank employee named Brenda Easy as defendants in this proceeding, but they have been released.
2In this motion, the HRPS defendants seeks summary judgment to dismiss the action against them. The HRPS defendants submits that the action is statute-barred as the limitation period for the commencement of this action expired March 27, 2017 at the latest, but the action was not commenced until March 23, 2018.
The facts
3MacKinnon was charged on September 6, 2014, by officers of the HRPS with respect to three allegedly fraudulent wire transfers. The charges were stayed by the Crown on March 27, 2015, by way of a Crown stay issued pursuant to s.579 of the Criminal Code.
Issue
4The only issue on this motion is whether summary judgment ought to be granted dismissing the action.
The test on a motion for summary judgment
5After delivery of a Statement of Defence, a defendant may move for summary judgment to have all or part of a claim dismissed. The court shall grant summary judgment if satisfied that there is no genuine issue for trial.
6In determining whether there is a genuine issue for trial, the court shall consider the evidence submitted by the parties and the judge may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial: Rule 20.04(2.1) of the Rules of Civil Procedure.
7In Hyrniak v. Mauldin, 2014 SCC 7, at paras. 49 and 66, the Supreme Court of Canada set out a road map for a motion for summary judgment. The Court concluded that there will be no genuine issue requiring a trial where the motion judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case where 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. There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
8On a motion for summary judgment, the moving party bears the initial onus of demonstrating that there is no genuine issue requiring a trial. The responding party must then meet the burden of demonstrating that their claim has a real chance of success. The court is entitled to assume that each party has put its best case forward and presented the evidence they rely upon to make out their case: Sanzone v. Schechter, 2016 ONCA 566 at paras. 30 and 32.
Position of the Defendants
9The HRPS Defendants submit that the plaintiff’s action presents no genuine issue requiring a trial because it was commenced outside the two-year limitation period specified in the Limitations Act. The charges were laid on September 6, 2014, they were stayed by the Crown on March 27, 2015, and MacKinnon commenced the action on March 23, 2018 by way of Notice of Action. The Statement of Claim was issued on April 23, 2018. HRPS initially served and filed a Statement of Defence on August 19, 2018. HRPS subsequently served and filed an Amended Statement of Defence on October 24, 2018, and pleaded that this action is statute barred pursuant to the Limitations Act.
10The issue here is whether a stay of charges by the Crown, instead of by the Court, constitutes a resolution of the charges in favour of an accused for the purposes of the running of the limitation period. HRPS submits that it does.
Position of the Plaintiff
11The plaintiff argues that the limitations clock did not start to run until one year after the Crown stay. Because the charges against him were stayed on March 27, 2015, he submits, and not dismissed or withdrawn, the charges were not resolved in his favour until the time for possible reinstitution of the charges had expired one year later, that is, March 27, 2016. He submits that it was appropriate to wait for the recommencement period of one year under s.579(2) of the Criminal Code to expire before commencing his civil action against the defendants. A limitation period runs from when the claimant knows a proceeding would be an appropriate means to seek a remedy, he submits, and consideration of when a proceeding was an appropriate means to remedy a claim is an essential element of the discoverability analysis.
12The plaintiff submits that a reasonable person in his situation would not have contemplated it to be appropriate to commence litigation while the police were continuing to investigate the circumstances under which the plaintiff was charged.
The law
13The Limitations Act, 2002, provides that no action shall be commenced more than two years after the claim was discovered:
Unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
(1). A claim is discovered on the earlier of ,
(a) The day on which the person with the claim first knew,
(i) That the injury, loss or damage has 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 was made, and
(iv) That, having regard to the nature of the injury, loss or damage, a proceeding would be 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.
Analysis
14The presumptive date on which a limitation period begins to run in respect of claims in negligence, negligent investigation and malicious prosecution is the date on which charges were terminated in favour of a plaintiff. A claim for breach of Charter rights crystallizes on the date of the arrest and not on the date of the conclusion of the prosecution arising out of the arrest: Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, at paras. 26 and 24; Sankreacha v. Cameron J. and Beach Sales Ltd., 2018 ONSC 7216 at para. 287; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at paras. 95 to 98; Ksolosov v. Lowe’s Companies Inc., 2018 ONSC 7541 at paras 244 and 245.
15A stay of proceedings entered by the Crown constitutes a favourable termination of proceedings for the purpose of prosecutorial torts such as malicious prosecution: Ferri v. Root, 2007 ONCA 79 at para. 51.
16Given that a stay of proceedings constitutes a favourable resolution of the charges against a plaintiff, the date that criminal charges were stayed by the Court against the plaintiff is the appropriate start date for the limitation clock: Jardine v. Saskatoon Police Service, 2017 SKQB 217 at para. 41; Sam v. Kopynsky, 2011 MBQB 56 at para. 36.
17The effect of a Crown stay provided for in s. 579 of the Criminal Code is to put an end to a prosecution. Proceedings stayed may be recommenced without laying a new information or preferring a new indictment within one year after the entry of the stay of proceedings. However, where the Crown has stayed charges, it does not have carte blanche to reinstate the charges. The reinstatement of charges by the Crown is still subject to attack on the bases of abuse of process, and the right to trial within a reasonable time guaranteed at s.11(b) of the Charter: R. v. Cunsolo, [2008] O.J. No. 3754 (Ont. S.C.J.).
18It is clear that a withdrawal of charges starts the limitation clock in respect of prosecutorial torts arising out of those charges: MacNeil v. Master Corporal Brown, 2018 ONSC 5760 at para. 67. That is so even though the Crown may elect to recharge or institute new charges against the accused arising out of the same incident, subject to an accused’s rights under s.11(b) of the Charter.
19Aside from the timing of when the power may be exercised, the only real difference between the power of the Crown to withdraw a charge and its power to stay a charge is that the former is derived from the common law and the latter is derived from statute: Lochner v. Attorney General of Ontario, 2017 ONSC 5293 at para. 51.
20The plaintiff argues that the limitations clock did not start to run until one year after the Crown stay. With respect, I do not agree. Courts considering this issue in other provinces have held that the limitations clock applicable to a civil claim starts on the date that a stay was issued by the Crown: Popowich v. Saskatchewan, 2001 SKQB 148 at paras. 9-11; Kelly v. Canada (Attorney General), 2009 PEISC 41 at paras. 24-25, aff’d 2010 PEICA 17, leave to appeal to the SCC refused 2011 CarswellPEI 11; Arsenovski v. Bodin, 2012 BCSC 35 at para. 33.
21I consider that the law should be the same in Ontario.
22The plaintiff submits that a reasonable person in his situation would not have contemplated it to be appropriate to commence litigation while the police were continuing to investigate the circumstances under which the plaintiff was charged. I do not agree. In any event, this is what might loosely be described as a prudential argument, or perhaps more accurately an argument based on fear or a wariness about not aggravating the police, rather than one that goes to the relevant issue in this instance of when the alleged tort was discoverable. It does not properly relate to the limitations issue which is at issue here.
Conclusion
23The plaintiff argues that because the charges against him were stayed on March 27, 2015, and not dismissed or withdrawn, the charges were not definitively resolved in his favour until the time for possible reinstitution of the charges pursuant to s.579(2) of the Criminal Code had expired. He argues in his factum that “the plaintiff’s charges remained in a state of unresolved limbo prior to March 26, 2016.” I do not accept this argument. A Crown stay of proceedings constitutes a favourable termination of proceedings, and the limitations clock begins to run on the day that the stay is entered. The cause of action had fully accrued. This is the significant date for the discoverability analysis under s. 5(1)(a)(iv) of the Limitations Act, and is the date that a plaintiff should know that a proceeding would be an appropriate means to seek a remedy. There is no valid juridical reason for a prospective plaintiff to wait beyond this date.
24I find that the action is statute-barred as the limitation period for the commencement of this action expired on March 27, 2017, and the action was not commenced until March 23, 2018.
25There remains no genuine issue for trial in respect of this issue. This is an appropriate case for summary judgment.
26Summary judgment will go in favour of the HRPS defendants.
Order
Summary judgment shall go in favour of the HRPS defendants; and
The plaintiff’s action is dismissed.
Costs
27The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant. The HRPS defendants may have 14 days from the release of this decision to provide their submissions, with a copy to the plaintiff; the plaintiff a further 14 days to respond; and the HRPS defendants a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received response or reply submissions within the specified timeframes after the HRPS defendant’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
Gibson J.
Date: November 12, 2020