COURT FILE NO.: CV-18-602767
DATE: 20210125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW KULYK
Plaintiff
– and –
JOSEPHINE GUASTELLA
Defendant
Lorne Honickman, for the plaintiff
Neil G. Wilson, for the defendant
HEARD: January 18, 2021
F.L. Myers J.
reasons for judgment
The Issue
[1] Question: Does the existence of criminal proceedings resulting from defamatory statements to the police defer the commencement of the limitation period for a civil slander claim against the complainant under s. 5 (1) of the Limitations Act, 2002, SO 2002, c 24, Sch B?
[2] Answer: No.
[3] The existence of ongoing criminal proceedings may, in some cases, prevent the conclusion that civil proceedings are an “appropriate means to seek to remedy” loss suffered by a plaintiff and thereby defer the commencement of the limitation period under s. 5 (1)(a)(iv) of the Limitations Act, 2002. See: Winmill v. Woodstock (Police Services Board), 2017 ONCA 962. However, the Court of Appeal in Sosnowski v. MacEwan Petroleum, 2019 ONCA 1005 limited the reach of Winmill, or, at least, held its conclusion to be inapplicable in a case that, in my view, is indistinguishable from this one.
[4] Therefore, the defendant’s motion for summary judgment must be granted and this action dismissed.
The Facts
[5] There is no real dispute on the facts on which the motion turns. Neither party has any further evidence that it needs to adduce on the issue before the court. Neither felt it necessary to cross-examine the other. In my view, this is a case in which I can find the facts and apply the relevant law in an efficient, affordable way and, in doing so, provide a fair and proportionate process to resolve the issue between the parties.
[6] The parties are former spouses. They divorced in 2011. I do not need to decide whether the defendant’s evidence concerning the matrimonial proceedings is admissible on this motion as I do not need to rely on that evidence to decide the motion as sought by the defendant.
[7] On April 1, 2014, the defendant made statements to the police. As a result, and without any further investigation, the police arrested the plaintiff on April 12, 2014. They charged the plaintiff with multiple counts of fraud and assault.
[8] After his arrest, the police interviewed the plaintiff and told him the gist of the defendant’s allegations that led to the charges being laid. On April 15, 2014, the plaintiff attended his bail hearing. The plaintiff was present as the Crown Attorney read a summary of the allegations made by the defendant that formed the basis of the charges.
[9] In May, 2014, the Crown provided the plaintiff’s lawyer with its full disclosure package. It contained the complete details of the defendant’s statement to the police. The plaintiff’s evidence is that he never read this material.
[10] I do not need to determine specifically when the plaintiff learned of the defendant’s allegedly defamatory statements. He admits the following in para. 12 of his affidavit sworn November 26, 2020:
While I was always aware of nature of the false allegations that Ms. Guastella brought against me, at no time did I think about bringing a civil action for defamation against her while the criminal charges, based on the statements she provided to the police, were hanging over my head. Given the enormous stress of being charged for the first time in my life, and the fact that that my liberty was at stake, my life was consumed with focusing on the criminal charges. I believed I would have to get those charges dismissed before I made any decisions about bringing any type of civil action against her. [Emphasis added.]
[11] Moreover, in his interview by the police on the day he was charged, the plaintiff said that the defendant was “making stuff up” and he said that she was having him charged with domestic assault to try to get the police to take his guns away from him.
[12] There is no issue that the plaintiff knew all the elements of his cause of action for defamation in April, 2014. He knew that the defendant had published statements to the police of or concerning him; that he believed were false; and that were defamatory – being of a nature to reduce the reputation of the plaintiff in the minds of a reasonable person.
[13] A preliminary inquiry into the criminal charges was held on September 15 and 16, 2016. The court committed the plaintiffs for trial on some of the charges.
[14] On February 9, 2017, the Crown withdrew the charges. In unattributed (and therefore inadmissible) hearsay, the plaintiff says the charges were withdrawn due to a lack of evidence.
[15] The plaintiffs commenced this lawsuit on August 3, 2018. The claim was commenced within two years of the preliminary inquiry and the withdrawal of the charges, but over four years after the plaintiff learning of his cause of action.
[16] The crux of the plaintiff’s case is his argument that subjectively, he could not turn to consider a civil lawsuit while his criminal charges were outstanding. His unchallenged evidence is:
From the time that I was first charged to the time that the Crown withdrew all of the charges, I was preoccupied with ensuring that I defended those charges properly. It would have been difficult, if not impossible for me, from a psychological and financial point of view, to bring a civil action at the same time. While I never sought legal advice about any of this at the time, I believe I may have really harmed my criminal case, if the Crown first, and then a Judge/jury, ever knew, that I was suing the alleged victim, about the very same statements that formed the basis of the criminal charges against me.
By the time all the charges were withdrawn for lack of evidence on February 9, 2017, the stress I had gone through, had been enormous and had taken a serious toll on me. It took me some time to try and recover from the entire ordeal. In the summer of 2018, I felt ready to move forward and I eventually retained Mr. Honickman to bring this Claim.
[17] It is apparent from the foregoing, that the plaintiff actually thought about suing while the criminal charges were outstanding. In addition to saying that he could not have done it psychologically and financially, he believed that suing would have harmed his defence of his criminal case.
The Law
The Statute
[18] My finding above that the plaintiff knew all of the elements of his cause of action in 2014 would have been dispositive of a limitation period analysis before the 2002 statute was enacted. However, the issue under ss. 4 and 5 of the Limitations Act, 2002 is not just when the plaintiff learned the elements of the cause of action, but when did he “discover” his claim. The sections say:
Basic limitation period
4 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.
Discovery
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).
[19] Subparagraphs 5 (1)(a)(i) – (iii) effectively set out the requirement to establish that the plaintiff knew the facts that amounted to his cause of action.
[20] It is subparagraph 5 (1)(a)(iv) that the plaintiff relies upon in this case. He argues that the subparagraph contains both an objective and a subjective component that must be satisfied before a plaintiff can be held to have known that it was “appropriate” to bring a civil claim and thereby “discover” his claim at a given time.
[21] Here, Mr. Honickman submits, a factual and contextual analysis supports a conclusion that it was neither objectively appropriate nor subjectively appropriate for this plaintiff to sue to remedy the defendant’s defamation until the charges were withdrawn in 2017.
Chimienti v. Windsor (City) raises a Policy Issue
[22] Mr. Honickman argues that the only issue at play in both the criminal and civil proceedings was the truth of the defendant’s allegations. She was the witness whose evidence would have to be believed beyond a reasonable doubt in the criminal case. Likewise, in the civil case, the defendant’s defence of justification turns on her proving that her statements to the police were true.[^1] While there was other evidence in support of some of the fraud issues (such as banking documents) I accept this point for the sake of argument.
[23] Mr. Honickman submits that had the criminal charges resulted in a verdict of guilty, the plaintiff would not have been able to succeed in a lawsuit for defamation. This is correct. The successful criminal conviction would effectively have meant that the defendant’s statements to the police had been accepted as true beyond a reasonable doubt. The doctrines of issue estoppel and abuse of process would have prevented the plaintiff from mounting a collateral attack to that finding in civil proceedings.
[24] Mr. Honickman goes further and relies on the decision of the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41.which held that a civil claim for negligent investigation cannot be brought until the criminal charges related to the investigation fail.
[25] On the objective piece of his argument, Mr. Honickman relies on Hill and submits that in cases in which the truth of the complainant’s claim is in issue, policy considerations prevent civil claims from being “appropriate” until the criminal charges are concluded.
[26] Mr. Honickman also relies upon the statement of policy made by MacPherson JA in Chimienti v. Windsor (City), 2011 ONCA 16, at para. 15. In that case, the plaintiff sued the police for negligent investigation and malicious persecution. The Court of Appeal held that the limitation period for both torts commenced only after the charges were dropped and not at the time of the plaintiff’s arrest. Nevertheless, the claim was dismissed because it had been commenced one day after the expiry of a special six month limitation period contained in Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7(1). That is, the civil claim was commenced six months and one day after the charges were dropped.
[27] While dismissing the claim, MacPherson JA wrote the following:
I also have some sympathy for the appellants' policy arguments. In my view, it is unrealistic to ask a person already preoccupied with defending a criminal charge to take on the additional effort and cost of mounting a civil action, particularly given the likely unfounded but understandable concern that, in doing so, he might antagonize the police and Crown counsel. Furthermore, there is something of a logical inconsistency in asking a civil court to rule on the propriety of a criminal prosecution before the criminal court has had the opportunity to assess the merits of the underlying charge. [Emphasis added.]
[28] Mr. Honickman argues that the same issues exist in this case. I do not agree. First, I note, that despite the court’s sympathy, the claim was dismissed. In Chimienti the court confirmed that despite these policy concerns, there is no longer a doctrine of special circumstances that can allow a court to extend a limitation period after it has expired.
[29] Of greater significance though is the fact that for both torts in issue in Chimiente, the cause of action did not exist until the criminal charges were dismissed. In Hill, the Supreme Court of Canada held that a plaintiff has no right to sue for negligent investigation before the dismissal of the criminal charges. Similarly, there can be no claim for malicious prosecution until the prosecution has ended in a manner favouring the accused/plaintiff. These are facts that come under s. 5 (1)(a)(i) – (iii) of the Limitations Act, 2002. In those two torts actionable damage has not been inflicted until the criminal case ends. The Court of Appeal confirmed this in para. 13 of Chimiente.
[30] Chimiente was not decided based on a civil action not being appropriate. There was no cause of action. In this case however, the cause of action was complete in April or May, 2014. The question then is whether it was appropriate for a plaintiff to seek a civil remedy while he was under criminal charges.
[31] At first blush, the sympathy expressed by MacPherson JA would seem to provide at least some policy support for the plaintiff’s concern. Carrying two proceedings at once may indeed be difficult. But if one looks more closely at the bolded words of MacPherson JA set out above, there is an important difference between the concerns that he expressed and the factual context of this case.
[32] In Chimiente, the court questioned whether suing might be counter-productive because it might antagonize the police and the Crown. The lawsuit that was brought in that case was a claim against the police. Here the claim is against the defendant. The claim is not against the very officers of the state whom are charged with the criminal investigation and prosecution at issue.
[33] The second concern expressed by MacPherson JA related to the inaptness of a civil court ruling on the propriety of a criminal case before that case had been concluded. In considering the torts of negligent investigation and malicious prosecution, the civil court assesses the reasonableness of the investigative and prosecutorial steps that led to the unsuccessful charges. That cannot be done fully before the charges are concluded and are unsuccessful.
[34] By contrast, a civil court hearing a defamation case does not rule on the propriety of the criminal charges. If the criminal case leads to a finding of guilt, the civil case will be defeated by the doctrines of issue estoppel, abuse of process, and/or collateral attack as discussed above. If the criminal charges do not result in a finding of guilt, they are largely irrelevant to the question of proof on a balance of probabilities of the truth of the defendant’s statements in the defamation case.
[35] In my view, the policy concerns expressed by the Court of Appeal in Chimiente do not apply to this case considered on its own facts and in its own context. I do not see this as a circumstance therefore in which the objective facts and circumstance prevent a civil lawsuit for defamation from being appropriate at the time the plaintiff learned of his cause of action.
Winmill v. Woodstock (Police Services Board) expands Chimiente
[36] Mr. Honickman raises the issue of whether the plaintiff’s subjective views of his personal readiness to sue and the tactical advisability of suing are proper concerns under s. 5 (1)(a)(iv) of the Limitations Act, 2002. This issue was front and centre in the Court of Appeal’s decision in Winmill v. Woodstock (Police Services Board), 2017 ONCA 962.
[37] In Winmill, the plaintiff sued the police for battery as a result of the violence of his arrest. The motion judge found that the limitation period commenced right away and did not await the outcome of the criminal charges of assault for which he was arrested. The majority of the Court of Appeal disagreed and overruled the decision.
[38] MacPherson JA, for the majority, acknowledged prior case law that makes it clear that “appropriate” in s. 5 (1)(a)(iv) means “legally appropriate”. He adopted the following statement by Sharpe JA in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, at para. 34:
In my view, when s. 5(1)(a)(iv) states that a claim is “discovered” only when “having 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 to 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.]
[39] MacPherson JA went on to hold that despite adopting Justice Sharpe’s call for certainty and predictability in this area of the law, the issue of appropriateness is not a simple binary decision of whether a basis to defer a claim is “tactical” versus “legal” in nature. Rather than seeing systemic benefit in a certain and predictable rule, he held that fairness to each individual plaintiff turns on a contextual analysis of the facts and subjective circumstances of each case.
[40] Justice MacPherson held that “it made sense” for Mr. Winmill to defer his lawsuit because the assault charge against him and the claim of battery against the police were “in reality, two sides of the same coin or mirror images of each other.”
[41] At para. 31 of Winmill, the MacPherson JA wrote:
In a similar vein, it strikes me as obvious that the verdict in the appellant’s criminal trial, especially on the assault charge, would be a crucial, bordering on determinative, factor in the appellant’s calculation of whether to proceed with a civil action grounded in a battery claim against the respondents.
[42] MacPherson JA then recited his concern from Chimiente with having a civil court rule on the propriety of criminal proceedings before the criminal court had assessed the merits of the charges before it. He held that the concern applied and therefore he allowed the appeal and found that suing was not “appropriate” under s. 5 (1)(a)(iv) of the Limitations Act, 2002, until the criminal charges ended.
[43] Huscroft JA wrote a dissenting opinion in Winmill. He held that the limitation period was discovered on the date of the arrest and the alleged battery by the police.
[44] He wrote:
[41] My colleague acknowledges the authority of Markel, but in my view undermines it by emphasizing the need to attend to the factual circumstances of individual cases, drawing on this court’s subsequent decisions in 407 ETR Concession Co. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, and Brown v. Baum, 2016 ONCA 325, 397 D.L.R. (4th) 161. But both of these cases are clearly distinguishable…
[45] In this case the appellant decided, for tactical reasons, not to bring his battery action until after the criminal proceedings against him had concluded. My colleague acknowledges as much in stating that “it made sense for [the appellant] to postpone deciding whether to make a battery claim against the respondents”. That was an improvident decision, and this court has no discretionary power to relieve against the consequences of it, whether the appellant’s claim is a day late or year late.
[46] In my view, the motion judge made no errors. The battery claim is late. The negligent investigation claim is not.
[45] Mr. Honickman relies heavily on the binding majority decision in Winmill. He argues that the criminal charges for assault and fraud and the civil claim of defamation are “two sides of the same coin” as that phrase was used by MacPherson JA. However, it is not clear what the phrase “two sides of the same coin:” means. No doubt if Mr. Winmill were convicted, issue estoppel and abuse of process would have prevented him from mounting a collateral attack on the lawfulness of the arrest in a civil claim for battery. Despite having a cause of action on day one, it would be defeated by a subsequent finding of guilt in the criminal charges. But, on the flip side, if Mr. Winmill had been acquitted, the police would not necessarily have been liable in battery. They could still argue that they made a lawful arrest despite the acquittal.
[46] Mr. Honickman argues that a criminal charge and civil claim will be “two sides of the same coin” when both turn on the truth of the complainant’s testimony as here. But an acquittal of the plaintiff in this case would not have necessarily led to or even been relevant to the determination of whether the defendant’s defamatory statements were true in the civil action.
[47] In addition, there is no denying the correctness of Justice Huscroft’s conclusion that the majority’s finding in Winmill that the issue of appropriateness turns at least to some extent on it making sense to defer suing, introduces some contextual flexibility and uncertainty into the Markel rule that tactical grounds to delay suing are insufficient to prevent a lawsuit from being “appropriate” under s. 5 (1)(a)(iv). What then does “two sides of the same coin” mean? How much flexibility is there in assessing the appropriateness of suing under s. 5 (1)(a)(iv) of the statute? The subsequent decision of the Court of Appeal in Sosnowski, provides clarity on this issue.
Sosnowski v. MacEwan Petroleum explains Winmill
[48] In Sosnowski, the plaintiff sued his former employer for wrongful dismissal more than six years after he had been fired for cause. The employer alleged that Mr. Sosnowski had stolen from it. The police charged Mr. Sosnowski with theft. He was ultimately acquitted and sued his employer within one year of the acquittal.
[49] Mr. Sosnowski argued, based on Winmill, that it was not appropriate for him to sue his employer until the charges were resolved. Although his cause of action was discovered at the time of his dismissal, had he been convicted of theft, he would not have been able to continue the claim by contesting the finding that he stole from his employer.
[50] The Court of Appeal held that other than Winmill, cases in which the court had held that a civil claim was not appropriate under s. 5 (1)(a)(iv) of the Limitations Act, 2002 had involved either a specific factual and and/or statutory setting, or cases where a plaintiff relied on a person with expertise to ameliorate the losses that they may have caused. See: Sosnowski at paras 16 and 17.
[51] At para. 23, the Court of Appeal explained its understanding of the meaning of “two sides of the same coin” analogy from Winmill:
In Winmill, the majority held that the civil claim and the criminal charges were two sides of the same coin. That finding was presumably made on the basis that the civil claim involved determining the appropriateness of the conduct of the police, who were also closely involved with the criminal charges. That makes Winmill distinguishable from the facts of the present case, where the police’s conduct is not the subject of the civil proceeding. In my view, therefore, the motion judge did not err in distinguishing Winmill.
[52] As noted above, the limitation periods for suing the police for negligent investigation and malicious prosecution do not begin until the criminal charges at issue are ended. That is because the completion of the criminal proceedings is an essential element of those causes of action. Winmill expanded that deferral of the limitation period to the situation of someone suing the police for battery in the arrest that led to the criminal charges. The tort of battery puts under the microscope in civil proceeding the lawfulness of the arrest and the police conduct that led to the criminal proceedings. It was also a claim against the officers who were engaged in the criminal prosecution. Therefore, like Chimiente, it makes sense not to inflame the police while criminal charges are under way and, more significantly, it was legally troubling for a civil court to question the propriety of criminal proceedings that had not yet run their course.
[53] None of those concerns existed in Sosnowski or here. The plaintiff is not suing the police who are “closely involved with the criminal charges”. The focus of the criminal case is on the defendant’s conduct – not the complainant’s or the police conduct that led to the charges. In both Sosnowski and this case, the civil court would not have been deciding on the propriety of criminal proceedings before the criminal court had done so or at all.
[54] In addition, like Sosnowski, the cause of action in this case fully accrued and was subject to being defeated by an adverse ruling in the criminal case. Therefore, that scenario does not necessarily fall under the “two sides of the same coin” analogy.
[55] On the underlying policy question, the Court of Appeal ruled:
[28] The appellant’s principal submission is that he should have been permitted to wait until the criminal proceedings concluded so that he could evaluate his chances of success in litigation. He argues that litigation is an expensive and risky proposition, and he should not have been forced to commence a civil proceeding until he knew that he had a chance of success. This argument, of course, is precisely what this court in Markel said a plaintiff is not permitted to do.
[29] If such an evaluative analysis could effectively stop the running of the limitation period, questions will necessarily follow regarding the nature of that analysis and the factors that could be considered. For example, is it open to a plaintiff to argue that he or she can await the outcome of a related discipline process in a professional negligence claim? May a potential plaintiff commence a claim many years after the events if there is a change in the law that increases his or her chances of success? If a critical witness goes missing and is later discovered, is it open to the plaintiff to assert that he or she did not know whether it was appropriate to bring an action until the witness was found?
[30] I cite these examples, not to suggest that they should succeed under the appropriate means provision, but to show how far that provision might be expanded once plaintiffs are permitted to evaluate the strength of their claim before being required to commence a proceeding. This approach would introduce a measure of uncertainty that is contrary to the legislature’s intention in enacting the current Limitations Act. It would, in effect, transport the law back to the same state of uncertainty that existed before the changes in the legislation in 2002.
[56] The plaintiff’s reliance on his financial circumstances, his sense of his own psychological state, or his singular devotion to the criminal charges cannot change this analysis. Neither does his desire to know if the criminal verdict will amount to a defence in the civil claim. All are subjective and evaluative concerns. All reflect priority determinations made by the plaintiff in his mental calculus of deciding whether to sue on his known cause of action. Civil proceedings are about money. The decision to sue always involves a cost-benefit analysis. Civil proceedings are expensive and stressful without doubt. A plaintiff who has other needs and uses for funds or who weighs the risks to his or her psychological health and determines that the cost in terms of disrupted wellbeing is greater than the benefit of litigating, makes a sensible, adult decision.
[57] People are entitled to decide not to sue just as much as they are entitled to decide to sue. We are not dealing with people who lack capacity. Our law respects the autonomy of each person and recognizes a fundamental obligation to respect the integrity of others’ decision-making whether we agree with the decision or not.
[58] The plaintiff argues that Winmill introduces a subjective determination into the contextual analysis of the facts and circumstances of each case. Mr. Honickman submits that Sosnowski did not overrule Winmill or change the law. It was a particular application and individual determination based on a civil claim of breach of contract (wrongful dismissal) in the context of criminal charges. In this case, based on the plaintiff’s subjective position, he submits that Winmill leads to the conclusion that it makes sense to defer suing because the defamation claim and the criminal proceedings are “two sides of the same coin.”
[59] I do not generally view floodgates arguments as particularly compelling. However, based on the plaintiff’s reading of Winmill, every motor vehicle case in which a party is charged with a traffic offence could find its limitation period deferred based on plaintiffs’ subjective financial and psychological states and their feelings about the risks of suing without even asking their lawyers. This truly is the proverbial slippery slope.
[60] In any event, in my view, Sosnowski resolves the issues raised by Winmill. I agree that it does not overrule Winmill. The dissenting decision of Huscroft JA is not even mentioned in Sosnowski notwithstanding the apparent similarity in approaches of Huscroft JA in Winmill and the unanimous court in Sosnowski. In my view, viewed narrowly, Sosnowski confines the rationale of Winmill to cases in which a plaintiff sues the police or the Crown concerning the propriety of the criminal charges at issue. Viewed less pointedly, Sosnowski distinguishes Winmill based on the identity of the defendant and explains that cases like that one, and therefore this one, where civil outcome may turn on a particular verdict in concurrent criminal charges are not necessarily “two side of the same coin” as that phrase is used in Winmill. Sosnowski strongly cautions against allowing subjective, evaluative concerns from becoming grounds to find that a lawsuit is not legally appropriate under s. 5 (1)(a)(iv) of the Limitations Act, 2002.
[61] In this case, the cause of action was known and complete before the criminal charges were decided. The defendant is not the police. Suing the defendant is consistent with the plaintiff’s protestation of his innocence on the charges. A decision in the defamation case does not determine the propriety of the criminal case even if the civil decision comes first (as wholly unlikely as that is).
[62] In my view, Sosnowski is indistinguishable from this case on any basis relevant to the principles and policies at play. The plaintiff’s determination that he could not afford to use his financial resources to sue; that he did not want to sue or that his psychological makeup made it impossible for him to do so; and his fear that suing might seriously harm his criminal defence, are all subjective, evaluative determinations for each plaintiff to make. However, none affects that fact that it was “legally appropriate” to sue as soon as the cause of action arose in 2014. To accede to the plaintiff’s subjective arguments would “transport the law back to the same state of uncertainty that existed before the changes in the legislation in 2002”.
Particulars
[63] Mr. Honickman makes an alternative argument that the plaintiff did not have sufficient details to plead in light of the enhanced particularity required to plead defamation. The defendant argues that plaintiff’s evidence that he did not read the disclosure package for two years strains credulity in light of his evidence that his life was consumed with focusing on his criminal charges. However, I do not need to make a finding of fact on this point. Whether he read the disclosure or not, his lawyer had it. He is either bound by his lawyer’s knowledge or caught by the requirement of reasonable diligence in s. 5 (1)(b) of the Limitations Act, 2002. He cannot be heard to deny knowledge of the particulars of the plaintiff’s statements that he chose not to read when they were provided to him for the very purpose of giving him particulars for the criminal charges.
[64] In any event, the pleadings rules only require a plaintiff to plead that which he knows. On his own admission, he knew enough to plead a cause of action without the disclosure package. See: The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85, at para. 25.
Outcome
[65] I find that by May, 2014 at the latest, the plaintiff discovered his claim including knowing that a lawsuit would be a legally appropriate means to remedy the injury suffered having regard to the nature of the injury caused by the defendant’s alleged defamatory statements. He admits that he adverted to the likely effect of suing civilly on his criminal charges.
[66] As this action was commenced after the second anniversary of any date in 2014, the action was commenced too late and is barred by the statute.
[67] Summary judgment is therefore granted dismissing this action.
[68] The defendant may deliver cost submissions no later than February 1, 2021. The plaintiff may deliver cost submissions no later than February 8, 2021. Both parties shall deliver Costs Outlines. In addition, the parties may deliver copies of any offers to settle on which they rely. Submissions shall be no longer than three pages (not counting the Cost Outlines and offers to settle). All material is to be filed through the Civil Claims Online portal and shall also be sent to me in searchable PDF format as an attachment to an email to my Judicial Assistant. No case law or statutory material is to be submitted. References to case law and statutory material, if any, shall be embedded in the parties’ submissions as hyperlinks.
F.L. Myers J.
Released: January 25, 2021
COURT FILE NO.: CV-18-602767
DATE: 20210125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW KULYK
Plaintiff
– and –
JOSEPHINE GUASTELLA
Defendant
REASONS FOR JUDGMENT
F.L. Myers J.
Released: January 25, 2021
[^1] Mr. Wilson advised that the defendant wishes to amend her statement of defence to plead qualified privilege in addition to justification. Mr. Wilson submits that because the plaintiff told the police that the defendant had an ulterior motive to make stuff up to try to get his guns, the plaintiff had knowledge of his “malice” response to a plea of qualified privilege in April, 2014 as well. In view of the conclusion that I reach on the existing defence of justification, it is not necessary to consider this issue.