COURT FILE NO.: CV-22-00680093-0000

DATE: 2025-02-10
ONTARIO SUPERIOR COURT OF JUSTICE

RE: M.V., Plaintiff
-and-
Alexander (Sandy) Zaitzeff, Craig Loverin, Heli Kijanen, His Majesty the King in Right of Ontario (Ontario Provincial Police), OPP Detective Superintendent Dave Truax (retired), OPP Detective Inspector Martin Graham, OPP Sergeant Major Paula Milne, Thunder Bay Police Services Board, TBPS Detective Constable Chris Carlucci, The Attorney General of Canada, RCMP Constable Mike Rozic, and RCMP Constable Darryl Waruk, Defendants

BEFORE: Robert Centa

COUNSEL:
Davin Charney and Tamar Friedman, for the plaintiff
Sarah Pottle and Kristina Yeretsian, for the Crown defendants
Eugene Prpic, for the Thunder Bay police defendants

HEARD: December 18 and 19, 2024

ENDORSEMENT

1. Overview

[1] On July 20, 2017, officers with the Ontario Provincial Police arrested M.V., Keith Hobbs, and Marisa Hobbs. On July 21, 2017, OPP Detective Inspector Martin Graham swore an information charging M.V. with a single count of extortion contrary to s. 346(1.1)(b) of the Criminal Code. Mr. Hobbs and Ms. Hobbs were also charged with one count of extortion and one count of obstruction of justice.

[2] On August 30, 2018, Bishop J. committed M.V., Mr. Hobbs, and Ms. Hobbs to stand trial on all charges. Justice Dawson, sitting without a jury, tried the charges in the Superior Court of Justice between November 18 and December 12, 2019. On February 20, 2020, Dawson J. acquitted M.V., Mr. Hobbs, and Ms. Hobbs on the charge of extortion (the obstruction charges having been dropped). Justice Dawson delivered reasons for decision spanning 155 pages.

[3] In his introduction, Dawson J. explained that the case revolved around an agreement signed between M.V. and the defendant, Alexander (Sandy) Zaitzeff, dated November 18, 2016. The agreement obliged Mr. Zaitzeff to purchase a home for M.V. in exchange for M.V. providing a release in favour of Mr. Zaitzeff and agreeing to return certain data and material to him. Mr. Hobbs drafted the agreement and Ms. Hobbs witnessed the signatures. Justice Dawson observed that “the agreement came about after a tumultuous course of events about which there is significant controversy.” The trial turned on whether the agreement was, as the Crown argued, an “extortion agreement,” and whether the Crown had proved beyond a reasonable doubt that M.V., Mr. Hobbs, and Ms. Hobbs attempted “to induce Mr. Zaitzeff to purchase a house by threats, accusations or menaces of disclosing criminal allegations to the police.” Justice Dawson concluded:

[464] After considering the evidence as a whole I have rejected the direct evidence and some of the circumstantial evidence of the means by which Sandy Zaitzeff claims that he was extorted into agreeing to buy a house for [M.V.]. I acknowledge that the remaining circumstantial evidence can be viewed as suspicious or inculpatory.

[465] However, for all the reasons stated, I find I nonetheless harbor a reasonable doubt about the guilt of each of the three accused persons. I am simply not sure that the threat alleged in the indictment was ever made in an intentional attempt to extort Sandy Zaitzeff to buy a house for [M.V.]. There are competing inferences to guilt which are compelling when the evidence of the accused which I have not rejected is considered together with the other evidence.

[467] As I remain in a state of reasonable doubt, I find Keith Hobbs, Marissa Hobbs, and [M.V.] not guilty of the offence charged.

[4] As required by statute, on February 15, 2022, M.V. served a notice of claim for damages on the Crown. On April 21, 2022, M.V. issued a statement of claim seeking $1.35 million in damages against 12 defendants who can be organized into four groups:

a. the individual defendants: Alexander (Sandy) Zaitzeff and his two associates, Craig Loverin and Heli Kijanen;
b. the Crown defendants: His Majesty the King in Right of Ontario, retired OPP Detective Superintendent Dave Truax, OPP Detective Inspector Martin Graham, and OPP Sergeant Major Paula Milne (the “OPP defendants”);
c. the Thunder Bay police defendants: the Thunder Bay Police Services Board and Detective Constable Chris Carlucci; and
d. the Canada defendants: The Attorney General of Canada, RCMP Constable Mike Rozic, and RCMP Constable Darryl Waruk.

[5] This endorsement relates to motions for summary judgment brought by the Crown defendants and the Thunder Bay police defendants in M.V.’s action.

[6] With respect to the Crown defendants, M.V. seeks damages for two broad categories of harm. First, M.V. pleads that the OPP officers arrested her without lawful authority and in the absence of reasonable and probable grounds, which constituted the tort of false arrest or false imprisonment and violated her rights under ss. 7 and 9 of the Charter. M.V. seeks tort and Charter damages. Second, M.V. pleads that the OPP officers were negligent and committed the tort of negligent investigation, for which all Crown defendants are liable.

[7] The Crown defendants move for summary judgment dismissing all claims against them on the basis of a limitations defence. The Crown defendants submit that they have established that there is no issue requiring a trial with respect to the limitation period because M.V. delivered her notice of claim on February 15, 2022, which was more than two years after the date she was arrested (July 20, 2017) or committed for trial (August 30, 2018).

[8] In the alternative, the Crown defendants submit that there is no genuine issue requiring a trial regarding whether the OPP officers had reasonable and probable grounds to arrest and charge M.V. because she was committed for trial and there is no evidence of a fundamental flaw in the preliminary inquiry process.

[9] I grant the Crown defendants’ motion to dismiss M.V.’s claim for false arrest, breach of s. 9 of the Charter, and breach of s. 7 of the Charter arising out of her arrest. The law is clear that a claim of false arrest is presumed to be discovered on the day of the arrest. M.V. did not rebut this statutory presumption, and M.V. commenced her claim more than two years after her arrest.

[10] I dismiss the Crown defendants’ motion for summary judgment dismissing M.V.’s claim for negligence and negligent investigation. Plaintiffs must prove that the criminal proceedings terminated in their favour in order to make out the tort of negligent investigation. I find that M.V. did not discover her claim for negligent investigation until she was acquitted by Dawson J. on February 20, 2020. Given the extension of limitation periods due to the COVID-19 pandemic, I find that M.V. commenced her action for negligent investigation before the limitation period expired. M.V.’s allegations that the Crown defendants were negligent are inextricably linked to the allegations of negligent investigation and should also proceed to trial.

[11] I also dismiss the Crown defendants’ motion to dismiss M.V.’s action based on the presence of reasonable and probable grounds. The Crown defendants did not file affidavits from any of the OPP Defendants. There is no evidence before me that the officers subjectively believed that they had reasonable and probable grounds to arrest or charge M.V. The Crown defendants have not demonstrated that there is no genuine issue requiring a trial regarding the presence of reasonable and probable grounds to charge M.V.

[12] With respect to the Thunder Bay police defendants, M.V. seeks damages for “negligent investigation or, in the alternative, negligence.” M.V. pleads that Cst. Carlucci was responsible for the charge of extortion which was brought against her, that he mishandled relevant and important evidence, and that his negligence compromised the investigation conducted by the OPP defendants.

[13] The Thunder Bay police defendants also move for summary judgment dismissing M.V.’s claim of negligent investigation and negligence based on a limitations defence. They submit that they have established that there is no genuine issue requiring a trial with respect to the limitation period because M.V. issued her statement of claim on April 21, 2022, which was more than two years after she was charged and committed for trial. I find that M.V. could not have discovered her claim for negligent investigation until she was acquitted by Dawson J. on February 20, 2020. Given the extension of limitation periods due to the COVID-19 pandemic, I find that M.V. commenced her action for negligent investigation before the limitation period expired. M.V.’s allegations that Cst. Carlucci was negligent are inextricably linked to the allegations of negligent investigation and should also proceed to trial. For those reasons, I dismiss the Thunder Bay police defendants’ motion for summary judgment in its entirety.

[14] I will first set out the principles applicable to motions for summary judgment. I will then explain why I find it appropriate to consider and determine these motions for partial summary judgment. I will then turn to the moving defendants’ motions for summary judgment on the basis of the limitation periods applicable to the false arrest (and related) claims and then the negligent investigation claims. Finally, I will address the moving defendants’ submissions related the presence of reasonable and probable grounds.

2. Principles underpinning motions for summary judgment

[15] Summary judgment is an important tool for enhancing access to justice where it provides a fair process that results in a just adjudication of disputes. Used properly, it can achieve proportionate, timely, and cost-effective adjudication.

[16] The Court of Appeal for Ontario described the correct approach on a motion for summary judgment under Rule 20 of the Rules of Civil Procedure. I am to:

a. determine if there is a genuine issue requiring a trial based only on the evidence before me, without using the enhanced fact-finding powers under rule 20.04(2.1);

b. if there appears to be a genuine issue requiring a trial, determine if the need for a trial could be avoided by using the enhanced powers under

i. rule 20.04(2.1), which allows me to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence; and

ii. under rule 20.04(2.2), which allows me to order that oral evidence be presented by one or more parties.

[17] The Supreme Court of Canada emphasized that I must focus on whether the evidence before me permits a fair and just adjudication of the dispute and cautioned that judges should not use the enhanced powers where their use would be against the interests of justice:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [Emphasis in original.]

[18] On a motion for summary judgment, all parties are required to put their best foot forward. They are not permitted to sit back and suggest that they would call additional evidence at trial. The court proceeds on the basis that the parties have advanced their best case and that the record contains all the evidence that would be led at trial.

[19] The record on this motion for summary judgment is quite unusual. None of the moving defendants filed affidavits. M.V. did not file an affidavit in her name. Both parties were required to put their best foot forward on this motion for summary judgment. Instead, they tendered no first-hand evidence. Tactical decisions like this have consequences, as I will explain below.

[20] M.V. submits that she might obtain additional evidence through examinations for discovery, and that the motions for partial summary judgment should be dismissed as premature. I disagree. First, it is difficult to give much weight to this submission when M.V. did not even swear an affidavit for use on this motion. The failure to tender relevant first-hand evidence that was easily within her control significantly undermines her submission that there might be additional evidence out there to assist her case. Second, M.V. has all the evidence from the Crown brief to assist her in this motion. The documents would provide significantly more information to her than many plaintiffs would have before examinations for discovery. Third, M.V. did not seek to examine any person under oath in advance of the motion and to use that evidence on this motion for summary judgment. Fourth, as noted, responding parties on a summary judgment motion are not permitted to sit back and suggest that they would call additional evidence at trial. In all of these circumstances, and given the circumstances of this case discussed in the next section, I decline to dismiss these motions as premature.

[21] I can fairly determine the motion on the record before me without resort to the enhanced powers under rules 20.04(2.1) or (2.2). The dispute between the parties does not require me to weigh the evidence, evaluate the credibility of the deponents, or draw inferences from the evidence.

3. The appropriateness of these motions for partial summary judgment

[22] In May 2023, I was assigned to case manage the actions of M.V. v. Zaitzeff and the separate but related action in Hobbs v. Zaitzeff. In September 2023, I held a case conference that dealt with several issues, including the Crown defendants’ intention to bring a motion for summary judgment.

[23] I was concerned about the appropriateness of timetabling a motion for partial summary judgment in this complex case involving 12 defendants. I knew that partial summary judgment “should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings.” I also knew that partial summary judgment should not be granted where there is a real risk of inconsistent or duplicative facts in the context of the litigation as a whole. However, the jurisprudence has established that partial summary judgment is not impermissible per se. If partial summary judgment does not present a risk of duplicative proceedings or inconsistent findings of fact, and resolving the claim could significantly advance access to justice and be the most proportionate, timely, and cost-effective approach, it may be in the interests of justice to grant partial summary judgment.

[24] I directed counsel for the Crown defendants to deliver a case conference memo outlining the basis for their proposed summary judgment motion, including a draft notice of motion, and to circulate that memo in advance of the next case conference.

[25] On November 2, 2023, I convened a second case conference. As requested, counsel for the Crown defendants provided a very helpful seven-page memo outlining the actions and their history and setting out the basis of the Crown defendants’ motion for summary judgment. The memo attached a draft notice of motion. The proposed motion would, if successful, result in the action being dismissed in its entirety against the Crown defendants. The memo also addressed the Court of Appeal for Ontario’s decision in Malik v. Attia and explained why the Crown defendants believed that its motion for partial summary judgment would prove cheaper for the parties, get the case in and out of the court system more quickly, and would not result in inconsistent findings. At the case conference, the Canada defendants, Mr. Zaitzeff, and the Thunder Bay police defendants all indicated that they also intended to bring potentially dispositive motions.

[26] I concluded that the motions for partial summary judgment were appropriate as they focussed on allegedly expired limitation periods, which are the type of discrete issue that can be dealt with expeditiously and in a cost-effective manner, without the risk of inconsistent findings of fact or verdicts. If successful, the motion for partial summary judgment would result in the complete removal of the Crown defendants from the proceeding, would shorten the examinations for discovery and the trial, and would get the matter in and out of the court system more quickly. I was satisfied that all these motions had the prospect of significantly narrowing the issues in dispute, which could well serve the interests of all remaining parties. I agreed to hear the motions from the Crown defendants, the Canada defendants, Mr. Zaitzeff, and the Thunder Bay police defendants.

[27] I set a timetable for delivery of motion records and responding motion records, cross-examinations, undertakings, and factums. I set the motions down to be heard for three days on December 18, 19, and 20, 2024.

[28] As it happened, the defendants’ plans changed over time. The Canada defendants and Mr. Zaitzeff chose not to proceed with their motions. Neither the Crown defendants nor the Thunder Bay police defendants delivered affidavit evidence in support of their motions for summary judgment. M.V. did not provide her own affidavit, she only submitted an affidavit from a law clerk that attached a curated set of documents, most of which were drawn from the Crown brief. Likely because there were no affidavits filed, there were no cross-examinations. The record before the court on these motions for summary judgment was unanticipated, atypical, and as I will explain below, not entirely satisfactory.

[29] As I have summarized above, the moving defendants were not entirely successful on their motions. The action will continue against them. Although these motions for partial summary judgment held the prospect of getting several of the defendants entirely out of the action, that will not be the case. I have reconsidered whether it is appropriate to grant partial summary judgment at all or if I should just allow all claims to proceed to trial. As case management judge, and having considered the factors in Malik v. Attia, I find that the motions should be determined on their merits.

[30] I remain persuaded that granting partial summary judgment is appropriate in the context of the litigation as a whole and will get this case in and out of the system more quickly. I acknowledge that some of the benefit of scheduling the motions for summary judgment was lost when the Canada defendants and Mr. Zaitzeff decided not to proceed. The time spent between my scheduling order of November 2, 2023, and the hearing of the motion is now a sunk cost. Declining to grant partial summary judgment will not get that time back for the parties.

[31] This action and its companion action are large and sprawling. M.V.’s statement of claim alone runs 198 paragraphs over 38 pages. In my view, at this point, anything that can be done to narrow and focus the dispute will be of significant assistance to all parties and to the trial judge who ultimately hears this case. Reducing the number of issues for trial will result in a quicker, less expensive litigation process for all parties. Even if I had known that only two parties would proceed with their motions, I would still have exercised my discretion to schedule the motions for summary judgment because if they were successful, getting two groups of defendants entirely out of the action would have provided a faster and less expensive trial process for the remaining parties. These motions for summary judgment remained a proportionate use of court resources.

[32] I am also satisfied that, given my approach to the issues raised on these motions, there is no meaningful prospect of inconsistent findings of fact or law between this motion and the trial. One small benefit of having no affidavits from M.V. or any of the individual defendants is that it reduces the number of findings of fact that will be made on this motion.

[33] Having given the appropriateness of the motions for partial summary judgment careful thought, and considering my role as case management judge, I am satisfied that it is appropriate to grant partial summary judgment.

4. The moving defendants’ limitations defences

A. The Limitations Act

[34] Under ss. 4 and 5 of the Limitations Act, 2002, a plaintiff must normally sue within two years of the discovery of the claim. Section 5 of the Limitations Act explains when a claim is discovered. Speaking broadly, a claim is discovered when the plaintiff has actual or constructive knowledge of the material facts upon which the plaintiff can draw a plausible inference of the defendant’s liability. The Limitations Act also creates a statutory presumption that a plaintiff knew the material facts on the day of the act or omission on which the claim is based, unless the plaintiff rebuts that presumption. The statute provides as follows:

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(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.

[35] In this case,

a. pursuant to s. 5(1), M.V. discovered her claim on the earlier of the date that:

i. she knew of the matters referred to in s. 5(1)(a)(i) to (iv); or

ii. a reasonable person with the abilities and in the circumstances of M.V. ought to have known of the matters referred to in s. 5(1)(a)(i) to (iv); and

b. pursuant to s. 5(2), M.V. is presumed to have known of the matters on the day the act or omission took place, unless she proves that she learned of the matters on a later date.

B. The moving defendants must prove that there is no issue requiring a trial with respect to the limitations defence

[36] Defendants who move for summary judgment on the basis of a limitations defence must prove that their defence can be made out without the need for a trial. In AssessNet Inc. v. Taylor Leibow Inc., van Rensburg J.A. explained how the defendants’ burden on a summary judgment motion interacts with the statutory presumption in s. 5(2) of the Limitations Act and what the plaintiff must do to rebut that presumption:

The expiry of a limitation period is raised by a defendant as an affirmative defence, and the defendant has the burden of proving that defence. When the issue is raised by a defendant in a summary judgment motion, the defendant has the onus of establishing that there is no issue requiring a trial with respect to the limitation period.

A defendant may rely on the presumption in s. 5(2) that the claim was discovered on the day the act or omission on which the claim is based took place. In order to rebut the presumption in s. 5(2) the plaintiff need only prove that its actual discovery of the claim within the meaning of s. 5(1)(a) was not on the date of the events giving rise to the claim. Once the presumption is rebutted, the burden remains on the defendant, who is asserting the defence, to prove that the plaintiff knew or ought reasonably to have known the elements of s. 5(1)(a) more than two years preceding the commencement of the proceeding.

Determining whether an action is statute-barred or declaring when a claim was discovered requires the court to make specific findings of fact about each element set out in s. 5 of the Limitations Act.

[37] In this case, M.V. pleaded Charter claims and several tort claims. Because it is possible that the discovery date may be different for different claims, I will consider each tort and Charter claim separately.

C. The Crown defendants’ limitations defence to the false arrest claim

[38] M.V. pleads that the Crown defendants are liable to her for damages arising from the tort of false arrest, which is also known as the tort of false imprisonment. Regardless of the label attached, the tort has three elements:

a. a total deprivation of the plaintiff’s liberty;
b. the deprivation of liberty was against the plaintiff’s will; and
c. the deprivation was directly caused by the defendant.

[39] The Crown defendants must prove that their limitations defence to M.V.’s claim for false arrest can be made out without the need for a trial. The Crown defendants rely on the presumption in s. 5(2) of the Limitations Act that M.V. discovered her claim on the day the act or omission on which the claim is based took place. There is no doubt that the date of M.V.’s arrest, July 20, 2017, is the day the act on which M.V.’s claim for false imprisonment took place.

[40] Ontario courts have repeatedly held that a claim for the common law torts of false arrest and false imprisonment presumptively crystallize on the date of the arrest and detention. A plaintiff may, however, rebut this presumption. In this case, because she commenced her action more than two years after the date of her arrest, M.V. must rebut the presumption that she discovered her claim on the date of her arrest or her claim will be barred by the Limitations Act.

[41] M.V. submits in her factum that it would not have been appropriate for her to commence a proceeding before her acquittal:

In this case, it would not have been appropriate for [M.V.] to commence false arrest lawsuits against the police defendants while their prosecution was ongoing. It would have risked inflaming the police and the Crown prosecutor while criminal charges were under way which could have prejudiced them. They would have been required to issue a Statement of Claim, which could undermine their right to remain silent. Commencing a claim would have required a civil court to question the propriety of criminal proceedings that had not yet run their course…

[42] M.V., however, did not file an affidavit on this motion. The only evidence M.V. filed on this motion was an affidavit from a law clerk that attached the reasons for decision of Dawson J., the pleadings in this action, true copies of some trial exhibits, some documents obtained from the Crown brief in the underlying criminal proceedings, and the information filed in several other criminal court files.

[43] There is no first-hand evidence from M.V. to rebut the statutory presumption that she discovered her false arrest claim on July 20, 2017. Evidence from a plaintiff regarding when and how she learned of her claim and why she waited to commence the claim plays a crucial role on a defendant’s motion for summary judgment based on a limitations defence. Case-specific evidence is required to demonstrate why a person with a claim did not learn of the matters listed in s. 5(1)(a) of the Limitations Act on the day of the act or omission giving rise to the claim. Absent direct evidence from a plaintiff, it is extremely difficult to rebut the statutory presumption that the plaintiff discovered the claim on the day the act or omission on which the claim is based took place.

[44] M.V. submits that it is a question of law whether “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it,” and that I should conclude that the claim was not discoverable. I disagree. The question of when a claim was discovered is a question of mixed fact and law that must be determined on evidence. The legislature decided that a person with a claim shall be presumed to have known of the matters referred to in s. 5(1)(a) of the Limitations Act on the day the act or omission on which the claim is based took place, “unless the contrary is proved.” A plaintiff may rebut the statutory presumption in s. 5(2) of the Limitations Act but must do so on evidence that proves the contrary of the statutory presumption.

[45] M.V. relies on the decision of the Court of Appeal for Ontario in Winmill in support of her position that she did not discover her claim for false arrest until after her acquittal. I do not think that case assists her for two reasons.

[46] First, in Winmill, the police charged the plaintiff with assaulting a police officer and resisting arrest. After he was acquitted, the plaintiff sued the police for the tort of battery, but he did so two years and one day after his arrest. The Court of Appeal allowed his action to proceed for several reasons. Importantly, the Court of Appeal found that the assault and resisting arrest charges against the plaintiff and the plaintiff’s tort claim against the police were two sides of the same coin:

Second, I agree with the appellant that, in the specific factual setting of this case (407 ETR), and bearing in mind the circumstances of the person with the claim (Novak), it made sense for him to postpone deciding whether to make a battery claim against the respondents until his criminal charges for assault and resisting arrest were resolved. The criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are, in reality, two sides of the same coin or mirror images of each other.

[47] M.V. was charged with extortion, not assault or resisting arrest. The charge she faced is not the other side of the coin from her tort claim of false imprisonment. The charge and tort in this case lack the symmetry found in Winmill.

[48] Second, the result in Winmill turned on the evidence presented by the plaintiff in that case. Although the defendants in Winmill brought their motion under rule 21.01(1)(a) to determine the question of law regarding whether the plaintiff’s claim in battery was statute-barred, the motions judge considered the evidence the plaintiff provided and “treated the motion more akin to a motion for summary judgment than a Rule 21 motion.” The plaintiff filed an affidavit and the defendants cross-examined on that affidavit. With the benefit of this evidentiary foundation, the majority of the Court of Appeal concluded that the plaintiff did not know that a legal proceeding would be an appropriate means to seek to remedy the injuries caused by the alleged battery until after his acquittal.

[49] As noted above, M.V. did not file any evidence that could rebut the statutory presumption that she knew all the information required to trigger the running of the limitation period on the day of her arrest. On a motion for summary judgment, each party is required to put their best foot forward. They are not permitted to sit back and suggest that they would call additional evidence at trial. The court proceeds on the basis that the parties have each advanced their best case and that the record contains all the evidence that would be led at trial.

[50] I find that M.V. has not rebutted the statutory presumption contained in s. 5(2) of the Limitations Act. I find as a fact that M.V. knew of the matters listed in s. 5(1)(a) of the Limitations Act on July 20, 2017, which was the date of her arrest. M.V. commenced this action more than two years after her arrest. The Crown defendants have met their onus of demonstrating that there is no genuine issue requiring a trial with respect to the limitation period defence to M.V.’s claim for false arrest.

[51] I grant partial summary judgment and dismiss M.V.’s claim for false arrest against the Crown defendants.

D. The Crown defendants’ limitations defence to the alleged breaches of ss. 7 and 9 of the Charter

[52] M.V. alleges that the Crown defendants breached her rights under ss. 7 and 9 of the Charter and she seeks Charter damages pursuant to s. 24(1). M.V.’s statement of claim does not elaborate at length on the nature of these claims. The only references to the Charter claims in the statement of claim are as follows:

1. The plaintiff, M.V. claims:

(b) Damages in the amount of ONE HUNDRED THOUSAND ($100,000) as against the Crown pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (the Charter) for violations of the plaintiff’s rights under ss. 7 and 9;

OPP Defendants - Breaches of the Charter

186. The Plaintiff was denied her right to liberty and security, contrary to s. 7 of the Charter.

187. The Plaintiff was denied her right to be free from arbitrary detention, contrary to s. 9 of the Charter.

Remedy Sought

196. The Plaintiff claims damages pursuant to s. 24(1) of the Charter of Rights and Freedoms for the breach of their rights under ss. 7 and 9.

[53] The Supreme Court of Canada has held that statutory limitation periods apply to personal claims for constitutional remedies. The Court of Appeal for Ontario has held that the Limitations Act imposes a two-year limitation period for an individual’s claims for a personal remedy under s. 24(1) of the Charter.

[54] Even reading the pleading generously, M.V.’s claim for breach of s. 9 of the Charter is limited to the facts related to her arrest. For the reasons set out above with respect to the tort of false arrest, I find that the Crown defendants have met their onus of demonstrating that there is no issue requiring a trial with respect to the limitation period defence to M.V.’s claim for Charter damages arising from an alleged breach of s. 9 of the Charter. I grant partial summary judgment in favour of the Crown defendants and dismiss M.V.’s claim for Charter damages arising from an alleged breach of s. 9 by the Crown defendants.

[55] Similarly, to the extent that M.V.’s claim for breach of s. 7 of the Charter is grounded in the facts related to her alleged false arrest, I grant partial summary judgment in favour of the Crown defendants and dismiss that claim. For the reasons set out above, the Crown defendants have met their onus of demonstrating that there is no issue requiring a trial with respect to the limitation period defence to M.V.’s claim for Charter damages arising from an alleged breach of s. 7 of the Charter because of her arrest.

E. The limitations defence to the negligent investigation and negligence claims

[56] M.V. has pleaded that the Crown defendants and the Thunder Bay police defendants are liable to her for the torts of negligent investigation and negligence.

[57] The Crown defendants and the Thunder Bay police defendants each seek summary judgment dismissing M.V.’s claim for negligent investigation and negligence. The moving defendants must prove that their limitations defence to M.V.’s claim for negligent investigation can be made out without the need for a trial. The defendants rely on the presumption in s. 5(2) that M.V. discovered her claim on the day the act or omission on which the claim is based took place, which they submit is July 20, 2017, the day that M.V. was arrested and charged.

[58] If the moving defendants are correct, and the limitation period on M.V.’s action for negligent investigation began to run on July 20, 2017, the day she was charged, then it expired on July 20, 2019, seven months before her acquittal, which is an essential element of the tort. The moving defendants submit that M.V. discovered her claim for negligent investigation before she could plead material facts necessary and sufficient to make out all the elements of that tort. For the reasons that follow, I do not accept the moving defendants’ submissions.

[59] I find that the presumptive limitation period for the tort of negligent investigation begins to run on the day the criminal proceedings terminate in favour of the accused, not on the day the accused was arrested and charged with the underlying offences. In my view, this conclusion is supported by the jurisprudence, the elements of the tort, the nature of the discoverability principle, prior jurisprudence, and fairness to plaintiffs.

(i) The Supreme Court of Canada decision in Hill remains good law

[60] In Hill, the Supreme Court of Canada held that the limitation period for negligent investigation begins to run when the proceeding terminates in favour of the plaintiff:

The limitation period for negligent investigation begins to run when the cause of action is complete. This requires proof of a duty of care, breach of the standard of care, compensable damage, and causation. A cause of action in negligence arises not when the negligent act is committed, but rather when the harmful consequences of the negligence result.

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

It follows that the limitation period in this case did not start to run until December 20, 1999 when Mr. Hill, after a new trial, was acquitted of all charges of robbery.

[61] The Supreme Court of Canada’s statement remains authoritative and binding upon me. The Crown defendants point out that Hill was decided under the now repealed Public Authorities Protection Act, not the Limitations Act. They submit that a limitations period under the PAPA started to run when “the cause of action arose” and that this language does not appear in the Limitations Act. The absence of this language, the Crown defendants submit, undermines the authority of Hill and supports their submission that the limitation period began to run when M.V. was arrested. I disagree.

[62] Since the legislature passed the Limitations Act, the Court of Appeal for Ontario has repeatedly held that the limitation period for a negligent investigation claim begins to run after the proceeding terminated in the plaintiff’s favour. Moreover, over 20 years after the Limitations Act came into force, the authors of the leading text on limitation periods wrote that “the presumptive date on which a limitation period begins to run in respect of claims for negligent investigation and malicious prosecution is the date on which charges were terminated in favour of a plaintiff.” I was not presented with any case that held that the replacement of the PAPA with the Limitations Act altered the date the limitation period starts to run on a negligent investigation action.

[63] The jurisprudence and academic commentary suggest that the introduction of the Limitations Act did not change the law and that the presumptive limitation period for a claim of negligent investigation continues to run from the date that the criminal proceedings terminate in favour of the plaintiff. This approach makes sense given the structure of the tort of negligent investigation and the principles of discoverability in the Limitations Act.

(ii) The elements of the tort of negligent investigation and the principles of discoverability

[64] The tort of negligent investigation has five elements. To succeed, the plaintiff must prove the following on a balance of probabilities:

a. the defendant owed a duty of care to the plaintiff when conducting the investigation;
b. the defendant did not meet the objective standard of care expected of a reasonable police officer in similar circumstances;
c. the defendant did not have reasonable and probable grounds to commence proceedings against the plaintiff;
d. the defendant commenced proceedings against the plaintiff; and
e. those proceedings terminated in favour of the plaintiff.

[65] In 2017, the Court of Appeal for Ontario confirmed that the termination of proceedings in favour of a plaintiff is a necessary, but not sufficient condition of an action for negligent investigation.

[66] Pursuant to s. 5(1)(a)(iv) of the Limitations Act, a claim is discovered on the day on which the person with the claim first knew that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. In 407 ETR, Justice Laskin observed that an actionable claim was a necessary but not sufficient feature of a situation where it would be legally appropriate to bring a claim:

A civil action only becomes appropriate when 407 ETR has reason to believe it will not otherwise be paid – in other words, when the usually effective licence plate denial process has run its course. Thus, the date when a vehicle permit expires for the failure to pay a toll debt is the date a civil action is an appropriate means to recover that debt. This date starts the two-year limitation period. For Mr. Day, this date is December 31, 2011. I say this for four reasons.

First, under s. 5(1)(a)(iv) of the Limitations Act, 2002, the date a proceeding would be an appropriate means to recover a loss must have “regard to the nature of the ... loss”. So, in fixing the appropriate date, it may not be enough that the loss exists and the claim is actionable. If the claim is the kind of claim that can be remedied by another and more effective method provided for in the statute, then a civil action will not be appropriate until that other method has been used. Here, a claim will not be appropriate until 407 ETR has used that other method, without success. [Emphasis added.]

[67] I read Laskin J.A.’s explanation as meaning that unless the claim is actionable, a proceeding is not a legally appropriate means to recover the loss. This is consistent with the Court of Appeal’s decision in Markel Insurance, where Sharpe J.A. explained that “appropriate” under s. 5(1)(a)(iv) of the Limitations Act must mean “legally appropriate” and must not permit a plaintiff to delay commencing a proceeding for more than two years from the date the claim is fully ripened. I recognize that this is not the old limitations regime, where limitation periods were tied to causes of action, and I acknowledge that we now focus on the discoverability of various elements of an “injury, loss or damage.” In my view, a claim for negligent investigation is not “fully ripened” or “actionable” unless and until the criminal proceedings are resolved in favour of the plaintiff. Until a plaintiff can plead a necessary element of the tort, it cannot be said that a proceeding would be a legally appropriate means to seek to remedy any loss or damage.

(iii) The case of Y.

[68] In support of their position, the moving defendants point to the case of Y. v. Ontario. On November 16, 2011, police arrested P.Y. (the father) and A.Y. (the mother). They were released on bail on November 25, 2011. Police laid 13 criminal charges against P.Y and A.Y relating to the alleged abuse of their four children. In April 2013, Barnes J. conducted a preliminary inquiry and held that the parents would stand trial on seven of the 13 charges.

[69] On June 9, 2014, a Crown Attorney withdrew the charges, in part because two of the children were reluctant to testify and see their parents in court.

[70] On June 8, 2016, P.Y. and A.Y. sued several defendants, including the investigating officers from the Toronto Police Service. Importantly, the statement of claim included a claim for negligent investigation. The police defendants moved for summary judgment on several grounds, including that the claims in the statement of claim were statute-barred by the two-year limitation period for civil actions in the Limitations Act.

[71] The motion judge held that the claim for negligent investigation was discoverable no later than April 2013, when the last charge against the plaintiffs was added after the preliminary inquiry:

In [Nicely v. Basse et al.], the Court dismissed the action against the police as statute barred, and specifically rejected the argument that in claims of false arrest and false imprisonment, the injury and damage to the plaintiff from the arrest and imprisonment continued until the conclusion of the criminal process.

Similarly, in this case, the fact that the Crown withdrew the charges in June, 2014 does not shed light on whether the Y.s were falsely arrested or falsely imprisoned in 2011. The Crown did not indicate that the charges were being withdrawn because there was not evidence to support the prosecution, or because of any problems with the evidence gathered by the police. Rather, the position of the Crown is that the charges were withdrawn so as not to put the children through the potentially harmful experience of testifying and because of potential inconsistencies in the testimony of the children.

Therefore, in these circumstances, the point at which the claims for false arrest and false imprisonment by the Y.s were discoverable within the meaning of the Limitations Act was at the time of their arrest and imprisonment by the police in November, 2011, and for negligence and/or negligent investigation, the latest date of discoverability would be when the last charge against them was added, following the preliminary inquiry, in April, 2013.

As the Y.’s claim was not issued until June, 2016, I find that the police…defendants have established that claims against them are statute barred under the two-year limitation period in the Limitations Act.

[72] The Court of Appeal affirmed this decision as follows:

The motion judge determined that the last day on which a discoverable claim arose against the police defendants for false arrest and imprisonment was at the time of their arrest and imprisonment in November 2011. For negligence and negligent investigation, the latest date for discoverability was when the last charge was added in April 2013. The same limitation applies to the Charter issues. The claims were not started until June 2016, which was too late under the Limitations Act two-year limitation period. The motion judge made no error in this regard.

[73] The plaintiffs in Y. were self-represented and may not have highlighted for the court that the torts of false arrest, false imprisonment, and negligent investigation have different elements. The motion judge’s conclusion that the limitation period for negligent investigation began to run prior to the termination of the charges appears to be based on the authority of Nicely. I do not, however, read Nicely as supporting that proposition.

[74] The court in Nicely cited with approval earlier binding authority holding that in the case of malicious prosecution, the limitation period did not begin to run until the charges were terminated in favour of the accused. The Nicely court contrasted that treatment with the treatment given to the torts of assault, battery, false arrest, and false imprisonment where the cause of actions arose and the limitation periods began to run before the charges were determined. Nicely pre-dated the Supreme Court of Canada’s recognition of the tort of negligent investigation, so it does not address that tort. However, the torts of malicious prosecution and negligent investigation both require that the criminal proceeding terminate in favour of the plaintiff. In my view, the holding in Nicely supports the conclusion that the limitation period for both malicious prosecution and negligent investigation would begin to run only after the proceeding terminated in favour of the accused.

[75] It is difficult to reconcile the decisions of the Court of Appeal in Winmill, McHale, and West with the Court of Appeal’s decision in Y. I choose to follow Winmill, McHale, and West, as I think those decisions are consistent with the Supreme Court’s decision in Hill and sit more comfortably within the text of the Limitations Act, the earlier jurisprudence, and the principles of discoverability.

(iv) Conclusion and application to the negligent investigation claim

[76] For the reasons set out above, I find that the limitation period for M.V.’s negligent investigation claim began to run on February 20, 2020, the day she was acquitted. That day was the first day M.V. knew, having regard to the nature of her loss or damages, that a proceeding would be the legally appropriate means to seek to remedy it.

[77] M.V. did not delay her action to evaluate whether it was in her interests to commence a proceeding, or to wait for the outcome of a related discipline process to see if that would assist her claim, or if she could locate additional evidence to prove her claim. M.V. waited only until she could plead material facts to make out an essential element of the tort.

[78] The limitation period began to run on February 20, 2020, just before the COVID-19 pandemic shut down much of the province. In response, Ontario enacted the Limitation Periods regulation, which had the effect of extending any limitation periods that ran between March 16, 2020, and September 1, 2020, by 183 days. Therefore, this regulation extended the limitation period for M.V.’s claim for negligent investigation until August 21, 2022. M.V. issued her statement of claim on April 21, 2022, before the extended limitation period expired.

[79] The Crown defendants and the Thunder Bay police defendants have not discharged their burden to demonstrate that their limitations defences to M.V.’s claim for negligent investigation can be made out without the need for a trial. I dismiss the motions for partial summary judgment brought by the Crown defendants and the Thunder Bay police defendants to dismiss M.V.’s claim for negligent investigation.

(v) Application to the negligence claim

[80] M.V. also pleaded a claim in negligence against Det. Cst. Carlucci and the OPP defendants. She alleges that Det. Cst. Carlucci’s negligent conduct, including mishandling relevant and important evidence, compromised the OPP’s investigation of M.V.’s alleged criminal conduct.

[81] M.V.’s negligence claim appears to be inextricably linked to her claim of negligent investigation, which will be proceeding to trial. I find that the Crown defendants and the Thunder Bay defendants have not discharged their burden to demonstrate that their limitations defences to M.V.’s claim for negligence can be made out without the need for a trial.

[82] I dismiss the motions for partial summary judgment brought by the Crown defendants and the Thunder Bay police defendants to dismiss M.V.’s claim for negligence.

5. The defendants’ reasonable and probable grounds defence

[83] The Crown defendants and the Thunder Bay police defendants also seek summary judgment dismissing all of M.V.’s claims because, they submit, M.V. cannot prove the absence of reasonable and probable grounds for arresting and charging her. The Crown defendants put it this way in their factum:

65. On summary judgment, the onus rests with each plaintiff to establish an absence of reasonable and probable grounds as a genuine issue for trial. Failing that, the actions must be dismissed.

66. To discharge this onus, the Plaintiffs must satisfy the Court that the defendant officers had before them facts pointing “so overwhelming to the Plaintiffs’ innocence that no reasonable person could have believed in the Plaintiffs’ guilt.”

67. There is no evidence of a fundamental flaw in the preliminary inquiry in the Criminal Proceedings. The Plaintiffs were committed for trial on all charges. This committal is evidence of RPG.

68. The Plaintiffs cannot succeed at trial in their false arrest, negligent investigation and associated s. 7 and 9 Charter claims against the Crown Defendants.

[84] For the reasons that follow, I do not accept the submissions of the moving defendants.

A. The moving defendants must prove that there is no genuine issue requiring a trial

[85] I do not accept the moving defendants’ submission that on this motion “the onus rests with each plaintiff to establish an absence of reasonable and probable grounds as a genuine issue for trial.”

[86] In this case, M.V. has pleaded that she was arrested and charged without reasonable and probable grounds and on the basis of a negligent investigation. At trial, she will bear the burden of proof on each element of her claim.

[87] Regardless of M.V.’s burden at trial, these motions for summary judgment have been brought by the defendants and not by M.V. The moving defendants, therefore, bear the onus of establishing that there is no genuine issue requiring a trial with respect to this issue. If the moving defendants do not meet their burden, their motions must be dismissed.

[88] The moving defendants have moved for summary judgment to dismiss M.V.’s claim, asserting that they had reasonable and probable grounds for the police to arrest and charge her. The moving defendants have the burden to demonstrate that there is no genuine issue requiring a trial regarding this defence. As I will explain, they did not discharge their burden.

B. The moving defendants have not proved there is no genuine issue requiring a trial

[89] For a police officer’s decision to arrest and charge an individual to be lawful, that officer must subjectively believe they have grounds to do so and that subjective belief must be objectively reasonable.

[90] As noted above, the moving defendants did not file affidavits from any of the police officer defendants. There is no first-hand evidence before me that any of the individual officer defendants subjectively believed they had proper grounds to arrest and charge M.V. The moving defendants rely instead on the criminal information and the transcripts of the preliminary inquiry. As I will explain, neither the information nor the transcripts are sufficient for the moving defendants to demonstrate that there is no genuine issue requiring a trial. I will first address the information and then the transcripts.

(i) The information

[91] On July 21, 2017, OPP Detective Inspector Martin Graham swore an information charging M.V. with a single count of extortion contrary to s. 346(1.1)(b) of the Criminal Code. The information was only in the name of Det. Insp. Graham. Even if the information is admissible for all purposes and for the truth of its contents, it is no evidence that Det. Supt. Truax, Sgt. Major Milne, or Det. Cst. Carlucci had a subjective belief that there were reasonable grounds to charge M.V. The Crown defendants submit that the OPP officers worked as a team and the views of Det. Insp. Graham can be attributed to the other members of the team. However, there is no affidavit evidence that would permit me to make that finding.

[92] I will assume for the sake of argument that the information may be proved in evidence under the principles related to the admission of public documents or judicial records. This would facilitate proof of the court documents and the record of proceeding, but that does not render the hearsay content of that document or record admissible for the truth of its contents if the document is not otherwise admissible for the truth of its contents. The information is admissible to prove that Det. Insp. Graham swore the information that charged M.V., but it is not admissible to prove the truth of its contents, that he had a subjective belief on reasonable grounds that M.V. committed the offence of extortion.

[93] Even if I found that the information was admissible as evidence that Det. Insp. Graham had a subjective belief in the reasonable grounds to charge M.V., I would not find this to be an appropriate way to put this evidence before the court. On a motion for summary judgment, the court may draw an adverse inference from the failure of a party to provide the first-hand evidence of any person having personal knowledge of the contested facts. Given the nature of M.V.’s allegations, simply reiterating that Det. Insp. Graham swore the information does not satisfy me that there is no genuine issue requiring a trial regarding whether he had a subjective belief that he had reasonable and probable grounds, much less proving the information he relied on to form the basis of his belief. The Crown defendants were required to put their best foot forward. They did not do so.

(ii) The transcripts of evidence from the preliminary inquiry

[94] I will now consider the transcript from the preliminary inquiry. Section 5 of Ontario’s Evidence Act provides that transcripts taken in accordance with its provisions are admissible in evidence provided that they are otherwise admissible by law. Section 5 does not make the transcripts admissible for the truth of their contents.

[95] I will assume for the sake of argument that the transcripts can be proved for the purposes of authenticity either as a public document or record of judicial proceedings or through the common law mechanism of exemplification. However, on that basis, the transcript is only admissible to prove what was said. It is not admissible to prove the truth of what was said. The content of the transcripts remains hearsay evidence: a factual assertion made elsewhere than in this proceeding, that is adduced to prove the facts asserted. Testimony in a different proceeding, even where it was subject to cross-examination, remains an out-of-court statement in this proceeding. The content of the transcripts is not relevant in this proceeding for any reason other than an attempt to prove the truth of the statements made at the preliminary inquiry.

[96] Hearsay evidence is presumptively inadmissible. If the transcripts are to be admitted for the truth of what is recorded rather than the fact that those statements were made, the moving defendants need to demonstrate that the transcripts are admissible through one of the exceptions to the hearsay rule.

[97] None of the traditional exceptions to the hearsay rule apply in these circumstances. The moving defendants cannot establish that the transcripts meet the twin criteria of necessity and reliability. The moving defendants tendered no evidence to explain why the individual officers could not provide affidavits on the motion for summary judgment. Therefore, they have not demonstrated that the transcripts are necessary, and they are inadmissible under the principled approach to hearsay.

[98] Finally, as noted above, on a motion for summary judgment, the court may draw an adverse inference from the failure of a party to provide the first-hand evidence of any person having personal knowledge of the contested facts.

[99] The moving defendants are required to put their best foot forward on a motion for summary judgment. They did not do so. I find that the moving defendants have not met their burden to prove that there is no genuine issue requiring a trial regarding the presence or absence of reasonable and probable grounds to have arrested and charged M.V. I dismiss this portion of their motion for summary judgment.

6. Conclusion and costs

[100] For the reasons set out above, I make the following order:

a. I grant partial summary judgment in favour of the Crown defendants and dismiss M.V.’s claims for false arrest, breach of s. 9 of the Charter, and breach of s. 7 of the Charter because the Crown defendants’ limitations defence does not raise a genuine issue requiring a trial.

b. I dismiss the Crown defendants’ motion for summary judgment in respect of M.V.’s claims for negligent investigation and negligence.

c. I dismiss the Thunder Bay police defendants’ motion for summary judgment in respect of M.V.’s claims of negligent investigation and negligence.

d. I dismiss the motion by the Crown defendants and the Thunder Bay police defendants for summary judgment dismissing M.V.’s action because of the defendants’ reasonable and probable grounds to arrest and charge her.

[101] If the parties are not able to resolve the costs of these motions for summary judgment, they may contact my judicial assistant and I will determine a process for the determination of that issue.

Robert Centa
Date: February 10, 2025