Court File and Parties
Court File No.: CV-20-00647807-0000
Date: 2025-02-10
Ontario Superior Court of Justice
Between:
Keith Hobbs and Marisa Hobbs, Plaintiffs
-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, TBPS Detective Jason Anderson, TBPS Constable Jae Elvish, TBPS Constable Jeff Elvish, TBPS Detective Staff Sergeant Sue Kaucharik, The Royal Canadian Mounted Police, 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 plaintiffs
- Sarah Pottle and Kristina Yeretsian, for the Ontario defendants
- Eugene Prpic, for the Thunder Bay police defendants
Heard: December 18 and 19, 2024
Endorsement
1. Overview
1This endorsement should be read alongside the endorsement in the companion case, M.V. v. Zaitzeff, 2025 ONSC 905. The actions are related, as are the defendants’ motions for partial summary judgment.
2On July 20, 2017, officers with the Ontario Provincial Police arrested Keith Hobbs, Marisa Hobbs, and M.V. On July 21, 2017, OPP Detective Inspector Martin Graham swore an information charging Mr. Hobbs and Ms. Hobbs with one count of extortion contrary to s. 346(1.1)(b) of the Criminal Code and one count of obstruction of justice contrary to s. 139(2) of the Criminal Code. M.V. was charged with one count of extortion.
3On August 30, 2018, Bishop J. committed Mr. Hobbs, Ms. Hobbs, and M.V. to stand trial on all charges. Subsequently, the Crown dropped the obstruction of justice charges against Mr. Hobbs and Ms. Hobbs. Justice Dawson, sitting without a jury, tried the remaining charges in the Superior Court of Justice between November 18 and December 12, 2019. On February 20, 2020, Dawson J. acquitted the three accused on the charge of extortion. Justice Dawson delivered reasons for decision spanning 155 pages.
4In 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 counsel for the Crown argued, an “extortion agreement,” and whether the Crown had proved beyond a reasonable doubt that Mr. Hobbs, Ms. Hobbs, and M.V. 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.
5On September 17, 2020, Mr. Hobbs and Ms. Hobbs issued a notice of action, and on October 15, 2020, they issued a single statement of claim against 16 defendants that can be organized into four groups:
a. the individual defendants: Mr. 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: Thunder Bay Police Services Board, TBPS Det. Cst. Chris Carlucci, Det. Jason Anderson, Cst. Jae Elvish, Cst. Jeff Elvish, and Det. Sgt. Sue Kaucharik;
d. the Canada defendants: The Attorney General of Canada, RCMP Constable Mike Rozic, and RCMP Constable Darryl Waruk.
6This endorsement relates to motions for summary judgment brought by the Crown defendants and the Thunder Bay police defendants (collectively, the “moving defendants”). The plaintiffs each advanced slightly different claims in the statement of claim. Mr. Hobbs seeks $10.975 million in damages. Ms. Hobbs seeks $1.525 million in damages.
7With respect to the Crown defendants:
a. the plaintiffs plead that the OPP defendants arrested them without lawful authority and in the absence of reasonable and probable grounds. They plead that the Crown defendants thereby committed the tort of false arrest or false imprisonment and violated their rights under ss. 7 and 9 of the Charter. They each seek tort and Charter damages.
b. the plaintiffs plead that the Crown defendants are liable for the tort of negligent investigation and negligence.
c. Ms. Hobbs pleads that the Crown defendants are liable to her for Charter damages arising from a breach of her s. 15 rights; and
d. Ms. Hobbs pleads that the Crown defendants are liable to her in damages for breaching s. 1 of the Ontario Human Rights Code.
8With respect to the Thunder Bay police defendants:
a. the plaintiffs plead that the Thunder Bay police defendants committed the torts of:
i. negligent investigation and negligence; and
ii. intentional infliction of mental suffering;
b. Ms. Hobbs pleads that Det. Anderson (only) committed the tort of defamation.
c. Ms. Hobbs pleads that the Thunder Bay Police Services Board, Det. Jason Anderson, Cst. Jae Elvish, and Cst. Jeff Elvish (only) are liable to her for:
i. Charter damages for breaching her s. 15 rights; and
ii. damages for breaching s. 1 of the Ontario Human Rights Code.
9The moving defendants move for summary judgment dismissing all claims against them based on a limitations defence. The moving defendants submit that they have established that there is no issue requiring a trial with respect to the limitation period defence because all applicable limitation periods began to run on the day the police arrested Mr. and Ms. Hobbs, July 20, 2017, and they commenced their action by way of a notice of action issued on September 17, 2020, which is outside the two-year limitation period established by the Limitations Act.
10In the alternative, the moving 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 Mr. and Ms. Hobbs because they were committed for trial and there is no evidence of a fundamental flaw in the preliminary inquiry process.
11As I will explain below, I agree with some, but not all, of the moving defendants’ submissions.
12First, I grant the Crown defendants’ motion to dismiss the plaintiffs’ claims for false arrest, for breach of s. 9 of the Charter, and for breach of s. 7 of the Charter arising out of their arrest. The law is clear that a claim of false arrest is presumed to be discovered on the day of the arrest. The plaintiffs did not rebut this statutory presumption and I find that they commenced their claim for this relief more than two years after they discovered the claim.
13Second, I dismiss the moving defendants’ motion for summary judgment dismissing the plaintiffs’ claims for 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 the plaintiffs did not discover their claims for negligent investigation until they were acquitted by Dawson J. on February 20, 2020. The plaintiffs commenced their action on September 17, 2020, well within the two-year limitation period. For this same reason, I dismiss the Thunder Bay police defendants’ motion to dismiss the plaintiffs’ claims for intentional infliction of mental distress and Ms. Hobbs’ claim for negligence, which are interrelated with the negligent investigation claim.
14Third, Det. Anderson has not satisfied me that there is no genuine issue requiring a trial with respect to his limitations defence to the defamation allegation.
15Fourth, I dismiss the motion to dismiss Ms. Hobbs’ claim for damages for breach of s. 15 of the Charter and s. 1 of the Ontario Human Rights Code. I am not satisfied that there is no genuine issue requiring a trial regarding when Ms. Hobbs discovered those claims.
16Finally, I dismiss the moving defendants’ motion to dismiss the action against them based on the presence of reasonable and probable grounds. There is no evidence before me that the officers subjectively believed that they had reasonable and probable grounds to arrest or charge the plaintiffs. The moving defendants have not demonstrated that there is no genuine issue requiring a trial regarding the presence of reasonable and probable grounds.
2. Principles Underpinning Motions for Summary Judgment
17The principles applicable to these motions for summary judgment are the same as those contained in my reasons for decision in the companion case, M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 15 to 18.
18Mr. and Ms. Hobbs each provided an identical six-paragraph affidavit that explained why they each consented to being committed to stand trial on the extortion charge. The three key paragraphs state:
With respect to the extortion charge, my understanding at the time was that the judge’s decision at the preliminary inquiry could not be informed by whether or not he found the Crown’s witnesses to be credible or not.
As I allege in my claim, it is my belief that Sandy Zaitzeff, Craig Loverin, and Heli Kijanen did not tell the truth when they testified at the preliminary inquiry, just as they did not tell the truth to the investigating officers. However, the issue of their credibility was not relevant at the preliminary inquiry.
I understood that Sandy Zaitzeff’s testimony at the preliminary inquiry, if believed, was enough to meet the committal test, even though I knew what he said was not true and that Sandy Zaitzeff was not credible. For this reason alone, I conceded committal to stand trial.
19Mr. and Ms. Hobbs also filed an affidavit from a law clerk that attached a curated set of documents, most drawn from the Crown brief.
20Neither the Crown defendants nor the Thunder Bay police defendants delivered affidavit evidence in support of their motions for summary judgment.
21None of the parties conducted cross-examinations. The record before the court on these motions for summary judgment was atypical, and as I will explain below, not entirely satisfactory.
22I 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) of the Rules of Civil Procedure. 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
23The process leading to these motions for summary judgment is the same as the process described in my reasons for decision in the companion case, M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 22 to 33.
24This proceeding is large and sprawling. The current version of the statement of claim spans 38 pages and 178 paragraphs. 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.
25For the reasons set out in my reasons for decision in the companion case, M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 22 to 33, I find it appropriate to grant partial summary judgment.
4. The Moving Defendants’ Limitations Defences
A. The Limitations Act and the Burden on the Defendants
26I rely on my description of the provisions of the Limitations Act, 2002, the burden of proof on a defendant seeking summary judgment on a limitations defence, and the interaction of that burden and the statutory presumption as set out in my reasons for decision in the companion case, M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 34 to 37.
27In this case, the plaintiffs have pleaded several tort claims as well as claims for Charter and human rights damages. Because it is possible that the discovery date may be different for different claims, I will consider each tort and Charter claim separately.
B. The Limitations Defence to the False Arrest Claim
28I rely on my description of the elements of the tort of false arrest, the moving defendants’ burden of proof, and my consideration of the Winmill decision contained in M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 38 to 51.
29The OPP officers arrested the plaintiffs on July 20, 2017. The act underpinning the plaintiffs’ false arrest claim took place on that date. Because the police arrested the plaintiffs more than two years before they commenced their action, they must rebut the presumption contained in s. 5(2) of the Limitations Act.
30Although the plaintiffs each filed an affidavit on this motion, they did not include any evidence capable of rebutting the statutory presumption that they discovered their false arrest claim on a later date. There is no first-hand evidence from either plaintiff to rebut the statutory presumption that they discovered their false arrest claims on July 20, 2017. Evidence from a plaintiff regarding when and how the plaintiff learned of the claim and why the plaintiff 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 enumerated 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.
31Mr. and Ms. Hobbs did not rebut the statutory presumption contained in s. 5(2) of the Limitations Act. For the reasons set out in M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 38 to 51, I find as a fact that they knew of the matters enumerated in s. 5(1)(a) of the Limitations Act on July 20, 2017, at the time of their arrest, and they did not commence their claim within two years of that date.
32The Crown defendants have proved that there is no issue requiring a trial with respect to the limitation defence to the plaintiffs’ false arrest claims. I grant partial summary judgment and dismiss the claim for false arrest against the Crown defendants.
C. The Limitations Defence to the Alleged Breaches of ss. 7 and 9 of the Charter
33For the reasons given in the companion case, M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 52 to 55, 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 the plaintiffs’ claims 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 the claim for Charter damages arising from an alleged breach of s. 9 by the Crown defendants.
34To the extent that the plaintiffs’ claims for breach of s. 7 of the Charter are grounded in the facts related to their alleged false arrest, I grant partial summary judgment in favour of the Crown defendants and dismiss that claim. The Crown defendants have proved that there is no issue requiring a trial with respect to the limitation period defence to the plaintiffs’ claims for Charter damages arising from an alleged breach of s. 7 of the Charter because of their arrests.
D. The Limitations Defence to the Negligent Investigation and Negligence Claims
35For the reasons set out in the companion case, M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 56 to 76, I find that the presumptive limitation period for the tort of negligent investigation began to run on February 20, 2020, which was the date the trial judge acquitted Mr. and Ms. Hobbs. That day was the first day the plaintiffs knew, having regard to the nature of their loss or damages, that a proceeding would be the legally appropriate means to seek to remedy it.
36Mr. and Ms. Hobbs commenced their action on September 17, 2020, well within the two-year time limit contained in the Limitations Act.
37The Crown defendants and the Thunder Bay police defendants have not discharged their burden to demonstrate that their limitations defences to the plaintiffs’ claims 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 the plaintiffs’ claims for negligent investigation.
38In addition, the Thunder Bay police defendants submit that the plaintiffs’ negligent investigation and negligence claims against them should be dismissed because the Thunder Bay police defendants were not involved in the investigation that led to the OPP arresting and charging Mr. and Ms. Hobbs:
- The claims made against the TBPS defendants are framed in negligent investigation, negligence, intentional infliction of mental suffering and breach of Marisa Hobbs’ s. 15 Charter and S.1 ON Human Rights Code rights. The TBPS defendants did not investigate the plaintiffs with respect to the criminal offences with which they were ultimately charged. Said investigation having been conducted by the OPP.
39I cannot accept this submission because the Thunder Bay police defendants did not file affidavit evidence from any defendant officers regarding their role in the investigation. If the Thunder Bay police defendants were not involved in the investigation, that might well justify granting partial summary judgment in favour of them. However, in the absence of any first-hand evidence regarding their involvement, they have not met their burden to prove that there is no genuine issue requiring a trial. For the reasons provided at M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 94 to 99, the evidence from the preliminary inquiry is not admissible on this motion for the truth of its contents and is not sufficient to discharge the burden on a party moving for summary judgment.
40The plaintiffs’ claims that many of the individual officers were negligent are inextricably linked with the pleading of negligent investigation, which will be proceeding to trial. I find that the Crown defendants and the Thunder Bay police defendants have not discharged their burden to demonstrate that their limitations defences to the plaintiffs’ claims for negligence can be made out without the need for a trial.
41I dismiss the motions for partial summary judgment brought by the Crown defendants and the Thunder Bay police defendants to dismiss the plaintiffs’ claims for negligence.
E. The Limitations Defence to the Claims for Discrimination
42Ms. Hobbs pleads that the Crown defendants and the Thunder Bay Police Services Board, Det. Jason Anderson, Cst. Jae Elvish, and Cst. Jeff Elvish are liable to her for damages under s. 24(1) of the Charter for breaching her s. 15 Charter rights and for breaching s. 1 of the Ontario Human Rights Code.
43Ms. Hobbs pleads that the discriminatory conduct formed part of the investigation that led to her arrest and prosecution:
- In the course of the police investigation OPP officers ignored that the context surrounding the Agreement was one of domestic and sexual violence. Instead, they placed undue emphasis on sexist tropes and stereotypes and they viewed [M.V.] and [Ms. Hobbs] as ‘gold diggers’ and calculating and manipulative women. Their sexist lens on the investigation prevented them from seeing the truth, which was that Zaitzeff was an abusive man who sought to control women by wielding his wealth and power, and that he had extorted or attempted to extort numerous women who were victims of his deviant and criminal behavior, including [M.V.].
150A. In the course of being interviewed by OPP investigators, Cst. Anderson, Cst. Jae Elvish, Cst. Jeff Elvish, and Cst. Waruk made false, prejudicial, and discriminatory statements about [Ms. Hobbs]. These statements mischaracterized [Ms. Hobbs] as a woman motivated only by money, using displays of emotion while making an allegedly false complaint of sexual assault for personal gain. Their statements demonstrated their sexist attitude that a female victim of sexual assault is not worthy of belief when there were no eyewitnesses to the assault.
- The defendant officers were sexist and discriminated against [Ms. Hobbs] on the basis of gender or sex, contrary to s. 15 of the Charter and s.1 of the Human Rights Code. [Emphasis in original.]
44The moving defendants seek summary judgment to dismiss these claims on the basis of a limitations defence. The moving defendants bear the burden of demonstrating that their limitations defence to Ms. Hobbs’ claims for Charter damages for breach of s. 15 and damages for breach of the Human Rights Code can be made out without the need for a trial. The moving defendants rely on the presumption in s. 5(2) that Ms. Hobbs discovered her claim on the day the act or omission on which the claim is based took place. They submit that the precise date of the discriminatory conduct is irrelevant because it must have all taken place before the end of the police investigation on November 27, 2017. I do not accept this submission.
45The Crown defendants submit that “the evidence on this motion establishes the OPP investigation concluded by November 27, 2017.” The Crown defendants are referring to a transcript from the preliminary inquiry where Det. Insp. Graham gave the following evidence:
Q. Right. And as I understand it, your notebook ends in November, is that right? November 27th, 2017?
A. Yes.
Q. Did you have any involvement in this investigation after November 27th, 2017?
A. Um, in relation to the organization of, to prepare for the prelim.
Q. But no investigative steps?
A. No
46The Crown defendants seek to introduce this evidence for the truth of its contents. The evidence of Det. Insp. Graham is only relevant if I accept the truth of what he said at the preliminary inquiry. For the reasons given in M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 94 to 99, the transcript of the preliminary inquiry is not admissible for the truth of its contents. If the Crown defendants wanted to prove the date by which the discriminatory conduct took place, they needed to lead first-hand evidence on that point. I do not accept that the evidence at the preliminary inquiry is admissible to establish the last date by which the impugned acts or omissions took place.
47The Thunder Bay police defendants submit that Ms. Hobbs should be deemed to have discovered her discrimination claim on the day of her arrest. They make the following submission:
The plaintiff, [Ms. Hobbs], further alleges that the TBPS defendants, Det. Anderson, Cst. Jae Elvish and Cst Jeff Elvish made false and discriminatory statements to OPP investigators about her which violated her rights under s. 15 of the Charter and S. 1 of the ON Human Rights Code. Again, these alleged statements would have been made prior to [Ms. Hobbs’] arrest on July 20, 2017. The s. 15 Charter claim made by [Ms. Hobbs] was not brought within 2 years of her arrest.
The plaintiffs have offered no evidence in their responding materials to suggest when they discovered their claims against the TBPS defendants in order to rebut the presumption under s. 5(2) of the Limitations Act. The plaintiffs were arrested on July 20, 2017 and for the purposes of the Limitations Act are presumed to have discovered their claims against the TBPS defendants at that time. Any claim against the TBPS defendants ought to have been issued on or before July 20, 2019.
48I do not accept this submission. The fact that Ms. Hobbs was arrested on July 20, 2017, sheds no light on when she discovered her claim that the Thunder Bay police defendants breached her rights under s. 15 of the Charter or under the Human Rights Code during the OPP investigation that led to her arrest. When a person is arrested without reason, they have all the information they need to have discovered their claim for false arrest against the police officers who carried out the arrest. Instead, Ms. Hobbs alleges that police officers discriminated against her during the investigation that led to her being charged. It is difficult to understand how, on the day of her arrest, Ms. Hobbs would have known the content of the police interviews or how the OPP defendants conducted themselves during the investigation. The moving defendants filed no evidence to support such an implausible conclusion. I do not accept that Ms. Hobbs should be deemed to have discovered her claims for breach of s. 15 of the Charter or s. 1 of the Ontario Human Rights Code on the day she was arrested.
49The moving defendants wish to rely on the presumption contained in s. 5(2) of the Limitations Act that Ms. Hobbs is deemed to have discovered the necessary elements of her claim on the “day the act or omission on which the claim is based took place.” However, I find that the moving defendants have not proved the date on which the act or omission took place. In many cases, for example a motor vehicle collision, establishing the date the act or omission took place will be easy. In this case, the date of the impugned acts or omissions is not easily identified. Given the record the moving defendants placed before me, I find that the moving defendants have not met their burden to prove the date of the act or omission to trigger the presumption arising from s. 5(2) of the Limitations Act.
50This evidentiary gap is fatal to the moving parties’ limitations defence to whether Ms. Hobbs’ claims for breach of the Human Rights Code are subject to the one-year limitation period contained in s. 34(1) of the Human Rights Code or the two-year limitation period contained in the Limitations Act, 2002. At trial, the moving defendants may well be able to prove when the alleged discriminatory conduct took place and when Ms. Hobbs first learned of that conduct (or a reasonable person would have learned of the conduct). Depending on the facts established at trial, the moving defendants may well be able to make out a limitations defence. However, the moving defendants have not met their burden on this motion for summary judgment.
51I find that the moving defendants have not discharged their burden to demonstrate that their limitations defences to Ms. Hobbs’ claims for damages for breach of s. 15 of the Charter or damages for breach of the Human Rights Code can be made out without the need for a trial. I dismiss this portion of their motion for partial summary judgment.
F. The Limitations Defence to the Intentional Infliction of Mental Distress
52The plaintiffs each seek damages for the intentional infliction of mental distress in their claim against the Thunder Bay Police Services Board, Det. Cst. Chris Carlucci, Det. Jason Anderson, Cst. Jae Elvish, Cst. Jeff Elvish, and Det. Staff Sgt. Sue Kaucharik. The statement of claim reads as follows:
The conduct of all defendants except the Ontario defendants was flagrant and outrageous, calculated to harm the plaintiffs, and caused the plaintiffs to suffer psychological harm.
The defendants (except the Ontario defendants) intentionally inflicted mental suffering against the plaintiffs when they subjected the plaintiffs to a malicious prosecution, false arrest, negligent investigation, defamation, and breaches of the Charter. [Emphasis in original.]
53The Thunder Bay police defendants submit that this claim is statute-barred, but they did not offer any additional submissions to explain why. The plaintiffs did not address this tort claim in their factum at all.
54Given that the plaintiffs pleaded that the Thunder Bay police defendants committed the tort of intentional infliction of mental distress through the same acts that comprise their tort claim for negligent investigation, and because the negligent investigation tort will proceed to trial, it is also appropriate to allow the claim for intentional infliction of mental distress to proceed to trial.
55I find that the Thunder Bay police defendants have not discharged their burden to demonstrate that their limitations defences to the plaintiffs’ tort claims for intentional infliction of mental distress can be made out without the need for a trial. I dismiss this portion of their motion for partial summary judgment.
G. The Limitations Defence to the Defamation Claim
56Ms. Hobbs pleads that the defendant Det. Anderson made defamatory statements about Ms. Hobbs to other TBPS officers and that he made false and biased statements about Ms. Hobbs during his interviews with the OPP. Ms. Hobbs pleads that she learned of these statements in December 2019.
57The Thunder Bay police defendants did not provide any submissions that specifically addressed the defamation claim. Implicit in their request that the action be dismissed in its entirety is a request from Det. Anderson intended to seek summary judgment dismissing the defamation claim based on a limitations defence. I dismiss his motion.
58Ms. Hobbs pleaded that she only learned that Det. Anderson had made the defamatory statement in December 2019. If this is true, then she commenced her defamation action within the two-year limitation period.
59Neither Det. Anderson nor any of the other Thunder Bay police defendants provided any evidence to prove the date of the alleged defamatory statement or to suggest that Ms. Hobbs discovered this claim on any other day. In these circumstances, I would not grant Det. Anderson’s motion for partial summary judgment. He has not satisfied me that there are no genuine issues requiring a trial regarding his limitations defence to Ms. Hobbs’ defamation claim.
5. The Moving Defendants’ Reasonable and Probable Grounds Defence
60The Crown defendants and the Thunder Bay police defendants also seek summary judgment dismissing all claims against them on the basis that the plaintiffs cannot prove the absence of reasonable and probable grounds for arresting and charging them.
61None of the Crown defendants or the Thunder Bay police defendants filed affidavits stating that they had a subjective belief that there were reasonable and probable grounds to arrest or charge either of the plaintiffs. For the reasons set out in M.V. v. Zaitzeff, 2025 ONSC 905, at paras. 83 to 99, 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 Mr. and Ms. Hobbs.
62I dismiss this portion of their motion for summary judgment.
6. Conclusion and Costs
63For the reasons set out above, I make the following order:
a. I grant partial summary judgment in favour of the Crown defendants and dismiss the plaintiffs’ 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 moving defendants’ motions for partial summary judgment in respect of the plaintiffs’ claims for negligent investigation and negligence.
c. I dismiss the moving defendants’ motions for partial summary judgment in respect of Ms. Hobbs’ claim for breach of her s. 15 Charter rights and her rights under the Ontario Human Rights Code.
d. I dismiss the Thunder Bay police defendants’ motion for partial summary judgment in respect of the claims for the intentional infliction of mental distress.
e. I dismiss Det. Anderson’s motion for partial summary judgment in respect of Ms. Hobbs’ claim for defamation.
f. I dismiss the moving defendants’ motion for summary judgment dismissing the entire action because of the defendants’ reasonable and probable grounds to arrest and charge them.
64If 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
Notes
[1] Criminal Code, RSC 1985, c C-46
[2] Limitations Act, 2002, SO 2002, c 24, Sch B
[3] The Crown defendants did not argue that they did not receive proper notice of this action.
[4] Rules of Civil Procedure, RRO 1990, Reg 194
[5] Winmill v. Woodstock Police Services Board, 2017 ONCA 962, para 17; West v. Ontario, 2015 ONCA 147, paras 2-3
[6] Winmill (ONCA), at para. 17; West, at paras. 2-3
[7] Land v. Dryden (Police Services Board), 2023 ONCA 207, para 28
[8] Rowe v. 1225064 Ontario Limited, 2022 ONSC 5036, para 21; Brant Securities Limited v. Goss, 2024 ONSC 915, para 84, aff’d 2025 ONCA 8
[9] Land, at para. 16