Limitation period for Excessive Force Claim runs from dismissal of Charges

On 7 December 2017 the Ontario Court of Appeal handed down a decision in the matter of Winmill v. Woodstock (Police Services Board) that appears to extend the time period in which an alleged victim of police misconduct can bring a claim for that misconduct.

In Ontario the Limitations Act, 2002 provides for a standard 2-year limitation period for most claims, running from the time of the incident or from when the claim was discoverable.

On 1 June 2014 the plaintiff/appellant was involved in an altercation at his home; his wife called the police who attended and allegedly used excessive force in his arrest. He was subsequently charged with assaulting one of the officers and with resisting arrest, but not for any offence relating to the underlying altercation.

The appellant was acquitted of these charges on 17 February 2016 – more than two years later – by justice Graham of the Ontario Court of Justice. In June 2016 he issued a Notice of Action and then a Statement of Claim seeking damages for negligent investigation and assault. The defendants brought a motion to strike the claim relating to assault or battery on the basis of the expiry of the limitation period.

The defendants did not seek to strike the claim for negligent investigation, as it is well-established that the limitation period for the tort of negligent investigation begins when the legal proceeding is terminated (e.g. by withdrawal or acquittal) – in this case, on 17 February 2016. The plaintiff argued that the claim was not discoverable until the charges were dropped, but the motions judge sided with the defendant police and ordered those portions of the Claim relating to assault and battery struck.

On appeal to the Ontario Court of Appeal, however, the Court examined the wording and purpose of the discoverability provisions at s.5 (1)(a)(iv) of the Limitations Act 2002: “that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.” While the Court acknowledged the appellant would have known about his injuries, and their cause, the Court referred to the decision of Laskin JA in 407 ETR Concession Company Limited v. Day:  “when an action is “appropriate” depends on the specific factual or statutory setting of each individual case….”

While it is possible and permissible for different limitation periods to apply to the different torts alleged in a single case (para.17), on the particular facts of this case the Court found that “[t]he 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.” (para 28) The Court added that, in the claim for negligent investigation, the verdict in the criminal assault trial would be crucial, if not determinative, and that there would be “inconsistency in asking a civil court to rule on the propriety of a criminal prosecution before the criminal court has had the opportunity to assess the merits of the underlying charge.” (para. 32, citing Chimienti v. Windsor (City)2011 ONCA 16

In the result, the decision of the motions judge was overturned and the appellant permitted to proceed with his claim both for negligent investigation and for assault or battery. The appellant was awarded $5000 of costs on appeal, and the costs decision below was also set aside and an additional $8948.56 awarded for the first motion hearing.

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