CITATION: Winmill v. Woodstock Police Services Board et al., 2017 ONSC 2528
COURT FILE NO.: 1455-16
DATE: 2017/04/24
RE:
Robert Winmill, Plaintiff
AND:
Woodstock Police Services Board, Police Constable Dopf, Police Constable
Campbell, Police Constable John Doe(s) and Police Constable Jane Doe(s),
Defendants
BEFORE:
Justice A. K. Mitchell
COUNSEL: K. Egan, counsel for the plaintiff
D. Thompson, counsel for the defendants
HEARD:
April 3, 2017
ENDORSEMENT
Overview
[1]
The defendants bring this motion pursuant to r. 21.01(1) seeking an order
dismissing the plaintiff’s claim in battery on the basis it is statute-barred.
Background
[2]
This action arises out of events which took place on June 1, 2014. At
approximately 8:50 pm on that date, the police were summoned to the plaintiff’s
residence as a result of an altercation ongoing between the plaintiff and his son.
The police attended and ultimately arrested the plaintiff later that same evening.
The plaintiff alleges that, during his arrest, police used excessive force causing
him injuries thereby committing the tort of battery. Following his arrest for
assaulting a police officer and resisting arrest, the plaintiff was transported to the
police station where he was processed and released shortly after midnight on June
2, 2014.
[3]
On February 17, 2016, the plaintiff was found not guilty of the offences arising out
of the events of June 1, 2014.
2017 ONSC 2528 (CanLII)
SUPERIOR COURT OF JUSTICE - ONTARIO
[4]
A notice of action was issued on June 2, 2016 claiming damages arising from the
defendants’ alleged negligent investigation and assault including head trauma and
other bodily injuries. The date of the incident was not pleaded in the notice of
action.
[5]
A statement of claim was issued on June 22, 2016 wherein the plaintiff seeks
$1,500,000 on account of general, special, punitive, aggravated, and exemplary
damages.
[6]
In their statement of defence served September 6, 2016, the defendants deny the
allegations of excessive force and plead the action based on the tort of battery is
statute-barred because the plaintiff failed to bring the action within two years of
the police conduct underlying the plaintiff’s claim of assault.
[7]
No reply was filed by the plaintiff in response to the limitation period defence
raised by the defendants in their pleading.
[8]
By motion record dated September 30, 2016, the defendants sought to have the
statement of claim struck pursuant to r. 21.01 of the Rules of Civil Procedure on
the basis the claim based in battery was statute-barred and the claim based in
negligent investigation, as pleaded, disclosed no reasonable cause of action.
[9]
In response, the plaintiff brought a motion to amend its claim to particularize its
claim for negligent investigation. The statement of claim insofar as it referred to
the tort of battery remained unchanged. The defendants consented to the proposed
amendments. The defendants’ r. 21.01 motion proceeded on the sole issue of
whether the plaintiff’s claim in battery is statute-barred.
[10]
At the outset of the motion, plaintiff’s counsel conceded that the clinical notes and
records of Mr. Winmill’s family doctors and the clinical notes and records of his
counsellor, Laurie Ponsford-Hill, were not properly before the court as evidence of
a medical condition or diagnosis rather were relied upon for the limited purpose of
establishing Mr. Winmill sought medical treatment and psychological counselling
following the incident on June 1, 2014.
Analysis
Test Under Rule 21.01
[11]
Pursuant to r. 21.01(1) of the Rules of Civil Procedure, a defendant to an action
may move for a determination of a question of law raised by a pleading where the
determination of the question may dispose of all or part of the action. The
question here is whether the claim in battery is statute-barred as the defendants
allege in their statement of defence.
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3
[12]
Section 4 of the Limitations Act, 2002 (the “Act”), provides that a claim is statutebarred if an action is not commenced within two years following the date on which
it is discovered.
[13]
When a claim is discovered is determined after applying the criteria set forth in s.
5 of the Act, which states:
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).
(emphasis added)
[14]
Pursuant to s. 5(2) of the Act, in these circumstances the onus rests with the
plaintiff to establish the action founded in battery is not statute-barred. Section
5(2) provides:
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.
[15]
Despite his onus to prove the claim was not discoverable on June 1, 2014, the
plaintiff did not serve a reply containing the particulars of his abilities and
circumstances preventing him from discovering the claim on June 1, 2014.
Moreover, the plaintiff did not plead any particulars that he was not in a position
to know a proceeding was an appropriate means to remedy the harm done to him
until after June 1, 2014.
[16]
There is no cross-motion of the plaintiff seeking to strike the statement of defence
insofar as it pleads the action is statute-barred. Similarly, there is no summary
judgment motion before me with regard to the limitation period. However, I am
2017 ONSC 2528 (CanLII)
Limitations Act, 2002
4
The Evidence
[17]
It is undisputed that any assaultive conduct of the police towards Mr. Winmill
occurred at the plaintiff’s residence on June 1, 2014. There is no suggestion any
assaultive conduct of police occurred or “spilled over” into the early morning
hours of June 2, 2014 while Mr. Winmill was at the police station. Although, the
plaintiff argues the “transaction” continued beyond June 1, 2014.
[18]
On cross-examination the following evidence was given by the plaintiff:
 he believed he had been injured by Woodstock police right from the
time he was escorted from the house to the Woodstock police station
on June 1, 2014 to the present time;
 he was able to retain and instruct a lawyer regarding the conduct of
his defence in the criminal proceedings from sometime shortly after
the charges were laid in June 2014;
 the criminal proceedings were never delayed because of his health
issues;
 he wanted to wait until after the criminal proceedings had been
completed before suing Woodstock Police Service or taking any
action against them;
 he first met with his lawyer about civil proceedings in April 2016;
 he knew he could sue the police before he went to get a lawyer; and
 he has no explanation for why proceedings were not commenced
before June 2, 2016 except that he “didn’t know there was a
deadline”.
[19]
It is undisputed the plaintiff was aware of his injuries and was aware he had
suffered damages on June 1, 2014. Likewise, the plaintiff was aware that
members of the Woodstock Police Services had caused his injuries.
Plaintiff’s Position
2017 ONSC 2528 (CanLII)
prepared to consider the issue taking into consideration the evidence of the
plaintiff provided in response to this motion despite the state of the pleadings. In
doing so, I have treated the motion more akin to a motion for summary judgment
than a Rule 21 motion.
5
[20]
The plaintiff argues there are 3 reasons the motion should fail:
(ii) the plaintiff was unable to commence the action until June 2, 2014
following his release from custody; and
(iii) the plaintiff was incapable of commencing an action while suffering from
depression and other psychological injuries.
1. Discoverability
[21]
The plaintiff argues the same discoverability principles that apply to claims
founded in negligent investigation apply to other claims stemming from the same
police conduct. With respect to a claim based on the tort of negligent
investigation (or malicious prosecution), the case law establishes that the
limitation period does not begin to run until the date of acquittal.1 The policy
underlying this discoverability principle was articulated by MacPherson J. in
Chimienti et al. v. The Corporation of the City of Windsor 2 at para. 15 as follows:
I also have some sympathy for the appellant’s policy arguments.
In my view, it is unrealistic to ask a person already preoccupied
with defending a criminal charge to take on the additional effort
and cost of mounting a civil action, particularly given the likely
unfounded but understandable concern that, in doing so, he might
antagonize the police and Crown counsel. Furthermore, there is
something of a logical inconsistency in asking a civil court to
rule on the propriety of a criminal prosecution before the
criminal court has had the opportunity to assess the merits of the
underlying charge.
[22]
1
2
The comments of the court in Chimienti were made in the context of when it is
appropriate to commence a claim against police for negligent and malicious
investigation - claims based primarily on the alleged negligence of police. Citing
McLachlin C.J.C. in Hill v. Hamilton-Wentworth Regional Police Services Board,
[2007] 3 S.C.R. 129 at paras. 96-98, MacPherson J. adopted her reasoning that “a
cause of action in negligence arises not when the negligent act is committed but
rather when the harmful consequences of the negligence result.”
See Diaz v. Tossa et al. 2017 ONSC 54 at para. 47.
2011 ONCA 72.
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(i) the limitation period does not expire until February 17, 2018;
[23]
It is also important to remember the distinction between claims for negligent
investigation and malicious prosecution and other types of claims against police.
The former have as a common element the requirement that the criminal
proceedings on which the torts are based must have terminated in favour of the
plaintiff.3
[24]
Here the claim in question is based on the tort of battery. The tort of battery is not
based in negligence (or a failure to have done something) rather is based on the
use of excessive force (an intentional act). The harm was immediate and the
harmful consequences of the excessive force alleged to have been used by police
were known to Mr. Winmill on June 1, 2014. It matters not that the injuries then
later became more extensive and manifested themselves in psychological and
emotional injury.
[25]
It is clear from the evidence the plaintiff had knowledge that litigation was
available to him as a remedy for the damages he had suffered at the hands of the
police. Whether and to what extent he may have been found criminally responsible
for the offences with which he had been charged was in no way determinative of
whether or not he had been the subject of excessive force and assaulted by police.
The assault is a separate and distinct cause of action from the negligent
investigation cause of action. As was recognized in West v. Her Majesty the
Queen in Right of Ontario,4 where the two claims protect different legal interests,
they cannot be joined by the same limitation period. In West, the court noted the
difference between a claim in negligent investigation and a claim based on a
breach of privacy and upheld the finding of the lower court dismissing the
negligent investigation claim as being statute-barred and allowing the breach of
privacy claim to proceed.
[26]
I find it curious that despite the criminal proceedings being concluded some 3 and
one-half months prior to the issuance of a notice of action, Mr. Winmill elected to
issue a notice of action on June 2, 2016 – two years and one day after the alleged
police assault. Surely, if the plaintiff had believed the clock did not begin to run
on his claim in battery until February 17, 2016, his notice of action would have
followed closer in time to two years out from that date, namely, February 17,
2018.
[27]
The plaintiff admitted he knew litigation was an option and by extension he is
therefore deemed to know it was appropriate to sue the Woodstock Police Service
for redress of his injuries suffered on June 1, 2014. Contrast this with the
3
4
See Romanic v. Johnson et al. 2013 ONCA 23 at para. 6.
2015 ONCA 147.
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6
circumstances in Brown v. Baum,5 where the court agreed that the limitation
period commenced on the date of the last surgery performed by the defendant
doctor in an attempt to correct the complications and damages arising from the
original surgery. Similar circumstances do not exist here. The police conduct
comprising the alleged assaultive behaviour began and ended on June 1, 2014. At
no time after June 1, 2014, were any efforts made by the police to remedy or
alleviate the harm suffered by Mr. Winmill in order to stave off a lawsuit.
[28]
Furthermore, I am not persuaded by the plaintiff’s argument that the determination
of when an action is appropriate should be driven by a desire to avoid multiplicity
of proceedings. The plaintiff suggests it would not have been appropriate to
commence an action in battery before the acquittal when it was not yet appropriate
to commence a claim for negligent investigation. The assessment of whether or
not it is appropriate to commence a claim is undertaken in the context of the claim
itself and not in the context of other possible or potential claims stemming in part
from the same police action. Regardless, the acquittal occurred long before the
expiration of the limitation period for the claim in battery thus eliminating any
potential risk for a multiplicity of proceedings.
2. Unable to commence an action on June 1, 2014
[29]
Simply because the courthouse was not open for business on June 1, 2014 and Mr.
Winmill was in custody during the hours (or minutes) between his arrest and
midnight on June 1, 2014 does not postpone the running of the limitation period to
the first business day following his release from custody.
[30]
The application of this type of logic would lead to absurd results if the limitation
period for claims otherwise discoverable on a holiday or other non-business day
or, as here, otherwise discoverable while a plaintiff is in custody, do not begin to
run until the plaintiff is administratively able to issue a claim. This is not the
situation s. 5(1)(a)(iv) of the Act was enacted to address.
3. Incapacity of the plaintiff
[31]
The plaintiff argues s. 7 of the Act applies to suspend the limitation period during
such periods of time as Mr. Winmill was incapable of commencing a proceeding
because of a physical, mental or psychological condition.
[32]
Assuming s. 7 of the Act had been properly pleaded (which it has not), there is no
evidence Mr. Winmill lacked capacity (for any reason) to commence an action at
any time post-June 1, 2014. To the contrary, his defence of the criminal charges,
5
2016 ONCA 325.
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[33]
A limitation period is not to be ignored, even where circumstances may be
unfortunate and the consequences of its application harsh. 6 I find that the
limitation period for the plaintiff’s claim based on the tort of battery expired on
June 1, 2016, two years following the date of the alleged assault by police and is,
therefore, statute-barred.
Disposition
[34]
The defendants’ motion is granted and the plaintiff’s claim for battery is
dismissed. The limitation period for the tort of negligent investigation began to
run on February 17, 2016 (the date Mr. Winmill was found not guilty) and,
therefore, the plaintiff’s claim for negligent investigation is unaffected and may
continue.
Costs
[35]
As the successful party, the defendants are presumptively entitled to their costs of
the motion. Absent agreement of the parties, written costs shall be submitted in
accordance with the following schedule:
(a) Defendants’ submissions not exceeding 5 pages in length to be served
and filed within 15 days;
(b) Plaintiff’s responding submissions not exceeding 5 pages in length, 15
days thereafter; and
(c) any reply submissions not exceeding 3 pages in length, 5 days
thereafter.
“Justice A. K. Mitchell”
Justice A. K. Mitchell
Date: April 24, 2017.
6
Kowal v. Shyiak, 2012 ONCA 512 at para. 20.
2017 ONSC 2528 (CanLII)
without interruption, is evidence of his capacity to commence and maintain a civil
action.