Ontario courtroom clarifies regulation for the graduation of limitation intervals for prosecutorial torts

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Ontario Superior Court recognizes new “false light” privacy tort

In MacKinnon’s recent ruling v Halton Regional Police Services Board et al., 2020 ONSC 6908, the Ontario Supreme Court dismissed a plaintiff’s motion for summary judgment for initiation outside the two-year statute of limitations. The BLG represented the defendants.

background

On September 6, 2014, the plaintiff, Robert MacKinnon, was charged with three allegedly fraudulent transfers. The Crown finally brought the indictment on March 27, 2015 according to p. 579 of the Criminal Code.

On March 23, 2018, Mr. MacKinnon commenced a lawsuit against Halton Regional Police Service and several named officers alleged of malicious prosecution, negligent investigation and violation of his charter rights.

The defendants filed a summary judgment motion on the grounds that Mr. MacKinnon’s lawsuit was statute barred because the limitation period for starting the plaintiff’s lawsuit had expired on March 27, 2017. However, he did not initiate his lawsuit until March 23, 2018.

In response, the plaintiff asserted that the limitation period only expired one year after the Crown had stayed. This is because according to s. 579 (2) of the Criminal Code, the Crown has one year to reinstate the charge. Accordingly, the plaintiff argued that it was appropriate to wait for this one-year period to expire before commencing his civil action.

Result

Judge Gibson confirmed that a stay of the proceedings initiated by the Crown constituted a favorable end to the proceedings for the purpose of law enforcement activities such as negligent investigation. Therefore, the appropriate start date for the limitation clock is the date on which criminal charges are suspended.

Although the Crown may resume proceedings within a year, the Crown does not have carte blanche to restore the indictment and may indeed be attacked for abuse of process and arguments under Section 11 (b) Charter. In any event, Justice Gibson noted that the date of stay is the date the plaintiff should know that trial is an appropriate means of seeking redress and that there was no valid legal reason as to that date waiting out. Notably, Justice Gibson also noted that such an argument has been examined and rejected in other provinces (Saskatchewan, Price Edward Island, and British Columbia) and that the law should therefore be the same in Ontario.

Bring away

In this case, it is clarified that the statute of limitations for law enforcement measures begins on the day on which the indictment is clarified in favor of a defendant, including a crown stay in accordance with p. 579 of the Criminal Code. Accordingly, the one year post-stay period does not extend the plaintiff’s statutory period to assert his claim.