The Court of Appeal’s endorsement in Kolosov v. Lowe’s Companies Inc. reads as if it were delivered 15 years ago when the former Limitations Act was still in force.
The Court of Appeal states the following about the law of the limitation of the intentional torts of false arrest and false imprisonment:
[11] The law in relation to the commencement of the limitation period for the intentional torts of false arrest and false imprisonment, and associated Charter breaches, is well settled. As Chiappetta J. noted in Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581 (CanLII), at para. 16:
A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising there-from crystallizes on the date of arrest (see, Nicely v. Waterloo Regional Police Force, 1991 CanLII 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14; Fern v. Root, 2007 ONCA 79 (CanLII),[2007] O.J. No. 397 (Ont. C.A.), para. 102).
In other words, the Court is stating that the limitation period commences when the cause of action accrues, the cause of action in question accrued on the date of the arrest, and so this is when the limitation period commenced, and no fact (such as when full police disclosure occurred), could alter this analysis.
This is plainly wrong. Where to begin? Let’s try first principles:
- The Limitations Act applies to all claims pursued in court proceedings.
- The Limitations Act applies to claims, not causes of action. The language “cause of action” does not appear in the Limitations Act. The accrual of a cause of action hasn’t determined the commencement of limitation period since 2004 when the Limitations Act came into force.
- Section 5 determines the commencement of the limitation period. It’s a factual analysis. A fact such as when full police disclosure occurs may well have an impact on the discovery analysis.
This kind of anachronistic analysis does the law no favours. The limitations scheme is confusing enough ; wonky outlier decisions like this aren’t helpful.
