Ontario: s. 16(1)(a) applies to a declaration of breach of Charter rights

In Selkirk et al. v. Trillium Gift of Life Network et al., the Superior Court held that an action seeking a declaration that Charter rights have been infringed could shelter within s. 16(1)(a) because it seeks no consequential relief:

[69]           The respondents argue that the relief sought relating to the death of Mr. Selkirk is statute barred. Mr. Selkirk died in 2010 and this application was commenced in 2015. They argue that a two-year limitation period applies to personal relief sought under s. 24(1) of the Charter.

[70]           In Ravndahl v. Saskatchewan2009 SCC 7, [2009] 1 S.C.R. 181, the court distinguished between the litigant’s personal remedies, brought by her as an individual, from an in rem remedy flowing from s. 52 of the Constitution Act, 1982. In that case, the appellant’s personal claim was statute barred, but her claim for a declaration of invalidity arising out of s. 52 was allowed to proceed.

[71]           In Alexis v. Darnley, 2009 ONCA 847, 100 O.R. (3d) 232, the Court of Appeal held that limitation periods of general application apply to an action brought by an individual for a personal remedy under s. 24(1) of the Charter. Pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, the relevant limitation period is two years: Alexis, at para. 21.

[72]           Ms. Selkirk argues that the relief sought is not out of time. She relies on s. 16(1)(a) of the Limitations Act, 2002, which provides that there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought. She argues that she seeks a simple declaration that Mr. Selkirk’s rights were infringed, which does not pronounce any sanction against the respondents. She seeks no consequential relief.

[73]           In determining whether the relief sought is purely declaratory, the court asks the question: if it granted the declaration, and the defendant resisted the implementation of the declaration, could the plaintiff leave the court in peace and enjoy the benefits of the declaration without further resort to the judicial process?: Skylark Holdings Limited v. Minhas2017 ONSC 4599, at paras. 26, 28-29, Yellowbird v. Samson Cree Nation No. 4442008 ABCA 270, 433 A.R. 350, at paras. 45-47.

[74]           I agree with Ms. Selkirk that the personal remedies sought with respect to Mr. Selkirk’s rights are declaratory only. If the declaratory relief is granted, Ms. Selkirk could leave the court in peace and enjoy the benefits of the declaration without further resort to the judicial process.

[75]           This is because the declaration sought would, if granted, serve the purpose of vindicating Mr. Selkirk’s Charter rights, and recognize that public confidence in the Charter may be negatively impacted when state actors violate Charter rights, especially if doing so results in death. On its own, the vindication, if warranted, would have value.

[76]           Ms. Selkirk makes no claim for monetary compensation or any other consequential relief. If the declaratory relief is granted, the court’s role is complete.

[77]           I thus find that these claims are not statute-barred.

Ontario: the limitation of claims arising from assault and battery


The Court of Appeal granted the plaintiff’s appeal in Brown v. Woodstock.  The motion judge had found his claims statute-barred based on jurisprudence holding that a cause of action for damages for false arrest, false imprisonment, and breach of Charter rights crystallizes on the date of arrest, and that the limitation period for an assault or battery runs from the date assault or battery occurred.  I though it want’t a very good limitations decision, because cause of action accrual has nothing to do with the commencement of time.

The court followed its decision in Winmill as the basis for overturning the summary judgment:

[5]         In our view, Winmill cannot be distinguished from this case on the basis that the charges in this case are different, or that the prosecution of the appellant ended with his entering into a peace bond rather than an acquittal. Nor is it relevant that Winmill was also concerned with a claim for negligent investigation. The key point is that, as in Winmill, the battery action is essentially a mirror image of the criminal charge the appellant was facing. As a result, it was open to the appellant to await the outcome of the criminal proceedings against him before finally deciding whether to bring his action, regardless of when he first formed the intention to sue.

[6]         Specifically, the discovery date for the appellant’s action was October 22, 2015 – the date the criminal charges him were brought to a conclusion with a peace bond. The appellant had two years from that date in which to bring his action. Therefore, the appellant’s action, which was commenced May 13, 2016, is not time barred. The respondent fairly concedes that, if the claim in battery is to proceed, then it is appropriate to reinstate the entire action, with the exception of the appellant’s claim for malicious prosecution, which the appellant has abandoned.