Discovery

Ontario: lawyers should investigate claims with “real world” reasonableness

The Superior Court decision in Musslam v. Hamilton General Hospital contains a refreshing statement on the reasonableness of a lawyer’s actions when investigating a potential claim.  The standard is not perfection, but “contextual reasonableness in the ‘real world’”:

[41]   As I address the various issues, including the submissions not unreasonably advanced that the Oakley firm was arguably tardy or perhaps negligent in certain aspects of how it handled this matter (Mr. Mogil submitted that, while I may feel sympathy for the plaintiff, even if I dismiss this aspect of the motion, plaintiff may yet have a different remedy), I do so from the perspective that this is not now, nor has it ever been, “ a perfect world”. Not to wax too philosophically, but most people struggle daily—including lawyers to do right for their clients, and jurists who strive to come to the legally just result for all parties involved in a case. Indeed, I find all counsel in this complex matter did their best, including in their thorough, at times minute, dissection of what chronologically happened in this case.

[42]   Yet, in my view, a “standard of perfection” is not required. While limitation periods were certainly not enacted to be ignored, as Ms. Wood well submitted for Dr. Mistry, my assessment of the steps taken or perhaps not taken in a timely fashion by some of the parties in this case is based on a standard of contextual reasonableness in the “real world” in which these parties existed, not perfection based on 20/20 hindsight using a microscope or magnifying glass to minutely examine each and every step taken or not taken, or not taken in as timely a manner as ideally should perhaps have been done in some instances.

[43]   The plaintiff in this case, as was found by Master Abrams, has English as his second language and is hampered by various other significant challenges as described in her decision. The evidence before me is that before his surgery he drove a taxi. There is no evidence before me that he is an educated layman, let alone knowledgeable about medical issues or able to easily “connect the dots” so to draw inferences pertaining to causation or contribution. In my view, it is fair to conclude that the plaintiff is unsophisticated, including that he is an unsophisticated litigant. Accordingly, I so conclude, based on all the evidence.

[63]   Why May 17, 2017? Why not when the records were actually received: February 6, 2017 for the family doctor and September 2016 for the chiropractor? In response, I reference my above discussion about the imperfect “real-world” in which we all function. I again consider a small and very busy law firm, with many demands on their time. It was only this firm, after all the many lawyers whom the plaintiff saw, which was willing to take him on—and at no cost. Yet these lawyers also had other, prior commitments, including to trials and to existing clients. In my view, it was, in the context and all the circumstances, reasonable that they did not immediately drop everything when the records were received. After all, they did not expect the “bombshell” information contained therein. Moreover, the medical records were complex to read and decipher, as the step-by-step cross-examination transcript of the family doctor makes clear. If even Dr. Karmali had some challenges reading her own chart notes, these would surely not be an easy or quick read for anyone else, even a lawyer experienced in the field.  I thus find a period of about three months from when the chart of the family doctor was received until it was reviewed to be reasonable in all the circumstances.

 

Ontario: bankruptcy and appropriateness

The Superior Court decision in Caning Construction Limited v. Dhillon finds that a bankruptcy proceeding was not an alternative process that could impact on the appropriateness of a civil action.  The bankruptcy proceeding could have determined damages in the civil action, but not its merits.  Further, in the circumstances the case, there was no reasonable prospect of the bankruptcy proceeding making the plaintiff whole and so a civil action was always going to be necessary for full recovery:

 

[56]           As in both Gravelle and Lilydale, the Westport bankruptcy proceedings could not resolve the legal dispute involving Mr. Dhillon.  Here, Canning knew it had a claim in negligence against the Defendants before the bankruptcy proceedings against Westport were concluded.  Although the bankruptcy could have determined the amount of damages to be sought in the civil action, the proceedings could not determine the legal issues between the parties and were therefore not an alternative means of resolving the negligence allegations.  I conclude that the Westport bankruptcy proceedings are not an alternative process which delays the start of the limitation period in the action against the Defendants.

[57]           Even if a bankruptcy proceeding is an alternative remedy which could have the effect of delaying the start of the limitation period, it is my view that it does not do so in the circumstances of this case.  Section 5(1)(a)(iv) of the Act is subject to the modified objective test.  The determination of when a plaintiff “discovered” that the legal action against the defendant was legally appropriate takes into account what a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known.  Here, Canning had an unsecured claim in the amount of $1,638,018.89.  Based on the secured claims and assets of Westport as set out in the Statement of Affairs, there was no reasonable expectation that unsecured creditors would be fully compensated for their claims.  I conclude that a plaintiff with the abilities and in the circumstances of Canning would have known that it would not fully recover its claim in the Westport bankruptcy and therefore would have known that a tort action against the Defendants was legally appropriate before the bankruptcy proceedings were completed.

Ontario: Court of Appeal on the factual nature of discovery

The Court of Appeal decision in Albert Bloom Limited v. London Transit Commission contains a great statement on the factual nature of the s. 5(1)(a) analysis.  When a claimant knows the s. 5(1)(a) discovery matters is fact-specific and there’s little value in comparing the unique facts of one case to another:

 

[31]      To be clear, the determination of when a claimant obtains actual knowledge of a claim is case-specific. Little is to be gained from comparing the unique circumstances of one case to another. There is no bright-line test that establishes when a party has actual knowledge of a claim. Instead, the totality of factual circumstances will dictate how and when a claimant obtains actual knowledge. In the present case, the motion judge undertook a detailed analysis of the factual circumstances. The evidence she relied on was uncontested, and I do not understand LTC to be arguing that the motion judge committed any palpable and overriding errors of fact.

The decision also shows the consequences of admitting facts material to the discovery analysis in a pleading. The plaintiff argued that such an admission was ignorable “boilerplate”, but filed no evidence to support this argument (also note that the Court found that an affidavit’s double hearsay was inadmissible):

 

[32]      There is another unique circumstance in this case that supports the motion judge’s finding regarding actual knowledge. It is the plea in the statement of defence and crossclaim that the contamination was caused by a previous owner of the LTC property. That fact clearly distinguishes this case from Crombie, where there was no such plea.

[33]      On the motion and this appeal, LTC attempts to explain away that pleading: it was just a “standard pleading” and did not reflect its actual state of knowledge at the time of the filing of the statement of defence and crossclaim. However, the evidence that counsel had informed the affiant in the affidavit filed by LTC that this was a standard pleading was double hearsay. Contrary to what the affiant stated in her affidavit, on cross-examination, she testified that she had never been provided with this information by LTC’s counsel. In fact, she had received the information from her predecessor at LTC, who apparently was told the information by legal counsel. This evidence was therefore inadmissible on the motion.

[34]      LTC asserts, “[t]here was absolutely no evidence on the record before the Motions Judge to suggest that this pleading was other than a boilerplate pleading commonly set out in environmental defences without any factual knowledge attributable to LTC” : Factum, para. 27.  This submission reflects a fundamental misunderstanding of the onus on the motion. LTC’s onus was not met by asserting that there was no evidence that this was not a boilerplate pleading. LTC had an obligation to adduce compelling and admissible evidence that it was boilerplate and thus could be ignored. It failed to adduce that evidence.

Ontario: Court of Appeal on the limitation of aniticatory breach actions

In Fram Elgin Mills 90 Inc. V Romandale Farms Limited, the Court of Appeal summarised the limitation of anticipatory breach actions:

[258]   An anticipatory breach of contract occurs when one party to a contract, by express language or conduct, or as a matter of implication from what it has said or done, repudiates its contractual obligations before they fall due: Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733, 118 O.R. (3d) 321, at para. 22, citing G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 585.

[259]   An anticipatory breach does not, in itself, terminate the contract. Once the offending party shows its intention not to be bound by the contract, the innocent party has a choice. The innocent party may accept the breach and elect to sue immediately for damages, in which case the innocent party must “clearly and unequivocally” accept the repudiation to terminate the contract. Alternatively, the innocent party may choose to treat the contract as subsisting, continue to press for performance, and bring the action only when the promised performance fails to materialize. However, by choosing the latter option, the innocent party is bound to accept performance if the repudiating party decides to carry out its obligations: Ali, at para. 24.

[260]   Section 4 of the Limitations Act provides that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” Section 5(1)(a) sets out the factors for determining when a party discovers a claim. However, where the innocent party does not accept the repudiation of the contract, the limitation period does not begin to run until the breach actually occurs: Ali, at paras. 26-27.

Ontario: evidentiary issues on a motion to add a maintenance contractor

The Superior Court decision in Taylor v. Mayes is an addition to the burgeoning category of decisions in motions to add maintenance contractors after the presumptive expiry of the limitation period.

The party opposing being added in Taylor made the standard argument: “the plaintiff didn’t even enquire about whether there was an independent contractor!”  However, the court expressed doubt that the party would have answered the enquiry:

[61]           While HMQ relies on the fact that the defendants never specifically inquired about an independent contractor prior to the expiry of the presumptive limitation period, I am not satisfied that HMQ would have even provided an answer given the history of motions to compel disclosure and relevant information.  This is one of the reasons that this case can be distinguished from Ali.

This is an important point.  Whether or not the plaintiff asked a particular question per se is immaterial to the discovery argument.  What matters is whether the party opposing being added has adduced evidence that if the plaintiff had asked the question it would have been answer, and the answer would led to discovery more than two years before the plaintiff brought the motion.

The court made the point expressly in Vuniqi v. Paramount Property Management et al.:

[46]           TQ argued that the plaintiff and her lawyer could have taken a number of “reasonable and very simple steps” that would have enabled them to find out earlier that there was a winter maintenance contractor at the plaintiff’s apartment building and to identify it. TQ argued that the plaintiff or her lawyer could have asked Paramount, on the telephone, whether it had a snow removal contractor and that Mr. Butler could have asked Paramount’s insurer’s claims representative, Ms. Roode, on one of the many occasions he communicated with her. TQ also argued that although it is true that Paramount never denied liability for the plaintiff’s accident or indicated to Mr. Butler before March 11, 2019 that it would be seeking contribution or indemnity from another party, Paramount never admitted liability. TQ argued that by doing nothing beyond sending his January 30, 2017 letter, Mr. Butler did not meet the reasonable diligence test.

[47]           TQ did not, however, offer any evidence that would enable me to determine when the reasonable person in the plaintiff’s position first would have discovered the claim against TQ. There was no evidence, for example, that Paramount, having sent Mr. Butler’s January 30, 2017 letter to its insurer, subsequently would have provided Mr. Butler or the plaintiff with TQ’s identity or information about the scope of TQ’s responsibilities, if they had asked. There was no evidence to explain why Ms. Roode failed to answer Mr. Butler’s question about whether Paramount had a snow removal contractor. There was no evidence about when Ms. Roode first became aware of Paramount contract with TQ. I have already mentioned that there was evidence suggesting that Paramount was unsure, before the plaintiff was examined for discovery on March 11, 2019, whether the plaintiff fell in an area TQ was contractually obliged to maintain.

Ontario: when the court can determine the timeliness of an arbitral proceeding

The Superior Court decision in Maisonneuve v. Clark makes two findings about the limitation of arbitral proceedings.

First, when a party applies for an order referring a dispute to arbitration, the court has the jurisdiction to determine the timeliness of the arbitration pursuant to s. 7(2) of the Arbitration Act.

Second, where an arbitration clause requires the parties attempt to resolve a dispute prior to requesting arbitration, arbitration won’t become an appropriate remedy (and the claim pursued in the arbitration will not be discoverable) until the satisfaction of that requirement:

[46]           In at least two cases, Ontario courts have held that, where the parties have agreed to exchange information, negotiate or mediate prior to arbitration, the limitations clock does not begin to run until they have done so.

[47]           In L-3 Communication SPAR Aerospace Limited v. CAE Inc., 2010 ONSC 7133 (CanLII), Kershman J. considered the limitations applicable to a notice of arbitration by CAE issued pursuant to a contract with L-3 that specified that the “price and other adjustments that are not agreed between the parties may be referred to arbitration … by either party”.  He held that CAE’s request to arbitrate would have been premature if attempts to negotiate a price adjustment had not yet taken place.  As a result, until the failure of negotiations, an arbitration would not be an appropriate proceeding and limitations did not begin to run. Since the notice to arbitrate was served within two years of L-3’s refusal to engage in further negotiations, the arbitration was not time-barred.

[48]           In PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331 (CanLII), the Court of Appeal dismissed an appeal of an arbitrator’s ruling rejecting a limitations defence.  The parties entered into a franchise agreement whereby they had to engage in mediation of any dispute before initiating arbitration. The arbitrator concluded that arbitration was not appropriate within the meaning of s. 5(1) of the Limitations Act until after the parties had mediated or one of the parties had refused to do so.  Although the franchisee served a notice to arbitrate almost four years after the parties’ contract was rescinded, it was within two years from the franchisor’s refusal to respond to a notice to mediate. The Court of Appeal upheld the arbitrator’s decision that, in the circumstances, the arbitration proceeding was not time-barred.

[49]           Applying these decisions to this case, if I find that Arbitration Clause required the parties to attempt to resolve the Excluded Issue prior to requesting arbitration, then arbitration did not become appropriate until this occurred.  As a result, the two-year limitation period would not have begun to run until Maisonneuve realized, or ought to have realized, that Clark refused to engage in any discussions on the issue.

Ontario: the (non)impact of patience on discovery

The Superior Court decision in Zenner v. Hermanns reminds us that patience will not delay discovery of a claim:

[40]         Zenner’s explanation that he was a “patient” person is not an adequate, or appropriate, response. Patience may well be a virtue, but patience does not override limitation laws and cannot be used as an excuse for not taking steps to pursue one’s rights. As stated in Longo v. MacLaren Art Centre, 2014 ONCA 526 at para. 42:

A plaintiff is required to act with due diligence in determining if he has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a). While some action must be taken, the nature and extent of the required action will depend on all of the circumstances of the case, as this court noted in Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 111 O.A.C. 339, at p. 345 (C.A.):

Limitation periods are not enacted to be ignored. The plaintiff is required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a negligence or malpractice claim can be based….

Ontario: Court of Appeal on the factual nature of an appropriateness analysis

In Fercan Developments Inc. v. Canada (Attorney General), the Court of Appeal emphasizes the factual nature of the s. 5(1)(a)(iv) analysis.  The decision is also an example of an appeal in related proceedings impacting on appropriateness.

The AGC brought an unsuccessful criminal forfeiture application against the plaintiffs.  Then the AGO commenced unsuccessful forfeiture proceedings under the Civil Remedies Act. Leave to appeal was refused and an appeal from a costs award failed. The plaintiffs sued the AGC and the AGO alleging malicious prosecution, negligent investigation, misfeasance in public office, and civil conspiracy.  The defendants moved for summary judgment on their limitations defence.  The motion judge found the proceeding didn’t become an appropriate remedy for the loss until at least the civil forfeiture proceedings had concluded.  This meant discovery occurred within two years of the plaintiffs commencing the action.

The defendants appealed.  They argued that motion judge’s decision “significantly expands the application” of s. 5(1)(a)(iv) beyond the two circumstances the court has recognized might impact on the appropriates of a proceeding as a remedy:

[15]      The appellants argue that the motion judge’s decision significantly expands the application of the “appropriate means” element of the discoverability test under s. 5(1)(a)(iv) beyond any previous jurisprudence from this court, and that it injects uncertainty into the law of limitations. They contend that the motion judge relied on irrelevant factors, and that she ought to have restricted her analysis to a consideration of whether the respondents were pursuing an alternative means of remedying their alleged losses, such that it was not yet appropriate for them to commence an action in respect of those losses.

The Court of Appeal rejected this argument and dismissed the appeal.  When a proceeding becomes appropriate is a question of fact, and there aren’t only two factual circumstances the impact on appropriateness:

[16]      We disagree. Contrary to the submissions of the appellants, the motion judge properly recognized that there were not simply two categories of cases in which it might not be legally appropriate to start a proceeding despite the claim having been discovered, within the meaning of s. 5(1)(a)(i)-(iii): Nasr, at para. 51. The motion judge did not err when she considered all of the relevant circumstances and not simply whether the forfeiture proceedings provided an alternative means for the respondents to remedy their alleged losses. She was required to consider the “nature of the injury, loss or damage” under s. 5(1)(a)(iv), as well as, under s. 5(1)(b), using a “modified objective” test, what a reasonable person with the abilities and in the circumstances of the respondents ought to have known: Presidential, at para. 18; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 32. While previous cases can assist in identifying certain general principles, whether a proceeding would have been an appropriate means to seek to remedy a claimant’s damage, injury or loss will turn on the facts of each case and the abilities and circumstances of the particular claimant: Presidential, at para. 19; ETR Concession Company, at para. 34.

The Court cautioned against conflating the considerations in s. 5(1)(a)(i)-(iii) with those in s. 5(1)(a)(iv).  Despite the plaintiffs’ knowledge of the first three discovery matters, it would have been premature for them to commence the action while responding to the state’s civil forfeiture proceedings.  If the forfeiture proceedings had been successful, the defendants would have had a strong to defence to the plaintiffs’ action.  Further, the costs decision implicated the defendants’ conduct, and the appeal from it challenged findings of the defendants’ misconduct:

[19]      In concluding that the time for commencement of an action against the AGC began to run “at the earliest” on June 26, 2014, the motion judge relied on the civil forfeiture proceedings that were commenced and pursued by the appellants against the respondents. She observed that the appellants, in undertaking such proceedings, were pursuing a process that, if successful, could have left the respondents with little to no loss to claim. We agree with the motion judge’s observation that it is important not to conflate the considerations under the first three elements of the discoverability test with the appropriate means element set out in s. 5(1)(a)(iv). The question is not, as the appellants suggest, whether an action could have been brought by the respondents, but when it was appropriate to do so. While knowledge of the extent of a plaintiff’s damages is not required under (i) to (iii), the motion judge was entitled to take into consideration the ongoing forfeiture proceedings that the parties were engaged in, when determining under s. 5(1)(a)(iv) whether it was appropriate for the respondents to bring an action. She concluded that, in the particular circumstances, it would have been premature to require the respondents to launch a lawsuit, as they were embroiled in the civil forfeiture application, a related matter brought against them “by the state with all of its resources”, which could have rendered their lawsuit non-viable and unworthy of pursuing.

[20]      We see no error in the motion judge’s determination that it was premature for the respondents to commence their action until after the civil forfeiture proceedings were completed on June 26, 2014. She came to this conclusion after considering all of the relevant circumstances. The facts were unusual. Despite the fact that the AGC was unsuccessful in obtaining an order for criminal forfeiture and was subject to an order for costs that was critical of its conduct, the provincial authorities commenced civil forfeiture proceedings with the same objective – to seize the proceeds of sale of the respondents’ properties. DC Hayhurst was involved in both sets of proceedings. If the civil forfeiture proceedings had been successful, no doubt all of the appellants would have had a strong defence to any action that was commenced by the respondents. The conclusion, on this record, that it was premature for the respondents to pursue a civil action while they were continuing to oppose the forfeiture proceedings, reveals no error.

[23]      The motion judge recognized that West J.’s costs decision “directly and explicitly addressed the conduct of the federal Crown”, and that he had determined that the Crown’s conduct “exhibited a marked and substantial departure from the reasonable standards expected of the Crown”. Nevertheless, she observed that costs against the Crown in such proceedings are a “rare and extraordinary remedy”, that the AGC’s appeal specifically sought to attack the findings of Crown misconduct, that there was precedent for this court taking a very different view, and accordingly, that there was a clear risk that West J.’s findings of misconduct might be rejected on appeal, which would have seriously undermined any action brought by the respondents. The fact that there was another ongoing proceeding – the appeal of West J.’s costs decision – that could have impacted the viability of the respondents’ action was relevant to the application of s. 5(1)(a)(iv) in the circumstances of this case.

 [25]      We see no palpable and overriding error in the motion judge’s conclusion that the time began to run under s. 5(1)(a)(iv) in respect of the claims against all appellants on April 14, 2016, when this court released its decision dismissing the appeal from West J.’s costs order. Again, the circumstances were highly unusual. The same parties were already involved in litigation commenced and pursued by the appellants, in which the appellants’ alleged misconduct had taken centre stage. In pursuing the appeal, the AGC did not accept and sought to overturn the findings of West J., ensuring that whether or not there was prosecutorial misconduct remained a live issue until it was determined by this court. As the motion judge reasonably observed, there was a clear risk of a successful appeal, which would have impacted the viability of an action based on the same allegations of prosecutorial misconduct.

[27]      After assessing the claims against all parties, it was open to the motion judge to conclude, as she did, that a successful appeal of the costs decision would have undermined the claims against all of the appellants, including the OPP Defendants. This was not, as the appellants contend, a tactical decision on the part of the respondents, as in Markel, or simply a question of a plaintiff waiting until the end of other proceedings that might improve their chances of success in a civil action, as in Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005, 441 D.L.R. (4th) 393. Rather, as in Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, 138 O.R. (3d) 641, at para. 31, leave to appeal refused, [2018] S.C.C.A. No. 39, the result of the proceedings in which the parties were already involved, including the determination by this court of the prosecutorial misconduct allegations, would have been a “crucial, bordering on determinative factor” in whether the respondents had a civil claim to pursue.

Ontario: s. 5(1)(a)(iv) and the limitation of false arrest and imprisonment claims

Vu v. Attorney General of Canada considers the limitation of a claim arising from false arrest and imprisonment, and in particular the impact of s. 5(1)(a)(iv) of the Limitations Act on the analysis:

[30]           Not surprisingly, the defendant takes the position that the limitation period commenced when Vu was detained, on June 27, 2013.  At that time, they say, he must have known that his arrest and detention were wrongful.  Alternatively, the defendant argues that Vu would certainly have known it was wrongful by July 9, 2013, following the second detention hearing when the ID accepted the evidence contained in McNamara’s Statutory Declaration.

[31]           The plaintiff, on the other hand, asserts that the limitation period runs from the date of his release from detention in Vietnam, on October 8, 2014.  The plaintiff argues that he could not have initiated his claim for false imprisonment when first arrested and the act of wrongful detention was still ongoing. Plaintiff’s counsel analogized this to suing for battery while the knife is still in your arm. Further, the plaintiff claims that the CBSA represented to him many times that his release from immigration detention was “imminent,” yet he remained detained for a total of 15 months, without knowing or being able to know for how long he would remain in custody.

[32]           The defendant relies upon Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973, O.J. No. 6702 (“Kolosov”), in which the Court of Appeal seems to accept that the limitation period commences on the first date of detention, stating at para. 11:

The law in relation to the commencement of the limitation period for the intentional torts of false arrest and imprisonment … is well-settled. As Chiapetta J. noted in Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581 at para. 16,

 A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising therefrom 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.), at para. 14).

 [33]           The plaintiff, on the other hand, cites a conflicting Court of Appeal decision, Mackenzie v. Martin, 1952 CanLII 85 (ON CA), [1952] O.R. 849 (Ont. C.A.), at paras. 6-8, aff’d 1954 CanLII 10 (SCC), [1954] S.C.R. 361 (S.C.C.), which refers to case law dating back to the 18th century, and states that the limitation period for a false imprisonment claim commences upon the date of release. To my knowledge, while the case is dated, Mackenzie v. Martin has never been overturned.

[34]           The conflict is not easily resolved by the jurisprudence.  In Fournier-McGarry (Litigation Guardian of) v. Ontario, at para. 16, Chiapetta J. relied on Nicely v. Waterloo Regional Police Force (“Nicely”) in making her statement that the Court of Appeal subsequently adopted in Kolosov. However, while the Divisional Court held in Nicely, at para. 15, that the test “is as of the date of arrest and imprisonment,” it was discussing the question of liability and the grounds for arrest when the arrest took place, not the limitation period. This point was not addressed by Chiapetta J. in Fournier-McGarry, or by the Court of Appeal in Kolosov, both of which simply accept the statement as dealing with limitation periods. Elsewhere, the Divisional Court in Nicely suggested, at paras. 8-9, that the time period begins to run when the tort is “complete,” or upon release. In Nicely, however, the arrest, detention and release all occurred on the same day, as was also the case in Fournier-McGarry.

[35]           Ferri v. Root, 2007 ONCA 79, O.J. No. 397, leave to appeal refused, [2007] S.C.C.A. No. 175 (“Ferri”), is another, more recent, case in which the plaintiff was arrested and released on the same day. There, the Court of Appeal, at para. 102, reiterated the finding in Nicely that “the test for these torts is at the date of arrest and imprisonment,” but addressed the limitation period in the same context that it arose in Nicely, which was under s. 7 of the Public Authorities Protection Act, R.S.O. 1990, c. P.38. (“PAPA”). That Act required that an action be “commenced within six months next after the cause of action arose or in case of continuance of injury or damages within six months after the ceasing thereof” (emphasis added). Accordingly, the Court in Ferri, at para. 103, concluded that the injury of false imprisonment ceased when the plaintiff was released.

[36]           There is also the concern that a false arrest and an unlawful imprisonment may not occur at the same time. One may be lawfully arrested but unlawfully detained, or a detention that is lawful at the outset may become unlawful at a subsequent point in time. For example, a lawful immigration detention can become unlawful due to its conditions, its length, procedural fairness, or if it is “no longer reasonably necessary to further the machinery of immigration control:” Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, at paras. 81, 86; Re Charkaoui, 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 123; Scotland v. Canada (Attorney General), 2017 ONSC 4850, 139 O.R. (3d) 191.

[37]           The plaintiff submits that the approach in Mackenzie v. Martin is also consistent with the law in the United States, where time runs from the date of release, not the date of detention: Milliken v. City of South Pasadena, 158 Cal. Rptr. 409, 412 (Cal. Ct. App. 1979); Donaldson v. O’Connor, 493 F.2d 507, 529 (5th Cir. 1974).

[38]           While I have concerns with the broad application of Kolosov urged on me by the defendant, I do not need to resolve the conflict in the cases in this matter. This case does not arise under the PAPA, which would cause me to consider a continuing injury. Rather, since section 5(1)(a) of the Limitations Act establishes a four-part test, I regard Kolosov as simply setting up a presumption (which was not rebutted in that case) that the cause of action arose on the date of arrest and detention or, at latest, the date of the second detention hearing, but it does not address all four parts of the test. This means I must still consider when the plaintiff had sufficient facts on which to base an allegation of wrongful arrest and detention, and whether, “[h]aving regard to the nature of the loss or damage, a proceeding would have been an appropriate means to seek to remedy it.”

[46]           In this case, however, the plaintiff did not delay the bringing of his claim for reasons of strategy. Rather, in the absence of the memorandum disclosing that McNamara’s Statutory Declaration was incorrect, he simply had no claim to bring. At the ID hearing on July 9, 2013, Vu tried to persuade the tribunal that he was in compliance with his terms of release and that the CBSA was mistaken, but the tribunal preferred McNamara’s more detailed evidence and made a finding of fact against the plaintiff. The plaintiff was without any evidence to rebut that finding until the disclosure on June 10, 2015. At no point during the hearing on July 9, 2013, or at any subsequent hearing, did McNamara reveal that she had relied on an interpreter; rather, the evidence in her Statutory Declaration (which itself was only disclosed in January 2014) was that the she and the witness had spoken to each other in English.

 [47]           Further, prior to receiving the memorandum in June 2015, Vu was pursuing other, more pressing and appropriate remedies, including detention reviews, the spousal sponsorship application, and attempts to address living arrangements for his infant daughter.  I find, as the Court of Appeal did in Presidential MSH Corporation v. Marr, Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321 (“Presidential MSH Corporation”), at para. 32, that “it would have been inappropriate to require the plaintiff to prematurely resort to court proceedings while the statutory alternative process was ongoing, which might make the proceedings unnecessary.” Moreover, a lawsuit would not have achieved Vu’s objective of being released.
 [48]           Had Vu known of the evidence that McNamara’s Statutory Declaration was incorrect when he was in custody, he undoubtedly would have raised that before the ID. Although he did not seek to review the ID’s detention order in the Federal Court, as his counsel explained Vu had good reasons not to do so: he accepted the CBSA’s representations that his removal was “imminent,” and perceived that making an application would have been a waste of time and money and might have delayed his deportation due to the CBSA’s need to defend the claim.  Further, as the Supreme Court of Canada observed recently in Canada (Public Safety and Emergency Preparedness) v. China, 2019 SCC 29, 433 D.L.R. (4th) 381, at paras. 61-67, judicial review of an Immigration Division decision is challenging.  The onus is squarely on the applicant to establish the decision is unreasonable, leave is required, and remedies are limited. Instead of releasing an applicant, Karakatsanis J. noted, at para. 65 that even a successful judicial review “will generally result in an order for redetermination, requiring further hearings to obtain release and thereby extending detention” (emphasis added).

[52]           In this case, however, rather than the contents of the disclosure having a negligible impact on the reasonable and probable grounds for Vu’s arrest and detention, the revelation that McNamara had used an interpreter while interviewing the witness was not merely a finding of helpful evidence – it was a finding that turned the evidence against Vu on its head, as it threw doubt on the veracity of the testimony that was used to justify the arrest and detention. This was evidence upon which the Tribunal clearly relied during the July 9, 2013 hearing and throughout Vu’s fifteen months in detention. As a result, I do not accept the defendant’s submission that the disclosure of the memorandum in June 2015 was simply something that strengthened an already “discovered” claim: see, e.g., Sosnowski, at paras. 19, 27-29. The plaintiff’s affidavit might have invited this argument where he stated that only after the June 13, 2016 disclosure he became “confident that my detention had been unlawful.” However, that date was in fact when the government actually settled the bond litigation, one year after the memorandum was released to him in June 2015. In any event, in my view this statement was simply recognition that he now had a basis for a civil action for damages, something that, it is to be remembered, is not to be embarked upon lightly. As the Supreme Court stated in Novak v. Bond,  1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808 (S.C.C.), at para. 85:

Litigation is never a process to be embarked upon casually and sometimes a plaintiff’s individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely.

[55]           Applying these principles, in my view, a lawsuit for damages over Vu’s arrest and detention was not an “appropriate means” to redress the wrong done to him when he was arrested and held in custody until he obtained the disclosure in June 2015 that the CBSA had misled the ID. This was many months after he had been removed from Canada. Prior to receiving that information, Vu appropriately pursued other avenues to address his detention and removal, relied on the good faith of the CBSA and the ID process, and did not have grounds for suing for damages. A lawsuit would have been premature, and therefore was not an appropriate means under s. 5(1)(a)(iv) until June 2015.

Ontario: can you assess intersection design? (the dangers of aggressive limitations defences)

Ontario courts are filled with pro forma and ill-conceived limitations defences.  Sometimes these stand out, particularly when advanced by institutions that maybe shouldn’t be too creative with limitations defences.  Take Sun v. Ferreira as an example.  The Plaintiffs claimed that the City of Toronto and the TTC are laible for the location of a bus stop and a cross-walk.  The TTC and the City of Toronto moved for judgment on a limitations defence that would have required the court to find that the plaintiffs, through their observations, ought to have known that an intersection was defectively designed.  It strikes me as rather fraught to suggest that a reasonable person with the abilities and in the circumstances of someone who knows nothing about standards of intersection design could assess whether one was designed competently.  The court agreed:

[45]           The Claims, in these proceedings against the moving parties are that there was an alleged design deficiency with respect to the TTC bus stop, and the adjoining crosswalks. Were the Moving Parties, by designing  an allegedly inherently dangerous situation, involving passengers, many of which would be children exiting a TTC bus, and crossing a busy highway to get to school, negligent as they did not take the appropriate care required in designing and constructing and whether the Moving Parties failed to warn of the hazard their design and construction created.  The main argument of the moving parties is that the responding parties were familiar with the accident location, the location of the TTC stop and location of the cross-walks adjacent to the School, and the absence of a traffic light or cross-walks.

[46]            The moving parties submit that the fact that the City or the TTC or both changed the configuration of the intersection following the accident “is not actionable”. The respondents, however, submit that the change raised the question of whether the change was made to remedy the negligent design of the accident location, and if so, whether the City and the TTC were aware of this negligent design, or ought to have been aware of this negligent design, prior to the accident. If they were aware of the negligent design, what steps, if any, did the Moving Parties take to rectify this deficiency before the accident occurred.  These will be the issues at trial.

[47]           The issue for this court is when did the Plaintiffs or Defendant know or ought to have known of the alleged deficient design, and the consequent failure to warn of the deficiency on the date of the accident.

[48]           Applying the analysis of the court in the cases of Shukster and Frederick, I find that there is a genuine issue requiring a trial on when the alleged deficiency with the intersection was known or ought to have been known by the responding parties. They knew of the accident location, but did they have the knowledge required to question if the intersection was defectively designed?  Further, when did they know that it was appropriate to take legal action against the moving parties?

[49]            The position of the Moving Parties is that the Respondents should have concluded that legal action would be appropriate to commence an action on the basis of their own observations and opinions of the alleged negligent design of municipal infrastructure or the configuration of the street and without the benefit of expert advice and the knowledge that the alleged design defect of the accident location had been corrected.  I do not agree that such is a reasonable conclusion for the court to reach.  In my view, such personal observations would not be sufficient for the Respondents to conclude that legal action would be appropriate, especially in light of the position taken by the City of Toronto that the intersection did not meet its criteria for the installation of a traffic light.

[50]           Rather, I am of the view that I can not make the findings that would be required to satisfy the test set out in Hryniak by our Supreme Court of Canada, namely, does the evidence allow me to fairly and justly adjudicate this dispute?

[51]           I find that following the guidance of our Courts, which I have referred to above, the respondents have established that there is a genuine issue requiring a trial on the discoverability of these causes of action, as it may not have been legally appropriate for the responding parties to commence litigation without any evidentiary basis, other than their own observations and opinions.  This issue requires a trial and for this reason, the motions must be dismissed

This decision is a reminder of the importance of considering the question asked by s. 5(1)(b) when advancing (and responding to) limitations defences.