{"id":1159,"date":"2021-01-25T11:33:24","date_gmt":"2021-01-25T15:33:24","guid":{"rendered":"http:\/\/limitations.ca\/?p=1159"},"modified":"2021-01-25T11:33:29","modified_gmt":"2021-01-25T15:33:29","slug":"ontario-s-51aiv-and-the-limitation-of-false-arrest-and-imprisonment-claims","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=1159","title":{"rendered":"Ontario: s. 5(1)(a)(iv) and the limitation of false arrest and imprisonment claims"},"content":{"rendered":"

Vu v. Attorney General of Canada<\/em><\/a> considers the limitation of a claim arising from false arrest and imprisonment, and in particular the impact of s. 5(1)(a)(iv)<\/a>\u00a0of the Limitations Act on the analysis:<\/p>\n

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[30]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Not surprisingly, the defendant takes the position that the limitation period commenced when Vu was detained, on June 27, 2013.\u00a0 At that time, they say, he must have known that his arrest and detention were wrongful.\u00a0 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\u2019s Statutory Declaration.<\/p>\n

[31]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The 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.\u00a0 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\u2019s 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 \u201cimminent,\u201d 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.<\/p>\n

[32]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The defendant relies upon\u00a0Kolosov v. Lowe\u2019s Companies Inc.,\u00a0<\/em>2016 ONCA 973<\/a>, O.J. No. 6702 (\u201cKolosov<\/em>\u201d), in which the Court of Appeal seems to accept that the limitation period commences on the first date of detention, stating at para. 11:<\/p>\n

The law in relation to the commencement of the limitation period for the intentional torts of false arrest and imprisonment \u2026 is well-settled. As Chiapetta J. noted in\u00a0Fournier-McGarry (Litigation Guardian of) v. Ontario<\/em>,\u00a02013 ONSC 2581<\/a>\u00a0at para.\u00a016<\/a>,<\/p>\n

\u00a0A claim for the common law torts of false arrest, false imprisonment and breach of\u00a0Charter\u00a0<\/em>rights arising therefrom crystallizes\u00a0on the date of arrest<\/u>\u00a0(see\u00a0Nicely<\/em>\u00a0v. Waterloo Regional Police Force<\/em>,\u00a0\u00a01991 CanLII 7338 (ON SC)<\/a>,\u00a0[1991] O.J. No. 460 (Ont. Div. Ct.), at para.\u00a014<\/a>).<\/p>\n

\u00a0[33]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The plaintiff, on the other hand, cites a conflicting Court of Appeal decision,\u00a0Mackenzie v. Martin<\/em>,\u00a01952 CanLII 85 (ON CA)<\/a>,\u00a0[1952] O.R. 849 (Ont. C.A.), at paras.\u00a06-8<\/a>, aff\u2019d\u00a01954 CanLII 10 (SCC)<\/a>,\u00a0[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,\u00a0Mackenzie v. Martin<\/em>\u00a0has never been overturned.<\/p>\n

[34]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The conflict is not easily resolved by the jurisprudence.\u00a0 In\u00a0Fournier-McGarry (Litigation Guardian of) v. Ontario<\/em>, at para.\u00a016<\/a>, Chiapetta J. relied on\u00a0Nicely<\/em>\u00a0v. Waterloo Regional Police Force<\/em>\u00a0(\u201cNicely<\/em>\u201d) in making her statement that the Court of Appeal subsequently adopted in\u00a0Kolosov<\/em>. However, while the Divisional Court held in\u00a0Nicely<\/em>, at para.\u00a015<\/a>, that the test \u201cis as of the date of arrest and imprisonment,\u201d 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\u00a0Fournier-McGarry<\/em>, or by the Court of Appeal in\u00a0Kolosov<\/em>, both of which simply accept the statement as dealing with limitation periods. Elsewhere, the Divisional Court in\u00a0Nicely<\/em>\u00a0suggested, at paras.\u00a08-9<\/a>, that the time period begins to run when the tort is \u201ccomplete,\u201d or upon release. In\u00a0Nicely<\/em>, however, the arrest, detention and release all occurred on the same day, as was also the case in\u00a0Fournier-McGarry<\/em>.<\/p>\n

[35]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Ferri v. Root<\/em>,\u00a02007 ONCA 79<\/a>, O.J. No. 397, leave to appeal refused, [2007] S.C.C.A. No. 175 (\u201cFerri<\/em>\u201d), 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,\u00a0<\/em>reiterated the finding in\u00a0Nicely<\/em>\u00a0<\/em>that \u201cthe test for these torts is at the date of arrest and imprisonment,\u201d but addressed the limitation period in the same context that it arose in\u00a0Nicely<\/em>, which was under\u00a0s. 7<\/a>\u00a0of the\u00a0Public Authorities Protection Act<\/em><\/a>, R.S.O. 1990, c. P.38. (\u201cPAPA<\/a><\/em>\u201d). That Act required that an action be \u201ccommenced within six months next\u00a0after the cause of action arose\u00a0or in case of continuance of injury or damages within six months after the ceasing thereof<\/em>\u201d (emphasis added). Accordingly, the Court in\u00a0Ferri<\/em>, at para.\u00a0103<\/a>,\u00a0<\/em>concluded that the injury of false imprisonment ceased when the plaintiff was released.<\/p>\n

[36]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0There 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.\u00a0For example, a lawful immigration detention can become unlawful due to its conditions, its length, procedural fairness, or if it is \u201cno longer reasonably necessary to further the machinery of immigration control:\u201d\u00a0Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness),<\/em>\u00a02015 ONCA 700,\u00a0127 O.R. (3d) 401<\/a>, at paras.\u00a081<\/a>, 86;\u00a0Re Charkaoui<\/em>,\u00a02007 SCC 9<\/a>,\u00a0[2007] 1 S.C.R. 350, at para.\u00a0123<\/a>;\u00a0Scotland v. Canada (Attorney General)<\/em>,\u00a02017 ONSC 4850,\u00a0139 O.R. (3d) 191<\/a>.<\/p>\n

[37]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The plaintiff submits that the approach in\u00a0Mackenzie v. Martin<\/em>\u00a0is also consistent with the law in the United States, where time runs from the date of release, not the date of detention:\u00a0Milliken v. City of South Pasadena,\u00a0<\/em>158 Cal. Rptr. 409, 412 (Cal. Ct. App. 1979);\u00a0Donaldson v. O’Connor<\/em>,\u00a0493 F.2d 507<\/span>, 529 (5th Cir. 1974).<\/p>\n

[38]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0While I have concerns with the broad application of\u00a0Kolosov<\/em>\u00a0urged 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\u00a0PAPA<\/a><\/em>, which would cause me to consider a continuing injury. Rather, since section 5(1)(a) of the\u00a0Limitations Act<\/em>\u00a0establishes a four-part test, I regard\u00a0Kolosov<\/em>\u00a0as 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, \u201c[h]aving regard to the nature of the loss or damage, a proceeding would have been an appropriate means to seek to remedy it.\u201d<\/p>\n

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[<\/a>46]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In 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\u2019s 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\u2019s 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.<\/p>\n<\/div>\n

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\u00a0[<\/a>47]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Further, 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.\u00a0 I find, as the Court of Appeal did in\u00a0Presidential MSH Corporation<\/i>\u00a0v. Marr, Foster & Co. LLP<\/i>,\u00a02017 ONCA 325<\/span>,\u00a0135 O.R. (3d) 321<\/span><\/a>\u00a0(\u201cPresidential MSH Corporation<\/i>\u201d),\u00a0<\/i>at para.\u00a032<\/a><\/span>,\u00a0<\/i>that\u00a0\u201c<\/b>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.\u201d Moreover, a lawsuit would not have achieved Vu\u2019s objective of being released.<\/div>\n<\/div>\n
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\u00a0[<\/a>48]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Had Vu known of the evidence that McNamara\u2019s 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\u2019s detention order in the Federal Court, as his counsel explained Vu had good reasons not to do so: he accepted the CBSA\u2019s representations that his removal was \u201cimminent,\u201d 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\u2019s need to defend the claim.\u00a0 Further, as\u00a0<\/i>the Supreme Court of Canada observed recently in\u00a0Canada (Public Safety and Emergency Preparedness) v. China<\/i>,\u00a02019 SCC 29<\/span><\/a>,\u00a0433 D.L.R. (4th) 381<\/span>, at paras.\u00a061-67<\/a><\/span>, judicial review of an Immigration Division decision is challenging.\u00a0 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 \u201cwill generally result in an order for redetermination, requiring further hearings to obtain release and thereby\u00a0extending detention<\/u>\u201d (emphasis added).<\/div>\n
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[<\/a>52]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In this case, however, rather than the contents of the disclosure having a negligible impact on the reasonable and probable grounds for Vu\u2019s arrest and detention, the revelation that McNamara had used an interpreter while interviewing the witness was not merely a finding of helpful evidence \u2013 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\u2019s fifteen months in detention. As a result, I do not accept the defendant\u2019s submission that the disclosure of the memorandum in June 2015 was simply something that strengthened an already \u201cdiscovered\u201d claim: see, e.g.,\u00a0Sosnowski<\/i>, at paras.\u00a019, 27-29<\/a>. The plaintiff\u2019s affidavit might have invited this argument where he stated that only after the June 13, 2016 disclosure he became \u201cconfident that my detention had been unlawful.\u201d 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\u00a0Novak v. Bond<\/i>,\u00a0\u00a01999 CanLII 685 (SCC)<\/a>,\u00a0[1999] 1 S.C.R. 808 (S.C.C.)<\/span>,\u00a0at para.\u00a085<\/a><\/span>:<\/p>\n<\/div>\n

Litigation is never a process to be embarked upon casually and sometimes a plaintiff\u2019s 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.<\/p>\n<\/div>\n<\/blockquote>\n

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[<\/a>55]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Applying these principles, in my view, a lawsuit for damages over Vu\u2019s arrest and detention was not an \u201cappropriate means\u201d 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\u00a0s. 5(1)<\/span>(a)(iv) until June 2015.<\/p>\n<\/blockquote>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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)\u00a0of the Limitations Act on the analysis: [30]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Not surprisingly, the defendant takes the position that the limitation period commenced when Vu was detained, on June 27, 2013.\u00a0 … Continue reading Ontario: s. 5(1)(a)(iv) and the limitation of false arrest and imprisonment claims<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[85,144,9,316,317,23,45],"class_list":["post-1159","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-appropriateness","tag-discoverability-principles","tag-discovery","tag-false-arrest","tag-false-imprisonment","tag-ontario-act-s-5","tag-ontario-act-s-51aiv"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1159","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1159"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1159\/revisions"}],"predecessor-version":[{"id":1161,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1159\/revisions\/1161"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1159"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1159"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1159"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}