



COURT OF APPEAL FOR ONTARIO

CITATION: Cassidy v. Belleville (Police Service), 2015 ONCA
    794

DATE: 20151123

DOCKET: C60466

Cronk, Epstein and Huscroft JJ.A.

BETWEEN

Paula Cassidy

Plaintiff/Appellant

and

Belleville Police Service and Wayne Groen

Defendants/Respondents

R. Steven Baldwin and Jordan Sewell, for the appellant

Kristin Muszynski and Kevin Cooke, for the respondents

Heard:  November 12, 2015

On appeal from the summary judgment of Justice Stanley J.
    Kershman J. of the Superior Court of Justice, dated April 17, 2015.

ENDORSEMENT

[1]

Paula Cassidy, the appellant, appeals from the order of the motion judge
    granting summary judgment and dismissing her action in negligence against the
    respondents on the basis that it is barred by operation of the two-year
    limitation period established by s. 4 of the
Limitations Act
, 2002,
    S.O. 2002, c. 24, Sched. B (the Act).

[2]

The action arose out of the actions of Officer Wayne Groen of the
    Belleville Police Service, who stopped the appellant while she was driving her
    car on August 18, 2009. Officer Groen informed the appellant that the car was
    stolen and confiscated it, leaving the appellant and her children to make their
    way home. The appellant was pregnant at that time and alleges that she suffered
    medical complications relating to her pregnancy as a result of Officer Groens
    conduct.

[3]

The appellant wrote to a lawyer on August 24, 2009 asking whether she
    should pursue a civil action, but did not commence her claim at this time.

[4]

On September 11, 2009, the appellant wrote a letter of complaint to the
    Belleville Police Service. She received a reply to her complaint on June 23,
    2011 and, on July 8, 2011, she requested a review of her complaint by the Ontario
    Civilian Police Service. The appellants complaint was upheld, in part, and she
    was informed of the decision on November 29, 2012 in correspondence from the
    Belleville Chief of Police.

[5]

On October 10, 2013  more than four years following the incident
    involving Officer Groen  the appellant commenced her action.

[6]

The motion judge found that the limitation period commenced on August
    18, 2009 at the earliest (the date of the incident) and August 24, 2009 at the
    latest (the date the appellant wrote to a lawyer).

[7]

The appellant argues that the limitation period did not begin to run
    from the date of the incident involving Officer Groen because she was not
    familiar with the standard of care required of police officers at that time. She
    characterizes her correspondence with a lawyer several days following the
    incident as an inquiry and submits that it was reasonable for her to pursue
    available administrative remedies in order to determine the material facts
    before commencing her action.

[8]

The appellant maintains that the limitation period did not begin to run
    until November 29, 2012, the date she learned of the decision of the Ontario
    Civilian Police Service regarding its review of her complaint. This is the
    date, according to the appellant, that she was informed of the standard of care
    required of police officers.

[9]

The appellants arguments must be rejected. We see no error in the
    motion judges discoverability analysis.

[10]

A
    claim is discovered on the date the claimant knew, or ought to have known, of
    the material facts giving rise to the claim. As this court explained in
Lawless
    v. Anderson
, 2011 ONCA 102, at para. 23:

Determining whether a person has discovered a claim is a
    fact-based analysis. The question to be posed is whether the prospective
    plaintiff knows enough facts on which to base an allegation of negligence
    against the defendant. If the plaintiff does, then the claim has been
    discovered, and the limitation begins to run.

[11]

It
    was presumed under s. 5(2) of the Act that the appellant knew of the matters
    giving rise to her potential claim on the day the incident took place  August
    18, 2009  unless the contrary was proved. The appellant raised no evidence to
    rebut this statutory presumption. Accordingly, by the time the appellant
    commenced her action in October 2013, the limitation period had expired and her
    action was statute-barred.

[12]

This
    is not a case in which expert evidence was required in order for the appellant
    to discover her claim. The facts of the case were relatively straightforward
    and known to the appellant from the time of the incident. She was aware of the
    offending conduct, the identity of the offender, and the nature of her
    injuries.

[13]

The
    administrative processes the appellant invoked concerned the oversight of
    police conduct and maintenance of police standards. Although these processes
    provided additional information in support of the appellants claim, discovery
    of her claim did not depend on them.  Discovery of sufficient material facts to
    trigger commencement of the limitation period did not depend on precise
    knowledge of the applicable standard of care and whether Officer Groens
    conduct fell below it.

[14]

The
    appellant relied on
Coutanche v. Napolean Delicatessen
, [2004] O.J.
    No. 2746, 72 O.R. (3d) 122, in support of the proposition that a potential
    plaintiff may engage a commission to perform an investigation into a matter and
    await its decision prior to commencing an action.
Coutanche
does not
    assist the appellant. Unlike this case,
Coutanche
involved the
    possible extension of a limitation period under family law legislation,
    something that is not available in these circumstances.

[15]

For these reasons, the appeal is dismissed. The respondents
    are entitled to their costs of the appeal, fixed in the agreed amount of
    $10,000, inclusive of disbursements and all applicable taxes.


E.A. Cronk J.A.

Gloria
    Epstein J.A.


Grant
    Huscroft J.A.


