



COURT OF APPEAL FOR ONTARIO

CITATION: Vu v. Canada (Attorney General),
    2021 ONCA 574

DATE: 20210823

DOCKET: C68398

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

Huan Vu

Plaintiff (Respondent)

and

Attorney General of Canada

Defendant (Appellant)

Kristina Dragaitis and Aleksandra
    Lipska, for the appellant

Subodh S. Bharati and W. Cory Wanless, for the
    respondent

Heard: March 4, 2021 by video conference

On appeal from the order of Justice Paul
    B. Schabas of the Superior Court of Justice, dated April 21, 2020, with reasons
    reported at 2020 ONSC 2447.

Fairburn A.C.J.O.:


A.

Overview

[1]

The respondent started a claim for false arrest,
    false imprisonment, and breaches of his rights under the
Canadian Charter
    of Rights and Freedoms
. The appellant brought a motion for summary
    judgment pursuant to r. 20 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, on the basis that the respondents action is statute-barred
    pursuant to ss. 4 and 5 of the
Limitations Act, 2002
, S.O. 2002, c. 24. That
    motion was dismissed.

[2]

This appeal is predicated on multiple alleged
    errors in the motion judges reasons, all of which are said to have led to the
    erroneous conclusion that the respondents action is not statute-barred. For
    the reasons that follow, I would dismiss this appeal.

Brief Factual Overview

[3]

In 1999, the respondent, a Vietnamese citizen,
    came to Canada as a student. In 2001, his legal status in Canada expired, but he
    did not leave the country. In 2007, Citizen and Immigration Canada ordered his
    removal from Canada, but he remained in the country. Also in 2007, he was
    charged with and convicted of one count of possession of marijuana, for which
    he received a 3-month conditional sentence.

[4]

In 2009, the respondent was placed into
    immigration detention. He was later released on terms, including that he reside
    at the home of his friend and bondsperson, Mr. John Le, and adhere to a nightly
    curfew from 2:00 a.m. to 6:00 a.m. Mr. Le also signed a $10,000 performance
    bond and a $15,000 cash bond to guarantee the respondents compliance with his
    release terms.

[5]

In 2010, the respondent married his current
    wife. In 2012, he and his wife had a child. The respondent quickly became the
    childs primary caregiver as his wife was the sole income earner. The
    respondent maintained that he would spend his days caring for the child in the
    home where his wife and child lived, but that he would always return to the
    residence of his bondsperson at night in order to comply with the terms of his
    release.

[6]

The crux of the allegation leading to the
    respondents arrest, lengthy detention, and eventual deportation from Canada
    occurred on June 25, 2013 at about 10:00 a.m. On that day, Canada Border
    Services Agency (CBSA) officers, including Officer Erin McNamara, conducted a
    compliance check at the bondspersons residence. The respondent was not there.
    According to Officer McNamaras statutory declaration, used at the immigration
    proceeding resulting in the respondents detention and ultimate deportation
    from Canada, she spoke to an English speaking resident Ms. Than Luong.

[7]

Officer McNamara said that she showed Ms. Luong a
    picture of the respondent and asked if he was home. According to Officer
    McNamara, Ms. Luong responded that the respondent used to reside in the
    basement with her daughter, but that he had moved out last summer and did
    not live there anymore.

[8]

On June 27, 2013, the respondent was arrested
    for breach of the terms of his release and placed into detention. The
    respondent attended two detention reviews before the Immigration Division
    tribunal on July 2, 2013 and July 9, 2013. At the second review, the respondent
    filed the sworn affidavit evidence of Ms. Dau Thi Le, the mother of the
    bondsperson, Mr. Le.

[9]

In Ms. Les affidavit, she said that she was the
    woman who spoke to the CBSA officers on June 25, 2013, not Ms. Luong. Ms. Le said
    that she was present in the home that day because, despite her health problems,
    her daughter asked her to babysit her grandchildren. Ms. Le said that she does
    not speak or understand English well, but [is] fluent in Vietnamese. Even so,
    she said that she communicated with the officers in English. She described her interaction
    with the CBSA officers as follows:

Around 12 noon on that day, two people, a man
    and a woman, came to my daughters home, and when I opened the door, I saw them
    in bullet proof vests and they looked like police officers to me. I asked them
    in English what happened and they showed me a photograph and asked me in
    English if Hoan Vu lived at my daughters house, and I answered that I did not
    know.

When my daughter returned home at 3pm on that
    day, I told her that those two people came to her home to inquire if Hoan Vu
    lived there. My daughter then told me that Hoan Vu did live in her house,  but
    only at night.

[10]

Ultimately, the Immigration Division tribunal
    accepted Officer McNamaras evidence about what Ms. Luong said in English at
    the residence and ordered the respondent detained. The detention stretched over
    467 days in what he described as a maximum-security facility.

[11]

On October 7, 2014, well over a year after he
    was placed into detention, the respondent was escorted by CBSA officers to
    Vietnam, where he was released the next day.

[12]

Because the respondent breached his terms, Mr.
    Les bonds were forfeited. Mr. Le contested the forfeiture of the bonds in
    Federal Court. In the context of that litigation, CBSA Officer Derek Sliwka
    authored a document entitled Notes to File (Notes), dated March 2, 2015. Of
    course, this was after the respondent had already been removed from the
    country.

[13]

The Notes were disclosed and ultimately made
    their way to the respondent. In the Notes, Officer Sliwka wrote that, in
    preparation for writing the Notes, he reviewed the electronic systems and the
    case file along with the submission from counsel.

[14]

Officer Sliwka summarized Mr. Les counsels
    position that Officer McNamara actually encountered Ms. Le at the door of the
    bondspersons home on June 25, 2013, and that she does not speak English. Officer
    Sliwka explained that Officer McNamara maintains that she spoke to Ms. Luong
    during her investigation and that an interpreter was contacted by phone to
    translate the specific questions asked by Officer McNamara.

[15]

As a result of those Notes, the CBSA decided to
    reverse its position on the bond, settling the litigation with Mr. Le on June
    13, 2016, ultimately agreeing to return his previously forfeited funds. In an internal
    email disclosed as part of the appellants motion record, it is clear that a
    decision had been reached to not forfeit the bonds because it could not be
    defended due to the inconsistencies between the [statutory declaration of
    Officer McNamara] and the notes to file.

[16]

In affidavit evidence, the respondent explained
    the many things he was dealing with during his lengthy period in custody,
    including attempting to navigate the complexities involved with being removed
    from the country while having a child who would remain in Canada. Ultimately,
    though, the respondent explains that it was not until the Notes were released
    in the context of the bonds litigation that he came to realize that he had a
    claim. As he puts it:

Previously, I had trusted the Canadian
    government and had trusted the CBSA. I had put my faith in the adjudicators at
    my detention review hearings. I believed that they were doing their job and had
    not questioned them. I had thought that at worst the CBSA had made a mistake
    and misunderstood what I had done or what was going on. I thought maybe the
    Officer didnt realize that Johns mom didnt speak English. I had never
    believed that the CBSA would have withheld disclosure from the Immigration
    Division indicating that it knew the Statutory Declaration of Officer McNamara
    contained errors.

[17]

Accordingly, the respondent commenced his action
    on October 7, 2016. The motion judge summarized the respondents claim for
    false arrest, detention, and
Charter
breaches as follows: [t]he claim
    arises from the actions of the CBSA in arresting and supporting the [respondents]
    detention in June and July 2013, and specifically presenting false evidence at
    the review hearing on July 9, 2013, regarding the information allegedly
    obtained from the woman McNamara spoke to at the bondspersons home.

B.

The Reasons for Dismissing the Motion

[18]

In addition to his claims for false arrest,
    false imprisonment, and breaches of
Charter
rights, the respondent
    made other claims, including malicious prosecution and breach of a settlement.
    Those latter claims were struck by Schreck J. on June 1, 2018 because they
    disclosed no reasonable cause of action.

[19]

The appellant then moved for summary judgment,
    asking that the balance of the claim be struck on the basis that it was statute-barred
    by virtue of s. 5(2) of the
Limitations Act
, because the causes of
    action of false arrest, false imprisonment, and breaches of
Charter
rights are said to have been discoverable more than two years prior to the
    commencement of the action.

[20]

Before reviewing the motion judges reasons for
    dismissing the motion, it is perhaps helpful to provide a chart that summarizes
    the key dates informing the limitation period:



Date

Event



June 25, 2013

Officer McNamara visits bondspersons
          home and communicates with what she describes as the English speaking
          resident



June 27, 2013

Respondent is arrested and detained



July 9, 2013

Immigration Division accepts Officer McNamaras
          evidence over the respondents evidence, as captured in the sworn affidavit
          of Dau Thi Le, and orders the respondent detained



October 7, 2014

Respondent is escorted by CBSA officers to
          Vietnam



October 8, 2014

Respondent is released in Vietnam



June 10, 2015

Notes disclosed in the context of the bonds
          litigation state that an interpreter was used to communicate with the person
          with whom the CBSA officers spoke on June 25, 2013



June 13, 2016

Decision communicated to the bondsperson that
          the $15,000 cash bond and $10,000 performance bond are no longer required
          and would be returned to him



October 7, 2016

Action commenced by the respondent



[21]

The motion judge provided lengthy and considered
    reasons, commencing with a discussion of the legal principles that apply to
    both summary judgment and
Limitations Act
matters.

[22]

The appellant argued that the torts of false
    arrest and false imprisonment arise upon arrest. As the alleged breaches of the
    respondents
Charter
rights are tied to the allegations involving
    false arrest and false imprisonment, they are also said to arise on the date of
    arrest. Therefore, according to the appellant, the torts advanced by the
    respondent were discoverable on June 27, 2013  the date the respondent was
    arrested.

[23]

The motion judge perceived some conflict in the
    law relating to when a limitation period commences for purposes of unlawful
    arrest and detention. Ultimately, though, he determined that he did not need to
    decide that issue because, in his view, even if the limitation periods for the intentional
    torts of false arrest and false imprisonment usually start on the date of
    arrest and detention, this is nothing more than a presumption. Like all limitation
    date matters, that presumption must be considered against the four-part test
    set out in s. 5(1)(a) of the
Limitations Act
.

[24]

When considered against the four-part test in s.
    5(1)(a), the motion judge was satisfied that the presumption had been displaced
    because the respondent did not have sufficient facts on which to base his claim
    of arrest and detention until the Notes were disclosed on June 10, 2015. In addition,
    the motion judge found that, pursuant to s. 5(1)(a)(iv) of the
Limitations
    Act
, even if the respondent had sufficient facts by July 9, 2013 on which
    to allege wrongdoing, it would not have been appropriate to bring a claim until
    after the disclosure of the Notes.

[25]

The motion judge also rejected as speculative
    and unpersuasive the appellants suggestion that, even if the claim was not
    discoverable at the time of arrest, this resulted from the respondents failure
    to exercise due diligence in discovering his claim within two years of his
    arrest.

[26]

Finally, the motion judge determined that,
    pursuant to s. 5(1)(b) of the
Limitations Act
, the respondent acted
    reasonably in the circumstances in which he found himself and could not
    reasonably have been expected to have discovered his claim earlier than June
    2015.

[27]

In the end, the motion judge concluded that June
    10, 2015 was the pertinent discoverability date. Since the claim was started on
    October 7, 2016, the motion judge concluded that the claim was made well within
    the two-year limitation period.

C.

ISSUES

(i)
Overview


[28]

The appellant argues that the motion judge made
    multiple errors in his decision to dismiss the motion for summary judgment.

[29]

First, leaning on this courts decision in
Kolosov
    v. Lowes Companies Inc.
, 2016 ONCA 973, the appellant argues that the limitation
    periods for the torts of false arrest and false imprisonment automatically
    commence upon arrest. As the alleged breaches of the respondents
Charter
rights are tied to the allegations involving false arrest and false imprisonment,
    the limitation periods for those breaches are also said to commence upon the
    date of arrest. Therefore, according to the appellant, the motion judge erred
    by failing to appreciate that the torts advanced by the respondent were, for
    all intents and purposes, automatically discoverable on June 27, 2013, the date
    the respondent was arrested, or, at the very latest, July 9, 2013, when the
    respondent learned of Officer McNamaras evidence.

[30]

Second, the appellant argues that the motion
    judge erred in law by failing to articulate and apply the correct test for
    discoverability.

[31]

Third, even if the motion judge articulated the
    right test for discoverability, the appellant argues that he erred by making
    palpable and overriding errors of fact in arriving at the conclusion that the respondent
    had no claim to bring until the Notes were disclosed in June 2015.

[32]

Fourth, the appellant contends that the motion
    judge erred by failing to appreciate that the respondent did not act with due
    diligence.

[33]

Finally, the motion judge is said to have erred
    in concluding that it was appropriate within the meaning of s. 5(1)(a)(iv) and
    the circumstances of this case to delay bringing this action until after the
    Notes were disclosed.

[34]

The respondent advances an alternative argument
    in the event that the appellants position finds favour in this court. In
    particular, the respondent argues that because he was transported by the CBSA
    to Vietnam, rendering him detained for a period of time outside of Ontario, s.
    32 of the
Crown Liability and Proceedings Act
, R.S.C. 1985, c. C-50
    governs the limitation period in this case. If he is right on this, then a
    six-year (as opposed to two-year) limitation period would apply and the
    respondents claim would easily fall within that zone. As will become clear,
    there is no need to address this alternative argument

(ii)
The
    Application of
Kolosov

[35]

The appellant argues that the motion judge erred
    in failing to find that this courts decision in
Kolosov
stands for
    the clear proposition that the limitation period for wrongful arrest and
    detention commences on the date of arrest.

[36]

The appellant argued before the motion judge
    that the
Limitations Act
barred the respondents action because the
    causes of action of false arrest, false imprisonment, and breaches of
Charter
rights (as linked to the other causes of action) all crystallized and were
    discoverable on the date of the respondents arrest on June 27, 2013 and, at
    the latest, at the time of the detention hearing on July 9, 2013. In support of
    this proposition, the appellant relies upon this courts decision in
Kolosov
,
    at para. 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
, 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] O.J. No. 460
(Ont. Div. Ct.),
    para. 14; [
Ferri
]

v. Root
, [2007] O.J. No. 397
(Ont. C.A.), para.
    102).

[37]

The respondent, citing different and earlier
    appellate authority that he argued was not overturned by
Kolosov
,

urged
    the motion judge to instead conclude that the limitation period commenced not
    on the date of arrest, but on the date of his release from detention in
    Vietnam:
Mackenzie v. Martin
,

[1952] O.R. 849 (C.A.), at paras.
    6-8, affd [1954] S.C.R. 361.

[38]

The motion judge reviewed the issue in some
    detail, clearly expressing misgivings about the broad interpretation of
Kolosov

being urged upon him by the appellant. Among other things, the motion judge
    looked behind the cases cited in
Kolosov

in an effort to explain
    why the appellants position about the reach of
Kolosov

was not
    as clear as suggested. The motion judge also expressed some concern that a
    false arrest and an unlawful imprisonment may not occur at the same time.

[39]

Despite expressing these misgivings, in the end,
    the motion judge concluded that he need not resolve the parties disparate
    views as to whether the limitation period commenced on the date of arrest or
    release given that, even taking
Kolosov

at its highest, it only
    created a rebuttable presumption under s. 5 of the
Limitations Act
and
    that the presumption had been rebutted in this case:

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.  [S]ince 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 [July 9, 2013], 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 .

[40]

Significantly,
Kolosov
has been cited
    by this court in subsequent decisions for the very proposition disputed by the
    respondent, that the limitation period presumptively runs from the date of
    arrest: see, for example,
Winmill v. Woodstock (Police Services Board)
,
    2017 ONCA 962, 138 O.R. (3d) 641, at para. 44,
per
Huscroft J.A. (dissenting),
    leave to appeal refused, [2018] S.C.C.A. No. 39;
McHale v. Lewis
,

2018
    ONCA 1048, 144 O.R. (3d) 279, at para. 42. Therefore, the appellants argument has
    some traction as to when limitation periods commence in cases of this nature.

[41]

At the same time, I understand the appellants
    concern to be the motion judges characterization of the appellants reading of
Kolosov
, and his expression of misgiving about it. At the end of the
    day, though, the motion judge did not find that
Kolosov
stands for any
    principle broader than the presumption that a cause of action arises on the
    date of arrest and detention or, at the latest, the date of the second
    detention hearing a few weeks later. Indeed, the motion judge was prepared to resolve
    the motion on that basis. In the end, he simply resolved that the date of
    arrest  the
Kolosov
date  was the presumptive date for the commencement
    of the limitation period, but that the respondent had effectively displaced
    that presumption.

[42]

Therefore, despite having expressed misgivings
    about the appellants submissions, I do not read the motion judges reasons as unfaithful
    to the plain language of
Kolosov
.

Rather, he accepted, however
    reluctantly, the appellants position that the limitation period presumptively begins
    to run at the date of arrest. This makes sense legally, given that the arrest is
    the act on which the claim is based, and is therefore the presumptive date of
    discovery of the claim:
Limitations Act
, s. 5(2). It makes sense
    practically as well, as the plaintiff will often know at the time of arrest and
    detention whether the facts alleged to justify that arrest and detention are
    false, as was the case in
Kolosov
: see 2016 ONSC 1661, at para. 119. Accordingly,
    despite his expressed concerns, the motion judges reasoning turned on whether
    the
Kolosov
presumptive date was rebutted pursuant to ss. 5(1) and (2)
    of the
Limitations Act
.

[43]

I see no error in that approach. Section 4 of
    the
Limitations Act
requires an action in respect of a claim to be
    commenced within two years of the claim being discovered. Sections 5(1) and (2)
    of the
Limitations Act
read as follows:

5(1) A claim is discovered on the
    earlier of,

(a) the day on which the person with
    the claim first knew,

(i) that the injury,
    loss or damage had occurred,

(ii) that the
    injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act
    or omission was that of the person against whom the claim is made, and

(iv) that, having regard
    to the nature of the injury, loss or damage, a proceeding would be an
    appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with
    the abilities and in the circumstances of the person with the claim first ought
    to have known of the matters referred to in clause (a).

(2) A person with a claim shall be
    presumed to have known of the matters referred to in clause (1)(a) on the day
    the act or omission on which the claim is based took place,
unless the contrary is proved
. [Emphasis added.]

[44]

Despite the presumption that
Kolosov
creates
    in relation to the running of the limitation period, s. 5(2) permits the
    contrary to be proved in accordance with the matters referred to in s. 5(1)(a).
    While that presumption was not rebutted in
Kolosov
, it
was rebutted here.
Accordingly, regardless
    of the hesitation expressed by the motion judge as to the reach of
Kolosov
,
    nothing in this case turns on those observations.

(iii)
The Proper Articulation of the Test for Discoverability Based on
    Sufficient Facts

[45]

The appellant next argues that, despite referring
    to the correct legal authorities respecting how to determine the date of
    discoverability based upon sufficient facts, the motion judge erred in his
    articulation and application of that test.

[46]

The appellant notes that the discoverability
    principle is satisfied once the party has sufficient information to infer the
    material facts underlying the claim, a test that does not turn in any way upon the
    viability of the claim. The motion judge is said to have erred in failing to
    appreciate that the respondent knew all material facts by, at the latest, the
    Immigration Division hearing on July 9, 2013. By extending the discoverability
    date to June 10, 2015  the date the Notes were disclosed  the motion judge is
    said to have erred by focusing on when the claim was more likely to succeed,
    rather than when the respondent knew the claim existed.

[47]

Limitation periods are driven by when the
    material facts on which [a cause of action] is based have been discovered or
    ought to have been discovered by the plaintiff by the exercise of reasonable
    diligence:
Central Trust Co. v. Rafuse
, [1986] 2 S.C.R. 147, at p.
    224; see also
Grant Thornton LLP v. New Brunswick
, 2021 SCC
    31, at paras. 29, 42. As noted by this court in
Zeppa v. Woodbridge Heating
    & Air-Conditioning Ltd.
, 2019 ONCA 47, 144 O.R. (3d) 385, at para. 41,
    leave to appeal refused, [2019] S.C.C.A. No. 91: discoverability means
    knowledge of the facts that may give rise to the claim. The knowledge required
    to start the limitation running is more than suspicion and less than perfect
    knowledge.

[48]

In my view, the motion judge identified the
    correct law relating to limitation periods. Notably, the motion judge cited to this
    courts judgment in
Lawless v. Anderson
, 2011 ONCA 102, 276 O.A.C. 75,
    at para. 22, which in turn quoted from this courts earlier judgment in

Aguonie v.
    Galion Solid Waste Material Inc.
(1998), 38 O.R. (3d) 161
(C.A.), at p. 170:


The principle of discoverability provides that
    a cause of action arises for the purposes of a limitation period when the
    material facts on which it is based have been discovered, or ought to have been
    discovered, by the plaintiff by the exercise of reasonable diligence. This
    principle conforms with the generally accepted definition of the term cause of
    action  the fact or facts which give a person a right to judicial redress or
    relief against another:
Aguonie v. Galion Solid Waste Material Inc.
[citation omitted.]

[49]

As emphasized by the motion judge, the real
    question is whether the plaintiff knows enough facts with which to bring
    forward the claim:
Lawless
, at para. 23. If the plaintiff does know
    enough facts, then the claim is discovered and the limitation period begins
    to run. Knowing enough facts means knowing the material facts that are
    necessary to make the claim:
Lawless
, at para. 28.

[50]

I reject the suggestion that the motion judge did
    not appreciate that the principle of discoverability does not turn on whether
    the claim has a likelihood of success. As the motion judge put it, the
    discovery of a claim is also not dependent upon the plaintiff knowing that his
    claim is likely to succeed. The motion judge was right in this regard. As
    noted by Hourigan J.A. in
Sosnowski v. MacEwen Petroleum Inc.
,

2019
    ONCA 1005, 441 D.L.R. (4th) 393, at para. 19, a determination of when it is
    appropriate to proceed with a claim does not include whether a civil
    proceeding will succeed. I see nothing in the motion judges reasons that
    would suggest he was unfaithful to that statement of law.

[51]

To the contrary, the motion judges reasons demonstrate
    that he was alive to the applicable law concerning discoverability. The law
    having been correctly stated, the question really becomes whether the motion
    judge made palpable and overriding errors of fact. I will now explain why he
    did not.

(iv)
No Palpable and Overriding Errors of Fact

[52]

The appellant acknowledged during oral argument that
    the real core of this appeal turns on what is said to be a palpable and
    overriding error of fact made by the motion judge.

[53]

The appellant claims that the motion judge erred
    in concluding that the Notes disclosed in the context of the bonds litigation brought
    anything new to the appellants attention. According to the appellant, the only
    way that the motion judge could have come to this conclusion would be if he had
    completely forgotten about or disregarded the Le affidavit that the appellant
    filed at the Immigration Division hearing on July 9, 2013.

[54]

The argument goes like this. At the latest, the respondent
    knew by July 9, 2013 (the Immigration Division hearing date) that Officer
    McNamara claimed to have spoken to an English speaking resident Ms. Than Luong
    at the doorway on June 25, 2013. Also by July 9, 2013, it is clear from the evidence
    filed by the respondent at the Immigration Division hearing that he maintained
    that it was not Ms. Luong but rather Ms. Le who spoke with the CBSA officers at
    the front door of the residence, and that she did not speak English well. The
    appellant places importance on the fact that the Le affidavit suggests that she
    attempted to communicate with the CBSA officers in English and makes no mention
    of an interpreter.

[55]

The appellant argues that the Le affidavit was
    fundamental to the resolution of the motion because it demonstrates that there
    was no interpreter used. And, even if there was an interpreter used, the
    appellant says that, with the McNamara statutory declaration and the Le
    affidavit in hand by July 9, 2013, it is clear that the respondent knew he had
    a claim if he wished to proceed. Therefore, the motion judges palpable and
    overriding error is said to be implicit in the failure to appreciate the importance
    of the Le affidavit, thereby leaving the motion judge with a distorted view of
    the importance of the new information provided in the Notes.

[56]

Based upon this line of argument, the appellant
    contends that the motion judge could not have come to the following conclusion:

In the
    particular context of this case, therefore,
I find as a
    fact
that Vu did not have sufficient facts on which to allege wrongdoing
    by the CBSA for which he could seek damages until June 10, 2015, when he
    received the [Notes] disclosing that McNamara had used an interpreter when
    conducting her investigation in June 2013. [Emphasis added.]

[57]

In my view, it was open to the motion judge to
    arrive at this factual finding.

[58]

Importantly, he based the finding upon the
    respondents affidavit evidence explaining that, prior to receiving the Notes
    and learning that an interpreter had been used during the interaction at the
    doorway of the bondspersons home, he thought that the CBSA had only made a
    mistake and misunderstood what had been communicated by the woman who answered
    the door. As the respondent put it: I thought maybe the Officer didnt realize
    that Johns mom didnt speak English. It was only after receiving the Notes
    that the respondent came to realize, as he suggests in his affidavit, that the
    CBSA had actively misled the Immigration Division. I see no error in the motion
    judge leaning on that evidence to arrive upon his conclusion as reproduced
    above.

[59]

As well, the motion judge was not oblivious to
    the Le affidavit. To the contrary, he specifically referenced it in his
    reasons, albeit in his factual overview of the case:

July 9, 2013  Vu attends his second detention
    review before the ID. he submits affidavits that the woman the CBSA spoke to at
    [the bondspersons home] on June 25, 2013, Dau Thi Le, his bondspersons
    mother, did not speak English well, that she did not live there but rather was
    babysitting that day, and that she said she did not know if Vu lived there.

[60]

Clearly, the motion judge was alive to the Le
    affidavit.

[61]

In my view, it was open to the motion judge to
    come to the conclusion that he did. The Notes make clear reference to the fact
    that Officer McNamara indicates that during her investigation, she was talking
    with Ms. Than Luong and an interpreter was contacted by phone to translate the
    specific questions asked by Officer McNamara. Yet this stood in direct
    contrast with Officer McNamaras statutory declaration. While the truth
    undoubtedly lies somewhere and, at some point, may see the light of day, it
    cannot be said that the motion judge committed a palpable and overriding error
    when he concluded that the respondent did not have sufficient facts on which to
    allege wrongdoing until he received the Notes. Nor can it be said that there is
    anything in the Le affidavit that detracts from that conclusion.

(v)
The Motion Judge Did Not Err on Due Diligence

[62]

The appellant also argues that, even if a later
    discoverability date applies, the respondent did not act with due diligence in discovering
    his claim within two years of his arrest. The motion judge is said to have
    erred in concluding that this argument was, at best, speculative and
    unpersuasive. To the contrary, the appellant contends that the respondent
    could have discovered additional details if he had proceeded with an
    application for leave and judicial review of his detention in Federal Court.

[63]

While a plaintiff is required to act with due
    diligence when determining if they have a claim to bring forward, the content
    of the duty of due diligence depends on the circumstances of each case:
Longo
    v. MacLaren Art Centre Inc.
, 2014 ONCA
    526, 323 O.A.C. 246, at para. 42
.

[64]

I see no error in the motion judges conclusion
    that the appellants argument on due diligence was speculative and
    unpersuasive.

[65]

In light of all of the harsh circumstances involved
    in the respondents detention

all 467 days of them, including
    being detained outside of Toronto, far from family and his lawyer; enduring strip
    searches and frequent lockdowns; and having limited resources to investigate
    the lawfulness of his arrest and subsequent detention while incarcerated

it was open to the motion judge to find that the respondent did not fail to
    exercise due diligence in discovering his claim.

[66]

Moreover, the respondent explained that he did
    not pursue a review of the Immigration Divisions determination because the
    CBSA led him to believe that his detention would be brief and removal imminent,
    making what he believed to be a lengthy judicial review application pointless. This
    context is relevant to understanding what degree of due diligence was required
    of the respondent.

[67]

In any event, it was not clear how a review
    would have led to the disclosure of the content of the Notes.

[68]

The motion judges finding on this point is owed
    deference and I would not interfere with it.

(vi)
The Motion Judges Alternative Finding

[69]

Finally, the appellant argues that the motion
    judge erred in arriving at the alternative conclusion that it would not have
    been legally appropriate to bring the claim earlier than June of 2015:
Federation
    Insurance Co. of Canada v. Markel Insurance Co. of Canada
, 2012 ONCA 218,
    109 O.R. (3d) 652, at para. 34.

[70]

In light of the resolution of the former issues,
    there is no need to address this one, other than to say that I see no error in
    the motion judges alternative reasoning.

D.

Conclusion and Costs

[71]

The appeal is dismissed.

[72]

The appellant raised the issue of costs, arguing
    that the $54,000 ordered by the motion judge was too high. I see no error in
    how the motion judge arrived at this amount. His decision is owed deference.
    Therefore, the appeal as to costs is dismissed.

[73]

Costs for the appeal will be fixed in the amount
    of $15,000, all inclusive.

Released: August
    23, 2021 JMF

Fairburn A.C.J.O.

I agree B.W. Miller J.A.

I agree B. Zarnett J.A.


