



COURT OF APPEAL FOR ONTARIO

CITATION: Winmill v. Woodstock (Police Services Board), 2017
    ONCA 962

DATE: 20171207

DOCKET: C63796

Feldman, MacPherson and Huscroft JJ.A.

BETWEEN

Robert Winmill

Plaintiff (Appellant)

and

Woodstock Police Services Board, Police Constable
    Dopf, Police Constable Campbell, Police Constable John Doe(s) and Constable
    Jane Doe(s)

Defendants (Respondents)

Kevin A. Egan, for the appellant

David S. Thompson, for the respondent

Heard: November 10, 2017

On appeal from the order of Justice A.K. Mitchell of the Superior
    Court of Justice, dated June 14, 2017.

Limitations Period - appeal of decision granting
    defendant's motion for an order dismissing plaintiff's claim for battery as
    statute-barred - plaintiff argues discoverability, that he was unable to start
    a claim until he was released from custody, and that he was suffering from
    depression.

MacPherson J.A.:

A.

introduction

[1]

The appellant, Robert Winmill, appeals from the decision of Mitchell J.
    of the Superior Court of Justice dismissing, on a motion, the appellants claim
    for battery against the respondents Woodstock Police Service and various police
    officers as statute barred by virtue of s.4 of the
Limitations Act, 2002
,
    S.O. 2002, c.24, Sched. B (
LA
).

[2]

The central issue is when the appellant discovered his potential claim
    in battery against the respondents. Resolution of this issue focuses on the
    interpretation of s. 5(1)(a)(iv) of the
LA
, and in particular on when
    the appellant knew that a legal proceeding would be an appropriate means to
    seek to remedy the alleged battery against him.

B.

facts

(1)

The parties and events

[3]

On the evening of June 1, 2014, there was an altercation at the
    appellants home between the appellant and one of his sons. The appellants
    wife called the police.

[4]

According to the appellants Statement of Claim, several officers from
    the Woodstock Police Service arrived at his home. By the time of their arrival,
    he was alone in the home. According to the appellant, Constables Dopf and
    Campbell entered the home and confronted him in the living room. Constable Dopf
    initiated unnecessary and aggressive physical contact with him. Constable
    Campbell joined in. The two constables forced the appellant to the ground and
    struck the appellant in the back and head with knee strikes and punches. In the
    process, the constables handcuffed the appellant in such an aggressive manner
    that he suffered cuts and bruises to his arms.

[5]

The appellant was taken to the police station. He was charged with
    assaulting Constable Dopf and resisting arrest. He was not charged with any
    offence relating to the altercation with his son.

[6]

On February 17, 2016, the appellant was acquitted of both charges by
    Graham J. of the Ontario Court of Justice. The trial judge concluded:

I cannot state with a requisite degree of certainty that Robert
    assaulted Constable Dopf at that moment. It is possible as it would explain the
    robust police reaction. However, it is equally plausible that Dopf pushed
    Robert with a fair degree of force and that the defendant reacted to an
    unlawful assault by actively trying to disengage from police. There is no
    suggestion he kneed or punched the officers.

In any event, during the subsequent interaction I am not certain
    that Robert was lawfully under arrest. It is possible that police advised him
    during the course of that struggle. It is equally likely that he was arrested
    inside the police cruiser once he had been secured. The photographs show
    injuries to the defendant, but they do not assist me in resolving the matter.

Based on the evidence that I do accept I am left with a
    reasonable doubt with respect to both charges. The defendant is found not
    guilty.

[7]

On June 2, 2016, the appellant filed a Notice of Action against the
    respondents, signalling that he would be seeking damages for negligent
    investigation and assault. This was two years and one day after the alleged
    battery had taken place.

[8]

On June 22, 2016, the appellant filed a Statement of Claim sounding in
    the tort of battery, abuse of authority as police officers, and negligence in
    the discharge of police duties.

[9]

On September 16, 2016, the respondents filed a Notice of Motion seeking
    to dismiss the action because the relevant limitation period had expired. The
    motion was not argued in the autumn of 2016.

[10]

On
    February 24, 2017, Gorman J. of the Superior Court of Justice made a consent
    order permitting the appellant to make factual allegations to support a claim
    for negligent investigation.

[11]

On
    March 24, 2017, the respondents filed an Amended Amended Notice of Motion
    seeking an order that [t]he limitation period for the Plaintiffs claim for
    damages arising from assault or battery has expired. The respondents did not
    say that the appellants claim grounded in negligent investigation was statute
    barred.

(2)

The motion

[12]

The
    respondents motion was argued on April 3, 2017. The appellant resisted a
    limitation period expiration date of June 1, 2016 (two years after the alleged
    battery) on three bases  discoverability; inability to commence an action
    because he was in custody and/or the courthouse was closed on June 1, 2016; and
    incapacity to commence a proceeding because of a physical, mental or
    psychological condition.

[13]

The
    motion judge rejected the appellants arguments. She concluded:

The defendants motion is granted and the plaintiffs claim for
    battery is dismissed. The limitation period for the tort of negligent
    investigation began to run on February 17, 2016 (the date Mr. Winmill was found
    not guilty) and, therefore, the plaintiffs claim for negligent investigation
    is unaffected and may continue.

[14]

The
    appellant appeals from the motion judges decision.

C.

issue

[15]

The
    sole issue on the appeal is: did the motion judge err by concluding that the
    appellants claim in battery against the respondents was not made inside the
    two year limitation period prescribed by s. 4 of the
LA
?

D.

analysis

[16]

The
    analysis of the limitation period in this case must take place within the
    confines of ss. 4 and 5(1) of the
LA
, which provide:

4        Unless
    this Act provides otherwise, a proceeding shall not be commenced in respect of
    a claim after the second anniversary of the day on which the claim was
    discovered.

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
. [Emphasis added.]

[17]

I
    begin with a structural point. In a single case where a plaintiff alleges
    different torts, it is possible and permissible for different limitation
    periods to apply to the different torts: see
West v. Ontario
, 2015
    ONCA 147, at paras. 2-3.

[18]

Turning
    to s. 5(1)(a) of the
LA
, in this case there is no issue with respect
    to the first three of the four factors set out in this clause. The appellant
    knew that he had been injured on June 1, 2014, that the injury was caused by
    physical blows to his body, and that at least some of the respondents
    administered those blows.

[19]

The
    crucial issue is the fourth factor: did the appellant know on June 1, 2016 that
    a legal proceeding would be an appropriate means to seek to remedy the injuries
    caused by the alleged battery committed against him?

[20]

The
    motion judge answered this question in the affirmative. She reasoned:

It is clear from the evidence the plaintiff had knowledge that
    litigation was available to him as a remedy for the damages he had suffered at
    the hands of the police. Whether and to what extent he may have been found
    criminally responsible for the offences with which he had been charged was in
    no way determinative of whether or not he had been the subject of excessive
    force and assaulted by police.



The plaintiff admitted he knew litigation was an option and by
    extension he is therefore deemed to know it was appropriate to sue the
    Woodstock Police Service for redress of his injuries suffered on June 1, 2014.

[21]

In
    assessing whether the motion judge erred in reaching this conclusion, I begin
    with three contextual points about subclause (iv) of s. 5(1)(a) of the
LA
.

[22]

First,
    the word appropriate means legally appropriate. As explained by Sharpe J.A.
    in
Markel Insurance Company of Canada v. ING Insurance Company of Canada
,
    2012 ONCA 218, at para. 34:

In my view, when s. 5(1)(a)(iv) states that a claim is
    discovered only when having regard to the nature of the injury, loss or
    damage, a proceeding would be an appropriate means to seek to remedy it, the
    word appropriate must mean
legally appropriate
. To give
    appropriate an evaluative gloss, allowing a party to delay the commencement
    of proceedings for some tactical or other reason beyond two years from the date
    the claim is fully ripened and requiring the court to assess to tone and tenor
    of communications in search of a clear denial would, in my opinion, inject an
    unacceptable element of uncertainty into the law of limitation of actions.
    [Emphasis in original.]

[23]

Second,
    this does not mean that determining whether a limitation period applies
    involves pulling two simple levers  date of injury and date of initiation of
    legal proceeding  and seeing whether the result is inside or outside the
    limitation period prescribed by the relevant statute. On the contrary, other
    important factors can come into play in the analysis. As Laskin J.A. cautioned
    in
407 ETR Concession Company Limited v. Day
, 2016 ONCA 709 (
407
    ETR
), at paras. 33-34:

The appropriateness of bringing an action was not an element of
    the former limitations statute or the common law discoverability rule. This
    added element can have the effect  as it does in this case  of postponing the
    start date of the two-year limitation period beyond the date when a plaintiff
    knows it has incurred a loss because of the defendants actions.

Also, when an action is appropriate depends on the
    specific factual or statutory setting of each individual case
: see
Brown
    v. Baum
, 2016 ONCA 325, 397 D.L.R. (4th) 161, at para. 21. Case law
    applying s. 5(1)(a)(iv) of the
Limitations Act, 2002
is of
    limited assistance because each case will turn on its own facts. [Emphasis
    added.]

[24]

Third,
    within the rubric of the specific factual or statutory setting of each
    individual case, s. 5(1)(b) of the
LA
requires that attention be paid
    to the abilities and circumstances of the person with the claim: see
Novak
    v. Bond
, [1999] 1 S.C.R. 808 (
Novak
), at para. 85; and
407
    ETR
, at paras. 44-46.

[25]

Against
    this background of general principles, I turn to the motion judges conclusion
    that the appellants battery claim was outside (by one day) the two year
    limitation period prescribed by s. 4 of the
LA
. With respect, I think
    that the motion judge erred, essentially for three reasons.

[26]

First,
    the appellants negligent investigation claim is proceeding. The parties agree
    that the discoverability date for this claim is February 17, 2016, the day the
    appellant was acquitted on the criminal charges against him. Factually, the
    negligent investigation claim covers almost precisely the same parties and
    events as the battery claim. There was virtually no investigation in this case.
    The police were called, they arrived and immediately entered the appellants
    home, and some kind of altercation quickly unfolded.

[27]

In
    my view, the appellants Amended Statement of Claim shows how inextricably
    intertwined are the two alleged torts:

14 e.  The
    Defendant officers were present and knew or ought to have known that the
    Plaintiff did not commit an assault against any police officer. There was no
    reasonable cause for the Defendant officers to arrest or charge the Plaintiff
    with assault of a police officer.

14 f.   As the
    Plaintiff stood motionless, he was pushed violently in the chest by the
    Defendant Dopf. He was then thrown to the floor. Knee strikes and punches were
    then delivered by both the Defendants Dopf and Campbell. He was handcuffed,
    removed from the house and taken to the police station.

[28]

Second,
    I agree with the appellant that, in the specific factual setting of this case (
407
    ETR
), and bearing in mind the circumstances of the person with the claim (
Novak
),
    it made sense for him to postpose deciding whether to make a battery claim
    against the respondents until his criminal charges for assault and resisting
    arrest were resolved. The criminal charges of assault and resisting arrest
    against the appellant and his tort claim of battery against the respondents
    are, in reality, two sides of the same coin or mirror images of each other.

[29]

In
    general terms, McLachlin J. said this in
Novak
, at para. 85:

Litigation is never a process to be embarked upon casually and
    sometimes a plaintiffs 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
. [Emphasis added, citation omitted.]

[30]

In
    my view, a good specific example of the operation of this general point is
Brown
    v. Baum
, 2016 ONCA 325, a case involving the determination of a limitation
    period where a patient contemplated suing her doctor following a poor surgical
    result, but did not do so until after the doctor made subsequent efforts to
    correct the damage. In upholding the motion judges decision to extend the
    commencement of the limitation period to the date of Ms. Browns last
    ameliorative surgery by Dr. Baum (para. 5), Feldman J.A. said, at para. 24:

[The motion judge] was entitled to find that Ms. Brown did not
    know that it was appropriate to sue Dr. Baum until after the last surgery he
    performed to try to correct the complications and improve the outcome of the
    original surgery. As the motion judge observed, it is not simply an ongoing
    treatment relationship that will prevent the discovery of the claim under s. 5.
    In this case, it was the fact that the doctor was engaging in good faith
    efforts to remediate the damage and improve the outcome of the initial surgery.
    This could have avoided the need to sue.

[31]

In
    a similar vein, it strikes me as obvious that the verdict in the appellants
    criminal trial, especially on the assault charge, would be a crucial, bordering
    on determinative, factor in the appellants calculation of whether to proceed
    with a civil action grounded in a battery claim against the respondents.

[32]

Third,
    and overlapping with the second reason, there is a case almost directly on
    point suggesting that the appellant was justified in waiting for the verdict in
    his criminal trial before commencing a civil claim against the respondents. In
Chimienti
    v. Windsor (City)
, 2011 ONCA 16, the plaintiff was charged with assault
    following a tavern brawl. The charge was dropped. The plaintiff commenced a
    civil action with claims of negligent and malicious investigation. The motion
    judge dismissed the action on the basis of the relevant statutory limitation
    period. This court, although dismissing the appeal on other grounds, disagreed
    with the motion judges analysis of the discoverability issue. In doing so, the
    court said, at para. 15:

[T]here is something of a logical inconsistency in asking a
    civil court to rule on the propriety of a criminal prosecution before the
    criminal court has had the opportunity to assess the merits of the underlying
    charge.

[33]

In
    my view, this passage is particularly applicable to this appeal. As I said
    earlier, the criminal charges of assault and resisting arrest against the
    appellant and his tort claim of battery against the respondents are very close
    to being two sides of the same coin or mirror images of each other.
    Accordingly, it made sense for the appellant to focus on his criminal charges
    and deal with those before making a final decision about a civil action against
    the respondents.

[34]

For
    these reasons, I am of the view that the discoverability date for the
    appellants battery claim was the same as the discoverability date for his
    negligent investigation claim  February 17, 2016, the date of his acquittal on
    the criminal charges  and, accordingly, his Notice of Action on June 2, 2016
    brought both claims within s. 4 of the
LA
.

E.

disposition

[35]

I
    would allow the appeal, set aside the order of the motion judge, and permit the
    appellants battery claim against the respondents to proceed to trial.

[36]

The
    appellant is entitled to his costs of the appeal which I would fix at $5,000. I
    would set aside the motion judges costs award in favour of the respondents and
    replace it with an award of $8,948.56 in favour of the appellant. Both amounts
    are inclusive of HST and disbursements.

J. C. MacPherson J.A.

I agree. K. Feldman
    J.A.


Huscroft J.A. (Dissenting):

[37]

I
    have had the benefit of reading the draft reasons prepared by my colleague,
    MacPherson J.A. With respect, I do not agree with his analysis and would
    dismiss the appeal for the reasons that follow.

[38]

This
    is a straightforward case. On June 1, 2014, the appellant knew that he had
    suffered an injury, knew how the injury was caused, knew who he alleged had
    caused his injury, and knew that a legal proceeding would be an appropriate
    means to seek redress. He failed to bring his claim by June 1, 2016, and in my
    view his claim is now barred by operation of the
Limitation Act, 2002,
S.O. 2002, c. 24, Sched. B.

[39]

My
    colleague concludes that the limitation period did not begin to run from the
    date of the alleged battery, but instead almost 21 months later  February 17,
    2016, when the appellant was acquitted of assaulting the police officers he
    alleges were responsible for the battery. He concludes that the appellant did
    not know  and a reasonable person in the appellants position ought not have
    known  that a legal proceeding would be an appropriate means to seek to remedy
    the injuries caused by the alleged battery within the meaning of s. 5(1)(a)(iv)
    of the Act until this much later date.

[40]

In
    my view, the decision of this court in
Markel Insurance Company of Canada v.
    ING Insurance Company
, 2012 ONCA 218, 109 O.R. (3d) 652, is key to the
    correct outcome in this case. In that case, Sharpe J.A. explained that
    appropriate under s. 5(1)(a)(iv) of the Act must mean legally appropriate,
    and, at para. 34, admonished against giving the term a broad meaning:

To give appropriate an evaluative gloss, allowing a party to
    delay the commencement of proceedings for some tactical or other reason beyond
    two years from the date the claim is fully ripened  would, in my opinion,
    inject an unacceptable element of uncertainty into the law of limitation of
    actions.

[41]

My
    colleague acknowledges the authority of
Markel
, but in my view
    undermines it by emphasizing the need to attend to the factual circumstances of
    individual cases, drawing on this courts subsequent decisions in
407 ETR
    Concession Co. v. Day
, 2016 ONCA 709, 133 O.R. (3d) 762, and
Brown v.
    Baum
, 2016 ONCA 325, 397 D.L.R. (4th) 161. But both of these cases are
    clearly distinguishable. An action in
407 ETR
was not appropriate at
    the time of the injury because an alternative administrative means of settling
    the dispute had not been completed. An action in
Brown
was not
    appropriate at the time of the injury because the defendant surgeon was
    providing further treatment in an attempt to rectify the harm he was alleged to
    have caused in the initial surgery.

[42]

There
    was no alternative means of resolving the appellants allegations in this case,
    nor were the defendants in a position to rectify the harm they were alleged to
    have caused. My colleague considers it obvious that the appellant should await
    the outcome of the criminal proceedings against him, relying on dicta from
Chimienti
    v. Windsor (City)
, 2011 ONCA 16, 330 D.L.R. (4th) 148. But that case, too,
    is distinguishable, among other reasons because it concerned claims of
    negligent and malicious investigation  claims that depended on the completion
    of the relevant criminal proceedings on which they were based.

[43]

The
    claim of battery in this case did not. And although the appellant also seeks to
    advance a claim for negligent investigation, it is a separate tort to which a
    separate limitation period applies:
West v. Ontario
, 2015 ONCA 147, at
    paras. 2-3. A claimant cannot delay the start of a limitation period for one
    tort claim by tying it to another tort claim with a later limitation date, even
    where the claims arise out of common circumstances.

[44]

Nor
    can a claimant delay the start of a limitation period for an intentional tort
    in order to await the outcome of related criminal proceedings. This approach
    has been followed by Ontario trial courts in many cases. For example, in
Brown
    v. Becks
, 2017 ONSC 4218, the court held that a limitation period involving
    various claims against police including battery during an arrest ran from the
    date of the plaintiffs arrest, not the date of his acquittal on criminal
    charges; in
Boyce v. Toronto (City) Police Services Board
, 2011 ONSC
    54, affd 2012 ONCA 230, the limitation period in a civil action against police
    ran from the date of the battery rather than the officers conviction on
    assault charges. See also
EBF v. HMQ in Right of Ontario, et. al
, 2013
    ONSC 2581, and
Wong v. Toronto Police Services Board
, 2009 CarswellOnt
    7412 (Ont. S.C.). Similarly, in
Kolosov v. Lowes Companies Inc.
, 2016
    ONCA 973, 34 C.C.L.T. (4th) 177, this court affirmed the trial judges decision
    that a limitation period involving intentional tortious conduct alleged to have
    occurred on arrest ran from the date of the arrest rather than the date of the
    withdrawal of the criminal charges. See also
Roda v. Toronto Police
    Services Board
, 2016 ONSC 743, affd 2017 ONCA 768. My colleague offers no
    reason to depart from this body of law.

[45]

In
    this case the appellant decided, for tactical reasons, not to bring his battery
    action until after the criminal proceedings against him had concluded. My
    colleague acknowledges as much in stating that it made sense for [the
    appellant] to postpone deciding whether to make a battery claim against the
    respondents. That was an improvident decision, and this court has no
    discretionary power to relieve against the consequences of it, whether the
    appellants claim is a day late or year late.

[46]

In
    my view, the motion judge made no errors. The battery claim is late. The
    negligent investigation claim is not. I would dismiss the appeal.

Released: KF DEC 7 2017

Grant Huscroft J.A.


