



COURT OF APPEAL FOR ONTARIO

CITATION: Thomson v. Durham (Police Services Board), 2017
    ONCA 958

DATE: 20171206

DOCKET: C63892

Strathy C.J.O., Juriansz and Huscroft JJ.A.

BETWEEN

Nora Thomson and Peter King

Plaintiffs (Appellants)

and

Durham Regional Police Services Board and Paulo
    Dellipizzi

Defendants (Respondents)

Joshua Evans, for the appellants

Nadia Marotta, for the respondents

Heard: December 4, 2017

On appeal from the order of Justice Myrna L. Lack of the Superior
    Court of Justice, dated May 16, 2017.

REASONS FOR
    DECISION


[1]

This is an appeal from an order, made on the respondents summary
    judgment motion, dismissing the appellants action on the basis it was not
    brought within the two-year limitation period set out in s 4 of the
Limitations
    Act
.

[2]

The appellants submit that s. 4 of the
Limitations Act
does
    not apply to their action as it is a proceeding to enforce a court order.
    Section 16(1)(b) of the
Limitations Act
provides there is no
    limitation period for the enforcement of a court order.

[3]

An order of disposition under s. 490(9) of the
Criminal Code
issued
    December 14, 2011 and revised June 27, 2012, ordered that specified items of
    property among property seized by the respondents from the appellants in 2010
    be released to them, and the remaining property be forfeited to the Crown. The
    appellants picked up some items from the Police Services Property Bureau on
    November 20, 2012 and January 24, 2013, but on January 9, 2013 claimed some of
    that property was missing or damaged. On March 2, 2013 a lawyer representing
    the appellants threatened but did not commence a civil action in respect of the
    missing and damaged property. On May 24, 2014 all remaining property in the
    respondents possession was forfeited to the Crown in accordance with the order
    of disposition. The appellants commenced this action on November 4, 2015.

[4]

The respondents moved for summary judgment on the basis that the action
    was barred by s. 4 of the
Limitations Act
because the appellants
    action was commenced more than two years after they knew that the property they
    claimed was missing or damaged. The motion was granted and the appellants have
    brought this appeal.

[5]

The appellants submit that the motion judge erred by saying The
    plaintiffs knew when they began the action that the defendants no longer had
    any of the seized property in their possession. They pleaded that. They were
    aware that the order of June 27, 2012 could not actually be enforced. The appellants
    point to paragraph 10 of their statement of claim that pleads they learned only
    on March 15, 2015 that the seized property had been forfeited to the Crown.
    They argue that they commenced their legal action within two years of that date
    and so the action was commenced in time.

[6]

The appellants misunderstand the import of the motion judges reasons.
    The remark of the motion judge is precisely correct. When the appellants
    commenced their action on November 4, 2015, they already knew all remaining
    property in the hands of the respondents had been forfeited to the Crown. They
    pleaded they knew that on March 15, 2015. Therefore, the motion judge reasoned
    the true and actual object of the action could not have been to enforce the
    order for the return of the goods. Instead, she reasoned the appellants
    actually started their action to claim for new court order for monetary damages
    based on allegations of neglect or refusal to return goods and damage to
    property.

[7]

We agree with the motion judges characterization of the appellants
    action and with her conclusion that it falls outside the scope of s. 16 (1) (b)
    of the
Limitations Act, 2002.
The latest that the limitation period for
    the appellants action for monetary damages could have begun was March 2, 2013 when
    they threatened legal action. They did not commence their action until more
    than two years later and the motion judge properly dismissed it.

[8]

The appeal is dismissed with costs in favour of the respondents fixed in
    the amount of $9000.00 inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

R.G. Juriansz J.A.

Grant Huscroft J.A.


