



COURT OF APPEAL FOR ONTARIO

CITATION: Lochner v. Toronto (Police Services), 2015 ONCA 626

DATE: 20150917

DOCKET: C60123

Gillese, Pepall and Lauwers JJ.A.

BETWEEN

Silvano Lochner

Plaintiff (Appellant)

and

Toronto Police Services Board, Detective Alex
    Will (Badge No. 362), and Chief of Police William Blair

Defendants (Respondents)

Silvano Lochner, acting in person

Robert L. Love and Damian Hornich, for the respondents

Heard: September 11, 2015

On appeal from the judgment of Justice James M. Spence of
    the Superior Court of Justice, dated February 12, 2015.

ENDORSEMENT

[1]

On January 30, 2012, Mr. Lochner issued a statement of claim and began
    this action.  In it, he alleges that Det. Will disclosed his criminal record to
    his employer and that disclosure caused his employer to terminate his
    employment.  At para. 26 of his Amended Statement of Claim, Mr. Lochner acknowledges
    that on November 16, 2009, he gave a copy of a memorandum dated February 14,
    2008 (the Memorandum) to the Information and Privacy Commissioner. The
    Memorandum summarized what had taken place in a meeting between representatives
    of Mr. Lochners former employer and Det. Will. The Memorandum indicated that
    Det. Will had disclosed Mr. Lochners criminal convictions to his employer.

[2]

The defendants in this action moved for summary judgment. By judgment
    dated February 12, 2015, the motion judge granted the motion. He found that Mr.
    Lochner learned by November 16, 2009, at the latest, that he had a claim
    against Det. Will and, therefore, Mr. Lochners claim was out of time because
    it had not been brought within the two-year limitation period prescribed by the
Limitations Act, 2002
, S.O. 2002, c. 24, Sch. B.

[3]

Mr. Lochner appeals. He recognizes that in his pleadings he admits
    having had a copy of the Memorandum but submits that he did not discover his claim,
    for the purposes of the limitation period, because the defendants have never
    acknowledged that disclosure of his criminal record to his employer was
    wrongful. He contends that without knowledge of the defendants liability or
    culpability, he did not know that he had a claim against Det. Will, for the
    purposes of the running of the limitation period.

[4]

We do not accept this submission.

[5]

Section 5(1)(a) of the
Limitations Act, 2002
,
reads 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;

[6]

Mr. Lochner is the person with the claim. He knew, when his employment
    was terminated, that injury, loss or damage had occurred.  He also knew, no
    later than November 16, 2009, that Det. Will had disclosed his criminal record
    to his employer.  It was the act of disclosing his criminal record to his
    employer which he alleges caused or contributed to his injury, loss or damage. 
    Thus, no later than November 16, 2009, the two-year limitation period began to
    run.  Accordingly, the limitation period expired no later than two years
    following November 16, 2009. Mr. Lochner commenced this action on January 30, 2012,
    more than two years after November 16, 2009.  Therefore, the action is out of
    time and there is no genuine issue requiring a trial.

[7]

The fact that Mr. Lochner does not know whether the defendants are
    culpable or liable for the disclosure does not prevent the limitation period
    from running. Knowledge of liability on the part of the injured person is not
    part of discoverability for the purposes of the running of the limitation
    period.  It is the lawsuit itself which is the process by which liability for
    an act is determined.

[8]

For these reasons, the appeal is dismissed. If costs are sought, the
    respondents shall file written submissions within 10 days of the date of
    release of this endorsement and the appellant shall file any response no later
    than 15 days after the date of release of this endorsement.  The written
    submissions shall not exceed two double-spaced typewritten pages in length.

E.E. Gillese J.A.

S.E.
    Pepall J.A.

P.
    Lauwers J.A.


