



WARNING

THIS APPEAL IS SUBJECT TO a publication ban issued October 31,
    2019 by Justice Thomas M. Wood:

1. THIS
    COURT ORDERS that there will be an order that the publication of any material
    that could identify either of the plaintiffs is prohibited.




COURT OF APPEAL FOR ONTARIO

CITATION: X.H. v. Cota, 2022 ONCA 274

DATE: 20220406

DOCKET: C69700

Doherty, Huscroft and Harvison Young
    JJ.A.

BETWEEN

X.H. and C.H.

Respondents

and

Her Majesty the Queen in Right
    of Ontario and
OPP Sergeant Randy Cota

Appellant

Norman Groot and Erin Stoik, for the
    appellant Randy Cota

Shahana Kar and Michael Saad, for the defendant
    Her Majesty the Queen

Daniel Zacks, Cara Valiquette and Jay
    Herbert, for the respondents

Heard: March 28, 2022 by video conference

On appeal from the order of Justice Mark
    L. Edwards of the Superior Court of Justice, dated June 22, 2021.

REASONS FOR DECISION

[1]

The respondents issued a statement of claim on
    September 19, 2016, alleging that the appellant police officer, Randy Cota, had
    committed various torts including negligence, intrusion upon seclusion,
    extortion/intimidation, misfeasance in public office, and intentional
    infliction of nervous shock. The claim alleged that the appellant attempted to
    manipulate and control the respondents, and to exact revenge on them for C.H.s
    rejection of his sexual advances. The respondents were granted leave to amend
    their claim in October 2019 to include sexual assault and battery. The amended
    claim pleaded that the appellant used his authority as a police officer to
    force sex on C.H.

The motions to strike and for summary
    judgment

[2]

The appellant brought a number of motions, including
    motions to strike the 2016 claims and for summary judgment. The appellant
    argued the claims were statute barred and that the respondents added
    allegations of sexual assault to their 2016 claims in order to circumvent the
    defence the appellant would otherwise have had under the
Limitations Act
,
    2002, S.O. 2002 c. 24, Sch. B.

[3]

The motion judge found that the pleadings of
    sexual assault triggered s. 16(1)(h) of the Act, which provides that there
    is no limitation period in respect of a proceeding based on a sexual assault.
    The motion judge found, further, that s. 16(1.3) operated to bring the
    claims arising from the other torts within the scope of s. 16(1)(h) and s. 16(h.1),
    because the appellant was a police officer at the time the acts were alleged to
    have occurred and so was in a position of trust and authority over C.H.

[4]

Consequently, the motion judge dismissed the
    appellants motion to strike the claim and motion for summary judgment. In
    addition, the motion judge declared that no limitation period applied to any of
    the respondents claims.

[5]

The appellant makes two arguments on appeal.
    First, he argues that s. 16(1.3) applies only to claims against third
    parties. We disagree.

[6]

This argument proceeds from a misreading of the
    decision in
Jane Doe v. Weinstein
, 2018 ONSC 1126 and of s. 16(1.3),
    which provides:

(1.3) For greater certainty, clauses (1)(h),
    (h.1) and (h.2) are not limited in any way with respect to the claims that may
    be made in the proceeding in relation to the applicable act, which may include
    claims for negligence, for breach of fiduciary or any other duty or for
    vicarious liability.

[7]

This section makes plain that no limitation
    period applies to any claim in relation to the sexual misconduct.
Jane Doe
applied but did not limit the application of the s. 16(1.3) to third parties.
    It applies to claims against the perpetrator of the sexual misconduct as well
    as third parties.

[8]

The motion judge did not err in finding that the
    claims in the amended Statement of Claim were in relation to sexual misconduct.
    The record before the motion judge established a connection between the alleged
    sexual assaults and the non-sexual torts alleged. That connection was
    sufficient to potentially afford all of the claims the protection of s. 16.

[9]

The motion judge properly dismissed the
    appellants motion for summary judgment. We do, however, agree with the
    appellants further submission that the motion judge erred in not only
    dismissing the summary judgment motion, but also declaring that no limitation
    defence applied to the claims. Paragraph 2 of the order reads:

THE COURT DECLARES that no limitation
    period applies to any of the Plaintiffs claims.

[10]

The effect of this declaration was to deny the
    appellant the opportunity to establish at trial that s. 16 did not apply to the
    non-sexual torts. For example, if the trial judge were to conclude that the
    sexual assaults alleged by the plaintiffs did not occur, s. 16 would not be
    engaged and the non-sexual assault torts would be subject to the normal
    two-year limitation period. Under that limitation period, those claims are
    statute-barred.

[11]

The motion judge should have left the ultimate
    determination of the application of s. 16 to the non-sexual assault torts to
    the trial judge. The trial judge could make that determination based on the
    findings of fact made at trial, especially any finding as to whether the
    alleged sexual assaults actually occurred.

[12]

Accordingly, the declaration must be set aside.

The costs order

[13]

The appellant argues that success on the motion
    was divided and the motion judge erred in principle by awarding costs on a
    substantial indemnity basis.

[14]

We disagree.

[15]

Success on the motion was not divided. The
    appellants motion was largely dismissed. The motion judge considered it
    appropriate to award costs on a blended substantial/partial indemnity basis
    because he found that the appellant had, by his conduct, needlessly inflated
    the costs of the motion. That was the motion judges call to make.

[16]

Finally, we note that the blended amount fixed
    by the motion judge was only slightly lower than what the respondents had
    sought on a partial indemnity basis. The costs awarded were not unreasonable
    and there is no basis for this court to interfere with them.

Conclusion

[17]

The appeal is allowed in part. The declaration in
    s. 2 of the order is set aside. The other terms of the order remain in place.

[18]

The appeal from the costs decision is dismissed.


[19]

As success on the appeal was divided, each party
    shall bear its own costs of the appeal.

Doherty
    J.A.

Grant
    Huscroft J.A.

Harvison
    Young J.A.


