



COURT OF APPEAL FOR ONTARIO

CITATION: Brown v. Woodstock (Police Services Board), 2018
    ONCA 275

DATE: 20180320

DOCKET: C64141

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Everton Brown

Plaintiff (Appellant)

and

The Woodstock Police Services Board, Detective
    Sergeant Becks, Officer Wright, Officer Sylvester and Officer Westlake

Defendants (Respondents)

Osborne G. Barnwell and Darryl Singer, for the appellant

Brian McCall and Beth Belanszky, for the respondents

Heard: March 9, 2018

On appeal from the judgment of Justice
Russell
    M.
Raikes of the Superior Court of Justice, dated July 7, 2017.

REASONS FOR DECISION

[1]

The appellant appeals from the order of the
    motion judge dismissing his action seeking damages for battery, illegal search,
    wrongful arrest and detention, and various related
Charter
breaches on the basis that it is time barred.

[2]

The appellant was arrested by the respondent
    police officers on February 13, 2013. Subsequently he was prosecuted for
    possession of crack cocaine, possession for the purpose of trafficking,
    possession of the proceeds of crime, and resisting arrest. On October 22, 2015,
    the appellant entered into a peace bond and the charges against him were
    withdrawn. The appellant commenced this civil action against the respondents on
    May 13, 2016.

[3]

The motion judge applied case law holding that a
    claim for damages for false arrest, false imprisonment, and breach of
Charter
rights crystallizes on the date of arrest, and that the limitation
    period for an assault or battery runs from the date the assault or battery
    occurs. He concluded that the appellant had sufficient facts within his
    knowledge on the day he was arrested  February 13, 2013  and as a result, his
    action was commenced well outside the two-year limitation period.

[4]

The parties were permitted to file supplementary
    factums in light of this courts decision in
Winmill v. Woodstock (Police
    Services Board)
, 2017 ONCA 962, which was released
    following the motion judges decision.

[5]

In our view,
Winmill
cannot be distinguished from this case on the basis that the
    charges in this case are different, or that the prosecution of the appellant
    ended with his entering into a peace bond rather than an acquittal. Nor is it
    relevant that
Winmill
was also concerned with
    a claim for negligent investigation. The key point is that, as in
Winmill
, the battery action is essentially a mirror image of the criminal charge
    the appellant was facing. As a result, it was open to the appellant to await
    the outcome of the criminal proceedings against him before finally deciding
    whether to bring his action, regardless of when he first formed the intention
    to sue.

[6]

Specifically, the discovery date for the
    appellants action was October 22, 2015  the date the criminal charges him
    were brought to a conclusion with a peace bond. The appellant had two years
    from that date in which to bring his action. Therefore, the appellants action,
    which was commenced May 13, 2016, is not time barred. The respondent fairly
    concedes that, if the claim in battery is to proceed, then it is appropriate to
    reinstate the entire action, with the exception of the appellants claim for
    malicious prosecution, which the appellant has abandoned.

[7]

Accordingly, the appeal is allowed.

[8]

The appellant is entitled to his costs on the appeal in
    the agreed amount of $10,500, and costs on the motion in the agreed amount of
    $12,000, both amounts inclusive of taxes and disbursements.

Paul Rouleau J.A.

Grant Huscroft J.A.

Fairburn J.A.


