Ontario courtroom clarifies regulation for the graduation of limitation intervals for prosecutorial torts

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The evolution of Vicarious Liability for intentional torts - Lexology

In MacKinnon’s recent ruling v Halton Regional Police Services Board et al., 2020 ONSC 6908, the Ontario Supreme Court dismissed a plaintiff’s motion for summary judgment for initiation outside the two-year statute of limitations. The BLG represented the defendants.

background

On September 6, 2014, the plaintiff, Robert MacKinnon, was charged with three alleged fraudulent transfers. The Crown finally brought the indictment on March 27, 2015 according to p. 579 of the Criminal Code.

On March 23, 2018, Mr. MacKinnon commenced a lawsuit against Halton Regional Police Service and several named officers alleged of malicious prosecution, negligent investigation and violation of his charter rights.

The defendants have filed a summary judgment on the grounds that Mr MacKinnon’s action is statute-barred because the limitation period for the start of the plaintiff’s action expired on March 27, 2017. However, he did not initiate his lawsuit until March 23, 2018.

In response, the plaintiff asserted that the limitation period only expired one year after the Crown had stayed. This is because, according to s. 579 (2) of the Criminal Code, the Crown has one year to reintroduce the charge. Accordingly, the plaintiff argued that it was appropriate to wait for this one-year period to expire before starting his civil action.

Result

Judge Gibson confirmed that a stay of the proceedings initiated by the Crown constitutes a favorable end to the proceedings for the purpose of law enforcement such as negligent investigation. Therefore, the appropriate start date for the limit clock is the date on which criminal charges are suspended.

Although the Crown may resume proceedings within a year, the Crown does not have carte blanche to restore the indictment and may be attacked for abuse of process and arguments under Section 11 (b) Charter. In any event, Justice Gibson stated that the date of stay is the date the plaintiff should know that trial is an appropriate means of seeking redress and there was no valid legal reason beyond that date waiting. Notably, Justice Gibson also noted that such an argument has been examined and rejected in other provinces (Saskatchewan, Price Edward Island, and British Columbia) and that the law should therefore be the same in Ontario.

Bring away

In this case, it is clarified that the statute of limitations for law enforcement measures begins on the day on which the indictment is clarified in favor of a defendant, including a crown stay in accordance with p. 579 of the Criminal Code. Accordingly, the one-year period after the stay does not extend the legal period for the plaintiff to assert his claim.

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