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Limitations - Discoverablity - When Proceeding Appropriate

Winmill v. Woodstock (Police Services Board) (Ont CA, 2017)

Here the Court of Appeal discusses the 'when proceeding is appropriate' leg of the s.5(1)(a)(iv) Limitations Act discoverability criterion:
[16] The analysis of the limitation period in this case must take place within the confines of ss. 4 and 5(1) of the LA, which provide:
4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

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 …. [Emphasis added.]
[17] I begin with a structural point. In a single case where a plaintiff alleges different torts, it is possible and permissible for different limitation periods to apply to the different torts: see West v. Ontario, 2015 ONCA 147 (CanLII), at paras. 2-3.

[18] Turning to s. 5(1)(a) of the LA, in this case there is no issue with respect to the first three of the four factors set out in this clause. The appellant knew that he had been injured on June 1, 2014, that the injury was caused by physical blows to his body, and that at least some of the respondents administered those blows.

[19] The crucial issue is the fourth factor: did the appellant know on June 1, 2016 that a legal proceeding would be an appropriate means to seek to remedy the injuries caused by the alleged battery committed against him?

[20] The motion judge answered this question in the affirmative. She reasoned:
It is clear from the evidence the plaintiff had knowledge that litigation was available to him as a remedy for the damages he had suffered at the hands of the police. Whether and to what extent he may have been found criminally responsible for the offences with which he had been charged was in no way determinative of whether or not he had been the subject of excessive force and assaulted by police.

The plaintiff admitted he knew litigation was an option and by extension he is therefore deemed to know it was appropriate to sue the Woodstock Police Service for redress of his injuries suffered on June 1, 2014.
[21] In assessing whether the motion judge erred in reaching this conclusion, I begin with three contextual points about subclause (iv) of s. 5(1)(a) of the LA.

[22] First, the word “appropriate” means “legally appropriate”. As explained by Sharpe J.A. in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218 (CanLII), at para. 34:
In my view, when s. 5(1)(a)(iv) states that a claim is “discovered” only when “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”, the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. [Emphasis in original.]
[23] Second, this does not mean that determining whether a limitation period applies involves pulling two simple levers – date of injury and date of initiation of legal proceeding – and seeing whether the result is inside or outside the limitation period prescribed by the relevant statute. On the contrary, other important factors can come into play in the analysis. As Laskin J.A. cautioned in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 (CanLII) (“407 ETR”), at paras. 33-34:
The appropriateness of bringing an action was not an element of the former limitations statute or the common law discoverability rule. This added element can have the effect – as it does in this case – of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant’s actions.

Also, when an action is “appropriate” depends on the specific factual or statutory setting of each individual case: see Brown v. Baum, 2016 ONCA 325 (CanLII), 397 D.L.R. (4th) 161, at para. 21. Case law applying s. 5(1)(a)(iv) of the Limitations Act, 2002 is of limited assistance because each case will turn on its own facts. [Emphasis added.]
[24] Third, within the rubric of “the specific factual or statutory setting of each individual case”, s. 5(1)(b) of the LA requires that attention be paid to the abilities and circumstances of the person with the claim: see Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808 (“Novak”), at para. 85; and 407 ETR, at paras. 44-46.

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