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Limitations Act - False Arrest and False Imprisonment

. Vu v. Canada (Attorney General)

In Vu v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal held that the ruling in Kolosov only created a presumption of the running of a limitation period for false arrest and related torts:

(ii) The Application of Kolosov

[35] The appellant argues that the motion judge erred in failing to find that this court’s decision in Kolosov stands for the clear proposition that the limitation period for wrongful arrest and detention commences on the date of arrest.

[36] The appellant argued before the motion judge that the Limitations Act barred the respondent’s action because the causes of action of false arrest, false imprisonment, and breaches of Charter rights (as linked to the other causes of action) all crystallized and were discoverable on the date of the respondent’s arrest on June 27, 2013 and, at the latest, at the time of the detention hearing on July 9, 2013. In support of this proposition, the appellant relies upon this court’s decision in Kolosov, at para. 11:

The law in relation to the commencement of the limitation period for the intentional torts of false arrest and false imprisonment, and associated Charter breaches, is well settled. As Chiappetta J. noted in Fournier-McGarry (Litigation guardian of) v. Ontario, 2013 ONSC 2581, at para. 16:

A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising there-from crystallizes on the date of arrest (see, Nicely v. Waterloo Regional Police Force, 1991 CanLII 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14; [Ferri] v. Root, 2007 ONCA 79 (CanLII), [2007] O.J. No. 397 (Ont. C.A.), para. 102).

[37] The respondent, citing different and earlier appellate authority that he argued was not overturned by Kolosov, urged the motion judge to instead conclude that the limitation period commenced not on the date of arrest, but on the date of his release from detention in Vietnam: Mackenzie v. Martin, 1952 CanLII 85 (ON CA), [1952] O.R. 849 (C.A.), at paras. 6-8, aff’d 1954 CanLII 10 (SCC), [1954] S.C.R. 361.

[38] The motion judge reviewed the issue in some detail, clearly expressing misgivings about the broad interpretation of Kolosov being urged upon him by the appellant. Among other things, the motion judge looked behind the cases cited in Kolosov in an effort to explain why the appellant’s position about the reach of Kolosov was not as clear as suggested. The motion judge also expressed some “concern that a false arrest and an unlawful imprisonment may not occur at the same time.”

[39] Despite expressing these misgivings, in the end, the motion judge concluded that he need not resolve the parties’ disparate views as to whether the limitation period commenced on the date of arrest or release given that, even taking Kolosov at its highest, it only created a rebuttable presumption under s. 5 of the Limitations Act and that the presumption had been rebutted in this case:

While I have concerns with the broad application of Kolosov urged on me by the defendant, I do not need to resolve the conflict in the cases in this matter. … [S]ince section 5(1)(a) of the Limitations Act establishes a four-part test, I regard Kolosov as simply setting up a presumption (which was not rebutted in that case) that the cause of action arose on the date of arrest and detention or, at latest, the date of the second detention hearing [July 9, 2013], but it does not address all four parts of the test. This means I must still consider when the plaintiff had sufficient facts on which to base an allegation of wrongful arrest and detention ….

[40] Significantly, Kolosov has been cited by this court in subsequent decisions for the very proposition disputed by the respondent, that the limitation period presumptively runs from the date of arrest: see, for example, Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, 138 O.R. (3d) 641, at para. 44, per Huscroft J.A. (dissenting), leave to appeal refused, [2018] S.C.C.A. No. 39; McHale v. Lewis, 2018 ONCA 1048, 144 O.R. (3d) 279, at para. 42. Therefore, the appellant’s argument has some traction as to when limitation periods commence in cases of this nature.

[41] At the same time, I understand the appellant’s concern to be the motion judge’s characterization of the appellant’s reading of Kolosov, and his expression of misgiving about it. At the end of the day, though, the motion judge did not find that Kolosov stands for any principle broader than the presumption that a cause of action arises on the date of arrest and detention or, at the latest, the date of the second detention hearing a few weeks later. Indeed, the motion judge was prepared to resolve the motion on that basis. In the end, he simply resolved that the date of arrest – the Kolosov date – was the presumptive date for the commencement of the limitation period, but that the respondent had effectively displaced that presumption.

[42] Therefore, despite having expressed misgivings about the appellant’s submissions, I do not read the motion judge’s reasons as unfaithful to the plain language of Kolosov. Rather, he accepted, however reluctantly, the appellant’s position that the limitation period presumptively begins to run at the date of arrest. This makes sense legally, given that the arrest is the act on which the claim is based, and is therefore the presumptive date of discovery of the claim: Limitations Act, s. 5(2). It makes sense practically as well, as the plaintiff will often know at the time of arrest and detention whether the facts alleged to justify that arrest and detention are false, as was the case in Kolosov: see 2016 ONSC 1661, at para. 119. Accordingly, despite his expressed concerns, the motion judge’s reasoning turned on whether the Kolosov presumptive date was rebutted pursuant to ss. 5(1) and (2) of the Limitations Act.

[43] I see no error in that approach. Section 4 of the Limitations Act requires an action in respect of a claim to be commenced within two years of the claim being discovered. Sections 5(1) and (2) of the Limitations Act read 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; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. [Emphasis added.]

[44] Despite the presumption that Kolosov creates in relation to the running of the limitation period, s. 5(2) permits the contrary to be proved in accordance with the matters referred to in s. 5(1)(a). While that presumption was not rebutted in Kolosov, it was rebutted here. Accordingly, regardless of the hesitation expressed by the motion judge as to the reach of Kolosov, nothing in this case turns on those observations.

. Kolosov v. Lowe’s Companies Inc.

In Kolosov v. Lowe’s Companies Inc. (Ont CA, 2016) the Court of Appeal commented as follows on when a limitation period commences tolling in respect of the torts of false arrest and false imprisonment:

Second Ground – The Claims were Statute-Barred

[11] The law in relation to the commencement of the limitation period for the intentional torts of false arrest and false imprisonment, and associated Charter breaches, is well settled. As Chiappetta J. noted in Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581 (CanLII), at para. 16:

A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising there-from crystallizes on the date of arrest (see, Nicely v. Waterloo Regional Police Force, 1991 CanLII 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14; Fern v. Root, 2007 ONCA 79 (CanLII), [2007] O.J. No. 397 (Ont. C.A.), para. 102).

[12] The appellants offer no authority for their submission that their causes of action did not arise, and the limitation period did not begin to run, until they had received full police disclosure. Not having commenced this action until after the two-year period from the time of arrest had expired, their claims in this respect are statute-barred.