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Limitations - Administrative

. Sharma v. Sandhu

In Sharma v. Sandhu (Div Ct, 2020) the Divisional Court clarifies when discoverability applies to various administrative limitations:
[20] At para. 37 of Peixeiro v. Haberman 1997 CanLII 325 (SCC), [1997] S.C.J. No. 31 the Supreme Court of Canada held that the discoverability rule is an interpretative tool for the construing of limitations statutes and ought to be considered each time a limitations provision is in issue. The court adopted the following passage from Fehr v. Jacob (1993) 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.):
…When time runs from the “accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed.
[21] Section 57(2) sets the time from which the clock runs from a precise event, namely, the date the tenant vacates the rental unit. The starting of the clock is in no way dependent upon the state of the tenant’s knowledge. It follows that the discoverability rule cannot be used as proposed by the appellants to extend the one-year period prescribed by the legislature.
Note: The court dismisses the application of the Limitations Act on the basis of RTA 3(4) ['conflicts resolved in favour of the RTA'], however Limitations Act s.2 ['Application'] makes it clear that the Limitations Act only applies to "court proceedings", a much clearer resolution.

. Wall v. Office of the Independent Police Review Director

The case of Wall v. Office of the Independent Police Review Director (Ont CA, 2014) considered the interesting issue of when and if the limitations principle of 'discoverability' applies to the many and varied timelines set out in administrative law statutes. Here the context was a provision in the Police Services Act which read [s.60(2-3)]:
The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred.

(3) In making a determination under subsection (2), the Independent Police Review Director shall consider,
(a) whether the complainant is a minor or is under a disability within the meaning of the Accessibility for Ontarians with Disabilities Act, 2005;

(b) whether the complainant is or was subject to criminal proceedings in respect of the events underlying the complaint; and

(c) whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with.
The Director had refused a complaint that was past this six month mark without giving any discernible reasons. While making it plain that each case where the issue arose would turn on the specific wording of the timeline provision and the purpose of the legislation, the court held in this case that discoverability did play a role in the Director's consideration under both the general s.60(2) provision and the s.60(3) public interest consideration.

The court stated:
[28] As explained below, I am persuaded that the Director is required by the scheme and language of the Police Services Act and principles of fairness to take into account discoverability principles when exercising his s. 60 function.

[29] “Discoverability” is the term used – usually in the limitation period context – to describe the principle that a time limit ought not to begin to run against a complainant until the moment when the complainant knew, or ought reasonably to have known, that he or she had the basis for a complaint. In essence, it is a fairness principle, designed to balance the need for finality against exposure to liability by potential defendants, and the need to avoid an injustice to the individual seeking to assert legitimate claims that were unknown to him or her before the time expired.

[30] The Director argues that the Divisional Court erred by incorporating this concept into the operation of s. 60(2) of the Police Services Act.

[31] I disagree. There are three principal reasons why the timing of when a complainant knew (or ought reasonably to have known) that there was a basis for a complaint is a factor the Director is required to consider when exercising his functions under s. 60(2) of the Act. First, there is nothing in the Act that indicates discoverability is excluded from the Director’s consideration. Secondly, the overall scheme of Part V of the Act favours the notion that complaints are generally to be dealt with. Thirdly, s. 60(3) of the Act requires the Director to consider the public interest.

[32] The view that discoverability must be taken into account is consistent with the scheme set out in Part V of the Act. Part V provides for the supervision and treatment of complaints made to the Director by members of the public concerning police policies, services or conduct, and the disciplinary proceedings that may or may not flow from those complaints. Section 26.2(a) of the Act mandates the Director “to manage complaints made to him or her by members of the public”. Part V lays down the procedure for doing so.

[33] Any member of the public may make a complaint to the Director under Part V about the policies of or services provided by a police force, or about the conduct of a police officer: s. 58(1). Sections 59 and 60 of the Act set out the parameters of the Director’s review of such complaints. Their full text is attached as an appendix to these reasons.

[34] In brief, however, the Director is required by s. 59 to review every complaint made, to classify it (as a complaint about policies or services or the conduct of a police officer), and to ensure that it is dealt with in accordance with the mechanisms set out in ss. 61 and following.[3]

[35] However, to shield the police against an avalanche of frivolous or improper complaints, s. 60(1) provides that the Director “may, in accordance with this section, decide not to deal with a complaint made to him or her by a member of the public under this Part” (emphasis added). Under s. 60(4), the Director may decide not to deal with a complaint if it is frivolous, vexatious or made in bad faith, could more appropriately be dealt with under another statute, or if in the circumstances, dealing with the complaint would not be in the public interest. The Director also has the discretion to decide not to deal with a complaint in cases where, generally speaking, the complainant is not directly affected by the police policy, services or conduct: s. 60(5)-(6).

[36] Section 60(2), discussed above, enables the Director to decide not to deal with a complaint “made more than six months after the facts on which it is based occurred”. The Director is required by the terms of s. 60(3) to consider a number of factors when deciding not to deal with a complaint filed after the six-month period. The Director must consider whether the complainant is a minor or a person with a disability, whether the complainant is or was subject to criminal proceedings relating to the events forming the basis for the complaint, and whether in the circumstances it would not be in the public interest to deal with the complaint.

[37] As these provisions indicate, the default scenario under the Act is that the Director is obligated to screen in a complaint for review and to have it dealt with in accordance with Part V unless one of the saving factors in s. 60 applies. The Director “shall ensure that every complaint reviewed … is referred or retained and dealt with”: s. 59(2) (emphasis added). But the Director “may, in accordance with [s. 60], decide not to deal with a complaint”: s. 60(1) (emphasis added). This default paradigm is significant, in my view, in determining whether and, if so, to what extent, “discoverability” factors into the exercise of the Director’s discretion not to proceed with a complaint. It also bears on the scope of the requirement to give reasons, which I deal with below.

[38] Although the six-month period provided for in s. 60(2) is often loosely referred to as a “limitation period”, the parties all agree that it is not a limitation period in the formal legal sense. The Divisional Court adopted that interpretation as well, stating, at para. 35:
The six month period referred to in s. 60(2) is not a limitation period, but rather a guideline – a point in time at which the Director may wish to consider not dealing with the complaint, depending on various factors including the reasonableness of the delay and the specific factors the Director is directed to take into account under s. 60(3). All counsel at the hearing essentially agreed with that interpretation.
[39] Although the parties agree that s. 60(2) does not contain a limitation period, they have differing views on where that interpretation leads them. Mr. Wall argues that the six-month period is “a presumptive period that must yield to the interests of justice and the public interest.” The Director says it is not a limitation period, but “simply provides the Director with the discretion to screen in a complaint that has been received by his office six months after the facts on which the complaint was based occurred.” The Director submits that he is not mandated to take into account notions of discoverability in exercising his discretion not to screen in the complaint. In doing so, he adopts an analysis that leans towards treating s. 60(2) as a limitation period.

[40] The Director submits that nothing in the language of s. 60(2) or in the provisions of s. 60(3) outlining the factors the Director is to consider in exercising his discretion to screen in the complaint or not to do so, mandates that he take into account whether or not six months have elapsed since the complainant knew or ought to have known that he or she had grounds for a complaint. He concedes, however, that he has discretion to consider whether discoverability in that sense is a factor in the appropriate case.

[41] The Director seeks to rely on the principle of implied exclusion to argue that if the legislature had intended discoverability to apply, it would have said so expressly. That principle is explained by Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014), at § 8.90, as follows:
An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. … The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature.
[42] In this vein, the Director points out that s. 4(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, expressly states that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” Counsel points to s. 96 of the Employment Standards Act, 2000, S.O. 2000, c. 41, in support of the argument that where discoverability was not meant to apply, the legislature did not include it.

[43] The Director also relies on the decision of the Alberta Court of Appeal in Engel v. da Costa et al., 2008 ABCA 152 (CanLII), 429 A.R. 184, leave to appeal to S.C.C. refused, 460 A.R. 400 (note). There the Court considered a provision in the Alberta Police Act, R.S.A. 2000, c. P-17, s. 43(11), dealing with complaints made more than one year after the events on which they were based. The Court concluded, at para. 31, that “[d]iscoverability is not a principle which must necessarily apply to complaints under s. 43 of the Police Act.”

[44] I do not find these submissions persuasive in the context of the Ontario legislation. First, it is agreed that s. 60(1) of the Police Services Act, does not provide for a limitation period. It is therefore unnecessary to be as concerned with shoring up the goals of finality underpinning limitation period legislation. Second, s. 60(2) expressly provides the Director with discretion – the Director “may decide not to deal with a complaint” – which implies in itself a more flexible approach to screening post-six month complaints in or out (emphasis added). The legislation considered in Engel is quite different: it requires the decision maker to dismiss a late complaint – “shall dismiss any complaint that is made [outside of the time period]” (emphasis added). Third, even if the principle of implied exclusion is applicable, I am satisfied, for the reasons outlined below, that the language of the Act gives rise to little expectation that discoverability principles were to be excluded by implication.

[45] It is true that s. 60(3), prescribing the factors the Director is to consider when exercising his or her discretion to screen in a complaint post-six months, does not specifically refer to discoverability principles. However, it would be odd – given that s. 60(2) does not provide for “a limitation period”, and given the default paradigm in the scheme favouring complaints being dealt with – if the Legislature intended to exclude discoverability principles from the Director’s consideration. In my view, there is nothing expressed or implied in the language of the Act to support such an intention. Indeed, s. 60(3)(c) requires the Director to consider “whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with”. The Director has a discretion, but it is not an unfettered discretion. To the contrary, it is a discretion to be exercised within the confines of the factors set out in s. 60(3) and the bounds of procedural fairness.

[46] Complaints regarding police misconduct raise issues that are important to society, both from the perspective of the complainant and that of the police services. It is generally in the public interest that complaints which are not frivolous or vexatious or made in bad faith – grounds upon which any complaint, timely or not, may be screened out – be reviewed. I am satisfied that the “public interest” factor the Director is required to consider under s. 60(3)(c) of the Act encompasses an obligation to consider discoverability issues in deciding whether or not to deal with a post-six month complaint under s. 60(2).

[47] For these reasons, I would not give effect to the Director’s argument that the Divisional Court erred by importing notions of “discoverability” as a factor to be considered in the discretionary s.60(2) exercise.


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