Ruling focuses on limitation period

The Court of Appeal has determined that the limitation period for an excessive force claim against the police started running at the end of the underlying criminal proceeding.

Ruling focuses on limitation period
Kevin Egan says he does not think a recent Ontario Court of Appeal decision will result in an ‘opening of the floodgates’ of battery claims against police.

The Court of Appeal has determined that the limitation period for an excessive force claim against the police started running at the end of the underlying criminal proceeding.

Some lawyers say the decision in Winmill v. Woodstock (Police Services Board) is a big shift in this area of the law, as it changes when the limitation period starts for battery claims against the police in certain circumstances. The limitation period for this cause of action has often started when the alleged injury occurred, whereas with negligent investigation claims, it kicks off when criminal proceedings wrap up.

The plaintiff and appellant, Robert Winmill, brought a battery claim against the Woodstock Police Service after an altercation at his home on June 1, 2014, when the police allegedly assaulted him. He was arrested and charged with assaulting an officer and resisting arrest, but he was later acquitted of both charges in February 2016.

He didn’t bring a notice of action until June 2, 2016, which was two years and one day after he suffered the alleged battery.  He sought damages for negligent investigation and assault.

A motions judge dismissed his claim for battery.

Winmill’s appeal revolved around when he found out that such a legal proceeding would be an appropriate way to seek remedy for the allegations.

In a 2-1 decision, the Court of Appeal found that Winmill’s claims for negligent investigation, which was proceeding, and that for battery were “inextricably intertwined” and that the limitation period started at the end of the criminal proceedings.

Lawyers who represent police in civil claims say the decision is problematic as it moves away from established case law on the issue and confuses the elements of different torts.

“An element of negligent investigation and malicious prosecution is that the criminal prosecution has to end in the plaintiff’s favour for those two causes of action,” says Rafal Szymanski, a partner with Blaney McMurtry LLP, who was not involved in the case and represents police in civil claims.

“That element is not present in assault and battery claims. So it’s quite problematic that the majority conflates the two.”

Szymanski says the decision will take away a limitation period argument from police, resulting in more of these types of claims making it further in the process and potentially to trial, rather than being summarily dismissed. 

Plaintiffs will also have a lot more time to commence their battery claims against the police, he adds.

Kevin Egan, the lawyer who represented Winmill in the matter, however, says he does not think the decision will result in an “opening of the floodgates” of battery claims against police, as there has to be an inextricable link of the facts between claims for negligent investigation and battery.

He says it would not make sense for his client to be able to proceed with his claim for negligent investigation and litigate all of the factual issues that are also in the tort of battery but not be able to collect damages for the battery claim.

“When the facts are so intertwined that you can’t really decide one without the other, the limitation period should go with the discoverability of the negligent investigation,” says Egan, a partner with McKenzie Lake Lawyers LLP.

He adds that he does not think police defence lawyers should be panicked by the decision. 

The majority decision found the discoverability date for Winmill’s battery claim was the same as that for his claim for negligent investigation — the date of his acquittal in February 2016.

Writing for the majority, Justice James MacPherson said it made sense for Winmill to put off deciding whether to make a battery claim against the police until the underlying criminal proceedings were resolved.

“The criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are, in reality, two sides of the same coin or mirror images of each other,” MacPherson said in the decision, which was supported by Justice Kathryn Feldman.

MacPherson added that the outcome of the criminal proceeding would be a “crucial, boarding on determinative, factor,” in Winmill’s decision of whether to bring a claim.

In a dissent, Justice Grant Huscroft said the appropriate date for the limitation period to start running was the date of the alleged assault, as Winmill then knew the injury and who allegedly caused it. 

Huscroft said that a battery claim does not depend on the completion of the criminal proceedings, as the negligent investigation claim does, as it is a separate tort with a different limitation period that applies.

“A claimant cannot delay the start of a limitation period for one tort claim by tying it to another tort claim with a later limitation date, even where the claims arise out of common circumstances,” Huscroft wrote in his dissent.

The dissenting judge concluded that Winmill decided not to bring his battery claim until after the criminal proceedings were concluded for tactical reasons.

Szymanski says he expects the police will seek leave to appeal the decision from the Supreme Court of Canada.

David Thompson, the lawyer who represented the police in the case, declined to comment on the decision.

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