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Limitations

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

The plaintiff claimed he had been assaulted by the police. More than 2 years after the assault but less than 2 years after the plaintiff had been acquitted for assaulting the police and resisting arrest, the plaintiff commenced his action against the police. A limitation period does not start to run until “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.” “Appropriate” means legally appropriate, not subjectively appropriate for delay or other tactical reasons. The majority held that it made sense for the plaintiff to postpone deciding whether to make a battery claim against the police until his criminal charges had been resolved. The majority noted that the charges of assault and resisting arrest and his tort claim of battery were 2 sides of the same coin. The majority noted that, notwithstanding the “legally appropriate” test, one still had to view the factual setting in light of the abilities and circumstances of the person with the claim and that a plaintiff’s individual circumstances may mean that the plaintiff cannot reasonably bring an action at the time it first materialises. Based on that, the majority held that the discoverability date was the date upon which the plaintiff had been acquitted of the charges against him.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.