Canada:

Ontario Court Clarifies Law For The Commencement Of Limitation Periods For Prosecutorial Torts


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In the recent decision of MacKinnon v. Halton Regional
Police Services Board et al
, 2020 ONSC 6908, the Ontario
Superior Court dismissed a plaintiff’s claim on a motion for
summary judgment for being commenced outside of the two-year
limitation period. BLG represented the defendants.

Background

On September 6, 2014, the plaintiff, Robert MacKinnon, was
charged with respect to three allegedly fraudulent wire transfers.
The Crown eventually stayed the charges on March 27, 2015 pursuant
to s. 579 of the Criminal Code.

On March 23, 2018, Mr. MacKinnon commenced an action against the
Halton Regional Police Service and several named officers alleging
malicious prosecution, negligent investigation and breach of his
Charter rights.

The defendants brought a summary judgment motion on the basis
that Mr. MacKinnon’s action was statute barred as the
limitation period for the commencement of the plaintiff’s
action expired on March 27, 2017 but he did not commence his action
until March 23, 2018.

In response, the plaintiff argued that the limitation period did
not start to run until one year after the Crown stay. This is
because, pursuant to s. 579(2) of the Criminal Code, the
Crown has one year to reinstate the charges. Accordingly, the
plaintiff submitted that it was appropriate for him to wait for
that one-year period to expire before commencing his civil
claim.

Outcome

Justice Gibson confirmed that a stay of proceedings entered by
the Crown constitutes a favourable termination of proceedings for
the purpose of prosecutorial torts, such as negligent
investigation. Therefore, the appropriate start date for the
limitation clock is the date that criminal charges are stayed.

Although the Crown may recommence proceedings in a one-year
period, the Crown does not have carte blanche to reinstate
the charges and indeed, may be subject to attack based on abuse of
process and section 11(b) Charter arguments. In any event,
Justice Gibson found that the date of the stay is the date that the
plaintiff should know that a proceeding would be an appropriate
means to seek a remedy and there was no valid juridical reason to
wait beyond this date. Of note, Justice Gibson also commented that
such an argument has been considered and dismissed in other
provinces (Saskatchewan, Price Edward Island and British Columbia)
and that the law should therefore be the same in Ontario.

Takeaway

This case clarifies that the limitation period for prosecutorial
torts begins to run on the day that charges are resolved in favour
of an accused, which includes a Crown stay pursuant to s. 579 of
the Criminal Code. Accordingly, the one-year period
following the stay does not extend the plaintiff’s statutory
timeframe to commence his or her claim.


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