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

• Published date: 23 November 2020
• Subject Matter: Criminal Law, Crime
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Douglas Smith and Samantha Bonanno

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...