Overview
In MacKinnon v. Halton Regional Police Services Board, 2020 ONSC 6908 (“MacKinnon”), the Ontario Superior Court of Justice confirmed that the presumptive date on which a limitation period starts to run in a claim involving prosecutorial torts, such as malicious prosecution and negligent investigation, is the date on which the charges were terminated in favour of the plaintiff. Accordingly, the date that charges are stayed by the Crown pursuant to section 579(1) of the Criminal Code, RSC 1985, c C-46 (the “Code”) constitutes a termination of proceedings in favour of the accused and will start the running of the two-year limitation period.
Factual Background
On September 6, 2014, Halton Regional Police Service (“HRPS”) charged Robert MacKinnon with respect to three allegedly fraudulent wire transfers. On March 27, 2015, the charges were stayed by the Crown. By Notice of Action issued on March 23, 2018, Mr. MacKinnon commenced an action against HRPS and others for malicious prosecution, negligent investigation, and breach of his rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 91(24).
HRPS brought a motion for summary judgment on the basis that the two-year limitation period expired on March 27, 2017 but that the action was not commenced until March 23, 2018. Mr. MacKinnon took the position that his action was commenced in time because the limitation period did not start to run until one year after the Crown’s stay of proceedings (i.e., March 27, 2016) because section 579(2) of the Code states that proceedings stayed may be recommenced without laying a new information or preferring a new indictment within one year after the entry of the stay of proceedings.
Limitation Periods and Prosecutorial Torts
Justice Gibson summarized the law of limitation periods in claims for prosecutorial torts as follows:
[14] The presumptive date on which a limitation period begins to run in respect of claims in negligence, negligent investigation and malicious prosecution is the date on which charges were terminated in favour of a plaintiff. A claim for breach of Charter rights crystallizes on the date of the arrest and not on the date of the conclusion of the prosecution arising out of the arrest: Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, at paras. 26 and 24; Sankreacha v. Cameron J. and Beach Sales Ltd., 2018 ONSC 7216 at para. 287; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at paras. 95 to 98; Ksolosov v. Lowe’s Companies Inc., 2018 ONSC 7541 at paras 244 and 245.
[15] A stay of proceedings entered by the Crown constitutes a favourable termination of proceedings for the purpose of prosecutorial torts such as malicious prosecution: Ferri v. Root, 2007 ONCA 79 at para. 51.
[16] Given that a stay of proceedings constitutes a favourable resolution of the charges against a plaintiff, the date that criminal charges were stayed by the Court against the plaintiff is the appropriate start date for the limitation clock: Jardine v. Saskatoon Police Service, 2017 SKQB 217 at para. 41; Sam v. Kopynsky, 2011 MBQB 56 at para. 36.
The ability of the Crown to recommence proceedings stayed, without laying a new information or preferring a new indictment, within one year after the entry of the stay under section 579(2) of the Code is not relevant to the limitations analysis. Nor is it a valid juridical reason for a prospective plaintiff to wait more than two years after the date that criminal charges were stayed in making claims for prosecutorial torts.
In the result, the court granted summary judgment and dismissed Mr. MacKinnon’s action as statute barred. The limitation period had expired on March 27, 2017.
Comment
The decision in MacKinnon is a helpful summary of the law of limitation periods in claims involving prosecutorial torts. Justice Gibson confirmed that “[a] Crown stay of proceedings constitutes a favourable termination of proceedings, and the limitations clock begins to run on the day that the stay is entered.” MacKinnon is also a warning that a prospective plaintiff cannot take a “wait and see” approach with respect to the commencement of a timely civil claim because of the prospect that proceedings may be recommenced by the Crown within one year of the entry of the stay.
