Date: 20190318

Docket: T-1966-17

Citation: 2019 FC 329

Ottawa, Ontario, March 18, 2019

PRESENT:  The Honourable Mr. Justice Phelan

JUDGMENT AND REASONS

I.  Introduction

[1]  This motion for summary judgment dismissing the Plaintiff’s claim will be granted on the basis that the claim is statute barred.

[2]  The Plaintiff, Kipling Warner [Warner], while an officer in training (2 Lt.), claimed that Captain William Annand [Annand], the former Adjutant of the Seaforth Highlanders Regiment, a famed Vancouver based unit, defamed him in communications between Annand and others in the unit chain of command. The communications related to the Plaintiff’s registration or lack of registration for officer training courses.

[3]  The Defendant has raised two grounds for the dismissal motion: that the claim is statute barred and that the communication is subject to a qualified privilege.

II.  Background

[4]  The Crown has made itself subject to provincial prescription and limitations periods.

Crown Liability and Proceedings Act, RSC 1985, c C-50

[5]  Likewise the Federal Court imports the relevant provincial limitations provision.

Federal Courts Act, RSC 1985, c F-7

[6]  In British Columbia, the relevant province, the applicable limitation period is two years.

Limitation Act, SBC 2012, c 13

Basic limitation period

6 (1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered.

(2) The 2 year limitation period established under subsection (1) of this section does not apply to a court proceeding referred to in section 7.

[7]  Importantly, the Limitation Act, SBC 2012, c 13 [Limitation Act] has a discoverability regime based on knowledge (actual or assumed):

General discovery rules

8 Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following:

(a) that injury, loss or damage had occurred;

(b) that the injury, loss or damage was caused by or contributed to by an act or omission;

(c) that the act or omission was that of the person against whom the claim is or may be made;

(d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

[8]  This two-year limitation period is also consistent with the National Defence Act, RSC 1985, c N-5 [National Defence Act] , which is relevant to these proceedings:

[9]  In the course of dealing with whether Warner had registered for a military course, the Adjutant who replaced Annand, Captain Davey, sent an e-mail to Warner on April 1, 2015.  In this e-mail, Davey quoted another e-mail sent from Annand to Davey and two other officers in which Annand made critical statements about Warner and how he had dealt with course registration.

[10]  On that same day, Warner wrote to Warrant Officer Dunn saying that he had received Davey’s April 1, 2015 e-mail and contended that Annand’s quoted remarks were libellous.

[11]  On that same April 1, Warner made an Access to Information and Privacy Act [ATIP] request for “all records of business or of a transitory nature” concerning his course registration, de-registration or any other activity related to a specific course.

[12]  On June 16, 2015, Warner received the ATIP response. Contained within the records was the offending e-mail from which Davey quoted in his April 1, 2015 e-mail and on which Warner relies in his lawsuit.

[13]  However, Warner did not look at the records until April 2017.

[14]  In response to Warner’s May 1, 2017 request for an apology, Department of National Defence [DND] counsel asked Warner to refrain from legal action at that time so DND could review the matter. The DND letter was clear that it was made “without prejudice” and “not to be taken as a waiver of any applicable limitation period”.

[15]  The Plaintiff commenced an action on October 16, 2017 in the British Columbia Small Claims Court. Then, on December 15, 2017, he commenced this action in the Federal Court.

[16]  On March 21, 2018, the Plaintiff was permitted to amend his claim to add, among other things, a plea for injunctive relief.

[17]  The Defendant has filed its Statement of Defence and has brought the motion for summary judgment.

III.  Analysis

[18]  The law on summary judgment on this type of matter, limitation periods, is well settled. If a limitation period is operating, it can make the case “so doubtful that it does not deserve to go to trial” (Granville Shipping Co v Pegasus Lines Ltd, [1996] 2 FC 853 at para 8, 62 ACWS (3d) 1095). The Federal Court of Appeal in Riva Stahl GmbH v Combined Atlantic Carriers GmbH, [1999] FCJ No 762, 243 NR 183, confirmed that this Court can grant summary judgment on the basis of an expired limitation period.

[19]  The Plaintiff raised some technical arguments that affidavits did not contain a proper jurat because it was unclear if the affiant swore or affirmed the facts in the affidavit.

[20]  Firstly, the necessary facts can be determined from Warner’s affidavit and the ATIP records without regard for the challenged affidavits.

[21]  Secondly, there is no substantive issue that the affidavits were either sworn or affirmed. A minor technical difficulty like this can be resolved by Rule 55 of the Federal Courts Rules, SOR/98-106, to dispense with a rule in special circumstances. This is a situation where Rule 55 could and would apply.

[22]  All the relevant facts and the offending comments were known to the Plaintiff on April 1, 2015. He acknowledged their alleged defamatory nature.

[23]  Pursuant to section 8 of the British Columbia Limitation Act, the rule on discoverability states that a claim is discovered on the first day the person knew or reasonably ought to have known that injury, loss or damage occurred by an act or omission of a person against whom the claim is made and that court proceeding could be appropriate.

[24]  As of April 1, 2015, the Plaintiff knew of the alleged defamatory communications by Annand and their content. His due date to initiate action ran from then to April 1, 2017. The Plaintiff commenced action on October 16, 2017, and therefore his action is statute barred.

[25]  His plea for injunctive relief does not extend time. The claim is for defamation; injunction is but one remedy pleaded. The defamation is not an ongoing tort.

[26]  In my view, there is no genuine issue for trial because the claim is statute barred by subsection 6(1) of the British Columbia Limitation Act. Although not raised on the motion, the claim could be barred by the two-year limitation period in the National Defence Act.

[27]  The Plaintiff’s disregard for the ATIP records compounds his situation. At the very least, the offending material was in his possession on June 15, 2015.

IV.  Conclusion

[28]  Therefore, by every measure the Plaintiff’s claim is statute barred; the motion will be granted and the claim dismissed with costs.

[29]  There is no need to rule on the other grounds of qualified privilege.

JUDGMENT in T-1966-17

THIS COURT’S JUDGMENT is that the Plaintiff’s claim is statute barred. The motion for summary judgment is granted and the claim is dismissed with costs.

"Michael L. Phelan"

FEDERAL COURT

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