Date: 20010221
Docket: A-147-00
Neutral citation: 2001 FCA 38
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
MALCOLM BARON
Appellant
(Plaintiff)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
(Defendant)
Heard at Ottawa, Ontario, on Wednesday, February 21, 2001
Delivered from the Bench at Ottawa, Ontario, on Wednesday, February 21, 2001
REASONS FOR JUDGMENT OF THE COURT DELIVERED BY: ROTHSTEIN J.A.
Date: 20010221
Docket: A-147-00
Neutral citation: 2001 FCA 38
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
MALCOLM BARON
Appellant
(Plaintiff)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
(Defendant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on Wednesday, February 21, 2001)
ROTHSTEIN J.A.
[1] In spite of the able argument of counsel for the appellant, we are unable to conclude that the Motions Judge erred in finding that, with respect to the plaintiff's non-Charter claims, there was no genuine issue for trial and that such claims should be dismissed on summary judgment.
[2] The appellant's claims arise from alleged negligence, wrongful arrests and detentions by the military police. The alleged actions had all ceased in the fall of 1995 and, in any event, no later than November 28, 1995. Under subsection 269(1) of the National Defence Act, the limitation period for bringing an action by the appellant in respect of the alleged actions of the military police was within six months after the act, neglect or default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof. The action was filed in this Court on August 21, 1996, well after the expiry of the six month limitation period and is therefore out of time.
[3] The appellant says that he was under threat of suspension or release and that he was not reinstated until March 15, 1996 and that this date is relevant for determining the running of the six month limitation period. We cannot agree. There is no cause of action based on release as the appellant was not released. The only claims that survive in this respect are that he lost income due to his use of vacation time when he was arrested and detained and that he has, or will suffer loss of competitive advantage and/or loss of future income. However, both loss of vacation pay and loss of competitive advantage and future income are expressly stated, in the statement of claim, to result from the arrests and detentions, all of which had ended by the fall of 1995.
[4] The appellant says that he falls under the words "continuance of injury or damage" in subsection 269(1). We cannot see that he does. Counsel for the appellant concedes that these words in subsection 269(1) do not refer to continuing injury or damage arising from a specific finite wrongful act giving rise to a cause of action such as negligence resulting in an automobile accident. We agree. This case is like negligence resulting in an automobile accident. The events in question here were discrete and did not continue at least after November 28, 1995.
[5] In the result, we will dismiss the appeal with costs. The respondent did not cross-appeal from the decision of the Motions Judge not to dismiss the appellant's Charter claims and we make no comment on that issue.
"Marshall Rothstein"
J.A.
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