Docket: A-233-15
Citation: 2016 FCA 213
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CORAM:
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PELLETIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
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BETWEEN:
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MICHAEL NEWMAN
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS FOR
JUDGMENT
PELLETIER J.A.
[1]
Mr. Michael Newman was assaulted and seriously
injured while he was in the custody of the Correctional Service of Canada. Mr.
Newman sued the Crown, alleging that the latter had breached 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 (U.K.), 1982, c.
11 (the Charter) by not assuring his personal safety while he was in
custody. Mr. Newman’s statement of claim was issued more than three years after
he was assaulted. After the pleadings closed, the Crown moved for summary
judgment on the basis that Mr. Newman’s claim was statute barred. The Crown
claimed that it was an action “in respect of injury to
person or property … whether based on contract, tort or statutory duty”
and therefore caught by the 2 year limitation in paragraph 3(2)(a) of
British Columbia’s Limitation Act, R.S.B.C. 1996, c. 266 (the Limitation
Act). Mr. Newman argued that his action was an action for Charter damages
and was therefore not caught by the limitation for actions for personal injury.
Rather, it came within subsection 3(5) of the Limitation Act which
applies to “any other action not specifically provided
for.” Further, Mr. Newman argued that, in any event, time did not begin
to run at the date of his injury because of subsection 6(4) which suspends the
commencement of a limitation period in certain circumstances.
[2]
The Federal Court accepted the Crown’s argument
as to the nature of Mr. Newman’s claim and rejected Mr. Newman’s argument that
time did not begin to run on or about the date he was assaulted. As a result,
the Federal Court granted the motion for summary judgment and dismissed Mr. Newman’s
claim. Mr. Newman appeals the Federal Court’s decision to this Court.
I.
FACTS
[3]
In November 2010, Mr. Newman, a gang member who
was serving a sentence for drug related offences and awaiting trial on a
first-degree murder charge at the Matsqui Institution in Abbotsford, was
transferred to the Kent Institution (Kent). He was placed in administrative
segregation, otherwise known as solitary confinement. In May 2011, correctional
officials indicated that he was a candidate for placement in the general
population. Mr. Newman objected to being released into the general population
unless it was to an area where he would be safe from attack by a leading member
of a rival gang, Mr. Bacon, who was also incarcerated at Kent. On July 19,
2011, correctional officials transferred Mr. Newman, over his objection, to the
orientation range. He was severely beaten the very next day by two inmates, at
the behest, he believes, of Mr. Bacon. Mr. Newman suffered a broken nose, a
fractured cheekbone, and fractured vertebrae in his neck. As a result, he also
suffered from post-traumatic stress disorder, seizures and urinary
difficulties.
[4]
In the period of time following his beating
until February 2013, Mr. Newman was engaged in preparing for and attending at
his trial for first degree murder, which ended in his conviction. Mr. Newman
began serving his sentence and started looking for a lawyer to act for him
against the Correctional Service of Canada. In the summer of 2013, he learned
of his current counsel, a lawyer willing to act on behalf of prisoners on a
contingency basis. He consulted her in September 2013, more than 2 years after
the date of his assault. She agreed to accept him as a client and to work on
his case when time permitted. The pleadings were prepared and finalized following
receipt of the necessary information from correctional officials, including the
fact that they considered Mr. Bacon as responsible for the attack on Mr. Newman.
In counsel’s view, this increased the likelihood of a successful claim. The
record discloses that Mr. Newman’s statement of claim was filed on October 17,
2014.
[5]
The statement of claim framed Mr. Newman’s cause
of action exclusively as a breach of his rights under sections 7 and 12 of the Charter
and sought Charter damages from the Crown. The latter defended the claim
on various grounds but brought its application for summary judgment on the
ground that Mr. Newman’s claim was barred by the Limitation Act.
II.
THE DECISION UNDER APPEAL
[6]
In an unreported decision (Reasons), Mr. Justice
Mosley of the Federal Court (the Federal Court Judge) allowed the Crown’s
motion for summary judgment and dismissed Mr. Newman’s claim.
[7]
It was not contested that Mr. Newman’s claim was
subject to the Limitation Act. The issues of relevance to this appeal are
(a) whether his claim was subject to the 2 year limitation imposed by paragraph
3(2)(a) which applies to actions seeking damages for personal injury and
(b) whether, in any event, the running of time did not commence until sometime
in 2013 by reason of the postponement of the running of time pursuant to
subsection 6(4).
[8]
The Federal Court Judge found that, properly
characterized, Mr. Newman’s claim was an action for “damages
in respect of injury to person” as provided in paragraph 3(2)(a),
which “would have been advanced as a tort claim or
claims for breaches of CSC’s [Correction Service of Canada] statutory duties to
prisoners in its care but for the limitation issue”: Reasons at 7. The Federal
Court Judge cited the Supreme Court of Canada’s decision in Vancouver (City)
v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 at para. 43 (Ward), as
authority for the proposition that subsection 24(1) of the Charter “operates concurrently with and does not replace the general
law, including the applicable limitation periods.”
[9]
The Federal Court Judge then addressed the four
criteria which determine the commencement of the running of time against a
plaintiff. He quoted from the British Columbia Supreme Court’s decision in Ounjian
v. St Paul’s Hospital, 2002 BCSC 104, [2002] B.C.J. No. 99 (QL) (Ounjian),
as follows:
1. The identity of the defendant is known to the plaintiff.
2. The plaintiff has certain facts (including the facts set out in s.
6(5)(b)) within her means of knowledge.
3. A reasonable person, knowing those facts and having taken the appropriate
advice a reasonable person would seek on those facts, would regard the facts as
showing that an action would have a reasonable prospect of success.
4. A reasonable person, knowing those facts and having taken the
appropriate advice a reasonable person would seek on those facts, would regard
the facts as showing that the plaintiff ought, in her own interests and taking
her circumstances into account, to be able to bring an action.
Ouinjan,
cited above, at para. 21.
[10]
These four criteria are intended to reproduce
the statutory criteria found in subsection 6(4) of the Limitation Act,
reproduced below:
(4) Time does not begin to run against a
plaintiff or claimant with respect to an action referred to in subsection (3)
until the identity of the defendant or respondent is known to the plaintiff or
claimant and those facts within the plaintiff's or claimant's means of
knowledge are such that a reasonable person, knowing those facts and having
taken the appropriate advice a reasonable person would seek on those facts,
would regard those facts as showing that
(a) an action on the cause of action
would, apart from the effect of the expiration of a limitation period, have a
reasonable prospect of success, and
(b) the person whose means of
knowledge is in question ought, in the person's own interests and taking the
person's circumstances into account, to be able to bring an action.
[11]
The Federal Court Judge found that Mr. Newman
knew the identity of the Crown’s servants “and had the
facts within his knowledge about the existence of a duty owed to him by those
servants and that an alleged breach by them had caused him injury”:
Reasons at 8. The Federal Court Judge went on to find that a reasonable person,
knowing the facts which Mr. Newman knew and having taken the appropriate legal
advice, would have concluded that an action would have a reasonable prospect of
success. In coming to that conclusion, the Federal Court Judge did not give effect
to Mr. Newman’s arguments that those advising him before he was assaulted had
not alerted him to his rights. Nor did the Federal Court Judge think that the
information that correctional officials had accused the rival gang member of
orchestrating Mr. Newman’s beating significantly altered the chances of an
action succeeding.
[12]
Finally, the Federal Court Judge found that “a reasonable person would have taken the appropriate advice
and would regard the facts as showing that Mr. Newman ought, in his own
interests and taking his circumstances into account, to have been able to bring
an action within the limitation period”: Reasons at 8-9.
[13]
The Federal Court Judge acknowledged Mr.
Newman’s involvement in the defence of the murder charges brought against him
but did not consider this as such a compelling circumstance that he could not
have sought a referral to a civil lawyer from his defence lawyer. He was aware
of all the facts and could have acted in his own best interests.
[14]
Mr. Newman also argued that the questions before
the Court were not properly the subject of an application for summary judgment
because they raised issues of credibility. The Federal Court Judge found that “[t]here is no genuine issue for trial if the Defendant can
establish that the claim does not fall within the appropriate limitation period”:
Reasons at 4. To paraphrase, an action which was commenced outside the 2 year
period allowed for actions claiming damages for personal injury would be
statute barred and could therefore be dismissed on a motion for summary
judgment.
[15]
The Federal Court Judge held that Mr. Newman’s
affidavit evidence did not raise any issue of credibility with regard to the
facts that established the limitation defence. He also found that there was no
genuine issue for trial “regarding postponement or
suspension of the operation of the limitation period”: Reasons at 9.
III.
STATEMENT OF ISSUES
[16]
Mr. Newman raises the following issues in his
appeal:
- Did the Federal Court Judge err in determining that the
applicable limitation period for an action for damages brought pursuant to
section 24(1) of the Charter is two years as falling under section 3(2)(a) of
the Limitation Act rather than falling under section 3(5) of the Limitation
Act?
- Did the Federal Court Judge err in finding that there was no
genuine issue for trial with respect to the issue of postponement or suspension
of the applicable limitation period?
[17]
Mr. Newman’s statement of the first issue is
overly broad in the sense that the only action which is in issue in these
proceedings is one which could be pursued either as an action for bodily injury
or as an action for Charter damages. As a result, I would restate the
first issue as follows:
-Did the Federal Court Judge err in
determining that the limitation period applicable to actions for damages for
personal injury applies to an action brought for damages pursuant to section
24(1) of the Charter when the facts giving rise to the claim would be
actionable either in tort arising from bodily injury or as a breach of the
plaintiff’s rights under the Charter?
[18]
Given that this is an appeal from a decision of
a trial judge sitting as such, the standard of review is that set out by the
Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2
S.C.R. 235. The characterization of a cause of action for the purposes of the
application of limitations legislation is a question of law, reviewable on a
standard of correctness: see Canaccord Capital Corporation v. Roscoe, 2013
ONCA 378, 115 O.R. (3d) 641. The question of whether there is a genuine issue
for trial under the rules governing summary judgment applications is, absent an
error of law, a question of mixed fact and law, reviewable on a standard of
palpable and overriding error: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1
S.C.R. 87 at para. 81.
[19]
Turning to the first issue, Mr. Newman argues
that a claim for relief under subsection 24(1) of the Charter cannot be
reduced to a claim for damages arising from bodily injury because damages as
remedy for a breach of an individual’s constitutional rights serve a different
function than do damages for tortious conduct. While common law damages serve
to provide compensation, damages as a remedy pursuant to subsection 24(1)
advance additional interests:
For damages to be awarded [pursuant to
subsection 24(1)], they must further the general objects of the Charter.
This reflects itself in three interrelated functions that damages may serve.
The function of compensation, usually the most prominent function,
recognizes that breach of an individual's Charter rights may cause
personal loss which should be remedied. The function of vindication
recognizes that Charter rights must be maintained, and cannot be allowed
to be whittled away by attrition. Finally, the function of deterrence
recognizes that damages may serve to deter future breaches by state actors.
Ward, cited
above, at para. 25 [emphasis in original].
[20]
Mr. Newman further argues that since Charter
damages are a distinct and separate cause of action, they must, in the absence
of a specific reference to them in the Limitation Act, be treated as a claim
for which no other provision is made.
[21]
The jurisprudence supports the conclusions that
(a) limitation periods apply to personal claims for Charter remedies
and (b) that paragraph 3(2)(a) is the applicable limitation period.
[22]
In Ravndahl v. Saskatchewan, 2009 SCC 7,
[2009] 1 S.C.R. 181 at paras. 16-17, the Supreme Court confirmed that claims
for personal constitutional relief were subject to limitation periods. In Ravndahl,
the limitation period was one applicable to cases not otherwise provided for as
the claim arose from damages suffered as a result of the passage of legislation
inconsistent with section 15 of the Charter.
[23]
In St-Onge v. Canada, 1999 CanLII 8991
(FC), [1999] F.C.J. No. 1842 (T.D.), affirmed by the Court of Appeal, 2001 FCA 308,
[2001] F.C.J. No. 1569, the plaintiff alleged that his equality and language
rights had been infringed. In dismissing his claim as being statute barred,
Hugessen J., at paras. 4-5 of his reasons, held that:
In my view, there is absolutely no doubt
that an action in tort based on delicts which are at the same time
infringements of rights guaranteed by the Charter is subject to the
prescription generally applicable to any action of a delictual nature. The Charter
was adopted in a context which already included two well-developed systems of
civil law with sophisticated rules of procedure and the appropriate courts to
give effect to them. The Charter contains no purely procedural provisions and no
rule governing prescription.
Clearly, it does not follow from this that
the Charter has completely destroyed existing systems and created a system in
which no procedure or prescription exists. On the contrary, existing
legislation and procedures continued to apply except where they were clearly
inconsistent with the Charter itself. A prescription deadline which generally
applies to all actions of the same nature and does not in any way discriminate
against certain groups of litigants does not in any way contravene the Charter.
[24]
In taking this position, Hugessen J. was giving
effect to the comments in McIntyre J.’s concurring reasons in R. v. Mills,
[1986] 1 S.C.R. 863 at 953, 1986 CanLII 17 (SCC) as to the integration of Charter
remedies into the framework of the existing legal system. McIntyre J.’s
comments were taken up with approval by McLachlin C.J.C., speaking for the
Court, in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 at
para. 24.
[25]
In Nagy v. Phillips, 1996 ABCA 280, 187
A.R. 97, the Alberta Court of Appeal held that a claim for damages alleging
that the plaintiff’s rights under section 8 of the Charter were violated
by a strip search conducted by the defendants was subject to section 51 of the Alberta
Limitation of Actions Act, R.S.A. 1980, c. L-15 which deals with “injury to the person, whether arising from an unlawful act …
or from breach of a statutory duty.” The Alberta Court of Appeal
rejected the argument that Charter claims were sui generis and
therefore fell within the limitation with respect to claims for which no other
provision was made. The Alberta limitation provision is substantially the same
as the British Columbia provision at issue in Mr. Newman’s claim.
[26]
The courts of British Columbia have come to the
same conclusion. In Bush v. Vancouver (City), 2006 BCSC 1207, [2006] B.C.J.
No. 1816 (QL), the Court held that the plaintiff’s claim for damages arising
from the violation of his Charter rights when he was arrested and
detained was subject to the limitation period applicable to injury to the
person. The same result was arrived at in Fidler v. Burns Lake (Village),
2013 BCSC 921, [2013] B.C.J. No. 1088 (QL) at para. 27, and Foote v. Canada
(Attorney General), 2012 BCSC 177, [2012] B.C.J. No. 225 (QL) at para. 31,
affirmed at 2013 BCCA 135, [2013] B.C.J. No. 691 (QL).
[27]
Mr. Newman acknowledges this jurisprudence but
says that it does not take account of the Supreme Court’s decision in Ward, in
particular, the specific nature of a claim for Charter damages, the
purpose of an award of damages in a Charter case, and the unique
analytical framework for claims for Charter damages. This framework was
elaborated in Ward:
I conclude that damages may be awarded for Charter
breach under s. 24(1) where appropriate and just. The first step in the inquiry
is to establish that a Charter right has been breached. The second step
is to show why damages are a just and appropriate remedy, having regard to
whether they would fulfill one or more of the related functions of
compensation, vindication of the right, and/or deterrence of future breaches.
At the third step, the state has the opportunity to demonstrate, if it can,
that countervailing factors defeat the functional considerations that support a
damage award and render damages inappropriate or unjust. The final step is to
assess the quantum of the damages.
Ward, cited
above, at para. 4.
[28]
While the cases which preceded Ward
recognized that claims for Charter damages were distinct, they also held
that Charter damage claims which would have been actionable as torts arising
from bodily injury were subject to the limitation applicable to actions “for damages in respect of injury to person or
property…whether based on contract, tort or statutory duty”: see, for
example, Nagy v. Phillips, cited above, at paras. 10-11.
[29]
The Supreme Court dealt with the role of Charter
remedies in the context of existing legal remedies in Ward:
The Charter entered an existent
remedial arena which already housed tools to correct violative state conduct.
Section 24(1) operates concurrently with, and does not replace, these areas of
law. Alternative remedies include private law remedies for actions for personal
injury, other Charter remedies like declarations under s. 24(1), and
remedies for actions covered by legislation permitting proceedings against the
Crown.
Ward, cited
above, at para. 34.
[30]
As a result, the weight of authority supports
the proposition that personal Charter remedies are subject to provincial
limitation statutes. Furthermore, the jurisprudence is to the effect that Charter
damages claims arising from bodily injury are subject to the limitation periods
governing actions seeking private law remedies for bodily injury.
[31]
I am persuaded that the following policy
considerations support these conclusions.
[32]
The application of a limitation period to the
bringing of an action for Charter damages does not preclude the application of
the unique analytical framework described in Ward. It simply means that
the action must be commenced within the prescribed period. Once the action is
commenced, the plaintiff is free to invoke the Charter damages analysis.
[33]
A 2 year limitation period for claims for Charter
damages arising from “injury to the person” can
be justified, in cases of bodily injury, by the same considerations which
justify shorter limitation period for bodily injuries generally. Those
considerations include the need for timely investigation which may be more
acute in the case of bodily injury because of the importance of eyewitness
evidence, which deteriorates rapidly over time, and because of the more limited
role of documentary evidence in bodily injury cases, at least with respect to
the liability portion of the claim. These factors reflect the evidentiary
concerns which apply to all limitation periods: see Peixeiro v. Haberman,
[1997] 3 S.C.R. 549, [1997] S.C.J. No. 31 (QL) at para. 34. I would venture to
add that short limitation periods are not exclusively a function of the premium
placed on those statutes as statutes of repose, as the Supreme Court suggested
in Peixeiro v. Haberman. See for example Canadian Imperial Bank of
Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801 at paras. 57-58. For
these reasons, it is appropriate that a Charter damages claim based on a
bodily injury should be subject to the same limitation period which would apply
to a tort claim arising out of the same injury.
[34]
Furthermore, it is not desirable, as a matter of
policy, that claims for bodily injury should have different limitation periods
depending upon the identity of the defendant. Charter damages claims can
only be made against state actors. The position advocated by Mr. Newman would
result in a longer limitation period for bodily injury claims against state
actors while non-state actors would have the benefit of a shorter limitation
period. Public entities have the same need for finality and protection from
stale claims as individual or corporate tortfeasors, perhaps more so, given
their size and the scope of their operations: see Des Champs v. Conseil des
écoles séparées catholiques de langue française de Prescott-Russell, [1999]
3 S.C.R. 281, [1999] S.C.J. No. 53 (QL) at para. 1. As a result, I am of the
view that the Federal Court Judge was correct in concluding that Mr. Newman’s
claim for Charter damages was subject to the 2 year limitation in
paragraph 3(2)(a).
[35]
The next issue is whether the Federal Court
Judge erred in finding that there was no genuine issue for trial with respect
to the issue of postponement or suspension of the applicable limitation period.
Mr. Newman raises as a separate issue the question of whether the Crown’s
limitation defence was an appropriate subject-matter for a summary judgment
application as it required the Court to consider issues of credibility and/or
disputed questions of fact. In fact, both grounds arise from the same
allegations namely that Mr. Newman’s affidavit evidence raised issues which the
Federal Court Judge ought not to have resolved on affidavit evidence. Mr.
Newman argues that, as a result, the Crown’s limitation defence and his
suspension or postponement arguments were not appropriately decided on a motion
for summary judgement.
[36]
I note that the Federal Court Judge held that
the onus was on the Crown to establish the facts which would give rise to its
limitation defence. Thereafter it was up to Mr. Newman to establish the facts
which would support his claim that the running of the limitation period was
postponed or suspended: Limitation Act, subsection 6(6).
[37]
As I read the Federal Court Judge’s reasons, he
found that there were no contested facts relative to the question of when the
limitation period in paragraph 3(2)(a) began to run, subject to issues
of postponement or suspension of that limitation period. Mr. Newman’s own
affidavit establishes that he was assaulted while in the custody of
correctional officials in circumstances where they knew of the risk of harm to
him. The date of the assault is not disputed. On the basis that a claim for
bodily injury, however characterized, comes within paragraph 3(2)(a) of the Limitation
Act, these facts are sufficient to establish that the date on which Mr.
Newman’s right to commence an action seeking damages for personal injury arose
on July 20, 2011, subject always to the possible postponement or suspension of
the limitation period.
[38]
This leaves the question of whether the Federal
Court Judge could find as he did on the issue of the suspension of postponement
of the limitation period without impermissibly resolving disputed questions of
fact or credibility.
[39]
The test for the suspension or postponement of a
limitation period set out in subsection 6(4) of the Limitation Act has
been described as "mysterious, obscure, and inartistic" (Edgeworth
Construction, cited below), with good reason. However, a careful reading of
subsection 6(4) permits one to observe that it contains both objective and
subjective elements. The subjective elements are knowledge of the identity of
the defendant and knowledge of other facts material to the cause of action,
including the fact that one has suffered harm as a result of the actions of the
proposed defendant.
[40]
This apparently straightforward proposition is
made more complex by subsection 6(5) which defines what appear, at first blush,
to be legal issues as questions of fact. This is material to Mr. Newman’s
circumstances because one of the contested factual issues is when he knew of
these particular facts. Subsection 6(5) provides as follows:
6(5) For the purpose of subsection (4),
…
(b) "facts" include
(i) the
existence of a duty owed to the plaintiff or claimant by the defendant or
respondent, and
(ii)
that a breach of a duty caused injury, damage or loss to the plaintiff or
claimant,
[41]
On its face, subsection 6(5) requires a
plaintiff to have actual knowledge of the existence of a duty and of the breach
of that duty by the defendant. But the existence of a duty and the
characterization of certain acts as constituting a breach of that duty are
conclusions of law. In Edgeworth Construction Ltd. v. Thurber Consultants
Ltd., 2000 BCCA 453, [2000] B.C.J. No. 1609 (QL) (Edgeworth Construction),
the British Columbia Court of Appeal examined the language and operation of
subsections 6(4) and 6(5) in a case where the parties argued that a change in
the law revived a cause of action which would have been statute barred on the
law as it stood before the change. This raised the question of the meaning to
be given to subsection 6(5) since the existence of a duty and the
characterization of certain acts as a breach of that duty are, prima facie,
questions of law.
[42]
After reviewing the history of “discoverability” provisions in England, Australia and
Canada, the Court rejected the notion of a revival of a cause of action
following a change in the law. It went on to comment on subsection 6(5) as
follows:
Nor, in my view, does the definition of
"facts" in sub-paragraph (b) of s. 6(5) turn matters of law (such as
whether a duty of care is owed to a particular plaintiff) into matters of fact.
Rather, one sets aside the issues of law raised by the case or assumes they
will be decided in the plaintiff's favour, and asks when the plaintiff became
aware, or should reasonably have become aware, that he might sue for damages.
At this point, the period begins running.
[43]
The effect of the assumption that the facts
described in subsection 6(5) will be decided in the plaintiff’s favour is
perhaps clarified by the following passage from Vance v. Peglar, 1996
CanLII 1834 (BCCA), 138 D.L.R. (4th) 711, quoted with approval in Edgeworth
Construction at para. 30 of its reasons:
The question of whether there was a breach
of duty usually has a legal component but the Act treats that question as a
factual one because, for the purposes of any relevant limitation issue there
must be an assumption of an ultimate finding of liability against the defendant
for breach of duty to the plaintiff, and so the limitation issue assumes the
breach of duty and concentrates on when the assumed breach was known to the
plaintiff or could have become known to the plaintiff if he or she had taken
the steps that he or she could reasonably have taken in the circumstances. So,
for the purposes of the limitation issue, the relevant question is one of fact
[emphasis removed].
[44]
While the matter is not free from doubt, I take
the British Columbia Court of Appeal to have decided that the existence of a
legal duty and of a breach of that duty are subsumed into an inquiry as to the
facts which would support such a legal conclusion. The characterization of
those facts is a matter for the inquiry in paragraph 6(4)(a) with the
effect of the legal advice which the plaintiff obtained or ought to have
obtained.
[45]
In this case, the Federal Court Judge appears to
have treated the questions of the existence of a duty and the breach of that
duty as facts which had to be proved:
The first and second requirement set out in Ouijian,
above, are clearly met as the plaintiff knew of the identity of the Defendant’s
servants and had the fact within his knowledge about the existence of a duty
owed to him by those servants and that an alleged breach by them had caused him
injury.
Reasons, at 8.
[46]
To the extent that the Federal Court Judge came
to this conclusion by deciding a contested question of fact, namely what advice
Mr. Newman received (or did not receive) from a legal “advocate”
- a non-lawyer who advocated for prisoner’s rights within the correctional
system - his decision is not to be set aside on that ground because his
conclusion on this issue would stand in any event. The relevant knowledge is
the knowledge of the facts which would support the conclusion that there
existed a duty and that the duty was breached. Mr. Newman had knowledge of the
material facts. The Federal Court Judge’s conclusion on this branch of the test
is correct.
[47]
Returning now to the subjective/objective
dichotomy, it appears to me that the objective elements are whether a
reasonable person, knowing the facts that the plaintiff knows, and having taken
the advice that a reasonable person would take on those facts, would regard
those same facts as showing that:
(1) an action on the cause of action
would, apart from the effect of the expiration of a limitation period, have a
reasonable prospect of success; and
(2) the person whose means of
knowledge is in question ought, in the person's own interests and taking the
person's circumstances into account, to be able to bring an action.
[48]
Points (1) and (2) above are essentially
paragraphs 6(4)(a) and (b) of the Limitation Act
respectively.
[49]
Paragraph 6(4)(a) asks a purely objective
question. Would a reasonable person, armed with the plaintiff’s knowledge of
the facts and having taken appropriate advice consider that an action based on
those facts would have a reasonable prospect of success? The Federal Court
Judge found that a reasonable person in those circumstances would come to that
conclusion. The test is objective; Mr. Newman’s evidence as to his state of
mind is not relevant.
[50]
On the other hand, paragraph 6(4)(b) has a
different complexion. It was considered by the Supreme Court of Canada in Novak
v. Bond, [1999] 1 S.C.R. 808, 1999 CanLII 685, where a bare majority of the
Supreme Court held that paragraph 6(4)(b) requires a
subjective/objective approach. At para. 81 of the decision, McLachlin J. (as
she then was) wrote, for the majority:
On this approach, s. 6(4)(b) may be read as
denoting a time at which a reasonable person would consider that someone in the
plaintiff's position, acting reasonably in light of his or her own
circumstances and interests, could – not necessarily should – bring
an action. This approach is neither purely subjective nor purely objective. The
question becomes: "in light of his or her own circumstances and interests,
at what point could the plaintiff reasonably have brought an action?" The
reasonable person would only consider that the plaintiff could not have brought
an action at the time the right to do so first arose if the plaintiff's own
interests and circumstances were serious, significant, and compelling. Purely
tactical considerations have no place in this analysis.
[51]
The subjective element, in this perspective,
consists of treating the question of whether a plaintiff “ought to be able to bring an action” as asking when a
plaintiff, in light of his own her own circumstances and interests, could bring
an action. The objective element is satisfied by stipulating that a reasonable
person would only consider that a plaintiff could not bring an action if the
plaintiff’s own circumstances were “serious,
significant and compelling.”
[52]
The Federal Court Judge considered Mr. Newman’s
circumstances and found that they were not so compelling that it could not be
reasonably said that he could not have brought an action within the limitation
period.
[53]
Mr. Newman’s criticisms of the Federal Court
Judge are largely based on the argument that he did not give sufficient weight
to the various factors which Mr. Newman enumerated as weighing upon him
following his assault. A related argument is that a summary judgment motion is
not the appropriate forum for dealing with issues such as those which Mr.
Newman raised in his plea that the commencement of the limitation period was
suspended or postponed.
[54]
After having carefully reviewed the evidence, I
am of the view that there is merit to Mr. Newman’s submissions. Mr. Newman’s
affidavit evidence is to the effect that he suffered serious sequelae following
his assault, including post-traumatic stress disorder as evidenced by
nightmares, panic attacks, elevated heart rates, such that it was unbearable
for him to think about what had happened to him: see Appeal Book at p. 136,
para. 40. Mr. Newman’s affidavit also shows that during the period that he was
incarcerated at the Surrey Pre-Trial Center (roughly December 2011 to February
2013), he acted on the advice which he received from inmates and staff to the
effect that he ought not commence an action because this would create or
increase a risk of retaliation: see Appeal Book, at p. 136, para.37.
[55]
These two elements are material to the question
at the heart of the paragraph 6(4)(b) analysis: "in
light of his or her own circumstances and interests, at what point could the
plaintiff reasonably have brought an action?" It is, I believe,
reasonably clear that, from Mr. Newman’s perspective, the earliest time that he
could have pursued his rights was upon his return to Kent Institution in
February 2013.
[56]
The next step in the analysis is to ask whether
the circumstances which Mr. Newman identified were “significant
serious and compelling”. The Federal Court Judge found that they were
not. With respect, I believe that this question was not one which should have
been decided in summary judgment proceedings. Taken at face value, Mr. Newman’s
allegations are sufficient to meet the “significant, serious and compelling”
threshold as it is not, prima facie, reasonable to ask the victim of a serious
physical assault to pursue his remedies at the risk of provoking another
serious physical assault.
[57]
The question as to whether Mr. Newman’s
allegations are substantiated necessarily calls Mr. Newman’s credibility into
question. That is not a question which should be resolved on an application for
summary judgment: MacNeil Estate v. Canada (Indian and Northern Affairs
Department), 2004 FCA 50, [2004] 3 F.C.R. 3, at 32; Trojan Technologies,
Inc. v. Suntec Environmental Inc., 2004 FCA 140, [2004] F.C.J. No. 636, at
20, 28-29. The Federal Court Judge’s decision to resolve this question of
credibility on a summary judgement application amounts to an error which
justifies our intervention.
[58]
In my view, there is a genuine issue for trial
as to whether the running of the limitation period against Mr. Newman was
suspended by operation of subsection 6(4) or the Limitations Act.
[59]
As a result, I would allow the appeal with
costs, set aside the Federal Court’s order, and dismiss the respondent’s motion
for summary judgment.
"J.D. Denis Pelletier"
“I agree.
Yves de Montigny J.A.”
“I agree.
Mary J.L. Gleason J.A.”
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