"Mr. Williams was a dedicated saver," wrote Justice Boswell in the recent case Williams v. Currie, 1 "But he eschewed the traditional banking system. He kept his savings in a safe hidden in a storage room in his basement." Someone broke into Mr. Williams's home in March 2019 and stole his safe — but Mr. Williams did not start a civil proceeding against the people he suspected until April 2023.
In general, Ontario's Limitations Act requires plaintiffs to sue within two years of the claim being "discovered" — but, as Justice Boswell wrote, "when the clock begins to tick on that limitation period is often in dispute". In this case, Mr. Williams reported the theft of his safe to the police, resulting in a criminal investigation with no charges. Mr. Williams then swore an Information, commencing a private prosecution against the individuals he suspected. Mr. Williams argued that his claim was not discoverable until the withdrawal of the Information in 2022.
The Williams case is significant because Justice Boswell found that Mr. Williams's claim was statute-barred under the Limitations Act. In doing so, Justice Boswell resolved tensions in the governing appellate case law, finding that that the criminal investigation did not pause the limitations clock. This broad view of discoverability means that plaintiffs involved in criminal investigations should consider bringing any contemplated civil claims early.
Section 4 of the Limitations Act requires a plaintiff to bring a claim within two years of the claim being "discovered". Subsection 5(1) then sets out what it means to "discover" a claim — among other things, the person must know that a proceeding would be an "appropriate means" to remedy the injury at issue. In the Williams case, Mr. Williams argued that he did not know, and could not reasonably have known, that a proceeding against the defendants was "appropriate" until his Information was withdrawn, as the criminal investigation could reasonably be relied upon to end with a restitution order that addressed his loss.
In his analysis, Justice Boswell grappled with two relevant Court of Appeal decisions that, in his view, took "differing approaches" to the "appropriateness" requirement in this context — Winmill v. Woodstock (Police Services Board) 2 and Sosnowski v. McEwan Petroleum Inc. 3
In Winmill, the plaintiff was charged with assaulting police and resisting arrest in 2014. The plaintiff was acquitted in 2016, following which he commenced a civil action against the police for battery. At first instance, the police were successful in having the action dismissed as statute-barred, but the Court of Appeal for Ontario set aside this result and held that it was appropriate for the plaintiff to wait for the criminal charges to be withdrawn before advancing his civil claim.
By contrast, in Sosnowski, the court found that it was inappropriate for the plaintiff to wait for an acquittal before commencing a civil claim. Sosnowski involved a plaintiff who was terminated from his employment for allegedly stealing fuel. The alleged theft was reported to the police and the plaintiff was ultimately charged, convicted, and then acquitted on appeal. After being acquitted, the plaintiff sued his employer for wrongful dismissal. The defendant employer argued that the claim was statute-barred and the motions judge agreed, distinguishing Sosnowski from Winmill on the basis that the civil case in Winmill involved the conduct of the police, who were also closely involved in the criminal proceedings. 4 This was upheld on appeal.
As Justice Boswell then wrote in the Williams case, "One could be forgiven for missing the subtle differences in the factual contexts of Sosnowski and Winmill."
Justice Boswell concluded that Sosnowski did not overturn Winmill, but that it "certainly did limit its applicability to very narrow circumstances": "specifically where the proposed tort claim is against the Crown or the police and where there are outstanding, related criminal charges." As a result, Winmill was of no assistance to Mr. Williams.
Justice Boswell also drew on Sosnowski for the proposition that an "adequate alternative dispute resolution process" that has not yet run its course may also toll the limitation period. But Justice Boswell went on to conclude that the ongoing criminal investigation was not an "adequate alternative remedy" in the requisite sense, finding that (1) a formal criminal proceeding was never initiated, such that there was no real prospect of a restitution order; (2) a criminal investigation has no defined date of completion, introducing an untenable level of uncertainty into the limitations period analysis; and (3) the purpose of Mr. Williams's action was different than the purpose of a criminal proceeding — Mr. Williams's primary purpose in pursuing the criminal investigation was to see the defendants "prosecuted and punished".
The Williams decision adds to the developing case law on when a proceeding is an "appropriate" means to seek a remedy, favouring an approach that encourages plaintiffs to bring their civil claims early.
Footnotes
1. 2023 ONSC 5419.
2. 2017 ONCA 962.
3. 2019 ONCA 1005.
4. 2019 ONSC 1860.
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