Winmill v. Woodstock (Police Services Board), 2017 ONCA 962 (CanLII)

The Court of Appeal held that the tort of battery against police officers was not discoverable until the plaintiff was acquitted of criminal charges of assault of the officers and resisting arrest, thereby extending the “appropriate means” aspect of discoverability until the date of his acquittal.

Date Heard: November 10, 2017 | Full Decision [PDF]

The plaintiff was involved in an altercation with police on June 1, 2014 wherein he was struck by police officers and sustained injuries as a result. The plaintiff was charged with assault and resisting arrest. On February 17, 2016, the plaintiff was acquitted of both charges. On June 2, 2016, he commenced a civil action against the officers and the Woodstock Police Services Board, alleging the torts of battery and negligent investigation.

The defendants brought a summary judgment motion arguing that the claim was not commenced within the limitation period and was statute-barred. The motion judge dismissed the plaintiff’s claim for battery based on the following reasoning:

It is clear from the evidence the plaintiff had knowledge that litigation was available to him as a remedy for the damages he had suffered at the hands of the police. Whether and to what extent he may have been found criminally responsible for the offences with which he had been charged was in no way determinative of whether or not he had been the subject of excessive force and assaulted by police.

The plaintiff admitted he knew litigation was an option and by extension he is therefore deemed to know it was appropriate to sue the Woodstock Police Service for redress of his injuries suffered on June 1, 2014.

However, the motion judge held that the plaintiff’s claim for negligent investigation was not discoverable until the acquittal fate of February 17, 2016, and was therefore not barred.

In setting aside the summary judgment decision dismissing the claim for battery, the Court of Appeal held that until the plaintiff was acquitted of the criminal charge of assault, it was not clear that a civil action was the “appropriate means” of redress. The Court considered section 5(1)(a) of the Limitations Act:

5(1)   A claim is discovered on the earlier of,
(a)   the day on which the person with the claim first knew,
(i)     that the injury, loss or damage had occurred,
(ii)    that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii)   that the act or omission was that of the person against whom the claim is made, and
(iv)   that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

The Court found that there was no issue regarding the first three factors. With respect to the fourth factor, the Court noted that the verdict in the criminal trial, especially on the assault charge, would be a crucial factor in the decision of whether to proceed with a civil action in battery. The Court cited Chimienti v. Windsor (City), 2011 ONCA 1, agreeing that “there is something of a logical inconsistency in asking a civil court to rule on the propriety of a criminal prosecution before the criminal court has had the opportunity to assess the merits of the underlying charge” (para 15).

The Court of Appeal held that the criminal charges of assault and resisting arrest and the tort claim of battery are “very close to being two sides of the same coin or mirror images of each other” (para 33). A civil proceeding was therefore not discoverable as appropriate means for redress until his acquittal, and his claim in battery was allowed to proceed.


Read the full decision [PDF]
Written by

Gillian attained an Honours Bachelor of Arts degree in English Literature from Queen’s University in 2011, receiving the Roscoe R. Miller Award and the Arts 1915 Price for academic excellence. She received her Juris Doctor from Western University in 2014 and was placed on the Dean’s Honour List.

Prior to joining Bogoroch & Associates LLP, Gillian articled at a full-service firm in London, and was called to the Bar in 2015. She has been published in The Advocates’ Journal and participated in the Gale Cup Moot, and is a member of the Canadian Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.