Alexis v. Darnley et al.,

• Jurisdiction: Ontario
• Judge: Moldaver, Armstrong and Rouleau, JJ.A.
• Neutral Citation: 2009 ONCA 847
• Citation: 2009 ONCA 847,(2009), 259 O.A.C. 148 (CA),100 OR (3d) 232,[2009] CarswellOnt 7528,[2009] OJ No 5170 (QL),259 OAC 148,79 CPC (6th) 10,100 O.R. (3d) 232,[2009] O.J. No 5170 (QL),259 O.A.C. 148,(2009), 259 OAC 148 (CA)
• Date: 07 October 2009
• Court: Court of Appeal (Ontario)

Alexis v. Darnley (2009), 259 O.A.C. 148 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. DE.038

Gladys Alexis (appellant/plaintiff) v. P.C. Darnley, Badge No. 7909, P.C. Shannon McParland, Badge No. 7100, The Toronto Police Services Board, Scarborough General Hospital and Jane Doe (respondents/defendants) and Dr. Michael Heiber (respondent/intervenor)

(C50058; 2009 ONCA 847)

Indexed As: Alexis v. Darnley et al.

Ontario Court of Appeal

Moldaver, Armstrong and Rouleau, JJ.A.

December 2, 2009.

Summary:

Police officers escorted the plaintiff to a hospital where she was admitted as an involuntary patient for a psychiatric assessment pursuant to the Mental Health Act (Ont.). After her release, she became upset with the manner in which she was treated by the police and hospital personnel. She sued them for unlawful detention. The defendants moved to strike the claim. The plaintiff moved to add a Dr. Heiber as a defendant.

The Ontario Superior Court, in a decision reported [2009] O.T.C. Uned. 197, dismissed the plaintiff's motion and granted a summary judgment dismissing her claim in its entirety. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 7582

Actions against the Crown - Applicability of limitation period - Charter remedies - The Ontario Court of Appeal discussed the question of whether claims under s. 24(1) of the Charter were insulated from the provisions of the Limitations Act (Ont.) - The court concluded as follows: "A plain reading of the Limitations Act makes it apparent that, in adopting the new Limitations Act [S.O. 2002, c. 24], the legislature intended that the 2 year limitation would apply to claims brought as an individual for personal remedy under s. 24(1)" - See paragraphs 13 to 22.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - Police officers escorted the plaintiff to a hospital where she was admitted as an involuntary patient for a psychiatric assessment pursuant to the Mental Health Act (Ont.) - On October 7, 2005, the plaintiff was given a Form 42, which indicated the name of the physician who examined her and the fact that she was examined - After her release, she became upset with the manner in which she was treated by the police and hospital personnel - On March 12, 2008, she sued them for unlawful detention - A motion judge summarily dismissed the plaintiff's action as outside the applicable limitation period, ruling that she had actual knowledge of the material facts on October 7, 2005 - The plaintiff appealed, arguing that the motion judge misinterpreted and misapplied s. 5 of the Limitations Act, respecting discoverability - The Ontario Court of Appeal dismissed the appeal, ruling as follows: (1) the need for the plaintiff's counsel to review hospital and police records before he could be sure of the advice he gave the plaintiff more than two years before the claim was issued did not delay the start of the limitation period; (2) the fact that the plaintiff's counsel learned the examining physician's name in June 2007 also did not delay the start of the limitation period as the plaintiff either knew the physician's name on October 7, 2005, or could have ascertained it - See paragraphs 5 to 12.

Cases Noticed:

Aguonie v. Galion Solid Waste Material Inc. et al. (1998), 107 O.A.C. 114 (C.A.), refd to. [para. 12].

Prete v. Ontario et al. (1993), 68 O.A.C. 1 (C.A.), refd to. [para. 13].

Romano v. D'Onofrio et al., [2005] O.A.C. Uned. 526 (C.A.), refd to. [para. 13].

Zadworny v. Manitoba (Attorney General) et al., [2007] Man.R.(2d) Uned. 87; 2007 MBCA 142, refd to. [para. 16].

St-Onge v. Canada (1999), 178 F.T.R. 104 (T.D.), affd. (2001), 288 N.R. 3 (F.C.A.), leave to appeal denied [2002] 3 S.C.R. xi; 300 N.R. 98, refd to. [para. 16].

Garry et al. v. Canada (Minister of Justice) et al. (2007), 429 A.R. 292; 421 W.A.C. 292 (C.A.), leave to appeal denied [2008] 1 S.C.R. viii, refd to. [para. 16].

Jourdain v. Ontario et al., [2008] O.T.C. Uned. E24 (Sup. Ct.), refd to. [para. 16].

Ravndhal v. Saskatchewan et al. (2007), 299 Sask.R. 162; 408 W.A.C. 162 (C.A.), refd to. [para. 16].

Ravndahl v. Saskatchewan et al. (2009), 383 N.R. 247; 320 Sask.R. 305; 444 W.A.C. 305; 2007 SCC 7, dist. [para. 17].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al., [2007] 1 S.C.R. 3; 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, consd. [para. 17].

Counsel:

Osborne G. Barnwell, for the appellant;

Anna Marrison, for the respondents/defendants;

Stuart Zacharias, for the respondent/intervenor.

This appeal was heard on October 7, 2009, by Moldaver, Armstrong and Rouleau, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Rouleau, J.A., and released on December 2, 2009.