Engel v. da Costa et al., 2008 ABCA 152

• Judge: Picard, Ritter and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 01, 2008
• Citations: 2008 ABCA 152;(2008), 429 A.R. 184 (CA)

Engel v. da Costa (2008), 429 A.R. 184 (CA);

      421 W.A.C. 184

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AP.143

Thomas M. Engel (appellant/applicant) v. Darryl da Costa, Acting Chief of the Edmonton Police Service and Mike Boyd, Chief of the Edmonton Police Service (respondents/respondents)

(0603-0315-AC; 2008 ABCA 152)

Indexed As: Engel v. da Costa et al.

Alberta Court of Appeal

Picard, Ritter and Watson, JJ.A.

April 22, 2008.

Summary:

Two citizens (Engel and Deslauriers) applied for judicial review of a decision of the Acting Chief of the Edmonton Police Service and a decision of the Edmonton Police Commission dismissing their complaints under s. 43(11) of the Police Act because the complaints were made more than one year after the events complained of had occurred.

The Alberta Court of Queen's Bench, in a decision reported at 403 A.R. 365, dismissed the applications. Engel appealed.

The Alberta Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - Two citizens applied for judicial review of a decision of the Acting Chief of the Edmonton Police Service and a decision of the Edmonton Police Commission dismissing their complaints under s. 43(11) of the Police Act because the complaints were made more than one year after the events complained of had occurred - The citizens argued that they had discovered the events within the one year limitation period and that the "discoverability rule" applied - The reviewing judge dismissed the application - A discoverability rule was not included in s. 43(11) - In appropriate circumstances it could be implied by the court - However, this was not an appropriate case - When time ran from an event which clearly occurred without regard to the injured party's knowledge, the judge made discoverability rule could not extend the period the legislature had prescribed - Such clear language was found in s. 43(11) which stated "shall dismiss" without more - Moreover, the Police Act did not provide a right of appeal, thereby supporting the position that the legislation intended the words "shall dismiss" to mean exactly that without any limitation argument or discernability principle - The Alberta Court of Appeal dismissed an appeal - See paragraphs 27 to 31.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Police - Topic 4063

Internal organization - Discipline of members - Limitation periods - [See Limitation of Actions - Topic 15 ].

Statutes - Topic 2263

Interpretation - Presumptions and rules in aid - Against interference with vested rights (incl. pending litigation) - Two citizens applied for judicial review of a decision of the Acting Chief of the Edmonton Police Service and a decision of the Edmonton Police Commission dismissing their complaints under s. 43(11) of the Police Act because the complaints were made more than one year after the events complained of had occurred - The alleged events had occurred between 1999 and 2003 - The complaints had been filed in 2005 - Section 43(11) came into force in June 2005 - The citizens argued that the limitation period could not interfere with vested rights - The reviewing judge dismissed the application - The right to file a complaint under the Police Act was not a vested right which required protection from the retrospective or immediate application of s. 43(11) - The Alberta Court of Appeal dismissed an appeal - There was nothing in the wording of s. 43(11) which suggested that the ability to make a formal complaint was a "vested right" - The Legislature was not obliged to provide an opportunity to complain about police misconduct - In creating that opportunity or ability, it did not establish a quantifiable vested right possessed by all citizens which it could not limit or adjust as it saw fit - See paragraphs 23 to 26.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 2008 SCC 9, refd to. [para. 7].

Edmonton Police Association et al. v. Edmonton (City) (2007), 404 A.R. 262; 394 W.A.C. 262; 73 Alta. L.R.(4th) 205; 2007 ABCA 147, refd to. [para. 7].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 13].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 13].

British Columbia v. Bolster et al. (2007), 236 B.C.A.C. 46; 390 W.A.C. 46; 2007 BCCA 65, leave to appeal denied [2007] S.C.C.A. No. 167 (S.C.C.), refd to. [para. 15].

Castillo v. Castillo, [2005] 3 S.C.R. 870; 343 N.R. 144; 376 A.R. 224; 360 W.A.C. 224; 2005 SCC 83, refd to. [para. 15].

R. v. Smith (Howard) Paper Mills Ltd., [1957] S.C.R. 403; 26 C.R. 1, refd to. [para. 15].

Stuffco v. Stuffco et al. (2006), 397 A.R. 111; 384 W.A.C. 111; 68 Alta. L.R.(4th) 91 2006 ABCA 317, refd to. [para. 16].

Gardner v. Lucas (1878), 3 A.C. 582, refd to. [para. 16].

CNG Producing Co. v. Alberta (Provincial Treasurer) (2002), 317 A.R. 171; 284 W.A.C. 171; 218 D.L.R.(4th) 257; 2002 ABCA 207, refd to. [para. 17].

Laquerre v. Murray and Canada (Procureur général) (1995), 100 F.T.R. 241 (T.D.), refd to. [para. 17].

Shuffler v. Calgary Police Commission and Borbridge (1995), 169 A.R. 209; 97 W.A.C. 209; 125 D.L.R.(4th) 755 (C.A.), refd to. [para. 18].

Dikranian v. Quebec (Attorney General), [2005] 3 S.C.R. 530; 342 N.R. 1; 2005 SCC 73, refd to. [para. 24].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 25].

Plimmer v. Chief of Police et al. (2004), 354 A.R. 62; 329 W.A.C. 62; 2004 ABCA 175, refd to. [para. 28].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 28].

A v. Hoare; C v. Middlesbrough Council; X and another v. Long Bourough of Wandsworht; H. v. Suffolk County Council; Young v. Catholic Care (Diocese of Leeds) and others, [2008] UKHL 6, refd to. [para. 28].

Mustapha v. Culligan of Canada Ltd. (2006), 218 O.A.C. 271 (C.A.), leave to appeal granted (2007), 374 N.R. 391 (S.C.C.), refd to. [para. 28].

Sun Gro Horticulture Canada Ltd. v. Abe's Door Service Ltd. et al. (2006), 397 A.R. 282; 384 W.A.C. 282; 273 D.L.R.(4th) 295; 2006 ABCA 243, refd to. [para. 29].

Fehr v. Jacob and Bethel Hospital (1993), 85 Man.R.(2d) 63; 41 W.A.C. 63; 14 C.P.C.(3d) 364 (C.A.), refd to. [para. 30].

Czyz et al. v. Langenhahn et al. (1998), 219 A.R. 9; 179 W.A.C. 9; 158 D.L.R.(4th) 615 (C.A.), refd to. [para. 30].

Arishenkoff et al. v. British Columbia (2004), 198 B.C.A.C. 164; 324 W.A.C. 164; 241 D.L.R.(4th) 385; 2004 BCCA 299, refd to. [para. 30].

Seal v. Chief Constable of South Wales Police, [2007] N.R. Uned. 165; [2007] UKHL 31, refd to. [para. 30].

Bowes v. Edmonton (City) et al. (2008), 425 A.R. 123; 418 W.A.C. 123; 2007 ABCA 347, refd to. [para. 30].

Statutes Noticed:

Police Act, R.S.A. 2000, c. P-17, sect. 43(11) [para. 9].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 545 [para. 25]; 546 [paras. 14, 25]; 547 to 585 [para. 14]; 582 [para. 15].

Counsel:

E.D. Norheim, for the appellant;

J.T. Henderson, Q.C., for the respondent.

This appeal was heard on April 1, 2008, by Picard, Ritter and Watson, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Watson, J.A., on April 22, 2008.