Ferris v. Fredericton (City), (2010) 362 N.B.R.(2d) 342 (CA)

• Judge: Turnbull, Richard and Bell, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 09, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 362 N.B.R.(2d) 342 (CA);2010 NBCA 55

Ferris v. Fredericton (2010), 362 N.B.R.(2d) 342 (CA);

    362 R.N.-B.(2e) 342; 934 A.P.R. 342

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.B.R.(2d) TBEd. JL.018

Renvoi temp.: [2010] N.B.R.(2d) TBEd. JL.018

The City of Fredericton (defendant/appellant) v. Brent Ferris (plaintiff/respondent)

(117-09-CA)

Brent Ferris (plaintiff/appellant) v. The City of Fredericton (defendant/respondent)

(134-09-CA; 2010 NBCA 55)

Indexed As: Ferris v. Fredericton (City)

Répertorié: Ferris v. Fredericton (City)

New Brunswick Court of Appeal

Turnbull, Richard and Bell, JJ.A.

July 22, 2010.

Summary:

Résumé:

On June 29, 2005, Ferris commenced an action against the City of Fredericton, a police officer and "three police officers to be named", for alleged battery and false imprisonment that occurred on June 28, 2003. The originating process was a Notice of Action endorsed with a brief statement of the nature of the claim. On July 29, 2005, Ferris filed a Notice of Action with Statement of Claim Attached, as an amendment. On November 10, 2008, he filed an "Amended Notice of Action with Statement of Claim Attached", naming only the City as defendant, for alleged battery that occurred in September 2003. On June 24, 2009, the City filed a motion seeking the dismissal of the action, on the ground that it was barred under s. 4 of the Limitation of Actions Act; i.e., it was not filed within the two-year limitation period. The July 29, 2005 document was not included in the City's record on motion.

The New Brunswick Court of Queen's Bench, in a decision not reported in this series of reports, dismissed the claim relating to the September 2003 incident, since it was set forth in an amendment made without leave and made outside the time limit. However, the court concluded that Ferris was within the time limit regarding the June 28, 2003 incident. Both Ferris and the City sought leave to appeal. A judge of the court granted the required leave. Both appeals were heard together.

The New Brunswick Court of Appeal allowed the City's appeal, set aside the motion judge's decision, and dismissed the action on the ground that it was prescribed by the Limitation of Actions Act. In addition, the court dismissed Ferris' appeal. Ferris could not rely on the July 29, 2005 amended pleading because it was never served on the City, and to extend the time for service would cause the City a prejudice.

Limitation of Actions - Topic 8

General principles - Interpretation of limitation provisions - [See third Limitation of Actions - Topic 3212 ].

Limitation of Actions - Topic 10

General principles - Nature of action - Effect on - The defendant sought summary judgment on the ground that the action was prescribed by s. 4 of the Limitation of Actions Act of New Brunswick - Section 4 stated that "No action for assault, battery, wounding, seduction, imprisonment or defamation shall be commenced but within two years after the cause of action arose" - The New Brunswick Court of Appeal agreed with the defendant that, although the plaintiff alluded to negligence and intentional infliction of nervous shock, he could not rely on those torts to defeat the limitation period when the true nature of the claim was caught by s. 4 - In reading the claim, it was obvious that no serious claim was being advanced for anything other than the battery that the plaintiff claimed caused him injury - He provided no particulars of the negligence or intentional infliction of nervous shock, and did not relate them to the injuries he claimed to have suffered - "In determining whether a particular limitation period is applicable, a Court must determine 'What is the essence of the claim?'" - See paragraphs 24 and 25.

Limitation of Actions - Topic 3015

Actions in tort - General principle - Termination of limitation period - [See third Limitation of Actions - Topic 3212 ].

Limitation of Actions - Topic 3211

Actions in tort - Trespass to the person - False imprisonment - [See third Limitation of Actions - Topic 3212 ].

Limitation of Actions - Topic 3212

Actions in tort - Trespass to the person - Assault and battery - [See Limitation of Actions - Topic 10 ].

Limitation of Actions - Topic 3212

Actions in tort - Trespass to the person - Assault and battery - The New Brunswick Court of Appeal held that the essence of the plaintiff's claim was battery and perhaps false imprisonment - Thus the action was prescribed if not brought within two years after the cause of action arose (Limitation of Actions Act, s. 4) - "Battery is actionable per se, in that no proof of actual damage is needed to render the wrong actionable. Thus, the cause of action arises when the act of battery is committed" - See paragraph 26.

Limitation of Actions - Topic 3212

Actions in tort - Trespass to the person - Assault and battery - The plaintiff alleged in his cause of action that the battery occurred on June 27, 2003, and the false imprisonment, on June 28, 2003 - The defendant sought summary judgment on the ground that the plaintiff advanced his claims after the two-year limitation period set out in s. 4 of the Limitation of Actions Act expired - The motion judge found the claims were not unenforceable "because you start the computation of time on June 29th, 2003, which means [the plaintiff] could have filed it on June the 29th, 2005, which is what he did" - The New Brunswick Court of Appeal disagreed - The time periods under the Limitation of Actions Act were to be computed exclusively of the date/event from which they arose, i.e., the date upon which the cause of action accrued (Interpretation Act, s. 22(k)) - The computation of time by excluding the day of the act/event resulted in the limitation period expiring at midnight on the anniversary of the event - "The same goes for computing a limitation period of two years" - The two year limitation period expired at midnight on the second anniversary of the event; i.e., at midnight on June 28, 2005 - There was no doubt the action regarding the June 27/28, 2003 incident would be dismissed at trial - Accordingly, the court set aside the motion judge's decision and dismissed the action - See paragraphs 24 to 33.

Practice - Topic 2606

Service - Service and delivery of pleadings - Extension of time for - [See second Practice - Topic 5702 and Practice - Topic 9031 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See third Limitation of Actions - Topic 3212 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - On June 29, 2005, the plaintiff commenced an action against the defendant with respect to an alleged June 28, 2003 incident - He filed a Notice of Action with Statement of Claim Attached on July 29, 2005 - On November 10, 2008, he filed amended pleadings, seeking damages with respect to an alleged battery that occurred in September 2003 - The defendant sought summary judgment to dismiss the action on the ground that the action was barred under s. 4 of the Limitation of Actions Act of New Brunswick - The July 29, 2005 document was not included as part of the materials the defendant filed in support of its motion - The plaintiff submitted that the motion judge erred in summarily dismissing his claim with respect to the alleged September 2003 incident, on the ground that had the record on motion included the July 29, 2005 document, it would have shown that the November 10, 2008 amended pleading was "valid and well within the two years'" limitation period - The New Brunswick Court of Appeal held that the plaintiff could not rely on the July 29, 2005 document because it was never served on the defendant and to extend the time for service would cause the defendant a prejudice - Thus, the ground of appeal was without merit - See paragraphs 34 and 35.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - On June 29, 2005, the plaintiff commenced an action endorsed with a brief statement of the nature of the claim - On July 29, 2005, he did not file the required Statement of Claim but rather a Notice of Action with Statement of Claim Attached - The July 29, 2005 document was not included as part of the materials the defendant filed in support of its motion to dismiss the action - The motions judge dismissed part of the action - At issue on the appeal was whether the July 29, 2005 document should be received in evidence - The New Brunswick Court of Appeal did not admit the proferred new evidence - With due diligence, the plaintiff could have adduced the document at the summary judgment hearing - The evidence, although credible, would not be expected to have affected the result - The motion judge would have necessarily concluded that it had not been served on the defendant - Since the document was really an amendment, it was required to be served forthwith after being filed - Considering the ambiguity of the document as it related to an alleged incident and the actual prejudice that the defendant had established would result from allowing late service, the time to serve the document should not be extended - Thus, the document became irrelevant, and to admit it as new evidence on appeal would have no effect on the result - See paragraphs 14 to 23.

Prescription - Cote 8

Principes généraux - Interprétation des dispositions prescriptives - [Voir Limitation of Actions - Topic 8 ].

Prescription - Cote 10

Principes généaux - Nature de l'action - Effet - [Voir Limitation of Actions - Topic 10 ].

Prescription - Cote 3015

Actions délictuelles - Principes généaux - Fin de délai - [Voir Limitation of Actions - Topic 3015 ].

Prescription - Cote 3211

Actions délictuelles - Atteinte à la personne - Détention illégale - [Voir Limitation of Actions - Topic 3211 ].

Prescription - Cote 3212

Actions délictuelles - Atteinte à la personne - Voies de fait et coups - [Voir Limitation of Actions - Topic 3212 ].

Procédure - Cote 2606

Signification - Signification et remise des plaidoiries - Prolongation du délai - [Voir Practice - Topic 2606 ].

Procédure - Cote 5702

Jugements et ordonnances - Jugements sommaires - Compétence ou conditions d'ouverture ou opportunité - [Voir Practice - Topic 5702 ].

Procédure - Cote 9031

Appels - Preuve en appel - Réception d'une preuve nouvelle - [Voir Practice - Topic 9031 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, appld. [para. 16].

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), appld. [para. 17].

Bulmer-Woodard v. Bulmer (2006), 307 N.B.R.(2d) 276; 795 A.P.R. 276 (C.A.), consd. [para. 18].

Godin v. Star-Key Enterprises Ltd. (2006), 305 N.B.R.(2d) 180; 791 A.P.R. 180; 2006 NBCA 91, refd to. [para. 25].

Heredi v. Fensom et al., [2002] 2 S.C.R. 741; 289 N.R. 88; 219 Sask.R. 161; 272 W.A.C. 161; 2002 SCC 50, refd to. [para. 25].

Dupuis v. Moncton (City) (2005), 284 N.B.R.(2d) 97; 742 A.P.R. 97; 2005 NBCA 47, leave to appeal denied (2005), 345 N.R. 393; 298 N.B.R.(2d) 197; 775 A.P.R. 197 (S.C.C.), refd to. [para. 25].

Chiasson v. Century Insurance Co. of Canada (1977), 19 N.B.R.(2d) 57; 30 A.P.R. 57 (Q.B.), affd. (1978), 21 N.B.R.(2d) 192; 37 A.P.R. 192; 86 D.L.R.(3d) 342 (C.A.), appld. [para. 30].

Walton v. Cote (1991), 28 M.V.R.(2d) 1; 1 O.R.(3d) 558 (C.A.), affing. (1989), 69 O.R.(2d) 661; 20 M.V.R.(2d) 171 (H.C.), refd to. [para. 31].

Zoeteman v. Feist et al. (2009), 460 A.R. 314; 462 W.A.C. 314; 2009 ABCA 311, refd to. [para. 31].

Zadworny v. Manitoba (Attorney General) et al. (2007), 213 Man.R.(2d) 108; 2007 MBQB 53, refd to. [para. 31].

Statutes Noticed:

Interpretation Act, R.S.N.B. 1973, c. I-13, sect. 22(k) [para. 28].

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, sect. 4 [para. 24].

Rules of Court (N.B.), rule 18.09(a) [para. 12]; rule 27.06(1) [para. 21].

Authors and Works Noticed:

Mew, Graeme, The Law of Limitations (2nd Ed. 2004), generally [paras. 10, 29].

Counsel :

Avocats:

Nadia M. MacPhee, for the City of Fredericton, for the appellant on File No. 117-09-CA;

Brent Ferris, appeared in person, for the respondent on File No. 117-09-CA;

Brent Ferris appeared in person, for the appellant on File No. 134-09-CA;

Nadia M. MacPhee, for City of Fredericton, for the respondent on File No. 134-09-CA.

These appeals were heard on February 9, 2010, by Turnbull, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal. Richard, J.A., rendered the following judgment of the Court in both official languages, on July 22, 2010.