Wellwood v. Ontario Provincial Police et al.,

• Jurisdiction: Ontario
• Judge: Cronk, Lang and Juriansz, JJ.A.
• Neutral Citation: 2010 ONCA 386
• Date: 01 December 2009
• Court: Court of Appeal (Ontario)

Wellwood v. Provincial Police (2010), 262 O.A.C. 349 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MY.097

Geoffrey Allan Wellwood (respondent/plaintiff) v. Ontario Provincial Police, Detective Constable Cindy Collins, Detective Inspector Morris Elbers, Detective Scott Maybee, South Simcoe Police Force, Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General and Her Majesty the Queen in Right of Ontario, as represented by the Ministry of the Solicitor General (appellants/defendants)

(C50760)

Geoffrey Allan Wellwood (respondent/plaintiff) v. Ontario Provincial Police, Detective Constable Cindy Collins, Detective Inspector Morris Elbers, Detective Scott Maybee, South Simcoe Police Force, Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General and Her Majesty the Queen in Right of Ontario, as represented by the Ministry of the Solicitor General (appellant/defendants)

(C50882; 2010 ONCA 386)

Indexed As: Wellwood v. Ontario Provincial Police et al.

Ontario Court of Appeal

Cronk, Lang and Juriansz, JJ.A.

May 28, 2010.

Summary:

Wellwood was charged with first degree murder in connection with the death of his wife. On January 8, 2004, the charge was withdrawn. On July 7, 2004, Wellwood issued a notice of action claiming damages for negligent investigation, malicious prosecution and breach of his Charter rights as against the police forces involved and the provincial Crown. Notice to the Crown was provided pursuant to s. 7 of the Proceedings Against the Crown Act, which required at least 60 days' notice. On August 4, 2004, Wellwood filed his statement of claim in the first action. On September 7, 2004, Wellwood issued a second statement of claim (the second action). The first and second actions were identical. The second claim was issued to comply with the 60 day notice period required by s. 7. In January and November 2005, the actions were dismissed as abandoned. In April 2007, Wellwood moved to set aside the two dismissals.

A Master of the Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. 764, denied the motions. Wellwood appealed.

The Ontario Divisional Court, per Ferrier, J., in a decision reported at (2009), 246 O.A.C. 71, allowed the appeal. There was no need to revive the first action. The dismissal order regarding the second action was set aside. The defendants appealed.

The Ontario Court of Appeal, Lang, J.A., dissenting, allowed the appeals. The Master's order was reinstated.

Courts - Topic 1052

Masters - Jurisdiction - Setting aside judgments or orders - In July 2000, Wellwood was charged with first degree murder in connection with the death of his wife - In January 2004, the charge was withdrawn - In August and September 2004, Wellwood commenced identical actions against the police forces involved and the provincial Crown - In January and November 2005, the actions were dismissed as abandoned - In April 2007, Wellwood moved to set aside the two dismissals - A Master denied the motions on the basis that they had not been served forthwith and for the first available hearing date as required by rule 37.14(1) - The Master held that she had no discretion and dismissed the motions for that reason alone - A single judge of the Divisional Court set aside the Master's ruling, finding, inter alia, that the Master erred in law in concluding that she had no discretion to extend the time under rule 37.14(1) - The Master failed to consider rule 2.03 under which the court could "where and as necessary in the interest of justice, dispense with compliance with any rule at any time" - The Ontario Court of Appeal agreed - Rule 2.03 was clear and unambiguous, providing the court with a general discretion to relieve against the time requirements of any of the rules, at any stage of a proceeding, if one essential precondition was satisfied: the court had to conclude that such relief was necessary in the interests of justice - Nothing in the language of rule 37.14(1) exempted it from that overarching discretion - See paragraphs 32 to 36.

Courts - Topic 1058

Masters - Jurisdiction - Motions - [See Courts - Topic 1052 ].

Courts - Topic 1127

Masters - Appeals from - Standard of review - The Ontario Court of Appeal stated that "it is now settled law in Ontario that an appeal from a master's decision is not a rehearing. Rather, on questions of fact and mixed fact and law, deference applies and the role of the reviewing court is limited. An appellate court cannot substitute its interpretation of the facts or reweigh the evidence simply because it takes a different view of the evidence from that of the master. On questions of law, the correctness standard applies" - See paragraph 28.

Limitation of Actions - Topic 2

General principles - Purpose of limitation provisions - [See third Practice - Topic 5398 ].

Practice - Topic 9

General principles and definitions - Dispensing with compliance with rules - [See Courts - Topic 1052 ].

Practice - Topic 10

General principles and definitions - Extension of time under rules - [See Courts - Topic 1052 ].

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - [See second Practice - Topic 5398 ].

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See third and fourth Practice - Topic 5398 ].

Practice - Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of prejudice (incl. rebuttal of) - [See third and fourth Practice - Topic 5398 ].

Practice - Topic 5398

Dismissal of action - Order of dismissal - Appeal or application to set aside - [See Courts - Topic 1052 ].

Practice - Topic 5398

Dismissal of action - Order of dismissal - Appeal or application to set aside - In July 2000, Wellwood was charged with first degree murder in connection with the death of his wife - In January 2004, the charge was withdrawn - In August and September 2004, Wellwood commenced identical actions against the police forces involved and the provincial Crown - In January and November 2005, the actions were dismissed as abandoned - In April 2007, Wellwood moved to set aside the two dismissals - A Master denied the motions, finding, inter alia, that the defendants were not in any way responsible for the delay - A single judge of the Divisional Court set aside the Master's ruling, indicating, inter alia, that the Master's delay findings were fatally flawed - The Divisional Court opined that the defendants' decision to defer the delivery of their statements of defence until Wellwood had corrected irregularities in his pleadings and their own failure to seek an order correcting the irregularities contributed to the delay - The Ontario Court of Appeal allowed the defendants' appeal, disagreeing with the Divisional Court's conclusions regarding delay - While the Divisional Court addressed the delay in the progress of the actions prior to the registrar's dismissal orders, the Master correctly addressed whether Wellwood had complied with the time requirements of rule 37.14(1), noting that he had not brought the motions to set aside the dismissal orders "forthwith" as required and that his explanation for this was "thin" - Even so, the Master's characterization of Wellwood's explanation was generous - The Master had appropriate regard for the overall progress of the litigation - While it was true that she assigned no responsibility for the delay to the defendants arising from their failure to plead, it was also true that Wellwood had never suggested that deferral of the defence pleadings was unacceptable - The party who commenced a proceeding bore primary responsibility for its progress - The Master made no error in her delay findings - See paragraphs 37 to 51.

Practice - Topic 5398

Dismissal of action - Order of dismissal - Appeal or application to set aside - In July 2000, Wellwood was charged with first degree murder in connection with the death of his wife - In January 2004, the charge was withdrawn - In August and September 2004, Wellwood commenced identical actions against the police forces involved and the provincial Crown - In January and November 2005, the actions were dismissed as abandoned - In April 2007, Wellwood moved to set aside the two dismissals - A Master denied the motions, finding, inter alia, that the delay in bringing the motions to set aside the dismissal, the significant passage of time since the events that gave rise to the actions, the delay in prosecuting the actions and the deemed prejudice to the defendants arising from the expiry of the limitation period warranted the motions' denial - A single judge of the Divisional Court set aside the Master's ruling - The Ontario Court of Appeal allowed the defendants' appeal - The court discussed a number of authorities touching on the issue of deemed prejudice arising from the expiry of a limitation period - The court noted that "as the memories of witnesses fade over time, the passage of an inordinate length of time after a cause of action arises or after an applicable limitation period expires gives rise to trial fairness concerns" - This was so even when timely notice of the claim had been provided - Here, Wellwood sought to deprive the defendants of the security of the position gained by them by the delay-induced dismissal order and the subsequent expiry of the limitation period - Limitation periods were created in furtherance of the twin goals of finality and certainty in legal affairs and the prevention of indefinite liability - This was a case where the finality principle was dispositive of the central issue - The Divisional Court's failure to address the significance of the finality principle in the prejudice analysis was an error - See paragraphs 62 to 79 and 83.

Practice - Topic 5398

Dismissal of action - Order of dismissal - Appeal or application to set aside - In July 2000, Wellwood was charged with first degree murder in connection with the death of his wife - In January 2004, the charge was withdrawn - In August and September 2004, Wellwood commenced identical actions against the police forces involved and the provincial Crown - In January and November 2005, the actions were dismissed as abandoned - In April 2007, Wellwood moved to set aside the two dismissals - A Master denied the motions, finding, inter alia, that the delay in bringing the motions to set aside the dismissal, the significant passage of time since the events that gave rise to the actions, the delay in prosecuting the actions and the deemed prejudice to the defendants arising from the expiry of the limitation period warranted the motions' denial - A single judge of the Divisional Court set aside the Master's ruling, indicating, inter alia, that the Master made a palpable and overriding error by relying on the passage of time and the expiry of the limitation period to support her finding of prejudice - The Ontario Court of Appeal allowed the defendants' appeal - There was no error in the Master's assessment of prejudice - In rejecting Wellwood's claim that a fair trial was still possible because all necessary relevant evidence had been preserved, the Master properly considered whether Wellwood had rebutted the presumption of deemed prejudice and concluded that he had not - As there was no requirement to show actual prejudice, this was sufficient - However, the Master's ruling was also based on her consideration of the "significant passage of time" since the events and Wellwood's inadequate explanation for the delay - The delay in prosecuting the actions and in bringing the motions was inordinate - The obligation to explain the delay fell squarely on Wellwood - He failed to discharge that burden - Given those considerations, there was no error in the Master's reliance on the expiry of the limitation period and the inordinate delay in holding that there was prejudice to the defendants - See paragraphs 80 to 88.

Cases Noticed:

Reid v. Dow Corning Corp. et al., [2001] O.T.C. 459; 11 C.P.C.(5th) 80 (Sup. Ct. Master), revd. (2002), 48 C.P.C.(5th) 93 (Ont. Div. Ct.), refd to. [para. 19].

Scaini v. Prochnicki et al. (2007), 219 O.A.C. 317; 85 O.R.(3d) 179 (C.A.), refd to. [para. 20].

Zeitoun et al. v. Economical Insurance Group (2009), 257 O.A.C. 29; 2009 ONCA 415, refd to. [para. 28].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 28].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1, refd to. [para. 28].

Kassam v. Sitzer, [2004] O.T.C. 731 (Sup. Ct. Master), affd. [2005] O.J. No. 1849 (Div. Ct.), refd to. [para. 62].

Worrall v. Powell and Greater Niagara General Hospital, [1969] 2 O.R. 634 (C.A.), refd to. [para. 65].

Clairmonte v. Canadian Imperial Bank of Commerce, [1970] 3 O.R. 97 (C.A.), refd to. [para. 66].

Armstrong v. McCall et al. (2006), 213 O.A.C. 229 (C.A.), refd to. [para. 71].

Finlay v. Paassen, 2010 ONCA 204, refd to. [para. 73].

Marché d'Alimentation Denis Thériault ltée et al. v. Giant Tiger Stores Ltd. (2009), 247 O.A.C. 22; 87 O.R.(3d) 660 (C.A.), refd to. [para. 75].

Hare v. Hare (2006), 218 O.A.C. 164; 83 O.R.(3d) 766 (C.A.), refd to. [para. 77].

Farrar v. McMullen, [1971] 1 O.R. 709 (C.A.), refd to. [para. 123].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Rules of Civil Procedure (Ont.), rule 2.03 [para. 33].

Counsel:

Judie Im and Sara Blake, for the Crown appellants;

Anne E. Spafford, for the appellant, The Bradford West Gwillimbury/Innisfil Police Services Board (wrongly named as South Simcoe Police Force);

William G. Scott, for the respondent.

These appeals were heard on December 1, 2009, by Cronk, Lang and Juriansz, JJ.A., of the Ontario Court of Appeal. On May 28, 2010, the court's decision was released with the following opinions:

Cronk, J.A. (Juriansz, J.A., concurring) - see paragraphs 1 to 89;

Lang, J.A., dissenting - see paragraphs 90 to 125.