A recent decision looks at when the limitation period begins to run in a false arrest/false imprisonment case, as well as the impact of a peace bond on a negligent investigation claim.
In E.B.F. (Litigation guardian of) v. Ontario, 2013 ONSC 2581 (S.C.J.), the plaintiff sued the Crown for false arrest, false imprisonment, breach of Charter rights and negligent investigation arising out of charges laid against him by the O.P.P in 2008. The plaintiff's daughter alleged he had sexually assaulted her. The charges were ultimately withdrawn in 2009 after the plaintiff agreed to enter into a peace bond. The claim was issued in 2011. The Crown brought a motion to strike the claim. There were two issues for the Court to consider:
1. Whether the limitation period began when the plaintiff was arrested or when the peace bond was entered into; and
2. Whether the peace bond represented the charges being terminated in the plaintiff's favour, a precondition to being able to pursue a negligent investigation claim.
Justice Chiappetta held there was no reasonable cause of action against the Crown. A claim for false arrest, false imprisonment or breach of Charter rights crystallizes on the date of arrest. Although the plaintiff alleged he was unable to determine the arrest was wrongful until after receiving legal advice and the results of a private investigation, there was no persuasive evidence that the plaintiff suffered from any mental or psychiatric disorder that would have impacted his ability to understand the arrest, the charges and his belief of innocence.
The plaintiff argued that since the only conditions imposed by the peace bond were to keep the peace and be of good behaviour (as every other citizen is required to do), the proceedings terminated in his favour. Justice Chiappetta held that the agreement to withdraw the charges in return for a peace bond represented a negotiated compromise, and was not a termination of proceedings in the plaintiff's favour.
Since the plaintiff's claim was issued beyond the limitation period and he failed to show the proceedings were terminated in his favour, the claim was dismissed.
Wednesday, January 22, 2014
Wednesday, January 15, 2014
Motion to Add Party Must be Served but not Heard Before Limitation Period Expires
When a plaintiff seeks to add a party defendant, must the motion be heard prior to the expiry of the limitation period?
According to Justice Edwards in Computer Enhancement Corporation v. J.C. Options, 2013 ONSC 4548 (S.C.J.), the motion must be served, but not necessarily heard, prior to the expiry of the limitation period. Justice Edward held that the suggestion that a motion to add a party must be served, argued and a court order obtained prior to the expiry of the limitation period was "lacking in common sense". There are lengthy delays in obtaining motion dates and the moving party is therefore "very much in the hands of the court" as to whether the motion can be argued and disposed of within the limitation period.
In making his decision, Justice Edwards followed the Divisional Court in Philippine v. Portugal, 2010 ONSC 956 (Div. Ct.), where the plaintiff was permitted to add a claim for conspiracy, and declined to follow Marks v. Ottawa, 2013 ONSC 1089 (S.C.J.) where the Court refused to permit the addition of a party where the motion had not been heard prior to the expiry of the limitation period.
According to Justice Edwards in Computer Enhancement Corporation v. J.C. Options, 2013 ONSC 4548 (S.C.J.), the motion must be served, but not necessarily heard, prior to the expiry of the limitation period. Justice Edward held that the suggestion that a motion to add a party must be served, argued and a court order obtained prior to the expiry of the limitation period was "lacking in common sense". There are lengthy delays in obtaining motion dates and the moving party is therefore "very much in the hands of the court" as to whether the motion can be argued and disposed of within the limitation period.
In making his decision, Justice Edwards followed the Divisional Court in Philippine v. Portugal, 2010 ONSC 956 (Div. Ct.), where the plaintiff was permitted to add a claim for conspiracy, and declined to follow Marks v. Ottawa, 2013 ONSC 1089 (S.C.J.) where the Court refused to permit the addition of a party where the motion had not been heard prior to the expiry of the limitation period.
Wednesday, January 8, 2014
Settlement Implies Release Will be Furnished
In most cases, parties are able to agree on the form of release when a settlement has been reached. A recent case confirmed that there is an implied agreement to furnish a release, unless there is an express agreement to the contrary.
In OZ Optics Limited v. Timbercon Inc., 2013 ONSC 6439 (S.C.J.), the parties agreed on a settlement, but were unable to agree on the wording of a release. Justice McNamara held that the case law is clear that where a settlement is reached, it is normally implied that an executed final released will be provided, unless there is an agreement otherwise. In the circumstances, there was no express agreement not to furnish a release. Justice McNamara held that the draft release prepared by the plaintiff was fair, reasonable and reflective of the agreement reached by the parties.
In OZ Optics Limited v. Timbercon Inc., 2013 ONSC 6439 (S.C.J.), the parties agreed on a settlement, but were unable to agree on the wording of a release. Justice McNamara held that the case law is clear that where a settlement is reached, it is normally implied that an executed final released will be provided, unless there is an agreement otherwise. In the circumstances, there was no express agreement not to furnish a release. Justice McNamara held that the draft release prepared by the plaintiff was fair, reasonable and reflective of the agreement reached by the parties.
Tuesday, December 24, 2013
Happy Holidays
Happy holidays from the Ontario Insurance Law Blog. We'll return in January with new posts. All the best in 2014!
Great article on ALI's Principles of Liability Insurance
Randy Maniloff's Coverage Opinions newsletter continues to be the most entertaining read on insurance coverage issues each month, as well as highly informative. This month's newsletter has a particularly interesting article on the American Law Institute's work on Principles of Liability Insurance, which is likely to have a large impact on insurance coverage law in the coming years.
Saturday, December 21, 2013
US District Court holds that failure of temporary patches does not prove faulty workmanship
I have been writing about General Casualty Co. of Wisconsin v. Five Star Building Corp., 2013 WL 5297095 (D. Mass.), in which rainwater penetrated temporary roof patches placed there by Five Star during HVAC work it was doing for UMass.
Five Star's insurer argued that coverage was excluded by an exclusion for property damage "to that particular part of any property that must be restored, repaired or replaced because 'your work' was incorrectly performed on it." The insurer argued that the fact that the temporary patches failed to keep out rainwater shows that Five Star's work was incorrectly performed. The court rejected that argument because it assumes either a strict liability or breach of contract theory of faulty workmanship.
Five Star's insurer argued that coverage was excluded by an exclusion for property damage "to that particular part of any property that must be restored, repaired or replaced because 'your work' was incorrectly performed on it." The insurer argued that the fact that the temporary patches failed to keep out rainwater shows that Five Star's work was incorrectly performed. The court rejected that argument because it assumes either a strict liability or breach of contract theory of faulty workmanship.
Thursday, December 19, 2013
US District Court construes construction exclusion narrowly
In my last post I wrote about General Casualty Co. of Wisconsin v. Five Star Building Corp., 2013 WL 5297095 (D. Mass.), in which rain infiltrated a building when temporary patches put up by Five Star during HVAC work for UMass failed.
Five Star's insurer argued that coverage was excluded by an exclusion for property damage "to that particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the 'property damage' arises out of those operations."
The insurer argued that the entire roof was the "particular part" on which Five Star was working and that therefore all damage to the roof was excluded.
The court held that the exclusion does not extend beyond "the essence" of the insured's work. It held that Five Star's work extended only to the replacement of the ventilation system, not to repair or replacement of the roof. Although as part of its work Five Star was required to punch holes in the roof, that roof work was merely incidental to the replacement of the HVAC system. Therefore the exclusion does not apply.
Five Star's insurer argued that coverage was excluded by an exclusion for property damage "to that particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the 'property damage' arises out of those operations."
The insurer argued that the entire roof was the "particular part" on which Five Star was working and that therefore all damage to the roof was excluded.
The court held that the exclusion does not extend beyond "the essence" of the insured's work. It held that Five Star's work extended only to the replacement of the ventilation system, not to repair or replacement of the roof. Although as part of its work Five Star was required to punch holes in the roof, that roof work was merely incidental to the replacement of the HVAC system. Therefore the exclusion does not apply.
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