(1) When did the cause of action arise?
[12] The motion judge held that the appellants' cause of action against the respondents arose on March 30, 2000, the date of Mr. Chimienti's arrest. He cited no authority for this conclusion.
[13] With respect, I do not agree. In Hill v. Hamilton Wentworth Police Services Board, [2007] 3 S.C.R.129, McLachlin C.J.C. discussed the interpretation of s. 7(1) of the PAPA in the context of a claim of negligent investigation. She stated, at paras. 96-98:
The limitation period for negligent investigation begins to run when the cause of action is complete. This requires proof of a duty of care, breach of the standard of care, compensable damage, and causation. A cause of action in negligence arises not when the negligent act is committed, but rather when the harmful consequences of the negligence result. (See G. Mew, The Law of Limitations (2nd ed. 2004), at p. 148, citing L. N. Klar et al., Remedies in Tort (loose-leaf), ed. by L. D. Rainaldi, vol. 4 (release 5), c. 27, at para. 217, n. 23.)
As discussed above, the loss or injury as a result of alleged police negligence is not established until it is clear that the suspect has been imprisoned as a result of a wrongful conviction or has suffered some other form of compensable harm as a result of negligent police conduct. The wrongfulness of the conviction is essential to establishing compensable injury in an action where the compensable damage to the plaintiff is imprisonment resulting from a wrongful conviction. In such a case, the cause of action is not complete until the plaintiff can establish that the conviction was in fact wrongful. So long as a valid conviction is in place, the plaintiff cannot do so.
It follows that the limitation period in this case did not start to run until December 20, 1999 when Mr. Hill, after a new trial, was acquitted of all charges of robbery. The action was commenced by notice of action on June 19, 2000, within the six-month limitation period set out in the Public Authorities Protection Act. Therefore, the relevant limitation period was met.
[14] In my view, this reasoning is directly applicable to this appeal. In Hill, the "compensable harm" arising from the alleged negligent police conduct consisted of the incarceration of Mr. Hill, despite the fact that the police were not directly responsible for his incarceration. While the alleged harm in this case – the inconvenience, indignity and cost of defending a criminal charge for a 34-month period – is different from that in Hill, it also is a result flowing directly from the alleged wrongful actions of the police. If Mr. Hill's incarceration was properly considered harm arising from police misconduct, I fail to see how Mr. Chimienti's prosecution could be considered too distinct from the police actions to be viewed in the same way.
[15] I also have some sympathy for the appellants' policy arguments. In my view, it is unrealistic to ask a person already preoccupied with defending a criminal charge to take on the additional effort and cost of mounting a civil action, particularly given the likely unfounded but understandable concern that, in doing so, he might antagonize the police and Crown counsel. Furthermore, there is something of a logical inconsistency in asking a civil court to rule on the propriety of a criminal prosecution before the criminal court has had the opportunity to assess the merits of the underlying charge.
[16] For these reasons, I conclude that the motion judge erred by determining that the appellants' cause of action was complete on the date of Mr. Chimienti's arrest, March 30, 2000. On the contrary, Hill instructs that the cause of action was complete on the date that the charge against Mr. Chimienti was dropped, January 30, 2003.
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