[2017] 2 F.C.R. D-3
Practice
Limitation of Actions
Appeal from Federal Court (F.C.) decision granting motion for summary judgment on basis appellant’s claim statute barred — Appellant assaulted on July 20, 2011 while awaiting trial on murder charge — Subsequently convicted, sentenced — First consulting lawyer in September 2013 to act for him against Correctional Service of Canada (CSC) — Appellant’s statement of claim filed on October 17, 2014 — Appellant claiming CSC breaching his rights under Canadian Charter of Rights and Freedoms, ss. 7, 12 — Respondent arguing claim barred by Limitation Act, R.S.B.C. 1996, c. 266 (Act) — F.C. finding, inter alia, claim action for “damages in respect of injury to person” as provided in Act, s. 3(2)(a) — After applying criteria set out in Ounjian v. St Paul’s Hospital, 2002 BCSC 104, for determining the commencement of the running of time against a plaintiff, F.C. finding reasonable person would have been able to bring action within limitation period — Whether F.C. erring: in determining that applicable limitation period herein falling under Act, s. 3(2)(a) rather than s. 3(5); in finding no genuine issue for trial with respect to issue of postponement or suspension of applicable limitation period — Case law supporting conclusions that (a) limitation periods applying to personal claims for Charter remedies, (b) s. 3(2)(a) applicable limitation period — Weight of authority supporting proposition that personal Charter remedies subject to provincial limitation statutes — Charter damages claims arising from bodily injury subject to limitation periods governing actions seeking private law remedies for bodily injury — Application of limitation period to action for Charter damages not precluding application of analytical framework described in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 — Appropriate that Charter damages claim based on bodily injury be subject to same limitation period applying to tort claim arising out of same injury — Not desirable that claims for bodily injury should have different limitation periods depending upon identity of defendant — F.C. correct in concluding that appellant’s claim for Charter damages subject to 2 year limitation in Act, s. 3(2)(a) — However, Court erring on issue of suspension of postponement of limitation period — There was a genuine issue for trial herein as to whether running of limitation period against appellant suspended by operation of Act, s. 6(4) — F.C. not giving sufficient weight to various factors following appellant’s assault, e.g. post-traumatic stress disorder — Clear that February 2013 earliest time that appellant could have pursued his rights — Appellant’s allegations sufficient to meet significant, serious, compelling threshold — F.C. erring in resolving question of credibility on summary judgement application — Appeal allowed.
Newman v. Canada (A-233-15, 2016 FCA 213, Pelletier J.A., reasons for judgment dated August 31, 2016, 21 pp.)