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Date: 20080423
Docket: CA034374
CA034418

Appellant
(Plaintiff)

Respondents
(Defendants)

Written Reasons by:
The Honourable Chief Justice Finch

Concurred in by:
The Honourable Mr. Justice Low
The Honourable Mr. Justice Frankel

Reasons for Judgment of the Honourable Chief Justice Finch:

[1] The plaintiff appeals, and the defendants cross-appeal, from judgments pronounced by the Supreme Court of British Columbia on 31 August 2006 in proceedings heard as a summary trial under Rule 18A, on application by the defendants. The summary trial judge provided two separate sets of reasons, although the issues in each were heard at the same time. They can be found at 2006 BCSC 1320 and 2006 BCSC 1323.

[2] In his second further amended statement of claim, the plaintiff claimed damages against the defendant Corporal Bissonnette, a police officer, for malicious prosecution and for negligence arising from Corporal Bissonnette's investigation and recommendation of charges against the plaintiff, for events that occurred in a dispute between the plaintiff and his estranged wife, both of whom were also police officers.

[3] The defendant Attorney General for Canada, and the defendant Attorney General for the Province of British Columbia, are alleged to be vicariously liable for Corporal Bissonnette's conduct.

[4] The defendants' application to dismiss the allegation of malicious prosecution was advanced on the basis that a claim for malicious prosecution did not lie against a police officer, because in British Columbia, as a matter of law, responsibility for laying charges falls upon Crown counsel. In the alternative, the defendants submitted that the evidence was insufficient to support findings that all four elements of the tort of malicious prosecution were proven.

[5] The defendants' application to dismiss the claim for negligent investigation was based on a submission that the two-year limitation period for commencing a negligence action had expired more than two years before the plaintiff's writ was issued.

[6] Counsel for the plaintiff opposed the defendants' applications to dismiss both claims. Counsel submitted that the claim based on malicious prosecution was not suitable for disposition under Rule 18A. Alternatively, he submitted that there was evidence to support the allegation, and that judgment should be given in the plaintiff's favour. He also submitted that the action had been commenced within the limitation period governing claims in negligence, and that the defendants' application to dismiss that claim should be dismissed.

[7] The learned summary trial judge held that the allegation of malicious prosecution was appropriate for disposition under Rule 18A. He said:

[4] I am satisfied that this is an appropriate application to be heard pursuant to the provisions of Rule 18A of the Rules of Court. I note that no application has been made to cross-examine Mr. Bissonnette on the contents of his April 26, 2006 Affidavit. I am satisfied that there are no issues of credibility and no conflict on the facts which are set out in the affidavits in evidence. I am also satisfied that the primary issue raised by the Defendants can be decided without reference to the affidavit evidence which is before me as it raises a narrow legal issue regarding the question of whether a peace officer can be sued for malicious prosecution.

[Emphasis added.]

[8] The judge further held that the necessary elements of a claim for malicious prosecution had not been proven, and he dismissed that claim on its merits.

[9] As to the application to dismiss the claim in negligence, the judge held that that application should be dismissed, and that the negligence action should proceed to trial on viva voce evidence.

[10] The plaintiff appeals from the dismissal of the claim for malicious prosecution, and says it should not have been decided under Rule 18A. He seeks an order remitting that claim to trial.

[11] The defendants cross-appeal from the order dismissing the application to dismiss the claim in negligence. The defendants seek an order dismissing the negligence claim, or alternatively an order striking out some particulars of the negligence alleged.

[12] For the reasons that follow, I would allow the plaintiff's appeal and remit the claim for malicious prosecution to the trial court. I would dismiss the defendants' cross-appeal, and affirm the order that the negligence claim proceed to trial.

[13] On 26 June 1994, the plaintiff and his estranged wife Kimberly were involved in a physical altercation in their former matrimonial home, in which a knife was used. Both were members of the R.C.M.P., the plaintiff at the Burnaby Detachment, and Mrs. Reilly at the Surrey Detachment. After the incident, both the plaintiff and his wife had sustained knife injuries.

[14] The incident was investigated by the defendant Corporal Bissonnette, an R.C.M.P. officer working from the Langley Detachment. The plaintiff and his wife gave conflicting versions of the incident. The plaintiff, who suffered a disfiguring slash wound across his face, said his wife attacked him from behind. Mrs. Reilly, who had a number of cuts to her forearms and hand, said that these were defensive injuries sustained when the plaintiff attacked her with a knife, that she succeeded in wresting the knife from him, and that he was injured while she was defending herself.

[15] On 27 June 1994, the day after the incident, Corporal Bissonnette arrested the plaintiff on charges of assault with a weapon and assault causing bodily harm. He swore the Information laying these charges, and he also prepared the report to Crown counsel summarizing the results of his investigation.

[16] On 28 June 1994, the plaintiff was suspended from his duties with pay.

[17] On 25 January 1995, a preliminary inquiry was commenced on the charges against the plaintiff, and on 7 March 1995 the plaintiff was committed for trial on both counts.

[18] The trial of these charges in Provincial Court commenced on 29 March 1996, and the evidence concluded on 8 July 1996.

[19] On 23 July 1996, the Provincial Court Judge gave reasons acquitting the plaintiff of both charges. The Crown did not appeal.

[20] On 21 July 1998, the plaintiff caused a writ of summons to be issued in these proceedings against Corporal Bissonnette and the Provincial and Federal Crown.

[21] In support of the plaintiff's claim for malicious prosecution, the plaintiff swore two affidavits, on 9 February 2005 and on 26 July 2006.

[22] There are almost no facts in either of these affidavits to which the plaintiff would have been able to testify viva voce of his own knowledge. Based on the plaintiff's submissions, his principal allegations are that he asked Corporal Bissonnette to do a blood-spatter analysis of the premises where the altercation took place, which the officer failed or refused to do; that the plaintiff asked Corporal Bissonnette to do an analysis of the blood on his clothing, which he delivered to Corporal Bissonnette at the time of his arrest, and which the officer failed or refused to do; and that despite an instruction from a superior officer, Corporal Bissonnette failed to obtain the report of a forensic pathologist for an opinion as to the consistency of the injuries sustained by the plaintiff and his wife with either of their two conflicting versions of events.

[23] In fact, a pathologist's report was requested from Dr. S.J. Carlyle, but despite a number of inquiries from Corporal Bissonnette, she did not provide a written report until well after the trial in Provincial Court had been concluded. In the report she wrote, dated 9 October 1997, she concluded:

When I gave a verbal opinion to Cpl. Bissonnette of Langley Detachment in 1995, I indicated that the injuries to [Kimberly Reilly] did not appear consistent with a knife assault by [Patrick Reilly]. I could not exclude, and still cannot exclude that one or more cuts could have been inflicted by [Patrick Reilly], but the more cuts one has to consider in the context of these contradictory statements, the more the weight of probability strongly favours that the majority, if not all of [Kimberly Reilly's] cuts are self-inflicted.

[24] A superior officer first suggested to Corporal Bissonnette that he retain a forensic expert to analyze Mrs. Reilly's wounds on 13 January 1995. Dr. Carlyle was specifically recommended to Corporal Bissonnette as such an expert on 18 January 1995. The oral opinion provided by Dr. Carlyle on 2 February 1995 is recorded in Corporal Bissonnette's notes as follows:

Spoke with Dr. Carlyle, pager #686-6355. She advised that she has not completed her report yet, but stated that when completed it will be equivocal at best.

She stated there appears to be more injuries than described by the treating psychician [sic]; some of the injuries were consistent with either story; and, some were not consistent with either story. She also stated that the psychician [sic] describes some injuries to a hand; however, the photos seem to indicate the injuries are on the opposite hand.

[25] Corporal Bissonnette made notes of his unsuccessful attempts to obtain a report from Dr. Carlyle on 11 July 1995, 19 December 1995 and 21 December 1995.

[26] The relevance of an opinion from a forensic pathologist may be seen from the opinion Dr. Carlyle eventually provided in October 1997. In that report she says that Mrs. Reilly's injuries "are not typical of defensive wounds" and that they are "all consistent with self-inflicted wounds and may have been added post-conflict". With respect to the facial injury suffered by the plaintiff, Dr. Carlyle said it is "consistent with his statement, and has the disfiguring features of an aggressive assault".

[27] Sergeant R. Conlon of the Saskatchewan R.C.M.P. conducted an independent investigation of Corporal Bissonnette's investigation, concluding that the investigation was "flawed and incomplete".

[28] The issues on the plaintiff's appeal from the dismissal of his action for malicious prosecution are whether the case was suitable for trial under Rule 18A, and if it was, whether the trial judge's conclusion that malicious prosecution had not been proven is reviewable on the applicable tests for appeal from judgments under Rule 18A. The defendants seek an order for special costs, arguing that the plaintiff's allegations of perjury and fraud against Corporal Bissonnette in the absence of admissible supporting evidence constitute improper conduct deserving of reproach.

[29] The issue on the cross-appeal from the order refusing to dismiss the negligence claim as statute-barred depends upon the date from which the limitation period began to run. The plaintiff says that date is not earlier than 23 July 1996, the date on which he was acquitted of the criminal charges.

[30] The defendants say time started to run either on 12 March 1996, the date on which Corporal Bissonnette took his last steps in relation to the criminal investigation, or on 28 May 1996 when Corporal Bissonnette testified at trial, or at the latest on 8 July 1996 when the evidence in the Provincial Court trial was concluded.

[31] If the plaintiff's position on the limitation date is correct, the writ issued on 21 July 1998 was not statute-barred, as it was issued two days before the second anniversary of his acquittal on 23 July 1996.

A. Malicious Prosecution:

[32] It appears to be common ground between the parties that in order to succeed on a claim for malicious prosecution, the plaintiff was required to prove:

1. That criminal proceedings were instituted against the plaintiff by the defendants;
2. That those proceedings concluded favourably to the plaintiff;
3. That there must have been a lack of reasonable and probable cause for the defendants instituting the criminal proceedings; and
4. There was an improper purpose underlying the defendants' conduct, rather than an honest belief in his guilt.

The parties cited this Court's decision in Swansburg v. Canada (Royal Canadian Mounted Police) (1996), 141 D.L.R. (4th) 94 (B.C.C.A.) ("Swansburg") at para. 38 for the above test.

[33] Rule 18A(11) provides:

(11) On the hearing of an application under subrule (1), the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or
(ii) the court is of the opinion that it would be unjust to decide the issues on the application,

(b) impose terms respecting enforcement of the judgment, including a stay of execution, as it thinks just, and
(c) award costs. [am. B.C. Reg. 198/2003, s.4]

[34] Having concluded that the claim for malicious prosecution was suitable for disposition under Rule 18A, the learned summary trial judge held that the claim against the police officer for malicious prosecution was not bound to fail on the primary legal point argued by the defence (see para. 7 above). But he held that the four elements necessary to support such a claim were not all established on the affidavit evidence before him. It was established that criminal proceedings had been commenced against the plaintiff, and that those proceedings were concluded favourably to him. However the judge found that the third and fourth elements of the claim for malicious prosecution were not established. He said:

[23] First, there is nothing in evidence which would allow me to conclude that there was a lack of reasonable and probable cause for the conduct of Mr. Bissonnette. Second, I could not conclude that the prosecution by Crown Counsel was obtained "improperly" by Mr. Bissonnette by "misleading" Crown Counsel. Third, even if I could conclude that a careful and thorough investigation had not been undertaken by Mr. Bissonnette, I am satisfied that the absence of such care does not demonstrate mala fides and so I could not conclude that there was an improper purpose underlying the conduct of Mr. Bissonnette: Swansburg, supra. Fourth, there is nothing in evidence which would allow me to conclude that there was an improper purpose underlying the conduct of Mr. Bissonnette and that he did not have an honest belief in the guilt of Mr. Reilly when he reported to Crown Counsel.

[35] On this appeal, counsel for the plaintiff asserts that the case was not suitable for disposition under Rule 18A. He says that there was insufficient evidence to make findings with respect to whether the police officer had reasonable and probable grounds for recommending charges against him, or whether there was an improper purpose underlying the police officer's conduct. He says it was unjust to decide those issues on the inadequate material before the judge.

[36] Counsel for the defendants maintain that the claim for malicious prosecution was appropriate for disposition under Rule 18A, and that it was just for the judge to do so. She says the onus on the plaintiff in these circumstances was not to prove his case, but to prove that the claim could not be established without a conventional trial.

[37] The evidence before the judge included the plaintiff's two affidavits (see paras. 21 and 22 above) which attached as exhibits various reports including the report of Sergeant Conlon, correspondence between counsel for the plaintiff and the prosecutor and Corporal Bissonnette's notes. The evidence also included the 27 April 2006 affidavit of Corporal Bissonnette. There was no affidavit from the expert, Dr. Carlyle attesting to the contents of her report, or providing other opinion evidence.

[38] Apparently, Corporal Bissonnette had been examined for discovery on three dates prior to the Rule 18A hearing, but those transcripts were not before the judge. Corporal Bissonnette was not cross-examined on his affidavit, which simply identified its various attachments.

[39] Counsel for the defendants points out that plaintiff's counsel did not ask to cross-examine Corporal Bissonnette on his affidavit before the Rule 18A trial commenced. Plaintiff's counsel responds that Corporal Bissonnette's affidavit did not deny the allegations the plaintiff advanced against him. He says the plaintiff was not obliged to seek a cross-examination on that affidavit, and that if the summary trial judge considered the case might be appropriate for disposition under Rule 18A, the judge should have directed a cross-examination of Corporal Bissonnette, even though counsel for the plaintiff did not ask for it. The plaintiff says the trial judge should have recognized that the case was not appropriate for disposition on affidavit evidence, and that he should have directed a trial on viva voce evidence.

[40] The critical issues on the merits of the claim for malicious prosecution were whether Corporal Bissonnette lacked reasonable and probable grounds for recommending the institution of criminal proceedings against the plaintiff, and whether he had an improper purpose, or acted in bad faith in doing so, rather than holding an honest belief in the plaintiff's guilt.

[41] On the substantive question of whether Corporal Bissonnette lacked reasonable and probable grounds for recommending criminal charges, the plaintiff was in the position of having to prove a negative. To succeed he would have had to demonstrate that on all of the evidence there was no reasonable justification for laying charges against him. The trial judge said there was nothing in the evidence that would allow him to conclude that "there was a lack of reasonable and probable cause for the conduct of Mr. Bissonnette".

[42] In my respectful opinion, that issue was not appropriate for disposition under Rule 18A. Whether there were reasonable and probable grounds for laying charges against the plaintiff depended in essence upon whether the plaintiff's or his wife's account of events was to be believed. Circumstantial evidence confirming or contradicting either account was therefore critical. The plaintiff's affidavit evidence properly before the judge on the Rule 18A application showed that he had asked for blood-spatter analysis to be done of the premises, and had also asked for analysis of the blood on his clothing, which he had surrendered to Corporal Bissonnette. There was also evidence that a superior officer had advised Corporal Bissonnette to obtain the report of a forensic pathologist. That report, when ultimately obtained from Dr. Carlyle, provided opinion evidence on the consistency or inconsistency of the parties' two stories with the injuries that both sustained.

[43] The absence of evidence concerning blood-spatter, blood analysis and the nature of the parties' physical injuries was relevant to the question of whether there were reasonable and probable grounds for the laying of charges against the plaintiff. More importantly, the absence of such evidence was also relevant to the question of whether it was appropriate to decide that issue on summary trial under Rule 18A.

[44] The independent investigation subsequently conducted by Sergeant Conlon concluded that the investigation by Corporal Bissonnette was flawed and incomplete. Sergeant Conlon's report was not properly adduced in evidence on the Rule 18A trial, but its existence and hence the availability of such evidence, was known, and its content supported the plaintiff's contention that there was no proper basis for deciding the issue of whether there were reasonable and probable grounds for laying charges against him.

[45] Only when the available circumstantial evidence was obtained could an informed decision be made on whether the evidence of the plaintiff or Mrs. Reilly was likely to be believed and hence whether there were reasonable and probable grounds for charging the plaintiff. It was unfair to decide that issue without such evidence, when it was known to exist, or to be obtainable.

[46] I am therefore of the view that the judge erred in deciding that "there was nothing in the evidence" on which he could conclude "that there was a lack of reasonable and probable grounds for the conduct of [Corporal] Bissonnette" (see para. 23 quoted above at para. 34). In fact, there was evidence at least to suggest that evidence might be obtained to show an absence of reasonable and probable grounds. It should have been clear that the evidence adduced was inadequate to decide that issue, and that it would be unjust to do so, on summary trial under Rule 18A.

[47] On the second critical issue of whether Corporal Bissonnette acted for an improper purpose or in bad faith, or whether he held an honest belief in the plaintiff's guilt, that as well, in my opinion, should not have been decided on the material before the judge. In essence, the nature of Corporal Bissonnette's motives raise issues as to his state of mind. Some questions are: why did Corporal Bissonnette not pursue such circumstantial evidence as might have been obtained to support or contradict the two different accounts given by the plaintiff and Mrs. Reilly? In what respects was the investigation "flawed and incomplete", to use Sergeant Conlon's phrase? What was Corporal Bissonnette's state of mind or motive, if any, in failing to pursue available circumstantial evidence? If his conduct fell below acceptable professional standards, did it go beyond incompetence or negligence, and demonstrate an improper purpose or bad faith?

[48] The answers to these questions depend in large part on Corporal Bissonnette's credibility. The judge may have been right to say there was nothing before him from which he could find that Corporal Bissonnette acted for an improper purpose. But Corporal Bissonnette's affidavit did not deny the allegations the plaintiff advanced, he was not cross-examined on his affidavit, and none of his prior examinations for discovery were placed before the judge. Perhaps more importantly, the judge had no opportunity to see or hear Corporal Bissonnette testify.

[49] In my respectful view, all of those evidentiary deficiencies resulted in an inadequate basis for deciding whether Corporal Bissonnette acted in good or bad faith. Rather, the evidentiary deficiencies as to Corporal Bissonnette's credibility and state of mind demonstrated that the claim for malicious prosecution was not suitable for disposition under Rule 18A, and should have been referred for trial upon viva voce evidence.

[50] It appears that the only possible basis for acceding to the defendants' motion to dismiss the plaintiff's claim for malicious prosecution might have been on the legal issue of whether, in British Columbia, a peace officer may be held liable for such a claim, or whether only Crown counsel may be held liable for this tort.

[51] In his reasons at para. 4 quoted above, the summary trial judge said that was the primary issue raised on the defendants' application under Rule 18A and was a "narrow legal issue". However, he did not resolve that issue in the defendants' favour. Rather he said:

[22] Ordinarily, an action for malicious prosecution would not be available against a peace officer if it cannot be shown that the four necessary elements to prove malicious prosecution are not present. However, the fact that Crown Counsel in British Columbia undertakes the prosecution of alleged Criminal Code or statutory violations does not per se result in a prohibition against claims for malicious prosecution against peace officers. First, a peace officer may be a complainant. Second, the necessary elements for a claim for malicious prosecution may be present. However, I cannot conclude that the four elements necessary for a claim for malicious prosecution can be shown here.

[52] On this appeal, the Crown maintains that under the Crown Counsel Act, R.S.B.C. 1996, c. 87, Crown counsel has the sole authority and responsibility to approve and conduct prosecutions in British Columbia.

[53] The principal authority in British Columbia on this issue is Swansburg (supra). There a citizen, Mr. Swansburg, sued a police officer, Constable Smith, for battery, false arrest, false imprisonment and malicious prosecution. The defendant acknowledged that he did not have reasonable and probable grounds to arrest the plaintiff, and the trial judge held there was no proper foundation for the arrest. However, the judge dismissed the plaintiff's action on the basis that the defendant was protected from civil liability by s. 25(1) of the Criminal Code.

[54] On appeal, this Court ordered a new trial on the issues of false arrest, false imprisonment, assault and battery. With respect to the claim for malicious prosecution, the Court said it was properly dismissed by the trial judge. The dismissal of that claim does not, however, appear to have been based on the ground relied on by the Crown on this appeal. Rather, in Swansburg, the malicious prosecution claim appears to have failed on evidentiary grounds. In the reasons of Mr. Justice Williams he said:

[39] The trial judge points out firstly that the prosecution was brought by counsel instructed by the Attorney-General of British Columbia and not by Constable Smith. He notes further that Crown counsel in all likelihood would have been in the position to canvass all of the available facts before laying charges against the appellant. The trial judge further concluded that there is no evidence in support of the fourth element of the offence; that there was an improper purpose underlying the conduct of the Crown.

[55] In concurring reasons on this point, Mr. Justice Goldie said simply he would dispose of the malicious prosecution complaint as Mr. Justice Williams would.

[56] The trial judgment in Swansburg rested on the trial judge's application of s. 25(1) of the Criminal Code. The provisions of the Crown Counsel Act relied on here by the defendants do not appear to have been addressed either at trial or in the Court of Appeal. I do not think Swansburg can be taken as authority for the proposition that the Crown Counsel Act is an absolute bar to a claim of malicious prosecution brought against the peace officer. This issue is not addressed by the plaintiff in his factum on this appeal, presumably because of the way in which the summary trial judge dealt with the matter. Nor did counsel for the plaintiff address it in his oral submissions to us.

[57] In my respectful view, the issue of whether an action for malicious prosecution can be maintained against a peace officer is not ripe for decision on the material before us. It is one of the essential elements of a claim for malicious prosecution that must be established by the plaintiff, and in my opinion, it should be referred to trial along with the other issues referred to above on this question.

[58] Accordingly, I would allow the plaintiff's appeal against the order dismissing the action based on malicious prosecution.

B. The Limitation Period on the Claim for Negligent Investigation:

[59] After setting out the many particulars of negligence alleged by the plaintiff against the defendant Corporal Bissonnette, the trial judge summarized the plaintiff's position on the limitation period, and his reasoning, as follows:

[20] The Plaintiff submits that the two-year limitation period only began to run on July 23, 1996 when the Plaintiff was acquitted of all charges so that this Action which was commenced on July 21, 1998 was within the two-year limitation period. It is also submitted on behalf of the Plaintiff that, in any event, the notation "SUI" on August 7, 1996 indicating that the matter was "still under investigation" and the notation "Concluded Here" on October 2, 1996 indicating that the file was closed and the investigation over both indicate that the investigation was ongoing until October 2, 1996 and not completed that the negligence was therefore continuing.

[21] While no authority was provided for the proposition that there is a continuing obligation on a peace office to investigate even after he or she has provided testimony at a trial, the Plaintiff submits that it is only when the file of the investigating officer is closed or "concluded" that the question of whether or not there has been negligence can be established so that, in this case, that date is October 2, 1996.

[22] Because negligence can be established not only by what is done but also by what is not done, it may well be that the investigatory process is only concluded when the file of the investigating officer is closed or concluded and not merely at the time when an investigating officer testifies at a trial. However, the particulars set out in the Amended Statement of Claim regarding the "simple and gross negligence" of Mr. Bissonnette only relate to matters which took place long before the trial in Provincial Court.

[23] I would ordinarily find that the two-year limitation period commenced to run when Mr. Bissonnette testified at the trial of the Plaintiff on May 28, 1996 or, at the latest, on July 8, 1996 when the trial concluded and that accordingly, the commencement of the Action on July 21, 1998 was beyond the two-year limitation period and the claim of negligence or gross negligence was barred. However, I am satisfied that the Plaintiff should be given the opportunity of attempting to establish that there were acts or omissions between July 8, 1996 and October 2, 1996 which amounted to negligence. The examination of the possibility that Mr. Bissonnette continued his investigation until as late as October 2, 1996 can only be explored at Trial with or without a continuation of the Examination for Discovery of Mr. Bissonnette. Because I have reached that conclusion, I am satisfied that I should not accede to the application of the Defendants to dismiss the claim of negligence or gross negligence against Mr. Bissonnette.

[60] The judge also held that the running of time was not postponed under s. 6(3) of the Limitation Act, R.S.B.C. 1996, c. 266.

[61] He concluded:

[28] Either directly or indirectly through his counsel, the Plaintiff had the necessary information to determine whether he had a civil cause of action against Mr. Bissonnette by the time of the Provincial Court Trial at the latest. As well, the Plaintiff had the benefit throughout of the advice of his father who was designated as "co-counsel" to advise the Plaintiff. His counsel at the time and his father would have been in a position to advise the Plaintiff when a claim for negligence had to be commenced. I am satisfied that, in light of the circumstances and interests of the Plaintiff, the Plaintiff should reasonably have brought an action any time after the conclusion of the Provincial Court Trial.

[62] Counsel asked for assistance in settling the terms of the order to reflect these reasons. In a memorandum to counsel dated 17 October 2006, the learned trial judge said: I do not have to see the submissions of the Plaintiff regarding the form of Order flowing from my August 31, 2006 Reasons for Judgment. The defendants are incorrect in assuming that I had dismissed any claims regarding negligent acts or omissions for the period up to July 8, 1996. Rather, I determined that the Plaintiff was entitled to proceed to Trial with respect to any claims of negligent acts or omissions up to and including October 2, 1996 when the file maintained by Mr. Bissonnette was closed. Accordingly, I settled the terms of the Order to reflect the claim of the Plaintiff for negligence was not dismissed.

[63] The entered order reads:

THIS COURT ORDERS that:

1. The claims of the Plaintiff against the Defendants in negligence are not dismissed; and,...

[64] The trial judge's reasons on the negligence claim were released on 31 August 2006. On 4 October 2007, the Supreme Court of Canada released its decision in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, 50 C.R. (6th) 279 ("Hill"). The Hill decision involved a claim of negligent police investigation following the plaintiff's acquittal at a criminal trial, and therefore the reasons of the majority in Hill are particularly instructive to the present case.

[65] The plaintiff in Hill had been convicted of robbery and imprisoned. He successfully appealed his conviction based on errors of law made by the trial judge, and a new trial was ordered. At this new trial, the plaintiff was acquitted of all charges. Although the facts in Hill are not perfectly congruent with the facts of the present case, the majority judgment of McLachlin C.J.C. suggests that her reasoning is not necessarily limited to cases in which imprisonment has actually occurred:

[91] It is not disputed that imprisonment resulting from a wrongful conviction constitutes personal injury to the person imprisoned. Indeed, other forms of compensable damage without imprisonment may suffice; a claimant's life could be ruined by an incompetent investigation that never results in imprisonment or an unreasonable investigation that does not lead to criminal proceedings. Wrongful deprivation of liberty has been recognized as actionable for centuries and is clearly one of the possible forms of compensable damage that may arise from a negligent investigation. There may be others.

[Emphasis added.]

[66] In Hill, as in the present case, the defendants claimed that the plaintiff's action was statute-barred. McLachlin C.J.C. discussed the relevant limitation period at paras. 96-98:

[96] 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), chp. 27, at para. 217, n. 23.)

[97] 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.

[98] 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.

[Emphasis added.]

[67] The plaintiff submits, applying Hill to the present case, that the two-year limitation period prescribed by section 3(2) of the Limitation Act, supra did not start to run at the very least until the plaintiff was acquitted of the criminal assault charges against him on 23 July 1996. If this position is correct, the plaintiff's claim is not statute-barred, as the action was commenced two days before the two-year anniversary of his acquittal.

[68] The defendants make two submissions in reply to the plaintiff's reliance on Hill. First, the defendants submit that the above paragraphs were merely obiter dicta, and do not bind this Court. Second, the defendants submit that damage arising out of a series of negligent acts or omissions may be incurred and may become known prior to the last of the negligent acts or omissions. As a result, they submit, the plaintiff had suffered the compensable harm he claimed long before his actual acquittal, and the limitation period should have commenced before his acquittal in order to reflect this fact.

[69] As to whether this Court is bound by or should follow obiter dicta in judgments of the Supreme Court of Canada, I understand the law to be that statements of judicial opinion form a continuum including the binding ratio decidendi of a case, obiter dicta that is intended to be authoritative, and obiter dicta that is intended to be helpful or persuasive but is not binding. This issue was discussed at length by Binnie J. in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609. At para. 57, he wrote:

... All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding" in the sense the Sellars principle [Sellars v. The Queen [1980] 1 S.C.R. 527] in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience.

[70] In my opinion, Chief Justice McLachlin's comments in Hill can be categorized as belonging to the "wider circle of analysis which is obviously intended for guidance". Her statements (reproduced above) are clearly intended to guide the further analysis of future courts on the issue of limitation periods in negligent investigation claims. They do not fall into the category of "commentary, examples or exposition". On the analysis provided by Mr. Justice Binnie in Henry, these comments of the Chief Justice should be accepted as authoritative. I can see no reason not to follow the statement of law made by the Court in Hill.

[71] Similarly, I cannot accede to the submission that because the plaintiff suffered earlier compensable harm, his cause of action had become complete before his ultimate acquittal. This submission runs counter to the reasoning in Hill, which establishes that negligence as a cause of action is complete, and the limitation period begins to run, when the plaintiff becomes able to establish that the police activity was, in fact, wrongful. The plaintiff in the present case would not have been able to establish that the police activity was wrongful before he was acquitted at trial.

[72] In my opinion, the plaintiff's cause of action did not become complete until his acquittal at the Provincial Court trial on 23 July 1996. The limitation period began to run that same day. It follows that the negligent investigation action commenced 21 July 1998 was not statute-barred.

[73] The defendants' alternate claim to strike out particulars of negligence appears to have been based on the suggestion made by the chambers judge at para. 23 of his reasons that the limitation period commenced to run on either 28 May or 8 July 1996. The argument appears to be that the plaintiff could not rely on particulars of any impugned conduct after either of those dates.

[74] Counsel for the defendants did not specify in either written or oral submissions any specific particulars of negligence which should be struck out, and this submission, if not abandoned, was at least not advanced with any vigour.

[75] In any event, having now concluded that the limitation period did not expire until 23 July 1998, and that the plaintiff's writ was issued within time, the alternate submission concerning particulars of negligence need not be considered any further.

[76] I would allow the appeal and dismiss the cross-appeal.

"The Honourable Chief Justice Finch"

I agree:
"The Honourable Mr. Justice Low"

I agree:
"The Honourable Mr. Justice Frankel"