2023 MBKB 178, 2023 MBKB 178

Date: 20231207 Docket: CI 21-01-32858 (Winnipeg Centre) Indexed as: Lintick v. The City of Winnipeg Cited as: 2023 MBKB 178 COURT OF KINGS'S BENCH OF MANITOBA B E T W E E N: TYLER LINTICK, ) Dave G. Hill ) Kelsey M. Brooks plaintiff, ) for the plaintiff ) - and - ) Nicole K. Beasse ) for the defendant THE CITY OF WINNIPEG, ) ) defendant. ) Judgment Delivered: ) December 7, 2023 Chartier J . [ 1 ] The defendant, The City of Winnipeg, moves for

summary judgment seeking dismissal of the action filed by the plaintiff, Tyler Lintick, on the basis that the claim set out in the action is statute barred pursuant to provisions of The Limitations of Actions Act , R.S.M. 1987, c. L150 , (the “ LAA ”), and The Public Officers Act , C.C.S.M. c. P230 , (the “ POA ”).

The defendant also says this action is an abuse of process because the dispute between the plaintiff and the defendant originated in the context of the plaintiff’s employment, which is governed by a collective agreement between the defendant and the Winnipeg Police Association. [ 2 ] The defendant’s originally filed motion relied only on the LAA and not the POA , though the latter Act was referenced in its brief filed in support of the motion.

I allowed the parties to file supplementary written briefs after the hearing of the motion to canvass the arguments relating to s. 21(1) of the POA more fully. [ 3 ] I have considered the filed pleadings as well as the affidavit of Tyler Lintick, sworn October 16, 2022, the affidavit of Kimberly Dawn Carswell, affirmed August 23, 2022, and the affidavit of Ken Azaransky, sworn January 3, 2023. F acts [ 4 ] The plaintiff is an employee of the defendant, and more specifically, is employed as a police officer with the Winnipeg Police Service.

The statement of claim initiated by the plaintiff is for damages pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms , (the “ Charter ”), in relation to an incident which occurred on February 24, 2017, where the plaintiff was detained, arrested and taken into custody and had his residence searched. He was released after meeting with the representative from Behavioural Health where he was questioned and found to be medically fit to be released. He was then placed on administrative leave for three months, and then cleared to return to work.

The plaintiff says the detention, arrest and search of his residence were unlawful and in breach of the Charter , which resulted in a loss of reputation amongst his colleagues, and, further, that those actions and that conduct was highhanded, oppressive and done with an intent to cause distress and injury to the plaintiff. [ 5 ] The defendant says it had grounds to act as it did due to concerns it had relating to the plaintiff’s mental health, and that it acted in good faith.

The defendant also says that the essential character of the dispute between the plaintiff and the defendant arises from the Collective Agreement between the City of Winnipeg and the Winnipeg Police Association, and is within the exclusive jurisdiction of the labour arbitrator.

[6] Subsequent to these events that occurred in 2017, there were discussions between the Winnipeg Police Association and theWinnipeg Police Service. These discussions occurred in the fall of 2019 and apparently led to a resolution. The plaintiff initiated theclaim shortly after the discussions between the Winnipeg Police Service and the Winnipeg Police Association had ended. [7] The plaintiff’s statement of claim was filed October 20, 2021, alleging damages pursuant to s. 24(1) of the Charter as a result ofCharter violations and punitive damages in relation to the defendant’s conduct. Submissions [8] The defendant says that a number of sections under the LAA apply, s. 2(1)(e), s. 2(1)(

g) and s. 2(1)(d), all of which have a two-year limitation period, resulting in this action being statute barred. It also says that s. 21(1) of the POA applies. Finally, it says that theaction is an abuse of process because it is within the jurisdiction of a labour arbitrator under the Collective Agreement between theWinnipeg Police Association and the defendant. [9] The plaintiff says that s. 21(1) of the POA is ambiguous and any ambiguity should be resolved in his favour.

The plaintiff saysthe defendant’s conduct was outside the scope of its authority and outside the scope of the warrants and, therefore, was not done “…inpursuance or execution or intended execution of a statute or of a rule or regulation made thereunder, or of a public duty or authority…”nor was the defendant’s conduct “…in respect of an alleged neglect or default in the execution of the statute, rule, regulation, duty, orauthority…” (the POA at para. 21(1)).

Therefore, the conduct falls outside the parameters of s. 21(1) or, in the alternative, isambiguously outside of its parameters. [10] The plaintiff also relies on the decisions of Zadworny v. Manitoba (Attorney General) et al., 2007 MBCA 142, Prete v. Ontario(Attorney-General), (ON CA), T.L.B. et al. v. R.E.C., 2000 MBCA 83, as well as Ordon Estate v.

Grail, (SCC), for the proposition that when the limitation periods under the LAA and another statute are not the same, agovernment cannot rely on the provisions of that statute to immunize itself from the application of the Charter by enforcing a shorterlimitation period than what would otherwise be available to the plaintiff. [11] The plaintiff says that an action for the recovery of money has a limitation period of six years pursuant to s. 2(1)(

i) of the LAA. The defendant further says that the essential character of the dispute is not within the ambit of the Collective Agreement.

Summary Judgment [12]

Summary judgment is available where there is no genuine issue requiring a trial. The issues before me on this

summaryjudgment motion involve questions of law, the

interpretation of s. 21(1) of the POA and other limitation periods, and whether this Courthas jurisdiction to hear this matter.

Summary judgment is an appropriate means to determine these legal issues which are potentiallydispositive of this proceeding. Issues [13] The following are the issues to be determined:

i) Is the statement of claim statute barred pursuant to the LAA or the POA? ii) Is the statement of claim an abuse of process for want of jurisdiction? Analysis

i) Is the statement of claim statute barred pursuant to the LAA or the POA? [14] Having considered the submissions of the parties, including the supplementary briefs filed in this matter, I find that s. 21(1) of thePOA applies to the statement of claim brought by the plaintiff and, as a result, this claim is statute barred as it was not brought withintwo years of when the act giving rise to the cause of action occurred. [15] I note that subsequent to both the hearing of this matter and the filing of further written submissions of the parties, the ManitobaLegislature repealed s. 21(1) of the POA by virtue of The Limitations Amendment and Public Officers Amendment Act, S.M. 2023, c.22.

That statute contains certain transitional provisions which I find are inapplicable here.

Section 31.2 of that Act states that: Expiry of former limitation period 31.2 No proceeding may be commenced under this Act respecting a claim discovered before September 30, 2021, if its formerlimitation period expired before the claim’s transition date. Therefore, although s. 21(1) of the POA is now repealed, it was in effect at the material time for the purposes of this case. [16] Section 21(1) of the POA had received critical commentary by both this Court in Ostrowski v. Weinstein et al, 2022 MBQB 3, aswell as the Manitoba Court of Appeal in the decision of Nerbas v Manitoba, 2019 MBCA 85.

I assume that it is at least, in part, as aresult of the critical commentary emanating from the courts, which stated that there was an urgent need for reform, that this provision hasnow been repealed.

[17] At the material time, s. 21(1) of the POA read as follows: Limitation of actions against public officials 21(1) No action, prosecution, or other proceedings lies or shall be instituted against a person for

an act done in pursuance orexecution or intended execution of a statute or of a rule or regulation made thereunder, or of a public duty or authority, or in respect of analleged neglect or default in the execution of the statute, rule, regulation, duty, or authority, unless it is commenced within two years nextafter the act, neglect, or default complained of, or in case of continuance of injury or damage, within two years next after the ceasingthereof. [18] The acts giving rise to this action occurred on February 24, 2017, and therefore the action should have been filed by February 23,2019.

The action was not filed until October 20, 2021. The defendant is a municipality which is a person within the meaning of s. 21(1)of the POA (see: Bellemare v. La Caisse Populaire de Saint-Boniface Ltee. et al, 2001 MBQB 25, at paras. 13-20). I also find that thelimitation period applies to claims for damages under s. 24(1) of the Charter. (See Ostrowski at para. 11). [19] The analysis in Ostrowski is relevant.

In that case, the Court found that the limitation period under s. 21(1) of the POA istriggered by a fixed event, the occurrence of the act complained of, and there is no discoverability component in that section. [20] The impugned actions of the defendant through members of the Winnipeg Police Service were clearly in relation to

an act donepursuant to that section. I do not find that there is any ambiguity in s. 21(1) of the POA in the sense stated by the plaintiff at para. 9 ofthese reasons.

In this regard, I have also considered the French version of the POA. [21] The plaintiff argues, relying on the cases of Zadworny, Prete, T.L.B., and Ordon Estate, for the proposition that wherelimitation periods under the LAA and another statute are not the same, the government cannot rely on the provisions of that statute toimmunize itself from the application of the Charter by enforcing a shorter limitation period than what would otherwise be available to aplaintiff under the LAA. I firstly note that the T.L.B. and Ordon Estate cases both involve conflicting limitation periods in the samestatute.

The LAA and the POA are, or course, different statutes. I will add that neither of those two cases are Charter cases. I find thatthe POA specifically applies to public officials and that it was passed for a specific purpose and with a particular legislative intent.

Asthe Court stated in Ostrowski, “…[w]hile most modern limitation of actions legislation attempts to balance the interests of plaintiffs anddefendants, the intention of the legislature in enacting provisions like s. 21 was to make the interests of the defendants and protection ofthe public purse paramount…” (at para. 34). [22] The Zadworny and Prete cases are Charter cases but predate the Supreme Court of Canada decisions of Manitoba MetisFederation Inc. v. Canada (Attorney General), 2013 SCC 14, and Ravndahl v.

Saskatchewan, 2009 SCC 7, referred to and relied on bythis Court in Ostrowski, and which are the governing authorities. Prete is also distinguishable as it involved a short limitation period ofsix months, while the POA is a two-year limitation period, which is not dissimilar to many of the limitation periods found in the LAA.

Finally, I do not agree that this action can be construed as an action for the recovery of money. [23] In Ravndahl, the Supreme Court of Canada stated that “…[p]ersonal claims for constitutional relief are claims brought as anindividual qua individual for a personal remedy….” The Court distinguished those claims from “…claims which may enure to affectedpersons generally under an action for a declaration that a law is unconstitutional.” (at para. 16).

The Court went on to say that theargument that the provincial limitation of action legislation at issue did not apply to personal claims was abandoned in that case, whichwas consistent with a previous decision of the Court “…which held that limitation periods apply to claims for personal remedies thatflow from the striking down of an unconstitutional statute.” (at para. 17). [24] Those principles were reiterated by the Supreme Court of Canada in Manitoba Metis Federation where the majority concluded: [134] …although claims for personal remedies flowing from the striking down of an unconstitutional statute are barred by therunning of a limitation period, courts retain the power to rule on the constitutionality of the underlying statute… [25] In Manitoba Metis Federation, the Manitoba Métis Federation sought declatory relief, not personal remedies.

It made no claimfor damages or land. The Supreme Court of Canada concluded that the LAA did not apply, and the claim was not statute barred. Here,the plaintiff is not seeking to strike down any legislation, including s. 21(1) of the POA.

The plaintiff seeks a personal remedy, namelydamages, under s. 24(1) of the Charter, which is subject to statutory limitation periods. [26] In the circumstances, I do not need to consider the defendant’s alternative submissions under the LAA, and I simply note that theLAA was also the subject of amendments. ii) Is the statement of claim an abuse of process for want of jurisdiction? [27] Given my findings relating to the limitation period in the POA, it is not necessary for me to consider whether this claim is asabuse of process as being a dispute arising out of the Collective Agreement.

However, I will say that I am not satisfied on the recordbefore me that this action falls under the jurisdiction of the Collective Agreement and that it is employment related. [28] The leading authority is the Supreme Court of Canada decision of Weber v. Ontario Hydro, (SCC), [1995] 2SCR 929. If a dispute arises under a collective agreement, the jurisdiction to resolve it lies exclusively within the domain of the labour

arbitrator. To make that determination, the court must attempt to define the “essential character” of the dispute. The Court stated that "…[t]he question in each case is whether the dispute, in its essential character, arises from the

interpretation, application, administration or violation of the collective agreement.” (at para. 52). The Court at para. 54 also indicated that the “…approach does not preclude all actions in the courts between the employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts…” [ 29 ] I note that the record before me is deficient in several respects. A copy of the grievance was not provided so as to be able to determine what the grievance encompassed.

But more importantly, the statement of claim is framed as a wrongful arrest and detention under the Charter , which is not, on its face, workplace related. Although it may have initially related to the workplace, the essential character of the dispute is not, in my view, employment related. Once the defendant, through the actions of the police officers, proceeded to a detention and an arrest, it took the matter outside of the Collective Agreement. I agree with the plaintiff that this matter is more akin to the matter of Rukavina v.

Ottawa (Police Services Board) , 2020 ONCA 533 , where in that case the plaintiff was alleging that he was wrongly charged with criminal offences and that the allegations did not pertain to discipline. The plaintiff’s claim is similar, although here he was never charged with any offence and quickly released. The essence of the claim is that the plaintiff is challenging the defendant’s conduct where he says he was wrongfully arrested and detained and subject to an unwarranted search and seizure. Conclusion [ 30 ] For the reasons stated, I am allowing the defendant’s motion for

summary judgment and I am dismissing the action, as the action is statute barred by virtue of s. 21(1) of the POA . I do so on a without costs basis. The basis on which I dismissed this action is s. 21(1) of the POA . This statute was not originally cited in the initial statement of defence filed by the defendant on December 3, 2021. It was amended to rely on this

section on August 31, 2022, after the filing of the notice of motion for

summary judgment. The provision was also not originally cited as a ground for the motion for

summary judgment. I allowed the parties to file further written submissions on s. 21(1) of the POA after the hearing of this matter on that issue, as it had not been properly canvassed at the hearing. In the circumstances, I am exercising my discretion to not award costs as had that statute been initially pled, the plaintiff would have been put on early notice, however, the

section was only relied upon relatively late in this litigation. ________________________ J.