Zadworny v. Manitoba Date:, 2011 MBCA 66

Citation: Zadworny v. Manitoba Date: 20110802 (Attorney General) et al., 2011 MBCA 66 Docket: AI 10-30-07465; AI 10-30-07473 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : JOSEPH WILLIAM ZADWORNY ) J. W. Zadworny ) on his own behalf (Plaintiff) Applicant ) ) D. G. Guénette and - and - ) M. A. Jack ) for the Respondents ATTORNEY GENERAL OF MANITOBA, ) THE CHIEF OF THE WINNIPEG ) Chambers motions heard: POLICE SERVICE and CYNTHIA JOY ) July 14, 2011 DOELL ) ) Decision pronounced: (Defendants) Respondents ) August 2, 2011 M. A.

MONNIN J.A. 1 These are two applications pursuant to Court of Appeal Rule 35.1, both seeking an order setting aside the Registrar’s deemed abandonment of the applicant’s appeals and extending the time in which to perfect those appeals. 2 Although the appeals are in two different numbered suits, they both involve basically the same parties and arise out of the same set of underlying facts.

Consequently, I will be issuing but one set of reasons and they will be applicable to both applications before me. 3 In suit AI 10-30-07465, the respondent, the Chief of the Winnipeg Police Service, filed a motion seeking an order granting

summary judgment dismissing the applicant’s claim. The application for

summary judgment was brought on the basis that the claim was statute-barred by the The Limitation of Actions Act , C.C.S.M., c. L150 (the Act ). The order sought was granted by a Master. The applicant appealed to a judge of the Court of Queen’s Bench and the appeal was dismissed by order dated October 6, 2010, and filed October 22, 2010. The applicant filed his appeal of that dismissal in this court on November 22, 2010.

On March 15, 2011, the applicant was served with a 30-day notice by the Registrar of this court, advising him that his appeal would be deemed to be abandoned if his factum and appeal book were not filed on or before April 14, 2011. The applicant failed to file the required materials within the prescribed time. 4 In file AI 10-30-07473, the respondent, the Attorney General of Manitoba, also brought a motion for

summary judgment dismissing the applicant’s claim. This application was brought on the basis that elements required to found an action in malicious prosecution were absent in the case at bar. The order dismissing was granted by a Master. The applicant appealed to a judge of the Court of Queen’s Bench. The matter was heard at the same time and by the same judge who heard and decided the above-referred to matter. The appeal was dismissed by order dated October 6, 2010, and filed November 1, 2010. The applicant filed his appeal of that dismissal in this court on November 30, 2010.

On March 15, 2011, the applicant was served with a 30-day notice by the Registrar of this court advising him that his appeal would be deemed to be abandoned if his factum and appeal book were not filed on or before April 14, 2011. The applicant failed to file the required materials within the prescribed time. 5 The applicant is well aware of the test to be met on an application to set aside a deemed abandonment of an appeal as he has previously faced this same issue in this very case. In a chambers decision, 2007 MBCA 142 , Scott C.J.M. wrote (at paras. 7-8): The plaintiff then appealed to this court.

Unfortunately (for the plaintiff), his appeal did not proceed with dispatch. Eventually the Registrar issued a 30-day notice as provided for in Rule 33. There being no timely response, she deemed the plaintiff’s appeal to be abandoned. Hence this motion. The criteria that an applicant such as Mr. Zadworny must meet on an application to set aside a deemed abandonment is precisely the same as that required for an extension of time within which to commence or continue an appeal. These criteria are:

(

a) there must be an arguable ground of appeal; (

b) there must be a continuous intention to appeal; and (

c) it must be right and just in all of the circumstances that the time for commencing or continuing the appeal be extended. See Hunter v. Hunter, 2000 MBCA 134, 150 Man.R. (2d) 291. 6 With respect to the appeal involving the Chief of the Winnipeg Police Service, the applicant argues that the motions judgeerred in law when he found his suit to be statute barred.

He argues that the limitation period should start tolling from the time that thecriminal proceedings against him were terminated. 7 As to the suit involving the Attorney General, the applicant argues that he has a valid basis on which to launch an actionfor malicious prosecution. 8 Both applications are devoid of any merit.

The applicant has failed to demonstrate, either in his evidence or in hisargument, that he had a continuous intention to appeal, or that it is right and just in all circumstances that he be permitted to revive hisappeals. 9 However, it is on the basis of the lack of arguable grounds of appeal that these applications are fatally flawed and must bedismissed. 10 In granting the order sought by the Chief of the Winnipeg Police Service the motions judge, in his reasons, properly sets outthe applicable law as follows (2010 MBQB 226 at paras. 8-12): Subsection 2(1)(

e) of The Limitation of Actions Act, R.S.M. 1987, c. L150, provides that a claim for false imprisonment must becommenced within two years after the cause of action arose. Subsection 21(1) of The Public Officers Act, R.S.M. 1987, c. P230, provides: 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 or execution orintended execution of a statute or of a rule or regulation made thereunder, or of a public duty or authority, or in respect of an allegedneglect or default in the execution of the statute, rule, regulation, duty, or authority, unless it is commenced within two years next afterthe act, neglect, or default complained of, or in case of continuance of injury or damage, within two years next after the ceasing thereof.

In a number of prior decisions in this action, the court has commented on the limitation period applicable to the plaintiff’s claims forfalse imprisonment and false arrest. In particular, I refer to the Master’s decision reported at 2006 MBQB 226, Suche J.’s decisionreported at 2007 MBQB 53 and the two Manitoba Court of Appeal decisions reported at 2007 MBCA 142 and 2009 MBCA 44. In her decision, Suche J. said: 11 In the case of actions for false arrest/imprisonment, the limitation period begins to run on the date that the arrest or imprisonment iscompleted. See, for example, Nicely v.

Waterloo Regional Police (Chief of Police), (ON SC), [1991] O.J. No. 460[Ont. Court (General Division), Divisional Court] [QL] and Lemieux v. Currie, [1999] O.J. No. 3254 (Ont. Superior Court of Justice)[QL]. Accordingly, as the plaintiff was both arrested and released on September 7, 2001, his right of action for false arrest/imprisonmentexpired on September 7, 2003. And, she concluded:

14 My conclusion, then, is that the limitation period for bringing an action on both of the grounds referred to above [i.e. falsearrest/imprisonment and breach of Charter rights] expired prior to the issuance of the statement of claim in October 2004. The Court of Appeal has said that Suche J. was correct in her analysis of the law and the application of the limitation period, both underThe Limitation of Actions Act and The Public Officers Act. 11 Thereafter, in confirming the dismissal of the applicant’s suit, the motions judge stated (at para. 14): I have carefully considered the plaintiff’s oral and written submissions. The Chief of Police sought

summary judgment solely on thebasis that the limitation periods had expired for advancing claims for false imprisonment and for false arrest. The plaintiff has failed topersuade me that his claim has a factual or legal basis “with a real chance of success”.

I have also considered each of the grounds ofappeal in the plaintiff’s notice of appeal, and I have concluded that they are either without merit altogether or would not affect myconclusion that the plaintiff’s claim against the Chief of Police has no real chance of success. 12 With regards to the order dismissing the suit against the Attorney General, the motions judge initially set out the test to bemet in such a prosecution (at para. 18): In Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J.

No. 86, the court said: 42 There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:

a) the proceedings must have been initiated by the defendant;

b) the proceedings must have terminated in favour of the plaintiff;

c) the absence of reasonable and probable cause;

d) malice or a primary purpose other than that of carrying the law into effect. 13 He then went on to find (at paras. 26-27): I have carefully considered the plaintiff’s oral and written submissions, as well as the pleadings and affidavit evidence, and I am satisfiedthat the third and fourth elements of the test for malicious prosecution are not genuinely in dispute. On the basis of the evidence as awhole, I am satisfied that an objective assessment discloses reasonable and probable grounds to commence and continue the prosecutionagainst the plaintiff.

As was stated in Miazga, [2009 SCC 51, [2009] 3 S.C.R. 339]: 75 If the court concludes, on the basis of the circumstances known to the prosecutor at the relevant time, that reasonable and probablecause existed to commence or continue a criminal prosecution from an objective standpoint, the criminal process was properly employed,and the inquiry need go no further. ... Although the inquiry in the present case could simply end there, I am also satisfied that there is no cogent evidence of malice. In myview, the plaintiff’s claim against the Attorney General does not have any real chance of success.

Once again, I have also considered each of the grounds of appeal in the plaintiff’s notice of appeal, and I have concluded that they are

either without merit altogether or would not affect my conclusion that the plaintiff’s claim against the Attorney General has no real chance of success. 14 The motions judge was correct in law in granting the orders that he did. The applicant has not convinced me that he has any arguable case to advance in both suits, and accordingly, his applications to set aside the deemed abandonment of his appeals are dismissed, with costs if sought. J.A.