Breton v Canada (Attorney General), 2019 MBCA 123

Citation: Breton v Canada (Attorney General), 2019 MBCA 123 Date: 20191218 Docket: AI19-30-09239 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre Madam Justice Karen I. Simonsen BETWEEN : YVES CHRISTIAN BRETON ) S. J. Thliveris ) for the Appellant ) (Plaintiff) Appellant ) R. T. Smith, Q.C. ) for the Respondent - and - ) ) Appeal heard and THE ATTORNEY GENERAL OF CANADA ) Decision pronounced: ) December 13, 2019 ) (Defendant) Respondent ) Written reasons: ) December 18, 2019 On appeal from 2018 MBQB 205 LEMAISTRE JA (for the Court) : [ 1 ] The plaintiff appeals the dismissal of his claim by way of

summary judgment. [ 2 ] After the hearing, we dismissed the appeal with brief reasons to follow. These are those reasons. [ 3 ] In November 2009, the RCMP seized property pursuant to a warrant and retained the property pending a criminal investigation and prosecution. In 2009 and 2010, counsel for the plaintiff wrote to the RCMP on three occasions and requested the return of the property seized. There was no response to these letters. [ 4 ] In July 2014, the plaintiff was convicted of three charges relating to some of the property seized (drugs and firearms) and the judge ordered forfeiture of this property.

Following the convictions, the RCMP returned some of the remaining property. [ 5 ] In August 2016, the plaintiff filed a statement of claim seeking damages for negligence, misfeasance in public office and conversion, as well as damages under section 24(1) of the Canadian Charter of Rights and Freedoms . He asserts that, apart from the drugs and firearms, not all of the property seized was returned and that some of the property that was returned was damaged. In its statement of defence, the defendant relied on the two-year limitation period in section 21(1) of The Public Officers Act , CCSM c P230 (the POA ).

It also filed a motion for

summary judgment asserting that the claim was statute-barred based on section 21(1) of the POA and section 2(1) (

g) of The Limitation of Actions Act , CCSM c L150 (the LAA ). [ 6 ] Section 21(1) of the POA 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 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 an alleged neglect or default in the execution of the statute, rule, regulation, duty, or authority, unless it is commenced within two years next after the act, neglect, or default complained of, or in case of continuance of injury or damage, within two years next after the ceasing thereof. [ 7 ] The motion judge granted the defendant’s motion for

summary judgment and dismissed the plaintiff’s claim. In

doing so, he concluded that on this pleading and these facts, the act complained of occurred in November 2009 when the property was seized. He determined that the applicable limitation period was two years pursuant to section 21(1) of the POA and that it expired in November 2011 prior to the filing of the statement of claim. [ 8 ] On appeal, the plaintiff concedes that section 21(1) of the POA is applicable, but submits that the motion judge erred in determining the nature of the alleged wrongful act and when that act occurred. [ 9 ] The motion judge’s decision on

summary judgment is discretionary and entitled to deference unless he misdirected himself, made an error in principle or his decision is so clearly wrong as to amount to an injustice. The errors complained of involve the application of the law to the facts and are reviewable on a standard of palpable and overriding error (see Joyce et al v Government of Manitoba , 2018 MBCA 80 at para 23 ). [ 10 ] We have not been convinced that the motion judge erred.

On the facts of this case, there was no palpable and overriding error in his conclusion that the act complained of was the seizure of the property in November 2009, and that all of the damages alleged by the plaintiff flow from the seizure. [ 11 ] The plaintiff’s argument that the cause of action only arose after the criminal charges had been disposed of is not persuasive.

The letters written by counsel for the plaintiff requesting the return of property demonstrate that the act complained of had already occurred by that point. [ 12 ] We do not accept the plaintiff’s assertion that the cause of action arose later because he continued to suffer damages following the seizure. “[C]ontinuance of injury or damage” under section 21(1) of the POA means “the continuance of the act which caused the damage”, rather than a single act with continuous effect ( Joyce at para 68, quoting Freeborn v Leeming , [1926] 1 KB 160 at 162 (CA (Eng)); see also Joyce at paras 63-76; and Nerbas v Manitoba , 2019 MBCA 85 at para 25 ).

The seizure in this case was a single act that was complete once the RCMP took possession of the property. Although it had continuous effects, the motion judge did not err in concluding that no continuous tort is alleged. [ 13 ] Finally, the plaintiff suggests that, if the limitation period had expired, the motion judge should have granted an extension. However, the plaintiff acknowledges that he has not brought the required application under

section 14 of the LAA . [ 14 ] We have not been persuaded that the motion judge misdirected himself, made an error in principle or that his decision is so clearly wrong as to amount to an injustice. In the result, the appeal was dismissed with costs. JA JA JA