Chouinard v. Army & Navy Dept. Store Ltd.

2007 BCSC 1569 Chouinard v. Army & Navy Dept. Store Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chouinard v. Army & Navy Dept. Store Ltd. , 2007 BCSC 1569 Date: 20071009 Docket: S070131 Registry: Vancouver Between: Pierre Chouinard Plaintiff And Army & Navy Dept. Store Ltd., Jason Torgasows, Rebecca Cadger, Tomas Bertrand and Yoshiya Otaki Defendants Before: The Honourable Mr. Justice Groberman Oral Reasons for Judgment In Chambers October 9, 2007 Counsel for the Plaintiff D.K. Miura J. Cameron Counsel for the Defendants S.B. Margolis J.C. Levy Date and Place of Hearing: October 9, 2007 Vancouver, B.C. [1] THE COURT: This is an application under Rule 18A to dismiss this plaintiff's action. The facts alleged in the statement of claim are fairly straightforward. On March 9, 2002, the plaintiff was a customer shopping in the defendant's store at 502 Columbia Street in New Westminster. The plaintiff states that in the course of his shopping he was looking for a Torx screwdriver or tool and that he located one in the shop. He says the package was partially opened and that he removed a tool from the package to determine whether it was the appropriate one for his needs. He determined that it was, returned it to the open package and then took an unopened Torx tool package and went and paid for it. He left the store and was arrested. [2] He says that he was kept for approximately one hour and that the arrest was a false one. He

also states that thereafter statements were made to the effect that he had engaged in mischief. He alleges that those statements were libellous. He also alleges fraudulent misrepresentation, in that on the following day he attended at the store with family members to discuss the incident and he was told that his conduct had been a criminal offence and that the store was unable to do anything to expunge its arrest report. Finally, it is alleged the arrest was negligent and that there was a conspiracy surrounding the arrest and subsequent conduct. [3] The first issue for the purposes of the Limitation Act, R.S.B.C. 1996, c. 266 is that of characterization of the matter. Despite the fact that the plaintiff has pleaded a multiplicity of causes of action, some of which appear to be made out in law in the pleading and some of which do not, this is, at base, an action for false imprisonment, combined with an action in defamation. [4] Section 3 of the Limitation Act deals with the general limitation period and it is common ground that the limitation period of two years applies here. I agree with that proposition - ss. 3(2)(c) and (d) of the Limitation Act are the applicable subsections. [5] The real question in this case is whether the running time for the cause of action is postponed. The plaintiff states that the running time ought to be postponed, relying on ss. 6(3) and (4) of the

Limitation Act. Section 6(3) of the Limitation Act [6] Section 6(3) deals with the types of action for which a postponement is possible. It includes actions: a) for personal injury; b) for damage to property c) for professional negligence; d) based on fraud or deceit; e) in which material facts relating to the cause of action have been wilfully concealed; f) for relief from the consequences of a mistake; g) brought under the Family Compensation Act; and h) for breach of trust . [7] The plaintiff alleges that this action ought to be characterized as being either "for personal injury," "based on fraud or deceit," or as one "in which material facts relating to the cause of action have been wilfully concealed". [8] The plaintiff says that this is a personal injury action on the basis that false imprisonment, of necessity, includes an element of assault and assault is a personal injury type of action. I find that the action here is not one for "personal injury". It is not alleged that any physical harm was done to the plaintiff, and to the extent that any injury is claimed, it is in the form of "anxiety, depression and humiliation" as a result of the false imprisonment. [9] Not all actions which include claims for anxiety, depression and humiliation constitute "personal injury" actions for the purpose of the statute. In Zanetti v. Bonniehon Enterprises Ltd., 2003 BCCA 507, an

extension of the limitation period was sought in an action for defamation. In very brief reasons, the Court of Appeal held that an action for defamation is not a one which is included in s. 6(3). [10] The action pleaded in this case is not, in essence, one for personal injury; it is simply an action for false imprisonment and possibly for defamation. I am strengthened in my view that neither defamation nor false imprisonment actions are actions for personal injury by the language of section 3 of the Limitation Act. Section 3(2)(a) speaks of "injury to person or property", while sections 3(2)(c) and (d) speak of defamation and false imprisonment separately. [11] The omission of false imprisonment and of defamation in s. 6(3) should be seen as deliberate legislative choices. It is not intended, generally, that postponement of those causes of action will be available. [12] With respect to s. 6(3)(d) ("based on fraud or deceit"), the plaintiff says that in this case that there was fraud and deceit in that the defendant did not disclose that it had a policy of a quota of arrests and also that it was deceitful of the head of security to indicate that grounds were made out for an arrest. With all due respect, the mere fact that there may be some deception following the commission of a tort does not make the action one based on fraud or deceit. The basis of the cause of action here is

false imprisonment and defamation; this is not an action to which s. 6(3)(d) applies. [13] That leaves s. 6(3)(e), which deals with actions "in which material facts relating to the cause of action have been wilfully concealed." As Mr. Miura rightly points out, this is not a subsection limited to particular causes of action. It includes any cause of action in which material facts have been concealed. Mr. Miura suggests that a number of material facts have been concealed in this case. He says that the fact that the store had a quota for arrests was not revealed, nor was it revealed that the person who arrested the plaintiff was disciplined for doing so on the basis that the store considered the arrest to be an improper one. [14] Neither of these allegations is a material fact relating to the cause of action. A material fact is an essential element of the cause of action or a fact that goes to proving an essential element. While the facts suggested by the plaintiff may affect the culpability of the defendant and may, therefore, be relevant to issues of punitive or exemplary damages, they do not go to the question of whether or not a tort was committed. [15] In some ways the question of punitive damages here is analogous to questions of the seriousness of an injury in a personal injury action. It is clear law that the seriousness of a physical injury is not a material fact for the

purposes of postponement of the running time: see, for example, Craig v. Insurance Corporation of British Columbia, 2005 BCCA 275, 41 B.C.L.R. (4th) 17. At para. 14 Lowry J.A. stated: It is well recognized in Canadian jurisprudence that ignorance of the extent of injury will not of itself serve to postpone the running of the time in which to commence an action. [16] Here, while it might be alleged that certain facts were concealed, these facts did not go to the existence of a cause of action; they were relevant only to the level of damages that might be awarded. [17] The only factor that could be considered a material fact relating to the cause of action is that of whether, in law, the actions of the plaintiff were sufficient to give rise to a cause for arrest. If that is a material fact, I agree with Mr. Miura that it was wilfully concealed by the head of security when he told the plaintiff and his family members that the actions that had been witnessed the previous day amounted to mischief and formed the basis for an arrest. [18] I want to emphasize that the issue of whether, in fact, the plaintiff's actions on the day of the arrest constituted an offence for which he could be arrested is not a question that is before me. The precise actions taken by the plaintiff in opening the package are not in evidence, nor is there any evidence on the issue of whether or not there was

any damage done to the packaging of the Torx tool. For the purposes of this application, I am accepting that the plaintiff was wrongfully arrested. Obviously, if this matter goes to trial, that is a matter that will have to be determined on all of the evidence. The sole issue that I am concerned with today is whether the legality or illegality of the plaintiff's actions on the day of arrest is "a material fact relating to the cause of action." [19] Typically, courts distinguish between issues of law and issues of fact. "Material facts" are those facts that are essential to the cause of action or go to proving an essential element of the cause of action. It is not a normal use of the words "material fact" to refer to issues of law. This point is referred to in the case of Levitt v. Carr, (1992), 66 B.C.L.R. (2d) 58, 12 B.C.A.C.

27. In the context of dealing with another part of section 6 of the Act (the subsections that are currently ss. 6(4)(b) and 6(5)) the court states (at BCLR 71-72, BCAC 37-38): The principal novelty of [s. 6(4) and (5)] lies in defining "facts" as including the opinions referred to in s. 6(5)(b)(i) and (ii). By virtue of this definition the British Columbia statute sought to resolve the controversy which engaged the House of Lords in the Scottish appeal of McIntyre v. Armitage Shanks Ltd., [1980] A.C.

46. It was there argued opinions with respect to the existence of a cause of action were within the meaning of decisive facts and that the plaintiff's ignorance that he had a cause of action was a fact which postponed time running against him. As a matter of construction this was rejected. Lord Hailsham said at p. 56: I do not believe it is possible in this fascicules of sections to construe "fact" as if it included a point of law, or that ignorance of the existence of a cause of action can be treated as if it were itself a fact relating to the same cause of action so as to satisfy section 18(3). If Parliament wishes to include oil or a "mixture of oil and water" in a section referring only to "water," it must be expected to say so. Lord Wilberforce put it this way at p. 59: My Lords, the findings of the Lord Ordinary on limited proof firmly crystallise the issues which arise in this appeal. He found that in 1961, which was 14 years before the appellant raised the present action, he knew: (1) that he had contracted pneumoconiosis in 1956; (2) that his disablement by reason of the disease was severe and had caused him to stop work; (3) that the disease was attributable to the excessively dusty conditions in the defenders' pottery against which the defenders had failed to protect him. What he did not know, or realise, until 1973, was that on these facts he could raise an action

for reparation against his employers. Did this amount to ignorance of a fact of a decisive character relating to his right of action so as to prevent his employers from relying upon the three-year period of limitation prescribed by the Prescription and Limitation (Scotland) Act 1973 section 17? That is the principal issue in this appeal. That issue was decided adversely to the appellant. The court goes on to say (at BCLR 72, BCAC 38): We think it clear that those who drafted the British Columbia statute rejected simple ignorance of the existence of a cause of action as sufficient to postpone the running of time. The solution adopted by the Law Reform Commission and by the legislature was to introduce another level of abstraction: notional advice by notional advisors. This advice is given the conceptual status of facts and, when added to those within the plaintiff's means of knowledge, forms the body of information upon which the reasonable man decides whether an action on the cause of action would have a reasonable prospect of success and whether the plaintiff ought to be able to bring that action. [20] In fact, the Limitation Act is not as clear as that quote would suggest. The definition of "facts" in s. 6(5)(b), which includes what would normally be questions of law, applies only to the use of the word "facts" in s. 6(4). It does not apply to the use of the word "facts" in

6(3)(e). In my view "material facts" in s. 6(3)(e) do not include issues of law. [21] In saying this, I am aware that in the case of Edgeworth Construction Ltd. v. Thurber Consultants Ltd., 2000 BCCA 453, 190 D.L.R. (4th) 89, Newbury J.A. stated, at paragraph 28: Obviously, unknown facts could include ignorance of the law [citing certain Law Reform Commission reports]. The Commissions generally concluded that ignorance per se should not be sufficient to postpone a limitation period if a reasonable person in the plaintiff's position would reasonably have sought advice [citing Citing Levitt v. Carr and McIntyre v. Armitage Shanks]. The legislation therefore placed "an obligation on the potential plaintiff to seek professional advice, be it medical or legal or other material facts, concerning the damage done to him in circumstances where a reasonable man would do so" [citing a report of the B.C. Law Reform Commission]. [22] Newbury J.A. was, again, specifically referring to s. 6(4) of the Limitation Act, which is subject to the special definition of facts set out in 6(5). That definition is inapplicable to s. 6(3)(e). [23] I interpret "material facts" in s. 6(3)(e) of the Limitation Act as referring to the factual aspects of the cause of action. The reasoning of the House of Lords in McIntyre v. Armitage Shanks Ltd. applies, rather than the specialized definition of "facts" that

appears in 6(5)(b) of the Limitation Act. [24] My conclusion, therefore, is that there is no allegation here that "material facts relating to the cause of action" have been wilfully concealed. What may have been "concealed" is the law with respect to wrongful imprisonment. That is not something that brings this action within the language of s. 6(3)(e) of the Limitation Act. Section 6(4) of the Limitation Act [25] This action not being one to which s. 6(3) applies, it follows that I must give effect to the limitation defence. I will, however, make mention of s. 6(4) in the event that I am mistaken in my understanding of s. 6(3)(e). Section 6(4) states: (4) Time does not begin to run against a plaintiff with respect to an action referred to in subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the plaintiff's means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that (a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and (b) the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances into account, to be able to bring an action. [26]

Subsection 6(5) defines "appropriate advice" as meaning "the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require." [27] I find that given what the plaintiff knew at the time that the cause of action is said to have arisen, a reasonable person would have sought legal advice from a lawyer in order to make the determinations set out in s. 6(4). [28] Mr. Miura argues that a reasonable person in the plaintiff's position would not have done that, because the plaintiff already had the advice of the head of security at the defendant's store that nothing untoward had happened. Mr. Miura goes further and says that that was, in fact, the advice of a competent person qualified in his respective field and therefore the plaintiff had no need to look elsewhere. [29] With all due respect, it does not seem to me that a reasonable person in the plaintiff's position would consider the head of security at the Army & Navy Department Store to be someone qualified to give him legal advice, particularly when he must have known that the person was adverse in interest and would not in all likelihood have legal training. [30] It was not reasonable for the plaintiff to accept the security officer's advice as being of a final nature, nor was it reasonable for him to sleep on his rights and not consult a

legally qualified person in order to determine whether he had a cause of action. [31] As I have indicated, it may well be that it is only recently that the plaintiff became aware of factors that would or could entitle him to significant punitive or exemplary damages in this case. But the mere fact that he is now aware of facts that might give rise to greater damages than he previously had reason to believe he might receive is not sufficient to postpone the running of the limitation period. In the circumstances, I find that the plaintiff is out of time in bringing the action and the action should be dismissed. {Submissions as to costs} Costs [32] THE COURT: The normal rule is that costs follow the event. I am concerned in this case that the conduct of the defendants giving rise to the cause of action may be such that it would be inequitable to award them costs. However, I have not heard the action; I have only heard is an application on which certain facts have been assumed. In the circumstances it is not open to me to conclude that there has been misconduct giving rise to the action. [33] There is no suggestion that there has been misconduct in the conduct of the action. It seems to me that the normal rule ought to be applied. There will be an order for costs from the plaintiff to the defendant on scale B. {Submissions on a Stay of the Costs Order} [34] THE COURT: I am going to

stay the order for costs for a period of 30 days. Mr. Miura, if you bring an appeal within 30 days, as you have indicated you will, you may either reach agreement with your friend or seek an order from the Court of Appeal staying my Order pending appeal. That is the normal process for a stay pending appeal; this court does not normally stay orders beyond the time necessary for the Court of Appeal to deal with them. The Honourable Mr. Justice H. M. Groberman