Wrongful Conviction (Limitation Period)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2337
Page Categories:	Tort Law
Citation:	Wrongful Conviction (Limitation Period), CLNP 2337, <https://rvt.link/ak>, retrieved on 2024-11-23
Editor:	MKent
Last Updated:	2024/02/01

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Beuthling v. Hayes et al, 2011 ONSC 1203 (CanLII)

[47] In my view, this reasoning applies equally to a case where it is alleged that incompetence of counsel has resulted in a wrongful conviction. I see no meaningful distinction between the negligence of a police officer that gives rise to a wrongful conviction and the incompetence of a lawyer that gives rise to a wrongful conviction. 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. Indeed, as long as the conviction is in place, it is highly doubtful that the plaintiff could attack the validity of the conviction for the purpose of establishing a right to damages as a result of his lawyer’s conduct: see Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63 (CanLII), [2003] 3 S.C.R. 77. See also Fischer v. Halyk (2003), 2003 SKCA 71 (CanLII), 229 D.L.R. (4th) 67 (Sask. C.A.).

[48] Thus, in my view, the plaintiff did not suffer damage, for the purpose of the limitation period, until it was determined that the conviction was wrongful. I need not decide whether, for this purpose, the appropriate date is the date the Court of Appeal set aside the conviction, or the date the Crown withdrew the charge. In either case, the Statement of Claim was issued within two years of the discovery of the claim.

[49] In the alternative, I think Mr. Beuthling cannot be said to have discovered his claim until it became clear that, having regard to the nature of the injury, loss or damage, a civil proceeding would be an appropriate means to seek to remedy it, as contemplated by s. 5(1)(a)(iv) of the Act. In addition to the dissenting reasons of Juriansz J.A. in Hare, supra, I have also had regard to the judgment of Feldman J.A. in Everding, supra, at para. 11, where she stated:

Clearly it is not the policy of the law or the intent of the limitations provisions to require people to commence actions before they know that they have a substantial chance to succeed in recovering a judgment for damages.

[50] In the case of an action against a lawyer for incompetence, leading to a wrongful conviction, the plaintiff would not know that he or she has a substantial chance to succeed in recovering a judgment for damages unless and until the wrongful conviction is set aside.

[51] For all of the foregoing reasons, the plaintiff did not discover his claim until, at the earliest, June 26, 2009, when the Court of Appeal set aside the conviction. Thus, in my view, this action is not statute barred.