2001 SKQB 148 Q.B. A.D. 1994 No. 2815 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN POPOWICH and THE GOVERNMENT OF SASKATCHEWAN, THE ATTORNEY GENERAL FOR SASKATCHEWAN, C. RICHARD QUINNEY, Q.C., LESLIE SULLIVAN, BRUCE BAUER, MARTENSVILLE BOARD OF POLICE COMMISSIONERS, CLAUDIA BRYDEN, WAYNE McGILLIVRAY, MICHAEL JOHNSTON, and RODNEY MOOR DEFENDANTS G.D. Dufour for the plaintiff (respondent) (applicant) D.A. McKillop, Q.C. for the defendants (applicants), The Government of Saskatchewan, The Attorney General for Saskatchewan, C. Richard Quinney, Q.C., Leslie Sullivan, Bruce Bauer R.B. Morris for the defendants (applicants), Wayne McGillivray and Michael Johnston and Martensville Board of Police Commissioners (respondent) H.R. Kloppenburg, Q.C. for the defendant (respondent), Rodney Moore B.A. Beresh for the defendant (respondent), Claudia Bryden FIAT GEREIN C.J.Q.B. March 26, 2001 [1] Three motions have been brought. In the one the defendants, the Government of Saskatchewan, the Attorney General for Saskatchewan, C. Richard Quinney, Q.C., Leslie Sullivan and Bruce Bauer, seek an order pursuant to Queen\'s Bench Rules 173(a) and 188 that the following parts of the plaintiff\'s claim stand dismissed:(i) the entirety of the claim against the Attorney General for Saskatchewan;(ii) the entirely of the claim against C. Richard Quinney, Q.C., Leslie Sullivan and Bruce Bauer; and(iii) the claim against the Government of Saskatchewan (except for that part of the claim based on the alleged breach of Charter rights). With the consent of the plaintiff, it was ordered that the claim against the Attorney General for Saskatchewan be dismissed. [2] In the second motion the defendants, Wayne McGillivray and Michael Johnston, also seek to have the plaintiff\'s claim dismissed. Likewise, their application is grounded in Queen\'s Bench Rules 173(a) and 188, but they also rely on Rule 173(e). [3] The third motion is brought by the plaintiff who seeks several orders of which two were granted summarily and one was adjourned sine die. What remains is an application for an order, if necessary, extending limitation period nunc pro tunc. [4] The two applications of the defendants, insofar as they are based on Rule 188, are dismissed. That rule provides for a determination of a point of law. Even though the applications are grounded in a limitation period, there still is a factual component and absent an agreed statement of facts there should not be an order granted under Rule 188. [5] As I see it, the remaining substantive issues which need to be determined can be summarized as follows. (1) Whether the plaintiff\'s claim is barred by a statutory limitation period. (2) Whether any limitation period should be extended nunc pro tunc. (3) Whether a portion of the plaintiff\'s claim fails to disclose a cause of action against Quinney, Sullivan, Bauer, McGillivray and Johnston because there is no allegation of malice. (4) Whether the plaintiff\'s claim in tort against the Government of Saskatchewan is barred by statute. [6] The relevant portions of Queen's Bench Rule 173 provide as follows: 173 The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: (a) it discloses no reasonable cause of action or defence, as the case may be; (e) it is otherwise an abuse of the process of the Court; ... [7] For the purpose of Rule 173(a), assume that the facts as pleaded in the statement of claim are true. My authority for this approach is Balacko v. Eaton's of Canada Limited (1967), 1967 CanLII 369 (SK QB), 60 W.W.R. (N.S.) 22 (Sask. Q.B.) and Geenan v. Saskatchewan Piping Industry Pension Plan (Trustees) (1996), 1996 CanLII 6797 (SK QB), 150 Sask. R. 106 (Q.B.). [8] The facts, as obtained from the statement of claim, are these. The plaintiff is former police officer employed by the City of Saskatoon. The defendant, C. Richard Quinney, Q.C., is the Executive Director of Public Prosecutions for the Government of Saskatchewan. The defendants, Leslie Sullivan and Bruce Bauer, are employed by the Government of Saskatchewan as agents of the Attorney General for Saskatchewan. The defendants, Wayne McGillivray and Michael Johnston, were at relevant times employed as chiefs of police by the defendant, Martensville Board of Police Commissioners. [9] In about September, 1991, investigations were commenced and pursued by various police officers, including McGillivray and Johnston, in respect to alleged criminal activity. In the result, the plaintiff was charged in an information sworn on June 5, 1992, with serious criminal offences. He was arrested; detained in custody for four days; and suspended from his employment as police officer. The defendants, Sullivan and Bauer, were the persons designated to prosecute the alleged offences. [10] The trial of the plaintiff commenced in May, 1993. Each of the complainants failed to identify the plaintiff as the perpetrator of the alleged offences. The trial did not proceed to conclusion because the Crown entered stay of proceedings on June 8, 1993. [11] The plaintiff then commenced this action on September 9, 1994, which is fifteen months after the stay of proceedings was entered. The statement of claim speaks of malicious prosecution, negligence, breach of Charter rights and conspiracy. The plaintiff claims general damages, special damages, punitive damages, aggravated damages, interest and costs. [12] Since the action was commenced, and before these applications were brought, several parties were removed from the proceedings. Statements of defence were filed by all remaining parties. Statements as to documents have been served and number of examinations for discovery have been conducted. The case is to be heard by jury and is scheduled to commence in some ten months. Prior to that further examinations for discovery are planned. Against that background must decide the stated issues. THE STATUTORY LIMITATION [13] The applicants submit that with the exception of claims based on malice, the action should be struck because it was not commenced within the time prescribed by The Public Officers' Protection Act, R.S.S. 1978, c. P-40. Because it is very short, reproduce the Act in its entirety. Short Title This Act may be cited as The Public Officers' Protection Act. Limitation of actions 2(1) No action, prosecution or other proceedings shall lie or be instituted against any person for an act done in pursuance or execution or intended execution of statute, or of public duty or authority, or in respect of an alleged neglect or default in the execution of statute, public duty or authority, unless it is commenced: (a) within twelve months next after the act, neglect or default complained of or, in case of continuance of injury or damage, within twelve months after it ceases; or (b) within such further time as the court or judge may allow. (2) If, in the opinion of the court, the plaintiff has not given the defendant sufficient opportunity of tendering amends before the commencement of the proceeding, the court may award to the defendant costs to be taxed as between solicitor and client. (3) sheriff, acting under writ of execution or other process, shall be deemed to be person acting in the discharge of public duty or authority within the meaning of this Act. (4) This Act does not apply to an action against registrar of land titles under The Land Titles Act. [14] It will be remembered that the Crown entered stay of proceedings before the plaintiff 's trial was concluded. This was done on June 8, 1993. The defendants say that the limitation period set out in the quoted Act began to run on that date. contrary position is taken by the plaintiff who says that the limitation period began to run one year following the entry of the stay of proceedings which would have been June 8, 1994. This position has reference to s. 579(2) of the Criminal Code, R.S.C. 1985, c. 27 (1st Supp.) s. 117 which empowers the Crown to recommence the proceedings which were stayed. The section provides as follows: (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or defendant were commenced and before judgment, direct the clerk or other proper officer of the Court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated. (2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying new information or preferring new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced. [15] The plaintiff submits that so long as the Crown had the right to recommence the proceedings he remained in jeopardy. Furthermore, it is contended that when the Crown entered the stay it had in mind the possibility that new evidence may be found inculpating the plaintiff in the criminal conduct. This being so, it is said that the Crown continued to act until the expiration of the year. [16] further position is advanced by the plaintiff. On February 11, 1994, the Crown held news conference in which there was some discussion of the plaintiff's situation. It is now contended that this conduct caused harm and injury to the plaintiff and therefore the limitation period did not commence to run until that date. [17] The statement of claim was issued on September 9, 1994. That was fifteen months after the stay of proceedings was filed on June 8, 1993. It was seven months after the news conference and three months after the one year period expired on June 8, 1994. If the news conference marks the beginning of the limitation period, then the action was commenced within the statutory period; otherwise it is beyond that period. [18] In my opinion, as general rule, the statutory limitation period created by s. 2(1)(a) of The Public Officers' Protection Act (supra) commences to run when stay of proceedings is entered pursuant to s. 579 of the Criminal Code, (supra). insert the qualification because it may happen that even though stay has been entered, actionable conduct on the part of public officer may continue. My position is based upon the judicial pronouncements found in the several decisions in Boudreault v. Barrett which were rendered between 1993 and 1999. [19] In the first decision of Boudreault v. Barrett (1993), 18 C.P.C. (3d) 227 (Alta. Q.B.), Master Waller addressed the issue of when the limitation period commences following the entry of stay of proceedings and concluded that it commenced upon the entering of the stay. At p. 232, para. 11-12, he said this. As the plaintiff's statement of claim in this matter was issued some two years and nine months after the entry of the stay the defendants' assertion is that the action is statute barred. The plaintiff on the other hand alleges that Section 579(2) of the Criminal Code should be construed to extend the limitation period to the expiry date of the directed stay. To put it another way the plaintiff says by reason of this provision of the Criminal Code the charges against him remain extant and cannot [be] regarded as having been favourably determined against him until the expiration of the stay. The Supreme Court in Canada in Casey v. Automobiles Renault Canada Ltd., 1965 CanLII 72 (SCC), [1965] S.C.R. 607 and 614, cites Salmond on Torts, 13th edition, p. 726, for the proposition that: If the prosecution has actually determined in any manner in favour of the plaintiff it matters nothing in what way this has taken place. ... What the plaintiff requires for his action is not judicial determination of his innocence but merely the absence of any judicial determination of his guilt. Thus it is enough if the prosecution has been discontinued, or if the accused has been acquitted by reason of some formal defect in the indictment, or if condition has been quashed, even if for some technical defect in the proceedings. He then concludes as follows at p. 235, para. 18: If the staying of the proceedings may be properly characterized as "temporary suspension the regular order of the proceedings in cause" can the plaintiff then argue that the limitation period should only run from the expiration of the stay? Section 579(2) of the Criminal Code allows the Crown on indictable matters to recommence prosecution on the original indictment within one year. However once the one year period has lapsed the Crown, if it wishes to proceed on an indictable matter, must do so on new indictment. The provisions of 567(2) do not in my view alter the substantive rights of the to Crown proceed with matter previously stayed but rather provide facilitated administrative machinery to reconstitute proceedings. Accordingly must conclude that for the purposes of this action the limitation period arose on November 6, 1989 when the stay was first entered. The particular indictment against the plaintiff clearly was alive during the stay period but that cannot be equated with finding that proceedings had not been terminated in favour of the plaintiff. am satisfied that the proceedings had been so terminated notwithstanding the crown's right to recommence proceedings on the indictment during the stay or upon further indictment after the stay. The question is purely question of law and there are no triable issues of fact to be resolved to determine the existence of defence to the limitation. Accordingly the plaintiff's claim is determined to be statute-barred upon Section 51 of the Limitation of Actions Act. However if am wrong in this must decide on the other grounds argued. He went on to further conclude that the action was doomed to fail and dismissed it on that secondary ground as well. [20] On appeal, reported at (1995), 39 C.P.C. (3d) 1, the Alberta Court of Appeal set aside the earlier decision. That court held that statutory limitation may afford defence, but the facts giving rise to the defence must be proved in evidence. As this had not been done, it was improper to dismiss the claim simply on the basis of the passage of time. In addition, there was no admissible evidence to establish the action was doomed to fail. [21] The matter again came before the Alberta Court of Queen's Bench when an application was brought for summary judgment dismissing the claim. The requested judgment was granted by Deyell, J. as reported at [1997] A.J. No. 403. The appeal from that decision was dismissed as reported at (1993), 1998 ABCA 232 (CanLII), 219 A.R. 67. In that decision, commencing at p. 72, para. 17, the Alberta Court of Appeal said this about commencement of limitation period following the entry of stay of proceedings. 17 This action was commenced August 19, 1992. The appellant was discharged at the conclusion of the Preliminary Inquiry on November 6, 1989 and stay of proceedings under s. 579(1) of the Code was entered on the same day. Section 579(2) permits the Crown to recommence proceedings that have been stayed within one year from the date the stay is entered without the necessity of laying new Information or preferring new indictment. 18 The appellant argues that the limitation period did not commence to run until after the expiration of the one-year period. He says the proceedings did not terminate in his favour until the period passed without the charges being resurrected. We do not agree that the limitation period was so extended. The proceedings were terminated in favour of the appellant when he was discharged and the stay was entered, that is, on November 6, 1989. Section 579(2) is merely procedural provision that permits the Crown to re-commence criminal prosecution during the period of one year following the entry of stay without the necessity of laying new Information or preferring new indictment, as the case may be. The Crown can commence fresh proceeding against an accused for the same offence after expiration of the one-year period and could have done so in this case by preferring an indictment. The appellant could have commenced this action immediately on his discharge and entry of the stay of proceedings by the Crown.  The cause of action had fully accrued and the appellant had a prima facie case. He knew then as much about the surrounding circumstances as he did when he initiated this action over years later. agree with the quoted comments and conclude that stay of proceedings starts the clock. However, that does not end the matter. [22] The applicants seek relief pursuant to Queen's Bench Rule 173(a) which provides as follows: 173 The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: (a) it discloses no reasonable cause of action or defence, as the case may be; ... They argue that should take as truthful the facts set out in the statement of claim and on the basis of those facts find that the action is statute barred. agree with the first proposition, but not with the second. [23] The statement of claim is not restricted to events prior to the entering of the stay of proceedings. More importantly, assertions have been made within the material filed which speak of subsequent conduct by at least some of the defendants. It is arguable that the limitation period was extended. To fairly determine whether that was so, there must be a hearing to determine the facts and that is best done at trial. It may be otherwise if there had been an agreed statement of facts. [24] This subject was addressed by the Saskatchewan Court of Appeal in Bloomfield v. Rosthern Union Hospital Ambulance Board et al. (1990), 1990 CanLII 7665 (SK CA), 82 Sask. R. 310. The decision of the court was given orally by Sherstobitoff J.A. and, as it was brief, reproduce it here in its entirety. This appeal is from an order made under R. 173 of the Queen's Bench Rules, which struck out statement of claim in defamation action as being barred by s. 3(1)(c) of The Limitation of Actions Act, R.S.S. 1978, c. L.-15 and therefore disclosing no cause of action. The order was made before any Statement of Defence was filed. The appeal must be allowed. The respondent concedes that the Statement of Claim, on its face, discloses cause of action. bar to proceeding with the action which arises from The Limitation of Actions Act must be raised by way of Statement of Defence. Such defence does not nullify cause of action, but is merely bar to proceeding with the action. The application of The Limitation of Acts Act may depend on disputed facts such as when the cause of action arose, or when the limitation period began to run. After the Act has been raised by the pleadings, its effect may be dealt with by an application for determination of point of law under Queen's Bench Rule 188, provided that the other requirements for such an application, such as agreement as to all relevant facts, have been met. This procedure has been followed in Saskatchewan as well as other jurisdictions: Bank of Montreal v. Mainland Crystal Glass Ltd. (1985), 1985 CanLII 2533 (SK CA), 46 Sask. R. 102 (C.A.); Townsend v. Worthington (1987), 1987 CanLII 4790 (SK QB), 57 Sask. R. 203 (Q.B.); Pollakis v. Corner et al. (1975), 1975 CanLII 597 (ON SC), O.R. (2d) 691 (H.C.); Ronex Properties Ltd. v. John Laing Construction Ltd. and others, [1982] All E.R. 961 (C.A.). The appeal is therefore allowed with costs under double Column V, and the (sic) other below is set aside. [25] While hold an opinion about when the time starts to run vis-a-vis limitation period following the entry of stay of proceedings, that opinion may not be valid in all situations. In the instant case, cannot be certain that the limitation period was not extended. This being so, should act as suggested by the Court of Appeal. Accordingly, the application to dismiss the plaintiff's claim as being statute barred should be dismissed. EXTENSION OF THE STATUTORY LIMITATION [26] As set out earlier, s. 2(1) of The Public Officers' Protection Act (supra) requires that an action be commenced within twelve months or "(b) within such further time as the court or judge may allow." The plaintiff now applies for an order granting such further time, the order to be retroactive to September 9, 1994. [27] The defendants oppose the application and argue that such an order is prohibited by law because second limitation period has expired. Here they refer to the two year and six year limitation period prescribed in s.s. 3(1)(d) and 3(1)(j) of The Limitation of Actions Act, R.S.S. 1978, c. L-15. In support of this position, have been referred to the cases of Holst v. Grenier et al. (1987), 1987 CanLII 4512 (SK QB), 65 Sask. R. 257 (Q.B.); Mitchell et al. v. Cabri Union Hospital Board et al. (1989), 1989 CanLII 4695 (SK QB), 79 Sask. R. 81 (Q.B.); Tokohopie and Lonechild v. Littlechief et al. (1992), 1992 CanLII 8157 (SK QB), 101 Sask. R. 127 (Q.B.); and First Choice Capital Fund Ltd. v. First Canadian Capital Corporation, 1998 CanLII 13531 (SK QB), [1998] W.W.R. 362, (Sask. Q.B.). [28] The cited cases require some review and comment. In Holst v. Grenier et al. (supra) the plaintiff commenced an action in Saskatchewan in respect to injuries sustained in motor vehicle accident on an Alberta highway. The driver of the other vehicle was Saskatchewan resident. The action was commenced within the statutory period. However, an application to strike out the claim was allowed because the plaintiff had not obtained leave to commence the action. [29] In that case, two statutory provisions were applicable. Section 88 of The Highway Traffic Act, R.S.S., 1978, c. H-3.1, imposed one year limitation period for bringing the action. Section 54 of The Queen's Bench Act, R.S.S., 1978, c. Q-1, provided as follows. Notwithstanding anything in s. 53, no action shall be brought in Saskatchewan for damages in respect of tort committed outside the province, except by special leave of the court or judge. When the application was brought to strike the claim, the plaintiff sought an order nunc pro tunc granting leave to bring the action. In refusing the requested order, Mr. Justice Halvorson said this at p. 259. [10] The fact of an intervening limitation period is an insurmountable obstacle in the way of making nunc pro tunc order. That was the position adopted by the court in Krueger and in G.B. Wood. These decisions are based on the principle that if the defendant will be prejudiced by late amendment, it will not be granted. In Tokohopie and Lonechild v. Littlechief et al. (supra) the facts were identical and resulted in the same disposition. [30] In Mitchell et al. v. Cabri Union Hospital Board et al. (supra) the plaintiff had commenced an action within the limitation period as provided in one statute. However, the action was not commenced within the limitation period as provided in two other statutes, including The Fatal Accidents Act, R.S.S., 1978, c. F-11. It was held that the action must be dismissed as the two limitation periods had expired. The fact that the action had been commenced within the one limitation period did not remove the necessity to comply with the other two limitation periods, particularly when the cause of action arose under The Fatal Accidents Act (supra). [31] The final case is First Choice Capital Fund Ltd. v. First Canadian Capital Corp. (supra). In that instance the plaintiffs brought an action which included torts committed outside Saskatchewan. No leave was obtained as required by s. 54 of The Queen's Bench Act (supra). The plaintiffs applied for such leave, nunc pro tunc, and such an order was granted despite an intervening limitation period. At p. 371, Mr. Justice Baynton said this. 25 am of the view that it is time to reconsider this "intervening limitation" fetter that has been placed on the discretion of the court. But too feel obligated to follow the previous decisions. Until the intervening limitation principle has been further considered by the Court of Appeal, it should be narrowly construed and confined to the facts of the cases that established it. Cases like Holst and Tokohopie involved personal injury torts incurred in automobile accidents. In each of those cases it was clear and undisputed that the one-year limitation period had expired before the application for leave was brought. Neither case involved multiple torts, multiple defendants, nor prior defective application for leave. Nor was any case cited to me which involved such factors. 26 The circumstances of the case before me however are quite different from those involved in Holst and Tokohopie. It involves multiple torts and defendants (and in particular multiple torts against Deloitte and Blewett as well as other causes of action such as beaches of contract). The alleged torts include professional negligence, breaches of duties, misrepresentation, and the like. The causes of action are alleged to have taken place between various dates in the years 1988 and 1994. It accordingly will not be established until trial when any particular limitation period expires. As well, even though limitation period may have expired respecting one alleged tort, those respecting other alleged torts may not have expired. At this point, an intervening limitation period is nothing more than possibility. [32] In this case before me, see the matter differently than counsel for the defendants and, in my opinion, the cases cited have no application. My reasoning is as follows. [33] Limitation periods are substantive in character as opposed to procedural. See Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] S.C.R. 1022 and Stewart v. Stewart, 1996 CanLII 465 (BC SC), [1996] 10 W.W.R. 350 (B.C.S.C.). As such, they provide defences which should not be defeated by retroactive orders. That is what understand was decided in the cases of Holst and Tokohopie. What was said in the Mitchell case was, in sense, to the same effect; although the circumstances were much different. [34] However, we must not lose sight of the situation in this case. Here the governing legislation is s. of The Public Officers' Protection Act and it is there that one must address any limitation period. Contrary to the submission of counsel for the defendants, do not see The Limitation of Actions Act as superseding or replacing s. of The Public Officers' Protection Act after the expiration of one year following the actionable conduct. Section 3(2) of The Limitation of Actions Act reads: 3(2) Nothing in this section extends to an action where the time for bringing the action is by statute specially limited. On behalf of the defendants that section is given rather sweeping interpretation and can do no better than to repeat the submission as contained in the written brief. 25. However once the 12 months prescribed by The Public Officers' Protection Act has expired, the "time for bringing action" is no longer by "statute specially limited" within the meaning of subsection 3(2). The result is that after the time to bring an action as matter of right under The Public Officers' Protection Act has expired subsection 3(1) of The Limitation of Actions Act becomes applicable and once the appropriate time limits prescribed there have expired the court has no authority to allow the Plaintiff further time to commence his action. If that argument is correct and s. 3(1) of The Limitation of Actions Act becomes the governing legislation, then the within action may well have been commenced within that statutory period which is two years. With respect, do not believe that to be so. [35] In my opinion, the intent and purpose of s. 3(2) of The Limitation of Actions Act (supra) is to avoid conflict with other legislation and to remove the application of that Act from those situations specifically dealt with by other legislation. The general limitation must give way to the specific limitation. See Worsley v. Hamilton and Hamilton (1960), 1960 CanLII 224 (SK CA), 33 W.W.R. 23 (Sask. C.A.); Elliott v. Saskatoon (City), University Hospital Board and Ward (1986), 1985 CanLII 2905 (SK QB), 48 Sask. R. 142; and Saskatchewan Nowsco Well Service Ltd. et al. (1990), 1989 CanLII 4586 (SK QB), 75 Sask. R. 285 (Q.B.). [36] Accordingly, hold that the only limitation period which has application in this case is s. 2(1) of The Public Officers' Protection Act (supra). While that section creates statutory limitation period, it also creates the possibility to have the period extended. In other words, the limitation is not necessarily absolute. Therein lies the significant difference between this case and the cases of Holst, Tokohopie, Mitchell and First Choice Capital Fund Ltd. (supra). In all of those instances the limitation period was fixed and there was no provision for extending the time. In this case before me, there is statutory authority to do so. [37] Two questions remain. Should the limitation period be extended and, if so, should the extension be retroactive? have concluded that both questions should be answered in the affirmative. [38] The only case which deals specifically with an application to extend the time is In Re The Public Officers' Protection Act, Landru v. Seymour, 1924 CanLII 223 (SK QB), [1925] W.W.R. 29 (K.B.). As result, have sought guidance in decisions which dealt with extensions of the limitation period in s. 15 of The Hospital Standards Act, R.S.S. 1978, c. H-10. These include Konotopski v. Royal Canadian Mounted Police (2000), 2000 SKQB 22 (CanLII), 190 Sask. R. 103 (Q.B.); Peyson v. Vuksic (1994), 1994 CanLII 5002 (SK QB), 124 Sask. R. 251 (Q.B.); Bighead v. Holy Family Hospital Prince Albert et al. (1991), 1991 CanLII 7876 (SK QB), 98 Sask. R. 262 (Q.B.); and Desormeau v. Holy Family Hospital, Prince Albert (1989), 1989 CanLII 4724 (SK CA), 76 Sask R. 241 (C.A.). [39] Depending on when the limitation period expired following the filing of the stay of proceedings, the plaintiff commenced his action either eighteen months or three months beyond the permitted period. For the purpose of my deliberations, have taken the longer period as that renders the delay more serious. The main factors which must take into account are whether the plaintiff has demonstrated prima facie case; whether there is an adequate explanation for the delay; and whether the defendants will suffer prejudice. [40] In support of his application, the plaintiff has filed very lengthy affidavit setting out the facts of his claim as he sees it. He has demonstrated a prima facie cause of action and I need say no more about that. [41] Within that same affidavit he speaks about why he did not bring his action in timely way. He discloses how the trial and the events leading up to it had an adverse effect on him emotionally and mentally, even to the extent of major episodes of depression. Those events had negative impact on the whole of his life. All of that remained with him even after the stay of proceedings was entered. While in that state he was reluctant to commence an action for fear it would trigger recommencement of the criminal proceeding. cannot say that this fear was justified, but am satisfied that it was real. Even after the expiration of the waiting period, which was June 8, 1994, the plaintiff's emotional state appears to have been far from ideal and this affected his ability to act in his best interests. When I consider the condition and state of the plaintiff at the relevant time, together with all of the presenting circumstances, a reasonable explanation for the delay has been put forward. [42] Most importantly, I am satisfied that no prejudice will flow to the defendants. They have all actively participated in this litigation from the outset, some six years ago. Statements as to documents have been exchanged. Examinations for discovery have been conducted over several weeks. Throughout all of that no action was taken in respect to the limitation period. [43] When consider all the circumstances, am convinced that had the platiniff applied for an extension of time in September, 1994, that relief would have been granted to him. am equally convinced that it should be granted now. [44] When I reflect upon the time, effort and money expended in the pursuit of this action by all parties over the past six years, I am convinced that the only reasonable course is to grant a retroactive order. The alternative of requiring that the action be commenced anew simply is not appropriate. [45] There is authority for the proposition that orders of this court may be made retroactive. In R. v. Fenrich (1985), 1985 CanLII 2814 (SK QB), 42 Sask. R. 117 (Q.B.), Mr. Justice Armstrong said this at p. 126, para. 48, of the report. In the absence of some specific restriction on the power of the court, the court has inherently the right to make an order nunc pro tunc. This statement was adopted in Shannon v. Topp (1986), 1986 CanLII 2946 (SK QB), 44 Sask. R. 100 (Q.B.). The right was also recognized in Holst v. Grenier et al. (supra) and exercised in First Choice Capital Fund Ltd. v. First Canadian Capital Corp. (supra) and Martyn v. Connelly et al. (unreported decision, December 16, 1997; Q.B.G. 499/96 J.C. R.) and (1998), 1998 CanLII 13703 (SK QB), 171 Sask R. 70 (Q.B.). In my opinion, the power should be exercised in this case. [46] In the statement of claim, in paragraphs 41(A), 45, 46, 46A, 47 and 48, it is alleged that the defendants, Quinney, Sullivan, Bauer, McGillivray and Johnston, are liable in negligence. Those parties seek to have the particular pleadings struck on the ground that they enjoy an immunity absent an allegation of malice or bad faith. In the statement of claim it is stated that at all relevant times the first three were Crown Attorneys and the other two were police officers. For the purpose of this application those assertions are taken as true. [47] In response, the plaintiff submits that paragraph 45 contains what amounts to an allegation of something more than mere negligence. In fact, it contains an allegation of gross negligence and significant departure ".... from accepted standards of fairness and impartiality." [48] These allegations cannot save the impugned pleadings as to the Crown Attorneys. They do not raise the issue of moral turpitude which is implicit in malice, bad faith or improper purpose. Absent such an allegation the pleadings disclose no cause of action and should be struck as to the Crown Attorneys. See: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] S.C.R. 170; Munro v. Canada (1992), 1992 CanLII 7423 (ON SC), 98 D.L.R. (4th) 662 (Ont. Gen. Div.); and Milgaard v. Kujawa et al. (1994), 1994 CanLII 4592 (SK CA), 123 Sask. R. 164 (C.A.). [49] As to the police officers it is otherwise. They rely upon s. 10 of The Police Act, 1990, S.S. 1990-91, c. P-15.01, and Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238 (H.L.). I read the statutory provision as providing immunity to the Saskatchewan Police Commission and people engaged in its work. It does not extend protection to police officers in general. [50] As to the cited case, prefer to follow the decisions in Beckstead v. Ottawa (City) (1997), 1997 CanLII 1583 (ON CA), 155 D.L.R. (4th) 382 (Ont. C.A.) and Reynen v.Canada (1995), 184 N.R. 350 (Fed. C.A.). In the first case it was held that police officer could be held liable in negligence. In the second case the court held that claim in negligence against police officer and customs officer should not be struck on motion. adopt that same position and refuse to strike such pleadings in respect to the police officers. GOVERNMENT OF SASKATCHEWAN [51] At the outset it is noted that the Government excepts from its application the claim grounded in the Charter of Rights. At the same time, the plaintiff concedes that the Government enjoys an immunity in respect to the claim for malicious prosecution. [52] In determining the Government's immunity, one must have reference to The Proceedings Against The Crown Act, S.S. c. P-27, and particularly s. which, in part, provides as follows. 5(1) Subject to this Act, and notwithstanding section of The Interpretation Act, the Crown is subject to all those liabilities in tort in which, if it were person of full age and capacity, it would be subject: (a) in respect of tort committed by any of its officers or agents; (6) No proceedings lie against the Crown under this section in respect of anything done or omitted to be done by person while discharging or purporting to discharge; (a) responsibilities of judicial nature vested in him; or (b) responsibilities that he has in connection with the execution of judicial process. section identical to s. 5(6) is contained in the equivalent legislation in Ontario and was addressed by Mr. Justice McIntyre in Nelles v. Ontario (supra) commencing at p. 204. Any consideration of Crown liability must now be based upon the Act and do not find it necessary for the purposes of this case to consider the common law position respecting Crown immunity. The purpose of the Act, clearly discernible from its form and structure, was to remove Crown immunities and place the Crown upon the same footing as any other person before the courts, save for the exceptions which are set out in the Act. The effective sections for this purpose are ss. and 5. Section 2(2)(d) was relied upon by the Crown. It provides: (2) Nothing in this Act (d) subjects the Crown to proceedings under this Act in respect of anything done in the due enforcement of the criminal law or of the penal provisions of any Act of the Legislature; It may be argued that commencing and conducting proceedings with malice against the object of the proceedings could not be considered as the "due" enforcement of the criminal law. But any opening in the wall of immunity found by the Court of Appeal would be, in my view, effectively closed by s. 5(6) of the Act, which provides: (6) No proceedings lie against the Crown under this section in respect of anything done or omitted to be done by person while discharging or purporting to discharge responsibilities of judicial nature vested in him or responsibilities that he has in connection with the execution of judicial process. Section expresses the general rule which subjects the Crown to all liabilities in tort to which, if it were person of full age and capacity, it would be subject. Subsections (2) to (5) provide interpretative guides while subs. (6), excepts from the general rule Crown liability "in respect of anything done or omitted to be done by person, while discharging or purporting to discharge responsibilities of judicial nature vested in him or responsibilities that he has in connection with the execution of the judicial process." The claim asserted here depends upon the actions of the Crown Attorneys and the Attorney General, specifically the decision to prosecute the appellant for murder. The decision to prosecute is judicial decision and is obviously vested in the Attorney General and executed on his behalf by his agents, the Crown Attorneys: ... ... The Crown Attorneys and the Attorney General in deciding to prosecute the appellant would therefore come within s. 5(6) of the Act, and the Crown would have its statutory immunity despite any uncertainty which might arise because of an argument under s. 2(2)(d) of the Act, based on the concept of "due"enforcement of the criminal law. The Attorney General and his agents, whatever the motives underlying their conduct, were surely, in the words of s. 5(6), "discharging or purporting" to discharge responsibilities of judicial nature. In my view, the Crown is rendered immune by the express terms of s. 5(6) of the Act from liability to the appellant. In the majority decision, Mr. Justice Lamer (as he then was), at p. 177 of the report, agrees with the above conclusion. That conclusion was adopted by the Ontario Divisional Court in Hawley v. Bapoo (2000), 2000 CanLII 29050 (ON SCDC), 187 D.L.R. (4th) 533. [53] As I read the Act and the decisions, I do not conclude that the Crown enjoys an absolute immunity. Rather, it must bring itself within s. 5(6)(a) or (b). Whether that is achieved will depend on the particular facts. [54] As to the claim for malicious prosecution, immunity does exist. In the Nelles case the learned justice said that the decision to prosecute, "... whatever the motives ..." falls within s. 5(6) and immunity exists in respect to that. [55] As for the claims in negligence, conclude that immunity exists. Essentially, even if malice is present, the situation would not be different than the decision to prosecute. In respect to that decision, motives are not relevant. If the decision to prosecute is protected, then the conduct carrying out the decision should be afforded the same protection. In any event, having struck the claim for negligence as against the Crown Attorneys, it can hardly be maintained against their employer, the Government of Saskatchewan. [56] see it as being somewhat different as to the allegation of conspiracy. do not know the underlying facts. It may be that this alleged conduct would not fall within s. 5(6) and no immunity may exist. Therefore, this claim should be permitted to proceed along with the claim based on the Charter of Rights. [57] At the hearing, counsel for the plaintiff suggested that leave be granted to amend the pleadings. No advance notice, so far as I know, was given to the other parties. Absent such notice, I am not prepared to entertain the request. [58] Success has been mixed. However, see it as having been useful to have the various issues addressed in formal proceeding well in advance of the trial. In these circumstances, have decided that it is appropriate to award no costs. [59] In the result, it is ordered as follows: (1) that the applications by the several defendants to have this action dismissed as having been commenced beyond the statutory limitation period are dismissed; (2) that the application by the defendants, McGillivray and Johnston, to have the claim in negligence struck as against them is dismissed; (3) that the application by the defendants, Quinney, Sullivan and Bauer, to have the claim in negligence struck as against them is allowed and paragraphs 45, 46, 46A, 47 and 48 of the statement of claim are struck, but without prejudice to the plaintiff to apply to amend the pleadings; (4) that the application by the Government of Saskatchewan is granted in part such that the claim is dismissed against it except for the claims alleging conspiracy and breach of Charter rights; (5) that the application of the plaintiff is allowed and it is ordered that the time to bring the within action is extended to September 10, 1994, said order to be retroactive to September 8, 1994; and (6) that there will be no costs of these proceedings.
FIAT. The infant complainants, who alleged sexual assault and other offences, failed to identify the plaintiff, a former police officer, and a stay of proceedings was entered in 1993.  The plaintiff commenced an action in 1994 for malicious prosecution, negligence, conspiracy and breach of Charter rights and claimed general, specific, punitive and aggravated damages, interest and costs.  Two motions to dismiss the plaintiff's claim were brought under Queen's Bench Rules 173(a) and 188, plus Rule 173(e) in the motion brought by the two chiefs of police. The plaintiff sought several orders in a third motion, two of which were granted summarily; one was adjourned sine die. The applicants submitted the action should be struck, except for claims based on malice, because it was not commenced within the time prescribed by the Public Officers' Protection Act (POPA). Referring to the 2 year and 6 year limitation periods prescribed by s.3(1)(d) and (j) of the Limitations of Actions Act (LAA), the applicants argued a retroactive order for further time was prohibited because a second limitation period had expired. The substantive issues were whether the plaintiff's claim was barred by statutory limitation periods; whether any limitation period should be extended nunc pro tunc; whether a portion of the plaintiff's claim failed to disclose a cause of action against five of the defendants because there was no allegation of malice; whether the plaintiff's claim in tort against the Government of Saskatchewan was barred by statute. HELD: 1)The time to bring the action was extended to September 10, 1994, retroactive to September 8, 1994. The applications to have the action dismissed as having been commenced beyond the statutory limitation period were dismissed. Whether the limitation period was extended was best determined at trial. It was not certain the limitation period was not extended as the statement of claim alluded to subsequent conduct by some defendants. As a general rule, the statutory limitation period created by s.2(1)(a) of the POPA commences to run when a stay of proceedings is entered pursuant to s.579 of the Criminal Code. Although a stay has been entered, actionable conduct of a public officer may continue. The only limitation period applicable in this case is s.2(1) of the POPA. Limitation periods are substantive in character, as opposed to procedural. The LAA does not supersede or replace s.2 of the POPA. The intent and purpose of the LAA is to avoid conflict with other legislation by removing its application from situations specifically dealt with by other legislation. The limitation in the POPA is not necessarily absolute. 2)The application by the chiefs of police to strike the claim in negligence was dismissed. The position in Beckstead v. Ottawa and Reynen v. Canada was adopted. The immunity in s.10 of the Police Act does not extend protection to police officers in general. 3)The claim in negligence against the other defendants was struck without prejudice to amend pleadings. The pleadings as to the Crown Attorneys were struck. They could not be saved, absent an allegation of moral turpitude implicit in malice, bad faith or improper purpose. 4)The Government's application was granted in part, such that all the claims were dismissed except those alleging conspiracy and Charter breaches. The Crown does not enjoy absolute immunity and must bring itself within s.5(6)(a) or (b) of the Proceedings Against the Crown Act which will depend on the particular facts. Immunity does exist for malicious prosecution and negligence. If the decision to prosecute is protected, then the conduct in carrying out the decision should be afforded the same protection. A claim for negligence could not be maintained against the government as employer where it was struck against the Crown Attorneys. Leave to amend pleadings was not entertained as the plaintiff failed to give advance notice.  5)The two applications based on Rule 188 providing for a determination of a point of law were dismissed as there was a factual component. An order should not be granted under Rule 188 in the absence of an agreed statement of fact. 6)The plaintiff demonstrated a prima facie cause of action; provided a reasonable explanation for the delay given the circumstances and his emotional and mental state at the time; and no prejudice will flow to the defendants as they had all actively participated in the litigation from the outset. The only reasonable course was to grant a retroactive order given the time, effort and money already expended. It was not appropriate to require the action be commenced anew.  7)No costs.