The Limitation Defence in the Public Authorities Context: A Tool for Disposing of Claims Summarily

The civic functions performed by many public authorities put their employees in routine contact with members of the public. As can be expected, their public-facing nature will consequently make these public bodies and their employees the target of some frivolous litigation. The finite time and financial resources available to address these nuisance claims are an unfortunate reality that strains the legal budgets of public authorities and acts as a drain on the use of limited court resources. Addressing and disposing of such claims in a time and cost-sensitive manner is in the best interest of the public authority so that these organizations and their legal counsel can focus their time and resources on more pressing legal matters.

While every claim is subject to the general two-year limitation period in the Limitation Act, local government defendants have access to additional, shorter statutory periods that apply in certain circumstances. Legal counsel acting in the defence of public authorities should be familiar with the various statutory limitation periods that apply to public bodies and how these can be used to promptly dispose of court actions or threats of litigation. When a plaintiff or their counsel make the fatal error of missing a statutory limitation period it will almost certainly act as a bar to their claim and insulate the public authority from liability and further litigation.

On November 3, 2020 reasons were released in the Supreme Court of British Columbia case Nungwana v. Canada (Attorney General), 2020 BCSC 1634, which provides a clear example of when the limitation defence can be utilized to promptly dispose of a claim made against a public authority. This decision also addressed the unique limitation period under s. 106 (1) of the Customs Act, R.S.C., 1985, c. 1 and whether the plaintiffs’ failure to initiate the court action within that three-month limitation period was excusable in instances where (1) Charter of Rights and Freedoms breaches are alleged, and (2) government employees are alleged to have taken actions that were outside the performance of their job duties in bad faith.

The decision is illustrative of the reasoning the courts will employ when evaluating local government-specific statutory limitation periods, such as those found in sections 735 and 736 of the Local Government Act, RSBC 2015, c. 1.

Facts in Nungwana

The claim in Nungwana arose from interactions of the plaintiffs with the Canada Border Service Agency (“CBSA”) Border Services Officers (“BSO”) upon their arrival at Vancouver International Airport on September 22, 2016 and March 6, 2018. One of the plaintiffs was detained by the BSO for the purposes of conducting a search while the other was referred to secondary screening. On these occasions, the plaintiffs were ultimately allowed to enter Canada, but the plaintiffs alleged that the BSO engaged in unreasonable and malicious bad faith conduct intending to injure them and that such conduct included racial profiling and Charter violations.

Ms. Nungwana claimed damages relating to trauma, depression and other psychological effects, loss of income, and aggravated and punitive damages, while Mr. Nkomo sought a letter of apology from the CBSA.

Law of Entry to Canada

The authority of BSOs to question, search, and detain individuals entering into Canada is found in the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

Section 18 of the Immigration and Refugee Protection Act provides that all persons entering into Canada must appear for an examination to determine whether that individual may enter Canada.

A person’s Charter rights are not engaged by routine searches or questioning in the context of border crossings. Persons at border crossings have reduced expectations of privacy and are deemed to expect that BSOs may ask them questions about their travels, search their belongings, or interfere with their freedom of movement.

Summary Trial Application

A successful application for summary trial under Rule 9-7 of the Supreme Court Civil Rules requires that the Court be able to find the facts necessary to decide the issue of facts or law, and it must not be unjust to decide the matter on a summary trial: Brissette v. Cactus Club Cabaret Ltd., 2017 BCCA 200 at paras. 19-20.

It was the defendants’ position that the claims of the plaintiffs were suitable for summary trial given the limitation period barring Ms. Nungwana’s claim and the Mr. Nkomo’s failure to plead facts that supported a cause of action. The Court agreed.

The Limitation Period

Section 106 (1) of the Customs Act, R.S.C. 1985, c.1 provides for the following statutory limitation period:

Limitation of action against officer or person assisting

106 (1) No action or judicial proceeding shall be commenced against an officer for anything done in the performance of his duties under this or any other Act of Parliament or a person called on to assist an officer in the performance of such duties more than three months after the time when the cause of action or the subject-matter of the proceeding arose.”

The Court noted that Coffey v Fraser Valley (Regional District), 2018 BCSC 959 provides a framework for determining if the application of the three-month limitation in s. 106(1) of the Customs Act would “operate unfairly or deprive the plaintiff of a just remedy”.

The court acknowledged that while three months is an unusually short limitation period, its rationale arises from the activities of BSOs in carrying out their duties which expose them to thousands of individuals entering Canada. The three-month limitation period, in part, recognizes that volume and the resulting issues of retention of evidence, its preservation, and the recollection of officers faced with the large number of interactions.

Considering the policy rationale for the limitation period and the facts of the present case, the Court ultimately held that Ms. Nungwana had the necessary information, knowledge, and legal assistance to commence her action within the prescribed three-month limitation period, which the Court elaborated upon as follows:

“It is clear that Ms. Nungwana was aware of the basis for her claim shortly after the incident occurred. There is no real issue of discoverability. This is evidenced by her complaint to the CBSA submitted on October 4, 2016, less than two weeks after her detention. The complaint set out her claim in detail in four consecutive emails. On October 6, 2017 Superintendent Wendy Liang of the CBSA spoke to Ms. Nungwana by phone regarding her complaint. In evidence are a detailed summary of the call prepared by Ms. Liang and a transcript of those portions of the call recorded by Ms. Nungwana. As in the emails, the basis of the cause of action is described in detail in the transcript of that call.

The evidence also establishes that Ms. Nungwana had counsel well within three months of the date of the incident on September 22-23, 2016. In a letter dated October 24, 2016, she provided authorization to the CBSA allowing the release of her personal information to her legal counsel. In a letter dated December 12, 2016, her legal counsel wrote to CBSA setting out in detail the particulars of Ms. Nungwana’s cause of action. The letter also demanded information from the CBSA. In the letter, counsel stated: “It is Ms. Nungwana’s claim that the acts of these officer [sic] in detaining her for over 12 hours without reasonable or probable cause and without due process constitutes a breach of her fundamental rights for which she will be seeking damages which may involve legal recourse.”

Allegations of Bad Faith

In addressing whether the statutory limitation period applied in instances where the CBSA officers allegedly acted outside of their authority and in bad faith, the Court held that this issue did not require the Court to resolve factual disputes but only to determine whether the BSOs were acting in the performance of their duties when they detained the plaintiff. The inclusion of conflicting affidavit evidence and issues of credibility did not prevent the Court from disposing of the matter summarily.

The Court held that the phrase “anything done in the performance of his duties” in s. 106 (1) of the Customs Act applies to claims of wrongdoing unless there is clear evidence that the BSOs acted unlawfully, maliciously, for an improper purpose, or with an intention to cause harm to the plaintiff.

The Court concluded that the allegations that the BSOs were motivated by malice, bad faith, or an intention to harm the plaintiffs for an improper purpose was made without credible or objective evidence and that the claim did not provide sufficient particulars; the claim lacked evidentiary substance and was speculative. Further, the evidence of the CBSA and the documentary evidence contradicted the allegations that were raised by the plaintiffs.

Takeaways and Local Government Limitation Periods

It is in the best interest of a public authority to have a court action disposed of expeditiously when it is patently obvious that the claim has little merit. This allows the public authority to avoid drawn out litigation and the further incursion of legal costs. The Nungwana decision provides a helpful reminder to public bodies that one of the many defences in their toolkit can at times be found in the statutory regimes creating and regulating the public authority. This legislation often contains limitation periods that differ from those found in the various provincial limitation acts. When plaintiffs and their counsel fail to bring a claim within the statutory limitation period this can prove fatal to their claim.

Similar to the Customs Act., s. 735 of the Local Government Act, RSBC 2015 c. 1. prescribes a six-month limitation period for claims made against municipalities and regional districts alleging some unlawful activity. This six-month limitation period is further buffered by s. 736 Local Government Act, which requires a complainant to provide notice in writing to a local government within two months of damage having occurred. While the courts have limited the application of these local government limitation periods, and have offered exceptions to certain claimants, local governments and their legal counsel should be mindful of these time periods on their initial assessment of all legal claims.

Given the high volume of litigation that local governments and other public bodies experience, disposing of meritless claims in a summary fashion through a limitation defence, when available, serves as an effective means of resolving litigation at an early stage.