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Page 4 January 8, 2018 • Law Times www.lawtimesnews.com and confuses the elements of different torts. "An element of negligent in- vestigation and malicious pros- ecution is that the criminal pros- ecution has to end in the plain- tiff 's favour for those two causes of action," says Rafal Szymanski, a partner with Blaney McMur- try LLP, who was not involved in the case and represents police in civil claims. "That element is not present in assault and battery claims. So it's quite problematic that the majority conf lates the two." Szymanski says the decision will take away a limitation per- iod argument from police, re- sulting in more of these types of claims making it further in the process and potentially to trial, rather than being summarily dismissed. Plaintiffs will also have a lot more time to commence their battery claims against the police, he adds. Kevin Egan, the lawyer who represented Winmill in the mat- ter, however, says he does not think the decision will result in an "opening of the f loodgates" of battery claims against police, as there has to be an inextricable link of the facts between claims for negligent investigation and battery. He says it would not make sense for his client to be able to proceed with his claim for negli- gent investigation and litigate all of the factual issues that are also in the tort of battery but not be able to collect damages for the battery claim. "When the facts are so inter- twined that you can't really de- cide one without the other, the limitation period should go with the discoverability of the neg- ligent investigation," says Egan, a partner with McKenzie Lake Lawyers LLP. He adds that he does not think police defence lawyers should be panicked by the deci- sion. The majority decision found the discoverability date for Win- mill's battery claim was the same as that for his claim for negligent investigation — the date of his acquittal in February 2016. Writing for the majority, Jus- tice James MacPherson said it made sense for Winmill to put off deciding whether to make a battery claim against the police until the underlying criminal proceedings were resolved. "The criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are, in reality, two sides of the same coin or mirror images of each other," MacPher- son said in the decision, which was supported by Justice Kath- ryn Feldman. MacPherson added that the outcome of the criminal pro- ceeding would be a "crucial, boarding on determinative, factor," in Winmill's decision of whether to bring a claim. In a dissent, Justice Grant Huscroft said the appropriate date for the limitation period to start running was the date of the alleged assault, as Winmill then knew the injury and who allegedly caused it. Huscroft said that a battery claim does not depend on the completion of the criminal pro- ceedings, as the negligent inves- tigation claim does, as it is a sep- arate tort with a different limita- tion period that applies. "A claimant cannot delay the start of a limitation period for one tort claim by tying it to another tort claim with a later limitation date, even where the claims arise out of common cir- cumstances," Huscroft wrote in his dissent. The dissenting judge con- cluded that Winmill decided not to bring his battery claim until after the criminal proceedings were concluded for tactical rea- sons. Szymanski says he expects the police will seek leave to ap- peal the decision from the Su- preme Court of Canada. David Thompson, the lawyer who represented the police in the case, declined to comment on the decision. LT versely affect lawyers and other professionals as originally an- nounced in July, as opposed to non-professional corporations, where there are somewhat more liberal rules available now." Lawyers say the revised changes will also likely compli- cate what is already a convoluted system and create backlogs in the tax courts and Canada Rev- enue Agency. Tax lawyer Jeff Kirshen, a founding partner with Rosen Kirshen Tax Law, says the new rules around income sprinkling will likely spur many disputes at the CRA over who qualifies for the exemptions. "I think it's going to create un- necessary havoc," Kirshen says. "It's going to slow down the CRA to a crawl." When it comes to passive in- come, the federal government's revised proposal will allow for up to $50,000 in passive income a year before higher tax rates will kick in. Tax lawyers say the changes to passive investment rules could cause an entrepreneurial chill on lawyers, meaning that fewer practitioners will take risks to leave cushy jobs at larger firms to start their own. Kirshen says it will not be beneficial for lawyers to take that risk with the changes, which he says will implement "punitive rates for success." The federal government has said the new proposals will af- fect only 45,000 small business- es, which it says is less than three per cent of the country's 1.8 mil- lion private corporations. The Parliamentary Budget Officer has issued a report sup- porting that claim. The report also found that, after 20 years, the passive income proposals could bring in as much as $6 bil- lion a year for federal coffers. At the end of the summer, the Canadian Bar Association joined a group of more than 70 business organizations — the Coalition for Small Business Tax Fairness — that has called on the govern- ment to scrap the proposals. The coalition has slammed the government for holding a consultation period on the pro- posals that only lasted from July 18 when the proposals were an- nounced until Oct. 2. When Morneau released the draft legislation, the coalition responded by calling on the gov- ernment to take more time to explore the changes before im- plementing them. The new rules took effect Jan. 1, 2018. Rotf leisch says the original consultation should have been longer and the government should have held a second round of consultations after the draft legislation was released. "They should have provided a new consultation period, rather than giving you two weeks and bang, it's a fait-accompli," says Rotf leisch. The coalition said the income sprinkling rules would make business owners cut through "burdensome interpretive red tape" and urged the government to create a blanket exemption for spouses. The CBA, which did not pro- vide comment before deadline, faced some backlash for not consulting broadly with its own membership before jumping into the fight. Some members went as far as saying they would cancel their memberships in protest. More than 180 lawyers signed a petition criticizing the CBA's stance in favour of Morneau's tax proposals. The petition said the reforms would bring more fairness to the Income Tax Act. LT Continued from page 1 New rules could create 'unnecessary havoc' Decision marks a shift Continued from page 1 NEWS NEWS NEWS ONTARIO LAWYER'S PHONE BOOK 2018 Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. 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