COURT OF APPEAL FOR ONTARIO
Huscroft, Nordheimer and Sossin JJ.A.
BETWEEN
Ken Street
Plaintiff (Appellant)
and
Toronto Police Services Board, Constable Matthew Ellis and Constable David Purvis
Defendants (Respondents)
Ken Street, acting in person
Douglas O. Smith, for the respondents
Heard: June 20, 2022
On appeal from the judgment of Justice Victoria R. Chiappetta of the Superior Court of Justice, dated November 8, 2018, with reasons reported at 2018 ONSC 4290.
REASONS FOR DECISION
1Mr. Street appeals from the judgment of the trial judge that dismissed his action against the respondents. At the conclusion of the hearing, we dismissed the appeal for reasons to follow. We now provide our reasons.
2The claim arises out of the arrest of the appellant by the two respondent officers on charges of assault, assault with a weapon, and assault with intent to resist arrest. The trial judge gave careful and detailed reasons for her conclusion that the appellant’s claim had to be dismissed. In particular, the trial judge accepted the evidence elicited on behalf of the respondents and rejected the appellant’s evidence.
3Given the factual findings made by the trial judge, which are entitled to deference from this court, the conclusion that the appellant’s claim had to be dismissed is unassailable. There is no factual foundation on which a finding of negligent investigation, or a breach of the appellant’s rights under the Canadian Charter of Rights and Freedoms, could be based. Further, we do not see any error in the trial judge’s denial of the appellant’s request for a jury trial, an order which is within the discretion of a trial judge to make. We note, in that regard, that the appellant had not delivered a jury notice nor had he ever sought an extension of time for doing so.
4The appellant sought to introduce fresh evidence which he contends goes to the credibility of one of the respondents’ witnesses whom he says that he ought to have been permitted to recall. We do not admit the fresh evidence. It does not satisfy the criteria for admission as set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. In particular, the proposed fresh evidence does not bear on a decisive issue in the case.
5Finally, we note that the respondents did not raise any issue regarding this court’s jurisdiction to hear the appeal in light of the trial judge’s assessment of damages if the claim were to have been allowed. We therefore make no further comment on that issue.
6It is for these reasons that the appeal was dismissed. We do not make any order as to costs.
“Grant Huscroft J.A.”
“I.V.B. Nordheimer J.A.”
“L. Sossin J.A.”