ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JAMES HENRY MCGOWAN
Plaintiff/Appellant
- and -
CITY OF TORONTO and TORONTO POLICE SERVICES BOARD
Defendants/Respondents
In Person
Andrea L. Denovan, for the Respondents/ Defendants
HEARD at Toronto: April 7, 2008
KITELEY J.: (Orally)
1This is an appeal of the decision of Deputy Judge M. O. Mungovan, dated December 18, 2006, in which he dismissed the plaintiff’s claims. I will allow part of the appeal. Specifically, I allow the appeal as it relates to abuse of process.
2The first issue before Mungovan J. was the motion that had been brought by the defendants that there was no reasonable cause of action disclosed in the Statement of Claim. That motion had been brought pursuant to Small Claims Court Rule 12.02; by analogy Rule 21.01(1)(b) and Rule 21.01(2) of the Rules of the Superior Court apply.
3The Deputy Judge dismissed the defendants’ motion on three issues. He found that the pleadings showed a reasonable cause of action that the City was vicariously liable, that the City was directly liable and that the Board was vicariously liable.
4The issue is whether the Deputy Judge erred in his finding that the Statement of Claim did not disclose a reasonable cause of action against the Toronto Police Services Board on indirect liability.
5The analysis on this point is found in pages 6 to 11 of the Reasons for Decision. At the top of page 11, the Deputy Judge drew an inference of fact and law, specifically as follows:
“Accordingly, because the prerequisite of proximity has not been met in this case, meaning that it would be unfair to impose a duty of care on the Board to ensure that it trains members of the force who deal with parking offences, it is plain and obvious that the action in negligence against the Board on the basis of directly liability cannot succeed.”
6That inference was not warranted on this Statement of Claim. It would appear that the Deputy Judge slipped into the “genuine issue for trial” analysis. He erred in drawing that inference. However, while the reasoning was incorrect, the conclusion was correct on the basis of the Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 (QL), (S.C.C.). I dismiss the plaintiff’s appeal on that point.
7The second motion brought by the defendants was for a determination before trial of a legal issue. Specifically, whether the cause of action to the extent that it relied on parking tags of certain dates was statute-barred.
8There is no specific Small Claims Court rule other than the general rule 1.03(1) and (2). I accept that there is jurisdiction in the Small Claims Court to entertain such a motion. By analogy, Rule 21.01(1)(a) and 21.01(2) of the Rules of the Superior Court apply and no evidence is admissible except on leave of the Court or on consent. It is clear from the transcripts that neither were given.
9This submission by the defendants was predicated on the affidavit of Kelly Walsh which attached a list of all parking tags in date order (more or less) produced as a result of an earlier motion by the defendants for particulars. Rule 7.01(2) of the Small Claims Court rules requires that the claim must include certain particulars and documents. I accept that the affidavit of Walsh is admissible under this rule.
10The onus is on the appellant to persuade me that the Deputy Judge erred in his analysis of the Public Authorities Protection Act and the Limitations Act. This may be a challenging area for unrepresented plaintiffs but that does not alter the responsibility on the plaintiffs. I am not satisfied that the Deputy Judge erred in his determination that all but 108 to 110 and 112 to 126 were statute-barred.
11I turn to the third motion brought by the defendants, namely, that the entire claim should be dismissed as an abuse of process. On this, the defendants relied on Rule 12.02(1) of the Small Claims Court rules. There appears to be no restriction on the evidence on which a Court can rely in dealing with such a motion.
12The defendants rely on the case of Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (QL), (S.C.C.) where in paragraph 1, Arbour J. described the issue as follows:
“Can a person convicted of sexual assault and dismissed from his employment as a result, be reinstated by a labour arbitrator who concludes, on the evidence before him that the sexual assault did not take place?”
13That is not what is occurring here. Mr. McGowan’s allegation is that he should not have been charged. He does not seek to set aside any of the convictions. I do not see that he seeks to set aside a judicial finding, which is the essence of abuse of process. I am persuaded that the Deputy Judge erred in his determination that the plaintiff sought to re-litigate. I allow the appeal in that respect.
14Before leaving the abuse of process, I have an observation. On behalf of the plaintiff, his agent sought before the Deputy Judge to rely on a letter and an internal memo emanating from one of the defendants. Counsel for the defendants objected. These two documents were not marked as exhibits and they were not in the appeal record which is appropriate. The Bartlett letter was referred to in sufficient detail that its contents are ascertainable. The Deputy Judge referred to affidavits filed by the defendants. He relied on the Walsh affidavit on the motion to determine the issue before trial which I have found appropriate. He rejected both of the defendants’ affidavits on the issue of reasonable cause of action which was also appropriate. But he did not rule on whether evidence was admissible on the abuse of process motion and if it was, whether the procedural formality of attaching a letter and memo to the plaintiff’s affidavit saying “I received them”, ought to have been overlooked and those items considered.
15Given three distinct motions where the evidentiary foundation was different, the failure to turn his mind to it was understandable. However, I find it was an error to have not focused on the distinction and in considering dismissal for abuse of process, whether the letter and memo were relevant.
16The appellant also argued that the reasons of the Deputy Judge were vague. I am not persuaded on that ground of appeal and dismiss it.
17The appellant has also asked this Court for leave to amend his claims to damages. That is inappropriate in this appeal. Any amendment to the claim that he wishes to pursue, he must do so in accordance with the Rules of the Small Claims Court.
18The Appeal Book and Compendium has been endorsed, “Appeal allowed in one respect: Paragraph 8 of the reasons is set aside. Costs to be paid by the defendants in the amount of $889.00, payable by May 7, 2008.”
___________________________
KITELEY J.
Date of Reasons for Judgment: April 7, 2008
Date of Release: April 16, 2008
COURT FILE NO.: 48/07
DATE: 20080407
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JAMES HENRY MCGOWAN
Plaintiff/Appellant
- and -
CITY OF TORONTO and TORONTO POLICE SERVICES BOARD
Defendants/Respondents
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: April 7, 2008
Date of Release: April 16, 2008