Citation: Mensour v. The Corporation of the Municipality of Lemington, 2012 ONSC 3525
DIVISIONAL COURT FILE NO.: 133/12
DATE: 2012/06/18
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Paul Mensour, Applicant
and:
The Corporation of the Municipality of Leamington, The Leamington Police Services Board, The Office of Chief of the Leamington Police Service as represented by Dean F. Gow, The Leamington Police Association, The Ontario Civilian Police Commission, The Ontario Police Arbitration Commission, Adjudicator Morris Elbers, The Ministry of Community, Safety and Correctional Services of Ontario as represented by the Right Honourable Jim Bradley, The Ministry of the Attorney General of Ontario as represented by the Attorney General of Ontario, the Right Honourable Chris Bentley, The Members of the Leamington Police Association: Edward Marocko, Darin Rickeard, Brian Higgins, Leigh Comartin, Rick Pearce, Peter Pavlovic, Bill Flewelling, Troy West, Sue Dobson, Jim Chopchik, Chris Anderson, David Boucher, Chieu Seng, Mike Baker, Raquel Otterman, Mike Gray, Ian Barr, Brian Beneteau, Mike McMullen, Craig Hudders, Ryan O’Neil, Philip Gates, Laura Fulmer, Luanne Scherer, Debbie Peters, Miranda Chase, Lynda Ware, Vita Accardo, Beth Coddy, Kathy Probe, Andrea Rutgers, Rachelle Gombar, Cheryl Robitaille, Kathy Rrnaud, Mike MacKinnon, Jose Moniz, Mike Symons, Shawn Diewold, Scott Wilkinson, Todd Bell, Stephanie Moniz, Kimberly McLean, Mike Zajac, Kevin O’Neil, Ian Stibbard, Scott Derbyshire, Ryan Hutchison, Richard Sawyer, Chris Ciliska, Brett Trudell, Christine Lariviere, Melissa Saldanha, Bruce Bowden, Respondents
BEFORE: Herman J.
COUNSEL: Luigi DiPierdomenico, for the Applicant/Responding Party
Patrick F. Milloy, for The Corporation of the Municipality of Leamington, The Leamington Police Services Baord, and The Office of Chief of The Leamington Police Service, Respondents/Moving Parties
HEARD at Toronto: June 6, 2012
ENDORSEMENT
[1] The moving parties seek to have more than 100 paragraphs of the applicant’s affidavit struck on the basis that they are irrelevant or contain legal argument, personal opinion or inflammatory statements.
[2] The applicant’s position is that, to the extent that certain portions may not be directly relevant to the issues in the application for judicial review or may contain opinions or legal argument, they provide helpful background. He disagrees that the affidavit contains inflammatory statements.
Background
[3] The applicant is a police officer employed by the Leamington Police Services Board.
[4] On May 13, 2009, he was suspended from his duties.
[5] On January 6, 2010, the applicant was criminally charged with defrauding the Leamington Police Association. These charges were withdrawn on September 9, 2011.
[6] On February 19, 2010, the applicant was charged with discreditable conduct under the Police Services Act, R.S.O. 1990, c. P. 15 (the “Act”).
[7] A hearings officer was appointed to hear the charge of discreditable conduct. There were numerous days of hearing. However, the hearing was not completed following the disbandment of the Leamington Police Service.
[8] On July 27, 2010, the respondent Ontario Civilian Police Commission issued a decision consenting to the disbandment of the Leamington Police Service, subject to certain conditions. One of those conditions was that the Leamington Police Services Board and the Leamington Police Association continue negotiations with respect to severance pay for members of the Leamington Police Service, pursuant to s. 40 of the Act. If there were unresolved matters, they would proceed to arbitration.
[9] On November 10, 2010, counsel for the applicant wrote the Minister of Community Safety and Correctional Services and the Chair of the Ontario Police Arbitration Commission. He took the position that the Association was unable to represent his interests and requested the appointment of a conciliation officer and, if the conciliation was unsuccessful, an arbitrator pursuant to s. 123(1) of the Act.
[10] In letters dated November 17, 2010, the Board took the position that it was required to deal with the Association with respect to all issues involving its members and the Ontario Police Arbitration Commission had no jurisdiction to appoint a conciliator with respect to the applicant’s complaint. The Police Association also took the position that the Commission had no jurisdiction to appoint a conciliator.
[11] Policing in Leamington was transferred to the Ontario Provincial Police effective December 3, 2010.
[12] The applicant issued this application for judicial review on December 24, 2010.
[13] On March 18, 2011, the Police Services Board of Leamington and Ian Johnston initiated an application for judicial review seeking a declaration that the hearings officer has jurisdiction to continue the hearing into the charge of discreditable conduct (Divisional Court File No. 1897/11). On September 7, 2011, Morissette J. ordered that the Police Service Board’s application and the applicant’s application for judicial review be heard by the full panel of the Divisional Court either contemporaneously or one after the other, subject to the view of the full panel.
[14] On August 3, 2011, the Leamington Police Services Board and the Leamington Police Association entered into a Memorandum of Agreement with respect to severance issues under s. 40. It applies to all members of the Association except for the applicant.
[15] On February 8, 2012, the Ontario Police Arbitration Commission appointed a conciliator to deal with s. 40 severance issues with respect to the applicant. No resolution was reached.
Should various paragraphs of the affidavit be struck on the basis that they are not relevant?
[16] The moving parties submit that paragraphs 35, 43-85, 88-105, 109 and 120-125 contain information that is irrelevant to the issues in the application and should be struck.
[17] The applicant’s position is that, to the extent that some of the paragraphs deal with issues that are not directly relevant to the issues in the application, they provide helpful background and should therefore not be struck.
The Application for Judicial Review
[18] The starting point for determining the relevancy of these paragraphs is the application for judicial review.
[19] Events have overtaken some of the relief sought in the application. The criminal charges have been withdrawn and it is accepted that the Association will not be representing the applicant.
[20] At the hearing of the motion, the applicant clarified that the remaining relief he seeks relates to the following four issues:
(i) the decision of the Ontario Civilian Police Commission to disband the Leamington Police Service and transfer policing services to the Ontario Provincial Police;
(ii) the decision of the Ontario Police Arbitration Commission not to appoint a conciliator pursuant to s. 123, as requested by the applicant;
(iii) the jurisdiction of the hearings officer to continue the hearing into the discreditable conduct charge after the disbandment of the Police Service (this is also an issue in the application of the Board, to be heard at the same time as this application); and
(iv) the jurisdiction of the arbitrator appointed pursuant to s. 40.
Analysis
[21] The admission of evidence by way of affidavit on an application for judicial review is limited (see Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) at p. 521; Warren v. Ontario (Labour Relations Board), [2012] O.J. No. 1676 (Div. Ct.)).
[22] In Sierra Club v. Ontario, 2011 ONSC 4086, [2011] O.J. No. 3071 (Div. Ct.) at paras. 7 to 8, the Divisional Court noted the importance of clarifying the contents of the record to enable the parties to define the issues for hearing based upon properly admissible evidence. The Court expressed concern with the potential for a “proliferation of collateral issues” and noted that the failure to define the record could result in a proceeding that becomes “unnecessarily complicated, expensive and lengthy”.
[23] The majority of the paragraphs objected to by the moving parties deal with the merits of the discreditable conduct and criminal charges against the applicant. The merits of the charges are not, however, directly at issue in this application for judicial review.
[24] While it is legitimate for an affidavit to provide background, these paragraphs go well beyond providing helpful background. They deal with contentious matters. If they were to remain in the affidavit, it is likely that the responding parties would want to cross-examine on the affidavit or provide responding affidavits. The parties would thereby be put to considerable time and expense with respect to matters that are not directly relevant to the issues in the application. Rather than clarifying the issues for the Divisional Court, the paragraphs have the potential to have just the opposite effect, by focusing the parties and the Court on corollary issues.
[25] Paragraphs 43-85, 88-105, 109 and 123 will therefore be struck from the affidavit.
[26] Paragraphs 35, and 120-122 relate to the decision of the Commission to abolish the Leamington Police Service and are arguably relevant since that decision is an issue in this application. I do not know whether paragraphs 120 and 121 are contentious, but since they are arguably relevant, I decline to strike them. Paragraphs 35 and 122, however, which deal with the knowledge of various parties, will be dealt with, below, in the section dealing with expressions of opinion.
Should various paragraphs be struck because they are legal argument?
[27] The moving parties submit that paragraphs 16, 17, 36, 116, 122, 136, 162, 164-166 and 169-174 contain submissions and expressions in the nature of legal argument and should therefore be struck.
[28] The applicant’s response is that opinions should not be struck if their purpose is to explain or provide a background to the issues.
[29] Legal argument should be made in a factum and in submissions before the court, not in an affidavit (see Chopik v. Mitsubishi Paper Mills Ltd., [2002] O.J. No. 2780 (S.C.J.) at para 26).
[30] Paragraphs 16, 17, 36, 116, 162A and B, 164-166 and 169-174 contain legal argument or legal opinion. They do not add to the background and they can be presented in a factum or in legal argument at the hearing. They should therefore be struck.
[31] Paragraphs 122 and 136 are not legal argument or not solely legal argument and will be dealt with, below, in the section dealing with expressions of opinion.
Should various paragraphs be struck because they contain improper expressions of opinion and unsupported personal views?
[32] The moving parties ask that paragraphs 5, 24, 26-29, 35, 37-38, 40, 42, 93-95, 97, 102, 104, 106, 109-111, 114-118, 123, 126-127, 130-132, 150, 157, 161, 163, 165, 167-169 and 170-172 be struck because they contain personal expressions of opinion and unsupported personal views.
[33] Paragraphs 93-95, 102, 104, 116, 123, 130, 165, 169 and 170-172 have already been struck on the basis that they are not relevant or they express legal opinion or argument. There is no need to deal with them here.
[34] I will also deal with paragraphs 122 and 136, which were challenged by the moving parties on other bases.
[35] The applicant submits that expressions of opinion and personal views should not be struck if their purpose is to provide a background to the issues.
[36] An affidavit should be confined to a statement of facts within the personal knowledge of the deponent (Rule 4.06(2), Rules of Civil Procedure, R.R.O. 1990, Reg. 194). The affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of information and belief are specified in the affidavit (Rule 39.01 (5)).
[37] The challenged paragraphs are personal expressions of opinion. Many of them deal with the applicant’s view of the knowledge or the motives of various respondents. They are contentious and would not, in my opinion, assist the Court in determining the issues before it on this application for judicial review.
[38] Paragraphs 5, 24, 26-29, 35, 37-38, 40, 42, 106, 109-111, 114-115, 117-118, 122, 126-127, 130-132, 136, 150, 157, 161, 163 and 167-168 will therefore be struck on the basis that they contain opinion or unsupported personal views.
Should various paragraphs be struck because they contain inflammatory rhetoric that is scandalous?
[39] The moving parties seek to strike paragraphs 24, 26, 27, 29, 33, 38, 40, 42, 62-62, 83, 86, 126, 132, 136, 161 and 163 on the basis that they contain inflammatory rhetoric that is scandalous. I will limit myself to a consideration of paragraphs 33 and 86, the only paragraphs in this list that have not been struck on other grounds.
[40] The applicant disagrees that the statements are inflammatory or scandalous. He submits that the facts in this case support the statements he made.
[41] There is a general principle that offensive allegations and offensive rhetoric directed at a party should be struck (see Chopik v. Mitsubishi at para. 26).
[42] It is not necessary to determine whether these two paragraphs rise to the level that they are inflammatory or scandalous. They are, at the very least, expressions of opinion and should be struck on that basis. Paragraphs 33 and 86 will therefore be struck.
Conclusion
[43] The following paragraphs will be struck from the affidavit on the basis that they are either irrelevant or contain legal argument or express personal opinions: 5, 16, 17, 24, 26-29, 33, 35-38, 40, 42, 43-86, 88-106, 109-111, 114-118, 122, 123, 126-127, 130-132, 136, 150, 157 and 161-174.
[44] The applicant shall not make references to the expunged portions either in his factum or at the hearing of the application.
[45] In striking these various paragraphs, I recognize that there may be portions of some of the paragraphs that are not problematic. I also recognize that, as a result of striking this number of paragraphs, the affidavit may need to be rewritten in order to make it coherent and provide the necessary background. Leave is given to the applicant to amend what remains of the affidavit, with the caution that any additional paragraphs must be directly relevant to the issues in the application for judicial review and should not be expressions of legal or personal opinion. If the moving parties are of the opinion that the affidavit, as revised, is unacceptable, the parties may make written submissions to me.
[46] I would encourage the parties to resolve the issue of costs. If they are unable to do so, they may make brief written submissions (no more than three pages in length plus a costs outline). The moving parties’ submissions should be provided within 14 days. The applicant has a further 14 days within which to respond.
Herman J.
Date: June 18, 2012