Court File and Parties

CITATION: Lochner v. Toronto Police Services Board, 2014 ONSC 3563

DIVISIONAL COURT FILE NO.: DC-14-0000182

DATE: 20140613

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Silvano Lochner, Applicant

AND:

Toronto Police Services Board, Respondents

BEFORE: Harvison Young J.

COUNSEL: Silvano Lochner, in person

Robert L. Love, for the Respondents

HEARD: June 5, 2014

ENDORSEMENT

[1] This is a motion for leave to appeal to the Divisional Court from the decision of Madam Justice Stewart (dated April 8, 2014), upholding the decision of Master R.A. Muir (dated June 25, 2013).

[2] The appellant made a complaint under the Police Services Act R.S.O. 1990, c. P. 15 (the “PSA”) alleging that the defendant police officer disclosed the Appellant’s criminal record to his employer resulting in his termination from employment. Pursuant to the PSA, documents prepared and information obtained during the public complaint process are privileged. After the appellant’s complaint was found to be unsubstantiated, the appellant commenced this action in which he pled certain documents and information which are deemed privileged pursuant to the PSA. Following a defence motion to strike the impugned paragraphs, Master Muir made the following finding:

I have therefore concluded that the references in the plaintiff’s statement of claim to the information and documents prepared and obtained as a result of the public complaints process under the PSA are privileged and inadmissible in this proceeding and should be struck out.

[3] Madam Justice Stewart heard the appeal from Master Muir’s decision on December 20, 2013. In her reasons dated April 8, 2014. She concluded:

I see no basis upon which interference with any aspect of Master Muir’s decision upon this thorough and careful reasons for decision would be warranted.

In particular, Master Muir correctly interpreted the PSA and properly applied the guiding principles and authority established by the Divisional Court in Andrushko v. Ontario, [2011] O.J. No. 3693. In its decision, the court observed that the confidentiality requirements of the PSA extended to information as well as actual documents acquired or prepared as a result of a public complaint (see also: Landry v. Rains, [2013] O.J. No. 3713).

[4] Having read the materials filed, the reasons of Stewart J. and Master Muir, and heard the submissions of Mr. Lochner and Mr. Love, I conclude that the motion for leave should be dismissed. The applicant has not met the test set out in either Rule 62.02(4)(a) or 62.02 (4)(b). The test for leave to appeal on interlocutory appeal is an onerous one. None of the decisions to which Mr. Lochner referred the Court are “conflicting” decisions within the meaning of Rule 62.02(4). Different results based on a particular set of facts do not suffice to constitute conflicting decisions. Rather, the applicant must demonstrate that the court making the conflicting decision did so by applying a different principle to guide that court to its conclusion: Farmers Oil & Gas v. MNR, [2013] O.J. No. 1373 at para. 4; see also Andrushko v. Ontario [2011] O.J. No. 3693, para. 17 [Div. Ct.] and Landry v. Rains, [2013] O.J. No. 3713 at para. 37.

[5] In any event, there are no considerations that, in my opinion, render the granting of leave desirable within the meaning of 62.02(4)(a).

[6] With respect to Rule 62.02 (4)(b), I find no reason to doubt the correctness of Stewart J.’s decision.

[7] If the respondent wishes to seek its costs on this motion, it is to file brief submissions along with a bill of costs with the court within 14 days, following which the applicant is to file his submissions and supporting material on the costs issue within 14 days thereafter. The respondent may, if desired, file any reply submissions within 7 days thereafter.

Harvison Young J.

Date: June 13, 2014