Court File and Parties
DIVISIONAL COURT FILE NO.: DC-15-500000005
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LeMay J.
BETWEEN:
John DiPasquale
Appellant
– and –
Leonard Reece
Respondent
Counsel:
C. Diana, Counsel for the Appellant
In-Person, Respondent
HEARD: August 7, 2015
Reasons for Decision
1On August 31st, 2012, while patrolling Highway 401, the Defendant, John DiPasquale pulled a car over to the side of the road. The car was driven by the Plaintiff, Leonard Recce. There was an altercation between Mr. DiPasquale and Mr. Recce.
2As a result of that altercation, Mr. Recce sought an apology from the Ontario Provincial Police. When none was forthcoming, he commenced a lawsuit against Mr. DiPasquale, for violations of his rights and for other issues.
3A trial was held on July 3rd and September 2nd, 2014. Deputy Judge Nadler issued a decision on September 23rd, 2014, and found Mr. DiPasquale liable for assault. Mr. DiPasquale was required to pay $2,000.00 in general damages, $1,500.00 in punitive damages, pre-judgment interest and costs. Mr. DiPasquale appeals this decision.
4For the reasons that follow, I would grant the appeal in part. While I would not change the trial judge’s ruling on general damages, in my view the trial judge erred in awarding punitive damages, even on the findings of fact he made, and I would set that award aside.
Issues
5This appeal raises the following issues:
Standard of review
Did the deputy judge err by finding that a battery took place on the evidence?
Did the deputy judge err in law by failing to consider section 25 of the code- and by elevating the officer’s uncivil conduct to a cause of action?
Did the trial judge err in law in assessing general damages?
Did the trial judge err in law in awarding punitive damages?
6I will address each of those issues in the following section.
The Standard of Review
7The standard of review in cases such as these is well known, and is set out in Housen v. Nikolaisen (2002 SCC 33, [2002] 2 S.C.R. 235). For questions of law, the standard of review is correctness. For issues of mixed fact and law, the standard of review lies along a spectrum, depending on the nature of the issue. For questions of fact, a palpable and overriding error is required to interfere with a decision of the trial judge.
8The arguments advanced by counsel in this case attract a different standard of appellate review, depending on the issue. I will consider the appropriate standard of review on each of the issues that present themselves.
Did the Trial Judge Err in Finding That a Battery Took Place?
9The trial judge found that an assault had taken place when the Defendant shoved the Plaintiff. Counsel for Mr. DiPasquale correctly pointed out that what had taken place was more properly characterized, from a legal perspective, as a battery. However, he also pointed out that nothing turns on this distinction. I will refer to the events as a battery throughout the remainder of my reasons.
10Mr. DiPasquale’s counsel argues that the trial judge made a palpable and overriding error in his findings about what took place on August 31st, 2012. He also argues that, even if the trial judge was correct in his factual findings, he reached the wrong legal conclusion in finding that the events amounted to a battery. Mr. Reece disagrees with this argument, and states that the trial judge gave Mr. DiPasquale a lot of leeway in his factual findings. Mr. Reece argues that Mr. DiPasquale should have been charged with assault at the time the incident took place, and perjury for his testimony in this case.
11Determining whether the trial judge made a palpable and overriding error requires an analysis of the relevant facts, which I now turn to.
The Facts
12On August 31st, 2012, Mr. Reece was driving along the 401 when PC DiPasquale pulled him over. Immediately after getting out of the car, PC DiPasquale started acting abusively towards Mr. Reece, by yelling obscenities at him. This is a fact that the parties are agreed upon, as PC Di Pasquale was subject to informal discipline by the OPP for his conduct.
13Mr. Reece also became argumentative with PC DiPasquale. There was a disagreement about PC DiPasquale’s right to stop Mr. Reece, and his right to ask for identification. Mr. Reece refused to produce identification (specifically his licence) when it was requested of him. This conduct is contrary to section 33 of the Highway Traffic Act. The Trial judge found that PC DiPasquale did not violate any of Mr. Reece’s rights, and that the decision to stop Mr. Reece was lawful. The trial judge also found that the facts suggest “that Mr. Recce did not wish to de-escalate the situation, but rather escalate it, so he could eventually bolster a more substantial claim against the police.”
14During the argument between them, it is alleged that PC DiPasquale pushed Mr. Reece up against his car, and then eventually had him placed in the back of his police cruiser. It is the trial judge’s finding that Mr. Reece was pushed against the car that is being challenged in this case.
15Counsel for PC DiPasquale argued that Mr. Reece had given inconsistent evidence about the fact that there was a push against the car, and had put inconsistent statements into his pleadings. In addition, counsel argued that the trial judge did not have the battery in his mind at the time of closing submissions. Instead, the trial judge was preoccupied with the rudeness of PC DiPasquale, and was trying to find a way to punish PC DiPasquale for this rudeness.
16While it is possible that different conclusions could have been reached by the trial judge on the evidence before him, I see no palpable or overriding error in his conclusions that PC DiPasquale pushed Mr. Reece into his car before Mr. Reece entered the police cruiser. Indeed, given the nature of the interaction between them at this point, I am of the view that the trial judge’s conclusions represent the most logical version of what happened. PC DiPasquale was behaving in an aggressive manner, and had been from the beginning of the encounter. It is a completely reasonable conclusion to accept that this encounter led to a shove at some point.
17The fact that the trial judge was unhappy with PC DiPasquale’s conduct, and viewed it as inappropriate does not change the reasonableness of his factual findings in this case. As a result, I would give no effect to this ground of appeal.
18There is no evidence that Mr. Reece suffered any injury, either temporary or permanent, as a result of this push. There was also no evidence of the force that went with this push either. Therefore, the trial judge was correct when he stated that this was a minor incident. The trial judge went on to find that the incident was highly inappropriate. As noted above, the trial judge had concerns about PC DiPasquale’s interactions in this case even before the push, which explains his observation that the incident was inappropriate,
19At the end of the incident, PC DiPasquale had written a number of tickets for Mr. Reece. However, he only proceeded with one ticket, which was a charge of careless driving. This charge was withdrawn by the Crown at some later time.
Did the Push Amount to a Battery?
20Having determined that, on the facts as found, Mr. Reece was pushed against his car by PC DiPasquale, I now must consider the question of whether this push amounts to a battery at law. Answering this question requires me to consider whether the trial judge made the correct legal conclusions from the facts as found. Given that, my review is on a correctness standard.
21Battery has been described in a number of cases. On recent and highly relevant decision is Figueiras v. Toronto (Police Services Board) (2015 ONCA 208), in which the Court stated (at paragraphs 143 and 144):
However, not every act of physical contact is a battery. As the Supreme Court has put it, battery requires “contact ‘plus’ something else” (Scalera, at para. 16). That is, there must be something about the contact that renders that contact either physically harmful or offensive to a person’s reasonable sense of dignity (Malette v. Shulman (1990), 1990 6868 (ON CA), 72 O.R. (2d) 417 (C.A.), at p. 423).
The classic example of non-actionable conduct is tapping someone on the shoulder to get that person’s attention, or the regular jostling that occurs in any crowded area. Something more than that is required to constitute battery.
22As I have noted above, there was no physical harm that Mr. Reece suffered in this case. The only question that remains is whether the contact was offensive to a person’s reasonable sense of dignity. It appears to me that the trial judge concluded that this contact was offensive to a person’s reasonable sense of dignity, even though he did not specifically address the issue.
23The problems in this interaction started with PC DiPasquale’s inexplicable and inexcusable verbal abuse. There is, in the words of the case law, contact “plus something else” here. The “something else” is demeaning conduct on the part of PC DiPasquale that makes the contact offensive to a person’s reasonable sense of decency. As a result, this is a battery at law.
24I am fortified in my conclusion on this point by the passage in Canadian Tort Law, 9th Edition (Linden and Feldthusen), where they state (at page 44):
Nor is it necessary that a battery cause any actual harm to the plaintiff. Offensive contact is enough, however trivial it may seem, for it may trigger retaliatory measures by persons whose dignity and self-respect are threatened thereby. Better to permit an action for these seemingly minor intrusions than to invite violent counter-attacks by the aggrieved victims.
25In short, there are good public policy reasons (as well as good legal reasons) why PC DiPasquale’s conduct in this case should be found to be a battery.
Section 25 of the Criminal Code
26Section 25(1) of the Criminal Code states:
Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace office or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
27In the Court below, PC DiPasquale argued that this section was a complete defence to the battery, even if one took place. Unfortunately, the Court below did not address this defence in its reasons. As part of his argument, counsel for PC DiPasquale has quite legitimately pointed to this omission as a cause for concern. He argues that what has really happened here is that the Deputy Judge determined that PC DiPasquale’s verbal attack on Mr. Reece was worthy of damages, and has found an impermissible way to award damages to Mr. Recce..
28I do not accept this argument. My analysis starts with a passage from Figueiras, supra, where the Court stated (at paragraph 147):
I have emphasized the opening words of s. 25(1) because they make it clear that this section cannot be relied on if the officer does not possess statutory or common law authority for his or her actions.
29To put it another way, the police will be exempt from liability if, and only if they use no more force than is reasonably necessary, when the circumstances and dangers they are confronted with are reasonably assessed. The Courts have also acknowledged that the judgments of police officers must be given some deference, and should not be second guessed with the benefit of hindsight. See Webster v. Edmonton (City) Police Service ([2007] A.J. No. 71 (C.A.)), Levesque v. Sudbury Regional Police Force ([1992] O.J. No. 512 (Gen. Div.)) and Castro v. Monteiro (2012 ONSC 6907).
30In this case, the key question is whether any force was reasonably necessary. I find that it was not. There was no reason given, either in the Court below or in submissions to me, as to why PC DiPasquale felt it necessary to push Mr. Reece. Indeed, he denies doing so.
31As I have noted above, this push amounted to a battery. Once it is established that a battery took place, it is PC DiPasquale’s burden to prove that the force he used was reasonable (see Castro v. Monteiro, supra, at paragraphs 41 and following). He has not discharged that burden in this case, and I find that the section does not protect PC DiPasquale from an award of damages in this case.
General Damages
32The award of general damages in this case is at the very top end of the range of appropriate damages. If I had been the trial judge in the first instance, I would have likely awarded a lower amount. However, it is not my role to interfere with these damage awards.
33As the Supreme Court has stated (see DeMontigny v. Brossard 2010 SCC 51, [2010] 3 S.C.R. 64, at paragraph 27), there is an essential factual element in the assessment of general damages. As a result, the quantum of an award of general damages attracts considerable deference from a reviewing Court. In light of that fact, I am not prepared to interfere with the quantum of general damages in this case, and this ground of appeal also fails.
Punitive Damages
34The shove was a momentary incident in a situation where PC DiPasquale had simply lost his temper. While regrettable, this is not the sort of conduct that should attract punitive damages, especially given the steps that have been taken by his employer to address PC DiPasquale’s behaviour. I set aside the punitive damages award, and this ground of appeal succeeds.
35I start by considering the nature of punitive damages. As noted in Whiten v. Pilot Insurance (2002 SCC 18, [2002] 1 S.C.R. 595 at paragraph 36), these damages are awarded in exceptional cases for “malicious, high handed” conduct that offends the court’s sense of decency. In order to trigger an award of punitive damages, the conduct must represent a marked departure from ordinary standards of decent behaviour.
36Then, I consider the standard of review that applies to awards of punitive damages. As noted in Hill v. Church of Scientology of Toronto (1995 59 (SCC), [1995] 2 S.C.R. 1130 at paragraph 197):
Unlike compensatory damages, punitive damages are not at large. Consequently, courts have a much greater scope and discretion on appeal. The appellate review should be based upon the court’s estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence?
37In other words, I have a broad discretion to review the award of punitive damages.
38I must assess the misconduct of PC DiPasquale to determine whether it is so outrageous as to impose an award of punitive damages on him. In this case, the battery is a single act that was spontaneous and did not cause any injury whatsoever. It is also worth noting that, although Mr. Reece did not start the confrontation, he did escalate it, and he breached section 33 of the Highway Traffic Act during the course of the confrontation.
39A similar case to the one at bar is Wren v. Canada ([1992] F.C.J. No. 1076 (F.C.T.D.) (Strayer J.)). In that case there was also the application of excessive force by a police officer that was found to be tortious. It was one incident. In dismissing the complaint, the Court noted:
With respect to his claim for punitive or aggravated damages, the conduct of Constable Larson in respect of the only tortious act identified was not such as to justify the award of such damages. Any use of excessive force was neither premeditated nor sustained, but in the heat of a struggle. His possible exasperation with the plaintiff, if not entirely justifying his actions, was the result of much provocation due to the imprudent conduct of the plaintiff. Constable Larson’s conduct if too vigorous could not be said to be arbitrary, high-handed or oppressive. I am therefore dismissing the claim for punitive or aggravated damages.
40I reach a similar conclusion in this case. PC DiPasquale’s conduct was clearly inappropriate. However, the battery in this case was a spontaneous, single event. It does not amount to a marked departure from ordinary standards of decent behaviour. In the result, the award of punitive damages is set aside.
Conclusion
41The appeal is allowed in part. I would set aside the award for punitive damages, but would leave the rest of the remedies provided by the trial judge untouched. For clarity, that includes his awards on costs and pre judgment interest.
42PC Di Pasquale does not ask for costs of this appeal. Mr. Recce asks for additional costs of this appeal. In light of the fact that PC DiPasquale has had partial success on this appeal, there will be no costs to either party of this appeal.
LeMay J.
Released: August 18, 2015
CITATION: Dipasquale v. Reece, 2015 ONSC 5206
DIVISIONAL COURT FILE NO.: DC-15-500000005
DATE: 2015 08 18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LeMay J.
BETWEEN:
John DiPasquale
Appellant
– and –
Leonard Reece
Respondent
endorsement
Released: August 18, 2015