Court File and Parties
Citation: Singh v. Toronto Police Services Board, 2016 ONSC 6291 Divisional Court File No.: 298/15 Date: 2016-10-07 Superior Court of Justice – Ontario Divisional Court
Re: George B. Singh (“Knia Singh”), Applicant/Moving Party And: Toronto Police Services Board and Chief of the Toronto Police Service, Respondents
Before: L.A. Pattillo J.
Counsel: Vilko Zbogar, for the Applicant/Moving Party Scott C. Hutchison, for the Respondent Chief of Police Ansuya Pachai, for the Respondent Police Services Board
Heard: October 4, 2016
Endorsement
[1] Mr. Singh brings this motion for an order setting aside the Registrar’s order dated August 17, 2016, dismissing his Application pursuant to r. 68.06(3) of the Rules of Civil Procedure (failure to perfect the application within one year of commencement and after 10 days’ notice of the default).
[2] The Application was commenced by Mr. Singh on June 10, 2015. It is a Charter challenge concerning the retention of personal information about Mr. Singh by the Toronto Police Service that was collected pursuant to a practice commonly known as “carding” or “street checks”.
[3] Notices of intent to defend were served and filed expeditiously on behalf of both Respondents. Counsel for Mr. Singh advised counsel for the Toronto Police Services Board (the “Board”) that he would provide the applicant’s material within a couple of months.
[4] Within a week of the Application being started, the Ministry of Community Safety and Correctional Services announced that the government would be developing regulations concerning street checks. Mr. Singh and his counsel decided to put further work on the Application on hold until it could be determined whether or to what extent such regulations might have issues on the Application. There is no evidence that this decision was communicated to or acquiesced in by counsel for the respondents.
[5] The government released the regulations on March 22, 2016.
[6] On April 8, 2016, counsel for the Board sent an email to Mr. Singh’s counsel inquiring as to whether Mr. Singh intended to proceed with the Application given the length of time which had transpired. On April 18, 2016, counsel responded that Mr. Singh intended to proceed with the Application and he was in the process of preparing affidavits. As he had a trial in May, he did not anticipate being in a position to serve those affidavits until after the trial.
[7] Sometime in late July 2016, counsel for Mr. Singh received a notice from the Registrar pursuant to r. 68.06(2) that as the Application was not perfected within one year of being commenced, it would be dismissed for delay unless the applicant delivered an application record and factum and filed a certificate of perfection within ten days after the notice.
[8] On August 4, 2016, Mr. Singh’s counsel emailed counsel for the Board and indicated that he had been delayed over the last three months on other matters and was still in the process of assembling the necessary affidavits. Counsel further advised that he had received the Registrar’s notice and requested an extension of time for six months to perfect the Application. At the same time, he indicated that he anticipated that the affidavits would be completed by mid-September.
[9] Counsel for the Board replied on behalf of both the Board and the Chief on August 10, 2016, and advised that given the significant delay they could not agree to an extension into September but were prepared, “as a professional courtesy” to agree to a one week extension.
[10] On August 17, 2016, the Registrar dismissed the Application for delay pursuant to r. 68.06(3).
[11] The parties agree that in order to set aside a Registrar’s order dismissing an application for judicial review for delay, the applicant must demonstrate the following three factors: a bona fide intention to perfect the appeal within the time limit; a reasonable explanation for the delay; and the justice of the case requires the extension: Iaonnidis v. Amalgamated Transit Union, Local 1572, [2006] O.J. No. 5550 (Div. Ct.), at para. 15.
[12] Mr. Singh submits that he has demonstrated the three factors. In respect of both a bona fide intention to proceed within the time limit and an explanation for the delay, Mr. Singh submits he intended to comply with the time limit but in light of the Minister’s announced intention to develop regulations, it was reasonable to await the regulations so as not to render the Application moot. That accounts for nine months of the delay. When the regulations were released and it was decided to proceed with the Application, the remaining five plus months resulted from counsel’s “unavailability and practical capacity constraints”.
[13] In respect of the justice of the case, Mr. Singh submits that the issue of “carding” is a matter of significant public interest. The Application raises serious Charter and common-law issues regarding the rights of law enforcement authorities to collect, retain and use personal information regarding persons who are not suspected of involvement in any specific illegal activity. He further submits that there is no discernable prejudice to the Board or the Chief of Police.
[14] The delay in this case is significant. At the time of the motion, more than 15 months had elapsed since the Application was commenced. Nor, after all that time, is it ready to be perfected. Mr. Singh requests a further extension of 60 to 90 days.
[15] In my view, Mr. Singh has not put forward a reasonable explanation for the delay. Even accepting the nine month delay waiting for the Government regulations on carding, the excuse for the further five month delay that counsel was too busy is not a reasonable explanation. As noted by Benotto J. (as she then was) in Chiu v. Universal Water Technology, [2004] O.J. No. 4048 (Div. Ct.) at paras. 4-5, when considering the excuse of counsel being too busy, “[w]ere the threshold so low as to be met by these facts, I dare say the time limit would be meaningless.”
[16] Given the significant delay that had occurred prior to April 2016, if counsel was not able to deal with the matter expeditiously, he should have either resolved the timing with respondents’ counsel or advised Mr. Singh that he could not continue and arranged for other counsel to take over the file. He did neither.
[17] Turning to the issue of bona fide intention, I note that there is no affidavit from Mr. Singh. Apart from that, it is clear from the discussion between counsel following the start of the Application that there was no intention at the outset of the Application to meet the 30-day time limit in r. 68.04(1)(b) to deliver an application record and factum. Nor was the so-called decision to put the Application on hold pending the regulations communicated to counsel for the Respondents. When counsel for the Board inquired about the status of the Application in April, 2016, Mr. Singh’s counsel advised that he was in the process of preparing affidavits and that it would be perfected following his trial in May. The next activity occurred in August and resulted from the Registrar’s notice to dismiss for delay. Mr. Singh’s counsel asked for an extension to perfect until mid-September. As noted, before me, Mr. Singh asks for a further 60 to 90 days.
[18] The many missed self-imposed deadlines by counsel demonstrate in my view a complete lack of bona fides to meet the time limits to perfect the Application.
[19] Finally, in considering the justice of the case, there is no question that the issues raised in the Application are of public interest. Unfortunately, apart from the Notice of Application, there is no information before me to enable me to consider the merits of the Application.
[20] Nor can I find that the respondents have not suffered prejudice from the delay. The respondents are at a disadvantage in establishing specific prejudice given that they have no idea of what they will need in order to respond to the Application. Apart from that, the significant amount of time which has elapsed gives rise to a presumption of prejudice established by the time limits in the rules and the court’s jurisprudence in respect of them.
[21] In all the circumstances, therefore, Mr. Singh has not established that the justice of the case requires the extension.
[22] Mr. Singh’s motion is therefore dismissed. As no costs are requested, there is no order of costs.
L. A. Pattillo J.
Date of Release: October 7, 2016