Samuels v. Attorney General of Canada, 2016 ONSC 6706

Court File and Parties

CITATION: Samuels v. Attorney General of Canada, 2016 ONSC 6706

DIVISIONAL COURT FILE NO.: 426/16 DATE: 20161027

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ANDRIE SAMUELS, D’ANDRIE SAMUELS, STACY-ANN SAMUELS, TAHLIA SAMUELS, TATTIYANA SAMUELS, TAYIA SAMUELS AND KARONE JOHNSON¹

Plaintiffs (Moving Parties)

– and –

ATTORNEY GENERAL OF CANADA, GOVERNMENT OF CANADA (DEPT. OF JUSTICE) AND ROGERS COMMUNICATIONS PARTNERSHIP (INCORRECTLY NAMED AS ROGERS’ GROUP OF COMPANIES)²

Defendants (Responding Parties)

Counsel: Andrie Samuels, in person Stacy-Ann Samuels, in person by video and audio link Karone Johnson, in person by audio link B. Bathgate and S. Gordon, for Rogers Communications Partnership Susan Jane Bennett, for the Attorney General of Canada Erin Pleet, amicus curiae

HEARD at Toronto: October 20, 2016 in Toronto

REASONS FOR JUDGMENT

MOLLOY J.:

Introduction

1This is a motion by Andrie Samuels, Stacy-Ann Samuels and Karone Johnson for an order extending the time to deliver a motion for leave to appeal the order of Justice Diamond dated March 23, 2016. In that decision, the motion judge stayed the plaintiffs’ consolidated action pending the disposition of criminal charges against Andrie Samuels.

2The motion to extend the time was argued before me in Toronto on October 20, 2016. At the conclusion of the argument, I granted the motion and extended the time for delivering the materials for leave to appeal. Andrie Samuels is to deliver the material on behalf of all three plaintiffs by posting same by registered mail by November 3, 2016. I stated at the time that I would be providing written reasons at a later date. Those reasons are set out below.

Background of the Action and Impugned Order

3The consolidated action of the adult plaintiffs arises from alleged impropriety relating to a criminal investigation and prosecutions for cross-border drug trafficking in methamphetamine, and in particular on various wiretap authorizations that were obtained in the course of that investigation. The action seeks damages for negligence, negligent investigation, invasion of privacy, abuse of process, fabrication of evidence, defamation, conspiracy to injure, fraud, misrepresentation and various breaches of the Canadian Charter of Rights and Freedoms.

4Karone Johnson (the adult son of Andrie Samuels) was arrested in March 2014 while attempting to cross the border from the United States to Canada while in possession of methamphetamine. He has since been convicted, apparently based on a guilty plea, and is being held in a correctional institution in Ohio awaiting sentence. Stacy-Ann Samuels (the spouse of Andrie Samuels) was arrested in New York in April 2014. She has pleaded guilty to and has been convicted of a related drug offence and is currently incarcerated in a correctional institution in New York State awaiting sentence. Andrie Samuels was arrested in Ontario in July 2015 and charged with various drug and related offences. He is in custody at the Toronto South Detention Centre. His trial date has not yet been set.

5The Attorney General of Canada and Rogers Communication Partners (“Rogers”) brought motions under Rule 21 seeking to have the action dismissed as disclosing no cause of action. The motion judge dismissed the claims of Karone Johnson and Stacy-Ann Samuels founded on negligent investigation because both have been convicted of criminal offences and an essential element of that cause of action is that criminal proceedings be determined in favour of the plaintiff.

6With respect to the remaining causes of action, the motion judge held that the pleadings were deficient, but that it could not be said that the claims were “hopeless,” and it was therefore not appropriate to strike them out without leave to amend. He reasoned that to do so would “forever prejudice the Plaintiffs in advance of the wiretap issue being determined” in the criminal proceeding against Andrie Samuels. He noted that the wiretaps will be challenged in the criminal proceeding and that “the factual landscape involving this proceeding may change, be reduced in scope, or even expelled.” He then held:

Accordingly, I find that the proper result is to stay the balance of the Plaintiffs’ claims (i.e. this proceeding after the striking out of the claims by Stacy and Karone for negligent investigation) pending the disposition of the criminal proceedings against Andrie. The parties to the proceedings are identical to those in this proceeding (save for the inclusion of Rogers). The finding of the lawfulness or unlawfulness of the wiretaps will be of great significance to the determination of this proceeding. As such I believe a stay is warranted.

7The motion judge further held that: the stay would remain in place until the disposition of the criminal proceeding against Andrie Samuels; any party could move to lift the stay after the criminal proceedings were concluded; the plaintiffs could move post-stay for leave to amend the statement of claim; and the defendants could move to strike the existing or potentially amended statement of claim. The motion judge awarded costs to the Attorney General of Canada in the amount of $4000 and to Rogers in the amount of $5000.

The Test

8The order of the motion judge staying the proceeding is an interlocutory order. As such, the plaintiffs require leave in order to appeal to the Divisional Court. Applications for leave to appeal to the Divisional Court are done in writing. The plaintiffs missed the deadline for filing their notice of motion for leave to appeal, hence this motion to extend the time. All parties agreed that in determining whether the time for filing the leave to appeal motion should be extended, I should consider the following factors:

a) the plaintiffs formed a bona fide intention to appeal within the relevant time period and have maintained it;

b) the length of the delay and whether the plaintiffs have offered a reasonable explanation for it;

c) any prejudice to the defendants caused or exacerbated by the delay;

d) the merits of the leave to appeal motion; and

e) whether the interests of justice requires granting an extension.³

9In the course of argument, counsel for Rogers conceded that he took no issue with respect to the first three elements. His focus was on the appeal having no merit and that justice did not require an extension of time. Counsel for the Attorney General was not prepared to concede any of these points, but acknowledged that she was unable to point to any prejudice as a result of the delay. Therefore, full argument was heard on the remaining four elements.

Intention to Appeal Within the Time Required

10As was argued by Ms. Bennett for the Attorney General, the Order speaks from the date it was made, which was March 23, 2016. Andrie Samuels is in custody in the Toronto South Detention Centre. He is not represented by counsel in this civil proceeding. He did not receive the handwritten endorsement of the motion judge until March 29, 2016. There was a delay in the delivery due to the institution being on lockdown.

11Rule 61.03(1) of the Rules of Civil Procedure provides that where an appeal to the Divisional Court requires leave of the court, the notice of motion for leave shall be served within 15 days after the making of the order. Mr. Samuels wrote to the motion judge on April 3, 2016 stating his intention of appealing the order and seeking a typed version of the endorsement. This letter demonstrates an intention to appeal within 15 days of receiving notice of the Order. It is apparent that this intention has been maintained throughout.

12The first element of the test is met.

Explanation for the Delay

13The delay between March 23 (when the Order was issued) and March 29 (when Mr. Samuels first received it) is fully explained. This was completely beyond Mr. Samuels’ control.

14It was reasonable to seek a typed endorsement before filing the motion for leave to appeal. Parts of the handwritten endorsement are not easy to decipher. Mr. Samuels sought the typed endorsement promptly. It was provided to him on April 12, 2016.

15Mr. Samuels gave notice to the defendants that same day, on April 12, 2016, that he would be appealing the stay order. Mr. Samuels is not able to deliver material in person. He relies on a social worker at the prison to email things for him. The social worker emailed Mr. Samuels’ notice of appeal to the Court of Appeal in error. A Court of Appeal clerk forwarded it to the Divisional Court. On May 13, 2016 a staff member of the Divisional Court notified Mr. Samuels of some irregularities in his material, including that leave to appeal was required and that no affidavit of service was attached. He was also advised that he would need to pay a fee to file the material or obtain a waiver for the fee, and also that he would need to obtain an order extending the time for bringing the motion as the 15 days had by then elapsed.

16Mr. Samuels applied for a waiver of the filing fee. By the time this was obtained, the first available date for this motion was September 14, 2016. All three of the plaintiffs are unrepresented by counsel and all are in prison, two of them outside Canada. It was necessary for Andrie Samuels to apply for a judge’s order so that he could be brought from the Toronto South Detention Centre to the Courthouse at 361 University Avenue for the argument of his motion to extend the time. Arrangements were made through the corrections authorities in New York State to set up a video conference with Stacy-Ann Samuels at the institution where she is being held. Those services are not available at the correction facility in Ohio where Karone Johnson is being held. However, he was able to participate by audio conferencing. All of this took some time to set up.

17It has not been easy for Andrie Samuels to prepare, serve and file material from jail. However, he has managed to do so. The other two plaintiffs were content to rely on Andrie Samuels’ material and submissions.

18I am fully satisfied that the delay from April 2016 (when the material should have been filed) to October 20, 2016 (when the motion to extend the time was finally heard) has been adequately explained by the plaintiffs.

19The defendants could have simply agreed to the extension of time, but they have persistently refused to do so. Leave to appeal motions are done in writing. Had the defendants merely consented to the extension sought, the leave motion would have been disposed of long ago.

Merits of the Leave to Appeal Motion

20This was the only serious argument advanced by the defendants. Although the defendants frequently referred to the merits of the appeal itself, the motion before me is for leave to extend the time for the leave to appeal motion. It is the merits of the leave motion which I must consider in relation to the fourth element of the test, not the merits of the appeal itself.

21The test to be met for leave to appeal to the Divisional Court is set out in Rule 62.02(4). There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

22Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

23Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 8 O.R.(3d) 282 (Gen. Div. per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

24I have reproduced in paragraph 6 above the entirety of the reasons given by the motion judge for granting a stay. No case law is referred to and it is not apparent what test was applied.

25On Thursdays in Toronto, the Divisional Court is fortunate to have the assistance of pro bono duty counsel. For that reason, motions involving unrepresented parties are often scheduled for those days. On the Thursday this motion was argued, that assistance was very ably provided by Ms. Erin Pleet, who brought to the attention of the Court (and opposing counsel) the decision of the Ontario Court of Appeal in Schreiber v. Canada (Attorney General).⁴ At issue in that case was a motion by the Attorney General of Canada to stay a civil action pending the determination of an extradition proceeding in which Germany sought to have Canada return Mr. Schreiber to Germany to face criminal charges there. In the civil action, Mr. Schreiber sought damages against the governments of Canada and Germany for negligence and abuse of power. The motion judge granted the stay, but that decision was overturned by the Court of Appeal. On appeal, Carthy J.A. (for the majority) held that the threshold test for granting a stay of a civil action pending resolution of criminal charges is “a high one, requiring the demonstration of extraordinary or exceptional circumstances.”⁵ Carthy J.A. noted that the grounds upon which the Attorney General was seeking a stay in that case were that the same facts and law would be considered in each proceeding, that if there is an extradition the claim for damages will have little merit, and that multiplicity of proceedings and inconsistent findings can be avoided if a stay is granted. I note that these are similar to the grounds advanced in this case, and to the basis upon which the motion judge found a stay to be warranted. However, in Schreiber the Court of Appeal held that “if that was all that was required to stay a civil proceeding then all such proceedings would be stayed wherever there is an overlap with criminal proceedings.” The Court of Appeal held that this was not consistent with the general principle that “the parties start with a presumption against a stay” and the onus is on the party seeking the stay to show “exceptional and extraordinary circumstances.”⁶

26In fairness to the motion judge I must immediately point out that the Schreiber decision was not brought to his attention. It would appear that counsel for Rogers was unaware of the case, as he sought an adjournment to read it when Ms. Pleet raised it. I fail to understand how the Attorney General of Canada could have missed it, given that it is a well-known decision and the Attorney General of Canada was the ultimately unsuccessful moving party. Be that as it may, the point is that this decision was not before the motion judge when he made his decision. Further, the motion judge did not refer to the presumption against a stay, nor to the requirement of exceptional or extraordinary circumstances before a stay can be granted.

27I do not want to replicate here what the task will be of the judge deciding the motion for leave to appeal. However, it seems to me that there is some merit to the plaintiffs’ position that there is reason to doubt the correctness of the motion judge. I note as well that the motion judge does not appear to have taken into account the different status of Rogers which may, on a contractual basis, have privacy obligations to its customers (such as the plaintiffs) that might not be subject to scrutiny in criminal proceedings to which Rogers is not a party. There is not a complete overlap between the criminal and civil proceedings.

28Further, there is some merit to the plaintiffs’ position that issues of broad public interest are involved, such as privacy rights of Rogers customers and access to justice issues relating to the circumstances in which civil proceedings can be stayed pending the determination of criminal charges.

29It is at least arguable that the plaintiffs can meet the test in Rule 62.02(4)(b). It certainly cannot be said that there is no merit to their motion for leave to appeal.

The Interests of Justice

30No new arguments were advanced by the defendants with respect to why the extension should be refused “in the interests of justice.” Their arguments on this point were merely a rehash of their positions on the merits of the leave motion itself.

31It was suggested that Mr. Samuels is advancing the civil proceeding for an improper motive and in order to avoid the criminal proceedings. I fail to see how that can be the case. The criminal proceedings will certainly not be stayed pending resolution of the civil action, and there has been no suggestion that the accused is even seeking such relief. The plaintiffs commenced the civil actions before Andrie Samuels had even been charged with a criminal offence. There is no basis upon which either of the defendants can be said to have been prejudiced by the civil action continuing at the same time as the criminal charges, and they assert no such prejudice. On the other hand, the Court of Appeal held in Schreiber that “there is an element of prejudice in any stay order in that the plaintiff is denied early access that is sought.”⁷

32If anything, the interests of justice in this case favour granting the extension of time.

Order

33For these reasons, I find the plaintiffs have met the test for an extension of time. Andrie Samuels advised me that he has his material ready and would have no trouble delivering it within two weeks. Accordingly, I made an order that he deliver the materials by registered mail postmarked by November 3, 2016.

Costs

34Although acknowledging no prejudice to their own clients, counsel for the defendants pointed to the prejudice to the administration of justice and to the duplication of the court’s time and resources if both criminal and civil proceedings continue at the same time. It is indeed ironic that counsel for the defendants should express concern for the court’s time and resources. Their opposition to this motion was based entirely on the merits of Mr. Samuels’ position. They could have agreed to the extension of time and addressed the merits of the plaintiffs’ position in the leave to appeal motion in writing, advancing all of the same arguments they made before me as to whether there are reasons to doubt the correctness of the motion judge’s decision. That would have taken very little of the court’s time and resources and considerably less of the time and resources of the defendants. Instead, four or five months later, we had a full hearing that occupied almost an entire morning, with five counsel (including pro bono counsel who was volunteering her time as amicus), one party on audio conference from a prison in Ohio, one party on video conference from a prison in New York, and a third party being transported back and forth from a correctional facility in Toronto and housed in a cell at the Courthouse in Toronto for the motion, all at considerable time and expense for correctional staff in three facilities, security staff in Toronto and technical support staff in three separate jurisdictions. This was a colossal waste of time and money as the same issue will essentially have to be addressed by the judge hearing the motion for leave to appeal.

35On the stay motion, the motion judge awarded costs to the Attorney General in the amount of $4000 and to Rogers in the amount of $5000. The motion judge did not say what costs were sought by Rogers on the motion but stated that the amount sought was “excessive” and “beyond the expectations of the parties.”

36On the motion before me, the Attorney General filed a Bill of Costs seeking $7443.65 if successful. I do not have a Bill of Costs from Rogers. If they provided one, I made no note of it and it appears to have been misfiled. I can assume, however, that if successful, Rogers would have requested costs in at least that same order of magnitude.

37The plaintiff has been wholly successful on this motion and are entitled to costs. However, they are not represented by counsel and have no legal fees. The motion was prepared and argued by Andrie Samuels. The other two plaintiffs merely adopted hi position and incurred no costs. Given Andrie Samuels’ current circumstances, it is not appropriate to compensate him for the time he spent preparing the materials. He has incurred some expense for materials, photocopying and delivery costs. He did not have receipts but estimated his out-of-pocket expenses at $500. In these circumstances, and particularly in light of my view that the parties should simply have consented to the leave motion being dealt with in writing notwithstanding that it was filed late, I find the amount claimed to be reasonable. Those costs are payable forthwith to the plaintiff Andrie Samuels.

Role of Amicus

38I was greatly assisted on this motion by the submissions made by Ms. Pleet as amicus and am most grateful for the role she played. I believe that the judge hearing the motion for leave would also benefit from her assistance. These are not issues easily addressed by lay persons such as the plaintiffs. While I am certainly not ordering that such assistance be provided, it would be much appreciated if Ms. Pleet could provide a brief written submission on the legal principles involved and how they relate to the test for leave to appeal. If such a submission is provided to the Court, it obviously should be provided to the parties so that they have an opportunity to comment on it. Ms. Pleet shall be given full access to the court files if she requires it.

___________________________ MOLLOY J.

Footnotes

1. 1D’Andrie,Tahlia, Tattiyana and Tayia Samuels are minors. No litigation guardian was appointed. By Order dated December 4, 2015, McEwen J. struck out their claims without prejudice to their right to commence a claim that is properly constituted.
2. 2Although Rogers Communications Limited has been incorrectly named in the style of proceedings, it has defended the action in its correct name. No Order has been made amending the style of cause.
3. 3Although nothing turns on this for purposes of this motion, I note that the actual test as articulated by the Ontario Court of Appeal in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 is that there is an overarching principle whether the justice of the case requires an extension and that in determining whether the circumstances of a particular case warrants an extension it is relevant to consider the first four factors listed above.
4. 4Schreiber v. Canada (Attorney General)(2001), 153 O.A.C. 137, 160 C.C.C. (3d) 131, 206 D.L.R. (4th) 577, 57 O.R. (3d) 316 (O.C.A.)
5. 5Ibid, para. 4
6. 6Ibid, para. 43, per Morden J.A. (concurring)
7. 7Ibid at para. 8, per Carthy J.A.