CITATION: John v. OIPRD and Peel Regional Police, 2017 ONSC 42

COURT FILE NO.: DC-15-133-00

DATE: 2017 01 17

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: DARREN JOHN, Appellant

AND:

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR, PEEL REGIONAL POLICE and CONSTABLE PANELLA, Respondent

BEFORE: EMERY J.

COUNSEL: DARREN JOHN, appearing for himself

TOM SCHREITER, for the Respondent, The Office of the Independent Police Review Director

RAFAL SZYMANSKI, for the Respondents Peel Regional Police and Constable Panella

HEARD: August 29, 2016 and October 12, 2016

DECISION ON APPEAL

Table of Contents

Overview.. 2

The trial decision below.. 5

Cross-Appeal of Peel Regional Police. 6

Analysis. 8

Issue #1 – Purpose and Duration of the Detention. 8

Issue #2 - Speeding Ticket 13

Issue #3 – Ticket under the Compulsory Automobile Insurance Act 17

Issue #4 – Findings based on Demeanor alone. 18

Conclusion. 23

Mr. John’s Appeal 24

Ground #1 – Review of Damages. 24

Damages Arising from a Charter breach. 25

Damages Arising from Harassment 26

Damages Arising from an Abuse of Process. 27

Damages Based on HRTO Cases. 28

Conclusion Re: Damages. 34

Ground #2 - Appeal of Liability against the Office of the Independent Police Review Director 34

Analysis. 35

Costs. 39

Overview

[1] The appellant Darren John appeals from the judgment of Deputy Judge F. Wood dated November 4, 2015 for the $500 in damages he was awarded against the respondents Peel Regional Police and Constable Panella at trial. Mr. John also appeals the dismissal of his claim as against the Office of the Independent Police Review Director (“OIPRD”).

[2] Peel Regional Police brings a cross-appeal on the finding made by the deputy judge that Constable Panella’s decision to issue two traffic tickets to Mr. John was motivated in part by his race.

[3] Section 31(a) of the Courts of Justice Act, R.S.O. 1990, c C.43 provides that an appeal lies to the Divisional Court from a final order of the Small Claims Court in an action for the payment of money in excess of the prescribed amount, excluding costs. Section 2(1) of O. Reg. 626/00 sets the prescribed amount at $2,500. In the underlying action, Mr. John claimed $25,000 in damages at Small Claims Court. Therefore, a single judge of the Divisional Court has jurisdiction to hear this appeal under section 21(2)(b) of the Courts of Justice Act.

[4] The judgment obtained by the appellant against the various respondents arose from the following sequence of events:

a. At approximately 4:20 am on July 8, 2010, Constable Panella and Constable Rose of Peel Regional Police were parked in their respective police cruisers in the parking lot of a McDonald’s restaurant on Lakeshore Road East in Mississauga. They observed a vehicle drive by in a westerly direction on Lakeshore Road East. Constable Panella and Constable Rose each pursued that vehicle in their police cruisers and found the vehicle parked in a parking lot of a Country Style donut shop some 490 meters away. It was this vehicle Mr. John was operating on Lakeshore Road East when he drove by the parked cruisers that morning.

b. Mr. John had exited his vehicle and was walking towards the Country Style donut shop when Constable Panella’s police cruiser pulled into the parking lot, followed by the patrol car operated by Constable Rose. Mr. John immediately returned to his vehicle, got back into it, and rolled up the window while he waited for the two police officers to approach him.

c. Constable Panella made a demand upon Mr. John to provide a breath sample for any alcohol in his system. This demand was made to Mr. John through a narrow gap in the window on the driver’s side of Mr. John’s vehicle after he had rolled down the window to that extent to speak to the police officers.

d. Mr. John called 911 to request that a supervisor from Peel Regional Police attend at the scene.

e. Constable Panella also radioed for a supervisor to attend the scene.

f. Constable Panella ultimately withdrew the demand that Mr. John submit to a breath test. However, Constable Panella issued a ticket to Mr. John for driving at a speed exceeding the posted limited under section 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8.

g. Mr. John could only produce the photocopy of a certificate of insurance upon Constable Panella’s request that he produce proof of insurance. Constable Panella therefore issued a ticket to Mr. John for failing to produce an original certificate of insurance pursuant to section 3(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25.

h. Mr. John was detained by Constables Panella and Rose for approximately 45 minutes in all.

i. Mr. John attended at the Provincial Offences Court on two subsequent occasions to defend those tickets. On the second attendance, the prosecutor withdrew both tickets.

j. Mr. John subsequently made a complaint against the police officers and Peel Regional Police to the Office of the Independent Review Director (“OIPRD”), alleging that he had been stopped because he is a black man and that the police officers had racially profiled him. Mr. John also complained to the OIPRD that Peel Regional Police has targeted him and that the OIPRD has not responded to previous complaints he has made that he has been a target of Peel Regional Police on previous occasions.

k. The OIPRD dismissed Mr. John’s complaint.

The trial decision below

[5] Mr. John brought a claim in the Brampton Small Claims Court against Constable Panella and Peel Regional Police, as well as the OIPRD. The proper defendant to name to bring an action against police officers or their police service would have been the Regional Municipality of Peel Police Services Board. No issue was made of it by the respondents, and I make no issue of it now.

[6] The trial of Mr. John’s claim took place over three non-consecutive days between November 7, 2012 and June 19, 2014. On November 4, 2015, Deputy Judge F. Wood released her judgment. The deputy judge determined that Constable Panella had breached Mr. John’s rights under s. 9 of the Charter of Rights and Freedoms. That determination was based on findings of fact that Constable Panella had unlawfully detained Mr. John, and that he had issued the speeding ticket and the ticket for not producing an original certificate of insurance partly because of Mr. John’s race.

[7] Deputy Judge Wood granted Mr. John damages in the amount of $500 for that breach of his rights under the Charter. The deputy judge dismissed the claim as against the OIPRD upon finding that, although the investigators did not follow proper protocol, there was no evidence they had acted in bad faith. In the absence of evidence of bad faith, the OIPRD and its employees are protected under section 26.1(12) of the Police Services Act, R.S.O 1990, c. P.15.

Cross-Appeal of Peel Regional Police

[8] I will deal with the cross-appeal first, as it involves the finding of fact by the deputy judge against Constable Panella that gave rise to the finding of liability against the police for which judgment was granted.

[9] Peel Regional Police and Constable Panella appeal the finding of the deputy judge that Constable Panella was motivated in part by Mr. John’s race when he issued the two tickets to him. The cross appellants base their appeal on two essential grounds. First, they submit that Constable Panella had reasonable and probable grounds to stop and question Mr. John during that early morning encounter in the Country Style parking lot. They say that Constable Panella had a statutory basis under the Highway Traffic Act and under the Compulsory Automobile Insurance Act, to issue tickets to him. In each respect, it is their submission that Mr. John’s race was not a factor.

[10] The second ground of appeal is legal in nature: the cross appellants submit that the deputy judge based her finding that Constable Panella was motivated to issue the two tickets to Mr. John in part because of Mr. John’s conduct and in part because of Mr. John’s race exclusively on Constable Panella’s demeanor on the witness stand. This finding of fact was the foundation for the conclusion of the deputy judge that Mr. John’s detention was improper, and therefore a breach of his rights under s. 9 of the Charter. The cross appellants argue that the deputy judge erred by relying on Constable Panella’s demeanor alone to make this finding.

[11] Constable Panella raises four grounds on which to appeal the finding that Mr. John’s right under s. 9 of the Charter was breached:

(1) Constable Panella and Constable Rose did not park their police cruisers to block Mr. John from driving away as the reason for the duration of the stop.

(2) Constable Panella had reasonable grounds to issue Mr. John a speeding ticket.

(3) Constable Panella had reasonable grounds to issue Mr. John a ticket for failing to provide an original certificate of insurance; and

(4) The deputy judge erred in law by making the finding that Mr. John’s race was part of the reason Constable Panella issued those tickets to him.

Analysis

Issue #1 – Purpose and Duration of the Detention

[12] Constable Panella testified that his attention was drawn to the vehicle Mr. John was driving because it drove by at a high rate of speed on Lakeshore Road that morning. He testified that he confirmed his observations with Constable Rose at the time.

[13] The deputy judge found as a fact that Constable Panella and Constable Rose did not have the opportunity to see Mr. John inside his motor vehicle. Neither officer had the opportunity to determine his skin colour when Mr. John drove past the McDonald’s parking lot where their patrol cars were parked. The deputy judge determined that “the initial decision to pursue (Mr.) John was not motivated by his race”.

[14] Mr. John had already pulled into the parking lot of the Country Style donut shop, exited his motor vehicle, and was in the process of walking towards the restaurant when Constable Panella and Constable Rose arrived. By the time they parked their patrol cars near Mr. John’s vehicle, Mr. John had returned to his motor vehicle. There was no stop by the police officers, as Mr. John had already brought his vehicle to a standstill.

[15] Constable Panella made a demand upon Mr. John to provide a breath sample through the driver’s side window. Mr. John had only rolled down the car window to provide a narrow gap to speak with the police officers. There is no finding of fact by the deputy judge that there was anything improper about the demand made by Constable Panella on Mr. John to provide a breath sample. In fact, the deputy judge states that Mr. John “improperly refused to give a breath sample when required to do so, accused (Constable) Panella of making threats he did not make, and was speaking in an agitated and argumentative fashion. The officers, at least initially, had some grounds to believe that (Mr.) John was intoxicated”.

[16] It was at this precise moment that Mr. John complained that he was being harassed because of his race, and demanded to speak with a police supervisor. The deputy judge heard evidence that Constable Panella or Constable Rose called police dispatch for a supervisor to attend the scene. Mr. John also called 911, and requested that Peel Regional Police send a supervisor to the scene. Several times during this time, when making those calls, Mr. John expressed his belief that he was being racially profiled, threatened and harassed.

[17] Mr. John rolled his window down further upon the arrival of the police supervisor. The police officers in attendance then determined that no breath sample was required, and the demand for a breath sample was withdrawn. By this time, a significant amount of time towards the total 45 minutes had elapsed. Constable Panella then asked Mr. John to produce his driver’s licence, registration and insurance papers.

[18] In my view, the wait for the supervisor occurred with the mutual consent of the police officers and Mr. John. Constable Panella and Peel Regional Police gave evidence that the officers did not park their cruisers simply to block Mr. John from driving away for any improper reason. Mr. John was still under the demand to provide a breath sample. The deputy judge herself “…accept[ed] that (Constables) Panella and Rose has reason to suspect that (Mr.) John was either intoxicated or under the influence of some other drug and therefore had reason to detained (sic) him to conduct further investigation.”

[19] All of the above findings made by the trial judge were supported by the evidence given at trial. There is no reason to interfere with these findings. I therefore conclude that the purpose and duration of Mr. John’s detention up to the time the demand for a breath sample was withdrawn was not arbitrary.

[20] The deputy judge found that Constable Panella subsequently issued traffic tickets to Mr. John for an improper purpose. The deputy judge explained it this way in her reasons:

60 To start, I accept that the issuing of the tickets is an extension of the detention and can therefore constitute a Charter breach. Having found that race was one of the motivating factors behind Panella's actions, the otherwise lawful basis for stopping John became invalid. The stop having been therefore rendered unlawful, so too was the issuing of the tickets rendered unlawful and thus constituted a breach of John's Charter rights. [emphasis added]

[21] In R v Nolet, 2010 SCC 24, [2010] S.C.R. 851, the Supreme Court of Canada considered the appellants’ argument that a regulatory traffic stop that is lawful at the outset can become tainted when a police officer uses that stop to search the vehicle to investigate criminal activity. In that case, the police pulled over a commercial truck driven by the appellants in accordance with their authority under Saskatchewan highway traffic legislation. The police then conducted a searched that ultimately led to criminal charges against the appellants. The Supreme Court wrote that “…roadside stops sometimes develop in unpredictable ways. It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry…”

[22] The Supreme Court in Nolet went on to say:

[22] The appeal also engages s. 9 of the Charter (“the right not to be arbitrarily detained or imprisoned”). A random vehicle stop on the highway is, by definition, an arbitrary detention: Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257 (hereinafter “Ladouceur (Ont.)”); Mellenthin; and R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214. The detention will only be justified under s. 1 of the Charter (Hufsky, at p. 637) if the police act within the limited highway-related purposes for which the powers were conferred (Ladouceur (Ont.), per Cory J., at p. 1287).

[23] In Nolet, the Court found the police officers did not abuse their power in a manner that violated the Charter rights of the individuals at issue, having regard to the totality of the circumstances.

[24] In Brown v. Regional Municipality of Durham Police Service Board, 43 O.R. (3d) 223, the Court of Appeal for Ontario addressed the following question: “Can purposes other than those related to highway safety matters take the stops and subsequent detentions outside of the ambit of s. 216(1) of the H.T.A. and render those stops unlawful?” In answer to that question, Justice Doherty wrote for the court:

“While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose…”.

[25] In the circumstances of this case, I find that issuing the traffic tickets to Mr. John under provincial legislation did not amount to a violation of Mr. John’s rights under the Charter. The officers had a legitimate purpose under the Highway Traffic Act to pursue and detain Mr. John, whom they viewed as driving above the speed limit, and later, whom they had reason to believe may have been impaired while driving his vehicle. At each step, the officers acted within the ambit of their statutory powers conferred to them under the Criminal Code, Highway Traffic Act and Compulsory Automobile Insurance Act. It was an error at law to characterize the issuing of these tickets as an improper and unlawful detention because of its purpose and duration.

Issue #2 - Speeding Ticket

[26] A great deal of time at trial was taken up with the evidence Mr. John had obtained from Peel Regional Police of the GPS coordinates for each patrol car in relation to his own motor vehicle. Mr. John relies on this evidence to show that the stop and detention was unreasonable because there were no grounds to charge him with travelling at a speed in excess of the posted limit.

[27] The deputy judge analyzed the GPS evidence and determined the following:

26 The GPS evidence established that the entire pursuit took just over one minute and covered approximately 550 metres. Panella's evidence that he travelled about 1 kilometre and never exceeded 100 km/hr was not borne out by the GPS evidence. For the first 20 seconds of the pursuit, he accelerated from a full stop to at least 110 km/hr. 23 seconds later, he had slowed down to 65 km/hr and within about another 15 seconds, he was already in the Country Style parking lot. No expert evidence was called on the subject of "pacing", but Panella testified that he had been trained in that technique. He testified that he had established a consistent distance between himself and John for long enough to establish that John was travelling at 70 km/hr. Given that John would have had to decelerate before turning into the Country Style parking lot, it defies logic that he was able to maintain a pace of 70 km/hr for any period of time during the pursuit to be able to "pace" John's vehicle. I do not accept Panella's evidence on this point.

32 Having found that Panella could not have paced John's vehicle as he alleged he did, he had no reasonable basis on which to issue John a ticket for speeding…

[28] Constable Panella and Peel Regional Police submitted at trial and on appeal that Constable Panella had sufficient grounds on which to issue the speeding ticket in the execution of his duties as a police officer. Section 128(f) of the Highway Traffic Act prohibits all drivers from driving at a speed above the posted limit. This prohibition includes the speed of vehicles travelling along Lakeshore Road East in the area of Cawthra Road at a speed greater than the posted 50 km/hr permitted.

[29] Section 216 of the Highway Traffic Act further provides that a police officer, in the lawful execution of his duties and responsibilities, may stop a motor vehicle for safety concerns.

[30] The fact that this charge was later withdrawn is irrelevant to the issue of whether there were sufficient grounds for Constable Panella to issue the speeding ticket in the first place. The withdrawal of a speeding ticket is not a concession that there was no proper case to prosecute. The withdrawal of a ticket by the police prosecutor is, in and of itself, no evidence of bias or motive: Ahmadoun v. Ontario (Attorney General), 2012 ONSC 955, 281 C.C.C. (3d) 270. See also Solomonvici v. Toronto (City) Police Services Board, [2009] O.J. No. 3144, affirmed on appeal at [2010] O.J. No. 408 (Ont. C.A.).

[31] In any event, the deputy judge did not rely on the withdrawal of the charges against Mr. John in reaching her conclusion that the tickets issued to Mr. John were improper:

[9] …Ultimately, the Crown dropped those charges. Although (Mr.) John led evidence about the conversation between the Crown and Panella, I did not accept that evidence as proof of the Crown's reasons for dropping the charges. It is hearsay evidence and he was not part of the conversation but only overheard portions of it and accordingly it does not meet the test for reliability.

[32] The deputy judge reviewed the GPS evidence and the evidence of each witness given at trial. She found that Constable Panella issued the speeding ticket despite a lack of reasonable grounds for doing so. It was open for the deputy judge to rely on the GPS evidence to find that there was no reasonable or evidentiary basis to issue Mr. John the speeding ticket, contrary to Constable Panella’s testimony. Absent a palpable and overriding error, this finding should not be overturned: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. at para 36.

[33] I find that the deputy judge did not err in her finding that the speeding ticket was issued for an improper purpose. A finding that Constable Panella issued the speeding ticket because of Mr. John’s belligerent and disrespectful behaviour is more consistent with the evidence given at trial. However, that is but one reason for the speeding ticket, as the deputy judge accepted the evidence of Constable Panella and Constable Rose that, upon observing Mr. John’s vehicle drive past them, they believed he was speeding and elected to pursue him (at paragraph 26 of her reasons).

[34] Police officers rely upon different methods to determine whether grounds exist to support a charge of driving above the posted limit. Such methods include visual assessment, pacing, mechanical road cables, radar and aerial monitoring. One method is not more or less effective than others when it is used properly. See R. v. Williams, [2008] O.J. No. 1078 (O.C.J.) and R. v. Antunes, [2004] O.J. No. 4898 (O.C.J.).

[35] To determine whether a police officer has cause to charge an individual, the officer must show a “constellation of objectively discernable facts” that supports the officer’s discretion to issue the charge. See R. v. Calderon, [2002] O.J. No. 2583 (SCJ). On considering the scope of that discretion, the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional District Services Board, 2007 SCC 41, [2007] SCJ No. 41 explained it this way in the context of the law of negligent investigation:

73 I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care. (See Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; Folland v. Reardon (2005), 74 O.R. (3d) 688 (C.A.); Klar, at p. 359.).

[36] Any finding by a court on certain evidence given by one party or another must be consistent with the finding of the trial judge elsewhere in her or his decision. As the deputy judge accepted the evidence of the officers that it was reasonable for them to pursue Mr. John’s vehicle because they observed him to drive by their patrol cars at a higher rate of speed than permitted, Constable Panella had reasonable cause to believe that he had grounds to issue the speeding ticket to Mr. John.

Issue #3 – Ticket under the Compulsory Automobile Insurance Act

[37] Constable Panella issued a ticket to Mr. John for failing to produce a certificate of insurance, contrary to s. 3(1) of the Compulsory Automobile Insurance Act. Mr. John only produced a photocopy of his certificate of insurance when he was asked to provide proof of insurance for his vehicle. The deputy judge found there were no grounds to issue the ticket because “nothing was tendered at trial” to establish whether or not the photocopy was legible.

[38] The standard of appellate review on a question of law is correctness: Housen v. Nikolaisen.

[39] Courts have found that photocopies or fax copies of documents such as certificates of insurance are inadequate substitutes for the original. Failure to provide an original certificate of insurance can lead to a conviction: R. v. Marrocco, 2012 ONCJ 535, [2012] O.J. No. 4021, and R. v. Toribio, [2009] O.J. No 5873 (OCJ).

[40] I find that the deputy judge erred at law when she found that Constable Panella lacked sufficient grounds to issue this ticket.

Issue #4 – Findings based on Demeanor alone

[41] The deputy judge made the finding of fact that Constable Panella was motivated in part because of Mr. John’s race when he issued the two tickets to Mr. John in the early morning of June 8, 2010. The deputy judge explains the basis for this finding of fact at para. 34 of the trial reasons:

34. As is often noted by appeals courts, trial judges have a unique ability to observe the witnesses, to assess their credibility and decide what to believe and what not to believe. I carefully observed the witnesses throughout the trial, not only their words but also their body language and facial expressions. When Rose was asked whether race played a role in his actions that evening he answered “No”. His demeanour suggested candour and credibility. By contrast, when Panella was asked whether race played a role in issuing the two tickets to John and he answered, “No”, his demeanour and facials suggested that his evidence was not entirely credible. I therefore find on a balance of probabilities that Panella, in issuing two tickets to John was motivated, at least in part, in part by his irritation to John’s behaviour and in part by his race.

[42] It is important to recognize that any finding by a court that a decision of a police officer made in the course of his or her duties was motivated by reasons of race, or that he or she has acted in a racially discriminatory fashion, is a very serious matter. Such a finding may follow a police officer throughout his or her career. It is not difficult to imagine that a finding of this nature could cause the officer difficulty when giving evidence in subsequent cases, or in his or her career advancement. This was recognized in part by the Divisional Court at para. 178 of Toronto (City) Police Service v. Phipps, 2010 ONSC 3884, 325 D.L.R. (4th) 701:

Reaching a conclusion that a person has acted in a racially discriminatory fashion is an extremely serious finding, especially so where the person holds a public office as police officers do. Suspicion about a person's motivations is an insufficient basis to reach such a conclusion. There must be a solid evidentiary foundation for such a finding and the evidence that forms that foundation must be set out with clarity. Reasons are the structure in which factual findings that support a conclusion by a court or tribunal are enunciated. They are the vehicle by which the basis for a finding is communicated to the interested parties and to others. The purpose that reasons serve was outlined in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 where McLachlin C.J.C. said, at para. 25:

The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functions reasons serve - to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal.

[43] This case makes it clear that a solid evidentiary foundation is also necessary to make a finding that the act or decision of a public official was based on the race of another person. It is equally clear that the evidence on which the court relies to make such a finding must be articulated with clarity.

[44] The Court of Appeal in R. v. Norman, stated that where there are many inconsistencies in the evidence, it is not enough to assess credibility on the basis of demeanour alone. Quoting earlier decisions, including the decision of the B.C. Court of Appeal in Faryna v. Chorny, the court held that:

47 I do not think that an assessment of credibility based on demeanour alone is good enough in a case where there are so many significant inconsistencies. The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount. So far as Mrs. Goebel is concerned, her evidence is inherently hard to credit, and should have been subjected to closer analysis. For the purposes of this case, I adopt what was said by O'Halloran J.A., speaking for the British Columbia Court of Appeal in Faryna v. Chorny (1951), 1951 252 (BC CA), 4 W.W.R. (N.S.) 171 at p. 174, [1952] 2 D.L.R. 354:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

O'Halloran J.A. pointed out later at p. 175 that "[t]he law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses". He had also made this latter remark in an earlier criminal case: R. v. Pressley (1948), 94 C.C.C. 29 at p. 34, 7 C.R. 342 (B.C.C.A.).

[45] See also R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181, in which the Court of Appeal revisited the dangers of assessing credibility only on the demeanour of a witness:

85 Cases in which demeanour evidence has been relied upon reflect a growing understanding of the fallibility of evaluating credibility based on the demeanour of witnesses: see Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. G. (P.), 2012 ONSC 4646, 104 W.C.B. (2d) 390, at paras. 31-33; 9129-9321 Quebec Inc. v. R., 2007 TCC 2, [2007] T.C.J. No. 23, at para. 31; R. v. Powell, [2007] O.J. No. 555, at paras. 9-10. It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.

[46] The Supreme Court of Canada in R. v. S.(N.), 2012 SCC 72, [2012] 3 S.C.R. 726, further endorsed the fundamental principle found in Faryna v. Chorny by stating at para. 99 that:

Moreover, while the ability to assess a witness’ demeanour is an important component of trial fairness, many courts have noted its limitations for drawing accurate inferences about credibility. In Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354, for example, the British Columbia Court of Appeal held that relying on the “appearance of sincerity [would lead to] a purely arbitrary finding and justice would then depend upon the best actors in the witness box” (p. 356). According to the court, demeanour “is but one of the elements that enter into the credibility ... of a witness”, with other factors including the witness’ opportunity for knowledge, powers of observation, judgment, memory and ability to describe clearly what he or she has seen and heard (pp. 356-57).

[47] The deputy judge confirms that Constable Panella answered “No” when he was asked whether race played a part in his decision to issue tickets to Mr. John. She found at paragraph 33 of her reasons that Constable Panella made no “overtly racialized statements”. However, the deputy judge expressed the belief that it was incumbent upon her to determine, on the balance of probabilities, whether race played a part in the actions of Constable Panella based primarily on her own observations of the witnesses at trial. The deputy judge subsequently made the finding that Constable Panella’s decision to issue the traffic tickets was based in part on Mr. John’s race, and in part based on his behaviour at the time.

[48] There is no evidence on the record to support the finding that Constable Panella was motivated in any way because of Mr. John’s race when he issued the two tickets. To be clear, the deputy judge awarded damages to Mr. John for the motivation behind the decision of Constable Panella to issue the tickets, not for the span of time Mr. John was allegedly detained. Where there is a legitimate explanation for police actions, the court should reject the claim that the activity was racially motivated: Peart v. Peel Regional Police Services.

[49] This finding of fact by the deputy judge was based on Constable Panella’s demeanour when giving evidence. The deputy judge reached that conclusion on an assessment of Constable Panella’s credibility based on his demeanor when she should have made her credibility findings on the totality of the evidence. The evidence before her included Constable Panella’s denial that race was a factor in his decision to issue tickets to Mr. John, and her acceptance of the evidence given by Constable Rose that race did not play a part in that decision. The deputy judge did not resolve either inconsistency in her reasons.

[50] The deputy judge was not without concern about the credibility of Mr. John’s own evidence. The deputy judge did not find, on a balance of probabilities, that Constable Panella threatened to break Mr. John’s window and haul him over the broken glass. This assertion was made by Mr. John at trial. The deputy judge again accepted the evidence of Constable Rose, whom she found to be an entirely credible witness, instead of Mr. John’s evidence on this allegation.

[51] Constable Rose corroborated Constable Panella’s evidence to establish reasonable grounds to demand a breath sample. In the background of the 911 calls, Constable Panella is heard speaking calmly to Mr. John. Despite Mr. John’s evidence, the deputy judge disbelieved Mr. John and found no merit to the claim that Mr. John had been harassed by Constable Panella.

[52] On the totality of the evidence, I conclude that the deputy judge made a palpable and overriding error in making a credibility assessment against Constable Panella, and in finding that his treatment of Mr. John was motivated even in part by Mr. John’s race. It is therefore appropriate for this court to reverse that finding of fact.

Conclusion

[53] I therefore conclude that Mr. John’s rights under the Charter were not breached. I further find that Officer Panella had reasonable grounds to the ticket under the Compulsory Automobile Insurance Act. I will not interfere with the deputy judge’s finding that the issuance of the speeding ticket was improper, but hold that Constable Panella was not motivated in any way by Mr. John’s race when he issued that ticket.

[54] The cross-appeal of Peel Regional Police and Constable Panella is allowed, and the judgment against each of them is set aside, along with the costs award to Mr. John dated January 8, 2016.

Mr. John’s Appeal

Ground #1 – Review of Damages

[55] Mr. John brought his action against Peel Regional Police and Constable Panella, for a claim which the deputy judge characterized as a breach of his rights under s. 9 of the Charter of Rights and Freedoms. Mr. John appeals the judgment of the deputy judge granting him judgment in the amount of $500.

[56] Mr. John had claimed damages in the amount of $25,000, framed this way on page 2 of his Claim:

“the OIPRD has neglected their duty, and the Peel Police have breached trust, harassed, threatened and caused me undue stress based on the racial profiling of me. I incurred costs of obtaining GPS records from their vehicles as well as filing defense and time off from work and punitive damages, pain and suffering and the embarrassment of being surrounded by all those police cars that night as if I were a criminal and I am not.”

Damages Arising from a Charter breach

[57] The deputy judge found at paragraph 64 of her reasons that Mr. John had given little in the way of evidence regarding his damages. She noted that he had been put to the expense of ordering GPS recordings to fight the traffic ticket, and that he had taken two days off work to attend the Provincial Offences Court. The deputy judge also noted that although Mr. John had alleged a variety of mental distress issues arising from his interactions with the police, he had received no medical treatment for his alleged ailments.

[58] The trial reasons recognize that the Supreme Court of Canada has set out a four step process to determine an “appropriate and just remedy” for any Charter breach in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 [Ward]. The deputy judge then stated as follows in paragraph 66 of her reasons:

66. I have found a Charter breach. When compensation is one factor, so are vindication and deterrence. Panella’s conduct was improper but not egregious. While race played a factor in his actions, it is not the only factor. John’s own conduct during the traffic stop played a significant role in how Panella treated him and he must bear some responsibility for that.

[59] After the deputy judge found a breach of Mr. John’s rights under the Charter, she properly followed the four step process to determine the amount for damages to award for a breach of a Charter right as set out in Ward.

[60] For this appeal, the respondents also rely on Mason v. Turner, 2014 BCSC 211, a decision of the Supreme Court of British Columbia where the Ward process was applied. In that case, the plaintiff had been unlawfully detained for 45 minutes, and had been subjected to a body search. The court in Mason v. Turner found that the search had been conducted reasonably, and that the complainant’s rights under s. 7, 8, 9 and 10(a) had not been violated. However, the court found that the complainant’s right under s. 10(b) of the Charter to retain and instruct counsel without delay and to be informed of that right had been breached. The court awarded damages in the amount of $500 upon applying the factors under Ward.

[61] The deputy judge in this case applied the correct test from the Ward decision. As the standard of appellate review is correctness, there is no basis to interfere with the conclusion of the trial judge for applying the correct law and legal principles to the facts. As there was little evidence given by Mr. John at trial on damages, I can find no palpable and overriding error by the trial judge on the difficulty she encountered to make factual findings to support the damages claimed.

Damages Arising from Harassment

[62] The deputy judge goes on (at paragraph 61) to find no merit in Mr. John’s claims that Constable Panella harassed Mr. John. I accept the deputy judge’s determination as I see no palpable and overriding error on the findings of fact she made or the evidence on which she based those findings. Therefore, Mr. John is not entitled to damages on the basis that he was harassed by Constable Panella.

Damages Arising from an Abuse of Process

[63] While I find that Mr. John’s rights under the Charter were not breached, there remains the possibility that Mr. John is entitled to damages on the basis of an abuse of process.

[64] The deputy judge considered the possibility of an abuse of process claim at paragraphs 62 and 63:

62 A claim for abuse of process requires that the plaintiff establish 1) the plaintiff is a party to a legal process initiated by the defendant; 2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; 3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and 4) some measure of special damage has resulted (see Harris v. GlaxoSmithKline Inc., 2010 ONCA 872 (Ont. C.A.))

63 The second branch of the test requires that the predominant purpose be the furthering of an improper motive. While I believe that improper motive was a factor in Panella issuing John 2 tickets, I do not believe that it was the predominant purpose.

[65] The deputy judge found that while an improper motive was a factor in Constable Panella’s decision to issue those tickets to Mr. John, it was not the predominant purpose. As discussed above, the deputy judge accepted to evidence of the police officers that Mr. John had driven by them at a speed in excess of the posted limited. In view of this finding, Mr. John failed to prove at trial or to show a reversible error on appeal that would prove this essential element of the tort known as abuse of process.

[66] I agree with the deputy judge’s analysis. Accordingly, I dismiss Mr. John’s appeal for the failure of the trial court to award any damages on the basis that the police engaged in an abuse of process.

Damages Based on HRTO Cases

[67] The deputy judge raised the issue with Mr. John about what evidence he relied upon to seek damages as a remedy for any breach of his rights under the Charter. Mr. John answered the deputy judge at page 38 of the transcript in this way:

DARREN JOHN: It’s, it’s punitive damages against both because the OIPRD operated in bad faith and Peel Regional Police just, harassed, was, harassed me…

THE COURT: OK.

DARREN JOHN: And lied, uttered false documents and what not, so punitive damages against each for I guess $12,500.00. And then what, what, whatever is the maximum awardable cost available from the court, and then for time off from work. I had, I had to go two times to traffic court for this, plus to take off a day to give them the evidence. So three days in total or I’d say $150.00 per day from work, which would be $450.00. Time off from work to come to fight this matter, or, or, or, or litigate this matter. And it’s been, they had a motion, a settlement conference and, and a trial. Another, that was $400.00, sorry, that’s $900.00. Plus legal advice I had to seek for this. Which, that came to about $250.00, just for the advice for an hour. Let me think about what else there is left. All these requests for DVDs that was…

[68] And on page 9, the court asked:

THE COURT: … of the action itself at the end. But is there anything else that, that you’re basing your claim for the $25,000.00? Any other damages or anything like that that you’re alleging?

DARREN JOHN: No just, just inconvenience, harassment, suffering, pain and suffering. That’s, that’s basically what it is.

THE COURT: Well, you said pain and suffering but I don’t have any evidence of, of that.

DARREN JOHN: Well, the pain and suffering more like the mental anguish of every time I, I go out I get pulled over by the police and, and, and nothing ever comes of it. This is, this like, this lawsuit, the only reason I’m, I’m suing this one particular time is because this is the only time I’ve had the most amount of evidence like, if you don’t have solid evidence as in recordings or proof that they didn’t do what they’re saying, it normally goes nowhere. So the only reason, only reason I didn’t, I didn’t get a chance to sue the other time was because I would have had no, no actual proof, such as the DVD which I’m entering. …

[69] Although Mr. John did not provide any authority for greater damages on the first attendance for this appeal, he was given leave to file authorities to support his appeal on damages for the next attendance on October 12, 2016. For that attendance, Mr. John filed the following cases from the Human Rights Tribunal of Ontario (“HRTO”) as authority for damages awarded under the (Ontario) Human Rights Code, R.S.O. 1990, c H.19:

a. Nassiah v. Peel (Region Municipality) Services Board, 2007 HRTO 14

b. Phipps v. Toronto Police Services Board, 2009 HRTO 1604

c. Maynard v. Toronto Police Services Board, 2012 HRTO 1220; and

d. Briggs v. Durham Regional Police Services, 2015 HRTO 1712.

[70] I do not consider the decisions from the HRTO on which Mr. John relies for his appeal on damages to be applicable. In each of those cases, the claimant provided evidence of some injury or loss.

[71] In Nassiah, the complainant had suffered discrimination against her on the basis of race by the Peel Region Municipality Service Board. The complainant had been accused of stealing an article of clothing from a store at the Dixie Mall, followed by a detention at the store. She testified that she had been distraught during most of the investigation. Her parents ultimately travelled from Trinidad to stay with her for a couple of months in the summer of 2003 to cheer her up. She experienced nightmares, poor appetite, sleepless nights, fear of elevators and became more withdrawn as she could not focus at work and made many errors. She sometimes took time off work without pay because she was so traumatized and upset. She sought treatment from her family physician in the months following the incident.

[72] While the adjudicator did not fully accept Ms. Nassiah’s evidence that her severe emotional trauma had continued unabated until the hearing, the adjudicator found that the conduct of the investigating officer, and the degree of emotional upset caused to Ms. Nassiah amounted to “mental anguish” under the Code.

[73] The adjudicator found that Ms. Nassiah’s reaction to the incident at the root cause of the complaint was due in part to the unlawful detention by the store and the treatment that she received. She had been detained for a total of two hours. It was found that 45 minutes to one hour of that detention was due to the actions of the investigating officer. The adjudicator awarded $20,000.00 for general damages and mental anguish.

[74] In Maynard, the complainant was awarded $40,000.00 for injury to his dignity, feelings and self-respect. He had been followed home in his car by the police, and “taken down” in front of his own home. The complainant had testified that he had been terrified by the experience. He was humiliated in front of friends and neighbours, and experienced a profound sense of shame. He testified that he had changed his driving habits and avoided activities that might bring him within the presence of the authorities within his community. The adjudicator found there to be no dispute that the complainant carried with him a lasting sense of anxiety and fear whenever he would see a police officer.

[75] In Briggs, the complainant had testified about the lasting impact of the incident, including a tendency to isolate himself, and a tendency to feel overwhelmed. Although to adjudicator found that the complainant exaggerated the impact of the incident giving rise to the complaint, she accepted that the complainant had suffered in the form of feeling subjected to racial profiling as a black man by the police service. Having regard to all of the evidence given by the complainant, the adjudicator awarded $10,000 in damages.

[76] In Phipps, the adjudicator accepted the complainant’s evidence that he had been deeply traumatized and angered by the events giving rise to the complaint he had made against the police. The adjudicator found it appropriate to consider the applicant’s heightened sensitivity to his interaction with police. The adjudicator took into account the findings that the complainant had been followed and stopped by the investigating officer, at least in part, because of the colour of his skin, and that the officer continued to ask questions about the applicant after briefly interacting with him. However, the adjudicator declined to make findings that the officer had been rude, intimidating or had threatened the complainant as the complainant had alleged.

[77] In view of the injury to his dignity, feelings and self-respect, as well as the breach of the Human Rights Code, the adjudicator awarded Mr. Phipps $10,000.

Analysis

[78] The Divisional Court is an appellate court. It is not a court of first instance. Unless the appellate court can determine that there has been an error of law that requires correction, or that a palpable and overriding error has been made to reverse a finding of fact, this court must defer to the findings of the trial judge.

[79] The deputy judge had no such evidence before her on which to base an award of damages for the loss of dignity, feelings and self-respect alleged by Mr. John. It must be remembered that Mr. John did not bring his claim under the Human Rights Code. Complaints regarding breach of human rights are generally heard by the HRTO. The courts have been given limited jurisdiction to hear human rights complaints by amendments to the Code. The deputy judge recognized this limited jurisdiction at paragraph 56 of her decision:

56. Human rights complaints, however, are pursued before the Human Rights Tribunal. Historically, the courts have not recognized discrimination as a distinct cause of action. More recently, since the introduction 46.1 of the Human Rights Code, the courts have been permitted to award damages for discrimination, but only where the discrimination arose in the context of a separate actionable wrong. The most commonly seen cases arise in the wrongful dismissal context. This is not such a case; rather, the alleged discrimination lies at the heart of the pleading.

[80] The deputy judge did not find that the discrimination itself arose in the context of a separate, actionable wrong; it was a motivating factor behind the detention and the consequent traffic tickets that were issued. Mr. John has not appealed that finding. Therefore, his appeal on the quantum of damages is not based on the Human Rights Code and the criteria on which damages under the Human Rights Code are awarded.

[81] It would appear from Mr. John’s claim that he did not even plead that any of the respondents breached any section of the Human Rights Code. The right of a person not to be arbitrarily detained or imprisoned under s. 9 of the Charter is not dependant on a finding of discrimination. It is a right given by the Charter not to be detained or imprisoned for an unlawful or improper purpose, or without due process. The law developed by the courts under s. 24 of the Charter that governs what remedy, including damages, is the correct law to apply for any breach of a Charter right. The cases Mr. John has submitted from the HRTO where the legal framework under the Human Rights Code has been used to determine damages are not applicable on this appeal.

Conclusion Re: Damages

[82] Mr. John’s appeal of $500 as damages granted for any breach of his Charter rights by the police is dismissed. However, as this court has allowed the cross-appeal on liability, this amount is no longer payable to Mr. John.

Ground #2 - Appeal of Liability against the Office of the Independent Police Review Director

[83] Mr. John appeals the dismissal of his claim against the OIPRD. Mr. John also sought an order to force the OIPRD to pass on his complaint for investigation, on or to investigate it themselves, and for punitive damages for the lack of faith he now has in their investigation system.

[84] The deputy judge noted that Mr. John’s claim pleaded very little as a cause of action as against the OIPRD. Having noted that the authorities have directed that the allegations of a self-represented litigant are to be generously construed in Small Claims Court, the deputy judge defined Mr. John’s claim as against the OIPRD to essentially be a claim for misfeasance in public office.

[85] After reviewing the evidence given at trial on Mr. John’s claim against the OIPRD for misfeasance in public office, the deputy judge reviewed the statutory immunity provided under section 26.1(12) of the Police Services Act that provides:

(12) No action or other proceeding for damages lies or shall be instituted against the Independent Police Review Director, an employee in the office of the Independent Police Review Director, an investigator appointed under subsection 26.5 (1) or a person exercising powers or performing duties at the direction of the Independent Police Review Director, for any act done in good faith in the execution or intended execution of any power or the performance or intended performance of any duty under this Act or for any alleged neglect or default in the execution or performance in good faith of that power or duty.

[86] The deputy judge made findings of fact that Mr. McBride and Ms. Dunn had made improper decisions. However, the deputy judge then found that there had been no deliberate or unlawful conduct, bad faith or dishonesty on their part. The deputy judge therefore ruled that the immunity granted to the OIPRD and its employees by section 26.1(12) applied to the facts of this case. Accordingly, Mr. John’s claim as against the OIPRD was dismissed.

Analysis

[87] The findings of fact made by the deputy judge on the evidence that Mr. McBride and Ms. Dunn had made improper decisions are findings of fact that are entitled to deference by this court. Where a question under appeal is one of mixed fact and law, the standard of review is based upon a spectrum between the standards of review for errors of fact or errors of law. The standard of review requires more of a palpable and overriding error the more the question involves a finding of fact, and leans more towards the standard of correctness where the alleged error is more one of law or principle.

[88] Mr. John does not question the findings of fact that the two investigators acted improperly when they decided not to investigate his complaint during the screening process. Mr. John instead challenges the applicability of section 26.1(12) of the Police Services Act that grants immunity to the OIPRD to the facts as found.

[89] I do not find that the deputy judge erred on her interpretation of the elements that make up the tort of misfeasance in public office. Those elements were set out by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] S.C.R. 263, at paras. 28 and 32:

(5) The public official engaged in deliberate unlawful conduct, i.e., in bad faith or dishonesty, in his/her capacity as a public official;

(6) The public official was aware both that the conduct was unlawful and that it was likely to harm the plaintiff; and

(7) The plaintiff suffered compensable damages caused by the public official’s conduct.

[90] There is a knowledge requirement on the part of a public official to be held liable for damages to another for misfeasance in public office that the plaintiff must prove. The tort of misfeasance in public office is an intentional tort that requires unlawful conduct or dishonesty. Evidence of the defendant’s knowledge and intention is necessary for the court to make the finding whether the defendant’s actions were intentionally unlawful.

[91] The plaintiff must also prove that those acts were carried out with the defendant’s knowledge that those actions would likely harm the plaintiff personally. It is a tort that requires proof of improper use of, or the callous disregard to, duties by a public official of his or her office amounting to deliberate unlawful behaviour. The Supreme Court of Canada addressed the issue specifically with respect to police officers in Odhavji Estate at paragraph 28 by saying that:

As a matter of policy, I do not believe that it is necessary to place any further restrictions on the ambit of the tort. The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public office requires an element of “bad faith” or “dishonesty”. In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office.

[92] The establishment of the OIPRD was intended to reform and to streamline the police complaints procedure in Ontario. The procedure was designed with twin goals in mind: to provide a single access point for the reception of all complaints, and a greater discretion on the recipient of those complaints to determine whether or not a complaint was worthy of pursuit. In Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149, the Court of Appeal at para. 30 explained it this way:

[30] The Director’s broad power to screen out complaints provides the balance in the complaint procedure that former Chief Justice of the Superior Court of Justice, the Honourable Patrick LeSage, considered necessary. The changes to the police complaints system that are now the subject of this appeal had their genesis in the report authored by Mr. LeSage: Report on the Police Complaints System in Ontario by Patrick J. LeSage (Toronto: Ministry of the Attorney General of Ontario, 2005). Therein, he expressed the view that access to the complaint process should be made easier for those with legitimate complaints about the police but also recognized that increasing access to the complaints system could tax the system’s resources. As he explained, at p. 64:

Removing the current systemic barriers to the reception of complaints needs to be balanced by conferring greater discretion on the recipient of complaints to determine whether a complaint should be pursued. There will be cases where the evidence to support a complaint is so tenuous that resources should not be expended to pursue them. Also, there will be cases where the “complaint” is really not one that is suitable for the complaints system to resolve. For example, a dispute as to whether a traffic ticket has been wrongly issued is a matter for the courts. While the current system allows a chief of police’s decisions to not pursue a complaint to be reviewable by OCCOPS, such a review is time intensive and inimical to the efficient resolution of complaints.

Facilitating access should mean the reception of all complaints, but it also requires that judicious screening of complaints be made as early as possible to protect the integrity of the system.

[93] The deputy judge found that Mr. McBride and Ms. Dunn made decisions that, however erroneous, involved no unlawful conduct or improper motive. Mr. John did not advance any evidence that demonstrated bad faith. Mr. McBride and Ms. Dunn each denied having any improper motive when making decisions during the screening process of Mr. John’s complaint at the OIPRD in the course of their duties. The deputy judge accepted their evidence.

Conclusion

[94] In my view, the deputy judge made no palpable or overriding error in making her findings of fact on the evidence. She correctly identified and applied section 26.1(12) of the Police Services Act. Accordingly, Mr. John’s appeal of the dismissal of his claim as against the OIPRD is dismissed.

Costs

[95] Peel Regional Police may file written submissions on costs, which would include cost submissions of behalf Constable Panella, and the OIPRD may make written submissions on costs, each to be filed by February 10, 2017. Mr. John shall then have until February 28, 2017, to file responding submissions. No submissions in reply may be filed without leave.

[96] All written submissions must first be served on the opposite parties and may then be filed with proof of service in person through the trial coordinators’ office. Each written submission shall consist of no more than three typewritten pages, not including any offer to settle, bill of costs or case law to support that party’s position. If a party seeks to file written submissions by fax, those written submissions may be faxed to my judicial assistant, Priscilla Gutierrez, at 905-456-4834 in Brampton.

Emery J.

Date: January 17, 2017

CITATION: John v. OIPRD and PEEL REGIONAL POLICE, 2017 ONSC 42

COURT FILE NO.: DC-15-133-00

DATE: 2017 01 17

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: DARREN JOHN, Appellant

AND:

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR, PEEL REGIONAL POLICE; CONSTABLE PANELLA, Respondent

BEFORE: EMERY J.

COUNSEL: DARREN JOHN, appearing for himself

TOM SCHREITER, for the Respondent, The Office of the Independent Review Director

RAFAL SZYMANSKI, for the Respondents, Peel Regional Police and Constable Panella

DECISION ON APPEAL

Emery J.

DATE: January 17, 2017