Court File and Parties
Barrie Court File No.: CV-15-1048 Date: 20180716 Ontario Superior Court of Justice
Between:
Aron Cadeau, Flat Fee Realty Plaintiffs – and – Barrie Police Services Board, Detective Christopher Jackson, John Doe(s), Her Majesty the Queen in Right of Ontario as Represented by the Ontario Provincial Police, Commissioner Christopher D. Lewis, John Doe(s), the Attorney General of Canada and Carolyn Noordegraaf Defendants
Counsel: Brian J.E. Brock, for the Plaintiffs Baaba Forson, for: Her Majesty the Queen in Right of Ontario as represented by the Ontario Provincial Police, Commissioner Christopher D. Lewis and John Doe(s), Defendants
Heard: June 29, 2018
Reasons for Decision
MULLIGAN J.
[1] This is a summary judgment motion brought by some of the defendants in this action seeking that this claim be dismissed as against them. Those defendants are Her Majesty the Queen in Right of Ontario, as represented by the Ontario Provincial Police, Commissioner D. Lewis and John Doe(s) (the OPP Defendants). The OPP Defendants also seek an order striking out the claim without leave to amend as against Commissioner D. Lewis.
[2] The plaintiffs, Aron Cadeau and Flat Fee Realty (Cadeau Plaintiffs), oppose the relief sought. The plaintiffs’ claim against the Attorney General of Canada and Carolyn Noordegraaf has been wholly discontinued. The defendants, Barrie Police Services Board, Detective Christopher Jackson, John Doe(s) (the BPS Defendants) take no position with respect to this motion.
Claim Against OPP Commissioner Lewis
[3] The defendant, Aron Cadeau, was arrested by Barrie Police Services Officers on December 17, 2012. The Cadeau Plaintiffs issued a Statement of Claim on August 28, 2015, claiming damages against the various defendants for malicious prosecution, misfeasance in a public office, negligence, negligent supervision and training, and false imprisonment. With respect to the claims against Lewis, the Cadeau Plaintiffs allege at paragraphs 67 of their Statement of Claim:
The Ontario Provincial Police and Commissioner Lewis are vicariously liable for the misfeasance of the Ontario Provincial Police John Doe(s).
Position of the Cadeau Plaintiffs
[4] In their factum at paragraph 168, the Cadeau Plaintiffs summarize their position as follows:
There is a genuine cause of action as against Commissioner Lewis. As Commissioner at the time of the loss, Commissioner Lewis was the head of the OPP, and undoubtedly aware of the issues of considerable importance.
Position of the OPP Defendants
[5] The OPP Defendants submit there is no cause of action against Commissioner Lewis. Their position is summarized at paragraph 91 of their factum,
There are no allegations contained in the Claim about any conduct on the part of Commissioner Lewis that could give rise to a cause of action. There is no statute that allows the OPP Commissioner to be sued in a representative capacity and courts have expressly held that no cause of action lies against the OPP Commissioner in respect of torts committed by OPP officers.
Analysis
[6] It is clear from the legislation that vicarious liability for its servants our agents lies with the Crown not its individual officers.
[7] The Proceedings Against the Crown Act, RSO 1990 c. P.27 provides at paragraph 5(1):
Except as otherwise provided in this Act, and despite section 71 of the Legislation Act, 2006, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity it would be subject,
(a) in respect of a tort committed by any of its servants or agents;
[8] The Police Services Act, RSO 1990 c. P.15 further provides at paragraph 50(1), “The board or the Crown in right of Ontario, as the case may be, is liable in respect of torts committed by members of the police force in the course of their employment.”
[9] The issue was squarely canvassed in McNabb v. Ontario, 2000 ONSC 22413, [2000] O.J. No. 3248. In the claim before the court, the OPP Commissioner Gwen Boniface was named as a defendant. In striking out the claim against the Commissioner, Chapnik J. stated at paragraph 30:
The OPP’s constituting statute, the Police Services Act, does not expressly nor by necessary implication make the OPP or its Commissioner liable to suit. On the contrary, the Police Services Act expressly states that the Board or the Crown in right of Ontario are liable in respect of torts committed by OPP officers in the course of their employment. Accordingly, I agree with counsel for the defendants that “Gwen Boniface as Commissioner of the Ontario Provincial Police Force”, does not have the legal capacity to be sued and must be deleted from the style of cause.
Conclusion Regarding Commissioner Lewis
[10] Having reviewed the Statement of Claim, the submissions of counsel, the legislation and judicial authorities, I am satisfied that the plaintiffs’ claim as against “Commissioner Christopher D. Lewis” must be struck out without leave to amend.
Partial Summary Judgment
[11] Before reviewing the facts and the submissions of counsel for the moving and responding parties, it would be useful to review the evolution of judicial authorities with respect to partial summary judgment since the seminal Supreme Court of Canada case Hryniak v. Mauldin, 2014 SCC 7. That decision recognized the expanded powers of motion judges in dealing with summary judgment motions. However, the court in Hryniak provided this note of caution at paragraph 60:
The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party should significantly advance access to justice, and be the most appropriate, timely and cost effective approach.
[12] Partial summary judgment motions are often based on affidavit evidence advanced by the moving and responding parties; however, Lauwers J.A. provided this warning in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450. As he stated at paragraph 44:
What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important. Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.
[13] The Ontario Court of Appeal recently expanded on cautionary notes surrounding partial summary judgment in Butera v. Chown, Cairns, 2017 ONCA 783. At paragraph 35, Pepall J.A. took this as a starting point at paragraph 34:
…A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner…
[14] As the court further stated at paragraphs 29 to 33:
[29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.
[30] First, such motions cause the resolution of the main action to be delayed…
[31] Second, a motion for partial summary judgment may by very expensive…
[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.
[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.
Facts
[15] It is not necessary for me to review comprehensively all of the evidence advanced on this partial summary judgment motion. The following brief summary will provide context for the discussion that follows.
[16] Aron Cadeau was arrested by Barrie Police Services on December 17, 2012 for various drug related charges. Those charges were ultimately withdrawn. Shortly after his arrest, OPP officers conducted a raid on property owned by Mr. Cadeau known as 23 Small Crescent. That raid indicated that there was a grow operation at that location and 39 marijuana plants were seized. Some months prior to this arrest, OPP Officer Anderson received a Crime Stoppers tip with respect to activities at 23 Small Crescent. As a result, he wrote a letter to Hydro One, conducted brief surveillance, contacted Health Canada to see if anyone had a licence and made a call to a Federal Crown prosecutor. Due to more pressing investigative requirements, he did not pursue the activities at 23 Small Crescent any further; however, he later became aware of a BPS investigation of Mr. Cadeau and provided the information that he had gathered from Hydro One, Health Canada and his surveillance. The OPP were not involved in the arrest or detention of Mr. Cadeau. The OPP’s role was limited to the search warrant at 23 Small Crescent and the information previously provided by PC Anderson.
[17] In support of this motion for partial summary judgment, the OPP defendants provided Affidavits from Allan Penrose (an OPP staff sergeant), Alf Pistolkors (a retired OPP detective sergeant) and Brian Anderson (an OPP detective constable). In response, the Cadeau Plaintiffs filed affidavits from Aron Cadeau and Elizabeth Simmons (Mr. Cadeau’s business partner). The parties were cross examined with respect to their affidavits.
[18] Mr. Cadeau stated in his Affidavit, sworn April 3, 2018, at paragraphs 27 to 28,
In or around October 2012, I attended the Ontario Provincial Police headquarters in Orillia to advise them that my tenant intended to grow marihuana at 23 Small Crescent, and that if they received an alarm call, it might be related to marihuana production. I spoke to a duty officer who took my name and address and advised me that I did not need to speak with anyone further.
I was advised that an OPP officer would visit 23 Small Crescent. I expected they did so, but have no evidence of that occurring.
[19] The response of the OPP can be found in its Factum at paragraph 24, “…Cadeau has provided no further information about this, such as the exact date this occurred or the name of the person he spoke to. The OPP has been unable to confirm that this in fact occurred.”
The Position of the Moving Party
[20] The OPP Defendants submit that there is no genuine issue requiring a trial for the following reasons:
(a) The OPP did not arrest, detain, imprison, charge or in any way initiate the prosecution of Cadeau or anyone in relation to the BPS investigation;
(b) The OPP’s involvement in the BPS investigation was limited to the execution of a lawful CDSA search warrant obtained by the BPS at 23 Small Crescent. Any claim against the OPP for a lawful execution of the search warrant is prohibited by statute;
(c) The OPP Crime Stoppers tip investigation of 23 Small Crescent in August 2012 was separate and apart from Project Trebouchet, not negligent, and not conducted for any improper purpose; and,
(d) There [are] no facts alleged in the claim regarding the conduct of the OPP Commissioner. The OPP Commissioner is a Crown servant and cannot be held vicariously liable for torts committed by OPP officers. Furthermore, even if the OPP Commissioner could be held vicariously liable, there is no cause of action against any OPP officer.
[21] The Cadeau Defendants submit that partial summary judgment dismissing the claim against OPP Defendants is not appropriate in this case. As set out in their factum at paragraphs 107 and 108:
The plaintiffs have commenced an action as against both the OPP and BPS. It has become clear that the two defendants jointly participated in a negligent investigation, which resulted in the wrongful arrest and detainment of the plaintiff, Cadeau.
The extent of the joint investigation, including D/C Anderson’s involvement, was not contained in the OPP’s original motion materials. The documentation was only disclosed following cross-examinations of S/S Penrose and D/S Pistolkors, both of whom swore affidavits that the OPP did no more than execute a search warrant on behalf of the BPS, and confirmed at their cross-examinations that there were no changes to be made to their affidavits.
Conclusion
[22] I am not satisfied that this is one of those rare cases where partial summary judgment should be granted. Although that this was not a joint operation in the true sense of the word, clearly the activities of the two police forces were intertwined. DC Anderson conducted an initial investigation. Information was passed on to BPS, BPS used this information together with the fruits of their own investigation and a search warrant was issued. OPP officers then conducted a search at 23 Small Crescent pursuant to the warrant.
[23] This motion was originally issued on July 20, 2017. It was supported by Affidavits. The Cadeau Plaintiffs responded with affidavits of their own. By way of a supplementary motion record, a further affidavit was filed by the OPP Defendants. Cross-examinations followed. Approximately one year later, the motion was heard. Because the activities of OPP officers and the Barrie Police Services were intertwined, it is clear that these OPP officers would be required to give evidence at trial, even if partial summary judgment was granted regarding the OPP Defendants. As the Supreme Court of Canada cautioned in Hryniak, at paragraph 60, “…Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice…”. Further, Lauwers J.A. cautioned about the use of affidavit evidence in summary judgment motions in Baywood Homes at paragraph 44. The Court of Appeal’s cautionary note in Butera v. Chown, Cairns rings true in this case. The bringing of this motion has delayed progress with respect to the main action; the parties have been engaged in expensive litigation for this motion; judicial time has been required to hear and dispose of this motion; and there is a danger that the record on this motion, not being as expansive as a trial record, could increase the danger of inconsistent findings.
[24] The motion striking the claim against Commissioner Christopher D. Lewis is granted without leave to amend.
[25] The motion for partial summary judgment against the OPP Defendants is dismissed.
[26] Rule 20.05 of the Rules of Civil Procedure gives the court additional powers with respect to trial management, directions and terms. Because the Barrie Police Service defendants were not a party to this motion, I decline to exercise my jurisdiction with respect to those powers. Given the circuiting nature of Judges in Central East Region, I see no advantage to the parties or to the administration of justice in reserving this matter to me. Such a reserve may delay rather than expedite the judicial determination of issues involving the plaintiffs and both sets of defendants.
Costs
[27] By letter dated July 13, 2018, counsel for the plaintiffs have advised that the parties agreed that costs of $25,000, inclusive of disbursements and HST would be awarded to the successful party. Based on the substantial success of the plaintiffs, costs are awarded to the plaintiff in the amount of $25,000 all inclusive. Costs to be paid within 30 days of the release of this decision.