Court File and Parties

COURT FILE NO.: CV-18-76750 DATE: 2023-02-22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER DEMERS Plaintiff/Responding Party – and – HIS MAJESTY THE KING IN RIGHT OF ONTARIO Defendant/Moving Party

COUNSEL: Tina Hill for the Plaintiff Brendan Haynes for the Defendant

HEARD: February 16, 2023

DECISION ON MOTION TO STRIKE

Justice Sally Gomery

Endorsement

[1] The defendant His Majesty the King in Right of Ontario (“Ontario”) moves to strike a single paragraph in Jennifer Demers’ statement of claim, on the grounds that it is argumentative, it pleads inadmissible evidence, and it is inflammatory. For the reasons that follow, the motion is dismissed, with costs.

Background

[2] In June 2018, Jennifer Demers began this action against Ontario under the simplified procedure in Rule 76 of the Rules of Civil Procedure, RRO 1990, Reg 194. She alleges that the defendant is liable for the torts of false arrest, false imprisonment and negligent investigation, and for breaches of her rights under ss. 7 and 9 of the Charter of Rights and Freedoms. Ms. Demers’ claims arise from her arrest by Ontario Provincial Police (OPP) officers on July 3, 2016 on two charges of assault. She seeks general damages of $75,000, punitive, aggravated and/or exemplary damages of $25,000, interest and costs.

[3] In the “Facts” section of the statement of claim, Ms. Demers describes the altercation that led to her arrest, the OPP investigation, and her experience after being charged. She alleges that, on July 3, 2016, she confronted trespassers on property she was taking care of for a friend. Two of the trespassers lunged at her, she pushed them back, and they suffered minor injuries. When the OPP arrived on the scene, they took statements from the two trespassers, who claimed that Ms. Demers had attacked them. The officers arrested and charged Ms. Demers without taking a statement from her then or later when she was in custody. When she attempted to file a complaint against one of the trespassers after her release on a promise to appear, OPP officers again did not listen to what she had to say. On August 2, 2017, following a six-day trial, Ms. Demers was found not guilty and the charges against her were dismissed.

[4] In the “Liability” section of the statement of claim, Ms. Demers sets out the specific allegations underlying each cause of action she asserts. In the subsection entitled “Negligent Investigation”, Ms. Demers alleges as follows at paragraph 20:

The investigation done by the OPP fell so far below the standard of care required by reasonable police officers that Justice Wright, in his decision exonerating Ms. Demers, found that "[i]f an instruction manual could be written on how not to conduct a police investigation, this case would be chapter one. It was deplorable exhibit of police investigation to say the least."

[5] In the “Damages” section, Ms. Demers alleges that she suffered significant psychological injuries as a result of the OPP’s acts and omissions, as well as an exacerbation of her pre-existing fibromyalgia and anxiety. At para. 27, she alleges that the OPP’s conduct attracts punitive damages:

The actions and/or omissions of the OPP, as described above, were callous and high-handed, and taken without regard to the impact they would have upon Ms. Demers or the administration of justice. The actions of the OPP, as described above, serve to undermine the public’s confidence in police officers and the administration of justice. Ms. Demers therefore claims punitive, exemplary and/or aggravated damages.

[6] The statement of claim was issued on June 11, 2018. Ontario served a statement of defence on November 30, 2018. In it, Ontario generally denies the allegations in paras. 8 to 27 of the statement of claim. Although it admits that Ms. Demers was acquitted of the assault charges by Justice Wright, it does not otherwise admit the allegations set out in paras. 20 of the statement of claim. At para. 48, Ontario denies “that any circumstances exist to warrant special, aggravated or exemplary damages against it, and puts the Plaintiff to the strict proof thereof”.

[7] The parties attended a pre-trial conference in late July 2022. At or just prior to the conference, counsel for Ontario advised that they would be bringing this motion to strike. As a result, a trial date was not set. Ontario served this motion two months later, returnable in mid-November 2022. The motion was administratively adjourned because there was no judge available to hear it on the original return date. I heard it on February 16, 2023.

Analysis

The grounds for this motion

[8] Rule 25 of the Rules of Civil Procedure sets out the rules applicable to all pleadings. Rule 25.06(1), (2), and (7) state:

(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words themselves are material.

[9] Rule 25.11 of the Rules of Civil Procedure gives the court discretion to strike a pleading that offends the rules:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[10] Ontario argues that paragraph 20 of the statement of claim offends r. 25.06(1), because it consists of argument or evidence as opposed to allegations of material facts. It contends that reproducing a passage from Justice Wright’s reasons for acquitting Ms. Demers is particularly offensive because his decision is inadmissible to prove her civil claim and the words cited are inflammatory.

[11] In making this argument, Ontario also relies on r. 21.01(1), which states that:

21.01(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

[12] Ontario’s arguments do not engage r. 21.01(1), in my view. It does not argue that the statement of claim fails to disclose a reasonable cause of action, and striking out paragraph 20 of the statement of claim would not eliminate Ms. Demers’ cause of action for negligent investigation and false arrest. Rule 21.01(1)(b) is accordingly irrelevant to this motion. With respect to r. 21.01(1)(a), defence counsel urged me to find, in oral argument, that Justice Wright’s verdict will be inadmissible at trial. It did not, however, explicitly seek such a ruling in its notice of motion.

[13] I will therefore confine my analysis to r. 25.

Was it appropriate for Ms. Demers to file Justice Wright’s decision as evidence on the motion?

[14] Ontario objected to two types of records filed by the plaintiff on this motion: a copy of the transcript of Justice Wright’s verdict, which was included in the responding motion record; and a request to admit and the defendant’s response to it, which were posted on Caselines. Ms. Demers’ counsel clarified that the request to admit and response would be relevant only to her cost submissions. Ontario’s preliminary objection was therefore confined to the transcript.

[15] The defence contends that no evidence at all is admissible on a motion to strike a paragraph in a pleading. This is correct if the motion is brought uniquely under r. 21.01(1)(b), which I have already found irrelevant here. [1] Evidence may be admissible on a r. 21.01(1)(a) on consent or with leave of the court. [2] There is no prohibition on the use of evidence on a motion under r. 25.06 or r. 25.11.

[16] Since evidence is permitted on a r. 25 motion, I do not need to consider the parties’ other arguments on the use of Justice Wright’s transcript on the motion.

Does paragraph 20 assert any material fact?

[17] Ontario contends that paragraph 20 does not assert any material fact. I find that it does.

[18] Again, paragraph 20 of the statement of claim reads as follows:

The investigation done by the OPP fell so far below the standard of care required by reasonable police officers that Justice Wright, in his decision exonerating Ms. Demers, found that "[i]f an instruction manual could be written on how not to conduct a police investigation, this case would be chapter one. It was deplorable exhibit of police investigation to say the least."

[19] First, paragraph 20 alleges that Ms. Demers was exonerated on the assault charges against her. Ms. Demers’ acquittal is relevant because she must allege and prove there was an insufficient basis to arrest and charge her to succeed in her causes of action for false arrest and false imprisonment, as well as her claims for breach of her rights under ss. 7 and 9 of the Charter. Defence counsel argues that Ms. Demers does not need to make this allegation as it has since admitted the acquittal in its statement of defence. Ms. Demers could not anticipate this admission when she drafted her statement of claim. In any event, r. 25.06 requires a plaintiff to allege all material facts in a statement of claim.

[20] Second, paragraph 20 alleges that, in acquitting Ms. Demers, Justice Wright found that the OPP investigation was so deeply flawed as to be “deplorable”. In my view, this is not argument but a material fact that could be relevant to Ms. Demers’ claim for punitive damages.

[21] As neatly stated in Balanyk v University of Toronto, at para. 29:

The plaintiff must plead all the material facts on which it relies and all of the facts which it must prove to establish a cause of action which is legally complete. If any fact material to the establishment of a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars. … It is improper to allow conclusions to be pleaded baldly and without any supporting facts… . [Citations omitted.]

[22] Punitive damages are only awarded in exceptional cases, where the plaintiff has proved malicious, oppressive and high-handed misconduct by the defendant that offends the court’s sense of decency. In alleging that the OPP’s conduct meets this bar, Ms. Demers must state the facts she relies on. In her submission, Justice Wright’s reasons shows that a court would be offended by the OPP’s conduct in this case. His view is therefore a material fact that is appropriate to allege in her statement of claim, so that Ontario has notice of the case it must meet.

[23] Paragraph 20 is admittedly somewhat argumentative. It is not unusual for a party to include some argument in its pleading. This does this offend r. 25.06 so long as the argument is not a bare assertion but based on facts alleged either in the same paragraph or elsewhere in the pleading. For example, paragraph 45 of Ontario’s statement of defence reads as follows:

In summary, the investigation was thorough and complete and conducted without negligence. The investigation throughout met or exceeded the standard of a reasonable police officer in similar circumstances.

[24] This is unquestionably argumentative yet would not properly be the object of a motion to strike, in the context of the statement of defence as a whole.

Does paragraph 20 cite inadmissible evidence?

[25] Ontario contends that paragraph 20 violates r. 25.06 because it cites evidence, and that evidence is furthermore inadmissible in Ms. Demers’ civil action.

[26] In Jacobson v. Skurka, 2015 ONSC 1699, Perell J. emphasized that there is often not a bright line between material facts and evidence, and a court considering whether a pleading offends r. 25.06(1) should consider its purpose:

Rule 25.06(1) draws a distinction between the "material facts" and "the evidence by which those facts are to be proved". A material fact may itself be relevant evidence and particulars of material facts may also be relevant evidence, so the distinction drawn in the rule is not a litmus test clear differentiation, but the essence of the directive of rule 25.06 is clear enough that a pleading is not the place for a party to lead relevant evidence and to present argument to prove his claim or defence.

The difference between pleading material facts and pleading evidence is a difference in degree and not of kind… . What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts… . [Citations omitted.]

[27] I have already concluded that Justice Wright’s comments about the quality of the OPP investigation could be relevant to establish Ms. Demers’ entitlement to punitive damages. In citing them at paragraph 20, Ms. Demers is not just referring to potential evidence but asserting a material fact, that is, that a judge who has considered the OPP’s conduct, albeit in another context, was offended by it.

[28] Had Ms. Demers cited at length from Justice Wright’s decision, this would have showed a lack of restraint and an intent to plead evidence contrary to r. 25.06(1). As Ms. Demers’ counsel points out, Justice Wright made many findings and comments that put the OPP conduct in a very poor light. After finding her not guilty of the two assault charges, he went so far as to apologize to Ms. Demers “on behalf of the administration of justice”. None of this is referenced in the statement of claim.

[29] I furthermore do not think that, at this stage, I should preclude the admissibility of Justice Wright’s decision at trial, at least for certain limited purposes. This is a determination best left to the trial judge.

[30] Ontario courts have held that a plaintiff who brings a civil suit against a defendant based on facts previously litigated in a criminal case cannot rely on the criminal court’s findings to prove that the defendant engaged in the acts that give rise to civil liability. The parties and the evidentiary standards in a criminal case are different from those in a civil case. In Potter v. Swain, [1945] 4 DLR 4, 30 CPC (4th) 309, the Court of Appeal went so far as to say that reasons for judgment in a criminal case “have no evidentiary value whatever in subsequent civil proceedings”.

[31] The broad statement in Potter has since been qualified. In the more recent case of Rizzo v. Hanover Insurance Co., [1993] OJ No 1352, 14 OR (3d) 98 (ONCA) (leave to appeal to SCC refused (199) 18 CCLI (2d) 199), the Court of Appeal recognized that there were some situations where evidence of a prior conviction or acquittal is relevant to subsequent civil proceedings and that evidence of criminal proceedings can therefore be admitted into evidence, for example in Demeter v. British Pacific Life Insurance Co. (1983), 43 O.R. (2d) 33 (H.C.), aff’d (1984), , 48 O.R. (2d) 266. The Court of Appeal restated the admissibility principle, saying that: “evidence of a verdict of acquittal in a criminal case is inadmissible in a subsequent civil case, as proof that the party did not commit the offence ” (Rizzo, at para. 7, emphasis added).

[32] Ms. Demers does not intend to rely on Justice Wright’s decision to prove that she did not provoke a physical confrontation with the two trespassers or that OPP officers were negligent in investigating the assault case against her. She wants to use it solely to establish her entitlement to punitive damages. None of the caselaw relied on by the Crown establishes that the reasons for a plaintiff’s acquittal would be inadmissible for this purpose.

[33] The decision that provides the clearest support for Ontario’s position is Irwin v. Liverance, [1998] OJ No 5828, 30 CPC (4th) 309. Irwin was a civil battery claim by a woman against her husband. The husband had also been charged with assault and had been acquitted. During the civil trial, the husband’s lawyer sought to use the criminal judge’s reasons for his client’s acquittal in his cross-examination of the wife. Justice Mendes da Costa held that the husband’s acquittal of assault did not eliminate the possibility that he was liable for civil battery. He further held that the reasons given for the acquittal had no evidentiary value and were inadmissible, stating:

[R]easons for judgment, and findings of fact contained in the reasons, are based upon the evidence adduced to the judge, at the time, and to the judge’s view of the evidence. These factors bear no necessary relation to evidence that may be adduced in a subsequent proceeding, nor to the view of the judge, in the subsequent proceeding, of the evidence that may be adduced. Further, a concern has been expressed that a subsequent jury may be unduly influenced by judicial statements, contained in reasons for judgment… . Reference has also been made to the undesirability of judges being cross-examined on their decisions, relief that might be sought should reasons for judgment be admitted as evidence… . [Citations omitted.]

[34] Some of the concerns expressed by Justice Mendes da Costa do not arise here. Ms. Demers’ civil claim will be adjudicated by a judge alone, and there is no spectre of Justice Wright being required to testified about his reasons. I agree that the view that one judge forms about a set of facts, on the evidence before them, may have little bearing on the view that another judge forms on different evidence about the same facts. This does not, however, go to admissibility but to weight.

[35] Ontario relies on F. (M.) v. Dr. Sutherland to argue that I am duty bound to find Justice Wright’s decision inadmissible in the context of this motion. In the Dr. Sutherland case, a plaintiff successfully sought to strike a paragraph in a statement of defence that referred to proceedings before the College of Physicians and Surgeons. The motion judge cited s. 36(3) of the Regulated Health Professions Act, 1991, SO 1991, c 18, which says that “no report, document or thing prepared for or statement given at such a proceeding … is admissible in a civil proceeding…”. The Court of Appeal dismissed the defendant’s argument that it was premature to determine admissibility at the pleadings stage:

Dr. Sutherland contends that regardless of how s. 36(3) is interpreted the admissibility of documents is a matter for the trial judge and therefore the challenged parts of his pleading should not have been struck out on a motion. I disagree. If a paragraph in a party’s pleading pleads facts that cannot be proved at trial or pleads documents that cannot be admitted at trial, that paragraph may be struck out on a motion.

[36] This case is different than Dr. Sutherland because there is no statutory prohibition against relying on a criminal decision here. So, unlike the motion judge in Dr. Sutherland, I am unable to definitively conclude that Justice Wright’s decision cannot be admitted at trial.

[37] In these circumstances, the judge who hears the evidence in the case is best placed to adjudicate the admissibility of Justice Wright’s decision: Clarke v. Yorkton Securities Inc., at para. 34, and Algoma Steel Inc. v. Capitol Steel Corporation, 2021 ONSC 2531, at para. 35. The trial judge in Ms. Demers’ action could conclude that Justice Wright’s comments assist the plaintiff in proving that the OPP’s conduct was so shocking as to warrant an award of punitive damages. Alternatively, the judge could conclude that Justice Wright’s statements simply conveyed his personal views and should be given little or no weight, or that they should not be admitted at all. This is a decision for the trial judge, not me, to make.

Is paragraph 20 inflammatory?

[38] Finally, Ontario argues that paragraph 20 is inflammatory. It particularly objects to the inclusion of Justice Wright’s observation that the OPP’s actions were “a deplorable exhibit of police investigation to say the least”. Relying on Moody v. Niagara Police Services Board, 2018 ONSC 3079, at para. 9, it contends that paragraph 20 is “argumentative, scandalous, or designed only to put the defendants in a bad light”.

[39] In Moody, Ramsay J. found that about half of the paragraphs in a 76 paragraph statement of claim offended multiple pleadings rules, and that “[i]f left to stand they would complicate discovery and trial beyond reason”. Ramsay J. also noted that motions under rule 25.11 should only be granted in the "clearest of cases" (Moody, para. 3).

[40] The situation in Moody is a far cry from this case, where there is a single line in a single paragraph that might offend r. 25.06(1). I am not sure, in any event, that paragraph 20 is inflammatory. It merely quotes strong language used by a judge. I am confident that a trial judge in this civil case would not be so affected or swayed by these words that they would be prejudiced against the defendant.

[41] Finally, striking a pleading under r. 25.11 is discretionary. The equities on this motion do not favour Ontario. This is a summary proceeding under r. 76. Ontario’s motion to strike was brought four years after the claim was served and more than a year after the case was set down for trial. At this stage, striking the paragraph would be contrary to r. 1.04(1), because it would unnecessarily complicate and delay this action. That would not be in the interest of justice.

Disposition

[42] Ontario’s motion is dismissed.

[43] Ms. Demers seeks full indemnity costs in the range of $12,000 (excluding HST). She relies on offers the plaintiff made to settle the motion in August and October 2022. If Ontario had won the motion, it would have sought partial indemnity costs based on actual fees of just over $10,000 (excluding HST).

[44] Based on the rough alignment of the parties’ costs, along with the information provided on Ms. Demers’ cost outline, the fees claimed by the plaintiff are reasonable. The only issue is whether she should get more than partial indemnity costs.

[45] Full indemnity costs are not warranted, but the costs award should reflect the court’s disapproval of Ontario’s conduct in bringing a pleadings motion four years after this action was started, three years after pleadings closed, and more than a year after the case was set down for trial. Ontario’s decision to bring its unsuccessful motion delayed the trial of the action. Had Ontario accepted the plaintiff’s proposals to leave the admissibility of Justice Wright’s decision in the hands of the trial judge, it would not only have avoided the cost and inconvenience of the motion but the case could have been heard by now.

[46] I cannot award Ms. Demers substantial indemnity costs calculated on all of the fees incurred, because I do not know how much work was done before her lawyer served a r. 49 offer. I accordingly award Ms. Demers substantial indemnity costs of $8,500, inclusive of fees and HST, payable in 30 days.

[47] I further direct that this action shall be added to the trial management court list to be spoken to on March 14, 2023, at 10:00 a.m., so that a trial date may be set at the parties’ earliest availability.

Justice Sally Gomery Released: February 22, 2023

Footnotes:

[1] Under r. 21.01(2)(b), no evidence is admissible on a r. 21.01(1)(b) motion.

[2] See r. 21.01(2)(a).