Court File and Parties

Citation: Gardner v. Toronto Police Services Board, 2007 ONCA 489 Date: 2007-06-29 Docket: C45951 & C45952

Court of Appeal for Ontario Rosenberg, Simmons JJ.A. and Epstein J.A. (Ad Hoc)

Between:

Norman Gardner Respondent (Plaintiff)

and

The Toronto Police Services Board and Her Majesty the Queen in Right of Ontario Appellants (Defendants)

Counsel: Crawford Smith and Alisse D. Houweiling for the appellants, the Toronto Police Services Board Heather Mackay for the appellant, Her Majesty the Queen in right of Ontario Derek A. Vanstone for the respondent, Norman Gardner

Heard and endorsed: June 28, 2007

On appeal from the order of Justice Susan G. Himel of the Superior Court of Justice dated August 17, 2006 striking paragraphs 9, 10, 12 and 20 of its statement of defence.

Appeal Book Endorsement

[1] In our view, the motion judge erred in striking the impugned paragraphs without granting leave to amend. It was open to the defendants to plead in the alternative that if there was a contract, policy or legal obligation, that it did not cover the respondent’s conduct. However, the statements of defence improperly rely upon findings of the Commission that were set aside by the Divisional Court and do not set out with sufficient clarity the facts relied upon that disentitle the respondent to indemnification. Further, the critical paragraphs 20 and 21 of Ontario’s and the Board’s statements of defence respectively, do not set out with sufficient precision and clarity the alternative defence in the sense of the nature and scope of the terms of the contract, policy or legal obligation that would disentitle the respondent to indemnification.

[2] Accordingly, while we would not interfere with the order to strike, we would grant the appellants leave to amend their statements of defence in accordance with these reasons.

[3] The appeals are therefore allowed in part and that part of the orders refusing leave to amend is set aside. The costs orders of the motion judge will stand, as will the costs order of the Court of Appeal of March 27, 2007. Since the appellants achieved some success on the appeal they are each entitled to costs in the amount of $1,000 inclusive of G.S.T. and disbursements.