John Doe v. Ontario, 2009 ONCA 132
CITATION: John Doe v. Ontario, 2009 ONCA 132
DATE: 2009-02-13
DOCKET: C47979
COURT OF APPEAL FOR ONTARIO
Feldman, Cronk and Rouleau JJ.A.
BETWEEN:
John Doe
Plaintiff (Appellant)
and
Her Majesty the Queen in Right of Ontario and Attorney General of Canada
Defendants (Respondents)
John Doe, acting in person Matthew Cohen, for the appellant William J. Manuel and Heather Mackay, for the respondents
Heard: September 17, 2008
On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice dated October 11, 2007.
Feldman J.A.:
[1] The appellant, John Doe, appeals from an order of Perell J. granting summary judgment in favour of the respondent Crown and dismissing Mr. Doe’s action.
[2] Mr. Doe’s chief ground of appeal is that the motion judge erred in finding that Ontario had no obligation to provide him with new and secure identity documents in a timely manner after he entered the Witness Protection Program (the “Program”). He claims that the Letter of Agreement he signed with Ontario, which secured his entry into the Witness Protection Program, as well as additional oral and written representations made by the police and government officials, required Ontario to provide him with these identity documents within a reasonable period of time. Although he ultimately did receive a new identity, he now feels that it has been compromised and thus seeks a second new identity. He further seeks compensation for the losses he claims to have suffered due to the government’s delay.
[3] Additionally, Mr. Doe appeals on the grounds that the motion judge erred in applying the release provision of the Letter of Agreement too broadly, and in concluding that Mr. Doe had been properly terminated from the Witness Protection Program without notice.
FACTS
[4] The appellant, Mr. Doe, worked as a small business owner for many years. As a result of a soured business investment, Mr. Doe became the victim of criminal activity.
[5] Mr. Doe reported the criminal activity to the Ontario Provincial Police (the “OPP”), and a criminal investigation commenced. Shortly thereafter, he completed an application form to be admitted into the Witness Protection Program and was taken into protective custody. He was immediately moved to a secure location, where he was provided with a health card under his new name and a new bank card within six weeks. At this time, Mr. Doe also began receiving financial assistance from the OPP.
[6] In the following months, Mr. Doe assisted the OPP with its investigation. Two individuals were charged, and Mr. Doe testified against them at their preliminary inquiry.
[7] To be eligible for a secure name change, Mr. Doe was required to clear all outstanding debts, which included the lengthy process of selling his home. Approximately three months after he testified at the preliminary inquiry, Ontario offered Mr. Doe formal admission to the Program. To become a participant, Mr. Doe was required to sign a standard form contract provided by the Ministry of the Attorney General (the “Ministry”), called the Letter of Agreement. Generally, the Letter of Agreement provided that the Ministry would reimburse the police for certain security-related costs associated with Mr. Doe’s relocation; provide financial assistance for rent and other living expenses not exceeding $1,350 per month for a period of up to six months; provide financial assistance with life insurance premiums in an amount not exceeding $600; and provide a medical allowance not to exceed $2,000. In exchange, Mr. Doe would be required to abide by several conditions, including an obligation not to breach his own security while in the Program. The Letter of Agreement also contained a provision releasing the Ministry and the OPP from any and all claims arising out of Mr. Doe’s role as a witness in the case. Although the Ministry formally administers the Program, many of the operational functions are performed by the OPP.
[8] Through counsel, Mr. Doe attempted to negotiate several changes to the Letter of Agreement. The Ministry refused to make any changes to the standard form of the contract. However, the Ministry indicated by letter that approval for Mr. Doe’s confidential change of identity was subsumed within point (ii) of the Letter of Agreement, which obligated the government to reimburse the OPP “for certain security costs incurred by them, including certain relocation and start-up expenses.” In a second letter, the Ministry stated that “the police will seek to obtain as quickly as reasonably possible all the necessary federal and provincial identity documents, which include a new driver’s license, health card, SIN, birth certificate, and passport.” The letter further noted that the processing of federal documents could be time-consuming.
[9] Shortly after receiving the letters from the Ministry, Mr. Doe signed the Letter of Agreement with independent legal advice. After Mr. Doe entered the Program, the Ministry indicated by letter that it would make every reasonable effort to obtain a new business licence for Mr. Doe so that he could find employment in his chosen field.
[10] Two months after signing the Letter of Agreement, Mr. Doe received a birth certificate in his new identity. It took approximately seven months for him to receive a Social Insurance Number (“SIN”) in his new name, and almost a full year before he received his new passport and business licence. Due to the delay in obtaining the new business licence, the Ministry voluntarily agreed to extend Mr. Doe’s monthly financial assistance until after he had received his licence. At about the time he received his new SIN, Mr. Doe was relocated to an out-of-province location and arrangements were made with the RCMP for him to also become a participant in the federal Witness Protection Program.
[11] Mr. Doe’s main complaint stems from the fact that Ontario was very slow in providing the documents he needed to live and work. In particular, from the date he entered protective custody, it took 17 months to receive his new birth certificate, 22 months for his SIN card, and 27 months to obtain a new trade licence and passport. Further to that, although Ontario eventually provided Mr. Doe with new identity documents, it did not provide him with a full new identity including a personal, work or financial history that he could use as the basis for a new life. As a result, Mr. Doe was forced to borrow money from old friends and acquaintances both to live and to establish a new business, as he could not obtain commercial credit. After receiving mail in his old name at his new address, Mr. Doe considered that his new identity had been compromised. He felt he had to leave Canada to work in another country, although his status there is apparently not regularized.
[12] At Mr. Doe’s insistence, the OPP agreed to assist him in transferring a life insurance policy registered under his former name to his new identity. The transfer process began after Mr. Doe received his new SIN card, and required him to complete a new beneficiary designation form and undergo a fresh medical examination.
[13] Around this time, the OPP became aware that advertisements for Mr. Doe’s new business venture containing information that put his new identity at risk had appeared in the media and on the internet. The OPP warned Mr. Doe that the advertisements constituted a breach of his personal security and violated his obligations under the Letter of Agreement. Upon learning that the advertisements remained available on the internet despite the OPP’s warning, the Ministry terminated Mr. Doe’s participation in the Program without notice. Mr. Doe’s termination from the Program occurred prior to his medical examination and the OPP never completed the transfer of his life insurance policy to his new identity. Shortly thereafter, Mr. Doe was also terminated from the federal Witness Protection Program. Although Mr. Doe subsequently had the option of re-instating his life insurance policy, he did not feel that he would be able to pass the required medical examination and, in any event, he was terminated from the Ontario Program before he could do so.
[14] Mr. Doe subsequently commenced an action against Ontario and Canada for breach of contract, negligence, negligent misrepresentation, breach of fiduciary duty, abuse of power, intentional and negligent infliction of mental anguish, and breach of his s. 7 rights under the Canadian Charter of Rights and Freedoms. He seeks damages of $1.7 million, a declaration that he should be reinstated into the Program, and a declaration that he is entitled to a new secure identity. Specifically, with respect to the time period Mr. Doe was without his new secure identity documents, he seeks damages for loss of income, as well as for mental distress and anguish.
[15] In separate proceedings, Mr. Doe successfully sought judicial review of the RCMP’s decision to terminate him from the federal Witness Protection Program: John Doe v. Canada (Attorney General) (2006), 2006 FC 92, 286 F.T.R. 233. Phelan J. of the Federal Court of Canada quashed the RCMP’s decision on the ground of procedural fairness, because Mr. Doe had not been given the opportunity to respond to the OPP’s allegations that he had breached his security.
MOTION FOR SUMMARY JUDGMENT
[16] The motion judge granted Ontario’s motion for summary judgment, holding that Mr. Doe was unable to show there was a genuine issue for trial on any of his claims.
[17] With respect to Mr. Doe’s claims of breach of contract, the motion judge found that Ontario had met, and in fact exceeded, its financial obligations to Mr. Doe under the Letter of Agreement. As to Mr. Doe’s new identity documents, the motion judge concluded that Ontario had kept its promise to provide Mr. Doe with a secure name change, notwithstanding that the Letter of Agreement did “not even specify what identification documents he was to receive and rather indicates only that the police will be reimbursed for certain security costs” and that “[n]o time limit for obtaining documents is expressed.” Further, with respect to all Mr. Doe’s claims, the motion judge held that the release contained in the Letter of Agreement barred Mr. Doe from pursuing any and all claims against Ontario arising out of his role as a witness in the case.
[18] The motion judge also held that Mr. Doe had not met the evidentiary onus on him under a motion for summary judgment. He found that Mr. Doe had not substantiated his allegations of breach of contract or negligence as particularized in his statement of claim, and had not provided sufficient evidence to rebut Ontario’s claim that it had satisfied its modest obligations under the Letter of Agreement. As to the legality of Mr. Doe’s termination from the Program, the motion judge specifically rejected Mr. Doe’s evidence that he was unaware that the public advertisements for his new business constituted a breach of security and that his conduct in this regard was inadvertent. Perhaps due to a typographical error in reproducing relevant portions of the Letter of Agreement, the motion judge implicitly accepted that Mr. Doe could be terminated from the Program without notice, and, therefore, he did not address the requirement in the Letter of Agreement for notice prior to termination.
[19] The motion judge then went on to consider whether there was a genuine issue for trial as to Mr. Doe’s claims that Ontario breached its fiduciary duty to him, engaged in an abuse of power, and that his s. 7 Charter rights were violated when he was terminated from the Program without being afforded the opportunity to respond.
[20] The motion judge first considered Mr. Doe’s Charter arguments. He held that Mr. Doe failed to show that Ontario had deprived him of his life, liberty, or security of the person. Additionally, even if Mr. Doe could prove that he was deprived of any of these rights, the motion judge stated that there was no principle of fundamental justice requiring that a witness be given the opportunity to respond to allegations of wrongdoing before being terminated from a witness protection program. He also found that Mr. Doe had not adduced any evidence of mala fides or wilfulness on the part of Ontario, which was necessary in order to ground a claim for damages from a breach of a Charter right. Similarly, there was no evidence to suggest that Ontario intentionally engaged in unlawful conduct in the exercise of public functions, a constituent element of the tort of abuse of power.
[21] On the question of breach of fiduciary duty, the motion judge assumed without deciding that Ontario owed a fiduciary duty to Mr. Doe as a participant in the Program. However, he found that Mr. Doe had not provided any evidence to suggest that Ontario had acted dishonestly or disloyally, which were required elements for a finding of breach of fiduciary duty. Thus, there was no genuine issue for trial with respect to this claim.
GROUNDS OF APPEAL
[22] The issues raised by Mr. Doe on appeal may be grouped as follows:
(1) Did the motion judge err in concluding that the appellant has no claim for breach of the agreement or for negligent misrepresentation?
(2) Did the motion judge err in his interpretation and application of the release provision contained in the Letter of Agreement?
(3) Did the motion judge make a reversible error in his conclusion that the agreement was not wrongly terminated?
ANALYSIS
(1) Did the motion judge err in concluding that the appellant has no claim for breach of the agreement or for negligent misrepresentation?
[23] Unfortunately, due to a combination of circumstances, it took much longer than expected for Mr. Doe to receive all the identification documents that he needed in order to carry on life under his new identity. As a result, the financial compensation contemplated by the Letter of Agreement to last six months was completely inadequate, as Mr. Doe was not able to work at the end of that period and required more support. Recognizing the situation, Ontario provided an additional six months of financial assistance. In total, from the date Mr. Doe entered protective custody, he received 27 months of financial support.
[24] Other aspects of Mr. Doe’s relocation also did not go smoothly or as expected. He was supposed to have his life insurance policy transferred to his new identity and premiums were to be paid on his behalf in the interim up to $600. Mr. Doe was concerned that a new medical was required. Before Mr. Doe took steps to complete the medical examination as part of the policy transfer process, he was terminated from the Program. His life insurance ultimately lapsed and he lost his investment in it.
[25] Mr. Doe wanted Ontario to provide him with a fictitious credit history under his new identity so that he would have the ability to access credit. Ontario was not prepared to do so. However, in adopting a new identity, Mr. Doe at least began with a clean slate.
[26] Mr. Doe is extremely unhappy with his life as matters currently stand. Feeling insecure in his new identity, he abandoned his new business, which has caused him new financial problems. He indicates that the RCMP are prepared to assist him with any outstanding issues regarding his passport. This is commendable and should be pursued.
[27] In my observation, based on what occurred in this case, there are clear problems with the Ontario Witness Protection Program as it is currently administered. In this case, the Letter of Agreement was entered into only after the witness had testified, at which time he was dependent on the government for protection and assistance. Further, the agreement is in a standard form and non-negotiable, and did not conform to all of the oral and written representations made by government officials in the earlier stages of the process. It is, in fact, a relatively short document and provides little detail as to the government’s obligations under the Program. For instance, while a secure name change is a fundamental component of a witness protection program, the Letter of Agreement itself is silent on what identity documents the government will provide and any timeframe for doing so.
[28] More importantly, it appears that neither level of government has implemented procedures to expedite the necessary processes, documentary and otherwise, for a witness to obtain a whole new identity, and for that identity to be sufficiently documented to allow the witness to effectively begin a new life. The question of credit history, life insurance, passports, professional certificates, to name a few issues that arose in this case, should be anticipated and fully considered in the context of witness protection programs.
[29] People who agree to assist the administration of justice by testifying in the face of serious personal danger may be forced to change their lives forever. In Mr. Doe’s case, on top of everything else, he was isolated from family and friends so that his support network was significantly diminished.
[30] Because Ontario’s Program is intended to assist people who are in a very vulnerable situation, it should be structured and administered to operate efficiently, effectively and unambiguously. For example, because the government’s Letter of Agreement contains everything it promises to do, that agreement should be entered into as soon as possible after the person has agreed to testify, so that there is no need for oral discussion or representations that may be interpreted as changing or in fact exceeding what the government intends to provide. As another example, the agreement should list exactly what the government will provide in terms of documents, financial and non-financial support, the anticipated timelines for the provision of the committed services, and the duration of the agreement.
[31] In this case, errors were made by both sides. The Program offered by the government was not as comprehensive as Mr. Doe expected and considered necessary in order to live under a new identity. However, Mr. Doe himself did not take all steps necessary to protect his own security nor did he act in a financially prudent manner in order to have the best chance to make a successful new start.
[32] The motion judge concluded that what occurred more than satisfied the obligations assumed by Ontario and that there was no genuine issue that required a trial. I see no error in the conclusion reached by the motion judge. Although there were problems and delays by Ontario in fulfilling its obligations to Mr. Doe, it recognized those problems and accommodated him by providing financial support far beyond what was required under the Letter of Agreement. There may be legal issues regarding the status of the representations that were made to Mr. Doe before he signed the agreement and about the appropriate interpretation of the agreement and Ontario’s obligations thereunder, as well as factual issues about what occurred. However, I agree with the motion judge that, in the end, Mr. Doe has not demonstrated the basis on which he would be able to recover damages in an amount greater than what he has already received as additional assistance from the government.
(2) Did the motion judge err in his interpretation and application of the release provision contained in the Letter of Agreement?
[33] The Letter of Agreement contains the following clause:
You forever release the police and the Ministry of the Attorney General for the Province of Ontario, their agents and/or servants involved in this case or cases from any and all claims or causes of action arising out of your role as a witness in this case. You understand that this constitutes a full and final settlement for any and all claims both present and future against the police and the Ministry of the Attorney General for the Province of Ontario, their agents and/or servants involved in this case.
[34] Mr. Doe’s claims in this action sound in breach of contract as well as tort for negligence, negligent misrepresentation, intentional infliction of mental harm, abuse of power, and breach of fiduciary duty. The motion judge interpreted the release as a blanket bar against any claims by Mr. Doe “arising out of the Witness Protection Program”. It is unclear whether he was including any claims for breach of the very agreement that contains the release.
[35] To the extent that the motion judge found that the release negatives the effect of the Letter of Agreement by precluding Mr. Doe from enforcing the terms of the agreement itself, he was in error. However, because of his conclusion, with which I agree, that there is no genuine issue for trial regarding a breach of the agreement that could result in an award of damages greater than the 27 months of financial support already received, nothing turns on any error that may have been made.
(3) Did the motion judge make a reversible error in his conclusion that the agreement was not wrongly terminated?
[36] Ontario’s decision to terminate Mr. Doe from the Program lies at the crux of the two issues subsumed under this heading: (1) whether Mr. Doe breached his own security thereby giving Ontario cause to terminate him from the Program; and (2) whether Mr. Doe was entitled to reasonable notice of termination of the agreement.
[37] The motion judge quoted the terms of the Letter of Agreement as allowing for termination from the Program without notice, whereas the agreement actually provides for termination with notice. Ontario terminated the agreement following a warning to Mr. Doe that certain advertisements commissioned by him constituted a breach of his security. Mr. Doe put his best foot forward to explain his actions in that regard. The motion judge rejected Mr. Doe’s explanation as unreasonable and characterized it simply as an excuse. Because the motion judge had all the available evidence on this issue before him, he was entitled to make the finding he did and to therefore conclude that there was no genuine issue that required a trial.
[38] On this record, it appears that Ontario has no further obligations under the Letter of Agreement. Therefore, since Ontario was entitled to terminate the agreement, whether it was done with or without a period of notice has no significance in fact or law. Thus, if a technical error was made by the motion judge in his description of Ontario’s termination rights, no harm occurred and no remedy flows from it.
[39] Mr. Doe does not appeal from the motion judge’s decision to dismiss his motion for interlocutory relief, whereby Mr. Doe sought an order requiring that Ontario provide him with a new secure identity. To the extent that he continues to seek such an order as a remedy in his action, I note that the motion judge found that no evidence had been presented to substantiate Mr. Doe’s “subjective apprehension that his new identity has been compromised.” Again, with Mr. Doe putting his best foot forward and with all the facts before him, the motion judge was entitled to make such a finding.
CONCLUSION
[40] I conclude that although there may be genuine issues of liability for trial, the appellant has not shown that the determination of those issues would afford him any further remedy against Ontario. I would therefore dismiss the appeal. The court file shall be sealed. In all the circumstances, I would award no costs.
Signed: “K. Feldman J.A.”
“I agree E.A. Cronk J.A.”
“I agree Paul Rouleau J.A.”