Court of Appeal for Ontario

Date: August 30, 2018 Docket: C64805

Justices: Lauwers, Miller and Nordheimer JJ.A.

Between

Ian Gordon Conklin Plaintiff (Appellant)

and

Her Majesty the Queen in right of Ontario, Ministry of Community Safety and Correctional Services, Ottawa Carleton Detention Centre, Ottawa Police Service, City of Ottawa, Gaston Thibideau, Maureen Harvey, Robert J. Taite, John Doe and Jane Doe

Defendants (Respondents)

Counsel

Joseph Obagi, for the appellant

Jim Smith and Meagan Williams, for the respondents

Heard and released orally: August 30, 2018

On appeal from: the judgment of Justice Michelle O'Bonsawin of the Superior Court of Justice, dated December 7, 2017.

Reasons for Decision

[1] The plaintiff appeals from the order of the motion judge who struck out the plaintiff's claim against Maureen Harvey, John Doe and Jane Doe. The plaintiff does not appeal from the same order that struck out the plaintiff's claim against Her Majesty the Queen in right of Ontario.

[2] The plaintiff claims damages for negligent investigation by officers of the Ontario Provincial Police ("O.P.P.") and for breach of the duty of care owed to him by corrections officials while he was held in custody for three years at the Ottawa-Carleton Detention Centre ("O.C.D.C.").

[3] The appellant was incarcerated while a number of drug related charges were pending against him. Eventually, at the request of the Crown, all charges were stayed in June 2014 on the basis that there was no reasonable prospect of conviction.

[4] The defendant, Maureen Harvey, is identified in the amended statement of claim as being, at all material times, the superintendent of the O.C.D.C. The defendants, John Doe and Jane Doe, have dual roles in the amended statement of claim. On the one hand, they are alleged to be officers of the O.P.P. who were in charge of the investigation of the appellant and the charges against him. On the other hand, they are alleged to be guards or correctional service officers charged with the supervision and care of inmates at the O.C.D.C.

[5] The defendant, Her Majesty the Queen in right of Ontario, brought a motion to strike out that claim as against her and as against the respondents, Maureen Harvey, John Doe and Jane Doe. The motion judge struck the various claims, all without leave to amend.

[6] In granting the order as it related to Ms. Harvey, the motion judge found that the amended statement of claim "does not provide particulars enough to link Ms. Harvey in her personal capacity". However, the motion judge did not provide any reasons for striking the claims against John Doe and Jane Doe. On that point, we note that the respondents do not oppose the appeal being allowed as it relates to the striking of the claims against John Doe and Jane Doe.

[7] It is well-established that, on a motion to strike a statement of claim, the pleadings are to be read generously allowing for inadequacies due to drafting deficiencies: Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.) at para. 11.

[8] In our view, the motion judge failed to properly apply this test in concluding that the claims against Maureen Harvey should be struck out. While not pleaded as precisely as one would hope, the amended statement of claim does plead that Ms. Harvey was the superintendent of the O.C.D.C. "responsible for the hiring and firing of staff". In a later section of the amended statement of claim, the plaintiff pleads that "the staff of the O.C.D.C., its management and supervisors" failed in various respects including hiring staff that lacked the necessary skills and staff that were incompetent. The amended statement of claim further pleads that the staff and management of the O.C.D.C. kept the appellant in conditions that were inhumane and failed to provide him with the necessaries of life.

[9] Read generously, the amended statement of claim alleges facts that amount to negligence on the part of the staff and management of the O.C.D.C. That staff and management would include Ms. Harvey as superintendent. Indeed, as superintendent, she would be presumptively responsible for all of the other staff. There was, therefore, a sufficient pleading of negligence with respect to the claim against Ms. Harvey.

[10] In reaching her conclusion, the motion judge relied, in part, on the decision in Persaud v. Ontario (Attorney General), [2008] O.J. No. 2953 (S.C.J.). In that case, the plaintiff had commenced three different actions making various allegations including abuse to which she was subjected at the Centre East Detention Centre. The defendants brought motions to strike out the claims. In referring to one of the claims that alleged an assault by a corrections guard, Horkins J. said, at para. 55:

However, it is not just the lack of particulars in the statement of claim that renders the claim against the guard defective. If an assault occurred then the plaintiff may have a cause of action but it is against Her Majesty the Queen in Right of Ontario, not the guard.

[11] It is not clear to us, given the state of the pleadings in Persaud, what the precise allegation involving the guard was which led to the above statement. However, if the motion judge in Persaud intended to hold that there was no individual claim against the guard, then that decision is wrong in law. If a person is unlawfully assaulted by a guard while in a provincial detention centre, that person has an individual claim against the guard that may also lead to a separate claim against Her Majesty the Queen in right of Ontario based on vicarious liability.

[12] The claim against Ms. Harvey was not so devoid of allegations of fact that it was "plain and obvious" that it could not succeed. The claim ought not to have been struck, especially without leave to amend.

Conclusion

[13] The appeal from the judgment of the motion judge is allowed and the order striking out the claims against Maureen Harvey, John Doe and Jane Doe, is set aside.

[14] The appellant is entitled to his costs of the appeal fixed in the agreed amount of $15,000 inclusive of disbursements and HST. We set aside the costs order below and make no order as to costs of the original motion.

"P. Lauwers J.A."

"B.W. Miller J.A."

"I.V.B. Nordheimer J.A."