Court of Appeal for Ontario

Date: 2019-06-11

Docket: C65470

Panel: Hoy A.C.J.O., Lauwers and Zarnett JJ.A.

Parties

Between

Sajjad Asghar Plaintiff/Responding Party (Appellant)

and

Toronto Police Services Board, Toronto Police Chief, Constable Brad Verspeeten #9278 41 Division, Toronto Transit Commission (TTC), Edwin Collins (TTC Driver) Defendants/Moving Parties (Respondents)

Counsel

Sajjad Asghar, acting in person

John Rosolak, for the respondents Toronto Transit Commission (TTC) and Edwin Collins (TTC Driver)

Natalie Salafia, for the respondents Toronto Police Services Board, Toronto Police Chief and Constable Brad Verspeeten #9278 41 Division

Hearing and Appeal

Heard: May 10, 2019

On appeal from: the order of Justice Andra Pollak of the Superior Court of Justice, dated May 10, 2018, with reasons reported at 2018 ONSC 2354.

Reasons for Decision

Background

[1] The appellant owned and operated a motor vehicle that was involved in a collision on May 31, 2014. He was charged by the respondent Constable Brad Verspeeten with careless driving. The charge was withdrawn on May 16, 2016. The appellant was convinced that he had been wrongfully charged and issued a statement of claim. See the earlier endorsement of Faieta J. dated July 27, 2016, with reasons reported at 2016 ONSC 4844.

[2] In oral argument, the appellant drew the court's attention to the investigating officer's sketch of the accident scene and the sketch provided by the TTC driver, Edwin Collins. He also referred to several witness statements. He pointed out how all of this evidence was belied by the dash cam footage from Officer Verspeeten's vehicle. It is not surprising that the charge of careless driving was withdrawn.

[3] The appellant was outraged by this situation and started this action. On the plausible side of the ledger, he alleges negligent investigation, malicious prosecution and conspiracy. He has also drawn several more contentious and implausible inferences from the evidence about an international criminal conspiracy involving U.S. and Canadian police forces and organized crime.

[4] The police respondents focused in oral argument on the implausible allegations in the statement of claim and assert that these are driving the case. They say that the implausible allegations do not form the basis of a cause of action and, for that reason, the appeal should be dismissed. Counsel points to para. 25 of the statement of claim as asserting a claim for relief that is beyond the jurisdiction of the court. That paragraph states:

This is high time for the Canadian Court System and the Parliament to promulgate law that addresses organized crime since Canada runs rife with organized crime and the Crown in Right of Canada facilitates organized crime on law abiding citizens. That discussion is beyond the scope of this action. All defendants owed duty of care to the plaintiff which was breached and plaintiff was injured due to the negligence of all defendants. [Emphasis added]

[5] The appellant's answer to the critique of the breadth of the implausible allegations is in the underlined portion of the quote. He well understands the limits of the court's jurisdiction and seeks tort relief (damages) from recognized causes of action, in particular, negligent investigation, malicious prosecution and conspiracy related to those torts. The other allegations give context, he says.

[6] The appellant's factum and his oral submissions bubble with outrage about the bum's rush he thinks he got from Faieta J. and from the motion judge.

The Context Before the Motion Judge

[7] The police respondents brought a motion for an order striking out the statement of claim, without leave to amend, as being frivolous and vexatious under r. 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and for a lack of compliance with the pleadings requirements of r. 25.06(8), which requires that where allegations of intentional or malicious conduct are made, the claim must contain full particulars supporting the causes of action that are alleged. The police respondents also invoked r. 21.01(1)(b) to argue that the statement of claim discloses no reasonable cause of action.

The Governing Principles

[8] In a motion to strike a pleading as disclosing no reasonable cause of action under r. 21.01(1)(b), the moving party must show that it is "plain, obvious and beyond doubt that the claim will not succeed" at trial: MacKinnon v. Ontario Municipal Employees Retirement Board, 2007 ONCA 874, 88 O.R. (3d) 269, at para. 19. The court added, at para. 20, that "[t]he statement of claim must be read generously to allow for drafting deficiencies" and "[i]f the claim has some chance of success, it must be permitted to proceed." The court concluded, at para. 21, that "the threshold for sustaining a pleading on a Rule 21 motion is not high." See also Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 74 O.R. (2d) 225 (Div. Ct.).

[9] The usual result when a pleading is struck is to grant leave to amend. The principles are set out in Spar Roofing & Metal Supplies Ltd. v. Glynn, 2016 ONCA 296, 348 O.A.C. 330, at paras. 35-45, where Weiler J.A. pointed out that this approach is consistent with the generous approach to pleadings amendment under r. 26. Leave to amend should accordingly be denied only in the clearest of cases: South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6; and Tran v. University of Western Ontario, 2015 ONCA 295, at para. 26.

[10] Read generously, with due allowance for the fact that the appellant is self-represented and is not a lawyer, the nub of the claim is for negligent investigation, and malicious prosecution on the part of the investigating officer, together with conspiracy in relation to these torts.

The Motion Judge's Reasons

[11] The motion judge accepted the police respondents' submissions that much of the statement of claim was scandalous and should be struck on that basis. The police respondents argued that the claims for "racial profiling", "improper purpose (organized crime)", and "malicious falsehood" are not recognized causes of action. They also submitted that the statement of claim did not plead material facts that would establish a breach of the Canadian Charter of Rights and Freedoms. The motion judge agreed. She dismissed claims against the Toronto Police Services Board on the basis of s. 31 of the Police Services Act, R.S.O. 1990, c. P.15. She agreed with the submission of counsel for the police respondents that "the Claim cannot be repaired by amendments as it seeks a remedy outside of the Court's jurisdiction; discloses no reasonable cause of action and contains irrelevant and inflammatory statements that cannot be removed from the pleading." On this basis she struck the claim in its entirety with no leave to amend. She accepted the submission that "if the claim is not struck out, the result will be unfocussed discoveries and a lengthy, complex trial."

The Principles Applied

[12] As to the proper parties, there is no duty of care owed by the Toronto Police Chief personally to the appellant. The action against the Toronto Police Chief was properly dismissed. Nor do the Toronto Transit Commission and Edwin Collins, the TTC driver, owe a duty of care in negligence that is engaged in this case.

[13] We agree with the motion judge that many sections of the statement of claim are scandalous in the technical, legal sense of being irrelevant to the plausible causes of action advanced by the appellant. We now turn to the causes of action.

Negligent Investigation

[14] With respect to negligent investigation, Pollak J. commented:

[T]here are no allegations of acts or omissions to support the allegation that Constable Verspeeten breached the standard of care. The claim is the allegation that Constable Verspeeten and "fellow Police officers maliciously and intentionally conducted false and negligent investigation". The plaintiff has not pleaded facts which demonstrate how the defendant officers breached the standard of care required of police officers.

[15] This is not correct. The plaintiff did make allegations about the nature of the investigation, which might demonstrate how the defendants breached the standard of care required of police officers. In oral argument he complained that he himself was not interviewed by the investigating officer. Several other relevant allegations can be found at paras. 23 and 24 of the statement of claim:

Defendant and fellow police officers changed the final location of both vehicles inside the file which was contrary to the material facts, circumstantial and video evidence but fit well with the maliciously falsified statements of the witnesses.

[P]olice changed the material facts by falsifying information and by fixing things that fit the false statements of thug witnesses. … [C]hanging of the facts on the file by the police to fit witness statements are confirmed by a video evidence.

Defendant constable and fellow officers failed to record the material facts correctly and in fact falsified facts such as final locations of the vehicles, motion trajectory of plaintiff's vehicle before and after the accident, motion trajectory of the other vehicle, Police failed to take plaintiff's statement or at least hear what was the truth. … The investigating officer acted with indifference to the consequences of laying the charge and fell short of even the rudimentary steps which might have been taken to establish reasonable and probable grounds for laying a charge. In the present case defendant Police constable knew or ought to have known that witnesses were lying.

Malicious Prosecution

[16] Each element of the claim of malicious prosecution against the investigating officer appears in the statement of claim: see Curley v. Taafe, 2019 ONCA 368, at para. 19. First, paras. 17, 24 and 28 indicate that he initiated the prosecution:

Defendant constable was the investigating officer and was working with a team of police officers, names – Peter Upton, James Lee, Michelle Moorcroft, Glen Pitters apparently all from 41 Division.

The investigating officer acted with indifference to the consequences of laying the charge….

The Defendant officer falsely charged the Plaintiff….

[17] Second, the proceedings terminated in favour of the appellant. Third, the appellant alleges the absence of reasonable and probable cause. This is implicit in the negligent investigation allegations. Several other statements, at paras. 24 and 29, could be construed as speaking to an absence of reasonable and probable cause:

The investigating officer acted with indifference to the consequences of laying the charge and fell short of even the rudimentary steps which might have been taken to establish reasonable and probable grounds for laying a charge. In the present case defendant Police constable knew or ought to have known that witnesses were lying.

The Plaintiff states and the fact is that the Defendant had no reasonable or probable grounds for charging the plaintiff. Further, the Plaintiff asserts that his decision to charge the Plaintiff was motivated by the subject officer's indifference to the guilt innocence or correct identity of the Plaintiff….

[18] Fourth, malice is asserted throughout. For example, paras. 21, 24, 33 and 43 state the following:

This action is being brought against the malicious design crafted by the Police with an assist from the false witnesses.

Defendant Police constable and fellow Police officers maliciously and intentionally conducted false and negligent investigation.

The Plaintiff asserts that the conduct of the Defendant officer and TTC driver was malicious and was driven by malice and organized motive.

[T]he malicious attempt to lay false charges….

[19] Finally, the appellant asserted actual injury.

Conspiracy

[20] The tort of conspiracy exists if either (1) the predominant purpose of the defendants' conduct is to cause the plaintiff injury, whether or not the defendants' means were lawful, or (2) the defendants act in combination, that is, in concert, by agreement or with a common design; their conduct is unlawful; their conduct is directed towards the plaintiff; the defendants should know that, in the circumstances, injury to the plaintiff is likely to result; and their conduct causes injury to the plaintiff: Fanshawe College of Applied Arts and Technology v. Au Optronics Corporation, 2016 ONCA 621, 132 O.R. (3d) 81, at para. 71; and Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, 106 O.R. (3d) 427, at paras. 24-26. The appellant has pleaded each element of this tort against the remaining parties, except for the TTC, who remain implicated on the basis of possible vicarious liability for the actions of the TTC driver, Edwin Collins.

[21] First, the appellant pleaded, at para. 23, that "[t]he predominant objective of the defendant Constable and the fellow police officers including the false witnesses was to harm the plaintiff."

[22] Second, the statement of claim contains the following allegations at para. 23:

Defendant constable, false witnesses and the fellow police officers acted in concert and combination to harm the plaintiff. … Defendant Police Officer, fellow officers and defendant TTC driver including other witnesses knew or ought to have known that injury to the plaintiff was likely to occur due to their unlawful actions.

As described above, the appellant also asserted actual injury.

Disposition

[23] We recognize that motion judges are sometimes faced with claims that seem incredible and highly implausible, which are asserted by self-represented individuals who are often insulting in their manner of presentation and in the material they file with the court. Nonetheless, these individuals are entitled to have their pleadings assessed on an objective basis, read generously. They are entitled to have their claims determined on the merits, however tenuous those might seem to be, or might actually be.

[24] In the statement of claim considered by the motion judge, in our view the appellant comes very close to properly pleading the main claims of negligent investigation, malicious prosecution, and conspiracy. There are also possible claims pursuant to s. 24(1) of the Charter and s. 46.1 of the Human Rights Code, R.S.O. 1990, c. H.19, although they have not been properly pleaded. "Malicious falsehood", which is referred to a number of times in the statement of claim, is not a recognized cause of action. However, in some circumstances it could be interpreted as an appropriate factual description.

[25] We therefore vary the motion judge's order as follows. We agree with the motion judge that much of the pleading is scandalous in the technical legal sense of being irrelevant to the determination of the causes of action on the merits. Attached to these reasons as Appendix A is a copy of the statement of claim, with several portions struck out. These are struck without leave to amend. The balance of the pleading is struck with leave to amend.

[26] The appellant was successful in this appeal. We therefore set aside the motion judge's costs award. If the parties cannot agree on the costs of the appeal, then they may make submissions not more than three pages in length on a ten-day turnaround starting with the appellant.

"Alexandra Hoy A.C.J.O."

"P. Lauwers J.A."

"B. Zarnett J.A."