Court of Appeal for Ontario

Date: 20210505 Docket: C66893

Before: Feldman, Harvison Young and Thorburn JJ.A.

Between: Felice Scala and Catarina Scala, Appellant

And: Toronto Police Services Board, Detective Todd Hall, Police Officer(s) John Doe and Police Officer(s) Jane Doe, Respondents

Counsel: Jonathan Shulman, for the appellant Douglas O. Smith and Sarah Sweet, for the respondents

Heard and released: April 16, 2021 by videoconference

On appeal from the judgment of Justice Andrew A. Sanfilippo of the Superior Court of Justice, dated July 18, 2019, with reasons reported at 2019 ONSC 2239 and 2019 ONSC 4359.

Reasons for Decision

Basis for the Appeal

[1] The appellant, Felice Scala, appeals the judgment in which the trial judge denied his claim for damages resulting from the alleged excessive use of force by police and the award of costs.

[2] The key issue was whether the respondents, Toronto Police Services Board, Detective Todd Hall, and other unidentified police officers (together “the Police Respondents”) acted “on reasonable grounds, [and were therefore] justified in doing what [they are] required or authorized to do and in using as much force as is necessary for that purpose” within the meaning of s. 25(1) of the Criminal Code and, if so, they are protected from liability.

[3] The appellant claims the trial judge made numerous errors of fact in dismissing his claim for damages resulting from alleged excessive police force. He claims the police respondents ought to have known of his health conditions, were not justified in using force, and should reasonably have known the grounding manoeuvre would cause him harm. They further claim that the trial judge erred in determining that Mr. Scala did not comply with a demand to surrender, and that police therefore used proper procedures and were justified in using force to overcome resistance, and that Mr. Scala did not report injuries to police.

The Law of Excessive Use of Force and the Standard of Review

[4] There is no dispute over the applicable law. In brief, in order to obtain protection from civil liability, police must establish that the level of force used to arrest was necessary, meaning that it was objectively reasonable in the circumstances presented to the police at the time of the arrest: Wilsdon v. Durham Regional Police, 2011 ONSC 3419, at para 85; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 34-35. “Objectively reasonable” has been defined as reasonable given the nature and quality of the threat, the force used in response to it, and the characteristics of the parties: R. v. Power, 2016 SKCA 29, 335 C.C.C. (3d) 317, at para 35.

[5] The contested findings that form the basis of the judge’s conclusion are all issues of fact for which the standard of review is palpable and overriding error. In addition, a trial judge’s credibility assessments are entitled to a high degree of deference.

The Positions of the Parties

Uncontested Facts

[6] On July 10, 2008, the appellant Felice Scala and his son, Ralph, were arrested while walking their pit-bull terrier. At the time, the appellant was sixty-two years old.

[7] As noted by the trial judge in his reasons, Mr. Scala was arrested on charges of breach of recognizance and criminal harassment. He conceded at trial that the police had probable cause for his arrest, were required or authorized by law to perform the arrest and acted on reasonable grounds in doing so.

The Appellant’s Position

[8] Mr. Scala and his wife, Catarina, commenced an action in 2010 alleging that police used excessive force during Mr. Scala’s arrest, were negligent and breached their fiduciary duty to him, and that he suffered damages as a result. [1]

[9] Mr. Scala claims the police did not tell him he was being arrested; threw him to the ground; and punched, kicked, and beat him while he was facedown on the ground for 2-3 minutes. He said he asked the officers to stop and denied that he resisted arrest or assaulted officers.

[10] A witness, who was also a friend of Mr. Scala, testified that he saw police kick and punch the two men for 2-3 minutes and that Mr. Scala asked the officers to stop but they did not.

[11] Mr. Scala claims that after he was taken to the police station, he asked to be taken to the hospital, asked repeatedly to use the washroom but was ignored, had to urinate on the floor of the detention room, was ordered to wipe it clean with his sweater, and was deprived of his medication. Mr. Scala also alleged that the police failed to complete required forms and reports.

The Respondents’ Position

[12] The Police Respondents deny that any officers kicked, punched, or kneed Mr. Scala. The officers testified that they told Mr. Scala he was being arrested and he was non-compliant. He was therefore taken to the ground in a controlled manner by taking hold of one arm, thrusting Mr. Scala forward suddenly so he would lose his balance, and then guiding him to the ground in a controlled fall. His hands were taken from under his chest so that he could be handcuffed.

[13] The Police Respondents said Mr. Scala did not complain of any injuries and was not refused permission to use the washroom. One officer testified he accompanied Mr. Scala to the washroom. Another testified that he attended Mr. Scala’s house and obtained his medication from Ms. Scala.

The Trial Judge’s Decision

[14] The trial took place some ten-and-a-half years after Mr. Scala’s arrest. In addition to the testimony of witnesses, the trial judge considered and reviewed the booking video and the medical records from the days following the arrest. He found many inconsistencies and inaccuracies in Mr. Scala’s evidence and concluded that Mr. Scala’s account of the arrest and detention was neither credible nor reliable. He found the evidence of the police officers, on the other hand, to be credible and reliable, and he therefore accepted their evidence.

[15] The trial judge offered reasons for his rejection of Mr. Scala’s evidence, which included the following internal inconsistencies:

(i) In examination for discovery, Mr. Scala testified that he was kneed and punched in the head, whereas at trial he denied that any of the blows were administered to his head. He testified earlier that he had sustained a head injury, but admitted at trial that he had not; (ii) In discovery, he stated that he was beaten by two police officers, whereas at trial he testified that the beating was administered by three police officers. In the video of his booking, taken within a half-hour of the arrest, Mr. Scala stated: “They six guys and me”; and, (iii) Mr. Scala testified at discovery that the police officers kneed him on the top of his upper body and head and punched him in his shoulders and head. At trial he stated that he was struck only on his back and legs.

[16] The trial judge found that “[t]hese inconsistencies are incapable of being explained as the by-product of the passage of time, or Mr. Scala’s qualities as an historian. They are fundamental and foundational to the veracity of his explanation of what happened on July 10, 2008, so much so that I had to question which version of the Plaintiff’s account of events I was being asked to accept.”

[17] The trial judge further held that there were aspects of Mr. Scala’s account of events that were inherently not plausible, including the following:

(i) When the police officers approached him, they did not utter a single word; (ii) He was not told that he was being arrested at any time from his apprehension to his transportation to the police station; (iii) He was not handcuffed after being apprehended, and when transported to the police station; and, (iv) After being placed in the police cruiser, he was driven “up and down” the street, with the police stating loudly that “Scala is in the car”.

[18] The trial judge found these statements were inconsistent with an operation conducted in daylight in public view on a residential street.

[19] The trial judge also held that there were elements of Mr. Scala’s testimony that were simply shown to be inaccurate, including the following:

(i) His testimony that he was bleeding when he was taken to the police station. There was no evidence of this on the booking video, or in the examination by the medical caregivers; (ii) He testified that when he was taken to the police station, his pants were torn. This was not borne out by the booking video; (iii) His evidence that he asked the booking officer to be taken to the hospital to obtain care for his injuries. The booking video shows that Mr. Scala did not make any such request to the booking officer. Indeed, when asked directly by that officer whether he had any injuries, he did not mention any; (iv) His statement that he was forced to clean up a soiled floor in the detention area with his sweater, when the booking video shows that he did not have a sweater; (v) At trial, Mr. Scala stated that he did not drink any alcoholic beverages on the day of the arrest and did not have a knife in his possession. The video shows that, at the time of booking, Mr. Scala stated that he had a glass of wine with his lunch, and a small knife was found in his possession; (vi) Mr. Scala testified that he did not have any medical issues with his back or leg prior to the arrest and denied that he had undergone any medical diagnostic assessments in relation to any such issues. The medical records show that Mr. Scala complained to his physicians of back pain and left leg pain as much as three years before the arrest, and had previously undergone a nerve conduction study to assist in the diagnosis of these issues; and, (vii) Mr. Scala testified that he had never been convicted of a criminal offence. Police records show that he was convicted, on June 1, 2009, for failing to comply with a peace bond and, on June 3, 2010, for failing to comply with a recognizance.

[20] Lastly, he held that Mr. Scala’s evidence was not corroborated by the booking video or the photographs, neither of which support the extent of injury that he alleges.

[21] By contrast, the trial judge found the evidence of the several police officers to be credible and reliable, corroborated by the testimony of the other police officers, internally consistent, plausible and consistent with the recorded evidence.

[22] The trial judge therefore found that the officers did not punch, kick, knee, or beat Mr. Scala; that they told Mr. Scala he was under arrest and why; that Mr. Scala resisted arrest; and that the officers executed a takedown and controlled fall, pulled Mr. Scala’s hands out to handcuff him, and drove him directly to the police station. He found that Mr. Scala was not denied access to a washroom, but rather that he was accompanied to the washroom, he was not ordered to clean up urine, and he was not deprived of medications. The trial judge accepted that, in the course of the arrest, Mr. Scala had suffered some trauma that resulted in bruising on his right thigh and calf, which were the only injuries caused by the officers during the arrest.

[23] The trial judge also held that the takedown would not have been required but for the lack of compliance, handcuffing Mr. Scala was reasonable, and the amount of force used was necessary, justified, and not excessive.

[24] While not necessary to the determination, the trial judge would have drawn an adverse inference from Mr. Scala’s failure to call his wife and son, who witnessed the arrest.

[25] The trial judge therefore held that, on the evidence before him, Mr. Scala’s claims of excessive use of force should be dismissed. He also rejected Mr. Scala’s submission of breach of fiduciary duty, because it was not pleaded and only raised in closing submissions. If Mr. Scala had established liability, the trial judge would have awarded general damages of $15,000 for pain and suffering.

[26] The trial judge also considered all of the arguments made by the parties on the issue of costs and exercised his discretion in awarding costs of the trial to the police respondents.

Conclusion

[27] The trial judge’s conclusion to dismiss the claim for excessive force and damages resulting therefrom was based largely on his findings of fact and credibility which are reviewed on a standard of palpable and overriding error.

[28] The appellant claims that most of the important aspects of the story as recounted by police should not have been accepted and that the trial judge erred in rejecting most of his evidence as being neither credible nor reliable.

[29] We disagree.

[30] The trial judge carefully evaluated the evidence led at trial, made determinations as to which witnesses he found credible and which witnesses he did not, properly instructed himself as to the applicable law and then applied that law to the facts as found by him. In so doing, he committed no reviewable error. His findings were amply supported by the evidence and there is no basis to overturn those conclusions.

[31] As noted at the outset, the appellant also raised the issue of trial costs in his notice of appeal and during his oral submissions. He claims this is public interest litigation and that the quantum of costs ordered by the trial judge is unreasonable and unfair in these circumstances given Mr. Scala’s medical conditions and the allegation that he did not resist arrest, and that it would be inconsistent to hold Ms. Scala jointly and severally liable for the costs while also ordering her alone to pay $5,000 in costs.

[32] We note that the trial judge did not in fact hold Ms. Scala jointly and severally liable.

[33] The trial judge ordered Mr. Scala pay costs in the amount of $50,000, inclusive of HST, and $17,419.40 in disbursements; and Ms. Scala pay costs in the amount of $5,000, all inclusive.

[34] We see no basis to interfere with the exercise of the trial judge’s discretion in making this award.

[35] For these reasons the appeal is dismissed.

[36] Partial indemnity costs are payable to the police respondents by the appellant, Felice Scala, in the amount of $10,000 inclusive of HST and disbursements.

"K. Feldman J.A."

"A. Harvison Young J.A."

"J.A. Thorburn J.A."

Footnotes

[1] Catarina Scala withdrew her claims at trial and did not participate in the trial.