CITATION: Holmes v. White, 2014 ONSC 5809
DIVISIONAL COURT FILE NO: DC-12-00000390-0JR
DATE: 20141014
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, MEW and MYERS JJ.
B E T W E E N:
SCOTT PAUL HOLMES
Applicant
- and -
STEVE WHITE, DAVID C. GAVSIE, H.M. (MIKE) METCALF and BRADLEY S. DUNCAN
Respondents
JOHN DANZELL, SERGE MELOCHE, BEN FUSCO, BRUCE POWER, ROBERT MICHAEL ZAWERBNY, SCOTT WILLIAM MCCALLUM and MARC PONTENIER
Interveners
-and-
THE CANADIAN NATIONAL POLICE SERVICE, A DIVISION OF THE CANADIAN NATIONAL RAILWAY COMPANY
Intervener
M. Munro, for the Applicant
D. Migicovsky, for the Respondent H.M. (Mike) Metcalf
B. Brown, for the Respondent Bradley S. Duncan
A. Law, for the Respondent Steve White
A. Faith and S. Lakhani, for the intervener Canadian National Police Service
D. Porter and C. Wadsworth, for the individual interveners
HEARD at Hamilton: September 29 and 30, 2014
Myers, J.:
REASONS FOR DECISION
The Motions
[1] The applicant, Scott Paul Holmes, has brought an application for judicial review for an order in the nature of mandamus to compel three police forces to undertake criminal investigations as described below. By order dated May 10, 2013, Crane J., sitting as a single judge of this Court, granted the interveners the right to participate in this proceeding. By order dated June 21, 2013, Ramsay J., sitting as a single judge of this Court, quashed the application completely. The applicant now asks a three-judge panel of the Court to set aside or vary those orders pursuant to s.21(5) of the Courts of Justice Act, R.S.O. 1990, c.C.43. In particular, the applicant seeks orders setting aside:
a. the order of Crane J. dated May 10, 2013 granting the interveners leave to intervene in this application for mandamus;
b. the order of Ramsay J dated June 21, 2013 quashing this application for mandamus;
c. the costs endorsement of Crane J. dated July 2, 2013 that appears to conflict with the costs endorsement of Ramsay J. dated June 21, 2013; and
d. the costs endorsement of Ramsay J. dated September 16, 2013, awarding the Respondent, Metcalf, costs of $12,000 on the successful motion to quash.
The Disposition
[2] For the reasons that follow, we dismiss the motion for an order setting aside the order of Ramsay J. that quashed the application. As the application is quashed, the motion for an order setting aside the order of Crane J. allowing the interveners to participate has become moot. In any event, we did not call on the interveners to respond to that motion as we saw no reviewable error of law or palpable and overriding error of fact in the decision of Crane J.[^1] The motion for an order setting aside the order of Crane J. is therefore dismissed.
[3] The order of Ramsay J. awarding costs to the respondent, Metcalf, in the amount of $12,000 was a discretionary order and is entitled to the highest degree of deference absent an error of law or principle. Counsel for the respondent, Metcalf, had primary carriage of the proceeding for the respondents. There was no error committed by Ramsay J. in awarding Metcalf twice the costs that he awarded to the other successful respondents. We have also granted a larger proportion of the costs to the respondent, Metcalf, on consent of the applicant, in respect of the motions before us.
[4] In his costs endorsement dated June 21, 2013, Ramsay J. mistakenly determined that upon Crane J. retiring from the bench, he had referred to Ramsay J. the costs of the motion to intervene. In fact, Crane J. had reserved the costs decision to himself. Ramsay J. would have denied the interveners costs of the appearance before Crane J. But, by endorsement dated July 2, 2013, Crane J. awarded costs to the interveners for reasons which were well within the scope of his discretion (see: Incredible Electronics Inc. v. Canada (Attorney General), 2006 17939 (ON SC), 2006 O.J. No. 2155 (Sup. Ct.) at paras. 114-116). Prior to any formal orders being signed and entered, Ramsay J. recognized his error and in an endorsement dated September 16, 2013, determined that his earlier costs endorsement “must be considered a nullity”.
[5] The applicant seeks to take advantage of the slip made by Ramsay J. arguing that his unintended usurpation of the costs decision of Crane J. somehow made Crane J. functus officio and prevents the interveners from relying upon the decision of Crane J. awarding them costs. Reviews under s. 21(5) of the Courts of Justice Act, R.S.O. 1990 c.C.43 are from orders, not from endorsements or reasons. It is clear that there will never be an order of Ramsay J. concerning the costs of the motion that was before Crane J. Nothing prevents the parties from having the costs order of Crane J. enforced.
The Application for Mandamus
[6] The applicant was twice charged with criminal offences by the Canadian National Police Service, a division of Canadian National Railway Company (“CN”). The charges asserted that the applicant and others essentially took from CN money that did not belong to them. Both times the charges were withdrawn by the Crown Attorney. The second withdrawal occurred only after the applicant had been subjected to a preliminary inquiry.
[7] The applicant has sued CN, its Police Service, and several of its officers for alleged misconduct in respect of the laying of the unsuccessful criminal charges. For its part, CN has launched civil proceedings against the applicant claiming damages for fraud, among other allegations.
[8] The applicant asserts, with supporting evidence, that members of the CN Police Service committed a number of acts of misconduct in their efforts to prosecute the applicant and his wife. The essence of the applicant’s complaint in his lawsuit and in these proceedings is that CN Police Services officers misused their criminal law authority to enhance CN’s position in its civil lawsuit. Among other issues, the applicant points to sworn testimony given by members of the CN Police Service at various investigative stages which the applicant says were misleading and amounted to criminal offences being committed by those witnesses. The applicant also says that his wife was arrested without sufficient grounds and in an abusive manner so as to pressure them in the civil dispute.
[9] The applicant has filed a complaint with CN Police Service under its statutory complaints process. The Chief of the CN Police Service has deferred responding to the complaint pending the outcome of the civil proceedings between the parties. The applicant has not appealed that decision within CN’s complaints process; nor has he sought judicial review of the decision in the Federal Court of Canada.
[10] Instead, the applicant sought the assistance of the local police forces in London and Peel Region and of the RCMP. The respondents in this proceeding are the administrative authorities for those three police forces. The applicant has requested each of the respondents to cause his police force to commence a criminal investigation into the conduct of the CN Police Service. Albeit for different reasons, each of the respondents has exercised his discretion to decline to open formal investigations as sought by the applicant.
[11] This application is for an order in the nature mandamus – an order compelling the respondents to fulfill their statutory duties to investigate and lay charges against the CN Police Services and its officers if warranted.
[12] The interveners are the CN Police Service and the individual CN Police officers against whom the applicant’s allegations are made.
[13] Ramsay J. quashed the application on three distinct grounds: (a) delay; (b) mandamus does not lie to compel the police to investigate criminal offences; and (c) abuse of process. Each of these grounds is a separate basis on which he quashed the application. Ramsay J. correctly found that an application will be quashed only where it is plain and obvious that it cannot succeed. (See: Deeb v. IIROC, 2012 ONSC 1014 (Div. Ct.)). In light of our agreement with Ramsay J. on the main issue argued, that mandamus is not an available remedy in this case, we do not need to consider the other bases relied upon by Ramsay J. to quash the application.
Mandamus
[14] Mandamus is a particular form of judicial relief. While courts regularly quash decisions made by government officials that are found to violate their statutory or regulatory powers, requiring a government official to do a specified positive act is a more nuanced venture. A court requiring a government official to act can raise questions of judicial authority, legitimacy, and the balance of powers as between the executive and the judiciary. Accordingly, tests have been developed to ensure that the court exercises its undoubted power of compulsion only in appropriate cases. Ramsay J. set out the correct test as accepted by the Supreme Court of Canada in Apotex Inc. v. Canada (Attorney General), 1993 3004 (FCA), [1994] 1 F.C. 742 (Fed. C.A.) at para. 45, aff’d 1994 47 (SCC), [1994] SCJ No. 113.
[15] Among the many elements of the multi-pronged Apotex test for mandamus are requirements that: (a) the respondents must have a legal duty to act; (b) the duty must be owed to the applicant; and (c) mandamus will not be available to compel the exercise of an unfettered discretion or to compel the exercise of a fettered discretion in a particular way. The applicant’s proceeding runs afoul of each of these elements of the test. Ramsay J. made no error of law or palpable and overriding error of fact in concluding that it is plain and obvious that the applicant cannot succeed. This is not a novel case or a close call. It is a case in which binding authority and all of the relevant persuasive authorities on point stand directly opposed to the applicant’s request.
[16] It has been held many times that the police do not owe either a public law or a private law duty to any individual to investigate crime. (See, for example, Burgiss v. Canada, 2013 ONCA 16 and Odhavji Estate v. Woodhouse, 2003 SCC 69 at para. 40). In Clemens v. Canada, [1995] O.J. No. 1094 (Ont. Ct. Gen. Div.) O’Driscoll J. cited the decision of the Court of Appeal of England and Wales in Commissioner of Police of the Metropolis, Ex. p. Blackburn, [1968] 2 W.L.R. 893 in which Lord Denning M.R. wrote:
It must be for the [chief constable] to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter…[^2]
[17] The applicant relies heavily on Blackburn and cases which have followed it in England to try to argue that mandamus can lie to compel police to investigate particular crimes. Yet, Lord Edmund-Davies in Blackburn (at page 912, post F) and Lord Denning himself in R. v. Chief Constable of Devon and Cornwall, Ex p. Central Electricity Generating Board, [1982] 1 Q.B. 458 (CA) (at page 472) both said expressly the opposite. In both of those cases, the court required police to ignore a policy that purported to prevent them from even considering whether to investigate certain crimes regardless of how the police thought they should act. Once the policies, which the courts found to be unlawful, were swept aside, the courts then required the police to make the discretionary decision of whether or not to investigate the allegations.
[18] The English cases concluded that while the court can require the police to exercise their discretion to decide whether to investigate, the court should not dictate to the police the outcome of that discretionary decision. Yet in this case, the applicant seeks to have this Court do precisely that. All three police departments represented by the respondents have already exercised their discretion and decided not to investigate the allegations being made by the applicant. The applicant asks the Court to compel the police to investigate his allegations against the CN Police Service. This is the very thing that the English courts, on which the applicant relies, have said that they cannot and must not do.
[19] The same result is reached under the third prong of the test in Apotex as recited above. The Court cannot issue mandamus to require a particular result. If the discretion of the police is unfettered, then it is not amenable to mandamus at all. But even if the police have only a fettered or limited discretion, the Court may be entitled to require a recalcitrant office holder to make a decision, but the Court cannot dictate the outcome of the discretionary decision. The applicant asks the Court to do that which the Supreme Court of Canada has said it cannot do.
[20] The applicant falls back on statements made by the Supreme Court of Canada and the Federal Court of Appeal to the effect that in certain flagrant and extraordinary cases, the courts can review abusive exercises of prosecutorial discretion. (See: R. v. Beaudry, 2007 SCC 5, Ochapowace Indian Band v. Canada (Attorney General), 2009 FCA 124 and Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), 1999 SCJ No. 39). He submits that, taken together, these cases provide that every alleged victim of a crime has a right to have the court compel the police to either investigate his or her allegations or to require the police to establish in court that they have objectively and subjectively reasonable grounds to decline to investigate. Just stating the proposition is to reject it. None of the cases relied upon by the applicant deal with Apotex or suggest that a court can order mandamus to compel a police force to investigate a particular criminal offence at the behest of an alleged victim of crime.
Costs
[21] Costs should follow the event. At the completion of the hearing we invited counsel to try to agree upon the quantum of costs that should be awarded. The applicant and the respondents agreed that if we dismiss the motions, the respondent, Metcalf, should be entitled to all-inclusive costs of $20,000 as his counsel took the lead for the respondents in this Court as he did below. The parties also agreed that, if successful, each of the respondents White and Duncan should be entitled to all-inclusive costs of $7,500. We agree and order the applicant to pay these amounts in the aggregate for all of the motions that were argued before us as listed at the outset of these reasons.
[22] The interveners ask for costs as well. Counsel for each of CN Police Services and the individual police officers asks for $7,500 in costs for each of the two principal motions (to set aside the order of Crane J. allowing interveners and to set aside the order of Ramsay J. quashing the application for mandamus). In our view, they interveners seek too much. We understand the tactical reason that they wanted to be part of what appears to have been an application that was itself motivated by tactical considerations. However their contribution to the actual argument before the Court was minimal. We are of the view that each of the two sets of interveners should be entitled to $3,000 for the motion to quash and $6,000 for the motion to intervene in which they were the responding parties. That is, each is entitled to $9,000 all-inclusive in the aggregate for all motions.
Hryniak v. Mauldin, [2014 SCC 7](https://www.minicounsel.ca/scc/2014/7)
[23] Finally, we cannot help but comment on a matter of concern to the Court. There were three banker’s boxes of material filed by counsel for each of the three judges on the panel. The motion records were four volumes thick although the only documents referred to during the hearing were the short decisions of Crane and Ramsay JJ. and one short letter from each of the three police departments declining to investigate. As there were two motions in substance, the four volume motion records were filed twice in triplicate for the panel. Plus, books of authorities were filed by all but one participant. The applicant’s Combined Book of Authorities on both motions was six volumes in total and he filed another volume of British cases (all filed in triplicate). The books of authorities filed by the respondents and interveners contained many of the same cases as were filed by the applicant and each other. The vast bulk of the authorities filed were never referred to by counsel. In all, it is apparent that counsel made little or no effort to coordinate their filings in order to minimize costs to their clients and to minimize their waste of resources.
[24] The Supreme Court of Canada judgment in Hryniak, supra, requires courts to undergo a culture shift in managing civil litigation. All civil cases are required to be presented with efficiency, affordability and proportionality at the forefront. Civil cases cannot continue to be so expensive so as to prevent Canadians from having access to their courts of justice. Regardless of the relationships among the clients, all counsel are expected to communicate and cooperate in the preparation and presentation of civil cases. Prior to setting down cases and certainly prior to arguing in court, counsel are expected to speak to one another and agree on documentation designed to protect their respective client’s pocketbooks and to enhance the efficiency of the process for all involved. Counsel ought to have agreed on the contents of the records to avoid overt waste and brought a motion for directions if necessary. A simple compendium of orders, endorsements, and the three relevant letters would have sufficed for the hearing. Similarly, counsel ought to have spoken and agreed upon either a joint case book or that one party would take the lead and the others could supplement the main book. At minimum, an index should have been circulated so that all parties could refer in their facta to the same version of the cases in the same book of authorities. There is no justification for using different versions of the same case reproduced in different books of authorities just because counsel could not be bothered to communicate.
[25] We considered cutting some amount from the costs awards to reflect wasted copying time and disbursements. We decided not to do so in this case. In future however, counsel should expect to see inefficiency reflected in costs awards to protect clients and access to justice. All participants in the civil justice system, be they parties, counsel, court administrators, or judges, must change the way they approach case preparation and presentation to implement the culture shift to make civil justice affordable, efficient, and proportional so as to restore access to civil justice to Canadians.
Myers J.
Matlow J.
Mew J.
Released: October 14, 2014
CITATION: Holmes v. White, 2014 ONSC 5809
DIVISIONAL COURT FILE NO: DC-12-00000390-0JR
DATE: 20141014
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, MEW and MYERS JJ.
BETWEEN:
SCOTT PAUL HOLMES
Appellant/Defendant
- and -
STEVE WHITE, DAVID C. GAVSIE, H.M. (MIKE) METCALF and BRADLEY S. DUNCAN
Respondent/Plaintiff
JOHN DANZELL, SERGE MELOCHE, BEN FUSCO, BRUCE POWER, ROBERT MICHAEL ZAWERBNY, SCOTT WILLIAM MCCALLUM and MARC PONTENIER
Interveners
-and-
THE CANADIAN NATIONAL POLICE SERVICE, A DIVISION OF THE CANADIAN NATIONAL RAILWAY COMPANY
Intervener
REASONS FOR JUDGMENT
Myers J.
RELEASED: October 14, 2014
[^1]: As to the standard of review on a motion to set aside under s.21(5) see: Marsden v. Her Majesty the Queen, 2012 ONSC 6118 (Div.Ct.).
[^2]: The applicant’s counsel correctly notes that O’Driscoll J. went on to find support in a different portion of the law report of the case that was mistakenly attributed to the Master of the Rolls. Ignoring that passage does not alter the analysis of Blackburn or its use in Clemens.