CITATION: Doe A v. Toronto Police Services Board, 2019 ONSC 2080
DIVISIONAL COURT FILE NO.: 035/18 DATE: 20190401
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. CORBETT, MEW, and F.L. MYERS JJ.
BETWEEN:
JOHN DOE A (YM), JOHN DOE B (SS), and JANE DOE C (AS)
Alan Honner, for the Plaintiff/Respondent, John Doe A
Plaintiffs/Respondents
– and –
JOHN DOE D, THE TORONTO POLICE SERVICES BOARD, JOHN DOE E, and HER MAJESTY, THE QUEEN, IN RIGHT OF THE PROVINCE OF ONTARIO, JOHN DOE F and JOHN DOE G
Kevin McGivney and Sarah Sweet, for the Defendants/Appellants, The Toronto Police Services Board and John Doe D
C. Teresa Yang, for the Defendant/Appellant Her Majesty, The Queen in Right of the Province of Ontario
Defendants/Appellants
HEARD at Toronto: April 1, 2019
D.L. CORBETT (Orally)
[1] This appeal comes to us pursuant to s. 19(1)(b) of the Courts of Justice Act with leave granted by this Court on July 20, 2018.
[2] The standard of review is correctness on questions of law and palpable and overriding error on questions fact.
[3] The decision on appeal is on a motion pursuant to Rule 21 and it concerns, at its core, questions of law. A claim will be struck pursuant to Rule 21(1)(b) where it “discloses no reasonable cause of action”. This is done only where it is “plain and obvious” on a generous reading of the pleading that the claim cannot succeed.
[4] The experienced motion judge cited the controlling authorities (Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, Vaseloff v. Leo, 2014 ONSC 5227), and she is taken to know the law.
[5] The motion judge characterized the test to the effect that “even a germ or a scintilla of a cause of action will suffice to maintain the claim”. Reasons are to be read sensibly and we are satisfied that this characterization was no more than the motion judge’s way of stating that the plain and obvious test is a high threshold, which it is. We are satisfied that she applied the correct test.
[6] Absolute privilege applies to bar claims for words stated in the course of courtroom proceedings. The motion judge correctly stated this principle by quoting a passage from Halsbury’s that has been approved by the Ontario Court of Appeal:
No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. The privilege extends to documents properly used and regularly prepared for use in the proceedings. Advocates, judges and juries are covered by this privilege. However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.
(See: Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 1999 3776 (ON CA), 124 O.A.C. 125 (Ont. C.A.), at para. 19, citing Halsbury’s Laws of England, vol. 28, 4th ed. (London, U.K.: Butterworths, 1997).)
[7] Informant privilege arises where police or the Crown promise to keep a person’s identity secret in exchange for information from that person. Confidential police informants are important to effective policing and the Supreme Court of Canada has held that this privilege belongs both to the Crown and the informant and cannot waived without their consent.
[8] There does not appear to be a case that decides whether a claim for breach of informant privilege could be an exception to the principle of absolute privilege as stated above.
[9] Reynolds v. Kingston (City) Police 2007 ONCA 166, 280 D.L.R. 4th 311 ONCA is not authority to the contrary. It concerns negligence and malfeasance of public office in conducting an autopsy and then testifying to the results. It was an incremental development in the law to address damage caused by a corner’s alleged breach of duty in the discharge of his office.
[10] There is appellate authority that there may be exceptions to absolute privilege (see: Amato 2013 ONCA 258, 362 D.L.R. 4th 38).
[11] Informant privilege, to be effective, must bar disclosure of privileged information in court. Indeed, the courtroom is a place where the risk of such disclosure is particularly material. The consequences of breach of informant privilege could be extremely serious. Where the privilege is breached, and serious consequences do result, it would seem reasonable that there should be some remedy in law.
[12] The motion judge concluded that this case presents questions in an area where the law is not settled. In her view, it is not plain and obvious that a claim for breach of informant privilege is not an exception to absolute privilege attaching to utterances in court. We agree with this conclusion.
[13] The motion judge noted that the appellants did not move to strike pleadings under Rule 25 as alternative relief on the motion. She declined to do so even though it is clear that she thought the pleadings may be deficient. The motion judge’s discretion on the pleadings issue in entitled to deference. The pleading is not so deficient that the defendants do not know case that they have to meet and ambiguities may be sorted out in the discovery process. We would not interfere.
[14] Plaintiffs B and C are separately represented and did not oppose the motion and do not appear on this appeal. The claims of B and C, both relatives of A, are for damages caused to them by the breach of A’s privilege. It does not appear that distinct issues about B and C were put to the motion judge. We see no error in the motion judge declining to dismiss the claims of B and C when the status of their claims was argued on the same basis as A.
[15] There are some bases to suppose that B and C may not have opposed dismissal of their claims without costs. The status of these parties should be addressed before this case moves forward including their current representation separately from plaintiff A.
[16] In the result, the appeal is dismissed.
[17] I have endorsed the Appeal Book and Compendium of the Appellants as follows: “This appeal is dismissed for reasons given orally by D.L. Corbett J., with costs from the appellant to the respondent fixed at $4,000 inclusive payable within 30 days.”
___________________________ D.L. CORBETT J.
I agree
MEW J.
I agree
F.L. MYERS J.
Date of Reasons for Judgment: April 1, 2019
Date of Release: April 3, 2019
CITATION: Doe A v. Toronto Police Services Board, 2019 ONSC 2080
DIVISIONAL COURT FILE NO.: 035/18 DATE: 20190401
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, MEW, and F.L. MYERS JJ.
BETWEEN:
JOHN DOE A (YM), JOHN DOE B (SS), and JANE DOE C (AS)
Plaintiffs/Respondents
– and –
JOHN DOE D, THE TORONTO POLICE SERVICES BOARD, JOHN DOE E, and HER MAJESTY, THE QUEEN, IN RIGHT OF THE PROVINCE OF ONTARIO, JOHN DOE F and JOHN DOE G
Defendants/Appellants
ORAL REASONS FOR JUDGMENT
D.L. CORBETT J.
Date of Reasons for Judgment: April 1, 2019
Date of Release: April 3, 2019