CITATION: Abdullahi v. C.A.S. of Toronto, 2021 ONSC 5832
DIVISIONAL COURT FILE NO.: DC-19-488 and DC-20-081
DATE: 20210902
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PENNY, GRACE AND KURZ, JJ.
BETWEEN:
Mohamed Abdullahi and Faiza Ali[^1]
Plaintiffs/Respondents
– and –
Children’s Aid Society of Toronto, Alberta Danso and Mena Gill, Toronto Police Services Board, Chief Mark Saunders, Elizabeth Byrnes, James Casey, Krystal MacLeod, Jason Maunder, Paul Walker, Michael Henry, Todd Belza and James Muirhead, Ministry of the Attorney General of Ontario, Jennifer Gibson, Rebecca Law and Joanne Bruno
Defendants/Appellants
Mohamed Abdullahi appearing in person
Giovanna Asaro, for the Children’s Aid Society of Toronto appellants
Michele Brady, for the Toronto Police Services Board appellants
HEARD by videoconference at Toronto: June 30, 2021
Grace J.
A. Introduction
[1] Two interlocutory orders of the Honourable Justice Paul Perell are under appeal. The first was made on August 13, 2019. It provides that there shall be no summary judgment motions, partial or otherwise.
[2] After leave to appeal was granted, a second order was made on January 29, 2020. It requires the remaining defendants to produce for examination for discovery anyone who files an affidavit in support of any motion for summary judgment if the first order is set aside. Leave to appeal that order was also obtained and a direction given that the appeals be heard together.
[3] I will deal with the two orders in turn.
B. The August 13, 2019 order
Background
[4] In October 2016, Mr. Abdullahi was found not guilty of two criminal charges: sexual assault and sexual interference.[^2] In late 2018, he commenced this action against the Children’s Aid Society of Toronto (“CAS”)[^3], the Toronto Police Services Board (“Toronto Police”), the Ministry of the Attorney General of Ontario and persons employed by each of them. The statement of claim seeks damages for negligent investigation, systemic discrimination, malicious prosecution, conspiracy, breach of the Canadian Charter of Rights and Freedoms, false arrest, false imprisonment, abuse of process and defamation.
[5] Motions contemplated by the Toronto Police, the Ministry of the Attorney General and Mr. Abdullahi were scheduled for argument during a May 17, 2019 Civil Practice Court attendance.
[6] What were described as motions under rule 21 of the Rules of Civil Procedure (“Rules”) by the Toronto Police and by the Ministry of the Attorney General were to be heard on May 27, 2019. Argument on the summary judgment motion Mr. Abdullahi proposed to bring was set for July 16, 2019.
[7] Preliminary steps were to be completed in accordance with timetables established during Civil Practice Court.
[8] The hearing of the motions brought by the Ministry of the Attorney General defendants and the Toronto Police proceeded on May 27 and 31, 2019. The Ministry of the Attorney General defendants sought an order dismissing the action. The Toronto Police defendants asked only for dismissal of the defamation claim. The CAS defendants did not participate in those motions, except as an observer.
[9] Decision was reserved. However, the motion brought by the Toronto Police was the subject of an initial endorsement dated May 29 (sic), 2019. It read:
This is a motion to strike the plaintiff’s libel claim. I am reserving judgment. In the interim, the timetable for the summary judgment motion is suspended. After I release my reasons for decision for this motion and the companion motion brought by the Attorney General the defendants or any of them shall schedule a case conference before me to determine a timetable for a summary judgment motion or for an expedited trial.
[10] Reasons for decision were released on June 20, 2019.[^4] Mr. Abdullahi’s action against the Ministry of the Attorney General defendants was dismissed in its entirety. So, too, was the defamation claim Mr. Abdullahi had asserted against the Toronto Police.
[11] Motions for summary judgment were addressed toward the end of the reasons. As mentioned, the motion for summary judgment Mr. Abdullahi intended to bring had been scheduled for July 16, 2019. At paras. 61 and 62, the motions judge wrote:
In the process of hearing and deciding the two pleadings motions, I did a deep dive into the pleadings and evidentiary record, and it became obvious to me that a summary judgment motion is inappropriate. There are numerous genuine issues that require a trial, and it is inconceivable that an appellate court would uphold any judgment in this case arrived at summarily. This case requires a trial.
I, accordingly, cancel the summary judgment motion, and I direct that this action proceed in the normal course through documentary disclosure and examinations for discovery.
[12] Those paragraphs caused counsel for the CAS to request a case conference. August 13, 2019 was set for that purpose.
[13] Counsel for the CAS and the Toronto Police sent correspondence to the motions judge in advance of that date. The letter sent on behalf of the CAS defendants noted that the CAS had observed but had not otherwise participated in the motions brought by the co-defendants. The letter continued:
There are numerous decisions that have concluded that a child protection agency does not owe a duty of care to third parties when it is acting pursuant to its statutory mandate in respect of child protection concerns. Those cases have been decided on the basis of both Rule 20 and 21.
[14] A recent decision to that effect was appended to the correspondence sent on behalf of the CAS.
[15] In its letter, counsel for the Toronto Police noted that the record compiled for the purposes of a motion for summary judgment “would be dramatically different from the record that was before the court on the motion to strike.”
[16] The motions judge released a brief endorsement following the case conference. After referring to the order made on June 20, 2019, the motions judge said in part:
In this direction, I shall clarify and amplify that order as follows:
(1) there shall be no summary judgment motions partial or otherwise and this matter shall proceed to trial…[^5]
[17] On January 10, 2020, the CAS[^6] and Toronto Police[^7] were given leave to appeal that portion of the motions judge’s August 13, 2019 order.
The Issue
[18] The issue on the appeal is whether the motions judge erred in granting an order prohibiting the parties from bringing a motion for summary judgment.
The Positions of the Parties
[19] The Toronto Police submit that the motion judge rendered a decision that: (i) misapplied the test for summary judgment; (ii) is inconsistent with the principles governing such motions; and (iii) was premature and overbroad.
[20] The CAS makes many of the same points. It also argues that it was fundamentally unfair for the motions judge to engage in a rule 20 analysis when none of the parties had asked him to do so. Indeed, given the lack of an evidentiary record, it was impossible to conduct any meaningful analysis.
[21] Mr. Abdullahi disagrees. He maintains that the motions judge was well positioned to make the decision he did. The respondent has identified more than one hundred and forty issues that require, in his view, a trial.
Analysis and Decision
[22] Judges of the Superior Court have significant latitude to manage cases coming before them.
[23] By way of example, when making orders, the court may impose such terms and give such directions as are just: rule 1.05. A judge may convene a case conference at any time on their own initiative or at a party’s request: rule 50.13(1). At that time, the presiding judge may grant procedural orders and issue directions “if notice has been given and it is appropriate to do so”: rule 50.13(6). On the hearing of a motion, the judge may grant or dismiss the motion “in whole or in part and with or without terms”: rule 37.13(1). A host of directions may be given, or terms imposed when a motion for summary judgment fails entirely or in part: rule 20.05.[^8]
[24] In some municipalities, an order may be made assigning a proceeding to case management: rule 77.02(1). If that occurs, significant powers are exercisable by the judge or case management master assigned to the case: rule 77.04.
[25] However, the various procedural rules do not mean that the court assumes control of the conduct of a civil proceeding in Ontario. Even if an action or application is being case managed, the parties bear “the greater share of responsibility for managing the proceeding, and moving it expeditiously to a trial, hearing or other resolution”: rule 77.01(2)1.
[26] The foundation for the August 13, 2019 order was the one made in June. The motions brought by the Toronto Police and the Ministry of the Attorney General were the only ones before the court at that time.
[27] Those motions, however, were technical ones, concerned with the sufficiency of the statement of claim. The Toronto Police successfully argued that Mr. Abdullahi had failed to comply with the notice requirement contained in the Libel and Slander Act and had failed to assert the libel claim within the time period set forth in that statute. Crown immunity was the basis on which the action against the Ministry of the Attorney General and its employees was dismissed. The parties participating in those motions had not asked for any order or direction in relation to a motion for summary judgment.
[28] Beyond sending an observer to the hearing, the CAS did not participate in those motions.
[29] Importantly, the parties did not know that an order prohibiting them from bringing a motion for summary judgment was even contemplated.[^9] With respect, there was a lack of procedural fairness: Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, at paras. 13 and 14.
[30] Further, the motions judge was not in a position to assess the merits of a summary judgment motion by any of the parties. A date for argument of the motion for summary judgment Mr. Abdullahi contemplated bringing had been set in Civil Practice Court. A schedule had been established for completion of the necessary preparatory steps. However, the motions judge suspended the timetable immediately after hearing the motions brought by the Ministry of the Attorney General and the Toronto Police. Consequently, affidavits for use on a rule 20 motion had not been exchanged.
[31] Although the parties had been directed to schedule a case conference “to determine a timetable for a summary judgment motion or for an expedited trial”, the order under appeal was made before the case conference was convened.
[32] Consequently, the motion judge’s “deep dive into the pleadings and evidentiary record” could not have taken him very far. Material compiled by the moving and responding parties for the purposes of a pleadings motion was all that was before him. As noted, the CAS defendants did not participate and, therefore, filed nothing. Simply put, the motions judge was not in a position to assess the merits of a motion for summary judgment by any of the parties, let alone all of them. The motion judge’s assertion that there were “numerous genuine issues that require a trial” was premature, procedurally unfair and not supported by evidence.
[33] In the reasons released on June 20, 2019, the motions judge said that Mr. Abdullahi’s motion for summary judgment had been scheduled “subject to the direction of the court hearing the two motions to strike”. With respect, the Civil Practice Court endorsement was more modest. With reference to Mr. Abdullahi’s motion, the presiding justice had written:
The timetable set out in this endorsement regarding the summary judgment motion is subject to any adjustment or amendment by the judge hearing the motion to strike as that judge determine (sic) necessary.
[34] That endorsement did not invite the judge hearing the pleadings motions to rule substantively on Mr. Abdullahi’s motion for summary judgment, let alone one that might be brought by one or more of the defendants some time in the future.
[35] The fact there was a subsequent case conference did not cure any of the deficiencies. The remaining defendants asked for permission to address an order that had been made prematurely. Their focus was on undoing a disposition that was made in circumstances that were procedurally unfair and made without an evidentiary foundation. They filed letters, not evidence. The motions judge was still in no position to assess the merits of a summary judgment motion. No reasons were given that underlie the order made on August 13, 2019. The brief endorsement simply said that its purpose was to “clarify and amplify” the order made in June. The errors made in the June order were simply repeated. The order under appeal cannot stand.
C. The January 29, 2020 order
Background
[36] Shortly after the Toronto Police and CAS were given leave to appeal the August 13, 2019 order, a further attendance before the motions judge was scheduled at Mr. Abdullahi’s request. At issue was whether the motions judge would enforce or suspend the portions of the order that had not been appealed.
[37] The January 29, 2020 attendance resulted in a further order. Paragraphs 2 and 3 are the relevant provisions. They read:
THIS COURT ORDERS that the deponents for the Defendants’ proposed summary judgment motion shall be the representatives of the Defendants for the purpose of the examinations for discovery and the discoveries are to be completed by May 1, 2020.
THIS COURT ORDERS that should the Appeal of Justice Perell’s Order, dated August 13, 2019, be successful and should summary judgment motions be brought, the transcripts of the examinations for discovery may be used as evidence on the summary judgment motions.
[38] On November 24, 2020, the CAS was also given leave to appeal the January 29, 2020 order.
The Issue
[39] The issue is whether the motions judge erred in ordering the remaining defendants to produce for discovery all those who provide affidavits in support of a rule 20 motion.[^10]
The Positions of the Parties
[40] The CAS takes the position that the order is inconsistent with the Rules of Civil Procedure because it conflates the different processes that apply to cross-examinations on affidavits and examinations for discovery and compels any non-party affiant to submit to an examination for discovery despite the fact Mr. Abdullahi has not sought leave as the Rules require.
[41] The Toronto Police adopt the position of the CAS if the court does not accept its argument that the appeal of the January 29, 2020 order is subsumed in its appeal of the one made by the motions judge on August 13, 2019.[^11]
[42] Mr. Abdullahi maintains that the motions judge properly made a procedural order that was intended to advance a case that requires a trial in a timely and fair manner.
Analysis and Decision
[43] The August 13, 2019 order required the parties to complete oral examinations for discovery by May 1, 2020.[^12] Leave to appeal that term was not sought.
[44] A party to an action is entitled to examine any adverse party for discovery: rule 31.03(1). Special rules apply to corporate parties. As a general rule, the examining party may choose the officer, director or employee of the corporation to be examined: rule 31.03(2)(a). However, absent consent, more than one representative may only be examined with leave of the court: rule 31.03(2)(b). Leave is also required to examine a non-party for discovery: rule 31.10(1).
[45] The motions judge conducted a case conference on January 29, 2020. The issue was whether the parties were required to proceed with examinations for discovery given the fact leave had been given to appeal a portion of the August 13, 2019 order.
[46] According to the motions judge’s brief endorsement, Mr. Abdullahi asked the court to “enforce the order” made on August 13, 2019. No additional material was filed in advance of the case conference. Mr. Abdullahi had not brought a motion for leave to examine more than one representative of the remaining defendants or a non-party.
[47] Additional relief was granted that no one sought. Once again, the order was made on the initiative of the motions judge.
[48] Beyond noting that the August 13, 2019 order was in force “[a]t the moment”, the endorsement provided no explanation for the disposition. It did not refer to the applicable rules or principles. As a practical matter, completion of the examination for discovery process in the manner and within the time ordered was impossible. Examinations for discovery were intertwined with the motions for summary judgment the motions judge had prohibited the remaining defendants from initiating. Leave to appeal that order had only recently been obtained. Once again, the process was procedurally unfair.
[49] Furthermore, there was no evidentiary basis for an order requiring the Toronto Police and the CAS to produce for discovery all of those who provide affidavits in support of the motions for summary judgment they contemplate bringing. The January 29, 2020 order cannot stand.
[50] I have no doubt the orders under appeal were intended to accelerate the progress of this proceeding. In fact, the motions judge “strongly” recommended that the trial of this matter be expedited in his August 13, 2019 endorsement.[^13] However, they have had the opposite effect. As Brown J.A. noted in Drummond v. Cadillac Fairview Corporation Limited, supra, at para. 14:
Apart from the fairness concerns, the outcome in this case demonstrates the practical problems and inefficiencies that can arise when a judge chooses to go beyond the issues raised by the parties and make orders that no one requested or had an opportunity to speak to in the course of their submissions.
D. Disposition and Costs
[51] For the reasons given, the appeals are allowed. Paragraph 1 of the August 13, 2019 and paragraphs 2 and 3 of the January 29, 2020 orders are set aside.
[52] I have reviewed the costs outlines filed by the appellants. They both seek costs on a partial indemnity basis. The Toronto Police ask for $16,525 and the CAS for $27,396.52 plus disbursements of $1,598.85, inclusive of H.S.T. In my view, all-inclusive costs awards of $10,000 in favour of the CAS[^14] and $7,500 in favour of the Toronto Police are fair and reasonable in the circumstances. Those sums shall be paid within ninety (90) days.
____________________
Grace J.
I agree ____________________
Penny J.
I agree ____________________
Kurz J.
Released: September 2, 2021
CITATION: Abdullahi et al. v CAS of Toronto, 2021 ONSC 5832
DIVISIONAL COURT FILE NO.: DC-19-488 and DC-20-081
DATE: 20210902
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Mohamed Abdullahi and Faiza Ali
Plaintiffs/Respondents
– and –
Children Aid Society of Toronto, Alberta Danso and Mena Gill, Toronto Police Services Board, Chief Mark Saunders, Elizabeth Byrnes, James Casey, Krystal MacLeod, Jason Maunder, Paul Walker, Michael Henry, Todd Belza and James Muirhead, Ministry of the Attorney General of Ontario, Jennifer Gibson, Rebecca Law and Joanne Bruno
Defendants/Appellants
REASONS
Released: September 2, 2021
[^1]: The title of proceedings reflected in these reasons accords with the direction provided by Perell J. in para. 17 of the reasons released on June 20, 2019.
[^2]: The criminal matter is subject to an order directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way under s. 486.4(1) of the Criminal Code. Every person who contravenes the order is guilty of an offence punishable on summary conviction.
[^3]: Described as the Children Aid Society of Toronto in the statement of claim.
[^4]: Mr. Abdullahi’s appeal of the rule 21 decisions was dismissed by the Court of Appeal on March 13, 2020: Abdullahi v. Children’s Aid Society of Toronto, 2020 ONCA 225.
[^5]: The balance of the endorsement dealt with procedural steps that are not in issue here.
[^6]: The CAS employees named as defendants are Alberta Danso and Manjeet Gill (referred to as Mena Gill in the title of proceedings). They are being jointly defended and consequently, I will simply refer to the group as the CAS throughout these reasons.
[^7]: The Toronto Police employees named as defendants are Mark Saunders, Elizabeth Byrnes, James Casey, Krystal MacLeod, Jason Maunder, Paul Walker, Michael Henry, Todd Belza and James Muirhead. They, too, are being jointly defended and consequently, I will simply refer to the group as the Toronto Police throughout these reasons.
[^8]: There are also rules that deal with abusive behaviour. For example, on motion by any party, the court may prohibit a party acting in that fashion from making further motions in the proceeding without leave: rule 37.16.
[^9]: As noted, the initial endorsement contemplated a case conference following the release of the reasons on the motions.
[^10]: If para. 2 of the order is set aside, para. 3 falls with it.
[^11]: That position was set forth in an October 16, 2020 letter sent by counsel to the Divisional Court office.
[^12]: At para. 3b.
[^13]: At para. 5.
[^14]: The award includes the $2,500 fixed by the panel granting leave to appeal the January 29, 2020 order.