CITATION: Rivard v. Kingston Police, 2023 ONSC 6627
DIVISIONAL COURT FILE NO.: DC-23-2796
DATE: 20231123
CORRECTED DATE: 20240223
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McCarthy, Sheard and Schabas JJ.
BETWEEN:
DONALD RIVARD
Plaintiff (Respondent on Appeal)
– and –
HIS MAJESTY THE KING IN RIGHT OF ONTARIO, KINGSTON POLICE, CHIEF OF KINGSTON POLICE, AND ATTORNEY GENERAL OF ONTARIO, and UNKNOWN OFFICERS OF THE KINGSTON POLICE
Defendants (Appellants on Appeal)
Raymond E. Boggs, for the Respondent
Stuart Zacharias, for the Appellants
HEARD at Ottawa, virtually, on September 11, 2023
Corrected Decision: The text of the original Reasons On Appeal was corrected on February 22, 2024 and the description of the correction is appended.
REASONS ON APPEAL
Mccarthy J.
The Appeal
[1] This is an appeal from the interlocutory decision of J.M. Johnston J. of the Superior Court (“the motion judge”) dated January 24, 2023 (“the decision”). This court granted leave to appeal the decision by way of order dated May 2, 2023.
[2] The motion judge dismissed the Appellants’ motion to strike out an amended statement of claim (“the amended claim”) against the Defendants, the Chief of the Kingston Police (“the Chief”) and the Kingston Police Services Board (“the Board”). The Appellants had moved under rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. At the same time, the motion judge granted the Respondent’s cross-motion brought under rule 26.01 for leave to amend the amended claim in favour of a “Fresh as Amended Statement of Claim” (“the pleading”).
The Pleading
[3] The pleading is the third version of an originating process brought by the Plaintiff. The Defendants challenged the Plaintiff’s original statement of claim, and then moved to strike the Plaintiff’s amended claim. The present pleading became the focus of the motion judge’s adjudication after he granted leave to amend the amended claim in accordance with the then proposed draft, and now impugned pleading.
[4] The Appellants agree it is the present pleading which should be the subject matter of this appellate review.
Factual Background
[5] The claim arises out of an incident which took place on September 7, 2018. The Plaintiff was involved in an altercation with officers of the Kingston Police force after being forcibly removed from a motor vehicle in which he was a passenger. According to the Plaintiff, he was brutally beaten by the officers and sustained grievous bodily injuries for which he advances a claim for compensable damages.
The Applicable Rules
[6] The rules of the Rules of Civil Procedure applicable to the motion and for this appeal read as follows:
25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.
(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
21.01 (1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(b) under clause (1) (b).
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
The Standard of Review
[7] As per the Court of Appeal for Ontario in McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 38, the standard of review on a rule 21.01(1)(b) appeal is correctness.
[8] For the reasons that follow, I would allow the appeal in part.
The Appellants’ Position
[9] The Appellants argue that the motion judge erred in his approach to the motion for leave to amend by basing his decision on extraneous and irrelevant considerations outside of the pleading.
[10] In particular, the motion judge wrongly considered findings made by a criminal applications judge (“the criminal judge”) in a related criminal proceeding to constitute material facts. The issue on the motion was the pleading standing alone. The motion judge’s focus should have been uniquely on whether the Respondent had properly pleaded claims against the Chief and the Board and not what findings or inferences could be made at trial.
[11] Moreover, the Appellants contend that the pleading fails to meet the requirement of rule 25.06(1): it does not set out the material facts specific to each of the Chief or the Board, including the specified conduct that is alleged to have breached any duty of care owed to the Respondent. This is what is demanded of a pleading according to the governing authority of Odhavji Estate v. Woodhouse (2000), 2000 17007 (ON CA), 52 O.R. (3d) 181 (C.A.), rev’d 2003 SCC 69, [2003] 3 S.C.R. 263.
[12] Finally, the motion judge erred by inferring that excessive use of force entailed a systemic problem within the police force. The allegations of liability against the Chief and the Board suggesting systemic racism are bald, conclusory, and unsupported by material facts. Those allegations were in any event first advanced in July 2022 well beyond the limitation period which would have been September 7, 2020.
[13] The Appellants ask this court to overturn the decision and to grant their motion to strike out the claims against the Chief and the Board, except for the allegation of vicarious liability, without leave to amend.
The Respondent’s Position
[14] The Respondent asserts that the motion judge was entitled to consider the factual background of the events upon which the claim is based. The findings of the criminal judge simply illuminated some of the evidence which, if accepted in the civil setting, could tend to prove the allegations.
[15] The Respondent also argues that the Odhavji decision from the Supreme Court of Canada, Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, stands for the general proposition that allegations that a police chief and police board are personally liable for breaching the duty of care to properly train and supervise officers under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), can be sustained on properly pleaded material facts.
[16] The Respondent contends that the pleading contains specific and material facts, which if proven, are capable of supporting the constituent elements of the respective causes of action. There are no bald or conclusory assertions in the pleading.
The Decision
[17] The motion judge reviewed the pleading paying particular attention to paragraphs 15, 16, and 19 thereof. He considered some of the facts surrounding the incident giving rise to the claim. In doing so, the motion judge borrowed some of the findings made by the criminal judge in respect of the same incident. The motion judge found that the allegations were not “boiler plate”. Instead, they constituted material facts which, “could lead to a finding at trial in the civil action that the officers conduct was grossly assaultive, and abusive and could be the result of a systemic issue within the police department, among officers and the result of grossly insufficient training; both on the grounds for arrest, officers understanding of the Canadian Charter of Rights and the use of force in executing arrest”: Rivard v. Kingston Police (24 January 2023), Ottawa, 20-0270 (Ont. S.C.), at para. 19.
[18] The motion judge went further, stating that in his opinion, “it is possible based on the material facts alleged, a trier of fact may conclude that if true, the allegations go beyond simply an officer acting outside the scope of his/her duties. The excessive nature of the conduct by multiple officers is evidence of a significant issue, that impacts the duties of the Chief of Police and the Police Services Board.”
[19] The motion judge went on to note that more than one officer was alleged to have been involved in the beating of the Plaintiff, while other officers did nothing to intervene. This amounted to some evidence of improper training and a widespread problem within the police force. In response to the moving party’s suggestion that the pleading was too broad and that it failed to specify what training was lacking and what the Board knew, the motion judge simply found that the nature of the abuse inflicted could be evidence of insufficient police training.
[20] Referring again to some of the findings of the criminal judge, the motion judge concluded that it was not plain and obvious that the pleading disclosed no reasonable cause of action or that the claim had no prospect of success against the Chief and the Board.
Pleadings
i) Purpose and Principles of Pleadings
[21] The purpose of pleadings has been commented upon extensively by our courts: see Yordanes v. Bank of Nova Scotia (2006), 2006 1777 (ON SC), 78 O.R. (3d) 590 (S.C.); and National Trust Co. v. Furbacher, [1994] O.J. No. 2385 (Gen. Div.). Pleadings should serve:
• To define clearly and precisely the questions in controversy between the litigants for both the parties and the court;
• To give fair notice of the precise case which is required to be met and precise remedies sought;
• To assist the court in its investigation of the truth of the allegations made; and
• To constitute a record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated between the parties.
[22] While considering what a pleading must contain, it is equally important to recognize what it should not or need not contain: evidence, argument, proof, investigation, reports, will-says, references to documents or witness names. A pleading is a factual construct, to be sure, but one in which the component parts remain to be supported and proven by evidence.
[23] The wording of rule 25.06(1) merits careful consideration. Evidence “by which those facts are to be proved” is not permitted in a pleading. For example, in a claim containing allegations of negligent operation of a motor vehicle, one does not attach an accident reconstruction report or cite passages from it. Nor should one include a passage from an expert report in a medical malpractice claim wherein it is alleged that a practitioner breached the standard of care in the treatment of a patient. As stated succinctly by the Court of Appeal for Ontario in Burns v. RBC Life Insurance, 2020 ONCA 347, 151 O.R. (3d) 209, at para. 16:
Rule 25.06(1) requires a statement of claim to contain a concise statement of the material facts on which the party relies for its claim. Each defendant named in a statement of claim should be able to look at the pleading and find an answer to a simple question: What do you say I did that has caused you, the plaintiff, harm, and when did I do it?
[24] Rule 25.06(8) is instructive for it demands full particulars in cases where fraud, misrepresentation, breach of trust, malice or intent is alleged. This is a departure from the normal practice of pleadings which requires only material facts. Undoubtedly, the threshold for “full particulars” is higher than that for “material facts”. It is worth noting, however, that even the requirement for full particulars does not displace the general pleadings rule that “evidence by which those facts are to be proved” are not to be pleaded.
ii) Material Facts versus Proven Facts
[25] Nor should “material facts” be confused with proven facts. A pleading does not serve as proof of anything. Evidence proves facts; and a pleading is no more a piece of evidence than an indictment is in a criminal proceeding. One of the standard, and indeed essential, elements of any charge to a criminal jury is to remind the members that the indictment containing the charges is not evidence.
[26] So must it be with a civil pleading.
[27] The pleading is not evidence, but it does set out what a plaintiff intends to prove. Any experienced civil litigator understands that often, by the time a matter reaches trial, the importance of the pleading has diminished. Evidence and the matters to be proven take center stage; and while the issues remain defined by the pleadings, the issues raised by those pleadings have often been narrowed. Allegations are routinely admitted or discarded as redundant, irrelevant, unproveable, or unnecessary. Trial judges often ask the parties to furnish the court with an agreed set of facts. An agreed set of facts is treated as evidence and the jury is instructed accordingly. All the same, a trial judge is hardly likely to compel the parties to serve and file amended pleadings to reflect the agreed set of facts, the allegations that have been abandoned, or the allegations that are admitted.
[28] There is good reason why no evidence is permitted in motions brought under rule 21.01(1)(b); pleadings are not about evidence. They are about setting out material facts which, if proven, would tend to prove what is alleged.
The Test Under Rule 21.01(1)(b)
[29] The test for the court to apply under rules 21.01(1)(b) and 25.11 has been accurately stated by the court in Dawson v. Baker, 2017 ONSC 6477, at para. 46:
The “plain and obvious” test under Rule 21.01(1)(b) sets out a low threshold. The court considers whether the necessary elements of a cause of action are pleaded, assuming the facts as alleged are true. Consequently, if the allegations do not give rise to a recognized cause of action or if the claim fails to plead the necessary elements of an otherwise recognized cause of action, it will be struck under Rule 21.01(1)(b). [Citations omitted. Emphasis in original.]
[30] The court will only strike out a claim on the basis that it discloses no reasonable cause of action in the clearest of cases where it is plain and obvious that the case cannot succeed: see Temilini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).
[31] A defendant faced with a pleading which attains this “low threshold” is not left without recourse. It retains the power to deny the allegations in its statement of defence. The plaintiff always bears the onus of proving the allegations it advances. A defendant may seek and then move for particulars under rule 25.10. A defendant is entitled to documentary disclosure in an affidavit of documents. A defendant can serve a request to admit certain facts. A defendant enjoys extensive rights of discovery which allows it to explore the allegations, elicit evidence and demand undertakings. Finally, a defendant retains the option of moving for summary judgment, a process where evidence is admissible, where the plaintiff will be obliged to put its best foot forward and where the test will be whether there is a genuine issue requiring a trial of an issue.
[32] To strike a pleading because the facts as alleged are not encased in rich enough detail would unfairly hamper many wronged plaintiffs from ever getting out of the starter’s box. This is especially the case where, as here, much of the evidence to be elicited in support of the allegations against the Chief and the Board (internal policies, investigations, officer records, training manuals, course materials) are likely in the exclusive possession of the Defendants. That “evidence” may not be routinely available for public viewing and may not be divulged to the Plaintiff prior to the discovery process. It is hardly fair to brand a broadly worded allegation as a mere fishing expedition or dismiss it as bald and conclusory when the prospective tortfeasor has exclusive possession over the documents and evidence which would support the pleading. In the absence of those documents and that evidence, it would be exceedingly unfair to expect a plaintiff to advance anything but broadly stated allegations.
[33] At the same time, pleading irrelevant, frivolous, or corollary facts is always improper because such allegations cannot be said to be material to the issues framed by the rest of the pleading which advances a viable cause of action. In an occupier’s liability case where it is alleged that the plaintiff slipped on ice outside a shopkeeper’s front door, it would be inappropriate to state that the shopkeeper sported a beard or enjoyed badminton. However, it is entirely appropriate to plead that the shopkeeper failed to salt or sand a slippery portion of an entranceway, even though when such an allegation is made, the plaintiff may not be in possession of any evidence or particulars to support that allegation. That allegation is allowed in a pleading because: (i) it is relevant to the issues of standard of care and liability; (ii) it forms part of the factual allegations that the plaintiff has identified it will prove; (iii) it fairly signals to the defendant and to the court what the plaintiff intends to prove in evidence; (iv) it serves a basis for an examining party to ask questions and to seek undertakings; (v) it is a material fact, proof of which would tend to establish the liability of the defendant; and (vi) it allows the defendant to pose and answer the Burns question, “What do you say I did that caused you, the plaintiff, harm, and when did I do it?”
[34] The material facts pleaded must also disclose a recognizable cause of action. As applied to a tort claim such as the present claim, the Court of Appeal for Ontario, at para. 19 of Burns, emphasized that rule 25.06(1), “requires a plaintiff to set out the material facts specific to each defendant that support a claim against the defendant that it owed a duty of care to the plaintiff, and by reason of specified conduct, breached that duty and caused injury or harm to the plaintiff.”
The Chief
[35] The Defendants rely upon two decisions of the Ontario Superior Court: Bilotta et. al. v. Barrie Police Services Board et. al., 2010 ONSC 4457 and Romagnuolo v. Hoskin, [2001] O.J. No. 3537 (S.C.). Both are “police cases” wherein the respective motion judges granted the defendants’ motions to strike out portions of the pleadings containing allegations similar to those found in the present pleading. In Romagnuolo, Keenan J. noted that if a plaintiff does not have knowledge of the material facts giving rise to the allegations, then it is inappropriate for the allegations to be in the Statement of Claim.
[36] In Bilotta, the first motions judge had struck certain portions of the claim but granted leave to amend. The second motions judge, at para. 14, held that the allegation of negligent hiring by the police force was “inadequately pleaded because it is not supported by any material facts sufficient to identify why, at the time of hiring, the Board was negligent.”
[37] With respect, I do not find these authorities to be persuasive or dispositive in respect of this pleading as it pertains to the Defendant Chief. The governing authority for pleadings in police cases is Odhavji. Like the court in Dawson, I find that the decisions in Odhavji ONCA and Odhavji SCC support the principle that a police commissioner or police chief’s duty of care for negligent supervision or training can be based on a pleading which alleges personal liability for a breach of his or her obligations of training or supervision under the PSA.
[38] In the case at bar, subject to what is set out below, I am satisfied that the pleading meets the threshold of a valid pleading as against the Defendants: it sets out the relief claimed; it describes the incident giving rise to the claim; and it describes in detail the altercation between the Plaintiff and the police officers which led to the injuries allegedly sustained.
[39] In addition, the allegations in support of liability against the Chief for failure to properly train, control, regulate or supervise his officers contain sufficient material facts for the Chief to understand the “what, when and why” of a potential finding of liability against him. If the material facts in those paragraphs are proven, then there would exist a basis upon which a trier of fact could conclude that the Chief breached a duty of care to the Plaintiff as a member of the public in the discharge of his statutory duties under the PSA.
[40] Finally, if the Chief and the Board have supported or followed policies that have encouraged or allowed a systemic culture or environment that encourages police brutality and Charter infringements, these would be material facts which could support the cause of action set in paragraph 1(c) of the pleading. It is not plain and obvious that this claim would not succeed.
Findings and Inferences
[41] I do not agree that the motion judge fell into reversible error by considering what findings or inferences could be made at trial or by referring to the factual findings made by the criminal court judge. In so doing, the motion judge was addressing the Appellants’ contention that the pleadings were boiler plate or general allegations. The motion judge was careful to stay within the parameters of the applicable test which led him to conclude that, “Those material facts could lead to a finding at trial in the civil action that the officers conduct was both grossly assaultive, and abusive and could be the result of a systemic issue within the police department”. And while strictly speaking, this aspect of the motion judge’s method of analysis was possibly misplaced, it did not in my view deflect the motion judge from applying the appropriate test to the impugned pleading, which led him to conclude that, “There are sufficient material facts disclosed that are capable of supporting the constituent elements of the causes of action against both the Chief of Police and the Board.”
The Board
[42] The pleading does, however, run afoul of the law as set out in Odhavji SCC, that no cause of action lies against a police services board for matters relating to the operational functions of a police force.
[43] At paras. 64-65 of Odhavji SCC, Iacobucci J. stated as follows:
Unlike the Chief, the Board does not directly involve itself in the day-to-day conduct of police officers, but, rather, implements general policy and monitors the performance of the various chiefs of police. The Board does not supervise members of the force, but, rather, supervises the Chief (who, in turn, supervises members of the force). This lack of involvement in the day-to-day conduct of the police force weakens substantially the nexus between the Board and members of the public injured as a consequence of police misconduct.
… Under s. 31(1), the Board is responsible for the provision of adequate and effective police services, but it is not under an express obligation to ensure that members of the force carry out their duties in accordance with the Police Services Act. The absence of such an obligation is consistent with the general tenor of s. 31(1), which provides the Board with a broad degree of discretion to determine the policies and procedures that are necessary to provide adequate and effective police services. A few enumerated exceptions aside, the Board is free to determine what objectives to pursue, and what policies to enact in pursuit of those objectives.
[44] This articulation of the law was taken up by the Court of Appeal for Ontario in Miguna v. Toronto Police Services Board, 2008 ONCA 799, 301 D.L.R. (4th) 540, at para. 89, where Blair J. stated as follows:
[A] Police Services Board cannot perform or be held responsible for operational functions of a police force. Such matters are the responsibility of the Chief of Police. The Board has no authority to supervise the Police Defendants, although it does direct the Chief of Police and monitor his or her performance. It is precluded from giving directions to the Chief with respect to specific operational decisions or with respect to the day-to-day operation of the police force. [Citations omitted.]
[45] Having correctly cited the law in Bilotta, Boswell J. went on to apply it to the pleading before him. In doing so, he concluded at para. 13, “The Plaintiffs’ allegations against the Board relate, in my view, to shortcomings in operational functions, which are not, in law, the responsibility of the Board.”
[46] A similar analysis leads me to conclude the same about the pleading before the court. Training and supervision of officers, ensuring that they comply with standards of conduct, gauging those officers’ fitness and competence for carrying out police duties: these are all day-to-day and operational functions which lie within the duties of the Chief and beyond the purview of the Board. It follows that alleging facts which seek to establish that the Board failed in its duty of care to discharge such duties and obligations cannot support a recognizable cause of action. A duty of care which does not exist at law cannot be pleaded into existence by allegations of material facts, however earnest and detailed.
[47] Save for what is set out below, the same cannot be said about the balance of the allegations against the Board. The reasoning in Odhavji SCC would allow those allegations to survive because they comply with the law of pleadings in setting out material facts. If proven, such material facts would tend to prove that the Board enacted, maintained, or promoted policies which caused, allowed or permitted the systemic problems to arise, exist and persist. To be sure, the allegations which support this cause of action are imperfect, but they do cross the low threshold to warrant survival.
Pleading Irrelevant Material Facts
[48] The motions judge also erred in not striking sub-paragraphs 19(ix) and (x). I agree with the submission of the Appellants that these proposed allegations pertain to a timeframe after the traffic stop, and the alleged assault and injuries sustained therein. They are therefore irrelevant, non-material facts that cannot support a cause of action against the Defendants. They cannot survive the test under rule 21.01(1)(b) because it is plain and obvious that even if accepted as true, these alleged facts could not have caused directly or indirectly the alleged assault, the accompanying injuries, or any Charter violations.
[49] After the fact conduct or misfeasance, either operational or policy based, might serve as evidence of the kind of policy and operations engaged in at the time of the accident but no more. Pleading evidence is not permitted pursuant to rule 25.06. I find that the motion judge erred in law by failing to apply the applicable rules of civil procedure to the allegations in those two sub-paragraphs.
The Limitation Period Argument
[50] Finally, the Appellants contend that the new allegations of systemic racism and other systemic issues within the police service should not have been permitted since they were first raised in the pleading in July 2022. The incident in question occurred on September 7, 2018 and the action was commenced on September 4, 2020. These distinct and new grounds of alleged wrongdoing were sought to be advanced well beyond the expiry of the applicable limitation, and in the absence of any discoverability issue. The motion judge simply did not address the issue.
[51] I am of the view that the question of whether the operation of a limitation period would serve to strike out portions of the pleading is premature. That is essentially a “question of law raised by a pleading in an action” motion under rule 21.01(1)(a). There is yet no statement of defence raising the limitation period defence and no reply from the Plaintiff. As well, a court will often accept or allow an evidentiary record before adjudicating on the limitation issue. This is principally because discoverability, a question involving factual determinations, is routinely raised in response to a motion under that rule.
[52] This is an appellate court, not one of first instance. The limitation issue should be fulsomely explored and adjudicated by a judge of first instance under a properly constituted motion under rule 21.01(1)(a).
[53] I would therefore deny that ground of appeal without prejudice to the Defendants to bring its motion before a judge after it has filed its defence to the pleading as directed below.
Summary and Disposition
[54] For the foregoing reasons, I conclude that the motion judge correctly found that the pleading contained sufficient material facts capable of supporting the constituent elements of certain causes of action recognized at law against the Chief and the Board.
[55] On the other hand, the motion judge erred in law by failing to correctly apply the extricable legal principles set out in Odhavji SCC, Miguana, and Bilotta in respect of allegations against the Board pertaining to the day-to-day and operational decisions of the police force. Paragraphs 18, 19(i), (ii), (iii), (iv), (v), (vi), and (vii) of the pleading are therefore struck, as against the Board only, on the basis that they do not disclose a recognizable cause of action against the Board. It is plain and obvious that this aspect of the claim cannot succeed. The preamble in paragraph 19 must be amended to reflect the limited scope of the Board’s duty of care.
[56] The motion judge erred in law in allowing the irrelevant and immaterial allegations containing after the fact evidence found at sub-paragraphs 19(ix) and (x) to survive. Those sub-paragraphs are similarly struck.
[57] The limitation issue is not properly before this court. That aspect of the appeal is dismissed without prejudice to the Defendants to bring the motion before a judge of first instance.
[58] I would therefore allow the appeal in part and strike out the paragraphs of the pleading referenced above.
[59] I would not grant leave to amend the pleading to allow the Plaintiff to rephrase or “wordsmith” the struck-out allegations: a) any shade or version of an allegation which would seek to establish that the Board could be directly liable for day-to-day or operational decisions of the police force would be improper; and b) allegations of after the fact conduct, investigations or policy decisions of the Chief or the Board would be irrelevant and immaterial to the cause of action disclosed by those material facts properly pleaded.
[60] The Plaintiff is granted leave to serve and file an “Amended Fresh as Amended Statement of Claim” to incorporate the herein ruling within 20 days. The Defendants may serve and file an amended statement of defence within 20 days receipt of the Plaintiff’s pleading.
[61] For the foregoing reasons, the appeal is allowed in part.
[62] The parties agreed on $19,500 inclusive as the costs that should be payable to the successful party on appeal. As there has been mixed success on this appeal, it is appropriate that those costs be payable to the successful party in the cause.
McCarthy J.
I agree _________________________________
Sheard J.
I agree _________________________________
Schabas J.
Released: November 23, 2023
February 23, 2024 – Correction:
- The paragraph numbering has been corrected. Otherwise the Reasons remain the same.
CITATION: Rivard v. Kingston Police, 2023 ONSC 6627
DIVISIONAL COURT FILE NO.: DC-23-2796
DATE: 20231123
CORRECTED DATE: 20240223
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McCarthy, Sheard and Schabas JJ.
BETWEEN:
DONALD RIVARD
Plaintiff (Respondent on Appeal)
– and –
HIS MAJESTY THE KING IN RIGHT OF ONTARIO, KINGSTON POLICE, CHIEF OF KINGSTON POLICE, AND ATTORNEY GENERAL OF ONTARIO, and UNKNOWN OFFICERS OF THE KINGSTON POLICE
Defendants (Appellants on Appeal)
REASONS ON APPEAL
McCarthy J.
Released: November 23, 2023