SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-360697

MOTION HEARD: November 18, 2011

RE: Adelheid Raworth v. Kyle Clark, David Whomersley and Stratford Police Services Board

BEFORE: MASTER R.A. MUIR

COUNSEL: H. Wayne Snyder for the moving parties/defendants Hedy L. Epstein for the responding party/plaintiff

REASONS FOR DECISION

[1] The defendants bring this motion pursuant to Rule 25.11(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules") for an order striking out certain paragraphs of the plaintiff's statement of claim. The impugned paragraphs of the statement of claim relate to the plaintiff's claims against the defendants for negligent investigation, malicious prosecution and breach of her rights under section 9 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c.11 (the "Charter").

[2] The defendants also seek an order that this action be transferred from Toronto to Stratford. The plaintiff opposes the relief sought under Rule 25.11(c) but consents to an order transferring this action to Stratford.

BACKGROUND AND NATURE OF THE ACTION

[3] On the evening of August 15, 2006, Constables Kyle Clark ("Constable Clark") and David Whomersley ("Constable Whomersley") of the Stratford Police Service ("SPS") were called to the home of the plaintiff located at 115 Princess Street in the City of Stratford. Their attendance at the plaintiff's home was in response to a 911 call regarding an alleged domestic dispute between the plaintiff and her husband, Daniel Dietrich ("Mr. Dietrich").

[4] After arriving at the plaintiff's home, the officers apparently conducted separate conversations with both the plaintiff and Mr. Dietrich. It appears that the officers also noted that Mr. Dietrich had suffered various injuries but that the plaintiff was apparently uninjured. At approximately 8:42 p.m., the plaintiff was arrested and charged with assault. Mr. Dietrich was not charged with any offences as a result of the incident.

[5] The plaintiff was acquitted on the charge of assault after a trial on December 7, 2007. The plaintiff then filed a complaint with the SPS regarding the actions of both officers. In her complaint she alleged that Constable Clark and Constable Whomersley failed to properly investigate the incident, which resulted in charges being laid against her erroneously and without sufficient grounds.

[6] The plaintiff's complaint was apparently investigated by members of the SPS who concluded that the complaint was unsubstantiated. The plaintiff then appealed this finding to the Ontario Civilian Commission on Police Services (the "OCCPS"). The OCCPS upheld the unsubstantiated finding with respect to Constable Whomersley, but concluded that Constable Clark may have committed misconduct in neglecting or omitting to promptly and diligently conduct a thorough investigation of the August 15, 2006 incident. As a result of this finding, the OCCPS ordered that a hearing be conducted under the Police Services Act, R.S.O. 1990, c. P.15 (the "PSA") with respect to the actions of Constable Clark.

[7] A hearing under the PSA took place on September 5, 2008 before Superintendent Jane Wilcox ("Superintendent Wilcox") of the Toronto Police Service. The plaintiff was self-represented at the hearing and gave evidence. She cross-examined witnesses and made submissions at the conclusion of the hearing.

[8] In her judgment dated November 14, 2008, Superintendent Wilcox found Constable Clark not guilty on the charge of neglect of duty. She concluded, among other things, that there was not clear and convincing evidence that Constable Clark had neglected or omitted to properly conduct a thorough investigation and that Constable Clark had reasonable grounds to arrest the plaintiff. At paragraph 27 of her factum, the plaintiff admits that these were the findings of Superintendent Wilcox.

[9] This action was commenced by the plaintiff on August 14, 2008. She is claiming damages for, among other things, wrongful arrest and detention, breach of duty, negligent investigation, mental and emotional distress, malicious prosecution, defamation and breach of her rights under sections 7, 9, 10 and 24 of the Charter.

POSITIONS OF THE PARTIES

[10] The defendants take the position that the issues that necessarily underlie the plaintiff's claims for negligent investigation, malicious prosecution and breach of her rights under section 9 of the Charter have already been decided by competent tribunals, namely the SPS, the OCCPS and as set out in the decision of Superintendent Wilcox of November 14, 2008. As a result, the defendants rely on the doctrine of res judicata in the form of issue estoppel in support of their position that the impugned paragraphs of the statement of claim constitute an abuse of process and should be struck out under Rule 25.11(c). The defendants take this position with respect to the claims against all of the defendants, although the hearing before Superintendent Wilcox was only in respect of the conduct of Constable Clark. It appears that the defendants are arguing that the court should draw an inference from the unsubstantiated findings of the SPS and the OCCPS to the effect that the issues that underlie the plaintiff's claims for negligent investigation, malicious prosecution and breach of her rights under section 9 of the Charter were effectively decided through those processes as well.

[11] The plaintiff argues that the facts before the court on this motion do not meet the test for issue estoppel as set out in the decision of the Court of Appeal in Penner v. Niagara (Regional Municipality) Police Services Board, 2010 ONCA 616.[^1] The plaintiff also argues that even if the elements of issue estoppel have been met, the court retains a residual discretion to decline to apply issue estoppel if to do so would be unfair or work an injustice to the plaintiff. In addition, the plaintiff takes the position that this motion is premature and that the defendants should have waited until after the Supreme Court of Canada has rendered its decision in Penner before bringing this motion. Finally, the plaintiff submits that a motion of this nature should not be decided on the basis of Rule 25.11, but rather pursuant to Rule 21.

ANALYSIS

A. Rule 25.11

[12] Rule 25.11 provides as follows:

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.

[13] There is authority for the proposition that Rule 25.11 can be used to strike out claims that amount to an improper attempt to relitigate issues that have been finally decided in earlier proceedings. In Wernikowski v. Kirkland, Murphy & Ain, 1999 3822 (ON CA), [1999] O.J. No. 4812 (C.A.); leave to appeal refused, [2000] S.C.C.A. No. 98, the Court of Appeal stated as follows:

12 Like other rules (e.g. Rule 21.01), this provision [Rule 25.11] is designed to allow for an early and expeditious determination of claims that cannot succeed. As the exercise of the power set out in Rule 25.11 denies a litigant a full trial of the merits of the claim, it must be exercised only in the clearest of cases. Claims that are doubtful in law or factually weak should not be foreclosed. Allowance must also be made for inadequacies in the drafting of pleadings: Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 at 5-6 (C.A.); Temilini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664 at 668 (C.A.).

14 While acknowledging that the remedial power in Rule 25.11 must be used cautiously, there are cases in which pleadings are properly struck as an abuse of process where they amount to an improper attempt to relitigate issues that have been finally decided in earlier proceedings: Foy v. Foy (1978), 1978 1394 (ON CA), 20 O.R. (2d) 747 at 748 (C.A.); Donmor Industries Ltd. v. Kremlin Canada Inc. (No. 1) (1991), 1991 7360 (ON SC), 6 O.R. (3d) 501 at 506 (Gen. Div.).

[14] As stated above, the defendants argue that issue estoppel is applicable to the facts before the court on this motion and therefore the impugned claims amount to an abuse of process as contemplated by Rule 25.11(c). They therefore fall within the category of claims that can be dealt with on a motion such as this, as set out in Wernikowski.

B. Issue Estoppel

[15] Issue estoppel requires the presence of the following three elements:

(a) the same question has been decided;

(b) the judicial decision which is said to create the decision is final; and,

(c) the parties to the judicial decision, or their privies, are the same persons as the parties, or their privies, to the proceeding in which the estoppel is raised.[^2]

[16] In my view, the defendants have met the requirements for the application of issue estoppel.

[17] First, there can be no doubt that the doctrine applies to decisions made by administrative tribunals and in particular to tribunals established under the PSA. See Penner at paragraph 22. In Penner, the Court of Appeal was dealing with a situation that involved virtually the same process as is before the court on this motion. The plaintiff in Penner was arrested for causing a disturbance during a trial in the Ontario Court of Justice. He filed a complaint against the two arresting officers, claiming that the arrest was unlawful and that the officers had used unnecessary force. Mr. Penner's complaint led to a disciplinary hearing against the two officers, which found that Mr. Penner had not been unlawfully arrested or subject to unnecessary force. Mr. Penner then appealed this finding to the OCCPS which overturned the findings of the hearing officer. The officers then applied for judicial review of this decision and the Divisional Court overturned the OCCPS ruling and restored the hearing officer's decision.

[18] Mr. Penner was present for the original hearing, gave oral evidence, cross-examined witnesses and made submissions. The hearing officer's decision was a judicial decision. The hearing officer was carrying out a judicial function and the hearing was conducted with basic standards of procedural fairness. In his decision, the hearing officer found that the subject officers had reasonable and probable grounds to arrest Mr. Penner and that they had not used unnecessary force.

[19] In Penner, the Court of Appeal ultimately concluded that issue estoppel applied to the facts before it and upheld the motion judge's order striking out Mr. Penner's allegations of unlawful arrest, unnecessary use of force, false imprisonment and malicious prosecution.

[20] As I have set out above, the impugned claims before the court on this motion involve allegations against the defendants of negligent investigation, malicious prosecution and breach of the plaintiff's rights under section 9 of the Charter.

[21] The duty of care owed under the tort of negligent investigation is that of a reasonable police officer in the circumstances. The standard of care should be applied in a manner that gives due recognition to the discretion inherent in police investigations. Police officers may make minor errors or errors in judgment and not breach the standard. See Small v. Stec, 2009 3565 (ON SC) at paragraphs 62 and 63. As was stated by the Court of Appeal in Hill v. Hamilton-Wentworth Regional Police Services Board, 2005 34230 (ON CA), [2005] O.J. No. 4045 (C.A.); affirmed, 2007 SCC 41, [2007] S.C.J. No. 41:

83 . . . The standard of care, at a general level, is the same as the standard respecting other professionals: what would a reasonable police officer in the same circumstances as the defendant do? In an arrest and prosecution context, the standard becomes more specific and is directly linked to statutory and common law duties, namely did the police have reasonable and probable grounds to believe that the plaintiff had committed a crime? [Emphasis added]

[22] The question of whether the defendants carried out a thorough investigation, and whether they had reasonable and probable grounds to arrest the plaintiff, were clearly matters that were before Superintendent Wilcox, the SPS and the OCCPS. The plaintiff's complaint clearly alleged that the officers failed to "properly investigate an incident of domestic assault". The SPS investigation and the OCCPS found this complaint to be unsubstantiated with respect to Constable Whomersley. However, the OCCPS found that Constable Clark may have neglected to conduct a thorough investigation and on that basis ordered the PSA hearing. Superintendent Wilcox thoroughly reviewed all of the evidence before her at the hearing and concluded that Constable Clark's "determination that there were reasonable grounds to believe that an assault had been committed was informed, rational and consistent with the information and evidence he had acquired". She also concluded that there were "reasonable grounds to arrest [the plaintiff] and lay a charge". To the extent that all of these findings are given effect to in this action, the plaintiff's claim for negligent investigation is bound to fail.

[23] Similarly, one of the required elements in order to succeed in an action for malicious prosecution is that the plaintiff must show that proceedings were instituted without reasonable cause. See Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170 at 192-193. The dismissal of the plaintiff's complaint as unsubstantiated and Superintendent Wilcox's finding that Constable Clark had reasonable and probable grounds to arrest the plaintiff are therefore fatal to this element of her claim. See Penner at paragraph 36.

[24] Finally, given the findings of Superintendent Wilcox, the SPS and the OCCPS, there can be no infringement of the plaintiff's section 9 Charter rights. The defendants were found to have had reasonable and probable grounds to arrest and detain the plaintiff. If the arrest is lawful, it cannot be arbitrary. See R. v. Simpson, 1993 3379 (ON CA), 12 O.R. (3d) 182 (C.A.) at 189 and R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at 254-255.

[25] I have therefore concluded that the defendants have satisfied the same issue requirement of issue estoppel.

[26] The plaintiff argues that the fact that she did not challenge the decision of Superintendent Wilcox before the OCCPS, or in the Divisional Court, means that the hearing officer's decision is not final. I can see no merit to this argument. The plaintiff was entitled to challenge the hearing officer's decision and chose not to. The time for doing so has long since passed. In my view, the decision is final.

[27] I am also of the view that the same parties requirement of issue estoppel has also been met. The plaintiff argues that Constable Whomersley and the defendant the Stratford Police Services Board (the "Board") were not parties to the PSA hearing before Superintendent Wilcox and therefore this requirement has not been met. While it is true that the hearing before Superintendent Wilcox did not involve Constable Whomersley, he was the subject of the plaintiff's initial complaint and of the plaintiff's appeal to the OCCPS. The claims being made by the plaintiff against the Board in this action are based on vicarious liability for the actions of Constables Clark and Whomersley and cannot be viewed as separate and apart from those claims. I also note that in Penner, the Court of Appeal found that the same parties requirement had been met despite the fact that the Niagara Regional Police Services Board was also a defendant in Mr. Penner's civil action. See Penner at paragraph 32.

[28] I have therefore concluded that issue estoppel precludes the plaintiff's claims for negligent investigation, malicious prosecution and breach of her rights under section 9 of the Charter. Of course, this conclusion may be subject to a decision by the court to exercise its discretion to not apply the doctrine in the circumstances.

C. Discretion

[29] At paragraph 38 of Penner, the Court of Appeal stated as follows:

38 Once a court is satisfied that the three requirements of issue estoppel have been met, the court must then decide whether to exercise its discretion not to apply it. This discretion exists because issue estoppel is intended to achieve a just result between the parties. Before applying issue estoppel a court should ask itself: "is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice?" The court's discretion is case specific - it "must respond to the realities of each case." See Schweneke v. Ontario (2000), 2000 5655 (ON CA), 47 O.R. (3d) 97 (C.A.).

[30] In Penner, the Court of Appeal identified a number of the factors the court should consider when exercising its discretion in circumstances such as these. Among these factors are:

(a) the different purposes of the proceedings;

(b) the lack of a financial stake on the part of the plaintiff in the disciplinary proceeding;

(c) the expertise of the decision maker;

(d) the procedures used in the disciplinary proceedings;

(e) the plaintiff's level of participation in those proceedings; and,

(f) the right of appeal.[^3]

[31] The Court of Appeal also noted that the exercise of discretion requires a qualitative assessment of the relevant considerations and not a mathematical calculation. See Penner at paragraph 54.

[32] As with Penner, the factors relating to the different purposes of the proceedings and the plaintiff's lack of any financial stake both favour an exercise of my discretion not to apply issue estoppel. See Penner at paragraphs 42 and 43. I note in particular the plaintiff's evidence given at the hearing before Superintendent Wilcox that part of her motivation in filing the complaint against the officers was to ensure that "everybody will learn from this and that it won't happen again". However, as noted by the Court of Appeal, the strength of these factors is somewhat diminished by the potential for an indirect benefit to the plaintiff had there been a finding of misconduct at the disciplinary hearing. See Penner at paragraph 43.

[33] Superintendent Wilcox is a senior and experienced police officer who would have as much expertise as a court would have in making a finding of whether Constable Clark had reasonable and probable grounds to arrest the plaintiff. This factor would favour issue estoppel. However, Superintendent Wilcox was only involved in the disciplinary hearing involving Constable Clark and would not have been involved in the determinations made by the SPS and the OCCPS concerning Constable Whomersley. Presumably the individuals responsible for those investigations and determinations were equally well qualified but there is simply no evidence before the court dealing with this question. Although this factor supports the application of issue estoppel, in my view it is significantly diminished by the lack of evidence concerning the decision makers involved with respect to Constable Whomersley.

[34] The procedures used in the disciplinary proceeding before Superintendent Wilcox were very similar to those considered by the Court of Appeal in Penner. Constable Clark and the SPS were represented by counsel and the plaintiff could have been represented by counsel had she wanted to be. A number of witnesses, including the plaintiff, gave evidence and they were subject to cross-examination. The parties made oral submissions in support of their positions. Such a disciplinary proceeding, as stated by the Court of Appeal, has "all the hallmarks of an ordinary civil trial". See Penner at paragraph 48.

[35] However, there is no evidence before the court of what procedures were followed by the SPS and the OCCPS. The plaintiff's complaint with respect to the conduct of Constable Whomersley was not the subject of the hearing before Superintendent Wilcox. That complaint was dealt with by the SPS and the OCCPS and found to unsubstantiated. There is simply no evidence before me as to whether the procedures followed by those bodies had any hallmarks of an ordinary civil trial, let alone all the hallmarks.

[36] The plaintiff argues, however, that the procedures followed at Constable's Clark's disciplinary hearing differed from an ordinary civil trial in one very important respect. The plaintiff submits that the PSA requires that a finding of misconduct against a police officer be proved by "clear and convincing evidence", which is a higher standard of proof than what is required in a civil action.

[37] This argument was also made by the plaintiff in Penner. The Court of Appeal found that the differing standards of proof were immaterial on the basis of the hearing officer's assessment of the evidence. The hearing officer in Penner found "nothing to indicate that the arrest [of Mr. Penner] was unlawful" and was "unable to see any evidence whatsoever" that the officers used unnecessary or excessive force. The hearing officer went on to find that the officers' use of force was "totally justified". From this, the Court of Appeal concluded that the hearing officer would have made the same findings had the lower civil standard of proof been applied.

[38] In my view, the same analysis is simply not applicable to the facts before the court on this motion. Superintendent Wilcox does not use the same kind of absolute language used by the hearing officer in Penner. She begins the "Analysis and Decision" portion of her reasons by specifically noting that the "onus is on the prosecutor to prove the allegations to a standard of clear and convincing evidence". Superintendent Wilcox found that there were some concerns with Constable Clark's investigation. He did not make a note of a conversation he had with the plaintiff, something Superintendent Wilcox determined would have been prudent in the circumstances. Superintendent Wilcox also found that it would have been prudent for Constable Clark to have personally interviewed one of the witnesses (Mary Cobb) rather than having her prepare a statement on her own. Despite these findings, Superintendent Wilcox concluded in the final paragraph of her decision that "the prosecution has not presented clear and convincing evidence that Constable Clark neglected or omitted promptly and diligently to conduct a thorough investigation". It is clear that her findings, and her assessment of the evidence, were informed throughout by the applicable standard of proof. Frankly, I do not see how her findings can be viewed without reference to the standard of proof she clearly applied.

[39] In my view, these findings are very different from the findings of "nothing to indicate" or "unable to see any evidence whatsoever" or "totally justified" referenced by the Court of Appeal in Penner. I am simply unable to conclude from Superintendent Wilcox's findings that the differing standards of proof were immaterial to her assessment of the evidence or that her decision would have been the same had the civil burden of proof been applicable. In my view, Penner is clearly distinguishable on this basis.

[40] The final two considerations identified by the Court of Appeal in Penner support the application of issue estoppel, at least insofar as Constable Clark is concerned. Like Mr. Penner, the plaintiff actively participated in Constable Clark's disciplinary hearing by cross-examining witnesses and making submissions to the hearing officer.

[41] The plaintiff also had a right to appeal the decision of Superintendent Wilcox, but chose not to do so.

[42] As indicated above, the exercise of discretion requires a qualitative assessment of the relevant considerations and not a mathematical calculation. In Penner, the Court of Appeal noted that there may be cases where a single consideration is so important that it will control the result. See Penner at paragraph 54.

[43] On the facts before the court on this motion, it is my view that it would be unfair and unjust to apply issue estoppel. The cumulative strength of the considerations in favour of not applying issue estoppel outweighs the strength of those that favour applying it. The most important consideration in that regard relates to the differing standards of proof. I am simply not satisfied that Superintendent Wilcox's findings would have been the same if a balance of probabilities standard of proof was applied. To deny the plaintiff an opportunity to have her claims decided in a civil court on the basis of the civil standard of proof would result in the ultimate injustice to the plaintiff: she would be denied her day in court and a determination of her claims on the merits. In my view, this is a critical consideration of such importance that is should control the result.

[44] It is also my view that the lack of evidence with respect to the individuals involved and the procedures followed by the SPS and the OCCPS is a further significant factor that militates against the application of issue estoppel.

[45] Finally, I am mindful of the comments of the Court of Appeal in Wernikowski that as the exercise of the power set out in Rule 25.11 denies a litigant a full trial on the merits of his or her claim, it must be exercised only in the clearest of cases. See Wernikowski at paragraph 12.

CONCLUSION

[46] Is there something, therefore, in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice? In my view, for the reasons given, the answer is yes. As a result, I have determined that it is just in the circumstances before me that I exercise my discretion not to apply issue estoppel.[^4]

COSTS

[47] At the conclusion of the argument of this motion, the parties exchanged costs outlines. The defendants' costs outline set out partial indemnity costs in the amount of $9,001.92, inclusive of HST and disbursements. The plaintiff's costs outline set out partial indemnity costs in the amount of $7,935.93, inclusive of HST and disbursements. The parties agreed that both costs outlines were fair and reasonable in the circumstances and that the successful party should be entitled to costs on a partial indemnity basis.

ORDER

[48] I therefore order as follows:

(a) this action is hereby transferred from Toronto to Stratford and that the trial of this action shall be held in Stratford;

(b) the balance of the relief sought on this motion is dismissed; and,

(c) the defendants shall pay to the plaintiff her costs of this motion, on a partial indemnity basis, which are hereby fixed in the amount of $7,935.93, inclusive of HST and disbursements, payable within 30 days.

Master R.A. Muir

DATE: January 12, 2012

[^1]: Leave to appeal was granted by the Supreme Court of Canada on March 24, 2011. The appeal was argued on January 11, 2012, with the court reserving its decision. Under the circumstances, the decision of the Court of Appeal remains binding on this court.

[^2]: See Penner, at paragraph 23.

[^3]: See Penner at paragraphs 42-53

[^4]: Given my finding on the question of issue estoppel, it is not strictly necessary for me to address the plaintiff's arguments with respect to this motion being premature or that it should have been made to a judge under Rule 21. However, in my view, neither argument is persuasive. Penner is currently the law of this province. It may or may not be modified by the Supreme Court of Canada in some future judgment. The defendants are entitled to have their motion heard and decided on the basis of the law as it now stands. I also do not accept the plaintiff's argument that this motion should be brought under Rule 21. Wernikowski stands as authority for this motion to be brought under Rule 25.11.