ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 4576/08

DATE: 20130417

B E T W E E N:

SHANNON BODICK Plaintiff

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ANNETTE McKELVEY Defendants

COUNSEL: Peter J. Doucet, for the Plaintiff H. MacKay and J. Glick, for the Defendants

HEARD: October 10, 2012

D E C I S I O N

WILCOX, J.

[1] INTRODUCTION

[2] The Plaintiff, Shannon Bodick, was a live-in caregiver for an elderly woman, Marianne West, who was afflicted with Alzheimer’s and other ailments. West’s daughter, Jane Cousens, and financial advisor, Patrick O’Connor, complained to the Ontario Provincial Police (OPP) regarding the financial arrangements between the Plaintiff and West. The complaints included that the Plaintiff had been receiving but not declaring income from West while also receiving Ontario Disability Support Program (ODSP) benefits from the Ministry of Community and Social Services (MCSS). The investigation was assigned to the Defendant, OPP Detective Constable Annette McKelvey (the “Defendant”). The investigation soon revealed no grounds for criminal fraud charges. The Defendant continued dealing with the matter, however. In particular, information was provided to ODSP which did its own investigation and determined that the Plaintiff had not committed fraud against it. The Plaintiff sued. The Defendants moved for summary judgment dismissing the claim against the Defendants, and costs. For the reasons that follow, the motion is granted.

[3] THE ACTION

[4] The Statement of Claim, dated May 15, 2008, seeks a declaration that the Plaintiff’s rights under s. 7 of the Charter were infringed and damages under s. 24(1) of the Charter and other heads, including punitive, aggravated or exemplary damages and special damages.

[5] The Plaintiff alleged:

• the Defendants performed the investigation in a negligent fashion and violated the Plaintiff’s Charter rights.
• the Defendant officer reported to the MCSS that the Plaintiff had committed fraud against it and West’s family and that MCSS should press charges.
• a proper investigation would have revealed that the Plaintiff did not defraud ODSP, her employer West, or West’s family.
• the Defendants caused a permanent record to be created in the Defendant’s files stating that the Plaintiff was subject to a fraud investigation, which record is available to all prospective employers of the Plaintiff and others authorized to do an OPP check of the Plaintiff. The OPP have refused the Plaintiff’s request to modify the record.
• as a consequence, the Plaintiff’s reputation in her small home town had been destroyed and she had become permanently unemployable and suffered other injuries and damages.
• that the Defendant’s conduct was malicious, oppressive, deliberate and high-handed.
• the Defendant, Her Majesty the Queen in Right of Ontario is liable for the torts committed by the Defendant Annette McKelvey in the course of her employment.

[6] The Statement of Defence:

• denied impropriety in the investigation.
• alleged it kept proper records of the case.
• alleged that the records were only divulged in certain circumstances and only with the Plaintiff’s consent.
• denied that the Defendant Annette McKelvey misled MCSS’s ODSP unit or encouraged it to charge the Plaintiff.
• denied that the Defendant’s actions were malicious, oppressive, deliberate or high-handed.
• denied that the Plaintiff suffered any loss or harm attributable to the Defendants, and
• sought to have the Plaintiff’s claim dismissed.

[7] THE MOTION

[8] The Defendants brought a motion dated August 25, 2010 seeking summary judgment dismissing the Plaintiff’s claim, returnable October 4, 2010. It was adjourned sine die, brought back on November 25, 2011 and adjourned to a date to be arranged. The hearing of the motion commenced on February 15, 2012 but was not completed. The continuation was scheduled for August 10, 2012, but was adjourned to October 10, 2012, when it took the full day, again not being completed. A further date was scheduled, but had to be rescheduled. Submissions were finally completed on April 4, 2013.

[9] The Defendant’s motion for summary judgment sought a dismissal of the Plaintiff’s claim on the grounds that there is no genuine issue requiring a trial because: a) the evidence demonstrates that the Defendants conducted an investigation of the Plaintiff which was in accordance with OPP policy and procedure and which was to the standard of a reasonable officer in similar circumstances, and b) the evidence demonstrates that the Defendants acted without animus, malice or an improper purpose, and therefore the Plaintiff cannot make out a claim for negligent investigation or for malicious conduct on the part of the Defendants in relation to the sharing of information with other law enforcement agencies or in the creation of an occurrence report documenting the steps taken in relation to this matter.

[10] The Defendants’ Motion Record contained the affidavit of Annette McKelvey dated August 18, 2010 and the following exhibits to it: Exhibit A – General Occurrence Report dated February 7, 2006 Exhibit B – Policing Standards Manual (2000) page LE-021 Exhibit C – Elder/Vulnerable Adult Abuse: Introduction: pages 1 to 3 Exhibit D - an email from Ivan Godin to Annette McKelvey dated February 1, 2006 Exhibit E – Notes of Detective Constable Annette McKelvey Exhibit F – Interview Report dated February 2, 2006 Exhibit G – Transcript of taped interview of Patrick O’Connor dated February 7 Exhibit H – Investigation notes dated February 9, 2006 Exhibit I – Supplementary Occurrence Report dated February 7, 2006. Included in the exhibits were excerpts from police manuals which, the Defendant indicated, she considered in her investigation which followed police policy in general.

[11] The Plaintiff filed the affidavit of Shannon Bodick sworn November 29, 2010 and the following exhibits to it: Exhibit A – Police Records Search Certificate Exhibit B – General Occurrence Report Exhibit C – Fax of March 22, 2006 from the Defendant to the PGT Exhibit D – Fax of March 1, 2006 from the Defendant to the PGT Exhibit E – Eligibility Review Report Exhibit F – Eligibility Review Report, redacted Exhibit G – Occurrence Summary, redacted Exhibit H – Debra Brosko’s E.R.O. Field Notes Exhibit I – Notes of Staff Sergeant L. K. (Leslie) Craig Exhibit J – Notes of Sergeant Rick Tout. Also filed were:

• transcript of Examination for Discovery of Annette McKelvey, December 2, 2008
• transcript of cross-examination (entitled Examination for Discovery) of Debra Brosko, March 1, 2011.
• transcript of cross-examination (entitled Examination for Discovery) of Shannon Bodick, March 1, 2011
• transcript of cross-examination (entitled Examination for Discovery) of Annette McKelvey, March 17, 2011.

[12] The Reply Motion Record of the Defendants added the affidavit of Debra Brosko of February 11, 2011 with the following exhibits: Exhibit A – True copy of the Eligibility Review Report dated September 11, 2006 Exhibit B – True copy of field notes, dated November 29, 2010. It also included a transcript of the examination for discovery of Shannon Bodick dated December 2, 2008.

[13] FACTS

[14] The factual situation out of which this case arises is as follows, in outline. The Plaintiff, Shannon Bodick, began working as a personal support worker for an elderly woman, Marianne West, about 1994. The work began as part-time, but became a live-in situation in 2004. They lived in a house which had been purchased using funds from West, but which was registered in the name of Gary Watson, the Plaintiff’s father, who also lived there. At some time, the Plaintiff was also on ODSP.

[15] West had a daughter, Jane Cousens, and a financial advisor, Patrick O’Connor. O’Connor spoke to OPP Detective Constable Godin regarding some concerns about West’s finances. The Defendant was a detective constable and the Abuse Issues coordinator with the Kirkland Lake Detachment of the OPP. She was assigned to investigate, particularly regarding the Plaintiff’s financial dealings with West, and West’s capacity. The Defendant met with Patrick O’Connor on February 1, 2006, got some information from him, and arranged for him to give a statement at a later date. She obtained a statement from Jane Cousens, and provided information to and sought information advice from various sources, including superior officers, the Public Guardian and Trustee’s (PGT) Office, the Ministry of Community and Social Services which deals with the Ontario Disabilities Support Plan, and the Community Case Access Centre. By February 2, 2006, the Defendant had determined that it was a civil matter. No criminal charges were laid.

[16] Patrick O’Connor gave a statement to police on February 7, 2006. In it, he indicated that the Plaintiff, Shannon Bodick had said that she had been earning $3,000 per month ($36,000 per year) for caring for Marianne West, but did not want to provide receipts which would help with West’s outstanding income tax liability because “she didn’t want to … report anything because she didn’t want to pay taxes and because of disability income she used to get while she was caring for Mrs. West …”. The years in question were 2000 to 2004. When asked when the Plaintiff began getting a salary of $3,000 per month, O’Connor answered that nobody knows, but probably about 2001 at the latest. Later on, he was more definite that Shannon Bodick had said that she was taking $3,000 per month in income in 2001 and perhaps before.

[17] On February 9, 2006, Annette McKelvey advised Jane Cousens that the police would not be proceeding with charges. By that time, McKelvey’s involvement was largely to do with West’s care, safety and residence, about which concern had been expressed, and West’s decision-making capacity.

[18] A general occurrence report was authored by Annette McKelvey and is found at Exhibit A of her Affidavit of August 18, 2010 in the Motion Record. It is quite fulsome. It starts by noting that the investigation was due to a “possible fraudulent situation” in which Marianne West was “possibly being defrauded by …. Shannon Bodick”. In reviewing the situation revealed by the police investigation, it makes positive comments about the Plaintiff’s care for West. It notes that Jane Cousens was given Power of Attorney over West’s property and it is somewhat critical of Cousens’ handling of her consequent responsibilities. Explicitly stated was that the police were “not proceeding with criminal charges at this time as it was believed that the matter should be dealt with through civil proceedings”. Police could be involved to keep the peace at the Bodick/West residence in view of the animosity that had developed between Bodick and Cousens. The incident was to be cleared otherwise.

[19] A supplementary occurrence report indicated that the Plaintiff inquired of and was told by police on May 29, 2006 that the OPP had completed their investigation but forwarded information to other agencies. She was aware that ODSP and the Public Guardian and Trustee were involved.

[20] On February 2, 2006, the Defendant contacted the MCSS about the situation. On February 16, 2006, she forwarded to Debra Brosko, an eligibility review officer at the MCSS, at the latter’s request, information about the investigation. Brosko investigated whether the Plaintiff had collected ODSP benefits while earning money for caring for Mrs. West. That investigation continued to at least March 29, 2006, when the Plaintiff was interviewed. The resulting Eligibility Review Report is dated September 11, 2006.

[21] On March 1, 2006, McKelvey learned that the PGT was taking over responsibility for West’s property, and faxed the General Occurrence Report and supplement to the PGT. This was repeated on March 22, 2006.

[22] In March, 2006, Marianne West was moved by the PGT from the house that she had been living in with the Plaintiff and placed in institutional care. She has since passed away.

[23] On March 30, 2006, the Defendant spoke with Gary Watson about another matter. On that occasion, she also obtained some information from him about the financial arrangements to do with the house that he, the Plaintiff, and Marianne West had shared.

[24] APPLICABLE LAW

[25] There is no dispute about the applicable law on this motion. The defendants filed a Book of Authorities and Supplemental Book of Authorities, the latter containing only the case of Combined Air Mechanical Services v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431 (C.A.) which the Plaintiff’s counsel also filed a copy of. The latter explicitly stated that he had chosen not to file a Book of Authorities and that the authorities filed by defence counsel accurately stated the law. The cases referred to in this decision, then, are those filed by counsel.

[26] MOTIONS FOR SUMMARY JUDGMENT

[27] Motions for summary judgment are governed by Rule 20.

WHERE AVAILABLE

20.01

(3) To defendant – A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

DISPOSITION OF MOTION

20.04

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment

(2.1) Powers – in determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(2.2) Oral Evidence (Mini-Trial) – A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[28] Rule 20 was substantially amended effective January 1, 2010. The former test of “no genuine issue for trial” was replaced with “no genuine issue requiring a trial”. Judges hearing motions for summary judgment were given the power to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inferences from the evidence in determining whether there is a genuine issue requiring a trial.

[29] The case of Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764 is the leading case regarding the application of the amended Rule 20. The Ontario Court of Appeal heard five separate appeals from summary judgment rulings. In view of controversy and uncertainty arising from the amendments, the court took the opportunity to provide guidance in the use of Rule 20. Rather than commenting on the relative merits of the various approaches taken in the cases, the court explicitly stated that, “our decision marks a new departure and a fresh approach to the interpretation and application of the amended Rule 20”. (Paragraph 35). Therefore, previous cases must be used with caution.

[30] The court held that the Rule’s purpose was not to eliminate all trials, only unnecessary ones. These are ones in which a fair and just resolution can be achieved through the summary judgment process without the need for a full trial. (Paragraphs 36 through 39)

[31] The court identified three types of cases that are amenable to summary judgment:

1. where the parties agree that it is appropriate to determine an action by way of motion for summary judgment.

2. where the claims or defences are shown to be without merit. That is to say, when there is no chance of success.

3. where the amended test for summary judgment coupled with the enhanced powers of the court permit the motion judge to dispose of cases on the merits and the trial process is not required to serve the interests of justice. (Paragraphs 40 through 44)

[32] A “full appreciation test” is to be applied in deciding if the enhanced powers should be used to identify claims having no chance of success or to resolve all or part of any action. “The motion judge must ask the following question: can a full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can their full appreciation only be achieved by way of trial?” (Paragraph 50) This did not mean simply being familiar with the contents of the motion record, but fully appreciating the evidence and issues in a way that permits a fair and full adjudication of the dispute. (Paragraph 53)

[33] A summary judgment motion was said not to be “an adequate substitute for the trial process” in cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record. (Paragraph 51)

[34] The attributes of the trial process that might recommend it over a motion for summary judgment in a given case were discussed by the court in paragraphs 46 through 53 and summarized in paragraphs 54 and 55 as follows:

54: The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.

55: Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.

The court then went on to confirm the evidentiary obligations on the summary judgment motion. “Each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried”. (Paragraph 56) Furthermore, “a party who moves for summary judgment must be in a position to present a case capable of being decided on the paper record before the court”. Although the motion judge may order that oral evidence may be presented, that is for the purposes of exercising any of the enhanced powers, not for the parties to supplement the motion record. (Paragraphs 61 and 63)

[35] The requirement to put the best foot forward is not new. It has been held to mean that, if the mater went to trial, the parties would present no additional evidence. Rogers Cable T.V. Ltd. v. 373041 Ontario Ltd. 1994 CanLII 7367 (ON SC), 22 O.R. (3rd) 25.

[36] “A self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence.” (Guarantee Co. of North America v. Gordon Capital Corp. [1999] 3 S.C.R. 424, paragraph 31)

[37] BURDEN OF PROOF

[38] The moving party bears the legal burden of showing that there is no genuine issue requiring a trial. The responding party bears an evidentiary burden to respond with evidence setting out specific facts showing there is a genuine issue requiring a trial. (Combined Air Mechanical Services Inc. v. Flesch, paragraph 100)

[39] LAW RE: POLICE NEGLIGENCE

[40] The leading case on the tort of negligent investigation by police was said to be Hill v. Hamilton-Wentworth Regional Police Services Board 2007 SCC 41, [2007] S.C.J. No. 41, a decision of the Supreme Court of Canada. In it, the majority found that the tort of negligent investigation exists in Canada. Police owe suspects a duty of care. The standard of care is that of the reasonable officer in like circumstances. This was elaborated on as follows in paragraph 73:

I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made – circumstances that may include urgency and the deficiencies of information. The law of negligence does not require perfection of professionals, not does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care (Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351, Folland v. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688 (C.A.), Klar, at p. 359.)

Compensable damages are required in order to establish the cause of action. On this point, the court stated:

90 To establish a cause of action in negligence, the plaintiff must show that he or she suffered compensable damage. Not all damage will justify recovery in negligence. Recovery is generally available for damage to person and property. On the other hand, debates have arisen, for example, about when an action in negligence may be brought for purely economic loss and psychological harm. (See Klar, at pp. 201-4, and T. Weir, Tort Law (2002), at pp. 44-51.)

91 It is not disputed that imprisonment resulting from a wrongful conviction constitutes personal injury to the person imprisoned. Indeed, other forms of compensable damage without imprisonment may suffice; a claimant’s life could be ruined by an incompetent investigation that never results in imprisonment or an unreasonable investigation that does not lead to criminal proceedings. Wrongful deprivation of liberty has been recognized as actionable for centuries and is clearly one of the possible forms of compensable damage that may arise from a negligent investigation. There may be others.

92 On the other hand, lawful pains and penalties imposed on a guilty person do not constitute compensable loss. It is important as a matter of policy that recovery under the tort of negligent investigation should only be allowed for pains and penalties that are wrongfully imposed. The police must be allowed to investigate and apprehend suspects and should not be penalized for doing so under the tort of negligent investigation unless the treatment imposed on a suspect results from a negligent investigation and causes compensable damage that would not have occurred but for the police’s negligent conduct. The claimant bears the burden of proving that the consequences of the police conduct relied upon as damages are wrongful in this sense if they are to recover. Otherwise, punishment may be no more than a criminal’s just deserts – in a word, justice.

The requirement for a causal connection between a breach of the standard of care and the compensable damage suffered for there to be recovery for police negligence is met if that damage would not have occurred but for the negligence.

[41] In Benjamin v. Hamilton (City) Police Services Board [2010] O.J. No. 2629, a decision of Cavarzan J. of the Ontario Superior Court of Justice, the court, in finding that the tort of negligent investigation was not made out in the circumstances of that case, commented at paragraph 21 that, “it is bizarre to encounter a claim for damages for the tort of negligent investigation in a case where no charges were ever laid or even contemplated”.

[42] DEFENCE SUBMISSIONS

[43] The defence submissions, in summary, were that the Plaintiff’s Charter rights were not violated, nor was the investigation done negligently. The Defendant McKelvey was required to produce a General Occurrence Report outlining the investigation which cannot be expunged. Any prospective employer who the Plaintiff authorized to do a police check on her would only be told that she was investigated for fraud, but that no charges were laid. There is no evidence that the Plaintiff had been denied employment as a result of a police check. She is employed as a personal support worker. The Defendant McKelvey was required as part of her duties to report evidence of a possible fraud to the ODSP and was required in the circumstances to contact the PGT for advice, which she followed. It was further submitted that this case could be decided on the record, which satisfied the full appreciation test, that it fell into the second category of cases found in the Combined Air Mechanical to be conducive to summary judgment in that it was clearly without merit and that, even if there is a credibility issue in the case, it can be decided from the record. I agree with the defence submissions as they are more fully outlined both in its factum and orally and find that the defence has met the burden of showing that there is no genuine issue requiring trial.

[44] PLAINTIFF’S SUBMISSIONS

[45] Plaintiff’s counsel opposed the motion for summary judgment. He argued that there is a “fairly voluminous record” and the evidence in the transcripts of the examinations for discovery and of the cross-examinations done on the affidavits produced for this motion contain “glaring omissions, inconsistencies, and outright evasions” such that the court could not resolve the issues of credibility and the conflicting evidence on the motion for summary judgment. The full appreciation test could not be met, he said. Therefore, he submitted, there was a genuine issue requiring a trial which was whether or not the Defendant had carried out an investigation that a reasonable officer would do in similar circumstances.

[46] He alluded to the effect on the Plaintiff of being investigated for fraud in a small community such as the one that the Plaintiff lives in, saying that word of that had spread all over town. In addition, the Plaintiff’s employability in her field of personal care allegedly was affected by the requirement of prospective employers that she consent to a police records check. The resulting Police Records Search Certificate indicates, “Subject of Fraud Investigation; No Charges Laid; Kirkland Lake OPP; 07 Feb 2006”. Plaintiff’s counsel compared it unfavourably with the more fulsome Summary in the ODSP’s Eligibility Review Report.

[47] He submitted that the Defendant had done the investigation without obtaining bank records nor speaking with the Plaintiff, had prepared a general occurrence report containing allegations that the Plaintiff had received $3,000 per month in income from West while on ODSP and stating that a police investigation had confirmed that fact, had decided within days that no criminal charges could be laid, yet had continued for weeks thereafter to disseminate the allegation that the Plaintiff had committed fraud. Recipients of this allegation were said to be the ODSP, the PGT, and the Plaintiff’s father, Gary Watson. The Plaintiff contended that this was intended by the Defendant to cause the Plaintiff harm.

[48] In particular, Plaintiff’s counsel pointed to the records of Debra Brosko, an eligibility review officer with the ODSP which stated that a complaint had been received from the Defendant that a police investigation had revealed that the Plaintiff had been earning $3,000 per month as West’s caregiver since 2001, without qualifying it as to its source or that it was only an allegation. The Defendant has provided Brosko with information orally and by copy of the General Occurrence Report. Plaintiff’s counsel associated with this an entry in Ms. Brosko’s field notes in which she recorded “OPP recommending fraud - ODSP”. Also, Plaintiff’s counsel took exception to the fact that the Defendant, rather than performing a complete investigation, had referred the matter to Ms. Brosko who had done what Plaintiff’s counsel called a “proper investigation”, obtaining bank records, interviewing the Plaintiff and quickly determining that there had been no fraud.

[49] Plaintiff’s counsel went on to point out that the Defendant had forwarded to people in the PGT’s office the Occurrence Summary and the whole General Occurrence Report on March 1 and again on March 22, 2006. This was given as another example of the Plaintiff’s contention that the Defendant was continuing to disseminate allegations of fraud by her weeks after the determination that there would be no criminal charges.

[50] There were no submissions on the Plaintiff’s behalf indicating how the Plaintiff’s Charter rights had been breached as alleged in the Statement of Claim.

[51] DISCUSSION OF PLAINTIFF’S ARGUMENT

[52] I am not persuaded of Plaintiff counsel’s contention that there are “glaring omissions, inconsistencies, and outright evasions” in the evidence such that the court could not resolve the issues of credibility without a trial. In fact, I am not persuaded that there are issues of credibility.

[53] This case has been going on for seven years. Examinations for discovery of the Defendant took place in December, 2008. Cross-examinations of that Defendant and of Debra Brosko on their affidavits filed for this motion took place in March, 2011. The Plaintiff’s counsel spent a considerable amount of time in the motion reading in passages from these examinations in an attempt to demonstrate the omissions, inconsistencies, evasions and credibility issues that he alleged in support of the contention that the investigation had been performed negligently. After listening to it in court and reading the transcripts, I was not persuaded of the Plaintiff’s position. With respect, I did not find the questioning to be very elucidating. It amounted to a hectoring of the witnesses at times. Some questions were vague, leading to requests for and attempts at clarification. It was argumentative at times, including over semantics. All of this bred confusion and left the transcript with little utility. In the result, I prefer to refer back to the notes and documents done contemporaneously with the investigation.

[54] The Plaintiff alleges, among other things, in her Statement of Claim that she has suffered economic loss in that, as a result of the alleged negligent investigation, her reputation has been destroyed, she has become permanently unemployable and she is unable to work in her chosen field as a caregiver or health care aide. The evidence for the Plaintiff in this motion is found in the transcript of her Examination for Discovery dated December 2, 2008, her Affidavit of November 29, 2010 and in the transcript of her cross-examination on that Affidavit (labeled “Examination for Discovery”) of March 17, 2011.

[55] In the first-mentioned document, she says she was unemployed from when Marianne West was removed from the home in March, 2006 until she was hired by Timiskaming Home Support in July, 2008, after that employer had obtained a report from the police with her consent. In between, she had applied to several other places in the Kirkland Lake and Matheson areas and consented to a police records check. She had not heard back, nor, specifically, had she heard that she was not being hired because of this matter. There is no quantification of any loss. None of her evidence addresses damages at all. As there is no evidence of damages on the Motion for Summary Judgment, there is no genuine issue for trial on that. (Old Willoughby Realty Ltd. v. Mathews Southwest Developments Ltd. 2009 CanLII 55352 (ON SC), [2009] O. J. No. 4200 Ont. S.C.J. paragraph 49.

[56] I note that, while complaining about the effect of being investigated, the Plaintiff also complained that the Defendant police officer did not do a more thorough investigation into whether there had been fraud against the ODSP, including obtaining bank records. However, Jane Cousens, the daughter of Marianne West who had power of attorney for West, produced to the police West’s bank records which were forwarded to the ODSP. The ODSP obtained the Plaintiff’s bank records as part of its investigation. Surely, from the Plaintiff’s viewpoint, it would be less damaging to one’s reputation to have the records obtained as they were, as compared to their being obtained from the banks by the police. Be that as it may, it is obvious that any damage caused to the Plaintiff’s reputation in the process of obtaining bank records through the spreading of word of the investigation was not caused by the Defendant. She had no hand in it.

[57] Regarding the Plaintiff’s allegation that Debra Brosko’s ODSP Eligibility Review Report recorded that a police investigation had revealed that the Plaintiff had been receiving $3,000 per month as West’s caregiver since 2001, I note that the previous sentence in that report says that a complaint had been received from the Defendant advising that the Plaintiff “may” have received employment income that was not declared to ODSP. This is in the “Background” section of the report, and is summary in nature. Further detail about the source of this information is found in the same report under the heading “Investigation”. In my view, this fairly represents the information available to the police at the time and completely undercuts the Plaintiff’s argument.

[58] As for the entry in Debra Brosko’s field notes, “OPP recommending fraud – ODSP” that Plaintiff’s counsel found to be concerning, it is clearly a cryptic comment, the exact meaning of which is unclear. Taken at its worst, from the Plaintiff’s perspective, it would mean that the OPP were recommending that ODSP charge the Plaintiff for fraud against ODSP. This would not be unreasonable, given the allegations the OPP had received that the Plaintiff had admitted earning money while on ODSP between 2001 and 2004. However, given the context, referred to above, that the Defendant had indicated that the Plaintiff “may” have received income while on ODSP, I do not read it as saying more than the OPP were recommending that ODSP investigate the situation.

[59] Nor do I agree with Plaintiff counsel’s contention that, if the Defendant had performed a proper investigation, she would have taken further steps to determine whether there was evidence that the Plaintiff had defrauded ODSP, rather than refer it to ODSP where Ms. Brosko did the investigation. I find that it was reasonable for the Defendant to refer the matter to ODSP. Its staff, such as Ms. Brosko, would have specialized knowledge of the relevant laws, regulations, policies, directives and procedures of the ODSP, which might have changed over the intervening time, as well as records of the Plaintiff’s involvement with ODSP. By comparison, the Defendant had no particular training in welfare fraud. It would have made no sense to me for the Defendant to spend the time and effort to look into that as part of her investigation when the ODSP is, in my view, better placed and able to do it. Furthermore, in terms of the impact on the reputation of the person under investigation, one might assume ODSP’s investigation to be less damaging than one by the police. If the ODSP’s investigation had revealed an overpayment to the Plaintiff, it had options other than the laying of charges for recovering the money, which the police lacked, according to the Defendant’s notes of a conversation with Ms. Brosko.

[60] I also find it reasonable that the Defendant communicated the reports she had generated to the PGT’s office. Although the Plaintiff had reportedly been providing excellent care to West, I find that the Defendant had reason to be concerned for West’s continued well-being, consistent with the OPP’s policies, given the questions that had arisen around West’s capacity, her finances and her daughter Jane Cousens’ handling of them as Power of Attorney, and her continued care, given that there was conflict between the Plaintiff and Jane Cousens and that there were questions regarding the Plaintiff’s continued care for West.

[61] Plaintiff’s counsel spent a lot of time in his submissions dealing with the Defendant’s response to his questions in the examinations about this part of her investigation, calling into question her credibility. With respect, I think that this is irrelevant to the Plaintiff. Once there had been a determination, in early February, 2006, that there would be no criminal fraud charges against the Plaintiff, I find that the focus of the Defendant’s investigation shifted to protecting Marianne West’s interests, as a vulnerable, elderly person, more broadly. From that point, the Plaintiff was involved only peripherally, in her role as West’s caregiver, and no longer the focus of the investigation. Consequently, I do not see that the Plaintiff has any standing to question that part of the investigation, although there were no submissions on this point.

[62] The Plaintiff stated that the Defendant contacted Gary Watson and told him that the Plaintiff was being investigated for fraud. There is certainly no evidence from Gary Watson to this effect, or at all. The Defendant’s notes show that she was interviewing him on March 30, 2006, about another matter and took the opportunity to obtain some information from him about the financial arrangements regarding the house that he, the Plaintiff and Marianne West lived in. There is no explicit indication that he was told that the Plaintiff was being investigated for fraud. The notes refer to “West Fraud Investigation”, which appears to be a title for reference.

[63] The General Occurrence Report authored by the Defendant is, in my opinion, a fair record of the investigation.

[64] As for the Police Record Search Certificate, the concern is not that the information in it is wrong, but that it is cryptic, unlike the Summary in the ODSP Eligibility Review Report. I note that the Summary is not a complete vindication of the Plaintiff either. Although more fulsome, it is no declaration of the Plaintiff’s innocence. It indicates that, despite some evidence against the Plaintiff, the allegations have not been substantiated. Therefore, it was Ms. Brosko’s opinion that they were found to be unsupported and that no further action be taken at the time. In essence, the implication of this and of the Police Records Search Certificate are not really different as to the guilt or innocence of the person that is the subject of an allegation. Neither document is a clear exoneration. The Plaintiff has been able to find employment in her field despite that.

[65] It is clear in the Plaintiff’s materials and submissions that there is confusion between fraud against Marianne West and fraud against ODSP. This undermines the Plaintiff’s contention that the Defendant continued to allege fraud for weeks after determining that there was none. For example, Plaintiff’s counsel submitted that by February 7 or 8, 2006, the Defendant knew that the Plaintiff “had not committed any form of fraud”. That is simply not correct. Although it was determined within days that there would not be criminal charges laid against the Plaintiff of fraud against Marianne West, the allegations involving the ODSP remained outstanding. The ODSP’s investigation continued until at least March 29, 2006 according to the Eligibility Review Report, and that report was not signed until September 11, 2006. As an aside, that was hardly the quick investigation and determination by ODSP that the Plaintiff’s counsel described in alleging that the ODSP had done a proper investigation, as compared to the Defendant.

[66] There were other factual errors in the Plaintiff’s case. For example, Plaintiff’s counsel submitted that, when the accused sent the Occurrence Summary and General Occurrence Reports to the PGT on March 22, 2006 with the allegations against the Plaintiff still hanging, it was after the ODSP had decided that there was no fraud. As noted above, that was not so.

[67] Also, the Plaintiff alleged that the Defendant complained of fraud against ODSP while knowing that the Plaintiff had not received ODSP benefits since the fall of 2004. Plaintiff’s counsel described this as a “crucial point”. However, it ignores the fact that there were allegations that the Plaintiff had said she was earning money from Marianne West as early as 2001 in a period when she was receiving ODSP benefits. It is another example of the factual inaccuracies which, once clarified, go to show that the Plaintiff has no case.

[68] I find that the Plaintiff has not discharged its evidentiary burden of showing that there is a genuine issue requiring a trial.

[69] DECISION

[70] I am satisfied that this is a case that can be dealt with on a Motion for Summary Judgment. The information available in the documents available in the motion satisfies the full appreciation test.

[71] As previously noted, the parties are required on a motion for summary judgment “to put their best foot forward”, such that, if the case went to trial, there would be no additional evidence. In this case, the Plaintiff would have to prove against the Defendants on a balance of probabilities that the Defendant owed a duty of care (which is not contested), that there was a breach of that duty, and that, consequently, the Plaintiff suffered compensable damage. On the evidence presented, the Plaintiff would not be able to prove that there was a breach of the duty of care, nor any consequent damages. There is no genuine issue requiring a trial.

[72] Therefore, I allow the motion for Summary Judgment and dismiss the Plaintiff’s claim.

[73] Re: Costs

[74] The Defendants shall have twenty days to serve and file written costs submissions. The Plaintiff shall have ten days after service to serve and file a response.

Justice James A. S. Wilcox

Released: April 17, 2013