COURT FILE NO.: 1187/11
DATE: 20130422
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
N.R.B., a minor, by his Litigation Guardian, G.L.
Plaintiff
– and –
K.B.E., T.R.E., CHILDREN’S AID SOCIETY OF ALGOMA, SUZANNE THOMAS, SAULT STE. MARIE POLICE SERVICES BOARD, JOHN ZAMBUSI, DAVE WEST, THOMAS ARMSTRONG, ALEXANDER JABLANCZY, THE BOARD OF HEALTH FOR THE DISTRICT OF ALGOMA HEALTH UNIT o/a ALGOMA PUBLIC HEALTH, JANE DOE, THE INDIAN FRIENDSHIP CENTRE IN SAULT STE. MARIE and JUNE BYCE
Defendants
Richard R. F. Nolin, for the Plaintiff.
Kristen Dearlove, for the Defendant, Sault Ste. Marie Police Services Board.
Eric Wagner, for the non-party, Ministry of the Attorney General.
HEARD: April 15, 2013
gauthier, j.
The Motion:
[1] The Plaintiff’s Notice of Motion seeks the following relief:
(a) An Order pursuant to Rule 30.10 of the Rules of Civil Procedure compelling the Ministry of the Attorney General-Crown Law Office to produce a complete and, unedited copy, of the entire Crown Brief and Crown disclosure file including but not limited to all investigating officer’s handwritten notes, will say statements, witness statements, audio/video statements and disclosure, occurrence reports, incident reports, Crown Brief synopsis, police reports, reports of experts, scale diagrams, and photographs, in relation to the investigation, laying and prosecution of criminal charges brought against the Defendants, K.B.E. also known as K.B.E. (the “Defendant, K.B.E.”) and T.R.E. also known as T.R.E. (the “Defendant, T.R.E.”).
(b) An Order pursuant to Rule 30.10 of the Rules of Civil Procedure compelling the Sault Ste. Marie Police Service to produce a complete, unedited copy, of all documentation in its possession, including but not limited to any records, files, memoranda, photographs, occurrence reports, incident reports, officer’s notes, witness statements, audio/video statements and disclosure, will say statements, synopsis, reports of experts, scale diagrams, drawings, occurrence summary, general occurrence reports, supplementary reports, departmental tracking reports, and any and all other records and documents, including any and all records, medical records, hospital records and documents seized as a result of the execution of search warrants in connection with the investigation, laying and prosecution of criminal charges against the Defendant, K.B.E. and the Defendant, T.R.E..
[2] The Attorney General for Ontario (“the Crown”), opposes the motion on the following grounds:
(a) There is no basis for bringing a motion for the production of records from a non-party when a party to the action (in this case the Sault Ste. Marie Police Service) has those records already; and
(b) As the police themselves are Defendants in the action, they do not require the Crown’s consent to the production of the police’s own documents, and, the police have the opportunity to consider any public interest issues that may arise. There is no need to have the Attorney General conduct a Wagg screening of the material in question, particularly in view of the fact that the vast majority of the material has been prepared by the police.
[3] The Sault Ste. Marie Police Board and the police officer Defendants (“the police”) submit that the Plaintiff’s motion has been incorrectly brought against them under Rule 30.10, as they are parties to this action.
[4] The police further suggest that any material in connection with the “final” investigation, which resulted in criminal charges being brought against the Plaintiff’s biological parents, is not relevant to the action, and therefore are not producible.
[5] Finally, these Defendants refer to the high volume of the production sought and cite interference with the progress of the action and the expense of production as good reasons to deny the Plaintiff’s request.
Facts:
[6] The facts are largely not in dispute. I have relied heavily on the facts as set out in the facta filed on this motion, and have reproduced many portions of those facts verbatim.
[7] This action arises as a result of injuries sustained by the minor Plaintiff, N.R.B. (the Plaintiff “N.R.B.”) from the date of his birth on […], 2005 up to on or about October 26, 2005.
[8] The Statement of Claim was issued on March 15, 2011 and served on all Defendants, with the exception of the Defendant, Jane Doe. All Defendants have defended the action, with the exception of the Defendants and biological parents of the Plaintiff N.R.B., K.B.E. and T.R.E.
[9] From the date of the Plaintiff N.R.B. birth until he was re-admitted to the Sault Area Hospital on October 26, 2005 the Plaintiff N.R.B. “was repeatedly physically abused, battered, assaulted and traumatized by his biological parents, or one of them”, as a result of which the Plaintiff N.R.B. suffered grievous and life-altering injuries. The Police investigation which ensued led to criminal charges being laid against the Defendants K.B.E. and T.R.E.
[10] As a result of the injuries sustained by the minor Plaintiff N.R.B. the Defendant, K.B.E. was charged with aggravated assault, criminal negligence causing bodily harm and failure to provide the necessities of life contrary to sections 268, 221 and 215(1)(a)(ii) of the Criminal Code and was convicted of all three offences and sentenced on May 15, 2008.
[11] As a result of the injuries sustained by the minor Plaintiff N.R.B., the Defendant, T.R.E., was charged with aggravated assault, criminal negligence causing bodily harm and failure to provide the necessities of life, and breach of probation, contrary to sections 268, 221, 215(1)(a)(ii) and 733.1(1) of the Criminal Code and on June 29, 2010 was convicted of the lesser charge of assault contrary to section 266 of the Criminal Code, and of all three remaining offences.
[12] The Defendant Children’s Aid Society of Algoma (“CAS”) and the Defendant Suzanne Thomas have brought a cross-claim against the police, as have the Defendants Dr. A Jablanczy, the Algoma Health Unit, the Indian Friendship Centre in Sault Ste. Marie, and June Byce.
[13] The allegations against all Defendants of negligence, gross negligence and/or bad faith discharge of their professional and statutory duties are set out and particularized at paragraph 24 (D) and (E) of the Statement of Claim, insofar as the police Defendants.
D. AS AGAINST THE DEFENDANTS, ZAMBUSI, WEST AND ARMSTRONG, FOR WHOSE ACTIONS OR INACTIONS THE DEFENDANT, SAULT STE MARIE POLICE SERVICES BOARD, IN IN LAW RESPONSIBLE, IN THAT:
a) They knew or ought to have known that the Plaintiff was a child in need of protection but failed to provide that protection;
b) They failed to act in the best interest of the Plaintiff although it was their statutory, fiduciary and common law duty to do so;
c) They failed to take any or adequate steps to remove the plaintiff from the care of this biological parents when they knew, or ought to have known, that failure to do so would result in serious injuries to the Plaintiff and would put his life at risk;
d) They failed to acknowledge the clear signs of abuse and neglect evidenced by the condition of the Plaintiff or, in the alternative, they consciously disregarded the condition of the Plaintiff to his eventual detriment;
e) They failed to take any or adequate action to remove the Plaintiff from the custody of his biological parents when it was obvious that he was a child in need of protection;
f) They failed to properly investigate the matter with due care and attention;
g) They failed to investigate the allegations of abuse properly or at all, despite receiving repeated reports of suspected abuse being suffered by the Plaintiff;
h) They failed to report the matter in a timely fashion to the CAS;
i) They failed to report the matter to the family doctor or other health care workers;
j) They failed to properly monitor the Plaintiff or the biological parents when it would have been reasonable and prudent to do so;
k) They failed to properly monitor the biological father and/or the biological mother when they knew or ought to have known of the criminal history of one or both of them, the history of violence of one or both of them, the mental difficulties of one or both of them and the aggressive behaviour of one or both of them;
l) They failed to work cooperatively with the CAS, Dr. Jablanczy and other health care officials to ensure the safety and protection of the Plaintiff;
m) They failed to advise the CAS about the details of the suspected abuse and the background of the biological parents;
n) They failed to advise Dr. Jablanczy and other health care officials about the details of the suspected abuse and the background of the biological parents;
o) They failed to follow police protocol, policies and procedures in investigating this case;
p) They failed to criminally charge the biological parents in a timely manner;
q) They failed to see what was clearly there to be seen; and
r) They failed to discharge their statutory duties in accordance with the Child and Family Services Act.
E. AS AGAINST THE DEFENDANT, SAULT STE. MARIE POLICE SERVICES BOARD, IN THAT:
a) They knew or ought to have known that the Plaintiff was a child in need of protection but failed to provide that protection;
b) They failed to act in the best interest of the Plaintiff although it was their statutory, fiduciary and common law duty to do so;
c) They failed to take any or adequate steps to remove the plaintiff from the care of this biological parents when they knew, or ought to have known, that failure to do so would result in serious injuries to the Plaintiff and would put his life at risk;
d) They failed to acknowledge the clear signs of abuse and neglect evidenced by the condition of the Plaintiff or, in the alternative, they consciously disregarded the condition of the Plaintiff to his eventual detriment;
e) They failed to take any or adequate action to remove the Plaintiff from the custody of his biological parents when it was obvious that he was a child in need of protection;
f) They failed to properly investigate the matter with due care and attention;
g) They failed to investigate the allegations of abuse properly or at all, despite receiving repeated reports of suspected abuse being suffered by the Plaintiff;
h) They failed to report the matter in a timely fashion to the CAS;
i) They failed to report the matter to the family doctor or other health care workers;
j) They failed to properly monitor the Plaintiff or the biological parents when it would have been reasonable and prudent to do so;
k) They failed to properly monitor the biological father and/or the biological mother when they knew or ought to have known of the criminal history of one or both of them, the history of violence of one or both of them, the mental difficulties of one or both of them and the aggressive behaviour of one or both of them;
l) They failed to work cooperatively with the CAS, Dr. Jablanczy and other health care officials to ensure the safety and protection of the Plaintiff;
m) They failed to advise the CAS about the details of the suspected abuse and the background of the biological parents;
n) They failed to advise Dr. Jablanczy and other health care officials about the details of the suspected abuse and the background of the biological parents;
o) They failed to follow police protocol, policies and procedures in investigating this case;
p) They failed to criminally charge the biological parents in a timely manner;
q) They failed to see what was clearly there to be seen; and
r) They failed to discharge their statutory duties in accordance with the Child and Family Services Act.
s) They employed police officers who were ill-equipped to investigate child abuse and neglect;
t) They failed to instruct properly, or at all, their police offices in the proper methods and procedures to be employed in the investigation of suspected child abuse and neglect;
u) They failed to supervise properly, or at all, the police officers who were responsible for investigating child abuse and neglect;
v) They failed to take reasonable steps to protect the children in their geographical jurisdiction when they knew or ought to have known that they were placed in a high risk situation due to the incompetence of their police officers;
w) They knew or ought to have known that their police officers were failing to adhere to their policies, procedures and guidelines in the proper investigation and prosecution of child abuse and neglect cases; and
x) They knew or ought to have known that their police officers were failing to properly investigate and prosecute suspected child abuse and neglect cases.
[14] Examinations for Discovery are scheduled for August, 2013.
[15] By way of letter dated October 4, 2011, counsel for the police provided to the Plaintiff’s counsel a draft Affidavit of Documents. In addition, a CD copy of the Crown Brief for the prosecutions of K.B.E. and T.R.E. was provided. That Crown Brief was not referenced in the Affidavit of Documents, and, was described by counsel providing the material as being “not relevant to the issues in this action”. The CD was being provided, they said, “for the information of all counsel”.
[16] The police are the only Defendants opposing the Plaintiff’s motion. The Indian Friendship Centre in Sault Ste. Marie and June Byce are consenting to the motion. The other Defendants are taking no position.
The Crown Brief:
[17] The Crown Brief consists of 3496 pages. It contains the entire police file for all of its involvement in the investigation and ultimate laying of criminal charges in this matter. The police do not have in their possession any other material relating to this matter except what is set out in the Affidavits of Documents and the Crown Brief.
[18] The Crown Brief includes records from (i) the Algoma Treatment and Remand Centre for K.B.E. and T.R.E., (ii) the Children’s Aid Society, (iii) the Indian Friendship Centre, (iv) Dr. A. Jablanczy, and (v) the Sault Area Hospital.
[19] The Plaintiff concedes that production of those records is not an issue, given that they are in the possession of other parties to the action and will be produced through the documentary discovery process, save perhaps for the records from the Algoma Treatment and Remand Centre relating to the incarceration of K.B.E. and T.R.E. following their convictions.
Issues:
[20] (A) Is the motion against the police improperly brought, that is, pursuant to the wrong rule?
(B) Is the relief under Rule 30.10 available where one or more of the parties has the records in their possession?
(C) Are the contents of the Crown Brief, which relates to the investigation following the events of October 26, 2005, relevant to the action by the Plaintiff?
Motion against the police and pursuant to Rule 30.10
[21] Rule 30.10 is clearly available only with regard to a person who is not a party to the action. It is not available to the Plaintiff in his quest to obtain production of the Crown Brief.
[22] The Plaintiff’s motion should have been brought pursuant to Rule 30.06:
30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may:
(a) order cross-examination on the affidavit of documents;
(b) order service of a further and better affidavit of documents;
(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and
(d) Inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.
[23] Although the Plaintiff should have brought his motion pursuant to this rule, and not Rule 30.10, counsel agreed that the issue, as between the Plaintiff and the police, was whether or not the contents of the Crown Brief are relevant to the action.
[24] Relevance is the test under Rule 30.06.
[25] Both the Plaintiff and the Defendants on this motion addressed the issue of relevance. They did so in their materials on the motion, and in their submissions.
[26] The Rules of Civil Procedure are to be interpreted in a manner that best secures “the just, most expeditious and least expensive determination of every civil proceeding on its merits.” See Rule 1.04(1).
[27] I therefore have proceeded to the determination of the issue of relevance, despite the fact that the Plaintiff framed his motion incorrectly as against the police.
Availability of Rule 30.10 as against the Ministry of the Attorney General
[28] The Plaintiff should not have sought production from the Crown.
[29] The Crown did not and does not have the Crown Brief in its possession. The Police Services do. In order to comply with the Order sought, the Crown would have to obtain a copy of the Brief from the police.
[30] Save for the records I have referred to earlier in these reasons, and documents seized from the residence of K.B.E. and T.R.E., the Crown Brief consists entirely of material generated by the police, including will say Statements.
[31] The discovery regime provides for full discovery of, and production from, parties to the litigation. The regime also imposes disclosure obligations on parties to an action.
[32] An Order under Rule 30.10 should not be made as a matter of course and should only be made in exceptional circumstances: Morse Shoe (Canada) Ltd. v. Zellers Inc., 1997 CanLII 1573 (ON CA), [1997] O.J. No. 1524 (C.A.).
[33] In the circumstances of this case, Rule 30.10 is unavailable as against the Crown.
Relevance of the Crown Brief:
[34] The Plaintiff “suffered a series of inflicted traumatic events over the course of his 11 weeks of life….The evidence we have to date would indicate this infant has been battered on numerous occasions in the past.” These are some of the findings contained in the Consultation Report of Dr. Keith Sparrow, dated October 26, 2005.
[35] The police have characterized their involvement in this matter as being in three distinct and separate parts. The material on the motion refers to three “investigations” or “three separate occurrences”.
[36] The first relates to September 23, 2005, when the CAS contacted the police to request assistance in investigating a report of the Plaintiff having visible injuries.
[37] The second relates to October 13, 2005, when, once again, the CAS requested police assistance in investigating a report of the Plaintiff having two black eyes.
[38] Just 13 days later, on October 26, 2005, the Plaintiff was admitted to the Sault Area Hospital with severe injuries. The CAS notified the police and an investigation was conducted, resulting in the charges against K.B.E. and T.R.E.
[39] Although they were not part of the materials before me, I expect that the Informations charging K.B.E. and T.R.E. would include the time period from shortly after the Plaintiff’s birth up to and including October 26, 2005.
[40] The Statement of Claim pleads that the physical abuse and resulting injuries suffered by the Plaintiff were caused by the Defendants’ negligence, gross negligence and/or bad faith discharge of their professional and statutory duties.
[41] All Defendants, including the police, (save and except for K.B.E. and T.R.E. who have not defended this Action) have denied all allegations contained in the Statement of Claim.
[42] Much of the material contained in the Crown Brief arises from the police investigation into events occurring during the first two and a half months of the Plaintiff’s life, and the injuries sustained by the Plaintiff over that time period.
[43] Such material, i.e. civilian statements, police notes, and other material relating to witnesses who observed bruising on the Plaintiff on September 22, 2005 and on October 13, 2005, is relevant, notwithstanding that the material may have been compiled after October 26, 2005. Such material may relate to what the Defendants knew or ought to have known before October 26, 2005.
[44] The Crown Brief Index lists the contents of the brief. The brief includes a document entitled “Suspect Background K.B.E.”. That document suggests that K.B.E. was known to police, and may have been investigated in the past for incidents involving neglect or abuse of one or two other infants.
[45] The “Background of Accused, K.B.E.” is relevant in this action as it may relate to what information was known by or available to the police Defendants prior to October 26, 2005. To say that the document is not relevant as it was created after October 26, 2005, is logically untenable.
[46] Likewise, to say that the Crown Brief is not relevant because it relates to the investigation following the events of October 26, 2005, is not correct. The investigation relates to events leading up to and including October 26, 2005.
[47] The material in question relates directly to the circumstances surrounding the assaults committed on the child between September 22, 2005 and October 26, 2005, and the actions of persons involved with the child, including the Defendants. It may well contain information about K.B.E., or about T.R.E., or about the Plaintiff, which was available prior to October 26, 2005, and which may relate to issues in the action. As such, the material is relevant.
[48] Although the police maintain that the allegations of negligence against them relate only to the first and second investigations, and not to the third investigation, that is not determinative of the issue of the relevance of the materials about events which might impact directly or indirectly on what the Defendants knew or ought to have known before that date.
[49] Public interest dictates that all relevant evidence should be before the court. Although I was not provided with any of the material contained in the Crown Brief, save for the “Background of Accused, K.B.E.” referred to earlier, I am satisfied that there is a very good likelihood that the balance of the material is relevant to the issues in this action.
[50] The answer to (C) then is yes.
[51] The police raised the issue of cost, time, and volume as militating against an order for production. I do not believe these to be real considerations in the circumstances of this case, given that the information is already in the possession of the Plaintiff, by way of CD. That being the case, I will not make a formal order for production by the police.
[52] To be clear:
(a) There is no obligation on the police to produce the Records (Algoma Treatment and Remand Centre, CAS, Indian Friendship Centre, Dr. Jablanczy, and Sault Area Hospital);
(b) The Consent to provide biological samples is not relevant nor producible;
(c) The balance of the material in the Crown Brief is relevant and producible.
[53] Order to go:
The motion against the Crown is dismissed;
The motion against the police pursuant to Rule 30.10 is dismissed;
Save and except for the Consent to Provide Biological Samples, and the Records, the balance of the material contained in the Crown Brief (Exhibit C to the Affidavit of Jennifer Stirton, and attached at tab C of the Responding Motion Record of the Sault Ste. Marie Police Services Board, John Zambusi, Dave West, and Thomas Armstrong) is relevant and producible by the police.
If the parties are unable to agree on costs of this motion, they shall communicate with the Trial Co-Ordinator, within thirty (30) days of this Ruling, to set a date and time to argue the issue of costs, failing which there will be no costs awarded. The costs hearing, if any, can be done by teleconference call if the parties wish.
Madam Justice L. L. Gauthier
Released: April 22, 2013
COURT FILE NO.: 1187/11
DATE: 20130422
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
N.R.B., a minor, by his Litigation Guardian, G.L.
Plaintiff
– and –
K.B.E., T.R.E., CHILDREN’S AID SOCIETY OF ALGOMA, SUZANNE THOMAS, SAULT STE. MARIE POLICE SERVICES BOARD, JOHN ZAMBUSI, DAVE WEST, THOMAS ARMSTRONG, ALEXANDER JABLANCZY, THE BOARD OF HEALTH FOR THE DISTRICT OF ALGOMA HEALTH UNIT o/a ALGOMA PUBLIC HEALTH, JANE DOE, THE INDIAN FRIENDSHIP CENTRE IN SAULT STE. MARIE and JUNE BYCE
Defendants
Ruling on motion
GAUTHIER, J.
Released: April 22, 2013