SUPERIOR COURT OF JUSTICE - ONTARIO
MOTION HEARD: 20130527
RE: Robert Boucher, a party under a disability by his litigation guardian, Michael Pring and Michael Pring, personally, Moving Parties/Plaintiffs
AND:
Simbert Charles, City of Toronto, Siu Jiu Lin, Mei-Juan Mao carrying on business as The Chick-N-Burger Restaurant and the Toronto Police Services Board, Defendants
BEFORE: Master McAfee
COUNSEL: Kaitlyn MacDonell, articling student for the Moving Parties/Plaintiffs
Eric Wagner, counsel for the Responding Party/Non-Party, Special Investigations Unit
HEARD: May 27, 2013
REASONS FOR DECISION
The Motion
1This is a motion brought by the plaintiffs for an order pursuant to Rule 30.10 of the Rules of Civil Procedure requiring the non-party, the Special Investigations Unit (SIU) to produce certain documents from the SIU file.
2The SIU opposes the motion. The defendants, Simbert Charles, City of Toronto and the Toronto Police Services confirmed to the moving parties that they were taking no position on the motion and were not appearing on the motion.
3In advance of the return of the motion, the plaintiffs confirmed that based on the recent decision of the Court of Appeal for Ontario in Stein v. Windsor Police Services Board, 2013 ONCA 323, they are no longer seeking production of the SIU Director’s Report to the Attorney General. The documents at issue on the motion are listed as documents 6, 7, 8, 9, 10, 11, 18, 60, 61, 62, 63, 64, 82 and 83, exhibit “C” to the affidavit of Joseph Martino. The plaintiffs’ submissions focused on the witness statements given to the SIU by three civilian witnesses and four police officer witnesses. At the return of the motion, the plaintiffs confirmed that they now have obtained copies of witness statements given to the police from all of the civilian witnesses and the police officer notes from all of the police officer witnesses from the police file.
4At the return of the motion, the SIU confirmed that one of the civilian witnesses has consented to the release of his statement given to the SIU and that the documentation is being produced accordingly. The SIU also confirmed that the statement given to the SIU by the plaintiff, Robert Boucher has been produced. The SIU agrees to produce the investigator notes (documents 60 to 64) in a redacted form removing the information given by the witnesses.
5For the reasons that follow, the statement of W. Smith (as listed in document 82), the statement of the defendant, Simbert Charles (as listed in document 83), follow up report (document 9) and follow up report (document 18) shall be produced. Documents 60 to 64 shall be produced in a redacted form as agreed to by the SIU, however, the redaction shall be limited to removing information given by witnesses who have not consented to the release of their statement or whose statement is not being ordered produced or whose statement has not been otherwise produced. The motion with respect to the balance of the documents remaining at issue in the SIU file (documents 6, 7, 8, 10, 11, 82 other than the statement of W. Smith and the statement of the witness who has now consented to the release of his statement and 83 other than the statement of the defendant, Simbert Charles, herein “the balance of the documents remaining at issue”) is dismissed.
The Action
6This action arises as a result of a motor vehicle collision that occurred on September 14, 2009. The plaintiff, Robert Boucher was riding a power assisted e-bicycle when the e-bicycle and a police motor vehicle collided. The police motor vehicle was being operated by the defendant, Simbert Charles, a police officer, who was responding to an emergency call.
7W. Smith was a passenger on the e-bicycle at the time of the collision.
8The SIU conducted an investigation focusing on the conduct of the defendant, police officer Simbert Charles. In November 2009, the SIU Director concluded that there were no reasonable grounds to cause criminal charges to be laid against the police officer.
9On February 16, 2010, the within action was commenced by the plaintiff, Robert Boucher by his litigation guardian, Michael Pring and Michael Pring personally, against the police officer, Simbert Charles and the City of Toronto claiming damages in the amount of $10,000,000.
10On August 8, 2011, the statement of claim was amended adding the Toronto Police Services Board, Chick-N-Burger and the owners/operators of the Chick-N-Burger as defendants and adding allegations that the plaintiff, Robert Boucher became impaired while at the Chick-N- Burger.
The Test
11Production from a non-party is exceptional. As the Court of Appeal stated in Ontario (Attorney General) v. Stavro, 1995 3509 (ON CA), [1995] O.J. No. 3136 (C.A.) at para 12:
Save in the circumstances specifically addressed by the Rules, non-parties are immune from the potentially intrusive, costly and time-consuming process of discovery and production.
12Rule 30.10 of the Rules of Civil Procedure is the Rule that specifically addresses production of documents from a non-party. Rule 30.10 provides as follows:
The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,
(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.
13Rule 30.10 is intended to control and limit the circumstances under which a non-party is subject to production. The test sets a very high bar. As the Court of Appeal stated in Ontario (Attorney General) v. Stavro at para 12:
By its terms, Rule 30.10 assumes that requiring a party to go to trial without the forced production of relevant documents in the hands of non-parties is not per se unfair.
14The plaintiffs must satisfy both branches of the test as established by Rule 30.10. The first part of the test is relevance to a material issue in the action. The assessment of the second part of the test is only made after the documents are found to be relevant to a material issue (see Ontario (Attorney General) v. Stavro at para 6).
15The test is permissive, not mandatory. Should the test be met, the court may order production from a non-party.
16The Ontario Court of Appeal in Ontario (Attorney General) v. Stavro at para 15, stated that the following factors, among others, are to be considered in the exercise of the court’s discretion under Rule 30.10:
(a) the importance of the documents in the litigation;
(b) whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the appellant;
(c) whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendants;
(d) the position of the non-parties with respect to production;
(e) the availability of the documents or their informational equivalent from some other source which is accessible to the moving parties;
(f) the relationship of the non-parties from whom production is sought, to the litigation and the parties to the litigation. Non-parties who have an interest in the subject-matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.
17The list of factors to be considered is not exhaustive. In N.G. v. Upper Canada College, [2004] O.J. No. 1011 (Div.Ct.), Justice Lang stated at para 14 that “the public interest … is an important question to consider in the context of the Rule 30.10 “fairness” criterion.”
Analysis
18The SIU concedes relevance with respect to all documents at issue save for the statements of two civilian witnesses because they did not witness the actual impact. In my view, the statements of these two civilian witnesses are also relevant. While they may not have witnessed the collision, their information with respect to other circumstances at the time of the accident is relevant. The plaintiffs have satisfied the first branch of the test.
19In my view, the plaintiffs have not satisfied the second branch of the test with respect to the balance of the documents remaining at issue. In weighing all of the relevant factors, in the circumstances of this particular case, I am not satisfied that it would be unfair for the plaintiffs to proceed to trial without having discovery of the balance of the documents remaining at issue.
20The balance of the documents remaining at issue are follow up reports containing summaries of statements of witnesses who have not consented to the release of their statement or whose statement is not being ordered produced or whose statement has not otherwise been produced (documents 6, 7, 8, 10, 11), redaction to investigators notes to remove information given by witnesses who have not consented to the release of their statement or whose statement is not being ordered produced or whose statement has not otherwise been produced (documents 60 to 64) and witness statements of witnesses who have not consented to the release of their statement or whose statement is not being ordered produced or whose statement has not otherwise been produced (document 82, other than statement of W. Smith and the witness who has now consented to the release of his statement and document 83, other than statement of the defendant, Simbert Charles).
21The plaintiffs argue that the documents are important and vital to the litigation. The plaintiffs argue that the plaintiff, Robert Boucher sustained a severe traumatic brain injury and has no recollection of the events that took place on September 14, 2009 and that the passenger, W. Smith is deceased. The plaintiffs argue that the SIU is not adverse in interest and that the SIU’s investigation is presumed to be unbiased. The plaintiffs argue that the best evidence to establish the events that led to the collision would be contained in the SIU file.
22I am not satisfied that the documents are important to the litigation. Statements from the witnesses given to the police and police officer notes of all police officer witnesses have been provided from the police file. I am not satisfied that these witness statements and police officer notes are biased in any way as a result of an action commenced many months after the accident. If I am wrong and the documents are important to the litigation, I remain of the view that weighing all relevant factors, the plaintiffs have not satisfied the second branch of the test with respect to the balance of the documents remaining at issue.
23The earlier full discovery is obtained the better the chances are that all parties will be able to assess their respective positions so that prospects of early settlement may be improved (see Stafford v. Adams, [2009] O.J. No. 3263 (S.C.J.) at para 11). In the case before me witness information has been provided from other sources. The plaintiffs already have the statements from all of the civilian witnesses given to the police and police officer notes from all non-civilian witnesses obtained from the police file.
24The plaintiffs will have an opportunity to discover the defendants with respect to the issue of liability. I am not satisfied that discovery would be inadequate on the basis of the material before me and in the circumstances of this case. I was not referred to evidence that the civilian and non-civilian witnesses at issue would not be able to testify at trial.
25The non-party opposes the production and the witnesses at issue have not provided their consent to the release of the statements.
26The SIU have no interest in the subject matter of the litigation.
27As stated in N.G v. Upper Canada College, the public interest is also a relevant factor to consider. I am not satisfied that the public interest weighs in favour of production of the balance of the remaining documents at issue.
28The SIU was created in 1990 pursuant to section 113 of the Police Services Act (Ontario) (the PSA). Section 113 of the PSA is the single statutory provision governing the composition and jurisdiction of the SIU. It establishes the SIU as an arm’s length agency of the Ministry of the Attorney General led by a director and composed of civilian investigators.
29Subsection 113(5) of the PSA sets out the jurisdiction of the SIU in the following terms:
The director may, on his or her own initiative, and shall, at the request of the Solicitor General or Attorney General, cause investigations to be conducted into the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers.
30The efficacy of the SIU’s investigative process and its ability to effectively discharge its statutory mandate depends on maintaining the confidence of its witnesses, both police officers and non-police officers and the willingness of witnesses to come forward and cooperate with the SIU in its investigations.
31The SIU’s “witness confidentiality assurances” policy in place at the time of the investigation in question was intended to overcome the reluctance of some witnesses to fully cooperate with the SIU in the conduct of its investigations. Police and civilian witnesses were assured at the start of their interviews with the SIU that the SIU operated independently of the police and that information they provided to the SIU, save in certain circumstances, would be held in confidence and not disseminated to third parties without their consent or a court order. Accordingly, any assurance of confidentiality is not absolute. As of September 2011, the SIU amended its policy of “witness confidentiality assurances” to limit the assurance to civilian witnesses only.
32In Chiarella v. Simon, [2007] O.J. No. 401 (S.C.J.), on a motion pursuant to Rule 30.10, the court declined to order production of a witness statement where no consent had been obtained, referring both to the promises of confidentiality given to the witnesses and the ability of the plaintiffs to make their case without the information. Justice Matheson stated at para 14, “the SIU’s function is to make inquiry as to whether there was any impropriety on behalf of the police. It is not an information collection agency for individuals in civil actions.”
33In the circumstances of this particular case, there is a prevailing public interest in non-disclosure of the balance of the documents remaining at issue that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information (see D.P. v. Wagg, 2004 39048 (ON CA), [2004] O.J. No. 2053 (C.A.) at para 17 ).
34Weighing all of the relevant factors, I am not satisfied that it would be unfair for the plaintiffs to proceed to trial without having discovery of the balance of the documents remaining at issue.
35With respect to the statement of W. Smith that I am ordering to be produced, I am satisfied that it would be unfair for the plaintiffs to proceed to trial without having discovery of the statement of W. Smith. Mr. Smith is deceased from causes unrelated to the accident. He will not be able to provide evidence at trial or provide his consent to the release of his statement.
36With respect to the statement of the defendant, Simbert Charles that I am ordering to be produced, the defendant, Simbert Charles confirmed through his counsel that he was taking no position on the motion. Accordingly, as he takes no position on the motion, I am also ordering production of the statement of the defendant, Simbert Charles.
37With respect to the follow up report summarizing the statement of W. Smith (document 9) and the follow up report summarizing the statement of the defendant, Simbert Charles (document 18), the SIU’s objection to the production of the follow up reports is that the consent of the witnesses referred to therein had not been provided. As I have ordered production of the underlying statements of W. Smith and the defendant, Simbert Charles, document 9 and document 18 shall also be produced.
38The SIU agreed to produce the investigator notes (documents 60 to 64) with witness information redacted. The SIU’s objection with respect to the redacted information is based on the lack of consent of the witnesses to the release of their statements. As certain witnesses have now consented to the release of their statement or their statement is being ordered produced or has otherwise been produced, I am also ordering that documents 60 to 64 shall be produced in a redacted form. The redactions shall be limited to removing the witness information of witnesses who have not provided their consent to the release of their statement or whose statement is not being ordered produced or whose statement has not otherwise been produced.
Costs
39There was divided success on the motion. There shall be no costs of the motion.
Summary of Order
40Order to go as follows:
The statement of W. Smith (as listed in document 82), the statement of the defendant, Simbert Charles (as listed in document 83), follow up reports (documents 9 and 18) and investigator notes redacted to remove witness information of witnesses who have not consented to the release of their statement or whose statement has not been ordered produced or whose statement has not otherwise been produced (documents 60 to 64) shall be produced.
The motion with respect to the balance of the documents remaining at issue is dismissed.
There shall be no costs of the motion.
Master McAfee
Date: August 8, 2013