COURT FILE NO.: 93/2002
DATE: 2013-06-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ARTHUR RAMEY
Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT
OF THE PROVINCE OF ONTARIO and
HAMILTON POLICE SERVICES BOARD
Defendants
Paul Osier, for the Plaintiff
Arthur Ramey
Paul Ryan, for the Defendant
Hamilton Police Services Board
HEARD: June 11 & 12, 2013
THE HONOURABLE MR. JUSTICE ROBERT J. NIGHTINGALE
[1] The Plaintiff brings this action against the Defendant Hamilton Police Services Board (“HPS”) for damages including economic losses he alleges he sustained when his cars and car parts were seized on July 19, 2000 by the Ontario Provincial Police at Cayuga ( “OPP”) pursuant to a search warrant and never returned to him.
[2] This action initially also included a claim by the Plaintiff against the Province of Ontario because of the actions of the OPP regarding that seizure and conversion of the Plaintiff’s property allegedly owned by him. That claim was settled in January 2013 resulting in the dismissal of this action against that Defendant.
[3] The Defendant HPS denies any liability for the Plaintiff’s alleged damages essentially stating that it had no involvement in dealing with the seizure, custody, security or eventual disposition of the property as that was always under the control and direction of the investigating OPP. It also disputes that the Plaintiff has suffered any damages because of any alleged breach of any duty of care on its part and that the damages if any of the Plaintiff are excessive.
[4] For the reasons noted below, I find that the Plaintiff’s action against the HPS should be dismissed.
Evidence of Arthur Ramey
[5] Mr. Ramey in 2000 was 51 years old and was a contractor bricklayer. As a hobby, he stated he repaired vehicles in his garage for his own business and personal use and also for friends and relatives. He was not a mechanic by trade but could do some mechanic work having others do the detailed electrical, motor and painting work. He would buy vehicles and used parts from others in the area including flea markets and swap meets. He was clear in cross-examination that this was not a business, that he had no business license although he stated that it was ”debatable” whether it was a source of income for him.
[6] His evidence was that he went to a Hamilton mall on July 19, 2000 driving his 1997 van that he had recently fixed up. When he came out, the vehicle was missing and he went to the Hamilton Police station on Upper Wellington and declared it was stolen. When he was there, he made a telephone call to his wife who told him that the OPP were there at their residence and that they had a search warrant for his place and a warrant for his arrest.
[7] He then called a lawyer for legal advice and as a result, he went to the Hamilton Police station on Barton Street that afternoon. He there asked if they had an arrest warrant for him and was told that they didn’t. For some reason, however, they arrested him and put him in a cell holding him in custody when he was subsequently interviewed by two OPP officers and Det. Kavanagh of the HPS. He said he was released and charged with public mischief because of a telephone report received by the HPS supposedly from the OPP that the vehicle he had reported being stolen was not.
[8] This particular vehicle was subsequently found in December 2000 or January 2001, with significant damage, and the public mischief charge was then withdrawn in February 2001.
[9] The Plaintiff was not present during the execution of the search warrant but his wife was at home. Although the Plaintiff says she said she was told she was not allowed out of the house during the search and that the police never gave her a list of what they took, the Plaintiff’s wife did not give evidence at the trial and no explanation was provided as to why she didn’t. Her evidence would have been most relevant to the Plaintiff’s case regarding what she observed had been taken from the premises as a result of the search and which police force was there executing the search.
[10] I conclude that by her not testifying at trial, without any explanation, her evidence would not likely have been supportive of the Plaintiff’s position as to what items were actually seized that day by the OPP from the Plaintiff’s premises.
[11] The Plaintiff in examination in chief gave no evidence as to why or how the Defendant HPS would be liable for his damages. When cross-examined, he made a bald statement that the OPP and Hamilton Police force were ”partners in crime” but then admitted that he believed it was the OPP which executed the search warrant and did not return his property to him at the successful conclusion of his criminal charges in February 2004. He did not believe the Defendant HPS even attended for the search. He also then agreed that his property had in fact been removed by the OPP or under their direction or supervision and not the HPS. He admitted that his green pickup truck was taken to a private compound in Caledonia that was within the jurisdiction of the OPP and not part of the City of Hamilton. His only evidence regarding the actual involvement of the HPS was that he believed Det. Kavanagh of that service went to this private compound to inspect that vehicle.
[12] Regarding another of his vehicles that was seized from the premises of his friend Mike Liscombe, he also had no evidence that the Defendant HPS was responsible for the seizure or control of that vehicle. He simply alleged that the HPS and OPP were acting together but led no evidence to confirm that.
[13] He agreed in cross-examination that he was now making serious allegations of negligence against Det. Kavanagh in the examination of the Plaintiff’s vehicles but didn’t make them in an amended Statement of Claim until March 2013 shortly before this trial and shortly after he had settled his claim against the Defendant OPP. He stated that in his opinion it was immaterial whether it was Det. Kavanagh or another police officer who was at the Cayuga OPP station when he went there asking for the return of his property. His evidence was that when he asked for his property back at that detachment, the person taking his list tossed it in a drawer or in the garbage but he didn’t know if it was Kavanagh or others suggesting that that was immaterial in his opinion. It makes no sense at all that Det. Kavanagh would have been there at the Cayuga OPP station which should have been readily conceded but was not.
[14] Moreover, he was examined for discovery approximately one month before the trial on May 2, 2013 regarding these specific amendments of allegations he was now making against Det. Kavanagh. When asked the question “do you recall when it was that you went to see Matt Kavanagh?”, his clear answer was that he went and asked for his trucks back approximately 3 months after they took them probably in October 2000 obviously implying he was referring to Det. Kavanagh . I heard no evidence of an attempt made by the Plaintiff to correct this evidence prior to the trial.
[15] The Plaintiff states that he did a check of his property a couple of days after the seizure and said that some items were gone when he went out to see what the police had taken. He provided a typed list, Exhibit 4, of the items he said were allegedly taken by the police which was more extensive than the list of items shown by the police to have been seized and removed from the premises noted on the Search Warrant Report to Justice form in Exhibit 3. He called no evidence from the OPP to explain why this alleged discrepancy could occur, if it did.
[16] More will be said about the contents of the list in these reasons but essentially the Plaintiff’s evidence was he did not get any of those items back after the criminal charges of possessing stolen goods against him were stayed in February 2004. He stated that no one told him that his seized items would be destroyed or returned to the original registered owners and no one advised him of the hearing process under the Criminal Code to deal with those seized items.
[17] What is also significant evidence is his statement that he went to the OPP office, not the HPS, in Cayuga to ask for his property back and asked his lawyer to send a letter to them asking for it back.
[18] However, his evidence was that during his initial interrogation on July 19, 2000 he said he believed he asked Det. Kavanagh for his property back which he said was the only time he talked to him about that. He never asked for the return of his property from Det. Kavanagh or the HPS in writing for the return of his property unlike the OPP but said that Kavanagh told him during the interrogation of July 19, 2000 that he would check into it. I find that he was clearly mistaken on that evidence and I accept the evidence of Det. Kavanagh for the reasons described below on that issue. Again, he provided no evidence that suggested the HPS had any knowledge of anything to do with the seizure, detention, custody or disposition of his alleged property initially seized by the OPP.
Evidence of Det. Matthew Kavangh:
[19] Matthew Kavanagh has been a police officer with the HPS for over 30 years. From 1999 at 2003, he was a detective in the auto recovery branch of the HPS. He had taken a number of courses for his training and was a member of the Provincial Auto Theft Team (“PATT”).
[20] He explained in detail the basis of his expertise acquired over the years in both his own investigations with the HPS and also providing his expertise through PATT to other police services throughout the Province of Ontario which would need his expertise because of their not having the resources or their own available experts to do so. The OPP was a member of PATT.
[21] Det. Kavanagh outlined the clear differences in his roles over the years conducting examinations as compared to being a police investigator regarding stolen motor vehicles.
[22] The role of the examiner when he was called in included determining whether the vehicle’s V.I.N. numbers were tampered with or obliterated, doing an inspection of the vehicle to locate the manufacturer’s secondary numbers, taking a “lift” of those numbers and then providing all of that information to the investigating officer for further follow-up investigation by that officer. When the information was so provided, Det. Kavanagh’s role as an examiner ended. Essentially, in my view, he would be the equivalent of an expert witness obtained by the investigating police force.
[23] He then explained that an investigator officer’s role was much more complicated and involved than that of an examiner. That role would include the same initial review of the V.I.N. numbers and potential obliteration of those numbers as his examiner’s role. However, once that information including CPIC and MTO records were obtained, the investigating officer would then be required to locate the owners of the vehicles who alleged their vehicles were stolen, obtain information from them including the insurance companies who may have acquired title to them and any other information with respect to the particulars of the vehicles. After gathering of all of this other information, it was investigating officer’s job to consider if there were reasonable and probable grounds to lay criminal charges involving possession of the stolen vehicle and if so, proceed with them to conclusion.
[24] In this case, Det. Kavanagh’s evidence was clear, uncontradicted and unequivocal and not shaken in cross- examination that his role involving the Plaintiff was as an examiner only of the vehicles at the request of the OPP at Cayuga and nothing more.
[25] He explained that on July 19, 2000, he was conducting his own investigation in the basement of the central police station of the HPS of 55 stolen vehicles when he received a call from Det. McMeekin of the Cayuga OPP who was upstairs at the police station asking Kavanagh to assist him.
[26] When he met Det. McMeekin and Det. Boyd, also an OPP member of PATT, he was advised that the OPP had arrested a party but he was not given many details regarding stolen vehicles other than a brief overview. He was simply told that these officers thought it would be good intelligence gathering for him to sit in on the interview because of there being potential information of stolen vehicles in Hamilton which was his area.
[27] He sat in on the interview of the Plaintiff but asked no questions whatsoever and simply made notes to help him with any investigation of stolen vehicles in the Hamilton area. Detectives McMeekin and Boyd ran the interview of the Plaintiff in his presence for approximately 40 minutes until 11:20 PM at which point he went back downstairs to finish off his own investigations.
[28] His evidence, which I accept in its entirety, is clear that he was not involved at all in the release of the Plaintiff from custody resulting from his initial arrest by the OPP and that he had no further involvement with the Plaintiff after that evening. He did not know the details and was not advised of the case of the OPP against the Plaintiff and his own personal notes of that interview were brief. He had no involvement with the initial seizure of the Plaintiff’s car parts property.
[29] Det. Kavanagh confirmed that the Plaintiff did not ask him for the return of his property in that interview which evidence I also accept. The Plaintiff was obviously mistaken in his recollection of that relying in part of what he thought was an entry in Det. Kavanagh’s notes which seemed to suggest that such a conversation had taken place whereas in fact the notes actually referred to a previous incident on an unrelated matter with someone else who Det. Kavanagh was investigating before this incident and not the Plaintiff. Moreover, during that first interview the Plaintiff would not have known what, if any, vehicle items had been seized from his house by the OPP. Accordingly, it would make no sense that Det. Kavanagh would have any information on that or that he would he be asked by the Plaintiff regarding the return of those items.
[30] On August 29, 2000, Det. McMeekin called him and asked for his assistance to examine a vehicle that had been seized as an OPP auto theft examiner was not available for that purpose. Det. Kavanagh attended at the Brantford OPP station to examine the vehicle which he believed was a 1989 Chevrolet pickup truck. He noted that the federal identification number had been removed as well as another identification label. Based on his examination and a CPIC check, he determined that the owner was a third party who had reported his vehicle stolen to the Toronto Police service. He provided this information to Det. McMeekin for further follow-up investigation by him. Det. Kavanagh had no involvement in that investigation as it was an OPP matter. He simply removed the public V.I.N. plate as it belonged to another vehicle. The obliterated V.I.N. number was very significant for him because of the presumption under the Criminal Code establishing the accused’s possession of a stolen vehicle due to that evidence.
[31] On September 5, 2000, Det. McMeekin of the OPP asked him to examine two vehicles at a private towing compound in Caledonia which was outside of the service area of the HPS.
[32] On his examination of the first vehicle and his review of a CPIC check provided to him by Detective McMeekin, his conclusion was that this vehicle had been stolen and reported to the Haldimand-Norfolk OPP by its owner. Again, he simply provided his examiner’s worksheet to Det. McMeekin for further follow-up investigation by that OPP officer. Det. Cavanaugh had no contact with the Plaintiff as it was an OPP investigation.
[33] He then examined a second Chevrolet pickup truck there and found that because all of the secondary V.I.N. numbers had been obliterated, he couldn’t determine the identity of that vehicle. Again, he did not speak to or have any involvement with the Plaintiff but simply passed on the information to Det. McMeekin so that he could continue with this investigation. That concluded his involvement in the investigation of all three vehicles except as his being a witness in the subsequent criminal proceedings against the Plaintiff.
Det. Kavanagh made it clear that he had nothing to do with the seizure or custody of any of the Plaintiff’s seized vehicles and parts or the disposition of them and that he never saw them again after the last September 5, 2000 examination date. He had nothing to do with any transfer of the vehicles to any insurance companies or the owners described in the secondary V.I.N.s. He had no responsibility for the detention of the seized vehicles or cataloguing the items seized and had no input nor was he asked for any with respect to the custody or disposition of those vehicles by the OPP. He was never contacted by any of the owners, including insurance companies, of the vehicles he inspected and was never kept up to date or involved in the OPP investigation of the Plaintiff regarding the stolen vehicles. His salary was paid at all times by his only employer, the HPS, and he was based there. He was never jointly employed by the OPP or under their control, discipline or supervision when he was providing his examiner’s role assistance to them which I find to be the logical reasonable inference based on all of this evidence.
[34] He concedes that he may have seen the initial OPP search warrant but not the grounds or information or the return report of the search warrant. He understood throughout that Det. McMeekin was the driving force of the OPP investigation but that his own role was simply being asked to examine the three vehicles that he did. In particular, he simply reported what he had seen of the vehicles to Det. McMeekin. When it was suggested by Plaintiff’s counsel that he was acting as an investigator by taking the two public V.I.N. plates off the vehicles, he disagreed with that saying it was not his job to deal with the return of the vehicles to their rightful owners. He had nothing to do with the control of those vehicles or the disposition of them as that was the OPP’s investigator’s job. The OPP did not seek Det. Kavanagh’s point of view or comments on the disposition of the vehicles nor did he have anything to offer them by way of advice.
[35] I accept Det. Kavanagh’s evidence in its entirety on all of these matters as it made total sense logically, he gave his evidence in a fair and frank manner, his testimony was not shaken at all on his cross-examination on that evidence and there was no evidence whatsoever to the contrary provided by the Plaintiff.
[36] He confirmed that he thought it was the role of the investigating police to arrange for the eventual return of the stolen items to their rightful owners but that would be subject to the protocol and procedures under section 490 of the Criminal Code requiring a Judge’s Order after a hearing on notice to the affected parties to do so. That apparently may not have happened in this case and the evidence is that after the criminal charges were stayed against the Plaintiff in February 2004, the Plaintiff did not receive what he alleges was his property back from the OPP nor did a hearing take place under the Criminal Code to determine who the owners were of it. Again, however, Det. Kavanagh and the HPS had nothing to do with that.
Analysis
[37] During submissions, Plaintiff’s counsel in his usual candour to the Court, admitted that there was no evidence of negligence on the part of Det. Kavanagh regarding his examination of the seized vehicles for which the Defendant HPS could be held responsible towards the Plaintiff. His submissions however were that the HPS was nevertheless still liable essentially as a “partner” of the OPP during its investigation because of the PATT program and hence as a “partner”, was liable for any of the wrongdoing of the OPP in not eventually returning the Plaintiff’s property to him.
[38] That claim had not been specifically pled by the Plaintiff in its Amended Statement of Claim. Plaintiff’s counsel requested an amendment to the Statement of Claim to allow that “partnership” pleading at the conclusion of the case during submissions. On the consent of the Defendant HPS, I allowed that amendment.
[39] Essentially, the Plaintiff’s position was that the HPS, by allowing its Det. Kavanagh to assist in the OPP investigation, was accordingly liable as a partner for any actions of the OPP causing the Plaintiff’s damages.
[40] The Plaintiff’s submission that Det. Kavanagh was an investigative partner with the former Defendant OPP and that, accordingly, the Defendant HPS is liable for any malfeasance or wrongdoing on the part of the OPP is, in my view, simply not established by the evidence before me or on the applicable law.
[41] Although the Plaintiff may have thought there was more involvement with the HPS and was obviously still agitated at them (suggesting at one point in his evidence that the HPS wanted a “bribe” by asking for $300 for the return of his fingerprints), he led no evidence to confirm that Det. Kavanagh did anything other than simply examine the three vehicles to determine if they were stolen because of the obliterated V.I.N. numbers at the request of the Cayuga OPP detachment. In fact, Det. Kavanagh and the HPS had no involvement whatsoever with respect to the initial search warrant seizure of the Plaintiff’s vehicles and car parts, detention and security of those items pending trial and the disposition of those items before or after the trial to anyone including potentially the Plaintiff. That was all within the exclusive jurisdiction and control of Det. McMeekin and the Cayuga OPP in which the Defendant HPS had no input or control.
[42] There was really no evidence provided to me of the circumstances of or reasons why the Plaintiff did not receive the seized items back from the detention by the Cayuga OPP before or after his February 2004 trial. In particular, the evidence of Mr. Liscomb is that he was told by the OPP that he must retain the one truck he had in his compound but he gave no evidence to suggest that it was the OPP that either subsequently removed that truck or arranged for someone to take it from his compound.
[43] Lastly, there were no documents, written agreements or other evidence provided at trial to suggest or imply that the relationship between the HPS and Cayuga OPP was some form of partnership regarding the use of Det. Kavanagh’s assistance in this case. Rather, all of the evidence at trial suggested the PATT arrangements simply allowed for the sharing of stolen auto recovery police experts to assist other police forces in their investigations and nothing more. There is no evidence before me that suggests that this relationship was intended to be or in fact resulted in some kind of partnership between the two police forces with the consequent liability as partners for the other’s fault. Common sense dictates that the Cayuga OPP would not expect Det. Kavanagh to have any involvement whatsoever in the seizure, detention or disposition by the Cayuga OPP of the property seized by them in their cases other than to simply examine stolen vehicles if so requested and nothing more. That, in my view, is the logical conclusion based on all the evidence in this case.
[44] It is noteworthy that the Plaintiff in January 2013, achieved a settlement of his claims against the Provincial Government Defendant because of the actions of the OPP in not returning the seized property to him after the conclusion of his trial in February 2004. That claim was settled for the sum of $80,000 but it also included a totally unrelated claim for an alleged assault that took place in March 2001 when he was arrested by the Cayuga OPP.
[45] The Plaintiff may very well have felt he suffered damages because of the OPP when he did not receive his items at the conclusion of the trial but it is unfortunate that he believed that there was some fault or responsibility by the HPS as well when there was no evidence to suggest that in this case. As indicated above, there is no evidence of negligent police investigation by Det. Kavanagh and even if there was, the Plaintiff has not provided any evidence that he has suffered compensable damage and a causal connection to a breach of any standard of care allegedly owed to him by the Defendant HPS or Det. Kavanagh. Hill v. Hamilton-Wentworth Regional Police Services Board 2007 SCC 41, [2007] S.C.J. No. 41.
[46] Although the Supreme Court of Canada in Blackwater v. Flint 2005 SCC 58 held that joint vicarious liability is acceptable where there is a partnership, unlike that case, Detective Kavanagh was not the servant of the OPP but rather was only employed by the HPS.
[47] In addition, there was no evidence before me and certainly no evidence on a balance of probabilities that there was ever any kind of partnership relationship entered into between the OPP and the Defendant HPS regarding the OPP’s use of Det. Kavanagh’s examiner’s services. The evidence is also clear, especially given the absence of the terms of any agreement, written or otherwise, between the OPP and the HPS, that Det. Kavanagh’s examiner’s role involvement had absolutely nothing to do with the OPP investigation regarding the Plaintiff other than to examine the Plaintiff’s three vehicles. Det. Kavangh and hence the HPS did not know of or have any involvement or control in the OPP’s initial investigation, obtaining and carrying out the search warrant, arresting the Plaintiff, releasing him from custody, proceeding with the criminal charges and removing, transporting, securing and detaining the seized goods pending trial or any decisions with respect to the release of those goods before or after the criminal trial involving the Plaintiff.
[48] The evidence leads to the logical conclusion that at all times the OPP and the HPS were acting totally independent of each other with respect to their responsibilities. There is nothing that the HPS or Det. Kavanagh could or should have contemplated to prevent any subsequent loss of the property seized by the OPP during its search warrant of the Plaintiff’s premises; it was the OPP’s investigation on its own and hence its responsibility, pure and simple, without any ability or contemplation that the HPS would have some input or control.
[49] Accordingly, this is not the kind of case where vicarious liability based on an alleged partnership or any other kind of relationship with the OPP should be imposed on the Defendant HPS. B. (K.L.) v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403.
[50] Accordingly the Plaintiff’s action is dismissed.
Damages
[51] Notwithstanding the dismissal of the Plaintiff’s action, I will review the Plaintiff’s claim for his damages.
[52] Exhibit 3 includes the Report to a Justice of all of the property seized by the OPP on July 19, 2000 from the Plaintiff’s residence other than another truck that was delivered to the compound of Mr. Liscomb. Based on the submissions of Plaintiff’s counsel and the evidence of Mr. Liscomb, there is no evidence to confirm that the OPP would have been responsible for that truck eventually leaving the compound and not returning it to the Plaintiff. The Plaintiff accordingly is not advancing a claim for the value of that truck.
[53] The Plaintiff provided a list as Exhibit 4 of all of the items which allegedly were not returned to him which included a valuable Camaro hatchback, a welder , drill press and three front clips of vehicles. He valued the hatchback at $2500, the welder at $1000, the drill press at $1000 and the three front clips at $4500 each.
[54] The Plaintiff provided as evidence OPP photographs taken on the day of the seizure of July 19, 2000 confirming that the hatchback, welder and drill press were on-site but no photographs in respect to the three front clips were provided.
[55] The Plaintiff unfortunately provided no photographs taken after the seizure or other evidence from a third-party including members of his own family who resided at the premises to confirm that any of these items were allegedly then found to be missing and not accounted for in the return Report to the Justice. No evidence was called regarding whether the Plaintiff promptly made any complaint to the OPP after he discovered these items had also been taken and not included in the Report and if so, what the response from them was. In particular Det. Boyd, who completed the report, was not called as a witness to confirm whether any other items could have been or were in fact removed but were not included in the Report.
[56] Accordingly, I am not prepared to find that the Plaintiff has established on a balance of probabilities that these additional items not found in the Report to Justice were in fact removed by the OPP on July 19, 2000.
[57] With respect to the other items, the Plaintiff alleged that a 1984 green Chev truck not returned to him by the OPP was purchased from a Valerie Harris and was valued at $20,000 because of extensive repairs over a period of months he did to it before it was seized. However, in cross examination, he conceded that he only paid $600 for it when he bought it as a vehicle that was not even driveable. He did not provide any appraisals or expert opinions with respect to that vehicle’s value at the time of the seizure except to say that he “would have asked $20,000 for it”.
[58] In my view, what the Plaintiff would have asked for a vehicle does not establish its value on a balance of probabilities. However, a fair and reasonable amount given the limited evidence before me of $15,000, for that vehicle would not be unreasonable.
[59] The Plaintiff states that a GMC transmission that was seized was not an ordinary transmission having a value of $750. Again, without further expert appraisal evidence, a fair assessment of that would be $500.
[60] He also claimed for the value of a steering column that he said he could buy at a wrecker for $300 but without further expert or other evidence, I assess that amount at $200.
[61] The same applies with respect to a radio for which he said he paid $100 for used. However there is no evidence as to when he did or the present value of it and accordingly I allow $70 for that.
[62] He claimed a value of the GM rear hatch at $150 which he says was consistent with what he would pay at a wrecker. For the same reasons, I allow $100 for that.
[63] Similarly, the claim for $200 for a second transmission is allowed at $125, the front fender and two doors claimed at $500 is allowed at $300, the truck cap valued at $2000 is allowed at $1300, and the numeric stamps valued at $100 is allowed at $70.
[64] He also claimed a value of $23,000 for a white 1988 or 1993 GMC pickup truck which he said was his own work truck that he “fancied up” after doing extensive repair work it. He gave no evidence as to what he actually paid for the truck initially, the actual cost of the parts or amount of his labour work during the repairs. He simply said that he would have expected to receive that amount if he sold it. Exhibit 9 is a series of photographs of that vehicle apparently seized by the police on July 19, 2000. On reviewing those photographs, the limited evidence I received and the lack of any expert evidence on its value, I am not prepared to allow anything more than $15,000 for the actual value of that vehicle at the time of the loss.
[65] Accordingly, the total value the Plaintiff’s damages, assuming all the property belonged to him and not to third parties and was not returned to him because of the fault of the OPP is $32,665.
Income Loss
[66] The Plaintiff states that because his work truck was seized and not returned to him and because his insurance coverage for his business was cancelled by Economical Insurance on January 16, 2001, he was not able to return to work in the Hamilton area as a brick layer and lost significant income in the years 2000 to 2003 totalling approximately $118,449 gross income.
[67] The Plaintiff asked the court to calculate his business income loss for three years based on the average of his gross income in the four years prior to 2000 of approximately $48,650 less his actual income during the years 2000 to 2002 of $9173. This would result in an average annual shortfall of $39,483 for three years for a total gross income claim of $118,449.
[68] The evidence of the Plaintiff provided at trial to support that allegation was minimal at best and I am not prepared to allow any claim for any alleged loss of income for the following reasons:
[69] Firstly, the only documentary evidence that was provided was a one page statement of business activities from each of his tax returns for the years 1996 to 2002 confirming gross sales income figures as follows:
1996- $87,692
1997- $20,953
1998 -$26,579
1999 -$59,384
2000- $12,207
2001 -$14,612
2002 -$700
2003- $2387
[70] The Plaintiff was self-employed but he did not allow in his income loss claim for the expenses that were incurred to earn that gross income for each of those years which are properly deductible and which reduced his gross income to $53,081 in 1996, $12,163 in 1997, $17,278 in 1998, $31,190 in 1999, $9572 in 2000, $7033 in 2001, a $3340 loss in 2002 and a similar $1819 loss in 2003.
[71] Moreover there was no evidence before me that the Plaintiff earned all of his 2000 income before July 19, 2000 and did not earn anything in 2000 subsequent to that.
[72] In addition, his 2001 statement of business activities confirms that he was actually working and had gross business sales of $14,613 and actually incurred $1300 of motor vehicle expenses in order to do so during that time. He made similar claims for motor vehicle expenses in 2000. How could he then claim in this action that he didn’t have a motor vehicle which caused a financial loss?
[73] Accordingly, given this evidence and the Plaintiff’s own evidence that he regularly purchased used vehicles and repaired them extensively anyway in his garage, I cannot accept his evidence that the lack of a motor vehicle resulted in an income loss to him because of the seizure of his vehicles by the OPP.
[74] Furthermore, the Plaintiff presented no evidence and called no evidence from any third parties to confirm what actual business or customers he likely would have had from 2000 or 2003 but lost because of this incident, leaving the court with essentially nothing more than speculation as to what that income loss would have been, if any, in those years.
[75] In addition, he states that he couldn’t work because his business insurer Economical cancelled his policies on January 16, 2001. He filed a letter, Exhibit 12, from Economical Insurance saying that the reason the policy was cancelled was due to a material change in risk.
[76] The Plaintiff’s evidence was that because that business policy was cancelled, he could not get his license to operate in the City of Hamilton without insurance coverage which invalidated his license. He said he didn’t try to obtain another policy saying there was no point because of the affect of having one insurance company cancel him.
[77] The Plaintiff in my view has not established on a balance of probabilities that the cancellation of his business insurance was the cause of his alleged financial losses. For example, he led no evidence that Economical cancelled the policies because of this particular incident, the seizure of his car parts or his criminal charges arising from them which found its way into the local newspaper. The only evidence was that they cancelled it because of a material change in risk but the Plaintiff admitted that the insurer gave no reason for the cancellation except for the material change in risk and he knew of no reason. Accordingly, there is no evidence that the cancellation had anything to do with the OPP’s seizure of the Plaintiff’s vehicles and his arrest.
[78] Lastly, his financial statements suggest that his gross income as of October 1999 of $59,384 dropped drastically to October 2000 of $12,207. That obviously had nothing to do with the cancellation of his business liability insurance which didn’t take place until January 16, 2001 and hence suggests the two facts were not related.
[79] Accordingly, I am not prepared to allow any damages against the Defendant HPS for the Plaintiff’s alleged income loss because of the seizure of his property by the OPP as the Plaintiff has not met the onus of proof required of him in this action.
Punitive Damages
[80] Plaintiff’s Counsel suggested that the OPP’s actions of disposing of the Plaintiff’s property potentially even before his criminal trial without notice to him warrants a claim for punitive damages in the amount of $10,000 to $15,000.
[81] In my view, there is no evidence firstly that the HPS did anything wrong in this case and , secondly, that they are bound by any alleged wrongdoing of the OPP. The point is that there was really no evidence led at trial that the OPP either was guilty of such outrageous and intentional conduct in allowing the disposition of the seized item that should result in a finding of punitive damages. The Plaintiff is not entitled to any claim for punitive damages.
Settlement Damages Paid By The OPP
[82] Plaintiff’s counsel fairly conceded in his submissions which was accepted by the Defendant HPS’s Counsel that the appropriate amount that could be allocated from the settlement funds of $80,000 received by the Plaintiff from the OPP in January 2013 and credited towards the Plaintiff’s property damages in this claim was $40,000-$50,000. This would be after an appropriate deduction of the Plaintiff’s claim for his 2001 assault damages, interest and costs paid on the settlement and other incidentals. This amount would then be credited against the damages claimed from the Defendant HPS. I find that the appropriate credit is the sum of $45,000.
[83] Accordingly, after giving credit for this amount against the property damages allowed of $32,665 against the Defendant HPS, the total net damages would be nil even taking into account prejudgment interest on these damages at the rate allowed under the Courts of Justice Act of 2.8% per year since the March 1, 2004 commencement date being shortly after the date the criminal proceedings against the Plaintiff were stayed.
Conclusion
[84] The Plaintiff’s action is accordingly dismissed. Unless there are relevant offers to settle, the Defendant would normally be entitled to its costs of this action on a partial indemnity basis. If the parties cannot agree on those costs, the Defendant HPS can make written submissions with respect to those costs restricted to three pages in length along with their bill of costs within 15 days from the date of this judgment with the Plaintiff to have seven days thereafter to respond.
The Honourable Mr. Justice R. J. Nightingale
Released: June 21, 2013
COURT FILE NO.: 93/2002
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Arthur Ramey
Vs
Her Majesty the Queen in Right of Ontario and Hamilton Police Services Board
REASONS FOR JUDGMENT
The Honourable Mr. Justice R. J. Nightingale
Released: June 21, 2013