SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-445186
MOTION HEARD: MAY 27, 2013
RE: Silvano Lochner v. Toronto Police Services Board, Detective Alex Will (Badge No. 362), and Chief of Police William Blair
BEFORE: MASTER R.A. MUIR
COUNSEL: Robert L. Love for the defendants
Silvano Lochner in person
REASONS FOR DECISION
[1] This is a motion brought by the defendants for an order striking out certain paragraphs of the statement of claim. The motion is brought pursuant to Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The defendants argue that the impugned paragraphs do not comply with the rules of pleading as set out in Rule 25.06(1) and are otherwise scandalous, frivolous or vexatious and an abuse of the process of this court. In particular, the defendants seek to strike various references to the public complaints process under the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”) as found in paragraphs 17 and 19 to 23 of the statement of claim.
[2] The plaintiff opposes the relief sought by the defendants.
BACKGROUND
[3] The plaintiff seeks damages from the defendants for intentional interference with economic relations, inducing breach of contract and misfeasance in public office. The plaintiff also seeks exemplary and punitive damages along with damages for breach of his rights under the Canadian Charter of Rights and Freedoms. The total of the damages sought by the plaintiff is $3,000,000.00.
[4] The plaintiff was formerly employed by the Municipal Property Assessment Corporation (“MPAC”). The plaintiff alleges that as a result of certain investigations carried out by the defendant Detective Alex Will (“Will”) he was terminated from his employment with MPAC on March 4, 2008.
[5] On May 9, 2008, the plaintiff initiated a complaint against Will pursuant to the PSA. In his complaint, the plaintiff alleged that Will had violated the plaintiff’s confidentiality rights by disclosing his criminal record to MPAC.
[6] The plaintiff’s complaint was apparently investigated as required by the provisions of the PSA. A Report of Investigation appears to have been issued on October 6, 2008 (the “Report”). The plaintiff’s complaint was found to be unsubstantiated. A copy of the Report was provided to the plaintiff on or about October 27, 2008, as required by section 66(2) of the PSA. The plaintiff concedes that many of the facts in the impugned paragraphs of his statement of claim come from the Report.[^1]
ANALYSIS
[7] Rule 25.11 provides as follows:
The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
[8] Rule 25.06(1) provides that every pleading shall contain a concise statement of the material facts upon which a party intends to rely in support of its claim or defence.
[9] The paragraphs of the statement of claim the defendants seek to strike out read as follows:
On May 9, 2008 the plaintiff filed a complaint with the Toronto Police Service pursuant to section 56 of the Act [the PSA]. The plaintiff alleged that Detective Will had breached the plaintiff’s confidentiality right by disclosing his criminal record to representatives of MPAC. He sought an investigation into the conduct of the defendant Will because he could not understand how this criminal record was lawfully disclosed.
The purpose of the complaint filed by the plaintiff was to determine if the defendants had complied with section 41 of the Act [the PSA]. To this day, the plaintiff has never received an answer to this question despite a positive obligation on the part of the defendants to provide that information to him.
The investigation of the plaintiff’s complaint was conducted by Detective Tillsley who issued his Report of Investigation on October 6, 2008. Detective Tillsley concluded that the defendant Will did not commit any misconduct. As part of his investigation, Detective Tillsley interviewed the defendant Will.
In the statement provided by the defendant Will to Detective Tillsley, he advised that his investigation into the conduct of the complainant ended on November 7, 2007.
Additionally, in the statement provided by the defendant Will, he advised that “[a]t no time did I intentionally provide the complainant’s employer (M.P.A.C.) with his personal information (criminal record) that resulted in the termination of his employment.”
The plaintiff complained to the Information and Privacy Commissioner (IPC) and alleged the defendant Will had disclosed his criminal record to MPAC. The IPC conducted an investigation and provided a written report to the plaintiff on October 9, 2009. In that report, the IPC reveals, contrary to the information initially provided by the Board in their response to the complaint filed by the plaintiff pursuant to section 56 of the Act, that they interviewed the defendant Will. The defendant Will now admitted that he did divulge certain information to MPAC but would not say what information had been disclosed. The disclosure was made at a time and place that was not disclosed to the plaintiff and to alert “MPAC of potential harm to the public”. At no time have any of the defendants advised what potential harm to the public was of concern to them.
[10] The defendants seek an order striking out all of paragraphs 17 and 19-22, along with the portions of paragraph 23 set out in bold, above.
[11] The defendants’ primary position is that the impugned portions of the statement of claim should be struck out as they include information that is protected by a privilege created by the PSA that makes them inadmissible in any civil proceeding. In addition, the defendants take the position that the impugned portions of the statement of claim are irrelevant and should be struck out on that basis as well.
[12] The plaintiff argues that the defendants have waived any privilege that they may have enjoyed under the PSA as a result of a copy of the Report being provided to the plaintiff, as required by section 66(2) of the PSA.
[13] The relevant provisions of the PSA provide as follows:
Non-compellability
83 . . . (7) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties under this Part, except at a hearing held under this Part.
Inadmissibility of documents
(8) No document prepared as the result of a complaint made under this Part is admissible in a civil proceeding, except at a hearing held under this Part.
Inadmissibility of statements
(9) No statement made during an attempt at informal resolution of a complaint under this Part is admissible in a civil proceeding, including a proceeding under subsection 66 (10), 69 (12), 76 (12) or 77 (9), or a hearing under this Part, except with the consent of the person who made the statement.
Confidentiality
- Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,
(a) as may be required in connection with the administration of this Act and the regulations;
(b) to his or her counsel;
(c) as may be required for law enforcement purposes; or
(d) with the consent of the person, if any, to whom the information relates.
[14] These provisions of the PSA have recently been the subject of comment by the Divisional Court in Andrushko v. Ontario, 2011 ONSC 1107 (Div. Ct.). The Divisional Court concluded that the privilege and confidentiality provisions in sections 83 and 95 of the PSA apply to both information and documents. Any such information and documents are inadmissible in a subsequent civil proceeding and any facts based on inadmissible evidence should not be pleaded. See Andrushko at paragraphs 17-19, 24 and 29.
[15] However, as the Divisional Court noted at paragraph 24 of Andrushko, certain exceptions may apply to the statutory privilege, as set out in section 95 of the PSA. One of those exceptions is when disclosure is required by law or in connection with the administration of the PSA or any regulations under the PSA. See PSA, sub-sections 95(a) and (c). In my view, the disclosure of the Report to the plaintiff falls squarely within these exceptions. When a complaint is found to be unsubstantiated, section 66(2) of the PSA requires the chief of police to provide a copy of the report to the complainant, the subject police officer and to the Independent Police Review Director. In my view, this is obviously an action required by law and in connection with the administration of the PSA. It is exactly the kind of disclosure contemplated by the exceptions set out in section 95 of the PSA. To conclude that such disclosure, or any other disclosure contemplated by the section, amounts to a waiver of the statutory privilege established by the PSA would render the privilege meaningless. Such an interpretation is simply not consistent with the plain language of the PSA or with the underlying policy objectives as set out in the motion judge’s decision in Andrushko:
The policy rationale for statutory confidentiality such as the above provisions embody is to encourage the reporting of complaints of professional misconduct against members of a profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings fearing that a document prepared for the proceedings could be used in a later civil action.[^2]
[16] The plaintiff relies heavily on the decision of Master MacLeod in Hume v. Ghadban, 2011 ONSC 6396. In my view, this decision does not assist the plaintiff. Hume turned on the fact that the officer in question chose to place his disciplinary history before the court. Master MacLeod found that such an action amounted to a waiver of the privilege and was deemed to be the necessary consent under section 95(d) of the PSA. The defendants have not taken any such actions in this case. In fact, the defendants have yet to plead to the statement of claim pending the outcome of this motion.
[17] I have therefore concluded that the references in the plaintiff’s statement of claim to the information and documents prepared and obtained as a result of the public complaints process under the PSA are privileged and inadmissible in this proceeding and should be struck out.
[18] However, in my view, not all of the impugned paragraphs fall within that description. I see no basis for striking out the plaintiff’s allegations that a complaint was made and why it was made as contained in paragraphs 17 and 19 of the statement of claim, as set out above. In my view, the language of sections 83 and 95 of the PSA make it clear that the privilege only attaches to documents, statements and information created or obtained during the complaints process and not to the fact that a complaint was made or why it was made. I also accept the plaintiff’s argument that such allegations may have some relevance to the general history behind the plaintiff’s claim and to the plaintiff’s claims in connection with misfeasance in public office and punitive damages. Motions to strike should be granted only in the clearest of cases. A party deserves a full opportunity to plead his or her case. See Sheppard International Trading v. Baghai, 2008 7745 (ON SC) at paragraphs 11-13. I have therefore concluded that the allegations in paragraphs 17 and 19 do not offend the rules of pleading and they should not be struck out on the basis of privilege or relevance.
COSTS
[19] Each side has enjoyed a measure of success on this motion. In my view, it is therefore fair and reasonable that there be no order for costs.
ORDER
[20] I therefore order as follows:
(a) paragraphs 20, 21 and 22 of the statement of claim are hereby struck out, without leave to amend;
(b) the phrase “contrary to the information initially provided by the Board in their response to the complaint filed by the plaintiff pursuant to section 56 of the Act” beginning in the fourth line of paragraph 23 of the statement of claim and the word “now” in the sixth line of paragraph 23 of the statement of claim are hereby struck out, without leave to amend;
(c) the balance of the relief sought on this motion is dismissed; and,
(d) there shall be no order with respect to the costs of this motion.
Master R.A. Muir
DATE: June 25, 2013
[^1]: See paragraph 16 of the plaintiff’s factum.
[^2]: 2009 55282 (ON SC) at paragraph 6.