COURT FILE AND PARTIES

COURT FILE NO.: CV-12-35407

DATE: 2013-09-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sinong Ben, Plaintiff

AND:

Christopher Gates, Hamilton Police Services Board,

Chinda Kim and Em Kim, Defendants

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: L. Code, Counsel for the moving parties, Chinda Kim and Em Kim

P. Ryan, Counsel for the responding parties, Christopher Gates,

and Hamilton Police Services Board

HEARD: September 12, 2013

ENDORSEMENT

[1] In their motion, the defendants, Chinda Kim and Em Kim, seek an order requiring Sergeant Glenn Jarvie from the Hamilton Police Services to re-attend upon his cross-examination so as to answer questions refused by him on his prior cross-examination conducted on February 21, 2013.

[2] This motion arises within a prior and outstanding motion by the same moving parties for an order directing the defendant, Christopher Gates, to provide a further and better affidavit of documents and other relief.

[3] In response to the original motion, an affidavit was served from Sergeant Jarvie. Cross-examination on this affidavit took place on February 21, 2013. On the direction of counsel, Mr. Ryan, Sergeant Jarvie refused to answer certain questions.

Factual Background

[4] A motor vehicle collision occurred on January 17, 2008 at the intersection of Barton Street East and Wellington Street North, in the City of Hamilton.

[5] One vehicle was operated by the defendant, Chinda Kim. The other vehicle was operated by the defendant, Christopher Gates, a police officer employed by the Hamilton Police Services Board.

[6] The plaintiff, Sinong Ben, has sued all defendants seeking damages for injuries resulting from the collision.

[7] The motor vehicle accident was investigated by other police officers from Hamilton Police Services.

[8] The intersection where the collision occurred is controlled by traffic lights. Both drivers claimed to be entering the intersection on a green light.

[9] Two independent witnesses to the collision are said to have been interviewed by police officers.

[10] The standard police accident report regarding this collision contains no reference as to which vehicle was believed to have entered the intersection on a red light nor does it indicate if any charges were laid against either driver.

Special Procedures For Collisions Involving Police Vehicles

[11] The Hamilton Police Services have in place a “Policy and Procedure” directive regarding “Damage to and/or Collisions Involving Police Vehicles”. A copy of this undated document was disclosed to counsel and presented at the hearing of this motion.

[12] As I understand the submissions of counsel, a front line investigating police officer may not charge another officer with either a Highway Traffic Act or Criminal Code charge as a result of the collision. Rather, an internal investigation is required, conducted by senior police officers. The Policy and Procedure directive indicates certain duties in this regard involving the Divisional Staff Sergeant and the Inspector of the Support Services Division.

[13] Following this collision, seven reports or statements were generated. The authors of these documents are police officers, persons involved in the collision and the independent witnesses. Copies of these documents have been disclosed to counsel in this lawsuit.

[14] Two further reports were prepared by the senior officers. They have not been disclosed and, in essence, are the subject matter of this motion.

[15] Detective Sergeant Glenn Jarvie is employed by the Hamilton Police Services Board. At the time of the collision, he was the Divisional Traffic Staff Sergeant. As such, he was required to review the reports previously mentioned. Part of his function was to make an assessment regarding fault for the collision and make recommendations regarding Highway Traffic Act charges, if considered appropriate.

[16] The ultimate determination as to whether a police officer is to be charged with a Highway Traffic Act offence, or not, is made by the Inspector of the Support Services Division. In this matter, Inspector De Mascio conducted the ultimate review and made the final decision.

[17] Officer Gates was not charged with a Highway Traffic Act offence.

[18] It is to be noted, the Policy and Procedure directive refers to the duties of the senior police officers as being a review of existing documents, not an independent investigation.

[19] The reports of the then Staff Sergeant and Inspector are said to be recorded on a “Tracking Form” for departmental motor vehicle collision reports.

[20] Without disclosure, the contents of the reports, including recommendations or decision, of the senior officers is unknown, subject to the following evidence.

Insurance Company Investigation

[21] Enea Cavalluzzo is a claims representative with State Farm Mutual Automobile Insurance Company, insurers of the Kim vehicle. She provided an affidavit on the original motion, sworn December 21, 2012.

[22] Ms. Cavalluzzo made inquiry with a number of individuals in her investigation. At para. 8 of her affidavit, she says:

On April 1, 2008 I spoke with Sergeant Jarvie in which discussion he confirmed to me that he had concluded his investigation of the accident and had submitted his recommendation to the Crown’s Office which recommendation was that Officer Gates should be held liable for the collision and would be requesting that he be charged with “red light failed to stop” contrary to Section 144(18) of the Highway Traffic Act.

[23] On his cross-examination, Detective Sergeant was asked about this conversation with Ms. Cavalluzzo. He acknowledged the event occurring but had no recollection of what was said. In result, he could not dispute Ms. Cavalluzzo’s evidence. The officer, in re-examination stated it was not his practice to advise third party individuals as to what his recommendation was or with officer liability and charges.

Refusals

[24] On his cross-examination, Detective Sergeant Jarvie refused to answer questions regarding his recommendation or the decision of Inspector De Mascio or to produce a copy of the tracking report. At the time, the basis for the refusal was that such questions were not relevant.

Pleadings

[25] As previously mentioned, liability for the collision, in part, involves a determination as to which vehicle entered the intersection on a red light.

[26] In their statement of defence, the Kim defendants allege that it was Officer Gates who did not stop for a red light. The police defendants, in their statement of defence, say it was the Kim vehicle that went through a red light.

Issue

[27] The issue on this motion is whether the recommendation and decision of senior officers, namely production of their reports, must be disclosed on the basis of relevance to the issues in the lawsuit.

Law

[28] Although counsel did not refer to case law directly on point, there is no dispute regarding the following general principles from their factums and submissions.

[29] Rule 30.02(1), Rules of Civil Procedure, requires the disclosure of every document “relevant to any matter in issue in an action”. As Shaw J. said at para. 18 in Mawhinney v. Thunder Bay (City), 2011 ONSC 4506, this provision “... is to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

[30] Master Short addressed the concept of relevance in Benatta v. Canada (Attorney General), [2009] O.J. No. 5392 saying, at para. 20:

20 The courts are also clear that the test of relevance is not a matter of an exercise of discretion, but is rather a matter of law. The principle for determining whether a document properly relates to the matters in issue in the action is that it must be one which might reasonably be supposed to contain information which may directly or indirectly enable the party requiring production to advance his own case or to damage the case of his adversary, or which might fairly lead him to a train of inquiry that could have either of these consequences.

(See, also, Apotex Inc. v. Richter Gedeon Vegyeszeti Gyar, 2010 ONSC 4070, at para. 77.)

[31] Pursuant to Rule 34.15(1) the court may order a person to re-attend on an examination to answer any proper questions and also to answer any proper questions arising from the answer.

[32] Evidence of a prior conviction affords only prima facie proof of guilt in subsequent civil proceedings: see Becamon v. Wawanesa Mutual Insurance Company, 2009 ONCA 113 at para. 18.

[33] References to withdrawn charges are no evidence at all: see Directv, Inc. v. Gillott, 2007 4313 (Ont. S.C.J.) at para. 48.

[34] The fact that a person is charged with an offence is evidence of very little, the proper test being semblance of relevance: see Tanner v. McIlveen Estate, 2009 18676 (Ont. S.C.J.), at para. 23.

[35] Questions of a party as to whether as a result of the accident they were charged with or plead guilty to a Highway Traffic Act offence are only relevant if the impugned conduct was a cause of the plaintiff’s damages and alleged as a particular of negligence: see Francis v. La Framboise (1980), 20 C.P.C. 123 (Ontario Master), affirmed on appeal.

Positions

[36] Ms. Code submits the recommendations and decision of the senior police officers are relevant to the issue of liability. She says the role of police officers is to investigate and make an assessment of fault for the collision.

[37] Mr. Ryan argues the tracking report is not relevant as it is simply a review, not investigation, of other reports from front line officers and witnesses. He also points out that Offices Gates was not charged and that the opinion of senior officers in this regard cannot be relevant.

[38] It is to be noted that Ms. Code advised the court that plaintiff’s counsel, Mark Grossman, took no position on the motion.

Analysis

[39] In a collision involving motor vehicles both operated by civilians, the investigating officer, in most cases, will make an assessment of fault and determine if a Highway Traffic Act, or other charge is warranted. In so doing, parties in a subsequent civil action would have the benefit of a complete accident report.

[40] Such does not occur when one of the vehicle operators is a police officer. A special procedure is followed as previously described, the ultimate assessment and decision as to charges being made by senior officers.

[41] There is some evidence from Ms. Cavalluzzo that Detective Sergeant Jarvie had recommended that Officer Gates be charged. This is not denied.

[42] All of the reports, those disclosed and those not disclosed, were made shortly after the collision and long before any notice was given as to the within lawsuit or claim. Litigation privilege is not a factor, the only issue being relevance.

[43] I am mindful, as I said to counsel, of the obvious conflict of interest in police officers investigating other officers having regard to both potential charges and civil liability. Hence, I am not persuaded that the fact no charge was laid is of any consequence.

[44] In my view, the moving parties have met the test of relevance, having regard to the pleadings.

[45] In this case, senior officers are part of the investigation even though their role is said to involve only a review of other reports. These senior officers, as a result of the Policy and Procedure directive, are, in essence, involved in the same task front line officers fulfill in all collisions involving only civilians.

[46] It is not appropriate to afford police defendants’ special status in civil actions by allowing reports to remain undisclosed.

[47] An assessment of fault is part of the police officer’s role in the investigative stage. That assessment, as contained in the undisclosed reports, is clearly related to an issue in this lawsuit, namely liability. Having regard to the prior quote from Master Short, the document will enable the moving parties to advance their case or lead to a further train of inquiry. Relevance, not admissibility at trial, is the sole determination at this stage.

Disposition

[48] For the foregoing reasons, the motion is granted for the most part. The police defendants are directed to disclose the tracking report and, if required, Detective Sergeant Jarvie shall re-attend on his cross-examination and answer questions 92, 110, 255 and 262 along with any further proper questions arising from his answers.

[49] If the parties are unable to resolve the issue of costs, brief written submissions shall be delivered to my chambers in Cayuga within 30 days.

D.J. Gordon J.

Date: September 20, 2013