ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-08-1620
DATE: 20131025
BETWEEN:
ADRIENNE KENNEDY
Plaintiff
– and –
DAVID PETRUCCI and the REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
Defendants
S.C.E. Gillis, for the Plaintiff
L.R. Hatch, for the defendants
E. Wagner, for the Attorney General of Ontario on behalf of the Special Investigations Unit
HEARD: October 18, 2013
Bielby, J.
Ruling re: Third Party Records
INTRODUCTION
[1] The Plaintiff has before the Court a motion brought pursuant to Rule 30.10, seeking production of the Special Investigations Unit’s (“SIU”) file relating to this matter.
[2] The action results from a motor vehicle accident which occurred in Brampton, on July 24, 2007. The plaintiff’s vehicle was struck by a Peel Regional Police vehicle operated by Constable Petrucci. Injuries were sustained and the SIU completed an investigation in regards to the accident. Constable Petrucci was the subject officer of the investigation.
[3] The plaintiff seeks production of portions of the SIU’s file, pursuant to Rule 30.10. Some of the file has already been produced. The list of documents sought is set out on page nine of the plaintiff’s motion record, being paragraph 19 of the affidavit of Jaclyn Gommore, sworn October 11, 2013.
[4] The defendants herein did not appear on the motion and have not taken any position in regards to the relief sought.
[5] Counsel for the SIU has consented to provide the documents listed as item numbers, 16, 18 and 101.
DISCUSSION
[6] Rule 30.10 states, in part, as follows:
(1) 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.
(2) Where privileged is claimed for a document referred to in subrule (1), or where the court uncertain of the relevance of or necessity for discovery of the document, the court may inspect the document to determine the issue.
[7] I also have regard to Rule 30.1(01), which applies to Rule 30.10 motions. Subsection 3 of Rule 30.1.01 states,
(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purpose other than those of the proceedings in which the evidence was obtained.
[8] It is conceded that all of the productions sought are relevant. The issue to be determined is that of fairness.
[9] I have been provided with a sealed file containing all the documents in issue. Both counsel agreed that if I felt it was necessary I could review the documents.
[10] The SIU file contains statements from a number of civilian witnesses. When the plaintiff sought production of the SIU file the witnesses were contacted and asked if they would consent to the disclosure of their statements. All but one civilian witness, that being Glen Berseth, provided their consent. Mr. Berseth’s statement is item number 12 and its production is sought by the plaintiff.
[11] The police witnesses did not consent to the release of their statements, and the summaries of their statements are itemized as numbers, 13, 14, 15, 19, 20, 21, and 22 and their production is sought by the plaintiff.
[12] The plaintiff seeks the SIU investigator’s reports, items numbered, 31, 91, 92, 93, 94, and 95. Apart from item 31, these items are SIU investigators’ notes regarding the civilian witnesses.
[13] Finally, the plaintiff seeks production of items numbered, 103 and 104 being the recorded interviews (CD) of Mr. Berseth and the police officers.
[14] When the SIU interviewed the witnesses, both civilian and police, it provided them with and read to them the Witness Confidentiality Assurance. Part of the Assurance advises the witness that what they say will be kept confidential unless they consent to its release or unless the SIU is ordered to release it by a Court.
[15] This Assurance is referred to by plaintiff counsel as an “operative policy” and not one prescribed by statute. Even by its wording the assurance of confidentiality is not absolute. Production of such statements can be ordered if the test set out in Rule 30.10 is met.
PLAINTIFF’S ARGUMENT
[16] It is submitted by the plaintiff that, in regards to the issue of unfairness, the Court must balance and weigh the public’s right to the release of the information against the right to confidentiality.
[17] The plaintiff submits that it would be unfair to require her to proceed with this matter without the production of the documents in issue. It is argued they go to the issue of how the accident happened, and who is or are at fault. Liability remains a contested issue in this action.
[18] Any productions made would become part of the public record if the matter goes to trial. Short of going to trial, it is argued that confidentiality is protected by the deemed undertaking (Rule 30.1(1)). It is suggested by counsel for the plaintiff that the Court could order the production for the purposes of discovery and further order that if the plaintiff needed to use such information at trial, it could only do so by consent or further court order.
[19] The test referred to in Rule 30.10 requires the Court to determine if it would be unfair to require the plaintiff to proceed to trial without having discovery of the documents. It seems to me the admissibility of any such document is subject to the rules of evidence and is not admissible simply because production was ordered for discovery purposes.
ATTORNEY GENERAL’S ARGUMENT ON BEHALF OF THE SIU
[20] Counsel for the Attorney General of behalf of the SIU opposes the production of any of the statements where consent has not been provided.
[21] It is submitted that the plaintiff has not demonstrated that it would be unfair to go to trial without the information sought.
[22] It is submitted that the plaintiff has access to the same sources of information. She has the police officers’ notes and has the ability to interview the witnesses and, if necessary, subpoena such witnesses.
[23] Counsel for the SIU argues that the offer of confidentiality to witnesses is necessary for it to conduct investigations. It is offered to witnesses to encourage them to come forward, but at the same time remain out of the public light.
[24] It is submitted that all the material requested, with the exception of item 31, is witness information.
[25] Counsel for the SIU submits that the courts have ruled that production under this rule is the exception and orders such as requested should not be made in the ordinary course.
[26] It is submitted that if the plaintiff has access to the same source of information as the SIU she can conduct her own investigation and, therefore, there is no unfairness.
[27] In that regard, counsel for the plaintiff agreed that he had received the notes of the police officer witnesses and had received a copy of Mr. Berseth’s statement given to the Peel Police. However the police notes were heavily redacted. Further, I was advised that the Berseth statement had the witnesses’ contact information redacted. It is argued therefore that it would be unfair for the plaintiff to proceed without the documents in issue. Certainly the plaintiff cannot conduct her own investigation and contact Mr. Berseth directly if it is not known how to contact him.
[28] In determining the issues before me, I will assume that none of the material obtained by the SIU was redacted. It would appear therefore that the SIU had access to witness information that the plaintiff has not.
THE LAW
[29] Both parties referred to a number of relevant cases which I will now review.
[30] Chiarella v Simon, [2007] O.J. No, 401 is one of at least two decisions of Matheson J. of the Ontario Superior Court of Justice. It, too, dealt with a motor vehicle accident in which a police car was involved and the production of SIU documentation. As a result of an earlier decision by Justice Matheson ([2007] O.J. No. 8) the Court was provided with the SIU documents and Justice Matheson reviewed the documents individually to determine what was to be produced.
[31] Justice Matheson, at paragraph 9, states, “In approaching this matter, I balanced the right of the plaintiff to have information that was relevant to the plaintiff’s case against the limited confidentiality that was given pursuant to the reading as set out in paragraph 5.” Paragraph five set out the confidentiality assurance I referred to previously.
[32] From paragraph 10 I quote, “In that balancing act, I looked at the information that was in the possession of the plaintiffs. If they had, in my opinion, sufficient information that the SIU documentation would not substantially augment, I would decline to order production.”
[33] From paragraph 14, I quote, “One must remember that 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.”
[34] In his earlier decision, cited above, Justice Matheson stated at paragraph 20, “Therefore, the issue to be decided is the following. Does the confidentiality aspect that was disclosed and offered to the officers and civilian witnesses outweigh the right of the plaintiffs to what might be relevant information.”
[35] Stafford v. Adams, [2009] O.J. No. 3263, is a decision of Justice E. M. Stewart of the Ontario Superior Court of Justice and again was a case in which production of the SIU file was sought from the SIU’s investigation of a motor vehicle collision.
[36] From paragraph 11, I quote, “With respect to the issue of the timing of production, the earlier full discovery is obtained, the better the chances are that all parties to the dispute will be able to assess their respective positions so that any prospects of early resolution may be improved.” At paragraph 13, the learned judge states, “Accordingly, any assurance of confidence is not absolute and may yield to lawful process which would include an order of this Court.”
[37] In the Stafford case, what was in issue was the production of witness statements along with the audiotaped statements. The plaintiff sought production stating that the documents were related to liability and it would be unfair to make them to proceed to trial without them.
[38] The SIU argued that the balancing of competing interests, including the public interest favoured non–production because the witnesses had not consented to production of their statements. Confidence in the SIU would erode because production of this nature would be a disincentive to witnesses.
[39] The court ordered the production of the SIU file determining the information was relevant to the issue of liability. At paragraph 16 of the decision, the learned judge states, “Moreover, this production is for the purposes of discovery only and is without prejudice to the rights of any party to argue against the admissibility of or use of any statement at trial or for any other purpose.”
[40] From paragraph 17 I quote,
Having engaged in the balancing exercise referred to in Chiarella supra, I am of the view that it would be unfair to require the Plaintiff to proceed to trial without the advantage of obtaining prior production of the information and documents in question. This is a case in which justice requires a true determination of what actually happened on December 5, 2004, and that objective must take precedence over the SIU’s policy concerns and any alleged privacy interests of those who provided statements to SIU investigators in this instance.
[41] It was pointed out by counsel for the SIU, in the matter before me, that in Stafford two of the interviews sought were of parties to the action and it was determined that said individuals would not likely appear at discovery. A notable distinction.
[42] Boucher v. Charles, 2013 ONSC 3120, [2013] O.J. No. 3583 is a decision of Master McAfee of the Ontario Supreme Court. In that case the plaintiff was in an accident with a police vehicle. The matter was investigated by the SIU. The plaintiff obtained copies of the police statements of all civilian witnesses and the notes of all officer witnesses. The plaintiff sought the production from the SIU file of witness statements, summaries and unredacted documents.
[43] Relevance was conceded by counsel for the SIU.
[44] The headnote states that the plaintiff had not proven unfairness. The plaintiff already had the civilian statements taken by the police and copies of the officer’s notes.
[45] The learned Master stated at paragraph 22,
I am not satisfied that the documents are important to the litigators. 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 the relevant factors, the plaintiffs have not satisfied the second branch of the test with respect to the balance of the documents remaining at issue.
[46] The learned Master stated at paragraph 11, “Production 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 paragraph 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.”
[47] The Master, at paragraph 13 refers to Rule 30.10 and paragraph 12 of the Stavro case and quotes, “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.”
[48] The learned Master, at paragraph 17, quotes from, N.G. v. Upper Canada College, [2004] O.J. No. 1011, in which, at paragraph 14, Justice Lang stated, “The public interest… is an important question to consider in the context of the Rule 30.10 fairness criterion.”
[49] Master McAfee ruled that the public interest in non-disclosure overrode the public interest in advancing the administration of justice through full disclosure of all relevant evidence.
[50] The learned Master concluded that, after weighing all the factors, he was not satisfied that it would be unfair for the plaintiffs to proceed to trial without production.
[51] Counsel for the SIU, in the matter before me, submitted that the Boucher case, on its facts, were almost identical.
[52] Pellietier v. Ontario is an unreported decision of Justice Boswell on the Ontario Superior Court. Rule 30.10 was in issue.
[53] The plaintiff sought the production of a police officer’s SIU statement. The plaintiff already had the officer’s notes and wanted to see if there were any inconsistencies between the notes and the statement. It was submitted that, without production, the plaintiff would lose the right to cross examine the officer of such inconsistencies and therefore, there was unfairness.
[54] Justice Boswell ruled that the issue of inconsistencies was purely speculative and it was not unfair for the plaintiff to proceed without such statement.
[55] The learned judge referenced the confidentiality aspect to SIU statements and the fact the police officers have a statutory obligation to co-operate with an SIU investigation. He states, “But even so, one can easily imagine the chilling effect that compelled production would have, particularly in the police culture if statements given in confidence to the SIU were too readily made available to parties to a civil action, or otherwise.”
[56] The learned judge ruled that it would not be unfair to the plaintiff to proceed to trial without the production requested.
ANALYSIS
[57] As noted previously in the matter before me, the plaintiff has all of the officer’s notes and the witness statement taken by the police with respect to the witness Glenn Berseth. If this documentation was complete, that is, without redaction, I would agree with the submissions of counsel for the SIU that there is no unfairness warranting SIU production, as contemplated by the Rule and interpreted by the Courts. The plaintiff would be able to conduct its own investigation on the same material available to the SIU. She would be able to obtain her own statements and prepare her own summaries.
[58] It is unfair, in my opinion, because of the redaction, for the plaintiff to proceed to trial without the production of certain documents requested
[59] I am exercising my discretion and order that the respondent non-party to this motion, the SIU, produce to the plaintiff, the investigators’ summaries of the witness officers’ information and the investigator’s notes containing the statement of Glen Berseth.
[60] Specifically, and after reviewing the documents in issue, I order the production of items, numbered, 12, 13, 14, 15, 19, 20, 21, and 22, as set out at paragraph 19 of the Gomme affidavit, sworn October 11, 2013.
[61] In making this order, I have balanced the right of confidentiality against the right to disclosure.
[62] Police officers are required to co-operate in an SIU investigation so the argument that, as witness, they would be less likely to come forward if their statements were made available, carries less weight.
[63] As for Mr. Berseth, the only civilian witness that did not consent to the release of his statement to the SIU, the assurance of confidentiality is not absolute and it would be unfair for the plaintiff to proceed to trial on the issue of liability without having such evidence and an ability to contact this witness.
[64] I will not, however, goes as far as ordering the production of the compact disc recordings of the officer’s and Berseth’s statements (items 103, 104). Such production is not necessary in order to overcome any unfairness.
[65] In making this order, I note that it was not the SIU who redacted these documents. It was the defendants. If the defendants were concerned about production and discovery of such documentation they could have participated in this motion. While it could be argued that the plaintiff should proceed against the defendants, by motion, for the production of unredacted copies, another motion would involve additional time and costs and this motion, filed more than two years ago, is properly before me.
[66] I am not persuaded that it would be unfair to the plaintiff not to be provided with the investigator’s notes regarding the civilian witnesses who consented to the production of their statements. The plaintiff can complete her own investigation based on the same information provided to the investigators. It cannot be said that it would be unfair to the plaintiff to proceed to trial without the notes. Further, as noted by Justice Matheson in the Chiarella case, the SIU is not an informational collection agency for parties involved in civil litigation.
[67] Finally, I agree that item 31 is administrative in nature and will not order its production.
[68] With respect to costs I will accept written submissions of no more than four pages in length within 21 days of the release of this ruling.
[69] As noted in paragraph [9] herein, I am in possession of copies of all the documents in issue, which were provided to me by responding counsel. I would ask counsel to advise me as to what I should do with this material.
Bielby, J.
Released: October 25 , 2013
COURT FILE NO.: CV-08-1620
DATE: 20131025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADRIENNE KENNEDY
Plaintiff
– and –
DAVID PETRUCCI and the REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
Respondents
REASONS FOR JUDGMENT
Bielby, J
Released: October 25 , 2013