SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 040/11
DATE: 20140303

RE: LYNDA COCHRANE, Plaintiff

AND:

CITY OF KAWARTHA LAKES POLICE SERVICES BOARD, JOHN HAGARTY, WILL HERBERT, PAUL RICHARDS AND CARRIE JENKINS, Defendants

BEFORE: MARROCCO ACJSC

COUNSEL: Shawn McNamara, for the Plaintiff

Kevin A. McGivney, Natalie D. Kolos, for the Defendants

HEARD: January 29, 2014

summary judgment ENDORSEMENT

[1] The defendants, City of Kawartha Lakes Police Services Board, John Hagarty, Will Herbert, Paul Richards and Carrie Jenkins move for summary judgment under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing the plaintiff’s claim of negligent investigation on the basis that there is no genuine issue requiring a trial. The defendants maintain that, while the plaintiff was stuck with a used needle belonging to YL, there were no reasonable grounds to arrest YL or lay a charge against her. They point out that their decision was supported by two separate opinions from local Crown Attorneys. The defendants deny that their investigation was negligent or that they owed a private law duty of care to the plaintiff.

[2] The plaintiff’s claim is slightly broader than the description contained in the defendants’ notice of motion. The plaintiff’s claim has two parts: (1) the negligent investigation to which the defendants refer, and (2) the failure of the defendants to promptly arrange for an analysis of the blood and other contents in the used needle with which the plaintiff was stuck.

[3] The plaintiff was employed at Victoria Women’s Shelter in the Town of Lindsay as a crisis counselor, providing support and counselling for abused women and their children.

[4] In the evening of July 6, 2009, prior to the start of the plaintiff’s shift, a woman identified as YL was admitted to the shelter. After YL was assigned a room, staff admitted another family to the same room and decided to move YL to a different room. YL did not want to change rooms and as a result was angry and disruptive. In part she complained about the difficulty of moving all of her belongings to her new room. The plaintiff, in an effort to resolve matters, assisted YL by moving two bags of her belongings to YL’s new room. As the plaintiff was setting these bags down in the new room she felt a sharp pain in her left leg and as a result moved her hand quickly, resulting in a sharp pain in her finger.

[5] The plaintiff had been punctured twice by an uncapped needle that was loose in one of YL’s bags. The needle contained approximately 10 mL of blood. The needle was stuck so far into a varicose vein in the plaintiff’s leg that it was bent. YL had not told anyone that she possessed an uncapped needle in her belongings.

[6] YL was immediately questioned. At first she admitted to having hepatitis C but denied that the needle was hers. YL admitted living with other IV users. YL had fresh needle marks on her feet. Later, YL stated that she got her needles from the needle exchange programme in Lindsay. YL eventually admitted using OxyContin and crack cocaine and advised that those substances were in the needle. YL denied being HIV-positive.

[7] The plaintiff immediately went to Ross Memorial Hospital in Peterborough. Doctors there advised they could not give her anything to ward off hepatitis C or HIV. They gave her a tetanus injection and an injection for hepatitis A and B.

[8] The plaintiff had the needle which had stabbed her and she asked the staff at the hospital to analyze its contents. Staff told her that the hospital did not analyze the contents of needles and would not send it for testing.

[9] After discharge from the hospital, the plaintiff complained to the City of Kawartha Lakes Police Service about having been stuck twice by YL’s needles. The plaintiff met with Sergeant Paul Richards who assigned Constable Carrie Jenkins to investigate the incident, which she did over the next several days.

[10] The plaintiff, who is married to a police officer, wanted YL charged with criminal negligence. The plaintiff also asked officers of the Police Service to arrange for an analysis of the contents of the needle.

[11] Constable Jenkins interviewed the plaintiff and YL on July 6 and 7, 2009. YL denied ownership of the needle. YL refused to give a blood sample. Constable Jenkins seized blood-soaked cotton swabs, dried blood swabs, crack cookers and other items belonging to YL.

[12] The plaintiff was tested periodically for various communicable diseases and was declared out of danger by August 2010, approximately one year after she was punctured.

[13] The plaintiff claims that the Police Service’s failure to test the needle left her unaware that the needle presented no medical dangers. The plaintiff did not know whether she had contracted hepatitis C or HIV. She was afraid to have intimate contact with her husband. She had to travel to the hospital in Oshawa several times to test for hepatitis C, HIV and other communicable diseases.

[14] The plaintiff claims that she suffered post-traumatic stress disorder as a result of the failure of the Police Service to charge YL with criminal negligence and their failure to analyze the blood in the needle.

[15] Constable Jenkins, with the approval of her superior Sergeant Richards, refused to charge YL with criminal negligence or anything else. When the Police Service persisted in its refusal to charge YL, the plaintiff proceeded by way of private information. Process was issued after a pre-enquete with a Justice of the Peace on September 30, 2009, but the Crown Attorney intervened and withdrew the information on January 14, 2010. It is not disputed that the acting Crown Attorney was consulted by the Police Service initially on July 8, 2009 and again in September 2009. On the latter occasion the Crown Attorney was provided with the plaintiff’s written version of events. Both times, the Crown Attorneys opined that there was no reasonable likelihood of a successful prosecution. The plaintiff complained that the information provided to the Crown Attorney by the Police Service was deficient, however it is clear that, at least with respect to the September 2009 interaction, the acting Crown Attorney’s opinion was based not only on information from the police but also upon a memo provided by the plaintiff.

[16] In her statement of claim the plaintiff details her criticisms of the police investigation conducted by the defendant Constable Jenkins and her immediate superior, Sergeant Richards.

[17] The plaintiff complained about the police investigation to Inspector Will Herbert, who is also a defendant in these proceedings, in July 2009. Inspector Herbert disagreed with the plaintiff’s criticism of the investigation and ordered the investigation closed.

[18] The plaintiff then escalated her complaint to the Chief of Police, the defendant John Hagarty, in August 2009. Chief Hagarty supported Inspector Herbert’s decision to close the investigation.

[19] In September 2009, the plaintiff had asked the Police Service to retain the needle, which they did. Almost three years later – and over two years after the plaintiff had ceased undergoing tests for communicable diseases – the plaintiff again asked Inspector Herbert and Chief Hagarty to test the needle. Following this request Inspector Herbert made inquiries of the Centre of Forensic Sciences and Public Health Ontario Laboratories. Inspector Herbert was informed that the Centre of Forensic Sciences cannot perform an analysis of blood for communicable diseases. He was also informed by the Public Health Ontario Laboratories that the contents of a syringe should not be tested “as the results may be misleading and unreliable.” Inspector Herbert advised the plaintiff of these responses.

[20] The plaintiff suggested to Inspector Herbert that either the Positive Care Clinic in Oshawa or a company called LifeLabs should be asked to test the needle. Inspector Herbert made inquiries of both companies and both advised that they would not test the needle in the circumstances.

[21] The plaintiff provided Inspector Herbert with a newspaper article about an incident in Waterford Township, Michigan. The article suggested that the contents of a needle had been tested by the Michigan State Police Laboratory. Inspector Herbert contacted the Michigan Sheriff’s Department about the article and was informed that the testing referred to in the newspaper article was fingerprint and DNA testing. The Michigan Sheriff’s office had requested an analysis of the contents of the needle but the Michigan State Police Laboratory had refused.

[22] The duty of this court on a motion for summary judgment was recently determined by the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7. The Supreme Court made many important observations for the benefit of trial courts in this significant summary judgment decision. I propose to repeat only four because they assist me in the resolution of this particular motion:

[23] Judges must actively manage the legal process in line with the principle of proportionality: Hryniak, at para. 32.

[24] Proportionality is a comparative principle and it compels a motion judge to question whether the added expense and delay of fact finding at trial is necessary to a fair process and just adjudication between the parties: Hryniak, at para. 33.

[25] The summary judgment motion can enhance access to justice because it can provide a cheaper, faster alternative to a full trial: Hryniak, at para. 34.

[26] Summary judgment has evolved into a legitimate alternative means for adjudicating and resolving legal disputes: Hryniak, at para. 36.

[27] A summary judgment motion judge is required to grant the motion where there is no genuine issue requiring a trial: Rule 20.04(2)(a). There is no genuine issue requiring a trial if the summary judgment process provides the court with the evidence necessary to fairly and justly adjudicate the dispute and it constitutes a timely, affordable and proportionate procedure.

[28] Accordingly it seems to me that the Supreme Court of Canada requires a summary judgment motion judge to use that process if it appears cheaper and faster than a full trial unless the judge is satisfied that there is a genuine issue which requires the added expense and delay of fact finding at trial.

[29] In light of this guidance, I am satisfied that in this case there is no genuine issue requiring a trial.

[30] The evidence shows that the important facts are, for the most part, not in dispute. As a result I am not required to use the expanded fact-finding powers provided in Rule 20.04 or require oral evidence. Additionally, this is a case where the summary judgment procedure will be cheaper and faster than a full trial.

[31] This is not a case in which the summary judgment procedure has been used tactically to add time and expense in an effort to turn the trial into a war of attrition: Hryniak, at para. 68.

[32] The plaintiff’s complaint about the failure to charge YL with criminal negligence is based on the assumption that, had a charge been laid shortly after the incident, it would have been possible to compel YL to undergo a blood test and the plaintiff would have known shortly after July 6, 2009 whether she was at risk of serious illness. The plaintiff now concedes that she was in error in this regard. Specifically, by way of answer to undertaking counsel for the plaintiff agreed that there is no section of the Mandatory Blood Testing Act, 2006, S.O. 2006, c. 26 (“MBTA”), which permits the defendants to compel YL to provide a blood sample.

[33] The plaintiff also complains that the defendants were negligent in failing to promptly test the needle which stuck her. It is the plaintiff’s position that had the defendants done this she would have known shortly after July 6, 2009 whether she was at risk of serious illness.

[34] This aspect of the plaintiff’s complaint involves consideration of the MBTA. Section 2 of that Act provides that any person may apply to a medical officer of health “to have a blood sample of another person analyzed if the applicant came into contact with a bodily substance of the other person… as a result of being the victim of a crime.” The phrase “victim of a crime” is defined as “a victim of an alleged crime under the Criminal Code”: O. Reg. 449/07, s. 1(1). Certainly the plaintiff thought she was the victim of a crime and a Justice of the Peace was prepared to issue process requiring YL to appear in court and defend herself on a charge of criminal negligence. Previously, two Crown Attorneys were of the opinion that there was no reasonable prospect of convicting YL but this does not affect the definition in the MBTA. Accordingly it seems straightforward that the plaintiff was able to apply to a medical officer of health to have the blood in the needle, as well as blood on the cotton swabs, analyzed. The MBTA, however, does not permit the Police Service to make such an application. There is no way to know how a medical officer of health would have responded to such an application because the plaintiff did not apply for a test during the time between the pre-enquete (September 30, 2009) and the withdrawal of the charge by the Crown (January 14, 2010). In this circumstance it seems to me that any damage experienced by the plaintiff due to the failure to promptly analyze the contents of the needle was caused by the plaintiff’s inaction and not by the negligence of the defendants.

[35] Accordingly the defendants’ motion for summary judgment is granted and in this case summary judgment is granted for the defendants with the result that the plaintiff’s claim is dismissed with costs.

[36] While it is not directly relevant in this case, I would not want to leave this matter without commenting on the Supreme Court’s direction in paragraphs 78 and 79 of Hryniak to judges who dismiss a summary judgment motion. Specifically the Court said:

Where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge.… While such an approach may complicate scheduling, to the extent that current scheduling practices prevent summary judgment motions being used in an efficient and cost effective manner, the courts should be prepared to change their practices in order to facilitate access to justice.

[37] The Superior Court of Justice is obligated to do everything within its power to deliver access to justice to people involved in civil disputes. Where judges are on circuit within a region, modern audio and visual technology does not require that everyone be in the same place for witnesses to heard or submissions received. Closing submissions can also be in writing. Given the Supreme Court’s direction, it is not unreasonable to insist that those responsible for court administration must overcome scheduling difficulties presented by what is now an aspect of the law concerning motions for summary judgment.

A.C.J.S.C. MARROCCO

Date: 20140303