Endorsement
COURT FILE NO.: CV-12-445186
DATE: 20140408
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SILVANO LOCHNER, Plaintiff/Appellant
AND:
TORONTO POLICE SERVICES BOARD, DETECTIVE ALEX WILL (Badge No. 362), and CHIEF OF POLICE WILLIAM BLAIR, Defendants/Respondents
BEFORE: STEWART J.
COUNSEL: Silvano Lochner, Plaintiff/Appellant, in person
Robert L. Love and Philip Wright, for the Defendants/Respondents
HEARD: December 20, 2013
ENDORSEMENT
[1] This is an appeal by the Plaintiff Silvano Lochner from the decision of Master Muir to strike certain allegations contained in his Statement of Claim.
[2] The Defendants likewise cross-appeal from Master Muir’s decision refusing to strike paragraphs 17 and 19 of Lochner’s Statement of Claim. The Defendants also appeal the Master’s decision declining to award costs of the motions to any party.
[3] Prior to commencing this action, Lochner made a complaint under the Police Services Act R.S.O. 1990, P.15 (“PSA”) alleging that the Defendant Detective Alex Will disclosed Lochner’s criminal record to his employer, which disclosure resulted in his termination from employment.
[4] Pursuant to s. 83 and s. 95 of the PSA, all documents prepared and information obtained during the public complaint process are privileged and inadmissible in this proceeding.
[5] The relevant provisions of s. 83 are as follows:
Non-compellability
(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.
[6] The relevant provisions of s. 95 are as follows:
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.
[7] After Lochner’s complaint had been dealt with, he commenced this action. In his Statement of Claim he referred to certain documents and information which are deemed privileged pursuant to the above-referenced provisions of the PSA. The Defendants moved to strike the offending paragraphs.
[8] In his decision, Master Muir made the following finding:
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.
[9] Master Muir declined to strike out paragraphs 17 and 19. He made no award of costs to either party.
[10] The standard of appeal with respect to the Master’s decision to strike paragraphs 20, 21 and 22 and portions of paragraph 23 in the Statement of Claim is one of correctness. Similarly, the standard of appeal of the Master’s decision not to strike paragraphs 17 and 19 in the Statement of Claim is one of correctness.
[11] Master Muir’s decision not to award costs is a discretionary one. Accordingly, to succeed on their cross-appeal of this decision, the Defendants must demonstrate that this decision was based on wrong principles.
[12] I see no basis upon which interference with any aspect of Master Muir’s decision based upon his thorough and careful reasons for decision would be warranted.
[13] In particular, Master Muir correctly interpreted the PSA and properly applied the guiding principles and authority established by the Divisional Court in Andrushko v. Ontario, [2011] O.J. No. 3693. In its decision, the court observed that the confidentiality requirements of the PSA extend to information as well as actual documents acquired or prepared as a result of a public complaint (see also: Landry v. Rains, [2013] O.J. No. 3713).
[14] The decision in R. v. Lloyd, 2008 ONCJ 288, [2008] O.J. No. 2450 is readily distinguishable from this case as well as having been superceded by the decision in Andrushko, supra. This decision was made in a criminal context involving the application of the jurisprudence of disclosure to a criminal proceeding, and related to production of the discipline record of a police officer whose credibility was in issue in an innocence-at-stake context.
[15] Turning now to the cross-appeal, in my view, Master Muir correctly determined that paragraphs 17 and 19 of the Statement of Claim did not violate or engage the privilege concerns of the PSA and therefore should not be struck. The allegations contained therein are relevant to the history behind the claim and the causes of action and damages asserted by Lockner. The confidentiality requirement s of the PSA and the concerns of the Defendants in that regard, if any, nevertheless may be observed and asserted both on discovery and at trial if need be.
[16] Finally, Master Muir’s decision on costs was a purely discretionary one. Success on the motions before him was divided. I see no basis upon which reversal of his order would be appropriate.
[17] The Defendants took issue with the provision by the Plaintiff on these appeals of material that was not before the Master in the first instance. Although I provided latitude to the self-represented Plaintiff with respect to argument and reference to this material, I do not consider that it served in any way to alter the outcome.
[18] The appeal and cross-appeal are therefore dismissed. If any party wishes to make submissions on costs, this may be done by means of written submissions to be delivered within 20 days of today’s date.
STEWART J.
Date: April 08, 2014