ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-288-00
DATE: 2014/06/11
BETWEEN:
KEVIN GALALAE
Plaintiff
– and –
KINGSTON POLICE SERVICES BOARD, PAULO GEMIGNANO, JOHN DOE, HOTEL DIEU HOSPITAL, DR. CHRISTINA ORR, DR. DAVID MURRAY
Defendants
Self-represented
Kristin Muszynski, for the Defendants
HEARD: March 25, 2014 at Kingston
REASONS FOR JUDGMENT
Kershman J.
OVERVIEW
[1] The Defendants, Kingston Police Services Board, Constable Paulo Gemignano and John Doe (“Police Defendants”) seek an order dismissing the action against them pursuant to Rule 20.01(3) of the Rules of Civil Procedure on the basis that there is no genuine issue requiring a trial.
[2] The action was commenced by Kevin Galalae (“Plaintiff”) following alleged acts committed against him by the Police Defendants as well as the Defendants Hotel Dieu Hospital, Dr. Christina Orr and Dr. David Murray (“Hospital Defendants”) between May 13 and 18, 2011, in Kingston, Ontario.
[3] On May 15, 2011, the Plaintiff was transported by the Police Defendants to the Hotel Dieu Hospital (“Hospital”) to undergo a psychiatric assessment. As a result of the psychiatric assessment, the Plaintiff was involuntarily detained on a “Form 1” by the staff of the psychiatric ward at the hospital.
[4] The Plaintiff brought this action claiming damages as a result of the 72-hour involuntary detention at the Hospital.
[5] The Hospital Defendants successfully brought a motion for summary judgment against the Plaintiff. Leroy J. dismissed the Plaintiff’s claim against the Hospital Defendants on August 9, 2013.
[6] The Police Defendants bring this summary judgment motion on the basis that there is no genuine issue requiring a trial with respect to the Plaintiff’s claim against them and request that the claim be dismissed.
FACTUAL BACKGROUND
[7] Justice Leroy, in his summary judgment decision, described the Plaintiff as an ardent political activist who is an articulate and prolific writer. In May 2011 the Plaintiff was married with two children. He believes that he uncovered a covert program of surveillance and censorship at government levels and filed a claim for injunctive relief with the European Court in March 2011. He considered the need for timely redress to be urgent so he conducted a hunger strike on the steps of a courthouse in France in April 2011 to expedite his case. The hunger protest failed. He ended the protest on May 12, 2011, because he realized that his absence from his six‑year‑old son was taking too great a toll on the child.
[8] When the Plaintiff returned home, he found that his marriage to Cindy Marshall had broken down and that his home was empty. Ms. Marshall denied the Plaintiff access to his two children. The Plaintiff was extremely upset by the marriage breakdown and separation from his two children.
[9] On May 13, 2011, Constable Slack attended at the home of Ms. Marshall’s parents where Ms. Marshall and her two children were staying. The Plaintiff appeared noticeably upset about the separation. Constable Slack reported that the Plaintiff demanded to see his children and then threatened to sue police officers. Constable Slack filed a Kingston Police general occurrence report relating to this incident, wherein he noted that Ms. Marshall expressed concern for her safety, the safety of the children and the safety of the Plaintiff.
[10] On May 15, 2011, Constable Gemignano was called to Ms. Marshall’s parents’ home because the Plaintiff was at the door demanding to see the children. The Plaintiff left prior to the police arriving.
[11] Constable Dianne McCarthy was one of the constables involved in the matter. Her area of specialty is the investigation of criminal offences involving persons that may require understanding or sensitivity as a result of them having compounding issues of mental health, addictions, developmental delays, brain injuries or a combination of the above. Constable McCarthy reviewed previous Kingston Police general occurrence reports from December 7 and 8, 2005. Those reports stated that the Plaintiff was fired from HomeSense on December 7, 2005. His employer was concerned that the Plaintiff was not taking it well and, as a result, a “no trespass order” was issued. The following day, the police were called to HomeSense because the Plaintiff had returned to the store. It was reported that the Plaintiff wanted to be arrested to prove that he was unjustly fired.
[12] On May 15, 2011, Constable McCarthy spoke with Ms. Marshall by phone who advised the officer that the Plaintiff was mentally ill. She expressed fear because he was not thinking straight and he would not listen to the police about staying away from her and the children. Constable McCarthy also spoke to Angela Lowry, Ms. Marshall’s sister, by telephone on the same day who also expressed similar concerns.
[13] Based on the previous reports filed by the Kingston Police and her discussions with Ms. Marshall, Constable McCarthy had concerns for the safety of Ms. Marshall and the children. She felt that the Plaintiff lacked the competence to care for himself and that he was suffering from a mental disorder that could result in harm. As a result, Constable McCarthy recommended that the Plaintiff be taken to the hospital for a psychiatric assessment.
[14] Later in the day on May 15, 2011, Constable Gemignano contacted the Plaintiff by cell phone and met him at the Cineplex Movie Centre. During their discussions at the theatre complex, the Plaintiff spoke of his recent trip to Europe and his hunger strike to protest universities “hand‑picking” students. He also spoke of his suspicion that people were breaking into his computer and that satellites were “zapping” his computer. Constable Gemignano observed that the Plaintiff was engaging in conspiracy theories and was tangential in his thoughts and speech. The Plaintiff voluntarily agreed to attend for a psychiatric assessment at the hospital in order to clear up any doubt that he needed help. The Plaintiff was not placed in handcuffs when being transported to the Hospital. At the Hospital the Plaintiff underwent an initial psychiatric assessment. The police provided the hospital staff with information regarding their involvement with the Plaintiff and Ms. Marshall.
[15] A Form 1 under the Mental Health Act was completed by Dr. Christina Orr, which allowed for a 24-hour observation. This was followed up by a Form 42, which allowed for an involuntary detainment in the Hospital for up to 72 hours. The basis of the Plaintiff’s admittance to the Hospital was based, in part, on the observations of Dr. Orr in the psychiatric emergency assessment dated May 15, 2011, which states under “Chief Complaint” – “Brought in by police ‘on own wishes’ after trespassing repeatedly on wife’s parents’ property.”
[16] The notations under the “History of Presenting Illness” included the following: several years of history of paranoia, which began with his failing an on-line Master’s course for arguing with a professor; poor sleeping; feeling that the British Government and European Union were controlling what can be taught and said in school; he said that his phones were tapped and there were spies in the classroom; he indicated he had gone to the RCMP, feeling his life was in danger; he was sleeping poorly and devoted to a cause; and he acknowledged emptying his joint bank account to go to France for a hunger strike to protest the government’s intervention with education, his loss of 20 pounds, and that his mood had been irritable and angry.
ISSUE
Should the Plaintiff’s Claim against the Police Defendants be Dismissed on the Basis that There is No Genuine Issue Requiring a Trial?
THE LAW ON SUMMARY JUDGMENT
[17] Rule 20.01(3) of the Rules of Civil Procedure provides:
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (3).
[18] Rule 20.04(2) of the Rules of Civil Procedure reads:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).
[19] The leading case is the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, 366 D.L.R. (4th) 641, in which the Court considered the Court of Appeal’s decision in Combined Air Mechanical Services Inc. v. Flesch. The Supreme Court of Canada stated at para. 4: “the Ontario Court of Appeal placed too high a premium on the "full appreciation" of evidence that can be gained at a conventional trial”.
[20] The Supreme Court of Canada emphasized the importance of “proportionality” in Hryniak. Karakatsanis J., writing for the Court, states at para. 4:
… a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
[21] Karakatsanis J. went on to state, at para. 5, that “[s]ummary judgment rules must be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication of claims.”
[22] At para. 49 of Hryniak the Court held that there will be no genuine issue requiring a trial when:
[T]the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process 1) allows the judge to make the necessary findings of fact; 2) allows the judge to apply the laws and to the facts; and 3) is a proportionate more expeditious and less expensive means to achieve a just result.
[23] The Court went on to say at para. 57 that the evidence on a summary judgment motion is more restricted than the evidence required at trial and that the evidence provided on a motion does not need to be the equivalent of the evidence obtained at trial.
The Defendants’ Position
[24] The Police Defendants argue that the record before the Court includes all of the facts necessary to dispose of the action against them and enables the Court to apply the relevant law to those facts. They argue that the record sets out the basis on which the Police Defendants developed reasonable grounds to act pursuant to their statutory authority found under s. 17 of the Mental Health Act.
[25] The Police Defendants rely on the case of Lamarche v. Grebnjak, 2010 ONSC 2316, at paras. 4 and 5, which says that the purpose of Rule 20 is to remove those matters in which there is no genuine issue requiring a trial from the trial system.
[26] On a motion for summary judgment, both sides are required to put their “best foot forward” with respect to the existence or non-existence of material issues to be tried. The Court is entitled to assume that the record contains all of the evidence that would be required at trial: Hino Motors Canada Ltd. v. Kell, 2010 ONSC 1329, at para. 9.
[27] The responding party has the burden to raise a genuine issue requiring a trial: Galalae v. Kingston (Police Services Board) 2013 ONSC 5153.
[28] The Defendants argue that the Plaintiff has not raised a genuine issue requiring a trial. The Defendants argue that they acted in accordance with the statutory authority set out under s. 17 of the Mental Health Act at all times.
[29] The Defendants rely on the decision in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at para. 17, where the Court held that to establish “reasonable grounds” on which to base an arrest, a police officer must subjectively believe that he had such grounds and furthermore that those grounds must be justified from an objective point of view.
[30] The Defendants also rely on the case of Quartey v. Peel Regional Police Services Board, 2012 ONSC 2260 at paras. 15-21 and 31, being a civil action wherein the Plaintiff alleged that he was assaulted and wrongfully/unlawfully arrested and detained by the police and that the police were negligent. The Plaintiff was handcuffed and taken into custody by the police pursuant to s. 17 of the Mental Health Act and delivered to a nearby hospital for a psychiatric assessment. The Plaintiff was examined by a physician and detained in the psychiatric facility for 72 hours. The Court dismissed the Plaintiff’s claim and noted at para. 30 that the doctor’s observations mirrored “the concerns of the Peel Police who apprehended the Plaintiff”.
[31] The Court also noted at para. 34 that although the Plaintiff was articulate in his submissions to the Court there was no plausible evidence to support his theory that there was a “wide spread conspiracy to harm him and prevent him from seeking justice”.
[32] Lastly, the Court, at para. 35, said that “the conduct of the police and medical staff who dealt with Mr. Quartey on April 28 and 29, 2007, was lawful and reasonable. They acted under statutory authority and the disputed facts do not raise a genuine issue requiring a trial”.
[33] As to the issue of the standard of care, the Defendants rely on the case of Solomonvici v. Toronto Police Services Board, 2009 CarswellOnt 4418. In that action the Court dismissed the Plaintiff’s claim against the police defendants on a motion for summary judgment because of the Plaintiff’s failure to offer evidence of what a reasonable officer would do in a similar situation. The Court noted that a self-serving affidavit was not enough to create a triable issue.
[34] In this case the Defendants argue that the Plaintiff has not provided the Court with any evidence of the appropriate standard of care and therefore there was no evidence led by the Plaintiff on which the Court could conclude that the standard of care had been breached.
Plaintiff’s Position
[35] The Plaintiff argues that each of his claims is correct and that the Defendants have committed serious criminal offences in a deliberate, systematic and malicious manner designed to harm the Plaintiff in retaliation to his exposing covert programs of surveillance and censorship.
[36] As to the motion for summary judgment successfully brought by the Hospital Defendants on August 9, 2013, the Plaintiff argues that the claim against the Hospital Defendants was not dismissed because the Plaintiff’s claims were without merit, but because the Plaintiff failed to provide an expert opinion which was impossible at the time because he was in pre-trial detention on false charges laid by the Police Defendants to ensure that he could not proceed in the civil matter. He argues that the charges were dismissed on September 11, 2013, one day before the trial was set to begin.
[37] The Plaintiff goes on at length to set out what he perceives to be the evidence that substantiates his position.
[38] At page 1, para. 3, of his factum the Plaintiff argues that the facts demonstrate that:
[T]he Defendants have perverted the rule of law, violated the public trust and abused their positions of power to comply with orders received from their superiors who, in turn, have been corrupted by political figures in Kingston and beyond.
[39] At page 2, para. 7, of his factum, the Plaintiff further argues that:
[T]he summary judgment motion is therefore unjustified and a full trial is necessary to establish the depth and breadth of the Defendants’ criminal behaviour so that appropriate compensation can be granted to the Plaintiff and so the Defendants will be taught a lesson they will never forget and that others in the administration of justice and law enforcement throughout Canada can take heart because the system is completely out of control.
[40] The Plaintiff argues that the record before the Court does not include all of the facts necessary to dispose of the action against the Police Defendants. According to the Plaintiff, the record shows that the Police Defendants did not have reasonable grounds to act pursuant to their statutory authority found under s. 17 of the Mental Health Act.
[41] The Plaintiff argues that he has clearly raised a genuine issue requiring a trial. At the same time at page 12, para. 6, of his factum he states:
In the interest of taxpayers and of national and international security, the Plaintiff is willing to bypass the full vindication of a trial for an expeditious and fair adjudication that recognizes the devastating damage done to the Defendant [sic] and his family by the malicious, premeditated and perverse actions of the Defendants.
Analysis:
[42] The Plaintiff has argued various conspiracy theories and suggestions of perjury. The Court was not provided with any evidence of any conspiracy or perjury as alleged. There are only broad accusations and assertions set out by the Plaintiff in his pleadings and his oral argument. There is little or no evidence of any conspiracy or perjury as suggested by the Plaintiff in his factum and oral argument. The Court finds that the Plaintiff has not put his best foot forward in this matter.
[43] Furthermore, the Court finds that there is no evidence that the Police Defendants have committed grave criminal offences or have done so repeatedly with disregard to truth and justice.
[44] The Plaintiff agreed to be taken into the psychiatric facility of his own volition. The evidence is that he was not handcuffed.
[45] Based on the Plaintiff’s previous behaviour in 2005 at HomeSense, where a no trespass order was issued, the Police Defendants had reason to be concerned. When the 2005 occurrence reports were prepared the Plaintiff asked the police to arrest him so that he could prove that he was unjustly fired.
[46] The Plaintiff is intelligent and articulate. The Court finds that he went willingly to the Hospital. The Court finds there is no evidence of any inappropriate behaviour by the Police Defendants in their interactions with the Plaintiff and with respect to taking him to the Hospital and leaving him with the medical staff.
[47] It was the decision of the Hospital Defendants to keep Mr. Galalae for 72 hours as opposed to 24 hours. It was the Hospital Defendants’ finding that Mr. Galalae had a delusional disorder.
[48] The Court notes that no affidavit was filed by the Plaintiff to deal with the issues raised by the Police Defendants on this motion. The only affidavit that was filed was filed in October 2013, which was several months prior to the Police Defendants bringing the summary judgment motion.
[49] The Plaintiff did not present any expert evidence to substantiate his position. The Police Defendants have provided subjective evidence as to what occurred. From an objective point of view, the medical staff has provided evidence to show that the Police Defendant’s actions were justified.
[50] The Plaintiff provided no notes as evidence as to what had occurred at or near the time of the incidents. At the same time, notes were provided as evidence by the Police Defendants and the doctors at or close to the times that these incidents occurred.
[51] The Court notes that the Plaintiff has failed to offer evidence of what a reasonable police officer would do in a similar circumstance. The only evidence on the motion before the Court is the affidavit of the Plaintiff dated October 2013.
[52] Furthermore, the Plaintiff has not provided the Court with any evidence of the appropriate standard of care.
[53] In Solomonvici at paragraph 13, the Court stated:
The party opposing a motion for summary judgment must demonstrate to the court there is a ‘real chance of success’. He did not bring any evidence before the court of what a reasonable officer would do in similar circumstances. As noted in Guarantee Co. of North America v. Gordon Capital Corp.,supra, ‘a self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence’.
[54] In the present case, Mr. Galalae has not demonstrated to the Court that there is a “real chance of success”. He has not brought any evidence before the Court about what a reasonable officer would do in similar circumstances. Nor has he provided the Court with any evidence of the appropriate standard of care. The only thing he has provided is a self-serving affidavit.
[55] The Court relies on the reasoning by Darla A. Wilson J. in Solomonvici and finds that the Plaintiff’s affidavit is self-serving and that he has not provided any evidence of what a reasonable police officer would do in the circumstances.
[56] While the Plaintiff feels that he has raised some issues, the Court finds that none of the issues raised by him reach the level of genuine issues that require a trial. In his oral argument, to paraphrase his words, the Plaintiff said that he was the only one with credibility; that Kingston had none and that Canada had none.
Canadian Charter of Rights and Freedoms:
[57] The Plaintiff in his statement of claim argues that certain of his rights in relation to security of person pursuant to s. 7 of Canadian Charter of Rights and Freedoms were breached. The Plaintiff claims he was subjected to unreasonable search and seizure contrary to s. 8 of the Charter. He also alleges that his right to be free from arbitrary detention under s. 9 was violated. Lastly he alleges that the Police Defendants’ breaches give rise to liability pursuant to s. 24(1) of the Charter.
[58] The Court notes that the issue of the Plaintiff’s Charter rights was not dealt with in his factum.
[59] The Police Defendants’ position is that the matter was previously dealt with by Justice Leroy in the Hospital Defendants’ motion for summary judgment.
[60] The Court has reviewed the matter and finds that this matter was, in fact, dealt with by Justice Leroy in the Hospital Defendants’ summary judgment motion at paras. 34 to 36.
[61] The Court adopts Justice Leroy’s reasoning related to the Charter issues in his decision and finds that the Plaintiff’s Charter rights were not infringed.
Conclusion:
[62] The Court finds that there is no genuine issue requiring a trial in this matter. The Court is able to come to a fair and just determination of the matter on this motion. The motion for summary judgment by the Police Defendants succeeds, and the action against them is dismissed.
Costs:
[63] Notwithstanding the fact that the Police Defendants were successful on the summary judgment motion, in the circumstances of the case, the Court is inclined not to award costs against Mr. Galalae. If the Police Defendants insist on pursuing costs against him, they may within 30 days make brief written costs submissions to the Court of no more than two pages, together with a costs outline and addressed to the Ottawa Trial Coordinator. The Plaintiff will have 30 days after service to reply in writing, again, of no more than two pages. All costs submissions shall comply with Rule 4.01 of the Rules of Civil Procedure.
[64] Order accordingly.
Mr. Justice Stanley J. Kershman
Released: June 11, 2014
COURT FILE NO.: CV-12-288-00
DATE: 2014/06/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KEVIN GALALAE
Plaintiff
– and –
KINGSTON POLICE SERVICES BOARD
PAULO GEMIGNANO, JOHN DOE, HOTEL DIEU HOSPITAL, DR. CHRISTINA ORR, DR. DAVID MURRAY
Defendants
REASONS FOR JUDGMENT
Kershman J.
Released: June 11, 2014