ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-CV-493407
DATE: 20141124

BETWEEN:

DAMEIAN MUIRHEAD and CHANTAL MUIRHEAD
Plaintiffs

– and –

YORK REGIONAL POLICE SERVICES BOARD, YORK REGIONAL POLICE, CHIEF ERIC JOLLIFFE, DEPUTY CHIEF BRUCE HERRIDGE, DEPUTY CHIEF THOMAS CARRIQUE, JASON FRASER, SUPERINTENDENT ANTHONY CUSIMANO, DETECTIVE JEFF TAYLOR, INSPECTOR RUSSELL BELLMAN, DETECTIVE JAMES McROBBIE, and RHEAL DUGUAY
Defendants

Munyonzwe Hamalengwa for the Plaintiffs

Kevin McGivney and Natalie Kolos for the Defendants York Regional Police Services Board, York Regional Police, Chief Eric Jolliffe, Deputy Chief Bruce Herridge, Deputy Chief Thomas Carrique, Jason Fraser, Superintendent Anthony Cusimano, Detective Jeff Taylor, Inspector Russell Bellman and Detective James McRobbie

HEARD: November 19, 2014

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] The Plaintiffs Dameian Muirhead and Chantal Muirhead are black police officers employed by the Defendant York Regional Police. I shall refer to Mr. Muirhead as Constable Muirhead and to Mrs. Muirhead as Constable Chantal Muirhead. It is necessary to mention their race because unproven allegations of racism, discrimination, malice, and bias are the fundamental ingredients of this action.

[2] The Defendants, save one, Rheal Duguay, bring a motion to have the Muirheads’ action, which claims $10 million in general damages and $5 million in punitive damages, struck out because they submit that the Superior Court does not have jurisdiction to deal with what is a labour relations matter governed by the Police Services Act, R.S.O. 1990, c. P.15 and the collective agreement between the York Regional Police and the York Regional Police Association, of which the Muirheads are members.

[3] Relying on the principle from Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, the Defendants submit that the tort jurisdiction of the Superior Court has been ousted.

[4] The Defendants, save Mr. Duguay, also submit that Constable Chantal Muirhead has not pleaded a reasonable cause of action and, therefore, her action should be struck out. The Defendants also challenge various aspects of the Statement of Claim on technical grounds.

[5] For the reasons that follow, I strike the Muirheads’ Statement of Claim with leave to Constable Muirhead to plead a claim in misfeasance in public office, the constituent elements of which are: (1) the defendant is a public official or public authority; (2) the defendant engaged in deliberate unlawful conduct in his, her, or its capacity as a public official or public authority; (3) the defendant had a culpable mental state; namely the public official or public authority was aware that: (a) the conduct was unlawful, and (b) that the conduct was likely to harm the plaintiff; (4) the conduct caused the plaintiff harm; and, (5) the harm is compensable under tort law.

[6] See Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Freeman-Maloy v. Marsden, (2006), 2006 9693 (ON CA), 79 O.R. (3d) 401 (C.A.), rev’g (2005), 2005 14319 (ON SC), 253 D.L.R. (4th) 728 (S.C.J.), leave to appeal to the S.C.C. ref’d [2006] S.C.C.A. No. 201; Reynolds v. Kingston (City) Police Services Board, 2007 ONCA 166, [2007] O.J. No. 900 (C.A.), rev’g (2006), 2006 16837 (ON SCDC), 267 D.L.R. (4th) 409 (Ont. Div. Ct.) restoring [2005] O.J. No. 3503 (Master); Martineau v. Ontario (Alcohol and Gaming Commission), [2007] O.J. No. 1141 (C.A.); Roncarelli v. Duplessis, [1950] S.C.R. 121.

[7] As currently pleaded, Constable Muirhead’s claim is a discipline dispute for which the court’s jurisdiction has been ousted; however, it may be that he will be able to plead the material facts for a dispute that is about misfeasance in public office, which is an abuse of power dispute that must be adjudicated by a Superior Court. It may be that the material facts of the circumstances of Constable Muirhead’s claim have crossed the line from being an employment relations dispute, which must be adjudicated by an arbitrator, to a dispute about abuse of power, bigotry, and racism by a public official or public authority against a citizen who happens to be an employee.

[8] I hasten to emphasize that I am not deciding that Constable Muirhead will be able successfully to plead the constituent elements of a misfeasance in public office claim that will survive another jurisdictional challenge. I am rather striking his current pleading as against the Defendants and granting him leave to try to plead a misfeasance in public office claim that would be something different than a discipline dispute governed by the legislative scheme for Constable Muirhead’s employment relationship with the York Regional Police and the York Regional Police Association.

[9] It should be noted that the Defendants’ motion to strike does not affect the action against Mr. Duguay, and, therefore, Constable Muirhead may note Mr. Duguay in default of delivering a defence, and Constable Muirhead may advance the claim against Mr. Duguay relying on the current Statement of Claim.

... (continues verbatim with all paragraphs exactly as in the source) ...

Perell, J.

Released: November 24, 2014

COURT FILE NO.: 13-CV-493407
DATE: 20141124

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

DAMEIAN MUIRHEAD and CHANTAL MUIRHEAD
Plaintiffs

– and –

YORK REGIONAL POLICE SERVICES BOARD, YORK REGIONAL POLICE, CHIEF ERIC JOLLIFFE, DEPUTY CHIEF BRUCE HERRIDGE, DEPUTY CHIEF THOMAS CARRIQUE, JASON FRASER, SUPERINTENDENT ANTHONY CUSIMANO, DETECTIVE JEFF TAYLOR, INSPECTOR RUSSELL BELLMAN, DETECTIVE JAMES McROBBIE, and RHEAL DUGUAY
Defendants

REASONS FOR DECISION

PERELL J.

Released: November 24, 2014