COURT FILE NO.: CV-13-333733-OT

DATE: 20151120

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER MERRIFIELD

Plaintiff

– and –

THE ATTORNEY GENERAL OF CANADA, INSPECTOR JAMES JAGOE, and SUPERINTENDENT MARC PROULX

Defendants

Ms. L. Young and Mr. J. Phillips, for the Plaintiff

Mr. S. Gaudet and Mr. J. Gorham, for the Defendants

HEARD: November 17,18 and 19, 2015

VALLEE J.

[1] The plaintiff brings a motion to re-open its case on the basis that an event has occurred in the time between the last trial sittings and this trial sittings. In his notice of motion, the plaintiff stated that he wished to call Commissioner Paulson and Commanding Officer White as witnesses regarding the event. The plaintiff states that the related evidence is relevant and material to his damages claim.

The Event

[2] On June 25, 2015, the plaintiff was at a training session relating to Insider Threat Awareness. The instructor brought up the subject of psychopaths and that they can be heads of large companies as well as people who commit serious crimes. The instructor asked if anyone could identify other psychopaths. Some attendees shouted out names. The plaintiff stated, “the Commissioner” and then immediately said that his comment was a joke. Another attendee, Constable Ktabi, took exception to the comment and prepared a written memo setting out the incident. He sent it to the Officer in Charge of INSET.

[3] The memo went to Commanding Officer White who called the Office for Co-ordination of Harassment Complaints and requested advice. The OCHC opened a file. The report was taken as a harassment complaint and began to advance through the harassment complaints procedure. Sergeant Merrifield was served with the memo on October 22, 2015 which was described as a formal harassment complaint. Subsequently, he was advised that the Commissioner wished to resolve the matter informally. The Commissioner required a written letter of apology with copies sent to all attendees at the training session.

[4] Staff Sergeant Kim Floyd, who is in his thirty-fifth year with the Staff Relations Representative program testified at the motion. He was the SRR liaison representative at the legislative reform initiative and had a role in developing the new harassment policy. Sergeant Merrifield approached him about this matter. Staff Sergeant Floyd’s view was that the memo could not be a harassment complaint because it was prepared by a third party non-complainant. The policy does not permit this unless the complainant is himself unable to make the complaint for medical reasons and provides written authorization for the third party to be his representative and make the complaint.

[5] Staff Sergeant Floyd stated that he spoke with Chief Superintendent Michael O’Rielly on Friday November 13, 2015, one business day prior to the continuation of this trial. They both agreed that the memo could not be a harassment complaint.

[6] Chief Superintendent O’Rielly, whose area of responsibility includes the OCHC, testified at the motion that Constable Ktabi’s complaint could not have been a harassment complaint for the same reasons given by Staff Sergeant Floyd. In this case, the complainant would have to be the Commissioner. He did not make a complaint. It appears that he did not authorize Constable Ktabi to do so on his behalf.

[7] Chief Superintendent O’Rielly stated that he discovered the error and advised someone of it. He would not say who he advised on the basis of solicitor-client privilege. Sergeant Merrifield was not notified of the error or told that there was no harassment complaint against him. Chief Superintendent O’Rielly testified that Sergeant Merrifield very likely heard of the error, from a person in a position of authority, for the first time, during Chief Superintendent O’Rielly’s testimony. This occurred two days ago, on November 18, 2015. Assuming this to be accurate, from October 22, 2015 until two days ago, Sergeant Merrifield has believed that a harassment complaint has been made against him and remains outstanding.

[8] Chief Superintendent O’Rielly stated that once a harassment claim is made and handled by the OCHC, a file is opened and the respondent’s name is entered into a database so that the OCHC can keep track of alleged harassers and identify specific numbers of incidents. Anyone looking in the database now would see that Sergeant Merrifield is the subject of a harassment complaint. Once an entry is made into the database, it is not removed. It can be amended to show that the incident was resolved.

[9] After the two witnesses gave evidence, the plaintiff stated that if his case were to be re-opened, it would not be necessary to call Commissioner Paulson and Commanding Officer White. He would be content to have the evidence of the two witnesses on the motion be read into his case.

The Test

[10] Regarding the test to re-open a case, the Attorney General referred me to Sagaz v. 671122 Ontario Limited, 2001 SCC 59. In this case, the trial judge declined to re-open a trial to admit fresh evidence on a motion brought after the release of reasons but before a formal judgment had been entered. The trial judge decided that had the evidence been presented at trial, it would not have changed the result. He also found that the evidence could have been obtained before trial if reasonable diligence had been used. The Supreme Court upheld the trial judge’s decision. The Attorney General also referred me to Scott v. Cook 1970 CanLII 331 (ON SC), [1970] 2 O.R. 769, another application to reopen a trial after reasons had been given but before judgment had been entered. In this case, the court found that the applicant must show that the evidence it seeks to introduce would probably have changed the result.

[11] I note that these cases are easily distinguishable on their facts. Here, there is no result yet. The trial has not been completed. The test cannot be whether the evidence sought to be introduced would have changed the result.

[12] The Attorney General also referred me to Gentiles v. City of Toronto, 2006 CanLII 7834. This was a motion to re-open a case during a jury trial. At issue were the standard practices and procedures of another defendant, Intelligarde, a company that provided security at a material time. The trial judge declined to re-open the plaintiff’s case partly because the evidence proposed to be given by the witnesses did not relate to the security guards that were involved in the matter. He stated that a properly directed jury would not be swayed by the evidence. On my reading of this case, the trial judge determined that the evidence was not material to the matter in dispute.

[13] The plaintiff referred me to Varcoe v. Pason, 2011 FC 467. This was another situation in which a motion to re-open to admit new evidence was brought after the trial concluded. In this case, though, the Reasons had not been released nor had the Judgment been entered. The court stated that since there was no result yet, the test was not whether the new evidence would change the result. Rather, the question to be considered was – is the evidence relevant? The plaintiff states that the test ought to go beyond mere relevancy. The court should consider whether the evidence sought to be introduced is material.

[14] I find that Varco correctly states the test to be applied in this particular situation with the plaintiff’s submission that in addition to being relevant, the evidence ought also to be material. Material evidence informs the decision of the trier of fact. This is essentially the test that the court applied in Gentiles when it stated that the jury would not be swayed by the evidence.

The Attorney General’s Position

[15] The Attorney General states that I must consider this new evidence as it relates to the existing claim. It must be assessed in light of the pleadings. This is not evidence relating to damages. It is a new, independent incident which, if it is going to form part of the trial, must be properly pleaded in order for the defendant to be able to respond to it. This is an incident that happened ten years after some of the other events occurred. It is something completely different. The pleadings do not provide a basis for the allegations.

Analysis

[16] With respect to the test to re-open the plaintiff’s case, both parties agree that the new evidence could not have been obtained prior to the plaintiff’s closing his case because the event did not occur until after the plaintiff’s case was closed.

[17] I do not agree with the Attorney General’s position that this is a new, independent incident and that the pleadings do not provide a basis for the allegations. The pleadings do not require amendment in order for the defendant to know the case that it has to meet. The Attorney General has known since the claim was issued that, in general terms, the plaintiff alleges that through a series of events in the workplace, in which unjustified decisions were made, he has been bullied and harassed. His reputation has been tainted and he has suffered damages. There is a basis in the pleadings for the plaintiff to allege that this mischaracterized harassment claim is another such event and that the evidence regarding how senior management dealt with this claim is another example of harassment. There is also a basis for the plaintiff to argue that it shows that his reputation continues to be negatively affected. His has now been entered into the harassment database and will remain there. Evidence of this event and how it was handled could have an effect on his damages.

[18] I find that the evidence of this event and how it was handled is clearly relevant. It could be material to the plaintiff’s damages in the event that he is successful at trial because it shows how senior management treated another issue involving Sergeant Merrifield. There is no trial unfairness that would result to the defendant by admitting this evidence. The defendant can call any witnesses that it chooses to give evidence regarding the event because the defendants’ case has not been closed. If the defendant wishes to have additional time to meet with and prepare witnesses or to examine the plaintiff for discovery, I am prepared to make a reasonable accommodation for that.

[19] In conclusion, the plaintiff’s case shall be re-opened and the evidence of Staff Sergeant Floyd and Chief Superintendent O’Rielly shall be read in to the plaintiff’s case.

VALLEE J.

Released: November 20, 2015