CITATION: Cassidy v. Belleville Police Service, 2015 ONSC 2506
BELLEVILLE COURT FILE NO.: CV-13-0253-SR
DATE: 2015/04/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paula Cassidy
Plaintiff
– and –
Belleville Police Service and Wayne Groen
Defendants
Steven Baldwin, for the Plaintiff
Kristin Muszynski, for the Defendants
HEARD AT BELLEVILLE: February 18, 2015
REASONS FOR JUDGMENT
KERSHMAN J.
Introduction:
[1] The Defendants bring a motion for summary judgment on the grounds that the Plaintiff’s claim was brought outside the limitation period, and is therefore statute barred.
[2] The Plaintiff brings a motion to strike the Defendants’ summary judgment motion based on the following grounds:
a) The motion is premised on inadmissible hearsay evidence;
b) It shields the Defendants from cross examination; and,
c) The affidavit conflicts with the Rules of Professional Conduct.
Factual Background:
[3] On August 18, 2009, the Plaintiff, Ms. Cassidy, was driving a 2005 Chevrolet Suburban when she was stopped in Belleville, Ontario, by Officer Groen of the Belleville Police Service.
[4] Officer Groen claims he had reasonable and probable grounds to believe that Ms. Cassidy was driving a stolen vehicle. It was subsequently discovered that the Plaintiff’s vehicle contained parts from a Florida vehicle, which had been stolen in Montreal.
[5] The vehicle was immediately impounded, pursuant to Officer Groen’s authority under the Criminal Code (R.S.C., 1985, c C-46). Criminal charges were laid against the owners of Performance Motors in Belleville, where the Plaintiff had purchased the vehicle.
[6] Ms. Cassidy was not arrested. She and her children were left to find their own way home. They also had to remove and transport their personal belongings from the vehicle.
[7] Later that evening, the Plaintiff experienced extreme pain in her abdomen and she began to bleed. She attended the hospital and was advised that she was at risk of a miscarriage. Ms.Cassidy claims that these medical complications were induced by the stressful encounter with Officer Groen.
[8] Ms. Cassidy wrote a letter of complaint to the Belleville Chief of Police, dated September 11, 2009, seeking an explanation of the events of August 18, 2009.
[9] Almost 18 months later, on June 23, 2011, Ms. Cassidy received a letter from the Belleville Chief of Police containing a public complaint investigation report prepared by the Belleville Deputy Chief of Police. The letter advised Ms. Cassidy that an investigation that had taken place and it was decided that the seizure of the vehicle was lawful. It was also decided that Ms. Cassidy was not treated in the manner that she should have been by Officer Groen.
[10] The Police Chief’s letter also indicated that if Ms. Cassidy was not satisfied with the decision, she had the right to request further review of her complaint by the Ontario Civilian Commission on Policing Services (“OCCPS”) within 30 days.
[11] On July 8, 2011, Ms. Cassidy requested a further review of her complaint by the OCCPS.
[12] On November 21, 2011, Ms. Cassidy received a letter from the OCCPS that determined that her complaint required further investigation. The Ottawa Police Service was to conduct the investigation.
[13] On November 29, 2012, Ms. Cassidy received correspondence from the Belleville Deputy Chief of Police indicating that the Ottawa Police Service found, among other things, that Officer Groen acted with lawful authority when he stopped the vehicle. It also concluded that Officer Groen fell short of proper policing standards in his treatment of Ms. Cassidy.
[14] Ms. Cassidy believed that she was badly treated on August 18, 2009, but claims that she had no means of determining whether the acts of the police officer were lawful, negligent, or constituted acts of misconduct, without making a complaint and receiving a response.
[15] Ms. Cassidy commenced her lawsuit on October 10, 2013.
[16] The two issues to be dealt with are as follows:
Should the Plaintiff’s motion to strike the Affidavit of Michael Swindley and the Summary Judgment Motion succeed?
Should the Defendant’s motion for Summary Judgment succeed?
Issue: Should the Plaintiff’s Motion to Strike the Affidavit of Michael Swindley and the Summary Judgment Motion Succeed?
Plaintiff’s Position:
[17] Ms. Cassidy argues that Mr. Swindley, a lawyer with Templeman Menninga LLP, counsel for the Defendants, swore an affidavit in support of this motion, which is the sole evidence in support of the motion for summary judgment. The Plaintiff alleges that Mr. Swindley’s affidavit is premised on hearsay, as he was never personally involved in the alleged events.
[18] The Plaintiff argues that the Defendants’ affidavit provides no information and does not provide the Plaintiff with the opportunity to cross-examine with respect to:
The initial and any further correspondence between the Plaintiff and a lawyer, Mr. Girard;
The Plaintiff’s correspondence with “two or three” other lawyers;
The Plaintiff’s complaint to the Belleville Chief of Police;
The response by the Belleville Chief of Police to the Plaintiff’s letter;
The OCCPS investigation;
The Belleville Deputy Chief of Police’s letter to the Plaintiff outlining the findings of the OCCPS investigation; and,
The OCCPS’s final report.
[19] The Plaintiff argues that Mr. Swindley’s affidavit does not include copies of the Belleville Deputy Police Chief’s letter to her, nor the OCCPS final report in support of their position. The Plaintiff argues that these necessary pieces of evidence demonstrate that, on the date of the incident, the Plaintiff did not have all of the material facts available to her.
[20] The Plaintiff further argues that the Defendants and the witnesses specified in Mr. Swindley’s affidavit should have provided their own affidavits so that they could be tested by cross-examination.
[21] Lastly, the Plaintiff argues that Rule 5.2–1 of the Rules of Professional Conduct does not permit a lawyer who appears as an advocate to testify or submit their own affidavit evidence before the Court. Therefore, the Court should draw an adverse inference from the Defendants’ failure to provide affidavit evidence based on the personal knowledge of witnesses.
Defendants’ Position:
[22] The Defendants argue that the evidence on a motion for summary judgment need not be the equivalent to evidence at trial. A documentary record, combined with the Court’s enhanced powers under Rule 20 can be sufficient to “resolve material issues fairly and justly” (See: Hryniak v. Mauldin, 2014 SCC 7, at para. 57).
[23] The Defendants argue that the record before the Court includes all of the facts necessary to dispose of the action against the Defendants.
[24] The Defendants argue that each party must put their “best foot forward” with respect to the existence or nonexistence of material issues to be tried. The Defendants further argue that the Court is entitled to assume that the record contains all of the evidence that would be available at trial (See: Hino Motors Canada Ltd. v. Kell, 2010 ONSC 1329 at para. 9).
Analysis:
[25] Rule 5.2-1 of the Rules of Professional Conduct, including the commentary, reads as follows:
5.2-1 A lawyer who appears as advocated shall not testify or submit their own affidavit evidence before the tribunal unless:
(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or (b) the matter is purely formal or uncontroverted.
[26] Mr. Swindley did not argue the motion; he cannot be said to be the counsel of record. Law firms often have affidavits taken by a lawyer or another person within the firm for use on a motion. In those circumstances, a different lawyer from the same firm usually argues the motion. That is what occurred here.
[27] The Court does not find anything in the Rules of Professional Conduct, or the Commentary, that would disallow Mr. Swindley from taking the affidavit as he did. Therefore, the Court does not find that there is any misconduct by Mr. Swindley in relation to him having taken the affidavit.
[28] In relation to the issue of the evidence on a motion for summary judgment, the Court agrees with the Defendants that the evidence does not have to be the equivalent standard of evidence that would be accepted in a trial. As indicated by Karakatsanis J. in Hryniak, at para. 57, documentary records combined with the Courts enhanced powers under Rule 20 can be sufficient to resolve the matter justly and fairly.
[29] In this case, the Defendants rely upon the following documentary evidence:
The Statement of Claim;
The Statement of Defence;
The Examination for Discovery of the Plaintiff; and,
A letter written by the Plaintiff to Peter Girard dated August 24, 2009.
[30] The Statement of Claim and Statement of Defence are pleadings in the action. The transcript of the Plaintiff’s examination for discovery is a court document. The August 24, 2009, letter is specifically referred to in the transcript and questions were asked about the letter during the examination for discovery. The Court is aware that the letter was not made an exhibit to the examination. The Court finds that not making the letter an exhibit was inadvertent; no adverse interference should be drawn because it was not made an exhibit.
[31] The Court finds that Mr. Swindley did not need to have personal knowledge in relation to those documents.
[32] The Court finds that, even if everything else in the affidavit was not with in Mr. Swindley’s personal knowledge, the aforesaid documents provide enough evidence for the Court to deal with this motion for summary judgment.
[33] Based on the aforesaid, the Plaintiff’s motion to strike the Defendants’ motion and Mr. Swindley’s affidavit is dismissed.
Issue: Should the Defendant’s Motion for Summary Judgment Succeed?
Plaintiff’s Position:
[34] The Plaintiff submits that when a cause of action arises and when a limitation period commences is a question of fact (See: Aguonie v. Galion Solid Material Inc., 1998 CanLII 954 (ON CA), 1998 CarswellOnt 417, at para. 29).
[35] The Plaintiff argues that, as a general rule, “a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the Plaintiff exercising due diligence” (See: Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, at para. 89).
[36] The Plaintiff submits that she required real knowledge of the wrongfulness of the Defendants’ conduct for the limitation period to commence (See: M.(K.) v. M.(H.), 1992 CarswellOnt 841, at para. 104). The Plaintiff argues that the OCCPS report established that Officer Groen had an obligation to assist victims of crime and therefore had a duty to look after the Plaintiff and her children.
[37] The Plaintiff relies on the following authorities: Queen v. Cognos Inc., 1993 CanLII 146 (SCC), 1993 CarswellOnt 801, at para. 56; and, Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, at para. 34.
[38] The Plaintiff argues that she could not have known what the officer’s requisite standard of care was, and whether his conduct fell below the standard of care until the decision was rendered by the OCCPS.
Defendants’ Position:
[39] The Defendants argue that there is no genuine issue requiring a trial (See: Rule 20. 04(2) Rules of Civil Procedure).
[40] The Defendants submit that in Hryniak, the Supreme Court of Canada held that there will be no genuine issue requiring a trial when the process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and, (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[41] The Defendants rely on s. 4 and 6 of the Limitations Act to argue that the Plaintiff’s claim is statute barred, as the Plaintiff’s knew or ought to have known of the circumstances giving rise to her claim approximately four years before the claim was commenced.
[42] The Defendants argue that the test for whether the Plaintiff ought to know that a proceeding would be an appropriate means of obtaining a remedy is an objective one. It is not based on the claimant’s familiarity with or ignorance of the law. The Defendants rely on Boyce v. Toronto (City) Police Services Board, 2011 ONSC 53 at paras. 23 to 24:
23 Section 5(1)(a)(iv) does not import an idiosyncratic limitation period calibrated by the claimant's familiarity with or ignorance of the law. The test is an objective one. While it is possible to envisage that a new kind of right might arise that has not been hitherto protected, thus making it arguable that a civil proceeding might not be seen objectively as an appropriate means to seek to remedy, a battery causing personal injury is a classic example of the kind of wrong that is appropriate for redress by court action. A citizen is presumed to know the law of the land.
24 The statutory presumption is that the plaintiff knew he had a claim on September 30, 2004, and there is no evidence that rebuts the presumption.
[43] The Defendants submit that on the day of the incident, the Plaintiff knew: the identification of the parties, that she experienced humiliation, and that she required medical attention in hospital. The Defendant argues that, on this basis, the limitation period began to run on August 18, 2009.
[44] The Defendants submit that, in the alternative, the limitation period should commence on August 24, 2009, at the latest. This is when the Plaintiff documented her intention to commence a civil proceeding against the Defendants, in the letter to Mr. Girard, a lawyer.
[45] The Defendants argue that the Plaintiff’s public complaint and the resulting investigation did not extend the limitation period. The Defendants rely on the cases of: Tender Choice Foods Inc. v. Versa Wld Logistics Canada Inc. 2013, ONSC 80, at para. 57; and, Barry (Litigation Guardian Of) v. Pye, 2014 ONSC 1437, at para. 22.
Analysis:
[46] Section 4 of the Limitations Act, 2002, states that a Plaintiff shall not commence a proceeding after the second anniversary of the day on which the claim was discovered:
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.
[47] A claim is discovered when the person first knew or ought to have known that the damaged complained of was caused or contributed to by an act or omission of the person against whom the claim is made, and that a legal proceeding would be an appropriate means to remedy the wrong:
- (1) A claim is discovered on the earlier of,
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2).
[48] As noted in Boyce v. Toronto (City) Police Services Board, at paras. 23 to 24, a citizen is presumed to know the law of the land. The start of a limitation period will not be delayed because of a Plaintiff’s lack of familiarity with or ignorance of the law. The test is an objective one.
[49] Based on the statutory presumption, the Plaintiff is presumed to have known of these matters on the date that the act or omission took place, being August 18, 2009. The Plaintiff may provide evidence to satisfactorily rebut that presumption; however, on the facts of this case, there is no evidence to satisfactorily rebut that presumption.
[50] The Court finds that, by August 24, 2009, at the latest, the Plaintiff was aware that she may have a cause of action. In her letter to Mr. Girard, with the same date, she stated:
I understand that you are representing Terry Albert/Performance on this matter, and that I am merely augmenting his case with my incident. Because this all seems so absolutely ‘nuts’, and because of the implications with this incident on my own personal life/health/dignity/rights – I wondered whether I should also pursue civil action. I realize that this is not what you do, but whatever suggestions you could make in regards to probability of success/choice of lawyer etc. – would be greatly appreciated.
[51] Further, there is evidence that the Plaintiff was concerned about potential implications for Performance Motors, the company that sold the vehicle to the Plaintiff and/or her husband, if she started a civil action, as the owners of the company were also friends. The Court finds that the Plaintiff could not delay the start date of the limitations period because of her concerns for the wellbeing of a third party to her claim.
[52] The Court finds that the limitations clock started on August 24, 2009, at the latest, and ran to August 24, 2011. The Plaintiff did not commence her action until October 10, 2013. Therefore, the Court finds that the Plaintiff commenced her claim out of time; it is statute barred.
[53] Based on the aforesaid reasoning, the Court finds that there is no genuine issue requiring a trial.
[54] The Court grants the Defendants’ motion for summary judgment and dismisses the Plaintiff’s motion to strike.
Costs:
[55] Both parties have provided cost outlines. The Defendants were successful on the motion and are entitled to their costs. The Defendant provided a costs outline seeking costs on a partial, substantial and full indemnity basis. This Court finds that there is nothing to justify costs on a full or substantial indemnity basis. Therefore costs will be granted on a partial indemnity basis.
Cost Factors:
[56] The Court has reviewed the cost factors set out in Rule 57 of the Rules of Civil Procedures.
[57] This proceeding was of moderate complexity. The issues were important to each party, due to this being a motion for summary judgment.
[58] The Court does not find that there was conduct on the part of either party that unnecessarily lengthened the proceedings. Nor does the Court find that either party did anything that was improper, vexatious or unnecessary.
[59] The Court finds that the unsuccessful party cost reasonably have expected to pay $10,000.00 plus HST for a total of $11,300. Therefore, notwithstanding the claim by the Defendants for partial indemnity costs of $15,604.00, the Court assesses the Defendants’ costs, excluding disbursements, at $11,300, inclusive of HST.
Disbursements:
[60] The Court is satisfied with the disbursements claim of $1,436.80, inclusive of HST, and will allow that claim in full.
[61] The total amount of costs assessed are $12,736.80 inclusive of disbursements and HST.
[62] The costs are payable by the Plaintiff at the rate of $1,500.00 per month, payable on the first day of each month from May 1, 2015, until paid in full.
[63] Order accordingly.
Mr. Justice Stanley Kershman
Released: April 17, 2015
CITATION: Cassidy v. Belleville Police Service, 2015 ONSC 2506
BELLEVILLE COURT FILE NO.: CV-13-0253-SR
DATE: 2015/04/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paula Cassidy
Plaintiff
– and –
Belleville Police Service and Wayne Groen
Defendants
REASONS FOR JUDGMENT
KERSHMAN J.
Released: April 17, 2015