ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-17981

DATE: 20150728

BETWEEN:

Mihail Kolosov, Andrei Kolosov also known as Andrei Kolasau, and Alena Kolasava

Plaintiffs/Responding Parties

– and –

Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle, Casey Findlay, Windsor Police Services Board, Gary Smith, former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury, Staff Sgt. Alan Brown, Belleville Police Service Board, Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo, Constable Jeff Ling, Detective Constable Paul Josefik and Her Majesty The Queen in Right of the Province of Ontario as represented by the Attorney General of Ontario

Defendants/Moving Parties Belleville Police Service Board

Raymond G. Colautti, for the Plaintiffs

Tom Galligan, for the Defendants, Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle and Casey Findlay

Sheila Handler, for the Defendants, Windsor Police Services Board, Gary Smith, former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury and Staff Sgt. Alan Brown

Wilfrid Menninga, for the Defendants, Belleville Police Service Board, Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo, Constable Jeff Ling and Detective Constable Paul Josefik.

HEARD: May 25, 2015

VERBEEM J.:

[1] This is a motion to strike several paragraphs from an affidavit filed by the plaintiffs as responding parties to a motion for summary judgment motion brought by the defendants, Belleville, McMullan, Kanyo, Ling and Josefik (the Belleville defendants).

[2] In the action, the plaintiffs claim damages arising out of acts which they say constitute negligent investigation, malicious prosecution, false imprisonment, and breaches of their Charter rights.

[3] The plaintiffs allege that in March 2010, a retail outlet known as “Lowe’s” was victimized by a number of fraudulent credit card purchase orders whereby perpetrators would place large dollar orders for goods over the telephone and arrange for in-store pick-up of the items. The orders were placed through various Lowe’s facilities throughout Ontario, including Windsor and Belleville.

[4] The plaintiffs allege that in March 2010 Mihail Kolosov, with the assistance of his then teenaged son, Andrei, operated a small one-truck delivery business out of the Toronto area. They say that from March 9 – March 13, 2010, Mihail received several calls from two individuals who requested that Mihail attend at the Lowe’s store in Windsor and the Lowe’s store in Belleville to pick up goods that had already been paid for, and transport the goods to a prescribed location for a fee. He picked up two such orders in Belleville during that time.

[5] The plaintiffs contend that on March 13, 2010, at the request of one of these individuals, Mihail and Andrei attended a Lowe’s store in Windsor to pick up orders that were already paid for. While at the store, Windsor Police arrived and placed them both under arrest. They were charged with the indictable offence of attempting to defraud Lowe’s of goods of a value exceeding $5,000 by deceit, falsehood or other fraudulent means.

[6] They allege that after they were arrested they were held in custody and not released on bail until April 10, 2010. Upon their release, they were immediately arrested in Windsor by a member of the Belleville Police Services, pursuant to a valid arrest warrant executed by a Justice of the Peace, and charged with the indictable offence of having in their possession goods in excess of the value of $5,000, knowing that the property was obtained by fraud. This charge related to the orders they picked up in Belleville. Subsequent to their arrest, they were taken into custody by the Belleville Police, transported back to Belleville and held pending a show cause hearing.

[7] The plaintiffs deny that they were culpable in the underlying fraud operation. They deny that they had knowledge of that operation or knowledge that the goods they were picking up at any of the Lowe’s outlets were procured by fraud. Eventually the charges against Mihail and Andrei were withdrawn by the prosecuting Crown attorneys in November 2010.

[8] The plaintiffs allege that the internal loss prevention investigation conducted by Lowe’s, and the criminal investigation conducted by the Windsor Police, were “deeply intertwined” with the investigation conducted by the Belleville police, each of which was severely flawed and prejudicial. They claim to have suffered significant pecuniary and non-pecuniary losses as a result of the alleged tortious conduct of all defendants and the unconstitutional conduct of members of the Windsor and Belleville Police Services.

[9] In December 2014, the Bellville defendants brought a motion for summary judgment returnable on May 25, 2015 on the grounds that, at the time the plaintiffs were arrested by a member of the Belleville Police, there were reasonable and probable grounds for the arrest. Accordingly the claim for negligent investigation does not require a trial in order to dispose of it on its merits.

[10] They further rely on a number of statutory defences, including an assertion that the plaintiffs’ claim was asserted more than two years after it was discoverable and accordingly, it is barred by operation of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[11] In April 2015 the plaintiffs delivered a responding parties’ motion record. That record did not contain affidavit evidence from any of the plaintiffs. Instead, they delivered a 136 paragraph, 39 page affidavit sworn by J.J. Avery on April 15, 2015.

[12] Ms. Avery is a lawyer. She acted for the plaintiffs with respect to the criminal charges that were laid against them by Windsor Police Services and Belleville Police Services.

[13] Ms. Avery does not have first-hand knowledge of the transactions that led to the plaintiffs picking up goods from Lowe’s outlets in March and April 2010 nor the factual transactions and occurrences that formed the subject matter of the charges against the plaintiffs.

[14] However, in her April 2015 affidavit, Ms. Avery gave evidence relating to those transactions and occurrences under the guise of providing a summary of the content of the evidence given by Mihail and Andrei in their examinations for discovery in this proceeding. She appended transcripts of their examinations for discovery as exhibits to her affidavit.

[15] She also gave evidence with respect to the historical details of the fraudulent credit card purchases at Lowe’s, the nature and details of the fraudulent orders, the nature and extent of Lowe’s internal investigation into the fraudulent orders and internal directives given to Lowe’s employees in response to the fraudulent orders. Ms. Avery has no first-hand knowledge of these matters. Her evidence in that regard is informed by the evidence given by two Lowe’s employees, Fralick and Findlay, at their respective examinations for discovery in this proceeding.

[16] Ms. Avery also gave evidence with respect to what she describes as the negligence of Lowe’s employees. In doing so, she quoted from internal Lowe’s employee witness statements that were eventually provided to a Belleville police officer and her views as to what inferences ought to have been drawn from the narratives set out in the statements.

[17] Ms. Avery gave evidence with respect to a change in Lowe’s Loss Prevention Policy that was implemented after the fraudulent credit card orders outlined above. She does not have first-hand information with respect to that change in policy. Her information in that regard comes from her review of answers to Written Questions for Discovery given by a representative of the Lowe’s defendants.

[18] Ms. Avery also gave evidence with respect to the alleged “negligence” of the Belleville Police. In that portion of her evidence she references evidence given by Constable Josefik at his examination for discovery and evidence given by Mihail and Andrei in their examinations for discovery.

[19] She also criticizes and discounts portions of the affidavit sworn by Constable Josefik in support of the Belleville Police defendants’ motion for summary judgment. She recounts her first-hand experience with the Windsor and Belleville Police during the course of her representation of Mihail and Andrei after they were charged.

[20] Ms. Avery also deposed to a chronology of the progression of the Windsor and Belleville criminal proceedings against Mihail and Andrei from the time she was retained to the time the charges against them were withdrawn. The chronology is generally comprised of events with which she was directly involved.

[21] The moving parties did not cross-examine Ms. Avery on her affidavit; instead they brought this motion to strike approximately 80 of the 139 paragraphs of Ms. Avery’s affidavit. They state that the majority of Ms. Avery’s evidence is inadmissible because portions of her April 2015 affidavit:

i) contain inadmissible opinion evidence;

ii) contain hearsay evidence based on inadmissible and/or unidentified sources;

iii) concern matters that are irrelevant to the issues to be decided on the summary judgment motion;

iv) improperly constitute argument; and

v) contain prejudicial and scandalous hearsay.

[22] The motion to strike was returnable together with the motion for summary judgment on May 25, 2015. Portions of the summary judgment motion based on statutory defences to which Ms. Avery’s affidavit is not relevant were argued on that date and resulted in a consent order dismissing the action against McMullan and Ling. The balance of the summary judgment motion is scheduled to be heard August 20, 2015.

The Plaintiffs’ Request to Dismiss the Motion to Strike

[23] Counsel for the plaintiffs submitted that the notice of motion to strike is deficient because the moving parties failed to identify the precise portions of individual paragraphs which they allege ought to be struck. Instead, they request that whole paragraphs be excised for generally stated reasons. The plaintiffs and the court are left to guess what portion of the evidence the moving parties submit is inappropriate. Accordingly, the plaintiffs submit the motion should be dismissed for lack of specificity. I disagree.

[24] The notice of motion to strike does not detail each specific deficiency related to each of the 80 paragraphs which are said to be improper. The factum delivered in support of the motion to strike does identify categories of deficiencies that are said to be common amongst a number of different paragraphs in the affidavit and does set out, in chart form, the categorical reasons that the moving parties object to each of the paragraphs that are contentious.

[25] I am satisfied that the materials filed by the moving parties in support of the motion to strike are sufficient to identify the portions of the affidavit that they allege ought to be struck and the specific grounds that they assert justify striking each of the paragraphs they have identified.

The Revised Avery Affidavit

[26] In an effort to address the issues raised by the moving parties in the motion to strike, the plaintiffs delivered a fresh affidavit from Ms. Avery dated May 20, 2015, with the stipulation that the exhibits from the April 15, 2015 affidavit remain in evidence.

[27] Counsel for the moving parties submits that while some of their concerns were alleviated through the revised Avery affidavit, the majority of her evidence remains objectionable.

[28] In raising their objections to the content of the Avery affidavit, the moving parties rely on the following principles:

i) An affidavit must be confined to statements of fact within the personal knowledge of the deponent or to other evidence the deponent could give if testifying as a witness in court unless otherwise provided by the Rules: see r. 4.06(2);

ii) An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of that information and the fact of that belief are specified in the affidavit: see r. 39.01(4);

iii) Improper hearsay, argument and irrelevant information should not be contained in an affidavit. Legal arguments belong in a factum not an affidavit. Legal submissions in an affidavit should be struck: see Chopik v. Mitsubishi Paper Mills Ltd. (2002), 26 C.P.C. (5th) 104, 2002 CarswellOnt 2336 (ONSC), at para. 26;

iv) Offensive allegations made for the purpose of prejudicing another party and inflammatory rhetoric directed at a party are scandalous and should also be struck: see Chopik at para. 26;

v) Where it is clear in law that evidence is inadmissible, to leave the evidence on the record is embarrassing and prejudicial to the fair hearing of the motion or application: see Chopik at para. 26;

vi) The court may expunge all or part of a document, with or without leave to amend, on the ground that the document: may prejudice or delay the fair trial of the action; is scandalous, frivolous or vexatious; or is an abuse of process of the court: see r. 25.11;

vii) Opinion evidence is generally inadmissible except from a properly qualified expert who serves a report in compliance with r. 53.03(2.1) and acknowledges a duty to provide evidence that is: fair, objective and non-partisan; to provide an opinion to the court that is fair, objective and non-partisan; and to provide such additional assistance as the court may reasonably require to determine a manner in issue: see r. 4.1.01.

[29] Although the plaintiffs do not challenge these principles, they do challenge the suggestion that the contents of the Avery affidavit offend these principles.

[30] I will deal with the contentious portions of the affidavit by dealing with the moving party’s objections on a categorical basis.

(continued verbatim in full through paragraph [145] exactly as in the provided HTML)

Original signed “Verbeem J.”

Gregory J. Verbeem
Justice

Released: July 28, 2015

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Mihail Kolosov, Andrei Kolosov also known as Andrei Kolasau, and Alena Kolasava

Plaintiffs

– and –

Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle, Casey Findlay, Windsor Police Services Board, Gary Smith, former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury, Staff Sgt. Alan Brown, Belleville Police Service Board, Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo, Constable Jeff Ling, Detective Constable Paul Josefik and Her Majesty The Queen in Right of the Province of Ontario as represented by the Attorney General of Ontario

Defendants

REASONS ON MOTION FOR SUMMARY JUDGMENT

Verbeem J.

Released: July 28, 2015