ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 5479/12
DATE: 2015/09/04
B E T W E E N:
Michael Farkas
Margaret A. Hoy, for the Plaintiff
Plaintiff
- and -
Niagara Regional Police Service Regional Municipality of Niagara Police Service Board, Paul Zarafonitis, Employee of the Niagara Regional Police Service
Stephen Chisholm, for the Defendants
Defendants
Jeremy Glick, for the non-party,
The Special Investigations Unit
HEARD at Welland, Ontario:
September 1, 2015
The Honourable Justice P. R. Sweeny
ENDORSEMENT
[1] This is a motion made by the plaintiff for production of records from The Special Investigations Unit (“SIU”), a non-party, under Rule 30.10 of the Rules of Civil Procedure.
[2] This is a claim made by the plaintiff for damages for negligence, assault, and breach of the Charter arising out of an incident which occurred on May 19, 2012. The plaintiff alleges that he was assaulted by Constable Paul Zarafonitis of the Niagara Regional Police Service. The assault occurred outside the Kool Katts Caribbean Restaurant.
[3] Initially, the plaintiff was charged but the charge was withdrawn. There was an investigation conducted by the SIU as a result of the incident. Constable Zarafonitis was charged and pled guilty to assault.
[4] The plaintiff seeks production of the full SIU file under Rule 30.10.
[5] The rule states:
30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,
(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.
[6] Once relevance is established, then the moving party must demonstrate it would be unfair to proceed to trial without the production. In Ontario (Attorney General) v. Stavro, 1995 3509 (ON CA), 26 O.R. (3d) 39, the Court outlined the factors to be considered by the motion judge as follows:
The importance of the documents in the litigation;
Whether production at the discovery stage of the process, as opposed to production at trial, is necessary to avoid unfairness to the appellant;
Whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and, if not, whether the responsibility for that inadequacy rests with the defendants;
The position of the non-parties with respect to the production;
The availability of the documents or their informational equivalent from some other source which is accessible to the moving parties; and
The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.
[7] In this case, the SIU has outlined all the documents in its possession as Exhibit “C” to the affidavit of Joseph Martino. It has also outlined its position with respect to each of the records. There are 123 records in total. Of the 123, it is asserted that a certain number are not relevant and need not be produced. These documents, 6 to 10, 32 to 36, 38 to 39, 41 to 47, and 75 are acknowledged by the plaintiff as irrelevant and need not be produced. In addition, there are certain documents which the SIU has in its possession which are documents of the defendant Niagara Regional Police Service. These are documents 48 to 66, 114, and 120 to 122. Upon consent of the defendants, these documents will be produced.
[8] In addition, the SIU has agreed to provide the witness statements for civilian witnesses who have consented to the disclosure. These individuals are the plaintiff, his wife, Harley Davidson and Cedia Francis. Therefore, the SIU has agreed to produce documents 3, 4, 5, 11, 14, 67, 68, 70, 71 with redactions, 72 to 74, 76, 79 to 87 with redaction, 88, 92, 94, 95, 96, 116, 117 and 118.
[9] The remaining documents in issue are the civilian witness statements and police witness statements.
[10] The SIU takes the position that the plaintiff has failed to establish the necessity of obtaining these documents to ensure a fair trial. The SIU points to the circumstances surrounding obtaining the statements which includes a commitment to confidentiality given to the civilian witnesses. With respect to the police officers, the police officers are obligated by law to respond. The police officers were asked and did not consent to the release of their statements.
[11] The plaintiff says that he needs them to prosecute the action. He asserts that because the SIU already has the statements they should be provided to him and he will not be required to incur the additional investigative expense. It would be a more cost effective method of obtaining the information. He also asserts he has limitations as a result of the injuries sustained such that he will find it difficult to gather the information himself.
[12] The SIU has provided the names of the witnesses and the plaintiff is free to seek to interview witnesses or obtain their consent to release the information that they have provided. There is no evidence the plaintiff has taken any steps to do so. With respect to the civilian witnesses, they gave statements to the police for the purposes of the SIU investigation. They were assured some confidentiality. With respect to the police officers, as noted by Boswell J. in Pelletier v. Her Majesty the Queen in Right of the Province of Ontario and Robin Moore, (Unreported May 21, 2013), a police officer has an obligation to cooperate with an SIU investigation:
“But even so, one can easily imagine the chilling effect that compelled production would have – particularly in the police culture – if statements given in confidence to the SIU were too readily made available to parties to a civil action, or otherwise. The work of the SIU is important to maintaining public confidence in policing and, more generally, the justice system on the whole. I am not suggesting that there are never circumstances where production would be appropriate. …”
[13] In this case, the plaintiff has failed to provide evidence that he has made any real effort to obtain evidence with respect to this claim. The plaintiff has identified two witnesses to whom he has spoken with respect to the incident. In addition, there are the witnesses Davidson and Francis, together with the plaintiff and his wife. If efforts are made to contact the other witnesses identified by the SIU, additional witnesses would likely be forthcoming.
[14] The SIU points out that it is a case for the breach of the Charter and assault. Given the guilty plea for assault, liability appears to be fairly well established. With respect to the issue of damages, the plaintiff will establish his personal injuries through his evidence and medical reports. With respect to the punitive damages, witnesses are available.
[15] The plaintiff has an obligation to take steps to prove his case. While the plaintiff himself may have difficulty conducting an investigation, he can get assistance. It is not appropriate to simply rely on the SIU investigation to provide the information in the civil case. As Matheson J. stated in Chiarella v. Simon, [2007] O.J. No. 401, at para. 14, the SIU “is not an information collection agency for individuals in civil actions”.
[16] In all the circumstances, I am not satisfied that the production of the witness statements of the civilian witnesses who have not provided their consent or the police officers are necessary and that it would be unfair for the plaintiff to proceed to trial without them. The motion insofar as it relates to those documents is dismissed.
[17] If the parties are unable to agree upon costs, submissions may be made in writing by the SIU within two weeks of this date, limited to three pages, with a Bill of Costs, with a response by the plaintiff within two weeks thereafter, limited to three pages, with a Bill of Costs.
Sweeny J.
Released: September 4, 2015
COURT FILE NO.: 5479/12
DATE: 2015/09/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michael Farkas
Plaintiff
- and –
Niagara Regional Police Service Regional Municipality of Niagara Police Service Board, Paul Zarafonitis, Employee of the Niagara Regional Police Service
Defendants
ENDORSEMENT
Sweeny J.
Released: September 4, 2015