COURT FILE NO.: 3165-14
DATE: 20151120
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paul Pilon, Plaintiff
AND:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, The Greater Sudbury Police Services Board, Paul Rintala, Mark Kovala, Todd Gascon, Jeff Lock, Tim Burtt and Dan Markiewich, Defendants
BEFORE: The Honourable Mr. Justice John S. Poupore
COUNSEL:
Paul Pilon, acting in person
Michael C. Birnie, for the defendants The Greater Sudbury Police Services Board, Paul Rintala, Mark Kovala, Todd Gascon, Jeff Lock, Tim Burtt and Dan Markiewich
HEARD: November 10, 2015
ENDORSEMENT on motion
[1] The plaintiff Paul Pilon filed a Statement of Claim on April 7, 2014, claiming general damages against the Greater Sudbury Police Services Board (“the Board”), Paul Rintala, Mark Kovala, Todd Gascon, Jeff Lock, Tim Burtt and Dan Markiewich. The individual defendants were at all relevant times employed as police officers with the Board.
[2] The plaintiff’s claim for damages are said to have arisen from two arrests on July 4, 2010, and April 10, 2012.
[3] At the commencement of the hearing of the motion, the plaintiff agreed that any of his claims arising out of the 2010 arrest were statute barred by virtue of the Limitations Act. As a result, the plaintiff also agreed that the action against Dan Markiewich be dismissed without costs. An order for that dismissal shall issue.
[4] The police defendants move for summary judgment dismissing the plaintiff’s action and in the alternative an order striking out the Statement of Claim without leave to amend.
[5] One of the grounds for the motion is that the plaintiff’s action is frivolous, vexatious or an abuse of process.
[6] The Statement of Claim consists of some 120 paragraphs. It lists claims for nine intentional torts as well as six Charter breaches. A shot gun approach to say the least. The claim, although somewhat structured, consists of a number of ramblings which at times are not understandable.
[7] The plaintiff complains that his arrest and detention on the charge of criminal harassment was without cause and resulted in his unwarranted detention.
[8] The fact that the charge was resolved by peace bond and that his detention pending a bail hearing was imposed by a judicial officer makes much of the claim frivolous if not vexatious.
[9] Damages in the action are claimed for the torts of false arrest, false imprisonment, defamatory libel, invasion of privacy, trespass to chattels, malicious prosecution, misfeasance in public office, negligent investigation, and intentional inflection of mental distress. Damages are also claimed under s. 24(1) of the Charter for alleged breaches of ss. 6(2)(b), 7, 8, 9, 11(b), 11(d), and 15.
[10] The defendant Board and individual defendants bring this motion under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for summary judgment dismissing all or part of the plaintiff’s claims and/or striking out the Statement of Claim without leave to amend under rr. 21 and 25.
[11] I intend to deal with each tort claim in order and thereafter the claim for Charter breaches.
False Arrest
[12] This tort is dealt with in paragraphs 9 to 14 of the Statement of Claim. The basis of the plaintiff’s claim as best can be made out is an allegation that Constable Rintala, who at the time was a complainant in the subject matter, made false statements. There are no facts pled that Constable Rintala arrested the plaintiff.
[13] This claim raises no genuine issue for trial.
False Imprisonment
[14] The plaintiff states that his detention was legally unjustified and that the defendants lacked reasonable and probable grounds. However, while assisted by counsel, the plaintiff consented to a peace bond. This demonstrates there were reasonable and probable grounds for the police action.
[15] This claim raises no genuine issue for trial.
Defamatory Libel
[16] The plaintiff relies on police notes obtained through Crown disclosure. The officers were relying on information they located on their Niche RMS data bank. It is not pled that the officers were the source of the information. The plaintiff pleads that the information was untrue. It is clear that what the police officers found during the course of their computer search had to form part of their report as it was part of their duty to do so.
[17] If the Crown disclosure was defamatory the police actions were clearly an innocent dissemination of the information.
[18] This claim raises no genuine issue for trial.
Invasion of Privacy
[19] An examination of the paragraphs in the Statement of Claim purporting to support a claim for damages for this tort discloses that the police officers in question were performing their duties. The search was conducted incident to an arrest and under a search warrant which was not challenged in the criminal proceedings.
[20] This claim raises no genuine issue for trial.
Trespass to Chattels
[21] The search complained of by the plaintiff was done pursuant to an unchallenged warrant. An examination of the facts pled by the plaintiff does not raise a genuine issue for trial.
Malicious Prosecution and Negligent Investigation
[22] The case law is clear. In order for the plaintiff to succeed under these torts he must establish:
The prosecution was initiated by the defendant;
The prosecution terminated in favour of the plaintiff;
The prosecution was undertaken without probable cause; and
The prosecution was motivated by malice or a primary purpose other than that of carrying the law into effect.
[23] The outcome of the criminal harassment charge was his entering into a peace bond. He was represented by counsel and agreed to the terms of the bond. This outcome would preclude the plaintiff from succeeding in his claim under these torts. No genuine issue for trial is raised under these torts in the Statement of claim.
Misfeasance in Public Office
[24] The facts pled by the plaintiff in support of this claim fail to demonstrate that the defendant’s conduct was deliberate and unlawful while acting in their capacity of public officers nor does it demonstrate that their conduct was unlawful and was likely to harm the plaintiff. No genuine issues for trial are raised under the plaintiff’s claims for these torts.
Intentional Infliction of Mental Distress
[25] The plaintiff has failed to set out in a clear and concise manner the basis of this claim. He does not plead that the conduct of the officers was calculated to harm him or in fact caused him to suffer any visible and provable illness.
[26] No genuine issue for trial is raised in the pleadings for this tort.
Charter Breaches
[27] The fact that the plaintiff entered into a peace bond on the charge of criminal harassment precludes him from succeeding in his claims for Charter breaches in his action. No genuine issue for trial is raised.
[28] For the above reasons, the movers of the motion shall have summary judgment dismissing the plaintiff’s action with costs.
[29] The moving defendants shall have 15 days to file and serve their bill of costs. Thereafter the plaintiff shall have 15 days to respond. Both submissions shall be in writing and limited to 15 pages each.
The Honourable Mr. Justice John S. Poupore
Date: November 20, 2015