CITATION: McHale v. HMTQ, 2016 ONSC 1420

COURT FILE NO.: CIV 07-102

DATE: 2016-02-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gary McHale, Plaintiff

AND:

Her Majesty the Queen in Right of Ontario, Defendant

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: J. W. Findlay, Counsel for the Plaintiff

E. Bala / J. Hunter, Counsel for the Defendant

HEARD: February 17, 2016

ENDORSEMENT

[1] The plaintiff seeks leave to further amend his statement of claim pursuant to Rule 26.01, Rules of Civil Procedure.

Background

[2] In this action, Gary McHale claims general, aggravated and punitive damages for wrongful arrest, violation of his Charter rights and defamation. The underlying events involve a native protest in Caledonia, commencing in 2006, and counter protest demonstrations by Mr. McHale and others. Mr. McHale has been a critic of the Ontario Provincial Police regarding their conduct with respect to these events.

Original Pleadings

[3] A notice of action was issued on May 18, 2007 and the statement of claim followed on June 18, 2007. The statement of defence is dated June 28, 2008.

Prior Motions

[4] In 2014, Mr. Findlay, counsel for Mr. McHale served a motion seeking leave to amend the statement of claim. In response, on behalf of H.M.T.Q., Mr. Bala and Mr. Hunter served a cross-motion requesting certain portions of the statement of claim and amended statement of claim be struck.

[5] The motions came before me on July 21, 2014. In my endorsement (2014 ONSC 5179), released September 22, 2014, I struck certain paragraphs, without leave to amend, allowed amendments to several paragraphs and struck other paragraphs with leave to amend.

This Motion

[6] Mr. Findlay served a further amended statement of claim following the release of my endorsement. Counsel for both parties exchanged correspondence and engaged in a number of discussions regarding the proposed amendments. Ultimately, Mr. Findlay served another amended statement of claim, dated September 29, 2015. Although further discussions took place, positions were taken necessitating this motion.

[7] For ease of reference, a copy of this amended statement of claim is attached to this endorsement as Schedule “A”.

Dispute

[8] Mr. Bala and Mr. Hunter challenged two of the proposed amendments, namely:

(i) paragraphs 2F to 2U regarding allegations of conspiracy; and

(ii) paragraphs 48 to 50 involving allegations of Charter violations pertaining to the Ontario Provincial Police policy entitled “A Framework for Police Preparedness for Aboriginal Critical Incidents”.

[9] Shortly before the motion hearing, Mr. Findlay conceded the correctness of the second objection and that paragraphs 48 to 50 would be expunged from the pleading.

Prior Rulings

[10] One of the issues addressed on the prior motion dealt with the application of the Limitations Act, 2002. I concluded a number of allegations in the then amended statement of claim were statute-barred. Several paragraphs were struck, without leave to amend, including paragraph 16I as follows:

16I. The Plaintiff states that between December 3, 2006 and December 16, 2006, then OPP Commissioner Julian Fantino, senior officers of the OPP including Acting Superintendent Doug Babbitt, OPP Inspector Dave McLean and OPP Sergeant Greg Walton, lawyer Christopher Diana, the lawyer for the Ministry of Community Safety and Correctional Services, and the local Crown Attorneys Alex Paparella and Larry Block, designed a plan to unlawfully arrest the Plaintiff on December 26, 2006, detain him in custody for an unreasonable period of time and impose improper travel restrictions on him to prevent him from carrying out any further protests in Caledonia.

[11] Another issue pertained to the pleading of the tort of conspiracy. I concluded certain paragraphs were merely bald allegations, lacking in the required particulars. Several paragraphs were struck, with leave to amend, including paragraphs 2C, 2F and 2S, as follows:

2C. The Plaintiff states that these arrests were a direct result of him being targeted by the police for his political views. The plaintiff states that he advocated the OPP was not enforcing the law in Caledonia, Ontario, equally as between natives and non-natives.

2F. The Plaintiff states that the officers of the OPP, Crown Attorneys and other representatives of the Ministry of the Attorney General have conspired to repeatedly and wrongfully falsely arrest him and intentionally violate his right to protest under the Canadian Charter of Rights and Freedoms, not for the legitimate purpose of maintaining the peace, but for the purpose of causing harm and punishing the Plaintiff for his legitimately held views.

2S. The Plaintiff states that he has been unlawfully harassed and targeted by the OPP because he has publicly disagreed with the actions of the OPP and opposed the public policies of the Government of Ontario.

[12] Paragraphs 2F and 2U in the present amended statement of claim are said to address this deficiency.

Positions

[13] The positions articulated by counsel can be summarized in the following manner:

(i) Plaintiff

[14] Mr. Findlay submits paragraphs 2F to 2U meet the requirements of particularity of pleadings, as addressed in Aristocrat Restaurants Ltd. (C.O.B. Tony’s East) v. Ontario, [2003] O.J. No. 5331 (Ont. S.C.J.), at para. 40, namely:

(a) the parties and their relationship;

(b) an agreement to conspire;

(c) the precise purpose or objects of the alleged conspiracy;

(d) the overt acts that are alleged to have been done by each of the conspirators; and

(e) the injury and particulars of the special damage suffered by the plaintiff by reason of the conspiracy.

[15] Mr. Findlay further argues the present amendments satisfy the issue regarding merger of the conspiracy to commit a tort with committing the tort, as addressed in paragraph 41 in Aristocrat. He says the damages for conspiracy differ from the tort of wrongful arrest.

(ii) Defendant

[16] Mr. Bala does not take issue with the sufficiency of the amended pleading. Rather, he submits the allegations of conspiracy in paragraphs 2F to 2U remain statute-barred as I previously determined. The allegations, he argues, are simply an expansion of the former paragraph 16I.

Analysis

[17] I am satisfied the proposed amendments meet the tests for particularity and merger. However, the allegations focus on one time period, December 2006. The prior amended statement of claim identified wrongful arrests on numerous dates from 2006 to 2012.

[18] In pleading conspiracy in December 2006, now with particularity, the plaintiff, in my view is attempting to resurrect the prior allegation in paragraph 16I. As it was struck for being statute-barred, the present proposed amendment must suffer the same fate. I reject the argument this is a separate matter as:

(a) the allegations involve the same purported conspirators, although Ann McChesney is now added, further compounding the limitations issue;

(b) the same time period is identified;

(c) reference is made to the same acts, albeit with particularly; and

(d) it advances the same legal theory.

[19] As the conspiracy is alleged to have occurred in December 2006, I conclude the proposed amendments remain statute-barred. It was open to the plaintiff to allege a different time period. Given the passage of time, I must assume there are no further allegations of such impugned conduct. In result, paragraphs 2F to 2U are struck without leave to further amend.

Summary

[20] The proposed amended statement of claim, dated September 29, 2015 contains other amendments that are not challenged. Accordingly, leave is granted to amend the statement of claim in the draft provided, save that paragraphs 2F to 2U and 48 to 50 are struck, without leave to further amend.

[21] If either party feels entitled to a cost award, counsel are directed to exchange brief written submissions and thereafter deliver same to my chambers in Kitchener within 30 days.

D.J. Gordon J.

Date: February 26, 2016