Court File and Parties

CITATION: Robert Taylor v. PC Mark David Kok #306513, et al., 2016 ONSC 1506

COURT FILE NO.: 4234/11

DATE: 2016/03/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Warren Joseph Taylor (Plaintiff)

AND:

PC. Mark David Kok #306513, PC. Terry Walker #310904, Chief-of-Police – Bradley S. Duncan, London Policy Services Board, The Corporation of the City of London (Defendants)

BEFORE: Justice H. A. Rady

COUNSEL: Robert Taylor, self-represented Dagmara Wozniak, for the defendants

HEARD: February 29, 2016

Endorsement

[1] The defendants move for partial summary judgment dismissing part of the plaintiff’s claim. Mr. Taylor claims damages from the defendants arising from his arrest by Officers Kok and Walker on October 5, 2010. He alleges that he was injured during the course of his arrest. Mr. Taylor has significant pre-existing conditions respecting his neck, back and knee. He alleges that those conditions were significantly worsened as a result of the trauma he sustained during his arrest. He advances claims for false arrest, false imprisonment and negligent investigation as well as for the use of force and negligence during the course of his detention, which as noted, he says caused his condition to worsen.

[2] The moving parties seek partial summary judgment related to the claim for damages for personal injuries. They submit that Mr. Taylor has not served an expert’s report on the standard of care expected of an officer in the circumstances of this case.

[3] They also say that Mr. Taylor has not served an expert’s report speaking to the issue of causation – that is, on the question whether the actions (or inactions) of the arresting officers caused a worsening of the symptoms that he complains of now. They say that a review of the medical records demonstrates that there is no significant change in his symptomology before and after his arrest.

[4] The defendants submit that summary judgment will significantly shorten the trial, which the pre-trial judge estimated to require three to four weeks. Mr. Taylor disagrees. He believes less than two weeks will suffice.

[5] For the reasons that follow, the motion must be dismissed. I am mindful of the Supreme Court of Canada’s admonition that litigation culture must change and summary judgment is an essential tool in the delivery of timely and proportionate justice. However, in the circumstances of this case, the interests of justice require a trial. I say this for several reasons.

[6] First, Ms. Wozniak advised me that the motion was brought at the behest of the pre-trial judge. I have reviewed Justice Leach’s report to trial judge arising from the pre-trial he conducted on September 25, 2015. Ms. Wozniak’s information is not accurate. She was not present during the pre-trial and as a result, I am not being critical of her. In fact, Justice Leach wrote the following:

The defendants have indicated their intention, relying on the Hryniak decision by the Supreme Court of Canada, to move for partial summary judgment in the issue of causation, and in particular, to determine whether there is a genuine issue for trial as to whether Mr. Taylor can establish, on the existing evidence, and without the benefit of any supportive expert opinion evidence, the extent, if any, to which his existing conditions and difficulties were caused by the defendants’ conduct and actions (as he has the onus of proving).

[7] The first thing that bears observing is that the defendants do not appear to have made any suggestion at the pre-trial that they intended to move on the issue of standard of care, a topic to which I will return. And contrary to Ms. Wozniak’s understanding, it does not appear to me that Justice Leach raised the prospect of the motion. Rather, the defendants signalled their intention to bring one.

[8] Because I understood that the pre-trial judge initiated the prospect of a summary judgment motion, I did not raise the issue of Rule 48.04(i).

[9] The timing of this motion gives me cause for concern and is the primary basis on which the motion is dismissed. Quite apart from Rule 48, I note Justice Leach’s endorsement following the pre-trial:

Matter [to be spoken] in [Assignment Court] on Dec. 18, 2015, @ 9:00 a.m., by which time defendants anticipate having served their summary judgment motion material. Parties to co-operate in advance of that date, to the extent possible in establishing a timetable for delivery of responding material, reply material, cross-examination (if any) on affidavit material, and a tentative special appointment hearing date, in consultation with the Trial Coordinator…

[10] I pause here to observe that the claim was issued on May 25, 2011. A statement of defence was delivered on July 4, 2011. The case was spoken to in Assignment Court on March 15, 2013. A trial date of February 24, 2014 was set at that time. On November 14, 2013, the trial was adjourned on consent because Mr. Taylor was to undergo surgery. The matter was returned to Assignment Court on June 20, 2014 and a new trial date of March 7, 2016 was set.

[11] The motion material was prepared and is dated December 14, 2015. The initial return date was a month later, on January 19, 2016 at a Tuesday motions day for the purposes of setting a special appointment. Monday’s special appointment date was made available in a reasonably timely way. Whether earlier time was available is unclear to me.

[12] The reason this chronology is important is that this case is currently scheduled to proceed during the sittings beginning next Monday. A motion to adjourn the trial (opposed by Mr. Taylor) is scheduled on March 3, 2016, in order to permit the decision on the summary judgment motion to be released.

[13] At the risk of stating the obvious, this motion was brought very late in the proceedings and in my view, inexcusably so and after the case had been scheduled for trial. If adjourned, another trial date may not be available for quite some considerable time. This alone is a basis to dismiss the motion.

[14] However, there are other reasons. First, this is a case that may not require an opinion on the standard of care. The videotape of Mr. Taylor’s interaction with Officers Kok and Walker and viva voce evidence may be the only evidence necessary for the court to determine whether there was any deliberate conduct or negligence or want of care on the part of the defendants. In this case, it may be a question of fact. This issue may well be for the trial judge to decide at the conclusion of the plaintiff’s case.

[15] Second, the failure to adduce an opinion on causation is not fatal. It appears that a line of authority has developed endorsing the requirement to adduce expert evidence on the issue, frequently, although not exclusively, in the context of medical malpractice cases. However, it bears keeping in mind the words of the Supreme Court of Canada in Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289, at para. 33:

The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield's famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a "robust and pragmatic approach to the ... facts"

[16] Finally, I am convinced that only a trial of the issues will bring the closure the parties require. A decision adverse to the plaintiff on this motion would almost certainly result in an appeal, which will serve only to cause further delay and to increase costs.

[17] Mr. Taylor sought costs of this motion. He would be entitled to his reasonable photocopying expenses but he has provided no receipts. He seeks reimbursement for gasoline and taxi, which I do not believe are assessable disbursements. In my view, reasonable photocopying expenses would be $400. payable at the conclusion of the litigation.

”Justice H. A. Rady”

Justice H. A. Rady

Released: March 2, 2016