CITATION: John v. Toronto Police, 2016 ONSC 2015
COURT FILE NO.: CV-13-0000-4163-00
DATE: 2016 03 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DARREN JOHN
Self-Represented
Plaintiff
- and -
CONSTABLE GAVIN PERMAUL, CONSTABLE ZORAN IVKOVIC and TORONTO POLICE SERVICES BOARD
Fred Fischer, for the Defendants
Defendants
HEARD: July 17, 18, 2015, and February 16, 2016
RULING ON MOTION TO STRIKE STATEMENT OF CLAIM
Justice Thomas A. Bielby
INTRODUCTION
[1] The defendants seek an order pursuant to Rules 21.01 and 25.11 of the Civil Rules of Procedure, striking the Statement of Claim without leave to amend. The defendants submit that the Statement of Claim fails to disclose a reasonable cause of action and that it is frivolous, vexatious and an abuse of process.
[2] It is submitted by counsel for the defendants that it is plain and obvious that the claim cannot succeed.
[3] This motion is one of many I have heard which have involved the plaintiff, Darren John. All of the motions seek an order striking the Statement of Claim in their respective actions.
[4] The motions were heard by me individually, one after the other.
[5] The plaintiff initially sought an adjournment of the hearing of the motions in order that he can retain counsel. He advised the court that his lawyer had recently been disbarred and is refusing to release the plaintiff’s file. Responding material has not been filed on behalf of the plaintiff in any of the motions before me.
[6] Counsel for the moving parties objected to the adjournment. Most of these motions were filed in October, 2014 and were set to be heard during the week of June 15, 2015. Further, in November, 2014 the plaintiff advised counsel that he planned to retain a different lawyer.
[7] I advised the plaintiff that if I was to adjourn the motions I would consider ordering he pay some costs to the counsel representing the various defendants.
[8] The plaintiff advised the court that if costs were to be a condition of the adjournment he was prepared to proceed with the motions. Accordingly, the motions were heard.
THE RULES
[9] Rule 21.01(1)(a) and (b) of the Civil Rules of Practice state,
“A party may move before a judge,
(a) for the determination before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.”
[10] Subsection (2) states that no evidence is admissible on such a motion.
[11] Rule 25.11 states,
“The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.”
DISCUSSION
[12] The original Statement of Claim was issued on September 20, 2013. The claims relates to an incident which occurred on February 26, 2012. A Statement of Defence was filed. On December 6, 2013, the plaintiff, without the consent of the defendants, issued an Amended Statement of Claim and added an additional party as a defendant. The Amended Statement of Defence was delivered on January 13, 2014.
[13] The plaintiff, in his claim, alleges that on February 26, 2013, he was parked at a MacDonald’s restaurant in Toronto when he was approached and questioned by two Toronto police officers. He alleges he was told by the officers that he was being questioned because it was a high crime area.
[14] The plaintiff alleges he was the only black man in the parking lot and for that reason he was singled out for questioning.
[15] The plaintiff filed a complaint with the Office of the Independent Review Director (OIRPD), and pleads that the officer lied to the OIPRD by stating that he stopped the plaintiff because of his car’s tinted windows.
[16] The plaintiff seeks damages in excess of $1,000,000 and pleads that he was harassed by the police, was the subject of racial profiling and that, without specifying a specific section, pleads his Charter rights were violated. The plaintiff also pleads a breach the public’s trust.
[17] The plaintiff submits that harassment is a tort which is actionable. He claims, as being the only person in the parking lot questioned, he was the subject of racial profiling and discrimination. He submits that the conduct of the police by lying is outrageous and it is in the public interest to have the issue litigated.
[18] The plaintiff submits that this incident is just another example of how the police interact with him and that he is frustrated and upset with the current situation which will continue unless challenged and rectified.
[19] The plaintiff submits that lying is an unlawful act and that racial profiling is an actionable tort. He submits that the police, in lying, have breached the public trust and conspired together because they both lied.
[20] One of the authorities reviewed by me is, Wellington v. Ontario 2011 ONCA 274, [2011] O.J. No. 1615, a decision of the Ontario Court of Appeal. At paragraph 14 the Appeal Court discusses the criteria for a Rule 21 motion to strike and sets out the following:
The allegations of fact pleaded must be accepted as proven;
To succeed the defendant must show that it is plain and obvious that the plaintiff cannot succeed at trial;
The claim should not be struck merely because it is novel; and
The pleadings must be read generously with allowances for drafting deficiencies.
[21] Beardsley v. Ontario (Provincial Police) 2000 22696 (ON SC), [2000] O.J. No. 4057, is a decision of Lalonde J. of the Ontario Superior Court of Justice. At paragraph 16 reference is made to Doe v. Metropolitan Toronto Municipality (Commissioners of Police) (1990) 1990 6611 (ON SC), 74 O.R. (2d) 225 (Div. Ct.) and quotes therefrom as follows:
“Before considering the several causes of action pleaded, it may be helpful to review some of the principles relating to statements of claim generally. The following factors are significant:
(1) The pleadings must disclose a cause of action founded in law. So long as this criterion is met, the novelty of the cause of action is of no concern.
(2) In determining whether a cause of action exists, the material facts pleaded are to be taken as proved. However, this principle does not apply where the alleged facts are based on assumptive or speculative conclusions which are incapable of proof.
(3) If the facts, taken as proved, disclose a reasonable cause of action, that is, one with some chance of success, then the action may proceed.
(4) The statement of claim must be read as generously as possible, with a view to accommodating any inadequacies in the form of allegations due to drafting deficiencies.”
[22] In Norris v. Gatien 2001 2486 (ON CA), [2001] O.J. No. 4415, the Court of Appeal noted at paragraph 12 that a claim should not be dismissed at an early stage unless it is plain and obvious that it discloses no reasonable cause of action.
[23] The case also is authority for the proposition that the relationship between the investigator (police) and victims is not sufficiently proximate to give rise to a duty of care to the individual. The duty is to the public in general. That is to say the police do not owe a duty of care to a victim or complainant.
[24] It is submitted by counsel for the defendants that the plaintiff, after any interaction with the police or other public servants, seeks retribution and issues a Statement of Claim. It is submitted that the facts pleaded are so minimal that it makes it difficult to respond.
[25] It is submitted that frivolous has been described as a pleading that lacks a legal basis or merit.
[26] In Currie v. Halton (Region) Police Services Board 2003 7815 (ON CA), [2003] O.J. No. 4516 the Ontario Court of Appeal, commencing at paragraph 10, discusses the application of the frivolous and vexatious rule. At paragraph 11 the Appeal Court refers to the decision of Lang Michener et al v. Fabian et al (1987) 1987 172 (ON SC), 59 O.R. (2d) 353, in which Henry J. summarized the characteristics of vexatious proceedings:
(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceedings;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of the unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
(g) the respondent’s conduct in persistently taking un-successful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
HARASSMENT
[27] Counsel for the defendants submit the tort of harassment is not a recognized tort as stated in Hyra v. Rolston [2012] M.J. No. 210, a decision of Master Berthaudin.
[28] It is submitted therefore that it is not a cause of action known in law and therefore the allegations of harassment ought to be struck.
[29] The plaintiff provided the court with the authority, Canadian Tire Bank v. Roach 2006 BCPC 120, 2006 BCPC 0120, in which Justice Meyers of the Provincial Court of British Columbia, at paragraph 23, found that a party did commit the tort of harassment and that the plaintiff suffered as a result.
[30] Lynch v. Westario Power Inc. [2009] O.J. No. 2927, is a decision of P.A. Daley J. of this court. Commencing at paragraph 66, the tort of harassment is discussed, and from that paragraph I quote,
“Whether harassment has been established as a civil cause of action in Canadian law is unclear. Several decisions have specifically found that there is no such tort, while others were decided on the assumption that it does exist without setting out the elements of the tort.”
[31] At paragraph 67, Daley J. notes the most comparable tort would be the intentional infliction of mental suffering. The elements of that tort are:
(a) flagrant or outrageous conduct on the part of the defendant;
(b) calculated to produce harm in circumstances where it is known that harm will ensue; and
(c) resulting in a visible and provable illness and injury to the plaintiff.
[32] At paragraph 68, Daley J. opines that for a plaintiff to succeed in a claim for harassment he must plead the essential elements of the tort of intentional infliction of mental suffering.
[33] Justice Daley, in Lynch held that the plaintiff had not disclosed a reasonable cause of action because the essential elements were not pleaded.
[34] I concur with the approach taken by Daley J.
[35] For my purposes I will assume the tort of harassment exists and determine whether the essential elements have been pleaded.
[36] The facts in this claim involve one occasion when the police approached the plaintiff and asked some questions. This alleged police behaviour is comparable to the police practise known as ‘carding’.
[37] The conduct of the police cannot be said to have risen to the level of flagrant and outrageous.
[38] There is nothing pleaded to suggest that the interaction was calculated to produce harm where it is known harm will ensue.
[39] I find that the pleadings do not meet the test or criteria set out in Lynch. Accordingly, even if the tort of harassment exists it is plain and obvious that the claim cannot succeed and ought to be struck.
DISCRIMINATION AND RACIAL PROFILING
[40] The plaintiff in his Statement of Claim pleads that he was the only black man in the parking lot and for that reason was singled out for questioning. He pleads the actions of the police officers was random and arbitrary. He pleads racial profiling, which is a form of discrimination.
[41] Hamalengwa v. Bentley 2011 ONSC 4145, [2011] O.J. No. 3477, para 9, speaks to the allegation of racial profiling and states,
“Several cases have determined that racial profiling in and of itself cannot be a cause of action…The root to adjudication of and remedy for racial profiling is a Charter violation.”
[42] The Ontario Court of Appeal in King v. Ryerson University 250 A.C.W.S. (3d) 228; aff”d 2015 ONCA 648, 258 A.C.W.S. (3d) 286, noted that there is not a cause of action in tort at common law for discrimination.
[43] I find that the claims for racial profiling and discrimination are not actionable torts.
[44] In regards to a possible violation of the Canadian Charter of Rights, while the plaintiff makes reference to the Charter he does not identify the sections he feels were violated. I will assume the claim relates to his allegation of discrimination which I have already discussed.
[45] The Human Rights Code R.S.O. c. 19, section 1 states that every person has the right to equal treatment, without discrimination because of race.
[46] When originally enacted a person was barred from bringing a civil claim based on discrimination as their remedy was under the Code. This was amended by section 46.1 which allowed a person to make a claim based on discrimination in a civil action but with a condition. Section 46.1 of the Code does not permit a person to commence an action based solely on an infringement of a right under Part 1.
[47] The foundation of this civil claim is discrimination. The plaintiff pleads that the only reason why he was questioned was because he is black.
[48] An allegation of discrimination is better served by an application under the Human Rights Code.
[49] It is plain and obvious that the claim under the headings of racial profiling (discrimination) cannot succeed.
BREACH OF TRUST
[50] Rule 25.06(1) states that every pleading should contain a concise statement of the material facts on which the plaintiff is relying. Rule 25.06(8) dictates that where a breach of trust claim is alleged the pleading shall contain full particulars.
[51] The plaintiff pleaded that as a result of the police lying and not co-operating with the OIPRD, the public trust has been breached.
[52] The facts as pleaded do not amount to an actionable breach of trust. The pleadings speak of one interaction between the plaintiff and two police officers and did not amount to a breach of trust or the breach of any duty owed to the public or to the plaintiff personally.
[53] Further, the only benefit the plaintiff would obtain by filing a complaint with the OIPRD is one of personal satisfaction. In Norris v. Gatien 2001 2486 (ON CA), [2001] O.J. NO. 4415, the Ontario Court of Appeal, at paragraph 18, noted that a purely personal matter such as satisfaction has no reality in law in regards to a breach of trust. The plaintiff had no legal interest in the investigation by the OIPRD.
[54] It is plain and obvious that the claim cannot succeed on a breach of trust argument and is frivolous and vexatious.
CONSPIRACY
[55] The plaintiff in his pleadings alleges conspiracy, relying on a pleading that the officers both lied to the OPIRD and as such there was a conspiracy between the officers.
[56] Counsel for the defendants relies on the authority, Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario [2013] O.J. No. 5331, a decision of Epstein J. of the Ontario Superior Court. Commencing at paragraph 39, the court discusses tortious conspiracy. The test (from LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd. 1983 23 (SCC), [1983] 1 S.C.R. 452) is noted as follows:
(1) There is an agreement between two or more persons to perform specific act to injure the plaintiff;
(2) The defendants acted in furtherance of that agreement;
(3) The predominant purpose of the agreement is to injure the plaintiff or the defendant’s conduct is unlawful, directed towards the plaintiff alone, or with others, and the defendant should know that injury to the plaintiff is likely; and
(4) The plaintiff is injured as a result of the conspiracy.
The pleadings must include with clarity and precision, particulars of:
(1) the parties and their relationship;
(2) an agreement to conspire;
(3) the precise purpose or objects of the alleged conspiracy;
(4) the overt acts that are alleged to have been done by each of the conspirators; and
(5) the injury and particulars of the special damage suffered by the plaintiffs by reason of the conspiracy.
[57] Assuming for my purposes that the officers lied, the pleadings fall well short of including the material facts or essential elements. Again keeping in mind the circumstances in issue, it cannot be said that the officers questioned the plaintiff for the purpose of causing injury to him or that they should have known that an injury to the plaintiff was likely.
[58] A falsehood cannot be said to be an overt public act.
[59] It is plain and obvious that a conspiracy claim cannot succeed.
RULING
[60] I find that the Statement of Claim herein does not disclose any civil cause of action. It is plain and obvious that the action cannot succeed. It is frivolous and vexatious.
[61] The Statement of Claim is struck.
[62] Further, I will not grant leave to amend because the Statement of Claim is so deficient and does not disclose any actionable ground.
COSTS
[63] Any submissions as to costs are to be delivered, in writing, to my office within 21 days of the release of this ruling and are to be no more than three pages in length.
[64] Cost submissions may be served by email.
[65] Plaintiff’s consent to form and content of the order is dispensed with.
Bielby J.
Released: March 24, 2016
CITATION: John v. Toronto Police, 2016 ONSC 2015
COURT FILE NO.: CV-13-0000-4163-00
DATE: 2016 03 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DARREN JOHN
Plaintiff
– and –
CONSTABLE GAVIN PERMAUL, CONSTABLE ZORAN IVKOVIC and TORONTO POLICE SERVICES BOARD
Defendants
REASONS FOR JUDGMENT
Bielby J.
Released: March 24, 2016