SANAEE v. GRAD

Court File No.: CV-16-125199 Citation: 2016 ONSC 4718 Motion Heard: July 20, 2016

Endorsement

[1] This motion is brought by the police defendants pursuant to Rule 25.11 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”). The moving defendants seek an order striking various paragraphs of the amended statement of claim insofar as they relate to past conduct of the defendant Charlebois and the knowledge and practices of the defendant York Regional Police Services Board (“YRPSB”). They argue that the offending paragraphs are irrelevant, scandalous, frivolous, vexatious, an abuse of the process of the court and may prejudice and delay the fair trial of this action.

[2] The plaintiff seeks damages from the police defendants for negligent investigation, false arrest, false imprisonment and for breach of his Charter rights.

[3] The moving defendants take issue with paragraphs 62 to 68 of the amended statement of claim. Paragraphs 62 to 64 deal with conduct on the part of the defendant Charlebois that pre-dated his involvement with the plaintiff. Paragraphs 65 to 67 make allegations regarding the knowledge of the YRPSB with respect to Charlebois’ alleged lack of competence and abuse of authority and its failure to address those issues by way of supervision, training, review, monitoring, disciplining, demoting and dismissing Charlebois.

[4] Orders under Rule 25.11 should only be made in the clearest of cases. The court must consider whether the pleading offends the Rule and is unfair and also whether the pleading has marginal probative value and whether its value is outweighed by its prejudicial effect. See Gardner v. Toronto Police Services Board, [2006] OJ No. 3320 (SCJ) at paragraph 10; appeal allowed on other grounds, 2007 ONCA 489.

[5] In my view, paragraphs 62 to 68 of the amended statement of claim are clearly improper and should be struck. Paragraphs 62 to 64 deal with Charlebois’ alleged past misconduct while a member of the police service. The allegations are broad and general in nature with no specifics of the alleged past misconduct. There is no indication that it is similar in nature to the acts complained of by the plaintiff. Prior negligence is not relevant to a defendant’s alleged subsequent negligence. While similar fact evidence is presumptively inadmissible, it may be pleaded if there is a sufficient degree of similarity and provided the added complexity does not outweigh the probative value. See Woods (Litigation Guardian of) v. Jackiewicz, 2013 ONSC 519 at paragraphs 7 to 10.

[6] In my view, these paragraphs do not meet this test. They simply make very general allegations of misconduct without any specifics. They would undoubtedly add complexity to this action in terms of expanded production and discovery. They will certainly lengthen the litigation process. To the extent that they make reference to the investigation carried out by the Independent Police Review Director of Ontario, they are also inadmissible pursuant to the provisions of the Police Services Act, RSO 1990, c P.15 (the “PSA”). See Andrushko v. Ontario, 2011 ONSC 1107 (Div Ct).

[7] I have also concluded that paragraphs 65 to 68 should be struck out. As indicated above, these paragraphs address the knowledge and actions of the YRPSB with respect to Charlebois’ alleged past conduct. They support the plaintiff’s conclusion in paragraph 68 that the YRPSB has failed in its statutory duties owed to the general public and to the plaintiff specifically. The difficulty I have with these paragraphs is that the allegations do not reference or relate to the specific statutory duties imposed on the YRPSB by the PSA. They reference the competence of Charlebois and his alleged abuse of authority and the board’s failure to address those issues by way of supervision, training, review, monitoring, disciplining, demoting and dismissing Charlebois. Those matters are not statutory duties belonging to the YRPSB. These are operational matters and are duties imposed on the Chief of Police by virtue of the PSA. See Bilotta v. Barrie (City) Police Services Board, 2010 ONSC 4457 at paragraphs 10 to 15 and Miguna v. Toronto (City) Police Services Board, 2008 ONCA 799 at paragraph 89. In my view, the portions of the PSA setting out the board’s responsibility for appointing officers and generally establishing policies for the effective management of the police force cannot be read as encompassing the plaintiff’s allegations in light of these decisions.

[8] Although I do not have jurisdiction to strike a pleading on the basis of it disclosing no cause of action, I am satisfied that the allegations made in respect of the YRPSB at paragraphs 65 to 68 are frivolous and vexatious insofar as they fail to connect the board’s alleged actions or inactions to its statutory duties. To allow these allegations to stand in their present form would prejudice and delay the fair trial of this action.

[9] Finally, I do not view this motion as being premature. A defendant should not be obliged to plead to a claim that does not comply with the rules of pleading before moving to strike. I note that this situation is similar to that found in Lochner v. Toronto (City) Police Services Board, 2013 ONSC 4387 (Master); affirmed 2014 ONSC 2137; leave to appeal refused 2014 ONSC 3563 (Div Ct).

[10] I am therefore ordering that paragraphs 62 to 68 of the amended statement of claim be struck out, but with leave to amend in accordance with the Court of Appeal’s decision in Gardner, cited above.

[11] The moving defendants seek partial indemnity costs of $7,378.80. The plaintiff suggests that his partial indemnity costs amount of $2,848.75 is reasonable for a motion of this nature. I agree with the plaintiff. This is a simple pleadings motion. The law and the facts are not complex. The amounts claimed by the moving defendants are clearly excessive. In my view, it is fair and reasonable for the plaintiff to pay the moving defendants’ costs of this motion fixed in the amount of $3,000.00, payable by August 22, 2016.

Released: July 20, 2016 Master: R. A. Muir