Court File and Parties

Court File No.: 4234/11 Date: 2016/12/21 Ontario Superior Court of Justice

Between: Robert Warren Joseph Taylor, Plaintiff

And: PC Mark David Kok #306513, PC Terry Walker 3310904, Chief of Police – Bradley S. Duncan, London Police Services Board, and the Corporation of the City of London, Defendants

Counsel: Robert Joseph Warren Taylor, self-represented plaintiff Dagmara Wozniak and Amanda Shaw, for the defendants

Heard: March 29, 30, 31, April 7, June 20, 21, 22, 23, October 26, 27, 28, 2016

Before: M. A. Garson J.

Introduction

[1] October 5, 2010 was not a good day for the plaintiff, Robert Taylor. Police attended at his home to speak with him about his girlfriend, Sharon Penney.

[2] He invited the police into his home. Shortly thereafter, police arrested him and transported him to the police station. During the trip, Robert complained about how uncomfortable he was in the confined space in the back of the police cruiser.

[3] At the police station, Robert had difficulty extricating himself from the back of the police cruiser and when he finally managed to do so, he fell onto the ground. This was captured on video.

[4] Robert alleges that he suffered numerous and extensive injuries as a result of the fall. He had numerous and extensive pre-existing injuries prior to the fall. He argues that the fall made some of the existing injuries worse and created some new injuries.

[5] Robert believes the police lacked sufficient grounds to arrest him on this day and required a warrant to do so in his home. He further suggests that the officers were negligent in their investigation and transporting him to the station and in not helping him exit the police cruiser and prevent him from falling onto the ground. He further alleges the use of excessive force by the police during this incident. He submits that the Chief of Police, the London Police Services Board and the City of London are vicariously liable for the actions of the officers.

[6] The police say they acted with lawful authority throughout their dealings and in any event, Robert’s pre-existing injuries, and not the fall, are the reason for his current medical challenges.

Background and Pre-Existing Injuries

[7] The plaintiff had a longstanding on and off relationship with Sharon Penney, commencing around 2003. At times, they lived together. Regrettably, Sharon struggled with chronic alcoholism and was often either asked to leave the plaintiff’s home, or subject to stringent residency rules, under terms of a roommate agreement that the plaintiff required her to sign, strictly forbidding her from drinking.

[8] The plaintiff suffered a serious and debilitating workplace injury at a GM plant in Scarborough in 1989. This accident led to chronic low back and neck pain and spondylosis. In May 1999, the plaintiff became fully disabled and was unable to work after that time.

[9] In April 2004, the plaintiff underwent double spinal fusion surgery that was not successful in alleviating the back pain or his condition.

[10] By January 2005, the plaintiff was successful in his application for CPP Disability benefits for his workplace injuries.

[11] The plaintiff acknowledges substantial pre-existing injuries prior to October 5, 2010 including:

(i) Left knee: The plaintiff injured his left knee in November 2005. He was subsequently diagnosed in May 2006 with joint effusion. An MRI dated May 28, 2010 revealed a small radial tear or fraying of the medial meniscus. There was a further diagnosis on July 26, 2010 of osteoarthritis of the left knee; and

(ii) Spine, Back and Neck: As a result of the 2004 failed back surgery, the plaintiff has suffered for many years with brutal and chronic neck and back pain. He believes he never received proper treatment for the impingement on his spine and neck and that his chronic neck condition often overshadows his knee problem and makes it difficult for him to get treatment for his other conditions.

The Incident

[12] Charles Lambert was working the day shift at the Greyhound Bus Terminal in London on October 5, 2010, when he noticed a female, later identified as Sharon Penney, crying. She told Charles that she had been beaten up by her boyfriend. She also told him she was an alcoholic and wanted to kill the plaintiff. Charles saw no injuries. He called the London Police Service (“LPS”). Officer Mark Hartery (formerly Mark Kok), the lead or investigating officer, attended at the bus station. Sharon was initially reluctant to give a statement. There was an odour of alcohol on her breath. She gave a rambling interview. The officer looked at a prior incident in 2008, relied on the fact that she was crying and did not herself seek out police, and after consulting with his street supervisor, formed (in his opinion) reasonable grounds to arrest the plaintiff for assault.

[13] Officer Hartery then attended at the residence of the plaintiff, with Officer Walker, with the intent of arresting the plaintiff. Officer Hartery knocked on the door, and the plaintiff answered. He invited the plaintiff to step outside. The plaintiff declined to do so, but invited the officers inside.

[14] Although there is some disagreement as to what may have been said at the door, before the officers were invited inside, it is clear that neither officer advised the plaintiff that they were present to arrest him for assaulting Sharon Penney.

[15] Once inside, the plaintiff was made aware of the reasons for the officer’s visit. Once the plaintiff became aware of his fate, he (the plaintiff) was adamant in telling them to leave his house unless they had a warrant. “Get the hell out of my house” he told police, but to no avail. He tried to show them video footage that he believed would prove his innocence but cannot find the relevant information. The police determined that he was somewhat belligerent and uncooperative and walking into the kitchen area, which contains knives, so they decided to handcuff him behind his back. By this point, they are aware that he is under some form of a disability and relies on medications and a cane.

[16] The plaintiff was assisted by Officer Hartery to his cruiser. He had some difficulty getting into the back of the cruiser. He sat on the driver’s side of the rear of the vehicle. He complained loudly and repeatedly of pain caused by being handcuffed to the rear and the limited space available to a man of his stature in the rear of the police car. The officer removed the handcuffs and moved them to the front.

[17] After a roughly seventeen minute ride to the police station, the parties arrived at the sallyport area of the station and Officer Hartery asked the plaintiff to exit the vehicle from the other side (passenger’s side) and the plaintiff said he could not do so, because of pain and his inability to physically slide across the seat. All of this activity is captured by video (without audio).

[18] The handcuffs were removed and the plaintiff attempted and eventually was able to slide across the seat and then pull himself up and tried to exit the police car from the rear passenger side of the vehicle. His hand slipped and he fell to the floor. The officer caught his head just before it struck the floor. The plaintiff is seen on video lying on the floor on his back and his left leg remains stuck in the cruiser.

[19] The officer then pulled the rest of the plaintiff’s body out of the cruiser by the arm and, with the assistance of Officer Walker, lifted him to his feet, after the plaintiff told the officers he couldn’t get off of the floor on his own.

[20] The plaintiff said that his left knee gave as the officers lifted him up and that he felt a crack and sharp pain in his right knee, as well as pain in his back and neck.

[21] The plaintiff repeatedly requested that an ambulance be called. None was called. The plaintiff was turned over to the cell’s sergeant, booked, interviewed, retained for a short period of time and released later that same day around 6:00 p.m. and decided to return home, rather than attend at the emergency department. The plaintiff said that he wanted to go to the hospital that evening but had to go home to access his prescription pain killers and that he attended the hospital at 6:00 a.m. the following morning.

Resultant Injuries and Follow-Up Medical Treatment

[22] The hospital record from the October 6, 2010 emergency room visit indicated that the plaintiff “did not appear in distress and was playing on his smartphone when staff walked in”. At that point, the plaintiff was noted to have complained of pain in his left elbow and lower back. The plaintiff insists he made additional complaints of pain but the doctors didn’t listen to him or believe him and thought he was drunk and crazy. The hospital Assessment Form recorded the reason for his visit as pain control.

[23] The plaintiff alleges the following injuries as a result of being transported by the police and subsequently falling out of the cruiser:

(i) Left Knee: relying on an October 7, 2013 MRI, the plaintiff says the MRI report confirms that he suffered an oblique tear of the medial meniscus and a radial tear of the lateral meniscus and that there are degenerative changes from an earlier (May 28, 2010) MRI with moderate osteoarthritis;

(ii) Lower Back: relying on a July 14, 2013 CT scan, the plaintiff suggests that the CT report shows a mild disc-bulging at L4-L5 and that since the incident he suffers from a lot more pain in his back which now radiates down both his legs;

(iii) Cervical Spine and Neck: relying on an October 25, 2012 MRI of the spine and cervical area, the report confirms degenerative changes in the spine with mild to moderate stenosis. A follow-up report by Dr. Reid, dated July 10, 2013, indicates the results of this MRI are “slightly worse” than earlier pre-incident reports;

(iv) Thoracic Spine: relying on an MRI of the spine and thoracic area dated March 14, 2014, the report indicates “some facet degenerative changes”;

(v) Right Knee: relying on a November 21, 2013 MRI report which notes a “tiny tear of the lateral meniscus”, the plaintiff says he injured his right knee when his legs were twisted in the police car but didn’t notice it right away because of severe sciatica in his right thigh; and

(vi) PTSD/Depression: the plaintiff delayed seeing a psychologist or psychiatrist because of worries that existing compensation may be cut-off. On June 20, 2013, he was seen by Dr. Lefcoe who opined that inadequate pain control had caused the plaintiff to become depressed. More than a year later, he saw Dr. Lefcoe again on September 24, 2014 at which time he diagnosed the plaintiff with PTSD.

[24] After the emergency room visit, the plaintiff attended before his family doctor, Dr. Reid, an orthopaedic surgeon, on November 23, 2010. The plaintiff did not tell Dr. Reid about this incident because he was afraid of how Dr. Reid might respond. Although he told Dr. Reid that he had a fall, he did not disclose the full details and said that Dr. Reid ignored his concerns about the fall. In fact, Dr. Reid did not reference the incident until a note dated December 1, 2011 when he mistakenly identified the fall as occurring in October 2011.

[25] The plaintiff was adamant that he had repeatedly complained to Dr. Reid about the extensive pain that he was suffering post-incident but that Dr. Reid didn’t listen to him. It wasn’t until January 25, 2012, that Dr. Reid started to acknowledge in his notes and reports the October 5, 2010 incident. By October 23, 2013, Dr. Reid appears to finally document all of the plaintiff’s injuries while also noting that the plaintiff “does not think about anything else day or night since that incident”.

[26] The plaintiff presently endures daily pain and deals with significant medical issues. He is in a wheelchair and takes more than 16 medications for ailments including pain, insomnia, oesteo-arthritis, depression, muscle spasms and other unrelated ailments. Throughout this proceeding, he was observed to be constantly taking medication that he said was necessary for pain control.

Causes of Action

[27] The plaintiff seeks to recover damages for the following causes of action:

(i) negligent investigation by Officers Hartery (Kok) and Walker of LPS;

(ii) false imprisonment;

(iii) a breach of his s.8 Charter right resulting from the warrantless entry of the police into his residence to make an arrest and the use of excessive force during and after the arrest;

(iv) negligent operation of a vehicle by a common carrier, and more specifically, failure to safely transport the plaintiff from his home to the police station; and

(v) vicarious liability for the Chief of Police, the London Police Services Board and the City of London for the tortious acts of the officers. [1]

Preliminary Matters

[28] The parties agree that the medical records of the plaintiff as filed, and later partially redacted, are admitted into evidence for the truth of their contents.

[29] The plaintiff had great difficulty in obtaining expert medical evidence. Although he is to be commended for his tenacity and relentless efforts, he nonetheless was able to call only one treating physician witness, Dr. Lefcoe, who testified on the issues of PTSD and depression. Although under lawful summons, Dr. Robert Reid, an orthopaedic surgeon and the plaintiff’s treating family physician immediately before and after the accident, suffered a debilitating stroke before being called to testify. Having determined on medical evidence that he would not be fit to testify, I quashed his summons.

[30] The plaintiff sought out an order from the court to appoint an expert in light of his challenges. I declined to do so indicating that r. 52.03(1) of the Rules of Civil Procedure is to be rarely invoked and that doing so at this point in the proceeding would impede the balance of fairness.

Discussion

Credibility

[31] The plaintiff presented his evidence in a fairly straightforward and credible manner. Regrettably, he was prone to repetition. He was not overly evasive or combative in cross-examination. He was clearly impacted by the incident in question and seemed to have a very good recall of events. For the most part, I accept his evidence of what took place at the time of his arrest and immediately thereafter.

[32] The evidence of Officer Hartery, where it materially conflicts with the evidence of the plaintiff, caused me some concern. More specifically, he testified that the plaintiff, with his handcuffs behind his back, was somehow using his cane to assist him when walking to the cruiser. This defies logic, common sense and belief.

[33] Having carefully and repeatedly watched the video of the fall of the plaintiff from the cruiser, I reject the description by the officer that he “took a lot of the weight (of the plaintiff) as he fell backwards”. The video shows him cushioning his head from hitting the ground. This is a far cry from taking a lot of the weight of the plaintiff.

[34] His testimony that he did not help the plaintiff exit the cruiser because “[he] didn’t ask for help” rings hollow. The plaintiff was clearly in distress and having difficulty exiting the vehicle, was verbalizing this difficulty, and the officer knew that the plaintiff was disabled and relied on a cane to walk.

[35] Overall, where the evidence of Officer Hartery conflicts with that of the plaintiff, I prefer and accept the evidence of the plaintiff.

Findings of Fact

[36] For the purposes of my analysis, I make the following preliminary finds of fact:

(i) Neither PC Hartery nor PC Walker told the plaintiff prior to entry into the residence, that he was conducting an investigation regarding an assault by the plaintiff on Sharon Penney; and

(ii) PC Hartery knew at the time of transport of the plaintiff, that he was disabled, on narcotic pain medication and relied on a cane.

Negligent Investigation

[37] An investigating police officer owes a duty of care to the suspect of an investigation.

[38] The standard of care to which a police officer conducting an investigation will be held is that of a reasonable officer, acting within the statutory powers imposed upon him, in similar circumstances Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, at para. 3.

[39] Ibid.

[40] The issue to be determined in this instance is the presence or absence of “reasonable and probable grounds”.

[41] In determining the existence of reasonable and probable grounds, I take into account the following factors:

(i) at tab 10(b) of the Document Brief of the Defendants, Sharon Penney, albeit in a rambling and unfocused statement, repeatedly tells the officer at the bottom of p. 9 and top of p. 10 of her statement that the plaintiff “just kept fucking hitting me in the head” and “kept smacking me in the head” and “hit me in the head over and over”. Earlier in the report she tells police that she is scared and does not want the plaintiff to hit her anymore;

(ii) Officer Hartery testified that the policy in place at that time for LPS was to arrest persons being charged with domestic violence;

(iii) Officer Hartery testified that he discussed this matter with his street supervisor; and

(iv) although he detected an odour of alcohol from Sharon when he interviewed her, Officer Hartery determined that she was not intoxicated on the morning of October 5, 2010.

[42] In my view, the constellation of the above factors is sufficient to meet the test for reasonable and probable grounds. The officer subjectively believed that he had the grounds to make an arrest and viewed objectively a reasonable person standing in the shoes of that officer would have believed that the necessary grounds existed to make an arrest. See R. v. Storrey, [1990] 1 S.C.R. 24. This case involved an appeal on the basis of a s. 9 Charter breach and was not a negligence action brought against police for their misconduct. The Storrey test of objectively based reasonable and probable grounds was applied by Thorburn J. in an action for false imprisonment and negligent investigation in Wong v. Toronto Police Services Board, 2009 ONSC 66385, at para. 53 (Ont. S. C.). Reasonable grounds can still exist where the information relied upon turns out to be inaccurate or unreliable at a later point in time.

[43] Although Officer Hartery provided the plaintiff with an opportunity to identify videotape evidence that may assist the plaintiff, the police are not required, once they have established reasonable and probable grounds, to speak to the plaintiff or to pursue further investigation. Miguna v. Toronto (City) Police Service Board, 2007 ONSC 3674, rev’g 2008 ONCA 799, at para. 27 (Ont. S.C.); and Bray v. Ottawa Police Services Board, 156 A.C.W.S. (3s) 90 at para. 17 (Ont. S. C.).

[44] Officer Hartery also testified that he relied upon a prior 2008 incident. I place little weight on this reliance. Sharon, in 2008, made an allegation of assault to police and after they arrived to investigate, was found to be intoxicated and went on to tell police that she says things that are not true when she is intoxicated. No charges were laid at that time.

[45] I am satisfied that the officer distinguished her prior untruthfulness by the fact that she was not intoxicated during her October 5, 2010 interview. This occurrence could not be relied upon to establish reasonable grounds.

[46] I recognize that the police may make minor errors in judgment which, absent unreasonableness, do not breach the requisite standard of care. The police were not negligent in accepting what the complainant told them took place, notwithstanding her earlier recantation.

[47] In 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, at para. 57, the Court of Appeal recently indicated that as a general rule, professional negligence can only be determined through expert evidence, with the exception of non-technical matters and egregious conduct that is obviously negligent.

[48] Although the issue before me is of a non-technical nature, I am not satisfied that the conduct alleged is so egregious as to be patently and obviously negligent.

[49] The mere fact that the Crown withdrew the charge a few months later does not mean there were not reasonable and probable grounds on October 5, 2010 to lay the charge. 49573 Ontario Ltd., citing Solomvici v. Toronto Police Services Board, 2004 ONSC 39060, aff’d 2010 ONCA 85.

[50] Accordingly, in the absence of expert evidence and having found on the record before me the presence of reasonable and probable grounds, I conclude that the investigation by the investigating officer was not negligent. This claim must fail.

False Imprisonment

[51] To successfully establish a claim based on false imprisonment, the plaintiff must establish:

(i) deprivation of liberty against the plaintiff’s will;

(ii) that the police officer was the direct cause of the imprisonment or arrest; and

(iii) that the police (the onus being on them to prove authority or justification) lack authority or justification for such imprisonment or arrest. Miguna, at para. 52.

[52] There is little dispute that the plaintiff was deprived of his liberty against his will by the police and thus the focus must turn to whether the police had authority on justification for the arrest and subsequent detention.

[53] Section 495 of the Criminal Code of Canada sets out the authority for police to arrest a person without a warrant. As previously stated, the police may do so if they believe on reasonable grounds that the person has committed an indictable offence.

[54] I have already determined that the investigating officer had a subjective belief in his reasonable grounds to arrest the plaintiff, and that viewed objectively, a reasonable person standing in the shoes of the officer would have believed the necessary grounds to arrest existed.

[55] Accordingly, having found that the police have proven the requisite authority to effect the arrest of the plaintiff and to then take control of the plaintiff for the purposes of transporting him to the police station for processing and subsequent release, I conclude that the tort of false imprisonment has not been proven. This claim must also fail.

Charter Breach – s. 8 – Feeney Warrant

[56] To successfully prove a claim and recover damages for a s. 8 Charter breach the plaintiff must demonstrate a breach of a protected right coupled with bad faith actions on the part of the investigating officer. Hawley v. Bapoo, 2007 ONCA 503, at paras. 8-9. The plaintiff must prove that the officer’s required a warrant to enter the plaintiff’s residence prior to effecting his arrest, coupled with bad faith on the part of the police.

[57] All members of the public, including the police, have an implied licence to approach the door of a residence and knock. However, the implied licence ends at the door R. v. MacDonald, 2014 SCC 3; R. v. Evans, [1996] 1 S.C.R. 8; and R. v. Tricker (1995), 21 O.R. (3d) 575 (C.A.), and does not permit entry into the residence. There is no police power to enter a residence to further an investigation.

[58] Thereafter, the police may only enter a residence without a warrant to effect the arrest of a resident in the following circumstances:

(i) in continuous and hot pursuit of a fleeing offender;

(ii) to prevent imminent bodily harm or death or loss or destruction of evidence, referred to in s.529.3 of the Criminal Code of Canada as “exigent circumstances”; and

(iii) with the express or implied consent of the homeowner. R. v. Feeney, [1997] 2 S.C.R. 13.

[59] On the facts before me, I need only consider exception (iii) above dealing with express or implied consent.

[60] A valid consent requires an informational component in order to truly be an informed consent. In other words, the consenting party must be aware of:

(i) the nature of the police conduct to which consent relates;

(ii) the right to refuse entry to the police; and

(iii) the potential consequences for allowing entry. R. v. Wills (1992), 7 O.R. (3d) 337 (C.A.); R. v. Borden, [1994] 3 S.C.R. 145; and R. v. Atkinson, 2012 ONCA 380.

[61] A valid consent must also be voluntary and not the product of oppression or other conduct that impedes the homeowner’s choice of whether to permit or deny the police entry into the home in the absence of a warrant.

[62] It is important to keep in mind the dynamics of a police–homeowner interaction and the fact that many people are uncomfortable and not on even footing with the police in these situations. Atkinson, at para. 49.

[63] It is clear on the evidence before me that the plaintiff invited the officers into his home with express words to that effect.

[64] What is equally clear on the accepted evidence is that the plaintiff did not understand the effect or potential consequences for permitting the officers to enter his home at that time.

[65] He did not know that the police had the requisite grounds to believe he assaulted Sharon Penney nor did he know that they were present to effect his arrest for this offence when he invited them into his residence. He believed that their attendance at his home, until advised otherwise once the officers were inside, was to potentially investigate damage to his motor vehicle.

[66] Upon becoming aware of why the police were in attendance, he immediately and repeatedly expressed to them, in clear and unambiguous language, the need for them to leave his residence in the absence of a warrant for his arrest.

[67] Officer Hartery properly conceded in his evidence that in the absence of an invitation into the plaintiff’s home, he would have required a Feeney warrant to lawfully enter the residence to arrest him.

[68] I am mindful of the duty of the police to respond to allegations of domestic violence as set out in s. 42 of the Police Services Act, R.S.O. 1990, c P. 15.

[69] I reject the argument by police in these circumstances that subsequent consent of the plaintiff cures any earlier trespass. There is no evidence before me that the plaintiff ever acquiesced or consented to the presence of the officers once he became aware of their intent to arrest him.

[70] I also reject the suggestion that by inviting the officers to enter his kitchen and thus potentially placing the officers in a position of danger, the plaintiff somehow cures the earlier breach.

[71] Although there is no evidence before me of any trickery on the part of the officers, I find that they made a mistake by not clearly and plainly telling the plaintiff that they were in attendance at his residence to effect his arrest for an assault on Sharon Penney. Their failure to do so before the plaintiff declined their invitation to step outside (and invited them inside) constitutes a clear and unequivocal breach of the plaintiff’s s. 8 Charter rights to be free from unreasonable search and seizure.

[72] I also accept that had the police sought out the required Feeney warrant in advance of his arrest, in all likelihood, they would have been successful in receiving judicial authorization to enter his residence.

[73] Having found a breach of the plaintiff’s protected Charter right, I now turn to whether Officer Hartery’s conduct was wilful or in bad faith.

[74] In this regard, I take into account:

(i) he asked the plaintiff to step outside knowing he did not have a Feeney warrant and knowing he could only arrest him outside of his residence if he accepted the officer’s invitation;

(ii) the invitation to enter the residence was not a valid consent and the suggestion by the officer that the presence of knives in the kitchen coupled with the belligerence of the plaintiff caused him (for officer safety reasons) to arrest the plaintiff and handcuff him is flatly rejected by me; and

(iii) he knew in advance that his only route to arrest the plaintiff was an invitation into the residence based on a valid consent.

[75] Accordingly, I am satisfied that the plaintiff has proven, on a balance of probabilities, that his s. 8 Charter rights were violated by the officers. I would not qualify the nature of the breach as “technical” and find that the actions of Officer Hartery were wilful, deliberate and in bad faith. Accordingly the plaintiff may be entitled to an award of damages under s. 24(1) of the Charter. I will address this later in my decision. Anderson v. Smith et al., 2000 BCSC 1194, at para. 55.

Excessive Force

[76] Section 25(1) of the Criminal Code of Canada authorizes a police officer to use as much force as is necessary in reasonably executing his lawful duties as a police officer.

[77] This provision protects against civil liability for reasonable mistakes of fact but not for mistakes of law, such as a trespass into a home to execute a warrantless arrest. Hudson v. Brantford Police Services Board (2001), 158 C.C.C. (3d) 390 (Ont. C.A.).

[78] The determination as to whether the use of force is excessive depends on the unique circumstances of each case. The standard of care for the use of force is that of the reasonable officer, acting reasonably in the circumstances.

[79] There is nothing in the evidence before me to establish any excessive or unnecessary use of force.

[80] Although I find the decision by the police to handcuff an individual with a cane behind their back somewhat curious, I nevertheless accept that there is no suggestion of any use of excessive force to place the handcuffs on the plaintiff or to take control of him to do so. The plaintiff is assisted to his vehicle and there is nothing to suggest that any force, other than that which was reasonable in the circumstances, was used to arrest or transport the plaintiff to the station. His complaints of discomfort were addressed by moving the handcuffs from behind him to in front of him and then removing them at the station to allow him to exit the cruiser.

[81] The fall by the plaintiff out of the police car at the police station was not as a result of excessive force. To the contrary, the police required the plaintiff to extricate himself from the cruiser. He attempted to grab the handle above the door and missed and subsequently fell out of the cruiser and onto the floor. The investigating officer was able to cushion the fall somewhat and prevent injury to his head.

[82] Although I was less than impressed with the manner in which Officer Hartery dragged the plaintiff by his arm to remove his entire body from the vehicle, I cannot say that such force was excessive. Inappropriate – yes. Disrespectful – yes. Excessive – no.

[83] Accordingly, I conclude that the force used by the officers on that day was not excessive and this claim must fail.

Negligent Operation of a Common Carrier

[84] A common carrier is one who contracts for the conveyance of others. Kauffman v. Toronto Transit Commission, [1960] S.C.R. 251. The officers did not contract for the conveyance of the plaintiff in this situation.

[85] In my view, the applicable standard of care to which they must be held is that of the reasonable officer in like circumstances. Anderson, at para. 54.

[86] I was less than impressed with the way in which Officer Hartery transported the plaintiff.

[87] It was evident to Officer Hartery that the plaintiff was uncomfortable from the onset of being placed in the back of the cruiser. He loudly and repeatedly voiced his displeasure and pain and the need for the officer to move the handcuffs from behind to the front.

[88] PC Hartery agrees that the backseat space is small and that on the odd occasion, a very large person may require another form of transportation. The investigating officer agreed that the plaintiff continued to complain during the journey to the station.

[89] The officers knew that the plaintiff used a cane and had a bad back. PC Walker agreed that he informs some tall people they can sit up and lean against the door when lodged in the rear of his cruiser. The photos shown to me of a similar police cruiser suggest very little leg room (10-11 inches at the top narrower at the bottom) between the back seat and the immovable steel cage that separates the front seat for a lot of tall or large persons being transported in the back of cruisers.

[90] There is no evidence of any erratic driving, excessive bumps or jolts, or undue delays in the approximate seventeen minute ride from the plaintiff’s home to the police station.

[91] Although troubled by the seating area made available to the plaintiff, and mindful of his disability and ongoing pain issues, I nonetheless have difficulty concluding that the behaviour of Officer Hartery in transporting the plaintiff was negligent. Disrespectful – yes. Insensitive to the needs of the disabled – yes. Negligent – no.

[92] He assisted the plaintiff in getting into the cruiser. In response to early complaints of pain, he moved the handcuffs of the plaintiff from the back to the front. At the station, he removed the handcuffs of the plaintiff.

[93] In the absence of expert evidence and on the record before me, I cannot find that the standard of care fell below that of a reasonable officer in like circumstances.

[94] I cannot fault the officer for the construction of police vehicles and safety cages placed in the rear of the vehicles. Although unimpressed by the manner in which the plaintiff was transported, I conclude that it was not unreasonable in the circumstances.

The Exit from the Cruiser and the Fall

[95] Once inside the sallyport the reasonableness of Officer Hartery’s behaviour becomes somewhat more troubling.

[99] I accept the plaintiff’s evidence that he repeatedly told the officer he was having difficulty getting out of the vehicle and that he was told to get out.

[96] When asked why he did not help the plaintiff exit the cruiser he replied, “He didn’t ask for assistance in exiting and I didn’t offer”.

[97] Officer Hartery further suggests that it looked like the plaintiff knew what he was doing when he attempted to move from one side of the cruiser to the other to try and extricate himself from the vehicle.

[98] What is patently obvious up to this point is the following:

i. The plaintiff was able to get to and in the cruiser with limited assistance;

ii. The officer knew the plaintiff was disabled, used a cane, was in a lot of pain and had complained of discomfort after being placed in the cruiser; and

iii. The officer knew that the plaintiff was able to move his body across the length of the rear seat to be able to position himself to attempt to exit the vehicle.

[100] However, I agree with the defendants that the plaintiff’s efforts at this point were the primary cause for the fall.

[101] The plaintiff reached for a handle at the top of the door to assist him in pulling himself up. His hand slipped and he fell. The officer was able to catch his head before he struck the ground.

[102] Once on the ground, Officer Hartery dragged the plaintiff by the arm until his legs were completely out of the vehicle and then, with the assistance of Officer Walker, lifted the plaintiff to his feet.

[103] Although not the model for how a person in custody should be treated after they fall from a cruiser, I am not satisfied that the conduct falls below that of a reasonable officer in like circumstances.

[104] I accept that the plaintiff’s legs would have been twisted towards the door and that the cage in the back would have allowed for little space for his knees.

[105] In short, although far from exemplary, I find that the conduct of Officer Hartery in failing to assist the plaintiff in exiting the vehicle in this manner, objectively viewed, still meets the test of the reasonable officer in like circumstances.

[106] As with earlier failed claims, I remain mindful of the general rule that the standard of care of a police officer will normally require expert evidence. 495793 Ontario Ltd., at para. 53.

Vicarious Liability of the Chief of Police, London Police Services Board, and the City of London

[107] Section 50(1) of the Police Services Act, R.S.O. 1990, c P.15 creates liability for a Police Services Board with respect to torts committed by police officers in the course of their employment. [Pringle v. London (City) Police Force, 1998 CarswellOnt 2641 (Ont. C.A.)].

[108] However, a Chief of Police, subject to few exceptions, cannot be held vicariously liable for torts committed by members of that police service in the course of their employment. Miguna v. Toronto Police Services Board, 2008 ONCA 799, at para. 83.

[109] Similarly, police officers are not servants or agents of the City of London and as such, the City cannot be held vicariously liable for their actions. G.(R.) v. Vancouver Police Board, 2012 BCSC 30; and Klein v. Seiferling, 1999 SKQB 12644.

[110] The duties of the responsibilities of the Police Services Board are set out in s. 31 of the Police Services Act. Generally speaking, the Board establishes objectives, priorities, policies and procedures. The Board cannot become involved in the day-to-day implementation of these policies nor give any orders or directions to members (other than the Chief of Police). In other words, the Board sets directions and the Chief of Police oversees day-to-day operations. Not only is the Board not authorized to supervise officer, it is prohibited from doing so. Odhavji Estate v. Woodhouse, 2003 SCC 69 at paras. 53-54; and Deciantis v. Toronto (City) Police Services Board, 106 A.C.W.S. (3d) 417 at paras. 6-9.

[111] The Police Services Board cannot be held liable for the officer’s operational actions in this proceeding. I am not prepared to attach liability to the Board for the decision of Officer Hartery to enter the residence of the plaintiff and effect his arrest in the absence of a Feeney warrant.

[112] Accordingly, these claims must fail.

Damages

[113] The plaintiff seeks $163,316.03 in special damages and $180,000 in non-pecuniary general damages for the total claim of $343,316.03. [23] A court may award damages for breach of a Charter right under s.24 (1) where it is just and appropriate to do so.

[114] The plaintiff seeks to recover for the injuries he alleges were caused by the actions of the police.

[115] Determining whether s. 24(1) Charter damages are appropriate in a civil action requires a court to consider the following four factors:

(i) Has a Charter right been breached?

(ii) If so, are damages a just and appropriate remedy? More specifically, will an award of damages address one of the following areas:

(a) compensation;

(b) vindication of the right; and

(c) deterrence of future breaches.

(iii) Are there countervailing factors that render a damages award inappropriate or unjust? and

(iv) What is the appropriate quantum of damages? Vancouver (City) v. Ward, 2010 SCC 27.

[116] Having found a clear breach of the plaintiff’s s. 8 Charter rights, I have little difficulty concluding in these circumstances that damages are a just and appropriate remedy for the plaintiff. A man’s home is his castle and the unlawful entry by the police into the plaintiff’s home constitutes a clear and substantial violation of his Charter rights.

[117] The main focus of the plaintiff’s claim for damages speaks to compensation. Vindication and deterrence address the seriousness of the officer’s conduct. Although I find the conduct of Officer Hartery to be serious and to have been carried out in bad faith, I also recognize that it was not egregious or malicious and that he likely would have been granted a Feeney warrant in these circumstances. Accordingly, these facts do not lend themselves to a substantial award for damages for vindication and deterrence.

[118] In order to recover damages as compensation for injuries, the plaintiff must establish a causal connection between the breach and the injuries suffered. In other words, he must demonstrate, on a balance of probabilities, that but for the breach of his Charter right the injuries would not have occurred. He must establish a connection between the conduct of the police that gives rise to the breach and the injuries sustained as a result of the breach.

[119] However if I am satisfied that the causes of the injury arise elsewhere such that the injuries would have been incurred even if the police had not violated the plaintiff’s Charter rights then the plaintiff will not be entitled to recovery for such injuries.

[120] Causation need not be determined with scientific precision. Courts may draw an inference of causation in the absence of medical proof. Snell v. Farrell, [1990] 2 S.C.R. 311.

[121] Additionally, the defendants must take the plaintiff as they find him and could be liable for his injuries even if they are unexpectedly severe as the result of pre-existing injuries. Athey v. Leonati, [1996] 3 S.C.R. 458.

[122] The defendants fairly acknowledge significant and extensive pre-existing injuries and also accept that the plaintiff currently suffers from extensive and more aggravated post-incident injuries.

[123] However, the defendants argue that there are no experts to opine on causation for many of the injuries and that there are substantial time gaps between the reporting of certain injuries and the incident. Simply put, the defendants argue that these two factors stand in the way of any inference of causation being drain in these circumstances.

[124] I note the following time delays and circumstances in the reporting of certain injuries:

(i) first mention - although the plaintiff insists he told Dr. Reid about this incident on earlier occasions, the first mention in the records of Dr. Reid is not until December 2011.

(ii) right knee - the first mention in the notes of Dr. Reid of any injuries to the right knee of the plaintiff is October 2013. A December 2013 report (reviewing a November 2013 MRI which reveals a tiny tear of the lateral meniscus) concludes that the right knee is “basically normal.”

(iii) left knee- the first mention in the notes of Dr. Reid of any new injuries to the left knee of the plaintiff is August 2013. Prior to the incident, a May 2010 MRI showed an oblique tear of the medial meniscus with moderate osteoarthritis. Dr. Reid’s note of March 2014 suggests that the torn meniscus is “part and parcel of degenerative arthritis.” [27]

(iv) lower back/cervical spine and neck- the plaintiff did mention pain in his lower back at the ER visit on the day after the incident. However, in a report dated November 4, 2013 Dr. Michael Chapman, orthopaedic surgeon, compared a September 2013 MRI of the plaintiff’s cervical spine, with a pre-incident MRI done in 2009 and concluded that there is “no change”. Similarly a report form Dr. Reid comparing an October 25, 2012 MRI of the cervical spine with an earlier MRI done in February 2009 concludes, “I don’t see a lot of difference in the two reports”. [28]

(v) PTSD/depression- the plaintiff testified that he put off seeing a psychologist because of his worries that his existing compensation from his earlier accident may be cut-off. Prior to this incident, the plaintiff last saw a psychiatrist in 1999 when he first went off work and was feeling depressed. In a report dated May 16, 2012 from Bill Baleka, addictions counsellor, the plaintiff speaks of having nightmares about this incident with the police. Mr. Baleka testified to numerous other stressors in the plaintiff’s life at the time such as the loss of his mother, a break-up with his girlfriend and his challenges in accessing necessary and appropriate medical care. The plaintiff is next seen by Dr. Lefcoe [29] a psychiatrist on June 20, 2013 whose report indicates that the inadequate pain control of the plaintiff has caused him to become depressed and diagnoses “chronic pain disorder- rule at mood disorder” and prescribes Nozinon to help with mood stability. An entry at p. 2 of a July 24, 2013 note of Dr. Reid speaks to him trying to get the plaintiff a psychiatrist in London to see him about his depression. The next reported visit to a psychiatrist is September 24, 2014 when the plaintiff again sees Dr. Lefcoe who now diagnoses the plaintiff with PTSD and mood disorder. Almost a year later the plaintiff has a follow-up appointment with Dr. McCurdy and Dr. Lefcoe on August 31, 2015 and at that time is given a formal referral to the traumatic stress service program for persons suffering from PTSD. Dr. Lefcoe testified that his diagnosis becomes more clear overtime because of clearer symptoms being reported, including nightmares and flashbacks.

[125] The presence or absence of opinion evidence from an expert on the issue of causation is not required in every case. Causation may be inferred from evidence capable of supporting a connection between the injuries, and the actions of the tortfeasor. The task of weighing the evidence rests with the trier of fact. British Columbia (Worker’s Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 at para. 38.

[126] I have the benefit of extensive clinical notes and records of the plaintiff. These notes and records are not expert reports within the meaning of Rule 53 of the Rules of Civil Procedure.

[127] Dr. Lefcoe, the only physician to testify, did so as a treating physician or a participant expert. As such, his evidence was limited to diagnosis, treatment and prognosis. Davis v. The Corporation of the Municipality of Clarington, 2016 ONSC 1079 at para. 37.

[128] Although I accept that I may draw an inference of causation with respect to the injuries of the plaintiff, I am not satisfied that sufficient evidence exists for me to do so for any of the alleged injuries, save and except on the issue of PTSD and depression. These injuries are simply too remote from the incident.

[129] Simply put, although it appears from closely watching the video that the lower back of the plaintiff hits the floor [32] and although it appears later in the video when the officers are trying to assist the plaintiff to stand up, that his left knee seems to give out or hit the floor, [33] I have great difficulty in causally connecting those two images (coupled with the evidence of the plaintiff) and being satisfied that the injuries depicted in the medical records are sufficiently connected. I am also concerned that many of the injuries relate to pre-existing injuries that have either worsened with time or in fact remain the same.

[130] Similarly, although I accept that the plaintiff was uncomfortably positioned in the rear of the police cruiser, I cannot determine what, if any, injuries he sustained during his transport, let alone connect such injuries casually to the medical records in evidence.

[131] I take into account the plaintiff’s repeated assertions that most doctors who treated him either wouldn’t listen to him, ignored his complaints, called him a drug addict or thought he was ranting.

[132] In no way do I diminish the extent of the pain that the plaintiff alleges he suffers. However, a combination of the extensive pre-existing injuries combined with the degenerative nature of those injuries, and the absence of any expert evidence, does not allow the plaintiff to meet the necessary evidentiary threshold to prove causation.

[133] I also cannot accept the invitation by the plaintiff to conclude that Dr. Reid’s finding of evidence of “peripheral neuropathy” on November 23, 2010, absent expert evidence, is casually connected to this incident.

[134] The exception to this finding is in the areas of PTSD and depression. More specifically, I rely on the following evidence in this regard:

(i) the plaintiff’s evidence that he repeatedly spoke about this incident after it took place and that he specifically put off seeking help for his feelings and symptoms because of fear of losing his existing compensation;

(ii) the evidence of the plaintiff’s friend, Eric Wittgruber, that since the incident the plaintiff is disgruntled and doesn’t want to do much;

(iii) the evidence of David Dixon that since the incident the plaintiff is more irritable and depressed;

(iv) the report of Dr. Reid of October 23, 3013 referring to the incident and indicating that the plaintiff “does not think about anything else day or night since that incident”;

(v) the evidence of Sharon Penney that since this incident the plaintiff is always complaining and never shuts up about the incident; and

(vi) the evidence of Dr. Lefcoe confirming the diagnosis of PTSD, mood-disorder and depression, albeit many years later but nonetheless arising from the plaintiff’s complaints of nightmares and flashbacks to the incident, irritability, low energy and difficulty concentrating. [34]

[135] Accordingly, I am satisfied that the plaintiff has demonstrated on a balance of probabilities that, but for the actions of the police, the PTSD, mood disorder and depression symptoms that he now suffers from would not have occurred.

[136] Compensation for psychiatric damages is available where the plaintiff suffers from a visible and provable illness Odhavji Estate at para. 41.

[137] Having determined that a Charter right has been breached and that the defendant officer acted in bad faith, I am satisfied that it is just and appropriate in the circumstances to award damages to the plaintiff.

[138] The objectives of an award of general damages are to compensate the plaintiff’s pain and suffering, loss of amenities and loss of enjoyment of life (ie. non-pecuniary), as well as the deprivation of liberty. Additionally, I must send a message to deter the police form future similar actions.

[139] I am aware of no countervailing factors that would render a damages award inappropriate in these circumstances.

[140] I am mindful that courts have shown considerable reluctance in making substantial awards for general damages in similar police trespass cases. [Daniluck v. Pearson, [1998] B.C.J. No. 746 (S.C.)]; and [Simon v. Toronto Police Services Board, [2002] O.J. No. 5933 (Ont. S.C.)].

[141] There is little doubt that this incident has left an indelible mark on the plaintiff. Put another way, he is psychologically scarred.

[142] It is clear that the plaintiff will require on-going psychological treatment. There is nothing before me as to the cost of such treatment. It may well be free of charge.

[143] I have little doubt that the PTSD, mood-disorder and depression of the plaintiff arising from this incident have had a debilitating effect on an already difficult life and have impacted his lifestyle, his activities and his enjoyment of life. Given the serious and substantial impact these psychological injuries have had on the plaintiff, an award of damages in the range of $20,000 - $30,000 would be appropriate. McLean v. Parmar, 2015 ABQB 62 at para. 73.

[144] In all of the circumstances, I conclude that an award for $25,000 to address the compensation for pain and suffering to deal with PTSD and depression and $7,500 to address the objects of vindication and deterrence is appropriate.

[145] I cannot accept the plaintiff’s claims for reimbursement for past costs of mobility aids, monies paid to Bill Baleka (who is not a psychologist), lost domestic capacity or future homecare costs, home accessibility and modifications costs, or non-related prescription medical costs (including medical marijuana), as none of those costs are attributable to PTSD, mood-disorder or depression.

[146] Accordingly, the total damages awarded to the plaintiff pursuant to s. 24(1) of the Charter shall be:

(i) $25,000 as compensation for psychological injuries; and

(ii) $7,500 to address the objects of vindication and deterrence.

Post Script

[147] I was very impressed by the way that the plaintiff presented his case. I was equally impressed with the patience, cooperation and kindness demonstrated by the defendant’s counsel in accommodating the plaintiff where necessary and making concessions necessary to permit the presentation of evidence.

Costs

[148] In the event that the parties cannot agree on costs, I will receive written submissions not to exceed five pages, (exclusive of Bills of Costs and Offers to Settle) from the plaintiff within 30 days and from the defendants within 30 days hereafter.

Justice M. A. Garson Released: December 21, 2016