Efthymiadis v. G4S Secure Solutions, 2016 ONSC 6605

CITATION: Efthymiadis v. G4S Secure Solutions, 2016 ONSC 6605

COURT FILE NO.: 2498/15

DATE: 2016/11/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elizabeth Efthymiadis and George Efthymiadis (Plaintiffs)

AND:

G4S Secure Solutions (Canada) Ltd., Tina Baldwin, Randy Smith, London Police Service Board, Former Chief of Police Brad Duncan, Constable Darrin Brown, Constable Monica Loureiro, Minto Properties Limited, Jan Hetherington (Defendants)

BEFORE: Justice H. A. Rady

COUNSEL: Elizabeth Efthymiadis and George Efthymiadis, self-represented

B. Luan, for the defendants, London Police Service Board, Former Chief of Police Brad Duncan, Constable Darrin Brown, Constable Monica Loureiro

The other parties not participating.

HEARD: October 12, 2016

ENDORSEMENT

introduction

[1] The moving party defendants seek an order dismissing the claim against Brad Duncan. They rely on Rule 21.01 and submit that the claim discloses no reasonable cause of action against him; no substantive relief is sought against him; and the limitation period has expired in any event. Mr. Duncan has now retired but at the relevant time, he served as the Chief of the London Police Service.

[2] The plaintiffs have sued the defendants arising from a noise complaint made against them. They allege that during the course of a police investigation on December 13, 2012, officers with the London Police Service prepared certain notes and records that contained false and malicious statements about the plaintiffs, which has caused or will cause them injury and emotional harm.

[3] For the reasons that follow, I have concluded that the motion should be granted.

The Pleadings

[4] In order to understand my disposition of the motion, it is necessary to outline the chronology respecting the evolution of the statement of claim.

[5] A notice of action was issued on November 17, 2015 naming G4S Secure Solutions (Canada) Ltd., Tina Baldwin, Randy Smith, London Police Service Board, London Police Service, Constable Darrin Brown, Constable Monica Loureiro, Minto Apartments Limited [now styled as Minto Properties Limited], Jan Hetherington as defendants. Mr. Duncan was not named as a defendant. The notice of action was amended on December 18, 2015. Mr. Duncan was not named as a defendant.

[6] A statement of claim was prepared and is dated December 16, 2015. It is not clear to me whether the claim was actually issued by the court office but a copy is in the court file and defences were delivered. In any event, nothing turns on this for the purposes of the motion. Mr. Duncan was not named as a defendant in the claim.

[7] An amended claim followed on February 22, 2016. It does not name Mr. Duncan as a defendant.

[8] An amended amended claim was issued on March 29, 2016 and for the first time, Mr. Duncan is named as a defendant.

[9] In their most recent claim, the plaintiffs seek damages totalling $1,220,000 from the defendants (except Mr. Duncan). The claim breaks down that sum and specifies how much is sought from each defendant or group of defendants. For example, damages totalling $10,000 are sought against Minto by each plaintiff. Damages totalling $1,200,000 are claimed from the London Police Services Board. No claim for damages is made against Mr. Duncan.

[10] All of the defendants have delivered statements of defence to the current claim.

[11] As already noted, the claim arises from police investigation of a noise complaint occurring on December 13, 2012. Officers Brown and Loureiro attended at the site of the complaint and as a result of their investigation, they prepared a general occurrence report and other police documents.

[12] The allegations against Mr. Duncan are as follows:

2. G4S, Tina Baldwin, Randy Smith, LPS, LPSB, former Chief of Police Brad Duncan, const. Brown, const. Loureiro knowingly produced and/or allowed the production of false, inconsistent, and unlawful reports regarding the occurrence of December 13, 2012, which caused and continue to cause damage and distress to the plaintiffs insofar as the intentional misrepresentations and misinformation in the reports, which are recorded in police database and in G4S and Minto files, characterize both plaintiffs in a way that stigmatizes them permanently resulting in negatively impacting all and any future interaction with the police force as well as the plaintiffs’ ability to rent freely and unhindered. These false reports were maliciously and unlawfully redacted to intimidate, discredit, and bring injury to the plaintiffs for the defendants’ own purposes, which were to shield those organizations and/or individuals liable for Randy Smith’s (G4S security guard) allegation addressed to Elizabeth during the occurrence.

III RELIEF CLAIMED

3. The plaintiffs, George Efthymiadis and his sister, Elizabeth Efthymiadis, claim:

(a) a declaration that one, or more of the defendants were negligent, conspired, and/or committed a tort of misfeasance of public office, made unlawful and/or malicious representations, and/or committed an invasion of privacy, and/or were in breach of duty of care, and/or aimed at intimidating and discrediting the plaintiffs, and/or intentionally inflicted injury and emotional harm and are liable in damages.

(e) a declaration that the defendant LPSB is vicariously liable for the acts and omissions of former Chief of Police Brad Duncan, const. Brown, const. Loureiro;

(f) a declaration that the defendant G4S is vicariously responsible for the reports, acts and omissions of its employees, Randy Smith (G4S security guard) and Tina Baldwin (G4S National Director of Human Resources and Labour Relations).

(g) a declaration that in her description of events in section 9 of G4S Response Tina Baldwin makes false, and/or unlawful, and/or malicious representation.

(h) a declaration that Minto is vicariously responsible for Minto’s Response and for the acts and omissions of its administrator Jan Hetherington;

(i) an order that the false representations and misinformation regarding the occurrence be struck in G4S, the LPS, and Minto databases/files, and in the records of any other organization or authority where the false representations and misinformation were/may have been transmitted.

12. At all material times, Brad Duncan was the London Chief of Police The LPS is the police force in London, ON, who was is responsible for the issuance of reports regarding the occurrence and for decisions regarding disclosure and release of information.

13. The plaintiffs state that the afore mentioned damage was caused by the defendants’ negligence, and/or conspiracy, and/or breach of duty of care, and/or misfeasance of public office, and/or intimidation and discrediting the plaintiffs, and/or unlawful and malicious action, and/or invasion of privacy, and/or intentionally inflicted injury and emotional harm, the particulars of which are as follows: …

D. As to the defendant Brad Duncan, former Chief of London Police London Police Services, responsible for the issuance of reports regarding the occurrence and for decision regarding disclosure and release of information, claim for whose negligence, conspiracy, breach of duty of care, misfeasance of public office, intimidation and discrediting, unlawful and malicious action, invasion of privacy, intentionally inflicted injury and emotional harm, the Defendant LPSB is in law responsible:

(a) through their constables, Darrin Brown and Monica Loureiro and other employees, he the LPS committed numerous acts and omissions and made numerous decisions that cause damage and distress to the plaintiffs.

(b) he they knew, or should have known, that failure to act with reasonable care would create damage to the plaintiffs by stigmatizing them in police database and in G4S and Minto files.

(c) his decisions They allowed the production of the false, unlawful and malicious allegations and misinformation in the LPS Call Hardcopies, the SCH/FIH, and in the LPS their Response. reports referred to hereinbefore in paragraphs 41, 43, and 50.

(d) his They conspired with G4S and Minto in their decisions allowed the production of to make misrepresentations with the intent to intimidate, discredit, and bring injury to the plaintiffs.

(e) His decisions allowed the picking and misusing of They picked and misused words, from Jan Heatherington’s report of the October 17, 2012 visit (falsely attributed to Randy Smith who did not attend), to maliciously formulate allegations in the Call Hardcopies Hardcopy, the SCH/FIH, and the LPS their Response.

(f) They were negligent and committed unlawful actions in their misrepresentations and misinformation with intent to intimidate, discredit, bring injury, and intentionally inflict emotional harm to the plaintiffs.

(g) his decision aimed They undertook these actions maliciously and unlawfully and for their own purposes aiming at shielding G4S and Minto from liability.

(h) They were negligent, unreasonable, malicious, and unlawful in His decision allowed the production of false allegations and misinformation in the LPS Call Hardcopies issued up to October 23, 2013, and new allegations and a novel narrative in the SCH/FIH issued on November 22, 2013 and in the LPS their Response.

(i) he They failed to disclose Elizabeth’s complaint regarding the vibrations and instead maliciously allowed issued the production and release of a novel narrative and new allegations in the SCH/FIH.

(j) he They failed to exercise reasonable care in his decisions their activities in order to avoid injury to the Plaintiffs.

(k) he They knew or should have known that injury to the plaintiffs would ensue.

(l) he was They were unreasonable to refuse to change the false allegations and false narrative in the Call Hardcopies Hardcopy and the SCH/FIH.

(m) he They knew or should have known that the unproven allegations provided in the LPS their Response to Elizabeth’s first Application to the HRTO would unfairly damage the reputation of the plaintiffs and jeopardize the outcome of the Application.

(n) he They intentionally, maliciously, and unlawfully allowed the invasion of invaded George’s privacy and brought him injury by disclosing, in the LPS their Response to Elizabeth’s first Application to the HRTO, George’s his personal information and imputing him disputed and unproven allegations although George he was not an Applicant in the HRTO Application.

(o) he They knew or should have known that the Schedule A record they submitted in the LPS their Response listing the allegations pertaining to Elizabeth and George was well beyond the cause of complaint in Elizabeth’s first application to the HRTO and deliberately decided to bring injury to the plaintiffs.

(p) he They failed to implement or enforce appropriate standards of conduct for the two Defendants police their constables.

The Law

[13] Rule 21.01 provides as follows:

21.01 (1) To any party on a question of law – 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.

(2) No evidence is admissible on a motion,

(a) under clause (1)(a), except with leave of a judge or on consent of the parties;

(b) under clause (1)(b).

[14] Where it is plain and obvious that a claim has no reasonable chance of success, it should be struck. The rule is designed to enable the court to weed out claims that cannot succeed, in order to ensure a healthy, responsive and effective system of civil litigation.

[15] Motions to strike proceed on the basis that the facts alleged are true. However, if the allegations are manifestly incapable of proof or patently ridiculous, a court is not obliged to assume their truth: Ang v. Premium Staffing Ltd., 2015 ONCA 821; Falloncrest Financial Corp. v. Ontario (1995), 270 R. (3d) 1 (C.A.).

[16] Rule 21.01 also is an appropriate mechanism to determine a limitation issue in the absence of factual disputes and if it is pleaded defensively. See Charlton v. Beamish, 2004 CanLII 35934 (ON SC), [2004] O.J. No. 4540 (S.C.J.).

[17] It is helpful to set out here the relevant provisions of the Police Services Act:

2 “police officer” means a chief of police or any other police officer, including a person who is appointed as a police officer under the Interprovincial Policing Act, 2009, but does not include a special constable, a First Nations Constable, a municipal law enforcement officer or an auxiliary member of a police force;

30(1) A board may contract, sue and be sued in its own name.

(2) The members of a board are not personally liable for the board’s contracts

38 A municipal police force shall consist of a chief of police employed by the police force and such other police officers employed by the police force and other employees of the police force as are adequate, and shall be provided with adequate equipment and facilities.

41 (1) The duties of a chief of police include,

(a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31(1);

(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;

(c) ensuring that the police force provides community-oriented police services;

(d) administering the complaints system in accordance with Part V.

41(1.1) Despite any other Act, a chief of police, or a person designated by him or her for the purpose of this subsection, may disclose personal information about an individual in accordance with the regulations.

41(1.2) Any disclosure made under subsection (1.1) shall be for one or more of the following purposes:

1. Protection of the public.

2. Protection of victims of crime.

3. Keeping victims of crime informed of the law enforcement, judicial or correctional processes relevant to the crime that affected them.

4. Law enforcement.

5. Correctional purposes.

6. Administration of justice.

7. Enforcement of and compliance with any federal or provincial Act, regulation or government program.

8. Keeping the public informed of the law enforcement, judicial or correctional processes respecting any individual

41(2) The chief of police reports to the board and shall obey its lawful orders and directions.

50(1) The board or the Crown in right of Ontario, as the case may be, is liable in respect of torts committed by members of the police force in the course of their employment.

[18] Various regulations are made under the Act including O. Reg. 3/99 which sets out the Chief of Police’s obligations respecting the adequacy and effectiveness of his or her police force.

Analysis and Disposition

[19] There is no question that the claim plainly and obviously cannot succeed for three reasons. First, no claim for damages is advanced against Mr. Duncan. The only relief pleaded is for a declaration.

[20] The court has the discretion to grant declaratory relief alone. However, it should not do so unless the case is “genuine, not moot or hypothetical and the declaration [is] capable of having practical effect in resolving the issues the case raises”: Monks v. ING Insurance Co. of Canada, 2008 ONCA 269 quoting from Solosky v. Canada, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821.

[21] In the present case, while the case is not hypothetical, a declaration would have no practical effect or provide substantive relief to the plaintiffs.

[22] Moreover, Mr. Duncan is no longer with the London Police Service and a declaration would have no practical effect on his responsibility, if any, for report preparation or supervision of officers. As a result, the claim would fail on this basis.

[23] Second, the claim against Mr. Duncan was commenced more than two years after the plaintiffs knew or with the exercise of reasonable diligence ought to have known the facts on which they base their claim. The essence of the claim arises from the December 2012 investigation and the preparation of certain reports, all of which were disclosed to the plaintiffs on October 23, 2013. The notice of action was issued within two years of that date but did not name Mr. Duncan. The first time he is named is in the amended amended claim dated March 29, 2016, more than three years after the events giving rise to the lawsuit.

[24] The plaintiffs have provided no explanation why they did not or could not have identified Mr. Duncan as a defendant. No allegations respecting discoverability are pleaded.

[25] Nor is this a case of misnomer as the plaintiffs have suggested. The test for misnomer is the often cited “litigating finger” test. The issue is whether upon receiving a claim, a defendant would recognize him or herself as a target. Here, the litigating finger pointed directly at the London Police Service and the two officers, at least until the amended amended claim was delivered more than three years later. Until then, Mr. Duncan would not recognize that he was a target of the lawsuit, even on the most generous reading of the earlier pleadings.

[26] Finally, it is clear from a reading of the several incarnations of the claim that the plaintiffs’ allegations as originally framed were directed at the London Police Service. In their latest amendment, they simply substitute Mr. Duncan for the London Police Service and make no additional or meaningful allegations against him. The claim as now framed is essentially a “cut and paste” from its earlier version.

[27] Read generously and making allowance for pleading deficiencies and the fact that the plaintiffs are self-represented, the essence of the claim is that certain members of the force acted improperly and Mr. Duncan is therefore responsible. However, the Police Services Act does not impose vicarious liability on chiefs of police for the tortious conduct of the force’s members. There are no allegations that Mr. Duncan acted outside the course or scope of his employment. Accordingly, no independent cause of action exists. The claim cannot succeed on this basis.

[28] The pleadings are also otherwise deficient. To the extent that participation in a conspiracy is alleged, it must fail because it is not properly pleaded. See Berry v. Pulley (2015), 2015 ONCA 449, 335 O.A.C. 176.

[29] Similarly, bad faith or dishonesty is an essential ingredient of the tort of misfeasance in public office. The full particulars that are required are absent here. See Conway v. Law Society of Upper Canada, 2016 ONCA 72.

[30] For all of these reasons, the claim is struck without leave to amend.

[31] I will receive brief submissions on costs – if demanded – from the defendants by November 16 and the plaintiffs by November 23.

“Justice H. A. Rady”

Justice H. A. Rady

Released: November 1, 2016