CITATION: Roda v. Toronto Police Services Board, 2016 ONSC 743
COURT FILE NO.: CV-11-422325
DATE: 20160129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Frank Roda
Plaintiff
– and –
Toronto Police Services Board; Detective Timothy Kavanagh, Major Crime Unit; P.C. Bronagh Fynes; Ronald Hitti and Brian Rowsell
Defendants
Frank Roda in person;
M. Brady and P. Ma, for the Defendant/Moving Party Toronto Police Services Board and P.C. Bronagh Fynes
HEARD: 25 and 26 January, 2016
REASONS FOR JUDGMENT
S.F. Dunphy J.
[1] On December 12, 2006, Mr. Frank Roda was arrested. He was charged with several offences, among them extortion, forcible confinement, possession of property obtained by crime and fabrication of evidence. Following a preliminary inquiry conducted before Gage J., he was committed for trial on these charges on April 16, 2008. On October 24, 2009 Mr. Roda was found not guilty of all charges after a trial before a jury.
[2] Mr. Roda believes that he has been the victim of a number of torts committed by the in relation to the events leading to his arrest. On March 16, 2011, he launched the present civil claim against Toronto Police Services Board, Officer Kavanagh and Detective Fynes (the latter having been the officer in charge of the investigation and a Constable at the relevant time) as well as the two alleged victims of the crime with which he was charged, Mr. Hitti and Mr. Rowsell. The claim as against Mr. Hitti and Mr. Rowsell has since been discontinued; that against Mr. Kavanagh was dismissed in a previous motion.
[3] The only two remaining defendants are the TPSB and Detective Fynes. This motion for summary judgment has been brought by them seeking to have the entire claim as against them dismissed.
[4] While the civil action was commenced within two years of Mr. Roda’s acquittal by the jury, all or substantially all of the incidents giving rise to the various civil claims under review on occurred between June and December, 2006. As such, a very significant issue in this case is the degree to which the alleged causes of action are barred under the Limitations Act, 2002, S.O. 2002, c. 24.
[5] For the reasons given below, I have concluded that this motion must succeed and the action of Mr. Roda against these last defendants should be dismissed. Many of his complaints relate to causes of action that arose much more than two years prior to the commencement of his action and the elements of those claims were either known at the time or discoverable with reasonable diligence (even if all of the evidence in support of the claims was not in his possession). He has failed to discharge his onus of establishing why such claims were not discoverable within the meaning of the Limitations Act. Such claims are therefore barred under the Limitations Act.
[6] The principal focus of the plaintiff’s complaint however is clearly that of negligent investigation, a claim is not barred by the Limitations Act. The evidence before me establishes that the remaining defendants had reasonable and probable grounds for laying the criminal charges that were laid even if those charges were not ultimately upheld at trial. I am satisfied on the record before me that Detective Fynes and the TPSB met the standard of a reasonable police officer conducting such an investigation. They acted based upon sworn testimony of alleged victims that, if believed, would have justified the charges and a conviction. Even the plaintiff’s statement of claim qualified the story as told by these two as “believable”. While that testimony ultimately proved insufficient to persuade the jury beyond a reasonable doubt in this case, I can find no basis to conclude that their investigation fell below the standard required by the law.
[7] I can certainly appreciate that Mr. Roda views this case as the only available response to what for him appears as a mere civil dispute with Mr. Hitti that was suddenly transformed into a serious criminal matter that produced very dire consequences for his life over an extended period of time. However, I cannot find on the record before me that a trial is required to determine the liability of these two remaining defendants. While the plaintiff may not appreciate it, it is in the interests of justice and of all of the parties that a case that cannot succeed should end before still more time, costs and energy are devoted to it. The parties have each had ten months to put their best foot forward and assemble the evidence necessary to convince the court of their case or the reason why a trial is necessary to make that determination in the interests of justice. Upon a thorough and realistic review of the evidence so assembled I can find no basis to put the parties through it all yet again at trial. It is time to turn the page on the story of Mr. Roda’s arrest and acquittal and allow all sides to move on.
Facts and Overview
(a) Procedural Overview
[8] Mr. Roda represented himself in this case. A great many litigants choose to do so before our courts and the core principle of access to justice requires that we make such accommodations as are reasonably required to permit all citizens to seek justice before our courts. Mr. Roda is also visually handicapped and additional accommodations are required in order to ensure that such handicap does not preclude Mr. Roda from exercising his rights effectively. Accommodations granted must always be balanced with the rights of other litigants to be heard and receive decisions in a reasonable time line as well.
[9] Mr. Roda indicated at the outset of the hearing that, while he was prepared to move forward with the hearing if required to do so, he thought an adjournment would be appropriate in order to enable him more fully to incorporate into his written argument the transcript of the examination of Detective Fynes that he only received on December 23, 2015. I declined to order an adjournment on that basis. In my view, the scheduling and hearing of this motion have both provided him with every reasonable accommodation. In particular:
a. Mr. Roda has been afforded a very long period of time to prepare responding materials and answer this motion; and
b. Mr. Roda has used the services of an assistant, Ms. Guschewski, who has been able to act as his assistant both for preparation purposes and at the hearing for the purpose of reading aloud the materials he wished to refer the court to.
[10] Mr. Roda and his assistant were both present at the cross-examination on October of Detective Fynes on her affidavit and, even without the actual transcript, he was not precluded from referencing information learned at the cross-examination in formulating his written argument (even if subject to some level of “clean up” after receipt of the actual transcript). I had available to me his complete written argument and the full transcript and was able to review both. Furthermore, the delay in getting the cross-examination conducted was at least partly a result of the time taken by him to get his own responding materials delivered in the first place since he had been advised that this was a pre-condition to conducting such a cross-examination.
[11] In the circumstances, I ruled that there has been more than adequate time to review and respond to this motion on the merits having regard to Mr. Roda’s handicaps. His impressive command of the evidence demonstrated at the hearing more than confirmed my assessment. Accordingly, the hearing was held and the request for an adjournment denied.
[12] As noted, Mr. Roda proceeded with the aid and assistance of a sighted assistant, Ms. Gushewski. I was required to interrupt Ms. Gushewski at the hearing on a number of occasions to remind her of her auxiliary role as an assistant to a visually impaired litigant and not an advocate or a co-advocate. Subject to the occasional instance where her enthusiasm and passion for the subject got the better of her, Ms. Gushewski confined her role to assisting Mr. Roda by reading his notes or quoting from the evidence when asked. Mr. Roda by and large handled the argument on his own and clearly demonstrated a good level of familiarity with the evidence and his claims.
(b) Summary of the Claims and Factual Background to them
[13] As noted, Mr. Roda is not a lawyer. While the Rules of Civil Procedure do not mandate one set of rules for parties with lawyers and another, less restrictive set of rules for self-represented litigants, I am mindful of the limitations inexperience and unfamiliarity with the “legal world” imposes on the lay litigant. While maintaining an even hand between the opposing parties, the broad principles contained in Rule 1.04 of the Rules of Civil Procedure afford me some latitude in having regard to the spirit of the Rules more than the strict letter in instances such as the present while ensuring an even-handed application of the Rules to all parties.
[14] All allowances made, however, the Statement of Claim in this case required a very careful and thorough reading in order to tease out of the language employed the true nature of the complaints being advanced. Evidence, argument and commentary are present throughout the pleading, camouflaging to some degree the claims against the remaining defendants and their particulars.
[15] The following summary, appears to be a complete statement of the claims before me (and Mr. Roda accepted it as being a reasonably complete summary when I read it out to him):
- Negligent investigation of the charges made by the defendants;
- False Arrest;
- The use made of Mr. Roda’s allegedly forged signature on a legal document (a storage agreement relating to some sound equipment);
- Perjury (Detective Fynes is alleged to have given trial evidence at variance from her notes);
- Trespass to property (Detective Fynes allegedly stayed on site of one of the search warrants beyond the time stipulated in the warrant);
- Conversion of his property (removal of the sound equipment referred to above);
- Intentional Infliction of Nervous Shock (arising from the arrest);
- Conspiracy between Mr. Hitti and Mr. Rowsell; and
- Conspiracy between Detective Fynes and the TPSB to suppress documents or evidence (documents relating to the competing claims to ownership or possession of the sound equipment).
[16] The following is a very high level summary of the facts required to put these allegations in context.
[17] Mr. Roda described the genesis of the civil dispute he says is at the root of this case in his statement of claim and in the affidavit he filed in connection with this motion as follows. In February 2006 he was introduced to the (former) defendant Mr. Hitti, a nightclub owner who was seeking a short-term loan. Mr. Roda agreed in a handshake transaction to lend $35,000 to Mr. Hitti with interest to be charged at the rate of 1% (or $350) per week. According to Mr. Roda, the collateral for the loan was to be a sound system used at the nightclub either owned or run by Mr. Hitti. Mr. Roda’s affidavit says that the sound system was worth $300,000. The evidence was that the equipment was quite bulky - filling almost to capacity an 18 wheel tractor trailer.
[18] Mr. Roda’s affidavit contains extracts from Mr. Hitti’s testimony at Mr. Roda’s trial where he described the loan as being at a rate of $2,000 per week interest. He also claimed that the loan had been fully repaid before June 2006 – an allegation Mr. Roda disputes. Nothing turns on the differences in their stories for present purposes.
[19] It is common ground that the loan was not documented in any way. Cash changed hands the next day in a bag and a handshake was the only evidence of their agreement. Mr. Hitti described it as “street money”, a phrase Mr. Roda did not himself adopt but which seems descriptive.
[20] Mr. Hitti and his company had acquired the sound equipment in a transaction involving Allan and Verna Parss who were his (former) partners in one of the nightclub operations and with whom he had a falling out. A dispute arose between Mr. Hitti and the Parsses.
[21] On March 13, 2006 Seppi J. made an interim order for the preservation of personal property (being the sound equipment listed in Schedule A to such order) in an action commenced by Allan and Vesna Parss against Mr. Hitti and others. Pursuant to such order, Mr. Hitti and his agents, employees were prohibited from selling, disposing, transferring or otherwise encumbering the listed property. The interim order was confirmed in a further order of Quigley J. dated March 16, 2006. This order also required that tags be attached to the equipment containing a warning that the property was protected by court order and should not be sold or transferred.
[22] The loan fell into default some time in March or April 2006 according to the plaintiff (it was repaid in full according to Mr. Hitti). Mr. Hitti’s nightclub lost its license and was closed.
[23] All sides appear to agree that the sound equipment was moved in April 2006 to the location of a warehouse located business operated by Mr. Roda’s brother on Bartor Rd. in Toronto. The business was known as “Orion Casket Co.” or “Factory Direct Orion Casket”. There is little agreement between the parties as to the circumstances of the move and indeed I had considerable trouble reconciling Mr. Roda’s affidavit on the subject to his own statement of claim. Nothing turns on the matter so I find no reason to delve deeper – there is no dispute from any party that the goods were stored at Orion Casket on Bartor Rd. from April 2006 until seized by the police in December 2006.
[24] By June 15, 2006 Mr Hitti had still not repaid the loan according to Mr. Roda (Mr. Hitti disagrees). Mr. Roda was getting worried. On his telling of it, Mr. Roda was the victim of fraudulent dealings by Mr. Hitti. Mr. Hitti was still unable to repay the loan. Mr. Hitti offered to provide Mr. Roda with a “Certification” transferring ownership. While drafted as a simple transfer of title, Mr. Roda’s evidence clearly indicates that it was given in return for a further grace period to repay the loan as a form of security. The equipment at that time (June 15, 2006) had been in the Orion Casket warehouse since April.
[25] Shortly after receiving the Certification, Mr. Roda sent it to his lawyers who advised him that the equipment was subject to a PPSA filing and directed him to the Brampton court house (of Seppi J. and Quigley J.) for more information.
[26] Soon thereafter, Mr. Roda entered into negotiations with the lawyer for Parss family, Mr. Trethewey. He sought to negotiate a deal with Mr. Trethewey and his clients that would permit him to redeem their security.
[27] In the course of those negotiations, Mr. Roda claims to have received a copy of a storage agreement that he was alleged to have entered into (on behalf of “OFD Caskets Inc.”) and signed with Mr. Hitti also dated June 15, 2006. The alleged storage agreement purports to be witnessed by the other (former) defendant, Mr. Rowsell. In Mr. Roda’s view, the alleged storage agreement is and was a forgery. He denies ever having entered into it. As shall be seen, Mr. Hitti took the same view of the Certification leaving two documents dealing with the status of the sound equipment, both dated June 15, 2016 but to very different effect.
[28] I make no finding as to which of the two documents dated June 15, 2006 was genuine and which was a forgery beyond noting (i) the controversy on the point as raised by Mr. Roda; and (ii) the fact that superficially at least all of the signatures on the documents attributed to Mr. Roda appear similar to an inexpert eye even if only one of the documents is acknowledged by him whereas the two signatures attributed to Mr. Hitti are manifestly quite different.
[29] The difference between Mr. Roda having control over the equipment at his brother’s business premises under the transaction he described vs. the alleged storage agreement suggested by Mr. Hitti is that in the one case he claimed to have title to the goods (albeit as security for payment of the outstanding but growing debt) whereas in the other, he (or his brother’s company) would only have been entitled to some fees for storage in respect of equipment owned by another.
[30] As of October-November 2006, Mr. Roda’s evidence and argument appears to concede on at least four points in this otherwise cloudy picture that are not in dispute: (i) he became aware that Quigley J. had ordered the sound equipment safeguarded by Mr. Hitti and prohibited anyone from dealing with it; (ii) at least three parties (Mr. Hitti, the Parss family represented by Mr. Trethewey and Mr. Roda) were all claiming some interest in the equipment; (iii) the only written agreement that he could rely upon to claim a security interest was the “Certification” dated June 15, 2006 and this post-dates the PPSA registrations and court orders in favour of the Parss family; and (iv) the equipment had been sitting quietly in storage since some time in April 2006 in the premises of the business of Mr. Roda’s brother on Bartor Rd in Toronto. I do not believe that more than these four points are relevant for purposes of my limited inquiry into that civil matter.
[31] Mr. Roda’s affidavit contains an exchange of correspondence between himself and lawyers for Mr. Hitti and the Parss family in November indicating that the battle lines were being drawn between the three camps. Mr. Roda’s (limited) contribution to that correspondence among the parties quite deliberately declines to state how much he claimed to be owed by Mr. Hitti (although Mr. Hitti’s lawyer appears to have been told that $70,000 plus fees was owing). His correspondence is also clear that the interest claimed was that of a lien holder not outright owner.
[32] The foregoing is, in effect, merely the introduction to the actual dispute here. I am not asked here to rule on title to the equipment itself nor on the validity or priority of the various security interests apparently advanced by the parties. I do not need to resolve those disputes. The police and Mr. Roda’s eventual arrest had no direct connection to the merits of that essentially civil dispute (as to who was ultimately entitled to ownership or possession of the sound equipment).
[33] The defendants argue that that civil dispute about ownership or rights in the equipment is of only secondary relevance to this case. I agree with that characterization. The criminal charges laid against Mr. Roda on December 12, 2006 arose not from the civil dispute per se but from steps that it was alleged he took in furtherance of his claim in that dispute. Those steps, the police alleged, amounted to the criminal offence of extortion.
[34] Obviously, no one is entitled to advance a just claim by means of threats of violence instead of through agreement or due process before the courts. I hasten to add that Mr. Roda denies that any such events actually took place and clearly the jury found that the evidence did not support a conviction on that charge beyond a reasonable doubt. I must turn now to examine the circumstances directly leading to the charges against Mr. Roda.
[35] Mr. Rowsell was an associate and long-time friend of Mr. Hitti. In 2006 he was employed as a sales agent for a central vacuum system manufacturer. He did not have any business dealings with Mr. Roda in his own right, although he did undertake some discussions with Mr. Roda as an intermediary for Mr. Hitti when the latter was out of town.
[36] It is alleged that Mr. Rowsell attended a business meeting with Mr. Roda on October 20, 2006 to discuss matters on behalf of Mr. Hitti. During that meeting, Mr. Rowsell claimed that the briefcase in his car was stolen and that documents from it came into Mr. Roda’s possession. No police complaint was laid at the time.
[37] On November 27, 2006 Mr. Rowsell alleged that he was lured to a restaurant on Renforth Drive for the ostensible purpose of making a sales pitch for his vacuum system. Once there, he was confined to a room until Mr. Roda arrived. When Mr. Roda arrived, it is alleged that Mr. Rowsell was forced to sign a false affidavit affirming that he witnessed Mr. Hitti sign Mr. Roda’s name to the storage agreement and that the document was thus a forgery. The affidavit also claimed to be sworn before a commissioner (it was not) and that Mr. Rowsell feared for his life from Mr. Hitti. Mr. Rowsell also claimed to have been forced to sign a promissory note for $300,000. Finally, it was alleged that he was forced to promise to pay a $12,000 “crematorium consulting fee” to Mr. Roda by the end of the week (Mr. Roda worked out of his brother’s casket business premises) for the “costs” of the meeting at which he had been forcibly confined.
[38] Mr. Roda claims that the above story is an almost complete fabrication. He admits to a friendly meeting over dinner at his cousins’ restaurant on Renforth Drive. Substantially every detail implying force or extortion is hotly denied. However, even Mr. Roda’s statement of claim characterized Mr. Rowsell’s story as “believable”.
[39] The next day, Mr. Rowsell made a complaint to the police consistent with the story related here. An occurrence report was opened and Detective Fynes of the Major Crimes Unit was assigned the case to investigate. There is no great dispute between the parties as to what steps were undertaken in furtherance of the investigation prior to the arrest of Mr. Roda on December 12, 2006. In summary, the following events, among others occurred:
a. Const. Fynes attended at the plaza where the restaurant was situated to see whether any video surveillance cameras could provide useful evidence (there was nothing useful);
b. Mr. Rowsell was called back in to be sworn and give a detailed video deposition (which is in evidence before me);
c. Mr. Hitti was also brought in to provide sworn evidence (although he was not a witness to the alleged extortion events);
d. Warrants to obtain wiretap evidence were obtained;
e. A warrant to search the premises on Bartor Rd. was obtained; and
f. A meeting was arranged to take place in the west end of Toronto (at Sherway Mall) to permit Mr. Rowsell to pay the alleged “crematorium consulting fee” of $12,000 in kind by way of cartons of cigarettes at a “drop” to be monitored by the police.
[40] On December 12, 2006 the “cigarette drop” operation did not go according to plan. Mr. Roda ultimately did not accept the cigarettes and the recorded wire evidence contained no clear corroboration by Mr. Roda of the story related by Mr. Rowsell. Mr. Roda was arrested along with several of his colleagues (their names and subsequent fate are not relevant to this case).
[41] More or less simultaneously, the search warrant was executed at the Bartor Rd. location. During the search of the Bartor Rd. location, the two documents that Mr. Rowsell claimed that he was forced to sign by Mr. Roda were located (the $300,000 promissory note and the affidavit disputing the authenticity of the storage agreement). These partially corroborated Mr. Rowsell’s story about circumstances of the November 27 meeting at the restaurant on Renforth Drive. In addition, an Alberta Blue Cross document belonging to Mr. Rowsell was found in a desk drawer, partially corroborating his claim about the meeting on October 20 where his briefcase was taken as well.
[42] Const. Fynes said that the sound equipment subject to the order of Quigley J. was found to be on the premises. Before leaving, she took steps to contact Mr. Hitti who attended that evening to remove the equipment. Const. Fynes claims the equipment was clearly tagged to identify it as belonging to Mr. Hitti. This would appear to be consistent with the tags ordered to be affixed by Quigley J.
[43] Mr. Roda quite adamantly maintains that there were no such tags on the equipment. This issue is one of the few issues arising where there is a sharp contradiction on the evidence as between the parties. Without challenging Mr. Roda’s sincerity or minimizing his handicap, I must note that he does not personally have the capacity to see the tags and could not have noticed the tags or their absence with his own eyes. If he is relying on the evidence of others to make his assertion, he has not named the source of his information or produced an affidavit positively to affirm that no such tags were present. Detective Fynes was at the premises executing the search warrant and categorically affirms that she saw the tags.
[44] I accept her evidence over Mr. Roda’s on this point. I cannot find that a trial judge would be in a better position to resolve the issue at this point based on the evidence of these two witnesses and, for the reasons expanded upon below, the matter is of only minor relevance in terms of the over-all claim.
[45] Mr. Roda was charged as follows:
- Conspiracy to commit indictable offence (on November 27, 2006 at Renforth Drive);
- Extortion (November 27, 2006 at Renforth Drive);
- Forcible Confinement (November 27, 2006);
- Possession of Property obtained by Crime (Bartor Rd., December 12, 2006); and
- Fabricating Evidence (November 27, 2006).
[46] Detective Fynes summarized the post-arrest investigation in her affidavit. Search warrants to search phone records were obtained. A witness list containing the names of all of the officers involved in aspects of the investigation from a variety of police divisions and mobile units who were potential trial witnesses runs to several pages.
[47] At the conclusion of the preliminary hearing on April 16, 2008, Gage J. committed Mr. Roda to trial on all five counts. On the first count, Gage J. ruled that the evidence of the meeting on November 27, 2006 and the subsequent meeting at Sherway Gardens “provides a factual foundation on the basis of which a properly instructed jury acting reasonably could find beyond a reasonable doubt that Brodhead and [Mr. Roda] …were in attendance at the meeting and … conspired together to extort money from Brian Rowsell”. Mr. Roda did not contest committal on the second and third counts. The fourth count related to the possession of the sound equipment. On this, Gage J. noted that the defence alleged “Mr. Frank Roda acquired possession of the property lawfully. In the absence of paying for storage fees due he was entitled to retain the property”. Gage J. nonetheless retained the charge since the Crown argued that the possession became unlawful “when Mr. Hitti demanded its return and Mr. Roda refused to return the goods and told Mr. Hitti the speakers had been sold and moved out of the jurisdiction” and that, based on Mr. Hitti’s evidence, a jury, properly instructed could infer that Mr. Roda had converted the property to his own use. Finally, Mr Roda was committed on the fifth count as well. Although the promissory note and the affidavit referenced in this count were typed prior to November 27, 2006, they were filled in on that day on Mr. Rowsell’s evidence and “a properly instructed jury acting reasonably could infer that the false statements were made in an attempt to mislead innocent third parties to whom the documents might have been presented”.
[48] The matter was ultimately heard in front of a jury in October 2009 and Mr. Roda was found not guilty on all counts on October 24, 2009. This claim followed on March 16, 2011.
Issues
[49] The following issues are raised by this motion to be resolved:
a. Is the test for proceeding to summary judgment pursuant to Rule 20.04 met in this case having regard to Hryniak v. Mauldin, 2014 SCC 7?
b. Are any of the claims raised by the plaintiff barred by the Limitations Act?
c. Has the plaintiff established a claim for negligent investigation on the merits?
d. Has the plaintiff established a claim for false arrest on the merits?
e. Has the plaintiff established a claim for perjury on the merits?
f. Has the plaintiff established a claim for trespass on the merits?
g. Has the plaintiff established a claim for conversion of property on the merits?
h. Has the plaintiff established a claim for intentional infliction of nervous shock on the merits?
i. Has the plaintiff established a claim for conspiracy to suppress evidence on the merits?
j. Disposition of Other Claims mentioned?
Discussion and Analysis
(a) Hryniak v. Mauldin
[50] This is a motion for summary judgment under Rule 20.04 of the Rules of Civil Procedure. The case of Hryniak v. Mauldin, 2014 SCC 7 has been much discussed in our courts since it was released. In Toronto region, motions judges are seeing at several such motions per week each. The system is undergoing a dramatic transformation and it would appear that the dual policy goals of enhancing access to justice and promoting efficiency and economy in the administration of justice have been considerably advanced if the acceptance of these new guidelines by the litigants is anything to go by.
[51] At the risk of repeating what have become almost trite statements, I simply observe that on a motion such as this, both parties are required to put their best foot forward and I am entitled to assume that I have before me in some form all of the evidence that the parties would lead at trial on these matters. Bald assertions without evidence or mere argument and opinion unsupported by solid, actionable evidence will not be enough. Controversial matters at least must be demonstrated using the best available evidence absent very good reason shown for not doing so. I am not to rely on speculation about evidence that might later be found – I must know here and now what evidence is being relied upon so that I can assess and weigh it or determine whether the interests of justice require a trial to do so. It goes without saying that the interests of justice will not require a trial to weigh evidence that is not disclosed and only guessed at.
[52] Mr. Roda filed his own affidavit for use on this motion. I have noted above the great difficulty I had in distilling from Mr. Roda’s statement of claim exactly what the nature of his complaint is. That same difficulty arose when it came to attempting to discern from his affidavit and the voluminous attachments to it what could properly be considered evidence and what was opinion or argument. I asked Mr. Roda’s help in argument and, to be fair, I think he did the best he could to be helpful in pointing me to the evidence that he thought applied to the various claims he has advanced. His command of the evidence was encyclopedic.
[53] The allowances I make for a non-professional, self-represented litigant notwithstanding, I must nonetheless assess the evidence in front of me in light of the tests the Rules and the case law require me to perform. The affidavit contains numerous quotations from Mr. Roda’s Statement of Claim which of course is no evidence at all. It contains long extracts from the evidence of other witnesses in other proceedings without actually calling those witnesses directly. Much of the evidence cited in this fashion appears to have been introduced almost as straw men to be contradicted by Mr. Roda who asks me to prefer his own evidence to the transcript citations he himself has provided. His affidavit contains lengthy paragraphs of what appear to be argument that I had great difficulty in following but which too are not evidence. Long but quite irrelevant digressions were launched into criminal proceedings of various parties in matters unrelated to Mr. Roda`s case. From the remainder of that which might be properly be characterized as admissible evidence, I had to attempt to determine what parts might reasonably be applied to which claim.
[54] In a general way, the affidavit appears to have assumed as self-evident truths that, to me at least, are quite a bit less than obvious. I have tried as far as possible to take a generous view of the evidence offered, but the defendant is entitled to fairness as well and there are limits to the leeway that can be granted to a clearly deficient response.
[55] Hryniak requires me to approach the task of dealing with this motion in a two-part fashion. I must first determine if the evidence discloses genuine issues for trial. If an only if it does, I must then determine whether the interests of justice require a trial be held to resolve those issues or whether, on the contrary, I can resolve those issues having resort to the tools placed at my disposition by Rule 20.04(2.1) of the Rules of Civil Procedure.
[56] In my view, the evidence presented by the plaintiff is far from raising genuine issues for trial that the interests of justice require a trial to be resolved. Almost none of the admissible evidence is contested or contradicted (with the particular exception of one issue highlighted below). In the small number of instances where there appeared to be conflicting evidence on a material fact, I found no need to resort to a trial to resolve those issues having regard to the toolbox at my disposition under Rule 20.04(2.1) of the Rules of Civil Procedure.
[57] Mr. Roda appeared to operate under the misapprehension that this case requires a resolution of all of the issues raised by his 2006 civil dispute with Mr. Hitti. It does not. The controversies that have been raised from that dispute are a factor in but one of the five counts that he was charged with. I have found few issues of conflict on the evidence that were material to my findings and none that the interests of justice require a trial to be held to determine. To the contrary, I formed the strong view that this claim is one that the interests of justice require be determined now before still more time and energy is devoted to claims that have no reasonable prospect of success.
(b) Limitations Act
[58] While Mr. Roda’s acquittal on the charges laid on December 12, 2006 occurred in October 2009 and thus less than two years before the Statement of Claim herein was filed, none of the other incidents giving rise to the various causes of action asserted occurred after 2006 or, at the latest, the time of the preliminary inquiry in April 2008. An element of the negligent investigation claim is the resolution of the charges in favour of the plaintiff – since that did not occur until October 2009, it cannot be statute-barred. Similarly, the perjury claim – at least the claim as particularized before me in argument – concerns testimony given at that trial in October 2009 and is similarly not statute barred. With the exception of these two claims, all of the elements of the remaining claims alleged had occurred by no later than the end of the preliminary inquiry in April 2008 and thus lie well outside the two year period prescribed by s. 4 of the Limitations Act.
[59] Section 4 of the Limitations Act requires the plaintiff to bring an action in respect of a claim no later than the second anniversary of the day on which the claim was “discovered”. Subsection 5(2) provides that a claim is discovered on the day the act or omission on which the claim is based took place unless the contrary is proved.
[60] The acts or omissions underlying each of the claims advanced by Mr. Roda, with the two exceptions of the negligent investigation and perjury claims, occurred more than two years prior to the commencement of this claim in 2011. The onus is thus upon Mr. Roda to demonstrate that he was both unaware and could not, with reasonable diligence have learned, of the matters underlying the claim referenced in subsection 5(1) of the Limitations Act until a period of time that is within the two year window.
[61] Mr. Roda’s affidavit contains no evidence on the matter of discoverability at all. The positive onus in section 5(2) of the Limitations Act is not addressed by any admissible evidence before me. When I raised the question with Mr. Roda in argument, he suggested that the Limitations Act should not apply in this case where the “perpetrators of the crime are the police”. I cannot ignore the clear prescriptions of a statute on such subjective and circular grounds.
[62] He also suggested more substantively that he was hindered in assembling evidence due to both his physical handicap and the fact that he was under house arrest with restrictions on his movements that would have made such matters difficult. The reasonableness standard in subsection 5(1)(b) of the Limitations Act does indeed require me to consider what is reasonable for a person in his position, which must include a consideration both of his visual handicap and his arrest and bail conditions. Even if I had solid evidence of the terms of his house arrest (I do not), I have no evidence to suggest that any or all of the elements of the various claims he now advances were not known to him in fact or were not able to be discovered with reasonable diligence even having regard to his condition. He has given me no clay to work with. I do not, for example, have a list of all of the information made available to his criminal defence lawyer in the disclosure process leading up to his trial from which I might be able to make some deductions as to what he knew or ought to have known.
[63] It is to be observed that section 5(1) of the Limitations Act does not condition the discovery of a claim upon the assembly of all of the evidence needed to prevail upon the claim in court. Discovery under subsection 5(1) is said to occur when Mr. Roda knew, or a person in his circumstances acting reasonably ought to have known: (i) that the injury or loss occurred, (ii) that it was contributed to by an act or omission of the person against whom the claim is made and (iii) that a proceeding would be the appropriate means to seek to remedy the matter. This was his onus to discharge and he failed to turn to it directly.
[64] Turning to the various claims individually, I make the following observations:
a. The alleged trespass occurred on December 12, 2006 when Detective Fynes is alleged to have exceeded the bounds of her search warrant – no evidence to positively establish discoverability of this alleged claim later than December 12, 2006 has been led;
b. The alleged conversion of property – being the turning of the sound equipment over to Mr. Hitti – also occurred on December 12, 2006 and no evidence to positively establish discoverability of this alleged claim later than December 12, 2006 has been led;
c. The alleged false arrest occurred on December 12, 2006 and no evidence to positively establish later discoverability of the elements of this claim has been led;
d. No evidence of the particulars of the nervous shock allegedly inflicted has been led beyond linking same to the arrest that occurred on December 12, 2006 and no evidence to establish later discoverability of the elements of this claim has been led; and
e. Assuming for the sake of discussion only that particulars can now be supplied of the “conspiracy to suppress evidence” claim linking this to the alleged suppression by Detective Fynes of the details of the correspondence from Mr. Trethewey to Detective Fynes in December 2006, no evidence relating to the discoverability of this matter has been led at all and all Mr. Roda’s own evidence shows that he possessed knowledge of the same facts from his own discussions and correspondence with Mr. Trethewey and thus had the independent ability to bring the information to Detective Fynes or the court’s attention were it relevant to any matter.
[65] Mr. Roda has failed to discharge the onus placed upon him by s. 5(2) of the Limitations Act and accordingly all of his claims – with the exception of the negligent investigation and perjury claims – must be dismissed for that reason.
(c) Negligent Investigation
[66] The plaintiff’s position is that the police in this case effectively undertook no serious investigation, but simply accepted the falsified story of Mr. Rowsell and Mr. Hitti. Mr. Roda laid great weight upon the fact that Mr. Trethewey provided the police with the Parsses side of the brewing civil dispute in correspondence sent to the shortly after his arrest on December 12, 2006. He argues that if they had followed up on or investigated Mr. Trethewey’s claims the Crown would have learned the “true facts” of his arrangements with Mr. Hitti and the criminal proceedings would have been unnecessary.
[67] Other particulars of failings of the investigation suggested in oral argument included:
- Failure to get Mr. Roda’s side of the story before his arrest or afterwards;
- Failure to interview parties at the Renforth Drive restaurant before the arrest;
- Failure to have engaged experts to study the forgery allegation concerning the two competing June 15, 2006 documents (storage agreement vs. certification); and
- Failure to interview staff at Orion Caskets.
[68] The defendants take the position that the investigation supervised by Detective Fynes was sophisticated and thorough. It was deemed imprudent to approach the staff of Orion Casket or the Renforth Drive restaurant prior to the arrests since both businesses had connections to Mr. Roda and there was a risk of compromising the investigation which at that point was still covert. The sworn video statements of Mr. Hitti and Mr. Rowsell were taken. The evidence of these two, if believed, would have enabled a reasonable jury to convict Mr. Roda on the charges laid beyond a reasonable doubt. The court concurred in that assessment of the evidence at the preliminary inquiry, a factor that is itself strong evidence that there were reasonable and probable grounds to commence or continue the prosecution. The plaintiff has led no positive evidence to contradict the evidence of the defendants as to the reasonableness of their actions and conclusions. The defendants suggest that the whole question of the civil dispute was an entirely secondary issue to their investigation that was first and foremost about the acts of extortion complained of by Mr. Rowsell.
[69] I find that objective evidence in support of the negligence claims made by Mr. Roda is entirely lacking in this case. The affidavit of Mr. Roda contains statements suggesting that the evidence speaks for itself. While I concur that the evidence as to what the police did is fairly uncontested and indeed does speak for itself, his case is focused on what they failed to do.
[70] I have no objective evidence as to what material impact these alleged failings actually had on the course of the investigation and the charges that were laid against him. Most importantly, I have no evidence as to why the failure to take these steps should be considered by me to be a breach of the standard of care that is required of police. Mr. Roda’s own subjective opinions on these matters cannot carry the weight needed to discharge the onus upon him to prove his case on a motion for summary judgment.
[71] The starting point for any case involving a claim of negligent investigation must be the decision of the Supreme Court of Canada in Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41. The majority decision of McLachlan C. J. in Hill concluded that a duty of care may be owed in some circumstances by the police to the object of a criminal investigation. The standard of care applied was that of “a reasonable police officer in similar circumstances”, a standard to be applied “in a manner that gives recognition to the discretion inherent in police investigation” and which recognizes that “the standard is not perfection, or even optimum, judged from the vantage of hindsight” (Hill, supra, para. 73).
[72] Hill was a case of wrongful conviction. It was accepted in Hill that there were reasonable and probable grounds for the arrest when it was made. The aspects of the investigation criticized by the plaintiff included certain pre-arrest actions (eg. witness contamination) but also post-arrest failure to re-investigate. After considering all of the evidence, the court did not find that a breach of the standard of care had been made out.
[73] Hill (supra) was considered by Thorburn J. in Wong v. Kyriacou, 2009 CanLII 66385 (ON SC). In Wong (supra), the court found that the duty of care does not require police to obtain both sides of the story during an investigation (at para. 59, 68) nor can they be faulted for relying on a witness absent overwhelming evidence discrediting the witness (at para. 57).
[74] Applying the law from Hill (supra) and Wong (supra), I can find no basis on the evidence before me to conclude that the investigation in this case breached the standard of care owing. The police had a reasonable basis for declining to interview Mr. Roda or witnesses connected to him while a covert investigation of him was on-going. The evidence of Mr. Hitti and Mr. Rowsell was received after appropriate cautions and under oath. There has been no suggestion on the evidence that there existed any overwhelming evidence to discredit either of them. Indeed, the Statement of Claim characterized their story as “believable” even if Mr. Roda vociferously denies the truth of what they recounted.
[75] Mr. Roda has provided me with no evidence other than his own arguments as to what a reasonable police officer should have done in the situation then existing. The fact that the preliminary inquiry specifically concluded that there were reasonable and probable grounds for the five charges laid (as of April 14, 2008 at least) is strong evidence that the investigation to that point at least did not violate the standard of care and there is simply no evidence before me as to any failings after that date: see Solmonvici v. Toronto (City) Police Services Board, 2009 CanLII 39060 (ON SC) at para. 9.
[76] Mr. Roda appears to hold fast to the view that a review of the circumstances of the civil dispute would have cleared him of any charges. I cannot agree. He was charged with five counts only one of which concerned the ownership of the sound equipment that was the object of the civil dispute.
[77] The evidence of the civil dispute that Mr. Roda asked me at the hearing to review carefully establishes a murky picture at best that did little to advance his case. The orders of Quigley J. and Seppi J. certainly appear to support the view taken by Detective Fynes at the time that Mr. Roda’s possession of the equipment and a refusal on his part to return it to Mr. Hitti was at least an apparent breach of those orders. While I cannot on the evidence before me conclude whether Mr. Roda knew of those orders before taking possession of the equipment, it seems clear that he did know of them in November 2006 when he was preventing Mr. Hitti from resuming possession.
[78] While I appreciate Mr. Roda’s passionately held view as to which of the two documents dated June 15, 2006 should be considered by me to be a forgery, the matter is certainly not plain and obvious to me now. Expert evidence would be needed, if the answer were material to this dispute (it is not). I cannot conclude that it was unreasonable for Detective Fynes to have formed a view different than his on the matter in December 2006. She was entitled to believe the stories of Mr. Hitti and Mr. Rowsell. I find that her actions, premised as they were upon her belief in those stories, were reasonable in the circumstances. It is to be recalled that the story of Mr. Rowsell at least was at least partially corroborated by the results of the search warrant and Mr. Roda himself characterized the stories as believable in the Statement of Claim.
[79] The standard of care imposed upon police officers must recognize both what they are and what they are not. What they are is the front line of investigating most crime in the country and as such play a vital role in safeguarding the foundations of our civil society. What they are not is judge or jury of the matters that they investigate (c.f. Hill, supra, para. 50). Our system holds the Crown to the standard of proving guilt of an accused beyond a reasonable doubt at trial before a judge or jury and until such time holds that all who come before it are presumed innocent. As a result, and by design, each and every person arrested by the police is presumed innocent at the time of their arrest and that presumption remains until a judge or jury find otherwise. The standard of care imposed upon the police cannot depend on the hindsight assessment of the evidence. By its nature, our system assumes that police will arrest people some of whom may subsequently be acquitted.
[80] While termination of proceedings in favour of the plaintiff is a necessary condition to a negligent investigation claim, it is not a sufficient one. Not every acquittal warrants a claim. There must also be a breach of the standard of care of a reasonable police officer in similar circumstances determined subject to all of the uncertainties and frailties of foresight and not resorting to the harsh perfection of hindsight.
[81] The plaintiff had an onus in this case – as all parties to summary judgment motions do – to “lead trump or risk losing” (see Solmonvici, supra, at para. 7). There is simply no evidence before me to establish that there was a breach of the duty of care as described in the cases. Mr. Roda’s own opinions and views are not sufficient – objective third party evidence to support his assertions are entirely lacking here. To make this determination at least I have no need to resort to the “toolbox” or Rule 20.04(2.1) since there is no evidence at all offered by the other side apart from the plaintiff’s own opinions as to the sufficiency of the investigation.
[82] I find that the claim based upon the allegation of negligent investigation must be dismissed.
(d) False Arrest
[83] Mr. Roda was arrested on December 12, 2006. As I have noted above, this claim is clearly subject to the Limitations Act defence. The plaintiff’s counsel did not contest Mr. Roda’s committal on the extortion and forcible confinement charges; the evidence supporting the remaining three charges was found at the preliminary inquiry to constitute sufficient grounds to commit to trial. This is all very strong evidence that the police had reasonable and probable grounds for the arrest. The plaintiff has adduced no positive evidence to contradict this. There was no requirement to complete an investigation prior to arrest: P.H.E. v. Ottawa-Carlton (Region) Police Service, [2003] O.J. No. 3512 (S.C.J.) at para. 55.
[84] There is no foundation in the evidence to maintain this claim on the merits or to resist the Limitations Act defence. I find this claim must be dismissed.
(e) Perjury
[85] Mr. Roda was unable to state with any precision exactly what statement Detective Fynes was alleged to have made that constituted perjury. In argument, he suggested that it was her testimony at trial regarding the allegedly forged storage agreement of June 15, 2006. When pressed, he appeared to suggest no more than that she ought to have investigated the allegation of forgery more diligently. Such an allegation would be nothing more than a further instance of the alleged negligent investigation.
[86] There is no evidence that Detective Fynes actually knew the storage agreement was a forgery. His own sworn assurances today that it is indeed a forgery, even if accepted at face value, would provide me with no basis to conclude what Detective Fynes ought to have known in 2006 or even 2009.
[87] At all events, the law is clear that Mr. Roda cannot pursue in civil courts a criminal claim for perjury. Such a claim belongs to the criminal courts: Admassu v. Macri, 2010 ONCA 99.
[88] The perjury claim must be dismissed.
(f) Trespass
[89] Mr. Roda claims that Detective Fynes trespassed at the Bartor Rd. premises by reason of having stayed past the 6pm deadline in the Search Warrant she executed on December 12, 2006. As such, he claims she was trespassing. There are three answers to this claim, each of which is sufficient to dismiss it.
[90] Firstly, Mr. Roda concedes that he himself was neither the owner nor tenant of the premises. The tenant was his brother’s company. He cannot advance a claim for trespass to the property of another.
[91] Secondly, Mr. Roda has claimed no damages arising from the trespass (the alleged conversion of property that occurred after 6pm is dealt with below).
[92] Finally, Mr. Roda has simply misunderstood the search warrant at issue. The warrant enabled the premises to be entered for the purpose of the search until 6pm. It did not require the search to be completed by that time. There police did not exceed the permission granted by the search warrant in this case.
[93] The trespass claim must be dismissed.
(g) Conversion of Property
[94] I have previously expressed the view that any claim arising from Detective Fynes’ or the TPSB participating in the conversion of property (the sound equipment) claimed by Mr. Roda has been prescribed by the Limitations Act and must for that reason be dismissed.
[95] If I am found to be in error on that conclusion, I am of the view that the evidence before me is inconclusive and indeed somewhat contradictory on the matter of ownership or rights to possession of the equipment as it stood in the warehouse on Bartor Rd. at the time the search warrant was executed. I cannot make a confident finding regarding the genuineness of the alleged storage agreement as compared to the Certification document through which Mr. Roda claims ownership or a security interest. Mr. Trethewey’s affidavit, introduced by Mr. Roda, suggests a whole other class of potential interested parties whose interests may well have superceded the plaintiff’s (thereby depriving him of a damages claim).
[96] In keeping with the decision of the Supreme Court of Canada in Hryniak v. Mauldin, (supra), I would have directed a trial of this narrow issue (the validity of the conversion claim and the existence of damages) only, to be held before me.
[97] I dismiss the Conversion of Property claim subject only to the above qualification.
(h) Nervous Shock
[98] Mr. Roda admitted that he had supplied no evidence at all to support his claim for damages arising from alleged intentional infliction of nervous shock. He agreed in oral argument that the event giving rise to the alleged nervous shock was his arrest (in 2006). There is no evidence at all as to the existence of any such shock or damages arising from his arrest. He conceded that the only evidence he could point to on the subject was a reference to his being taken to hospital in some police notes that provide no other details.
[99] To the extent the claim arises from the arrest or matters that occurred in 2006, I have fully dealt with it in relation the Limitations Act argument. In any event, the plaintiff has failed to provide any particulars either of the claim or the alleged damages arising from it.
[100] This being a motion for summary judgment where I should have before me all evidence in some form that the plaintiff would intend to lead at trial in support of the claim, I can only conclude that this claim is entirely unproved and must be dismissed on the merits.
(i) Conspiracy to Suppress Evidence
[101] It was not at all clear from the Statement of Claim or the affidavit of Mr. Roda what this claim relates to. I managed to elicit some particulars from Mr. Roda in the course of his argument. He claims that the various documents sent by Mr. Trethewey to the police in December 2008 outlining the nature of his client’s competing claims to the sound equipment were highly relevant ones to the investigation and, if disclosed, would have sent matters down an entirely different road.
[102] The defendants note that conspiracy is a claim that must be pleaded with particulars sufficient to enable me to understand what agreement is alleged, the existence of actual or constructive intent to cause injury and the actual damages. I was unable to determine any of these elements with reasonable certainty from the pleading. That conclusion alone is be sufficient to dispose of this claim. Oral argument at a summary judgment motion is rather late in the day to shed light on what the true nature of a claim is, to say nothing of the entire lack of evidence to support it in the record.
[103] I also find that this claim – even were it amended to be pleaded in a more valid and understandable format – could not succeed and must be dismissed. Not only is there no evidence of anything being “suppressed”, by way of conspiracy or otherwise, but the information allegedly suppressed was actually in Mr. Roda’s possession in any event and he had every opportunity to cause the information to be revealed to anyone he chose had it been material to anything. None of the elements of the tort have been pleaded in fact; none of the elements of the tort suggested in oral argument can be found in the evidence either.
(j) Other Claims
[104] The Statement of Claim includes claims for conspiracy in relation to defendants against whom this action has been discontinued (Mr. Hitti and Mr. Rowsell). I find no need to analyze those claims as they do not involve the moving parties. Similarly, the Statement of Claim alleges forgery or use of forged documents in reference to the June 15, 2006 storage agreement. Mr. Roda agreed with me that this allegation should more properly be considered as a further example of his broader allegation of negligent investigation and I have considered the allegation under that heading above.
Disposition
[105] In the result, I find that the motion of the defendants Fynes and TPSB should be granted and judgment issued dismissing the plaintiff’s claim as against both defendants.
[106] I am reserving the matter of costs to be dealt with by way of WRITTEN SUBMISSIONS. A further attendance in person will not be required. I direct the moving party defendants to produce brief submissions (limited to FIVE PAGES excluding the outline of costs) plus an outline of costs. The submissions should address the scale and amount of costs claimed. This is to be delivered to my attention within 15 days of the date of release of these reasons with a copy to the plaintiff via email. The submissions and outline of costs should be delivered to:
Judges’ Administration, Room 107,
361 University Avenue,
Toronto, M5G 1T3
[107] The plaintiff shall have a period of 45 days from the date of delivery of the defendants’ costs submissions above to respond with his own submissions in writing. The plaintiff’s submissions shall also be limited to five pages in length excluding his own outline of costs should he choose to submit one and shall be delivered to the same address above. I have provided additional time to the plaintiff to respond in recognition of the additional time he may require to review and respond given his disability.
[108] I thank all parties for their assistance and civility in this matter.
S.F. Dunphy J.
Released: January 29, 2016.
CITATION: Roda v. Toronto Police Services Board, 2016 ONSC 743
COURT FILE NO.: CV-11-422325
DATE: 20160129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Frank Roda
Plaintiff
– and –
Toronto Police Services Board; Detective Timothy Kavanagh, Major Crime Unit; P.C. Bronagh Fynes; Ronald Hitti and Brian Rowsell
Defendants
REASONS FOR JUDGMENT
S. F. Dunphy, J.
Released: January 29, 2016