CITATION: Farley v. Ottawa Police Services Board, 2016 ONSC 7817

COURT FILE NO.: 10-48976

DATE: 20161222

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GEORGE FARLEY, Plaintiff

AND

THE OTTAWA POLICE SERVICES BOARD, Defendant

BEFORE: MR. JUSTICE CALUM MACLEOD

COUNSEL: Stuart Zacharias, for the Defendant, Moving Party

Diane Condo, for the Plaintiff, Responding Party

HEARD: August 18, 2016

ENDORSEMENT

[1] The genesis of this civil proceeding is a murder which took place in Ottawa in 1997 and the subsequent prosecution of the plaintiff. After two trials he was eventually acquitted and in 2010 after his release from prison, he launched an action against the Ottawa Police for negligence, malicious prosecution and Charter damages. The action has not yet been set down for trial.

[2] The defendant moves for summary judgment seeking an order dismissing the action on the basis that the plaintiff cannot successfully establish liability against this defendant. Pursuant to Rule 20 of the Rules of Civil Procedure, summary judgment is to be granted if the court concludes there is no genuine issue requiring a trial.

[3] There is no doubt that the plaintiff was incarcerated for a lengthy period of time and was ultimately acquitted of the crime with which he was charged. The only party he seeks to hold liable for this is the Ottawa Police Service.[^1] The sole question on this motion is whether or not the plaintiff can win this case and establish liability.

[4] For the reasons that follow, I find in favour of the defendant. In the circumstances of this case, a trial is not required to decide the issue. The plaintiff cannot succeed in establishing liability against the police.

Background

[5] To give context to this decision, it is necessary to outline the circumstances of the murder, the subsequent investigation and the court proceedings. The facts are outlined in greater detail in the criminal appeal proceedings and in the subsequent reasons for acquittal by Kealey J.[^2]

[6] Earl Joe was shot and killed on May 21, 1997 less than a week before he was scheduled to be the key witness in a trial. That trial would have been the prosecution of Peter Chenier for aggravated assault. In 1994 Mr. Joe had been stabbed and beaten by Mr. Chenier and if Mr. Joe had been able to testify it is probable Mr. Chenier would have faced serious time in prison.

[7] When the police attended at the scene of the murder, the spouse of the deceased stated that Mr. Chenier must have been responsible. In any event, as the person with the most obvious motive and who had previously attacked Mr. Joe, he was immediately suspect. He was arrested but he had an alibi and was released.

[8] Several months after the murder, the police had not been able to identify anyone other than Mr. Chenier who might have been responsible. In August of 1997 however they obtained information that the murder had been orchestrated by Mr. Chenier but actually committed by André Boisclair and George Farley on Mr. Chenier’s instructions. The source of that information was André Boisclair himself and a criminal associate of his named Danny Moore.

[9] The circumstances by which this evidence was obtained and whether it should have led to charges against Mr. Farley are central to the plaintiff’s case. At the age of 20, Mr. Boisclair was an experienced criminal and the son of a former president of the Outlaws motorcycle gang. Mr. Boisclair had been arrested along with Danny Moore in connection with an armed robbery of a beer store. During the course of being interrogated about the beer store robbery, and concerned that Mr. Moore might already have given information to the police concerning the Earl Joe murder, Mr. Boisclair hinted to the police that he might know something about the murder.

[10] It is at this point the plaintiff alleges the police acted in ways that wrongfully facilitated his subsequent arrest and conviction. Firstly the police told Mr. Boisclair that if he was the actual murderer there was little they could do for him but if his involvement was something else some kind of leniency might be possible. Secondly, they allegedly allowed Mr. Boisclair some time alone with his associate Danny Moore thus providing an opportunity for collusion. In a subsequent interview they told Mr. Boisclair that they had found his Ray Ban sunglasses in the back seat of the getaway car and perhaps being privy to this information provided him with opportunity to concoct an explanation.

[11] Mr. Moore and Mr. Boisclair both identified George Farley as the shooter. Until that point, the police had no reason to suspect the plaintiff.

[12] In October of 1997, Mr. Farley was arrested for the murder. At the same time Mr. Boisclair was told that he would also be charged. At that point, after obtaining some assurances that he would be protected and a lighter sentence would be offered he gave a detailed statement implicating himself and Farley and detailing earlier plots and attempts to murder Mr. Joe. He also apparently confessed to numerous unsolved robberies.

[13] Mr. Boisclair had detailed knowledge of the murder as amongst other things he led the police to the murder weapon. Besides his own admission, his sunglasses put him at the scene of the crime. The plaintiff contends that the police failed to properly investigate the matter or they would have concluded that Boisclair was the murderer. The plaintiff also asserts that the police gave Boisclair the idea and the opportunity to fabricate his story implicating someone else. He complains that the police failed to conduct analysis of fibres from the getaway car and to preserve evidence such as footprints, cigarette butts and Mr. Boisclair’s shoes.

[14] Although it is Mr. Farley’s position today and during the criminal trial that André Boisclair was the murderer and that the police should have realized this, it is worth noting that Mr. Farley has never himself provided evidence of that allegation. In fact when he was arrested he simply denied having any knowledge of the murder and he lied to the police when he claimed that he did not know Peter Chenier and had not seen Mr. Boisclair for many months.

[15] Of course the Police knew that Mr. Boisclair was involved in the murder. By his own evidence he was a co-conspirator and the driver of the getaway car but the only person they knew of who had motive to murder Earl Joe was Mr. Chenier. Boisclair’s evidence was consistent with the theory that a hit had been ordered by Mr. Chenier. In exchange for his testimony against Chenier and Farley, Boisclair was permitted to plead guilty to manslaughter and received a 10-year sentence. He was the main witness for the Crown at the first Farley trial.

[16] The decisions which are criticized by Mr. Farley may have been initiated by the police but they share responsibility with other actors in the justice system. Mr. Farley’s case against the police depends upon the allegation that they did not have reasonable and probable grounds to arrest him and charge him with murder. He alleges that they should never have accepted Boisclair’s version of events.

The criminal proceedings

[17] Based on the Boisclair and Moore statements to the police, and subsequently obtained evidence such as wiretap evidence that was believed to be corroborative, the Crown decided to proceed with the charges against the plaintiff and his co-accused, Chenier.

[18] There was a 30-day preliminary inquiry in the Ontario Court of Justice. At the end of the inquiry, the plaintiff and Mr. Chenier both consented to committal on several counts including first degree murder. This is an admission that there was at that stage sufficient evidence to support a committal but not, according to the plaintiff, an admission that the police had adequate grounds to charge him in the first place.

[19] After many pre-trial motions, the matter ultimately came on for trial before Rutherford J. sitting with a jury. At the end of the trial, both the plaintiff and Mr. Chenier were convicted of first degree murder. In his charge to the jury, the judge had cautioned the jury about the danger of convicting the defendants on the potentially unreliable evidence of Mr. Boisclair (a so called “Vetrovec Warning”).

[20] The convicted co-accused appealed and the Court of Appeal concluded that there were certain errors in the charge. In particular, the Court of Appeal ruled that inadmissible hearsay was involved and the Vetrovec warning did not go far enough. But the Court of Appeal did not acquit the accused. The court was of the view that a properly instructed jury could have convicted on the evidence and so a new trial was ordered. This is an important point. The evidence led before the first jury was sufficient to sustain a conviction.

[21] The evidence against the plaintiff was once again assessed by the Crown and a new trial proceeded. Due to a re-election it ultimately proceeded before Justice Kealey as a judge alone trial.

[22] There were some oddities in the second trial. Firstly, one of the witnesses from the original trial had died in prison. Secondly Mr. Boisclair (who by that time must have completed his sentence for manslaughter) refused to testify and went into hiding. Towards the end of the trial Mr. Boisclair was arrested and brought before the court but he refused to be sworn. Despite being found in contempt and sentenced to three years in jail, he still refused to give evidence. The trial proceeded on the basis of the transcripts of his evidence given at the first trial.

[23] At the end of the second trial, Justice Kealey ruled that Mr. Boisclair’s evidence was extremely unreliable and lacked any clear independent corroboration. The judge’s finding on the sufficiency of that evidence took into account his inability to assess the evidence of Moore or Boisclair in the witness box. In particular he held that the extraordinary spectacle of Mr. Boisclair “contemptuously refusing” to be sworn was a factor to be considered in determining if any weight should be given to his evidence.[^3] It is of course impossible to say whether the same result would have obtained had Mr. Boisclair actually testified.

This litigation

[24] This action was commenced on July 15, 2010. The plaintiff seeks damages against the police for malicious prosecution, negligent investigation and breach of Charter rights. Mr. Chenier had commenced a similar action but he has decided not to proceed with it. I understand that Mr. Boisclair was murdered in an unrelated incident in 2013.

[25] The allegations by the plaintiff against the police include the following:

a. Planting the idea with Boisclair that he might receive a lighter sentence if he could identify someone else as the shooter;

b. Allowing Boisclair and Moore time together in the cell block and later opportunities to collude when they were incarcerated together;

c. Allowing Boisclair time to invent an explanation as to why his Ray Bans were in the back of the car and not the front seat if he was the driver as he said he was;

d. Giving Boisclair an ultimatum to either turn Crown’s evidence or be charged with first degree murder;

e. Showing Boisclair police photo lineups that included Farley and thus permitting Boisclair to use Farley as a scapegoat;

f. Putting insufficient weight on Boisclair’s knowledge of where the murder weapon was buried and his own detailed knowledge of the murder.

Summary Judgment

[26] Summary judgment is governed by Rule 20 of the Rules of Civil Procedure. The rule has been altered and somewhat complicated by amendments introduced in January of 2010 but essentially it can be viewed as operating in two parts.[^4] Firstly the party seeking summary judgment may be able to convince the court that there is no genuine issue. To conduct this part of the analysis, the court has to take into account all of the evidence tendered on the motion and must have regard for the provisions of Rule 20.02. Summary judgment may be granted on evidentiary grounds when the responding party has insufficient evidence to sustain the claim or the defence as the case may be. In other cases it may be that summary judgment is appropriate because there is a complete legal answer to the question in dispute.[^5] In either case there is no genuine issue to be tried and a trial is unnecessary.

[27] The amendments to the rule introduce a second possibility. There may indeed be a genuine issue which could be determined at a trial but a trial is not necessary. This will be so if the court has the tools to decide the question on a paper record (supplemented if necessary by a mini-trial). In reaching the latter conclusion, a judge hearing the motion is specifically authorized to weigh evidence and decide issues of credibility – assuming of course that it is fair to do so. Moreover, since the decision of the Supreme Court in Hryniak v. Mauldin[^6] summary judgment is no longer to be considered an exceptional procedure but is to be granted whenever it is reasonable, proportionate and just to do so.

[28] In the case at bar, the defendant does not ask me to engage in weighing of evidence or assessment of credibility or to exercise any of the new powers grafted onto the rule. This is what might be regarded as a classic summary judgment motion in which the defendant takes the position that the action should be dismissed because the plaintiff cannot succeed. There is in the view of the defendant no genuine issue to be tried.[^7]

[29] In Mehdi-Pour v. Minto[^8] I reviewed the application of previous caselaw to the post-amendment rule and found that without making assessments of credibility or weighing evidence, summary judgment was appropriate when the plaintiff responding to such a motion was missing material evidence. Rule 20.02 requires the responding party to set out in affidavit material or other evidence specific facts showing that there is a genuine issue requiring a trial. Rule 20.01 permits a negative inference to be drawn if the responding party relies on indirect evidence and not the best evidence. This has variously been described as requiring the responding party to “put its best foot forwards” or to “lead trump or risk losing”.[^9]

[30] The Mehdi-Pour analysis may be stated simply. What are the elements the plaintiff must prove in order to establish liability? Has the plaintiff demonstrated it can do so? If the plaintiff cannot do so then summary judgment dismissing the claim will generally be appropriate. There is a large caveat to this. It must be fair. It will not be fair if the reason the plaintiff does not have the evidence is because it is being withheld by the defendant or if the motion is premature.[^10] Summary judgment on the first part of the analysis is a procedure for terminating actions that have no merit. It is not a tool to allow defendants to escape meritorious actions.

[31] This action is six years old and there is no suggestion the defendants have refused to make disclosure or submit to discovery. The time is ripe to evaluate the evidence in order to determine whether this action should go further or should be put to rest. Neither party is well served by prolonging an action that cannot succeed at trial.

The elements of the Plaintiff’s claims

[32] Malicious Prosecution, Negligent Investigation and Breach of Charter Rights are all tortious conduct that if proven could give rise to liability for damages suffered by the plaintiff. These are distinct claims although they share certain aspects in common.

[33] Dealing firstly with malicious prosecution, the elements of the tort are as follows:

a. The defendant must have initiated the prosecution;

b. The proceeding must have terminated in favour of the plaintiff;

c. There was an absence of reasonable and probable cause; and,

d. The defendant acted out of malice or for a purpose other than carrying the law into effect.[^11]

[34] While the police may be seen as initiating a prosecution, as pointed out above, the police do not act alone. Nevertheless I will assume for the purposes of this motion that the first two elements of the tort are easily met.

[35] The question of whether or not there was reasonable and probable cause to arrest and charge the accused is central. In Ontario this is a factual determination pursuant to s. 108 (10) of the Courts of Justice Act. Thus, at least in the malicious prosecution context, the court must determine if the plaintiff can prove on the evidence that reasonable and prudent police officers in the circumstances of this case would not have had cause to proceed against the plaintiff.[^12]

[36] For prosecution to be malicious however, it is not sufficient that there is an absence of reasonable and probable grounds. Malicious prosecution is an intentional tort and all four of the Nelles factors must be present. Thus the plaintiff must also prove the police perverted the law to achieve a purpose other than the legitimate discharge of their duties. The essence of the tort is that the criminal law was wrongfully invoked. It is not enough for there to be carelessness, recklessness or bad judgment. [^13]

[37] The right to Charter Damages flows from s. 24 (1) of the Canadian Charter of Rights and Freedoms. That section provides that if rights or freedoms have been infringed or denied, a court of competent jurisdiction may grant an appropriate remedy. In some instances this has been held to include a civil remedy for damages but it is not always the case that damages are an appropriate remedy.[^14] In fact damages are an extraordinary remedy. In many cases the exclusion of evidence on Charter grounds is a remedy in itself particularly if the exclusion appears to have permitted acquittal in circumstances where a conviction would likely have occurred. [^15] Depending on the manner in which the case has been framed, the plaintiff may have to prove in a civil action that he did not commit the crime.^16

[38] In any event Charter damages will only be appropriate if Charter rights were violated and if damages and other remedies available at law are inadequate. In this case the Charter rights are not specified in the pleading but would presumably include the right not to be arbitrarily detained or imprisoned, not to be imprisoned unlawfully and the presumption of innocence.

[39] The only basis for Charter damages against the police would be if the plaintiff was illegally arrested. Here again, the question of reasonable and probable cause is central. If the police had reasonable and probable cause to arrest and charge him, then he was arrested and detained in accordance with the law and the detention was not arbitrary.[^17] The Ontario Court of Appeal has held that liability for Charter damages by the police would require a finding of bad faith which is the same requirement in a malicious prosecution claim.[^18] While there are remedies for Charter breach that do not require proof of intent in the criminal realm, the requirement of “bad faith” for civil damages effectively requires the same proof of intentionally wrongful action that would be required for malicious prosecution.

[40] The final basis for the claim is investigative negligence. Negligence of course does not require proof of intention or malice. It simply requires the three elements of duty of care, breach of the standard of care and causally connected damages. The first of these is not in issue as it is clear the police have a duty of care towards all citizens.

[41] The first question is whether the plaintiff can establish that the investigation was negligent. That is did the police actions (arresting and charging Farley) or omissions (failing to properly investigate the involvement of Boisclair or to consider other suspects) fall below the standard that would have been expected of reasonable police officers in 1997?

[42] The plaintiff has no expert evidence concerning the standard of care for an investigation in 1997. That is not necessarily fatal if the errors were so glaring and simple that they clearly fall below any acceptable standard. On the other hand expert evidence will be required if determination of the applicable standard requires technical evidence about appropriate investigative techniques.

[43] This motion was argued before the Court of Appeal released its decision in 495793 Ontario Ltd. v. Barclay [^19] but counsel subsequently made written submissions based on that decision. The case contains a useful summary of the law concerning police and the tort of negligent investigation. A number of principles may be summarized from that decision as follows:

a. The relevant question is whether the police had reasonable and probable cause to lay charges and not whether there were adequate grounds to proceed to trial.[^20]

b. While the standard of care of a reasonable police officer requires police to weigh evidence to some extent during the course of an investigation, they are not required to evaluate evidence according to legal standards or to make legal judgments. That is the task of prosecutors, defence counsel and judges.[^21]

c. The fact that the Crown and a preliminary inquiry has reviewed the evidence and there has been a committal for trial is strong evidence that the investigation, to that point at least, did not violate the standard of care.[^22]

d. In general, except in cases involving non-technical matters or in cases in which the conduct complained of was so egregious that it clearly fell below any standard of care, expert evidence will be required to demonstrate that a particular investigation fell below the standard of reasonable care.[^23]

[44] It is apparent that the question of reasonable and probable cause connects all three of these causes of action. If the evidence before me establishes that the police did have reasonable and probable cause to lay charges against the plaintiff then in all probability that is a complete answer to this claim against this defendant. Certainly if the police had reasonable cause and there is no proof of improper purpose, malice, suppression of exculpatory evidence or fabrication of evidence then summary judgment will be appropriate.

Analysis

[45] It is important to understand the role of the police in context. In this case the police were faced with an unsolved murder. The one person with an obvious motive, who had displayed previous animus towards the deceased and who was the main beneficiary of his death was Peter Chenier and he had an alibi. There was no evidence then and there is none now that Peter Chenier was directly involved in the commission of the murder.

[46] The police were then presented with Mr. Boisclair, a known and dangerous criminal who claimed to have knowledge that Mr. Farley was the murderer. Of course the police have a duty to investigate such a claim and not just accept it at face value. Besides their specific statutory and common law duties, the police also have obligations under the Charter.

[47] The police are not the only actors in the justice system. The police are responsible for investigating and for laying charges but it is the Crown Attorney who decides whether the charges should proceed and whether or not it appears there is sufficient evidence for a case to proceed. In a serious crime such as this one there is also a preliminary enquiry. At that stage a provincial judge must be satisfied that there is sufficient evidence against the accused for the indictment to go forward.

[48] After a lengthy preliminary inquiry the plaintiff conceded there was adequate evidence to support the indictment. The trial then proceeded in this court and the jury convicted the plaintiff after hearing all of the evidence. While this verdict was overturned due to a technical objection concerning the charge to the jury, the Court of Appeal specifically found that there was adequate evidence by which the plaintiff could have been convicted. For this reason the court of Appeal did not acquit the plaintiff but ordered a new trial.

[49] Thus, in addition to the police determination that Mr. Farley should be charged, the evidence was scrutinized by the Crown, by the first trial judge, by the jury and by the Court of Appeal. It is hard to see how in the face of each of these opportunities to review the evidence it can be said that the police did not have reasonable and probable grounds to lay charges in the first place. In particular the finding by the Court of Appeal that a properly instructed jury could have convicted on this evidence seems a complete answer unless there is evidence of suppression of potentially exculpatory evidence.

[50] Mr. Farley himself did not give evidence at either trial. The only statement he gave to the police, denying that he knew Chenier or had recently had any contact with Boisclair was untrue. It is important to recognize that the only evidence the police had as to the identity of the murderer was the statement given by Mr. Boisclair. This was also the only direct evidence implicating Mr. Chenier or Mr. Farley but in fact it was the only evidence they had implicating anyone.

[51] It is not appropriate to assess the actions and omissions of the police by a standard of perfection or to consider with the benefit of hindsight whether a different result would have occurred if different decisions had been made. The question is not whether they were correct in acting on Mr. Boisclair’s information and proceeding against Mr. Chenier and Mr. Farley but only if it was reasonable. Reasonableness has to be judged against the standard of care of a reasonable and prudent investigator as it would have existed in 1997.

[52] Mr. Farley had apparently been implicated in procuring explosives from a military base in Alberta and the story told by Danny Moore about the attempt to assassinate Earl Joe with explosives prior to the shooting was substantiated by corroborating evidence. In addition the police ultimately had the wiretap evidence about “the big guy” doing his job and a jailhouse informant who claimed Farley had confessed to him. From Mr. Farley himself they had a demonstrably false statement that he did not know Peter Chenier. Chenier himself fled Ottawa thus lending credence to his own guilt and by implication Farley’s.

[53] Mr. Farley has presented no evidence to demonstrate that the police knew or could have known that Boisclair’s evidence was false or even implausible. In fact there is no affidavit from Mr. Farley before the court. The affidavit evidence is that of Michelle Donato, a paralegal in Ms. Condo’s office. That affidavit is largely a summary of evidence given at the trial and reads more like a factum than evidence on a summary judgment motion. The admissibility of that affidavit was not challenged but I cannot give it a great deal of weight. I am entitled to draw an adverse inference from the failure of Mr. Farley to provide his own evidence but it is not necessary to do so.

[54] I am entitled to assume that the evidence contained in the plaintiff’s motion record is the best evidence the plaintiff can provide. In the absence of expert evidence concerning the standard of care of a reasonable police investigation in 1997, I am left to assess the actions of the police on the only evidence I have.

[55] Of course Mr. Boisclair was obviously an unreliable witness. He had by his own admission played a major role in the murder and he was subsequently linked to the murder scene by physical evidence (his sunglasses). He had buried the murder weapon and led the police to it. It was no doubt obvious to Mr. Boisclair without being prompted that the only way to avoid being charged with first degree murder himself was to identify someone else as the killer and to agree to testify.

[56] Reliable or not, the only evidence identifying the killer and confirming the involvement of Mr. Chenier was the supposed eye witness evidence of Boisclair. Mr. Boisclair claimed that he, Chenier and Farley had all been involved in the murder but (after the aborted attempt to use explosives) Farley had done the shooting on orders from Chenier and he, Boisclair, had driven the getaway car.

[57] This version of events was supported by certain hearsay evidence indicating that Boisclair had told the same story in prison, by wiretap evidence which might have been construed as consistent with the story, by Farley’s own background of involvement in criminal activity and by the apparent links between Farley, Chenier and Boisclair.[^24]

[58] No one else came forward to identify the murderer. The Boisclair version of events was plausible. When Mr. Farley was arrested he gave a statement to the police but he did not claim that it was Boisclair who was the murderer. He simply denied any involvement in the murder and claimed falsely that he did not know Chenier. He claimed that he had not seen Boisclair for several months and had no knowledge of the murder. This was untrue and the police were aware that it was untrue. It was at least plausible that the Boisclair version of events was correct.

[59] In my view the evidence supports a finding of reasonable and probable grounds for the initial arrest. As discussed above this is strongly supported by the fact that the Court of Appeal found that the jury could have convicted him on the basis of the evidence presented at the first trial.

[60] Even if that is not a complete answer to all three aspects of the claim, the plaintiff has utterly failed to prove that the investigation fell below a standard of reasonable care. Certainly there is no evidence before me that evidence was suppressed or covered up nor that pursuing other inquiries would have uncovered anyone else as the killer or proved conclusively that Mr. Farley could not have committed the crime.

[61] There is no evidence available to the plaintiff to show that the police suppressed evidence, manufactured evidence or otherwise filtered the available evidence. For that reason the independent review by the Crown, by the jury at the first trial and by the Court of Appeal itself leads to the inevitable conclusion that in the absence of any other witness with any other narrative and in the absence of any clearly exculpatory evidence, the claim for negligent investigation cannot succeed on these facts.

[62] There is no evidence to support a claim of malicious prosecution. The plaintiff’s theory is simply that the police developed tunnel vision with the objective of convicting Mr. Chenier. If that can be construed as malice directed at Mr. Chenier, there is no evidence that it was directed at Mr. Farley. My conclusion that the evidence demonstrates reasonable and probable grounds is a complete answer to this claim in any event but in the absence of proof of actual malice this aspect of the claim cannot succeed. Tunnel vision alone is not enough to support a claim of malicious prosecution.

[63] As discussed above, the claim based on Charter breach falls with the others. If the police had reasonable and probable grounds, he was not detained unlawfully and his Charter rights were not breached. In any event he has no evidence of bad faith on the part of the police. Speculation and accusations are not evidence.

[64] This is sufficient to grant summary judgment. The plaintiff has not put forward sufficient evidence on the material points necessary to succeed at trial. There is no genuine issue to be tried.

[65] I make no comment on whether it was justifiable for Mr. Farley to remain in prison for a decade while awaiting the first trial, the appeal and the second trial. That issue is not before me and I do not know if he ever sought bail. I am concerned only with this action as it has been framed and that is targeted solely against the police.

[66] On the evidence before me the defendant meets the onus for summary judgment.

Judgment

[67] In conclusion, there will be judgment in favour of the defendant dismissing this action.

[68] I encourage counsel to discuss the issue of costs but if they are unable to resolve them I may be contacted for further directions before the end of January, 2017.

Mr. Justice Calum MacLeod

Released: December 22, 2016

CITATION: Farley v. Ottawa Police Services Board, 2016 ONSC 7817

COURT FILE NO.: 10-48976

DATE: 20161222

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: George Farley, Plaintiff/Responding Party

AND

The Ottawa Police Services Board, Defendant/Moving Party

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Diane Condo, Counsel for the Plaintiff/Responding Party

Stuart Zacharias, Counsel for the Defendant/Moving Party

ENDORSEMENT

Mr. Justice Calum MacLeod

Released: December 22, 2016

[^1]: As authorized by legislation, the defendant is the Ottawa Police Services Board which is vicariously liable for torts committed by members of the police service. See s. 50, Police Services Act., R.S.O. 1990, c. P.15 as amended.

[^2]: R. v. Chenier, 2006 3560 (ON CA), [2006] O.J. No. 489; (2006) 207 O.A.C. 104; (2006) 205 C.C.C. (3d) 333 (C.A.), paras 1-22 and R. v. Chenier, [2008] O.J. No. 4735 (S.C.J.), paras 7-13.

[^3]: [2008] O.J. No. 4735, supra, at paras. 63-67.

[^4]: See Hryniak v. Mauldin 2014 SCC 7 at para. 66.

[^5]: For example a limitation period, see Pammet v. Ashcroft 2014 ONSC 2447 (Master).

[^6]: Ibid, para. 43.

[^7]: I should note that when the motion was first scheduled, the parties had assumed they would be before a master. Either masters or judges may grant summary judgment under this aspect of the rule.

[^8]: 2010 ONSC 5414 (Master); aff’d 2011 ONSC 3571 (Div.Ct.); leave to appeal refused Oct. 20, 2011 (M40188) (C.A.).

[^9]: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995) 1995 1686 (ON CA), 21 OR (3d) 547 (C.A.).

[^10]: Combined Air Mechanical Services v. Flesch 20110 ONCA 764 at para. 57.

[^11]: Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170; Mammoliti v. Niagara Regional Police Service, 2007 ONCA 79, at para. 39.

[^12]: Mammoliti, supra at paras. 61-65.

[^13]: Miazga v. Kvello Estate, 2009 SCC 51.

[^14]: Vancouver v. Ward, 2010 SCC 27.

[^15]: Abboud v. Ottawa Police Services Board, 2016 ONSC 1052.

[^17]: Aboud, supra.

[^18]: Mammoliti v. Niagara Regional Police Service, supra, leave to appeal refused, Aug 16, 2007 (SCC). This case is also sometimes referred to as Ferri v. Niagara Regional Police Service.

[^19]: 2016 ONCA 656; (2016) 132 O.R. (3d) 241 (C.A.).

[^20]: Para. 102, citing Solomonvici v. Toronto (City) Police Services Board, [2009] O.J. No. 3144 (S.C.J.); aff’d 2010 ONCA 85.

[^21]: Para. 103, citing Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41; [2007] 3 S.C.R. 129.

[^22]: Para. 99, citing various authorities.

[^23]: Para. 64 and para. 87.

[^24]: See the judgment of Kealey J., R. v. Chenier, [2008] O.J. No. 4735 (S.C.J.), paras 15-18.