CITATION: McHale v. HMTQ, 2016 ONSC 8164

COURT FILE NO.: CIV 07-102 (Cayuga)

DATE: 2016-12-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gary McHale, Plaintiff

AND

Her Majesty the Queen in Right of Ontario, Defendant

BEFORE: The Honourable Mr. Justice Paul R. Sweeny

COUNSEL: John W. Findlay, for the Plaintiff

Domenico Polla, for the Defendant

HEARD: November 28, 2016

E N D O R S E M E N T

[1] This is a motion brought by the plaintiff for an order requiring the defendant, Her Majesty the Queen in Right of Ontario (the “Crown”) to produce a further and better list of documents. The Crown opposes the motion. The Crown raises an additional issue as to the admissibility of a document included in the motion record of the plaintiff. The defendant says it is inadmissible. The plaintiff says it is admissible or, in the alternative, the facts contained in it are admissible.

[2] The initial statement of claim in this matter was filed June 18, 2007. A statement of defence was delivered in June 2008. The plaintiff then sought to amend the statement of claim on two occasions. On September 22, 2014, Gordon J. struck out many of the proposed amendments without leave to amend, some with leave to amend, and allowed others. On October 22, 2014, the plaintiff served another proposed amended claim. Discussions between counsel failed to resolve whether the claim was in compliance with Gordon J.’s order. On September 29, 2015, the plaintiff served another proposed amended statement of claim. The issue of whether the proposed amendments complied with Gordon J.’s order was not resolved and on February 26, 2016, Gordon J. struck out certain portions of the amended statement of claim. As a result, the plaintiff’s allegations of conspiracy and malice were struck.

[3] On April 21, 2006, the plaintiff issued the amended statement of claim which is the pleading that forms the basis for the action. The Crown delivered its fresh as amended statement of defence on May 4, 2016.

The Pleadings

[4] The plaintiff claims damages for wrongful arrest and damages under section 24 of the Canadian Charter of Rights and Freedoms for violation of a number of the plaintiff’s rights, general and aggravated damages for defamation, and punitive damages. The statement of claim specifically alleges that on December 16, 2006 and January 27, 2012 the plaintiff was wrongfully arrested. He also claims that he was defamed by the OPP Commissioner Julian Fantino, on three separate occasions: January 8, 2007; January 18, 2007; and, March 3, 2007. The plaintiff also alleges that on December 12, 2012, the OPP failed in its duty to protect the plaintiff and his wife when they were compelled to appear in court as a witness for the Crown.

[5] The statement of claim sets out the background. On February 28, 2006, a group of native protesters occupied a parcel of property in Caledonia that had been registered as part of a plan of subdivision known as Douglas Creek Estates (“DCE”). On March 3, 2006 the owner of DCE, Henco, brought an application to the Superior Court seeking an interim and permanent injunction restraining the protesters from interfering with Henco and a mandatory order requiring any peace officer of the OPP to remove any person who refused the request of the Sheriff to obey the interim injunction. On March 3, 2006, Matheson J. granted an interim injunction and a mandatory order requiring the OPP to remove any protesters that interfere with Henco. On March 9, 2006, Marshall J. issued an order making permanent the injunction order by Matheson J. From March 6, 2006 to April 20, 2006, the OPP took no steps to enforce the injunction or the mandatory order. On July 4, 2006, the Ontario government purchased the individual lots located on DCE.

[6] On Saturday, December 16, 2006 the plaintiff arrived in Caledonia with the intention of placing a Canadian flag on a Hydro pole along Argyle Street outside of the DCE to protest the unequal application of the law in Caledonia. The plaintiff had discussion with OPP officers near Argyle Street in Caledonia. Ultimately, the plaintiff was handcuffed and arrested and taken to a holding cell in Cayuga. He was not released until the following morning after an appearance before a Justice of the Peace. The plaintiff alleges that even though the OPP knew they had no authority to compel release conditions upon the plaintiff and no authority to bring him before a court, the OPP compelled him to appear instead of releasing him immediately. The plaintiff claims his detention was not for any lawful purpose and was done maliciously to punish the plaintiff for engaging in lawful conduct that the OPP did not approve of. The plaintiff also asserts that his detention by the OPP was an unlawful right in violation of his right to protest and of his rights to freedom of expression and freedom of assembly.

[7] The plaintiff asserts OPP Commissioner Fantino defamed him on three occasions. On January 8, 2007, he is alleged to have referred to the plaintiff by name and stated that he was a lawbreaker engaged in illegal activity and that he was provoking violence. On January 18, 2007, an OPP news release was issued in which Commissioner Fantino referred to a rally that had been organized for the following weekend and indicated those who were responsible for the rally were irresponsible and engaged in mischief making and clearly suggested that participating in the rally was unlawful. On March 3, 2007, in a television interview Commissioner Fantino referred to “people coming into the community who have no business being there except to stir things up.” Although the last two occasions did not specifically refer to the plaintiff by name, it would be clear to any resident of Caledonia who knew of the incident that the plaintiff was referred to.

[8] The plaintiff alleged that on January 27, 2012, he was wrongfully arrested again. At that time, he planned to post signs on various Hydro poles at DCE along Argyle Street. He was advised that he was not permitted to walk to any hydro pole or he would be arrested. He did so and was arrested. The plaintiff was handcuffed, placed in a police car, and driven to the Cayuga police station which was 12 minutes away. Upon his arrival at the station, the plaintiff was immediately released.

[9] The plaintiff also alleged that he was the victim of an assault by Teresa Jamieson. Teresa Jamieson was charged with assault with a weapon. The plaintiff was subpoenaed to appear in court as a witness on December 12, 2012. The plaintiff was made aware that certain protest groups were going to appear at the courthouse for the purpose of causing him harm. The plaintiff emailed OPP to advise them that threats had been made. When the plaintiff attended the court house, he was harassed by a number of persons. The plaintiff asserts that the OPP failed in its duty to protect him and his wife. The misconduct of the members of the OPP has aggravated the damages claimed by the plaintiff.

[10] In its fresh as amended statement of defence, the Crown asserts that the plaintiff’s arrest on December 16 was lawful. The officer had reasonable and probable grounds to believe, that by attempting to circumvent the police barrier to erect his flag, the plaintiff was about to commit, or was committing, a breach of the peace and, therefore he was lawfully arrested. The Crown also pleads that plaintiff was lawfully detained overnight to prevent further breaches of the peace and for the purpose of bringing him before a Justice of the Peace to ask the court to impose a common law peace bond at the earliest opportunity.

[11] The Crown denies that the statements made by Commissioner Fantino were defamatory, it denies that the last two statements referred to the plaintiff, and it pleads that, in any event, the statements were true. It also pleads that the statements were privileged and fair comment. The Crown denies that Commissioner Fantino acted with malice.

[12] The Crown pleads that the arrest on January 27, 2012 was lawful. The plaintiff was arrested for the purpose of preventing a breach of the peace. The risk of the apprehended breach of the peace was imminent and substantial.

[13] With respect to the harassment on December 12, 2012, the Crown denies any knowledge of threats or assaults made against the plaintiff. The Crown denies the OPP owed any private law duty of care to the plaintiff to prevent him from being threatened or assaulted in the circumstances pleaded.

[14] The Crown denies that any of the plaintiff’s rights pursuant to the Charter were infringed and alleges that the plaintiff has failed to give notice of constitutional question pursuant to section 109 of the Courts of Justice Act R.S.O. 1990, c. C.43. The Crown states that the statement of claim fails to plead or disclose material facts necessary to establish a finding of malice.

Documentary Disclosure and Production

[15] The defendant provided a list of documents and a supplementary list of documents pursuant to section 8 of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. The plaintiff made a request for production of further documents. After an exchange of correspondence between counsel, a number of issues of production remain unresolved.

[16] In this motion, the plaintiff requests production of six categories of documents. These

are:

(1) Documents from Crown prosecutors Andrew Goodman, Alex Paparella, and Larry Brock and lawyer Chris Diana regarding the events of December 16, 2016;

(2) Documents, including radio transmissions, photos, videos, briefing reports, relating to demonstrations that Gary McHale was involved in that are relevant to the allegation in paragraph 10 of the fresh as amended statement of defence of the demonstrations creating “an atmosphere of anxiety and tensions” and, in particular, with demonstrations that took place on 13 specific dates;

(3) Documents relating to injury suffered by any officer or individual as a result of any of the rallies conducted by McHale;

(4) All email, faxes or other documents in the possession of Commissioner Julian Fantino, Superintendent John Kane, or Inspector David McLean or any other members of the OPP that reference Gary McHale, and that were sent or received by a list of individuals at certain ministries, Crown corporations, municipalities;

(5) All occurrence reports or notes of any attending OPP officers any court appearance involving Gary McHale and;

(6) All documents including officer’s notes or recordings of the interview of John Sabin.

The Police Complaint Report

[17] In early 2007, the plaintiff made a complaint under the Police Services Act, R.S.O 1990, c. P.15, Part V, Complaints and Disciplinary Proceedings against four OPP officers. On November 1, 2007, he received a report prepared pursuant to the Act. The plaintiff has included the report in the motion record in support of this motion. The Crown says the report is improperly made an exhibit on this motion because section 83(8) of the Act which reads:

No document prepared as a result of a complaint made under this part is admissible in a civil proceeding, except at a hearing held under this part.

Section 95 states:

Every person engaged the administration of this part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,

(a) as may be required in connection with the administration of this act and the regulations;

(b) to his or her counsel;

(c) as may be required for law enforcement purposes; or

(d) with the consent of the person, if any, to whom the information relates.

[18] The plaintiff points out that the report is required to be provided to the plaintiff. Therefore, the communication of the information is required in connection with the administration of this Act as set out in section 95(a). Therefore, the plaintiff argues that the facts contained in the report are admissible. In addition, any documents which were in existence prior to the complaint are also admissible

[19] I find that the report is inadmissible in this proceeding. It was produced as a result of a complaint. The report was provided to the plaintiff. Therefore, he has access to the information in the report for the purposes of the prosecution of this action. The plaintiff would not want to introduce the report for the conclusions reached as they are contrary to the position of the plaintiff taken in these proceedings. The report contains hearsay evidence which would be inadmissible in the proceedings. He cannot rely on any of the statements made by parties in the course of that investigation as they are inadmissible. The plaintiff would not be entitled to cross-examine any person the statements made in the report. The plaintiff is not entitled to rely on the facts as contained in the report as evidence in this proceeding. It is a relevant document in the possession of the plaintiff. I assume it was listed in the plaintiff’s affidavit of documents. However, it is has no place in the trial of this action.

Relevant Legal Principles to Disclosure and Production

[20] The parties agree on the legal principles applicable to a motion for a further and better affidavit (or list of documents) under rule 30.06. As D.M. Brown J. as he then was, noted in Leduc v. Roman 2009 6838 (ON SC), [2009] O.J. No. 681: “the onus for reviewing documents to determine their relevance rests, in the first instance, with the party bearing the obligation to produce” (at para 14). Once one party suspects the opposite party has failed in this duty, that party may bring a motion. The motion requires actual evidence that potentially relevant undisclosed documents exist, as opposed to mere speculation.

[21] The concept of proportionality with respect to discovery is found in Rule 29.2 .01(1) which provides as follows:

29.2 .03(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or produce in the document would be unjustified;

(c) requiring the party or person to answer the question or produce a document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

The relevance is determined by the pleadings.

I shall address the requests.

December 16, 2006 Documents

[22] The plaintiff seeks production of relevant documents from the four individuals who are alleged to have information regarding the events of December 16, 2006. The defendant says that there is no evidence that any such documents exist or the persons possess any documents relevant to the issues in this action. In his submissions, counsel for the Crown advised that there were no relevant documents in the possession of the four named individuals. The plaintiff already has a detailed statement from Andrew Goodman. It is clear that certain of the individuals did communicate with each other and were involved in the process surrounding the events of December 16, 2006. There is no evidence of any documents. If there are any written communications between the four individuals, those ought to be listed by the Crown. However, the Crown is entitled to assert any claim for privilege with respect to those documents, if they exist.

The Prior Events Documents and Evidence of Injuries

[23] The plaintiff says that the documents related to prior events are relevant as a result of the allegation in paragraph 10 of the fresh as amended statement of defence which reads:

Many of the demonstrations attracted hundreds of protesters, creating an atmosphere of anxiety, and tension on both sides. The OPP must separate the sides to keep the peace. Each protest creates potential for risk of assaults and injuries to demonstrators, police and local residents.

[24] The Crown asserts there is no evidence that any such documents exist which are relevant to the issues in this action. It also asserts that the request is speculative, overbroad and premature because it is prior to examinations for discovery. The plaintiff says he is entitled to have the documents prior to an examination for discovery. The plaintiff says if the Crown is prepared to undertake to make no reference to prior incidents then the documents need not be produced. However, if potential Crown witnesses intend to make statements about events that took place prior to December 16, 2006, the crown should be required to provide the requested documents related to those incidents.

[25] I do not agree with the Crown that the matter should be left to examinations for discovery. The Crown says that in response the plaintiff’s inquiries, on discovery the Crown will disclose the events it intends to rely on and then undertake to provide documents. In my view, that would not be a procedure in keeping with Rule 1.04(1) which requires that “these rules shall be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.”

[26] By raising the issue of prior demonstrations, the Crown has made documents related to those prior occurrences relevant. The appropriate method to address this issue is for the Crown to advise of the plaintiff of the particular incidents upon which it relies and to list the documents relevant to those incidents. This includes any documents relating to injuries suffered by any officers or other person as suggested in the last sentence of paragraph 10 of the fresh as amended statement of defence. The Crown is not required to produce radio transmissions at this time. If privilege is asserted for any document, it should be specifically claimed.

Senior OPP Officers documents referencing the plaintiff

[27] The documents referred to as the correspondence of senior OPP officers is extremely broad. The defendant says this is a fishing expedition. There is no evidence that any such documents exist. The plaintiff says that the documents are relevant because they deal with the legitimacy of the plaintiff’s arrest made by a peace officer as a matter of exercise of discretion; the intentions of senior members of the OPP to suppress the plaintiff’s constitutional rights under the Charter; the propriety of the application of the “Framework” by OPP; the evidence of malice and defamatory statements made by Commissioner Fantino towards the plaintiff; and, aggravated and punitive damages.

[28] The determination of the legitimacy of the plaintiff’s arrest on the two occasions does not depend upon prior communications. Either the officer had legal grounds to arrest or he did not. In my view, any other information is not relevant to his exercise of discretion. The plaintiff asserts that his constitutional rights were violated as a result of his arrest on two occasions. I fail to see how any communications by senior OPP members are relevant to that issue.

[29] The “Framework” by the OPP is not something referred to in the pleadings. The plaintiff sought to amend the pleadings to address the “Framework” but that amendment was denied. Therefore, documents with respect to that issue are not relevant and need not be produced.

[30] On the issue of malice, the defendants assert the plaintiff has not properly pled malice. The aggravated and punitive damages must arise as a result of the plaintiff establishing the improper conduct of the defendant in accordance with the pleadings. Communications from Senior OPP officers are not relevant to that determination. A review of all communications between senior OPP officers with respect to the plaintiff in an inappropriate inquiry to be undertaken. It is not proportional to the issues in dispute. The time which may be required is unreasonable. The Crown is not required to produce all documents that reference the plaintiff.

Documents related to the Plaintiff’s Court Appearances

[31] The documents requested with respect to the plaintiff’s appearances in court is too broad. The claim specifically refers to allegations of harassment in his attendance on December 12, 2012. Any documents related specifically to the plaintiff’s attendance on December 12 would be relevant and should be listed. If there is a claim of privilege, it should be asserted by the Crown.

The John Sabin Documents

[32] The documents with respect to John Sabin are unrelated to the allegations in the statement of claim. The defendant asserts that there is no evidence any such documents exist. In fact, there is evidence that such documents exist as they were referred to on a bail hearing for the plaintiff for an incident not included in the statement of claim. The documents with respect to the interview with John Sabin are not relevant to the issues in the proceeding and the Crown need not make an inquiry with respect to those documents.

Costs

[33] As success was divided, I am not inclined to make any order as to costs. However, if either party seeks costs, they may make submissions, in writing. These submissions are limited to five pages plus a bill of costs and any offers to settle. Submissions are to be delivered to me at my chambers in Hamilton. The submissions are due within 15 days of the release of these reasons. There is a right of reply with the same page limit within a further 10 days.

Sweeny J.

DATE: December 30, 2016