Court File and Parties

CITATION: Mahmood Wali Mahmad v. Ottawa Police Services Board et al. 2017 ONSC 6276

COURT FILE NO.: 16-70631

DATE: 2017/10/19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Mahmood Wali Mahmad

Plaintiff

– and –

Ottawa Police Services Board, Constable Branchaud, Constable Colucci, Detective Darren Coyle, Constable Natalie Fortin, Constable Gurdevinder, Constable Khan, Constable Lehman, Sargeant Maltais, Officer Michelle Newton, Detective Rao, Detective Christina Read and Attorney General of Ontario

Defendants

Lawrence Greenspon & Tina H. Hill for the Plaintiff

Jeremy Wright for the Defendants Ottawa Police Services Board, Constable Branchaud, Constable Colucci, Detective Darren Coyle, Constable Natalie Fortin, Constable Gurdevinder, Constable Khan, Constable Lehman, Sargeant Maltais, Officer Michelle Newton, Detective Rao, Detective Christina Read

HEARD: October 19, 2017

ENDORSEMENT

o’bonsawin J.

[1] The Defendants, the Ottawa Police Services Board, seek an order striking out paragraph 64 of the Amended Statement of Claim without leave to amend. The Defendants rely, in particular, on Rules 1.04, 21.01(1), 25.06(1) and 25.11. Rule 1.04 states that the rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. As per Rule 21.01(1)(b), a judge can strike out a pleading on the grounds that it discloses no reasonable cause of action. As per Rule 25.06, pleadings must contain a concise statement of the material facts that the party relies on for the claim but not the evidence by which the facts are to be provided. Finally, Rule 25.11 allows a court to strike out or expunge all or part of a pleading with or without leave to amend if the pleading prejudices or delays the fair trial of the action, is scandalous, frivolous or vexation or is an abuse of the process of the court.

[2] In Abdi Jama (Litigation Guardian of) v. McDonald’s Restaurants of Canada Ltd., [2001] O.J. No. 1068, Nordheimer J. states in paragraph 21 that “motions under Rule 25.11 should only be granted in the “clearest of cases”. This finding is also repeated by Boswell J. in paragraph 19 of Bilotta et al. v. Barrie Police Services Board et al., 2010 ONSC 622: “[w]hen it is sought to strike out a claim on the basis that it discloses no cause of action, the court will only do so in the clearest of cases where it is plain and obvious that the case cannot succeed”.

[3] In paragraph 27 of Balanyk v. University of Toronto, 1999 CanLII 14918, Cameron J. determines that to assess the adequacy of pleadings under Rules 21.01, 25.06 and 25.11, the judge must keep in mind their purposes which are: (a) to define clearly and precisely the question in controversy between the litigants; (b) give fair notice of the precise case which is required to be met and the precise remedies sought; and (c) assist the court in its investigation of the truth of the allegations made.

[4] In Thode v. University of Ottawa, [2012] O.J. No. 6080, McNamara J. determined that the threshold for sustaining a pleading is not a high one. Accordingly, “[m]otions under rule 21.01 will only succeed where it is plain and obvious, assuming the facts plead to be true, that the pleading discloses no reasonable cause of action. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed.”

[5] I make these findings in having considered the material provided including the caselaw and having heard the submissions of the parties. The Defendants in this case rely heavily on the decision of Bilotta et al. v. Barrie Police Services Board et al., 2010 ONSC 622. In this matter, the Police Services Board sought an order striking out portions of the Amended Statement of Claim relating specifically to it because they did not meet the minimum requirements for pleadings and/or did not disclose a cause of action against the Board. Boswell J. struck out the paragraphs of the Amended Statement of Claim relating to the training and supervision. I have the benefit of comparing the paragraphs struck by Boswell J. since he added them in as Appendix “A” to his decision and those in paragraph 64 of the Plaintiff’s Amended Statement of Claim. Based on the reasons in Bilotta, I strike out paragraphs 64(a), (b), (c), (d), (e), (f), (g) and (j) of the Plaintiff’s Amended Statement of Claim as they relate to training and supervision.

[6] Paragraphs 64(h) and (i) of the Plaintiff’s Amended Statement of Claim appear to be a novel claim. The issue remains however, that the Plaintiff has not provided sufficient material facts to support the allegations. As per Banalyk, the Plaintiff has not clearly and precisely defined the question in controversy between the litigants regarding the matter having a system in place and how the Board failed to take remedial steps, training or implement guidelines to prevent any further Charter violations thereby allowing such violations in this case to occur. In addition, it is difficult to see the nexus between these allegations in these pleadings and the facts provided. With regards to these paragraphs, I have determined that the Plaintiff’s pleading in paragraphs 64(h) and (i) do not provide a sufficient statement of material facts that he relies on for this part of his claim.

[7] In conclusion, I order as follows:

(a) paragraphs 64(a), (b), (c), (d), (e), (f), (g) and (j) of the Plaintiff’s Amended Statement of Claim are struck without leave to amend; and

(b) paragraphs 64(h) and (i) of the Plaintiff’s Amended Statement of Claim are struck with leave to amend, however, the word “training” is struck without leave to amend in paragraph 64(i);

(c) the Plaintiff shall pay the Defendants’ costs in the amount of $3,360.00 within the next 30 days.

Justice M. O’Bonsawin

Released: October 19, 2017

CITATION: Mahmood Wali Mahmad v. Ottawa Police Services Board et al. 2017 ONSC 6276

COURT FILE NO.: 16-70631

DATE: 2017/10/19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Mahmood Wali Mahmad

– and –

Ottawa Police Services Board, Constable Branchaud, Constable Colucci, Detective Darren Coyle, Constable Natalie Fortin, Constable Gurdevinder, Constable Khan, Constable Lehman, Sargeant Maltais, Officer Michelle Newton, Detective Rao, Detective Christina Read and Attorney General of Ontario

ENDORSEMENT

O’Bonsawin J.

Released: October 19, 2017