Dawson v. Baker, 2017 ONSC 6477

CITATION: Dawson v. Baker, 2017 ONSC 6477

COURT FILE NO.: CV-16-547063

DATE: 20171031

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSHUA DAWSON, SARA PATTENAUDE, LYRA DAWSON by her litigation guardian JOSHUA DAWSON, JAMES DAWSON, CAROL DAWSON, KRISTI DAWSON, JODY DAWSON, AMY DAWSON, KATIE DAWSON, GLEN DAWSON, JOAN DAWSON, KENNETH BAKER, and ANITA BAKER, Plaintiffs

AND:

MICHAEL BAKER, DAVIN STANK, SEAN MCLOUGHLIN, MONIQUE HARRINGTON, CARMEN BRESSETTE, TIMOTHY WOODLAND, CRAIG CALLISTER, KELSEY O’ROURKE, JANE DOEs, JOHN DOEs, COMMISSIONER (former) CHRISTOPHER D. LEWIS, COMMISSIONER (current) J.V.N. (VINCE) HAWKES and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants

BEFORE: Justice Glustein

COUNSEL: Marc E. Gibson and Akosua Matthews, for the plaintiffs

Laura E. Robinson, for the defendants Commissioner (former) Christopher D. Lewis and Commissioner (current) J.V.N. (Vince) Hawkes

Eric Wagner, for the defendant Her Majesty the Queen in Right of Ontario

HEARD: October 12, 2017

REASONS FOR DECISION

Nature of motions and issues before the court

[1] There are two motions before the court.

[2] The defendants, Commissioner (former) Christopher D. Lewis (“Commissioner Lewis”) and Commissioner (current) J.V.N. (Vince) Hawkes (“Commissioner Hawkes”) (collectively, the “Commissioners”) bring a motion for “an Order striking out paragraphs 27, 28, and 82 of the Statement of Claim and dismissing the Plaintiffs’ action as against the Commissioners, without leave to amend as (i) disclosing no reasonable cause of action; and/or (ii) being frivolous, vexatious, or an abuse of the Court”.

[3] The defendant, Her Majesty the Queen in Right of Ontario (“HMQ”) brings a motion for the same relief, i.e. “an Order striking out paragraphs 27, 28 and 82 of the Statement of Claim and dismissing the action against Christopher D. Lewis and J.V.N. (Vince) Hawkes (the ‘Commissioners’), without leave to amend”. HMQ brings its motion as it is vicariously liable for the acts of the Commissioners, if liability is found.

[4] HMQ includes in its grounds for the motion that (i) “The Statement [of Claim] does not disclose a reasonable cause of action against the Commissioners”; and (ii) “The allegations against the Commissioners in the Statement of Claim are bald and do not set out any material facts that would establish any cause of action”.

[5] While each of the Commissioners and HMQ filed a factum, their submissions are based on the same legal arguments and similar case law as they are seeking the same relief. At the hearing, counsel for the Commissioners and HMQ relied on each other’s submissions.

[6] Both the Commissioners and HMQ rely on Rules 21.01(1)(b), 21.01(3)(d), 25.06, and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

[7] At the hearing, counsel for the Commissioners advised the court that there were distinct bases on which the moving parties sought to strike the impugned paragraphs of the statement of claim (the “Claim”), without leave to amend, with respect to each of the Commissioners. In particular,

i) With respect to the claim against Commissioner Hawkes, the moving parties were relying on both:

a) Rule 21.01(1)(b), i.e. no reasonable cause of action disclosed assuming the pleadings are accepted as true, and

b) Rule 25.06 (also incorporating Rule 21.01(3)(d) and Rule 25.11), i.e. even if the Claim disclosed a reasonable cause of action, the impugned paragraphs ought to be struck for failing to contain the material facts on which the plaintiffs rely for the claim;

ii) With respect to the claim against Commissioner Lewis, the moving parties were relying only on Rule 25.06 (also incorporating Rule 21.01(3)(d) and Rule 25.11), i.e. the impugned paragraphs ought to be struck for failing to contain the material facts on which the plaintiffs rely for the claim.

[8] Consequently, with respect to Commissioner Lewis, the moving parties did not submit that the facts as pleaded in the Claim could not support a cause of action against him. The moving parties only submitted that the material facts to support such a cause of action had not been pleaded.

[9] The plaintiffs submit that (i) the claims against each of the Commissioners should not be struck, and (ii) in the alternative, if any portion of the plaintiffs’ claims is struck, the plaintiffs should be granted leave to amend their claim.

[10] The issues before the court are thus limited to those set out above. As for Commissioner Hawkes, I address both the issues of whether there is a reasonable cause of action disclosed in the Claim and if so, whether sufficient material facts are pleaded for that cause of action.

[11] With respect to the claim against Commissioner Lewis, I address only the issue of whether the plaintiffs have pleaded material facts sufficient for a cause of action against him.

[12] With respect to both claims, I address whether leave to amend ought to be granted if any portion of the plaintiffs’ claim is struck.

Overview

[13] For the reasons I set out below, I find that the allegations in the Claim disclose a reasonable cause of action against Commissioner Hawkes. However, I find that the allegations relating to him in the Claim do not set out the material facts to establish the constituent elements of a cause of action against him.

[14] I find that it is appropriate to grant leave to amend the Claim against Commissioner Hawkes.

[15] For the reasons I set out below, I find that the allegations in the Claim set out the material facts to establish the constituent elements of a cause of action against Commissioner Lewis, and, as such, I do not strike the allegations relating to him in the Claim.

[16] Even if I had found that the allegations in the Claim did not set out the material facts to establish the constituent elements of a cause of action against Commissioner Lewis, I would have granted leave to amend the Claim against him.

The allegations in the Claim

[17] As I discuss below, the law governing motions to strike pleadings under Rule 21 and Rule 25 is settled and not a matter of dispute between the parties on this motion. The issue before the court focuses on an analysis of the allegations in the Claim as they relate to causes of action against Commissioner Hawkes and Commissioner Lewis.

[18] Consequently, I review below the allegations in the Claim.

[19] The action arises out of:

i) the arrest and alleged assault and battery of the plaintiff Joshua Dawson (“Dawson”) by officers of the Ontario Provincial Police (“OPP”) on December 25, 2013. Those officers are defined by the plaintiffs in the Claim as the “Police Defendants”, [^1]

ii) the alleged negligent investigation by the Police Defendants leading to Dawson’s arrest,

iii) the alleged false imprisonment and conduct of the Police Defendants while Dawson was in detention and in hospital between December 25 and 26, 2013,

iv) the alleged malicious prosecution and negligent investigation after the arrest arising out of the alleged failure of the Police Defendants to report the incident to the Special Investigations Unit (“SIU”), and

v) the alleged negligence, misfeasance in public office, intentional infliction of mental suffering, intentional infliction of nervous shock, and violation of Dawson’s rights under the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (“Charter”) arising out of the alleged conduct.

[20] The remaining plaintiffs include Dawson’s spouse and family members, many of whom were in attendance at the family Christmas dinner when the alleged assault and battery took place.

[21] The Police Defendants are eight named OPP officers alleged to have participated in the events described below. Other officers who may have been involved in the events alleged below and whose names are not known to the plaintiffs are set out as “Jane Doe” and “John Doe” defendants.

[22] The other defendants are Commissioner Hawkes, Commissioner Lewis, and HMQ (named as a defendant since it is vicariously liable for the alleged conduct of the Police Defendants and the Commissioners).

[23] Dawson pleads that the Police Defendants attended at a family Christmas gathering on December 25, 2013 when called by Dawson’s sister, Carrie Moore, who had begun a verbal disagreement with Dawson. The plaintiffs allege:

i) The Police Defendants entered the home[^2] yelling profanities and ignored repeated requests by Dawson’s family members as to their justification in attending the residence;

ii) The Police Defendants yelled at Dawson, used profanity, and dragged him by his arms, head and neck, towards the front of the residence;

iii) Dawson was forced against the wall by the Police Defendants, and was knocked to the floor causing his head to make contact with the tile floor;

iv) The Police Defendants then pinned Dawson to the floor by placing their bodies on top of him;

v) Once pinned to the floor, the Police Defendants viciously assaulted Dawson, grabbing his hair and slamming his head on the ceramic tile approximately 30 times. The Police Defendants repeatedly punched Dawson in the head and on the right side of his torso, all while one of the Police Defendants pinned Dawson’s head to the floor with his left boot;

vi) The assault lasted for approximately 5-10 minutes, until Dawson became unresponsive and unconscious;

vii) While unconscious, Dawson was tasered three times, and then a fourth time against his leg, causing Dawson’s body to violently convulse with his head and limbs making repeated contact with the ceramic tile floor and nearby door frames;

viii) The Police Defendants lifted Dawson’s limp body and dragged him through a door leading to the garage. The Police Defendants yelled at Dawson’s family members to stay in the residence, and then dragged Dawson to a police car while repeatedly yelling at him to walk and uttering various profanities;

ix) The Police Defendants dragged Dawson in the middle of winter without shoes or a coat, and threw him into the back of the police car where he remained for some time;

x) The Police Defendants then met with Dawson’s parents and encouraged them to press trespassing charges against Dawson, stating that since he was tasered, his parents should press charges;

xi) Dawson’s family members asked the Police Defendants to take Dawson to the hospital and the Police Defendants gave that assurance;

xii) The Police Defendants then had a discussion between themselves, overheard by Dawson who had regained intermittent consciousness, that the Police Defendants would have to lay charges because Dawson had been tasered;

xiii) The Police Defendants then drove Dawson to the Petrolia OPP detachment rather than the hospital. The Police Defendants then placed Dawson in a cell and left him unattended, without medical care, from approximately 5 pm on December 25, 2013 until 8 am the next morning;

xiv) The Police Defendants knew that Dawson had suffered serious bodily injuries as a result of the above conduct, but none of them contacted the SIU;

xv) On the morning of December 26, 2013, Dawson was found in his cell unresponsive and shaking. At approximately 8 am, he was taken by paramedics to hospital. While in the hospital, the Police Defendants visited Dawson and informed him that he had been criminally charged;

xvi) Dawson was in terrible physical condition with heavy black and red bruising around both eyes, significant swelling of his forehead, a swollen and broken nose, dried blood, a large deep gash on his lower right shin, sluggish response, slurred speech, and diminished consciousness;

xvii) While at the hospital, Dawson was watched by between five to seven Police Defendants, who told medical staff that Dawson was malingering, drunk, and abusive to his wife;

xviii) Dawson’s bloodwork was tested at the hospital and he was found to be clean of drugs and alcohol;

xix) Dawson was released from hospital around 2 pm on December 26, 2013, against medical advice, as a result of the Police Defendants pressuring hospital staff; and

xx) Dawson was taken from the hospital to the OPP detachment to be fingerprinted and then taken to the Sarnia jail where he remained for four nights until his release on bail on December 30, 2013.

[24] The plaintiffs plead that:

i) Dawson was charged by the Police Defendants with “assault resist arrest”, “fail to comply undertaking condition”, “assault police officer”, and “obstruct police officer”;

ii) Dawson was released on bail under restrictive conditions that remained in place until his acquittal;

iii) The charges of “assault resist arrest” and “fail to comply undertaking condition” were withdrawn on May 6, 2015. Dawson was acquitted of the remaining two charges of “assault police officer”, and “obstruct police officer” on December 9, 2015; and

iv) The plaintiffs have suffered and continue to suffer mental distress from the impact of the conduct discussed above, including physical pain to Dawson from the assaults, diminished physical health, diminished mental health, stress from being forced into criminal proceedings and continued and lasting career and economic impacts.

[25] On the basis of the above allegations, the plaintiffs plead that the Police Defendants committed the torts of assault and battery, false imprisonment, negligence, negligent investigation, malicious prosecution, misfeasance in public office, intentional infliction of mental suffering, and violations of Charter rights.

[26] At paragraph 82 of the Claim, which is set out under the heading “Liability of the Commissioners”, the plaintiffs plead further allegations relating to the training, past conduct, and supervision of the Police Defendants. The further allegations against the Police Defendants are (quoted verbatim): [^3]

a) the Police Defendants were insufficiently trained to be dealing with the public;

b) the Police Defendants were insufficiently or incorrectly trained in proper restraint techniques;

c) the Police Defendants were insufficiently trained in conflict resolution and de-escalation techniques with the public;

d) the Police Defendants suffered from psychological and/or psychiatric problems rendering them unfit to be police officers;

e) the Police Defendants were unfit to perform duties reasonably expected of OPP officers;

h) the Police Defendants were incompetent and/or insufficiently skilled OPP officers having regard to their training, experience, and record of previous incidents of improper or inappropriate conduct [and] the Police Defendants have engaged in similar excessive uses of force in the past and continue to engage in excessive uses of force; and

i) the Police Defendants have been subject to numerous public and internal complaints for their excessive use of force.

[27] With respect to the liability of the Commissioners, the pleadings at paragraphs 27, 28, 29, and 83 of the Claim set out the capacity in which they are sued. The plaintiffs plead that:

i) Commissioner Lewis (retired March 29, 2014) “was responsible for the supervision, training, direction and control of police officers employed by the OPP, including the Police Defendants” (paragraph 27 of the Claim);

ii) Commissioner Hawkes (who assumed control March 29, 2014) “was responsible for the supervision, training, direction and control of police officers employed by the OPP, including the Police Defendants” (paragraph 28 of the Claim); and

iii) HMQ “is liable in respect of the torts committed by the Police Defendants and the Commissioners pursuant to section 5(1) of the Proceedings Against the Crown Act and section 50 of the Police Services Act” (paragraphs 29 and 83 of the Claim).[^4]

[28] The plaintiffs allege that the Commissioners breached their duties under sections 17 and 41 of the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”).

[29] The allegations concerning the basis for liability of the Commissioners are set out at paragraph 82 of the Claim, which I set out verbatim below:[^5]

a) The Commissioners knew or ought to have known that the Police Defendants were insufficiently trained to be dealing with the public;

b) The Commissioners knew or ought to have known that the Police Defendants were insufficiently or incorrectly trained in proper restraint techniques;

c) The Commissioners knew or ought to have known that the Police Defendants were insufficiently trained in conflict resolution and de-escalation techniques with the public;

d) The Commissioners knew or ought to have known that the Police Defendants suffered from psychological and/or psychiatric problems rendering them unfit to be police officers;

e) The Commissioners knew or ought to have known that the Police Defendants were unfit to perform duties reasonably expected of OPP officers;

f) The Commissioners failed to ensure that the Police Defendants carried out their duties in accordance with the provisions of the Police Services Act;

g) The Commissioners failed to maintain appropriate supervision and control over the Police Defendants;

h) The Commissioners knew or ought to have known that the Police Defendants were incompetent and/or insufficiently skilled OPP officers having regard to their training, experience, and record of previous incidents of improper or inappropriate conduct. In addition, the Commissioners knew or ought to have known that the Police Defendants have engaged in similar excessive uses of force in the past and continue to engage in excessive uses of force; and,

i) The Commissioners knew or ought to have known that the Police Defendants have been subject to numerous public and internal complaints for their excessive use of force.

[30] The plaintiffs claim they suffered damages from all of the defendants as a result of the alleged conduct.

Analysis

[31] I first address the general legal principles applicable to this motion.

[32] I then consider (i) whether the allegations in the Claim relating to Commissioner Hawkes disclose a reasonable cause of action, (ii) whether the allegations against Commissioner Hawkes set out the material facts for the cause of action against him, and (iii) whether leave to amend the Claim relating to Commissioner Hawkes is appropriate.

[33] Finally, I address (i) whether the allegations in the Claim relating to Commissioner Lewis set out the material facts for the cause of action against him and (ii) if not, whether leave to amend the Claim relating to Commissioner Lewis is appropriate.

a) General legal principles

[34] The following legal principles arise in this motion:

i) the applicable test on a motion to strike pleadings under Rule 21.01(1)(b),

ii) the applicable law on the requirement to plead material facts under Rule 25.06,

iii) the distinction between the tests to strike pleadings under Rule 21.01(1)(b) and Rule 25.06,

iv) the applicable test for leave to amend if a claim is struck, and

v) the applicable law concerning the personal liability of commissioners (or chiefs of police) under the PSA.

[35] I address each of these principles below.

i) The applicable test on a motion to strike pleadings under Rule 21.01(1)(b)

[36] The test on a motion to strike a pleading under Rule 21.01(1)(b) for failure to disclose a reasonable cause of action is settled law and is not disputed by the parties.

[37] In 1597203 Ontario Limited v. Ontario, 2007 CarswellOnt 3782 (SCJ) (“1597203”), Conway J. summarized the following principles to be applied by the court on a motion to strike (1597203, at para. 12):

a) The facts in the pleading are to be taken as proven and true unless they are patently ridiculous or incapable of proof.

b) It must be "plain and obvious" that the pleading is unfounded or contains no reasonable cause of action in order for the motion to succeed.

c) The threshold for sustaining a pleading is not high - a "germ" or "scintilla" of a cause of action will be sufficient.

d) The pleading will only be struck if the allegations do not give rise to a recognized cause of action or if the claim fails to plead the necessary elements of an otherwise recognized cause of action.

e) No evidence is to be admitted on the motion.

f) The pleading is to be read generously.

g) The novelty of the claim does not prevent a plaintiff from proceeding with its case.

h) The court’s role at the motion stage is not to determine the strength of the case or the likelihood of success.

[38] The above principles are consistent with the leading case of Hunt v. Carey Canada, 1990 CanLII 90 (SCC), [1990] 2 SCR 959, as recently affirmed by the Court of Appeal in Conway v. Law Society of Upper Canada, 2016 ONCA 72, at para. 7.

[39] In Rausch v. Pickering (City), 2013 ONCA 740 (“Rausch”), the Court of Appeal stated that a court must take a “charitable” view of a pleading on a motion to strike. Epstein J.A. set out the following principles (Rausch, at paras. 94-95):

i) “the Supreme Court has mandated that pleadings are to be construed as generously as possible with a view to accommodating any inadequacies in the form of the allegations due to drafting deficiencies”;

ii) “In determining whether pleadings disclose a cause of action, the focus must be on the substance of the pleading, not its form. … Courts have refused to strike pleadings even in cases in which the plaintiff has not specifically pleaded all elements of the cause of action, so long as those elements are implicit in the rest of the pleadings”;

iii) “as long as the existing pleading ‘raises the factual matrix of concern to the plaintiff and within which [the defendant’s] possible liability is to be located [,] it successfully asserts a cause of action within the meaning of rule 21.01(1)(b)’”[^6]; and

iv) “Thus, even if the plaintiff does not explicitly set out the technical cause of action on which it relies, if the facts as pleaded implicitly advance such a claim, the court ought not to strike the pleadings”.[^7]

[40] The court should strike out claims that have no reasonable prospect of success (R. v. Imperial Tobacco Ltd., 2011 SCC 42 at paras. 17, 19).

ii) The applicable law on the requirement to plead material facts

[41] In Life Rich Corporation v. Signature Realty Inc., 2013 ONSC 1335 (SCJ) (“Life Rich”). C. Brown J. considered the applicable test for a motion brought under Rule 25.11 to strike a claim as frivolous and vexatious or otherwise an abuse of process of the court because it does not disclose material facts as required under Rule 25.06. [^8]

[42] C. Brown J. held that a pleading must contain the “constituent factual elements to establish the claim” (Life Rich, at para. 10). I adopt this definition of a material fact as one which sets out a constituent factual element to establish the claim.

[43] C. Brown J.’s analysis of the requirement to plead a “material fact” in Life Rich is consistent with the case law summarized by Archibald J., Killeen and Morton in Ontario Superior Court Practice 2017, LexisNexis. The authors state, at p. 1166 (citations omitted):

Rule 25.06(1) directs the disclosure of the ‘material’ facts, which include facts that establish the constituent elements of the claim or defence. The material facts are to be stated concisely, i.e., set out with precision and clarity. P is required to plead facts capable of supporting each constituent element of the cause of action raised. Rule 25.06 mandates a minimum level of material fact disclosure. If the level is not reached, the remedy is not a motion for particulars under r. 25.10 but rather a motion to strike out the pleading. It is only where the minimum level of material fact disclosure is reached that the pleading becomes regular. The determination of this minimum level is not an easy task, and common sense must be brought to bear along with a consideration of the purpose and function of pleadings in modern litigation. It is not necessary to raise points of law. [Emphasis added.]

[44] Consequently, the test on a motion to strike a pleading under Rule 25.11 or Rule 21.01(3)(d) for failing to disclose the material facts of the cause of action requires the court to determine if there is a minimum level of material fact disclosure capable of supporting the constituent elements of the causes of action raised in the pleading.

iii) The distinction between the tests to strike pleadings under Rule 21.01(1)(b) and Rule 25.06

[45] While the court may strike a pleading for failure to comply with either Rule 21.01(1)(b) or Rule 25.06, there is a distinction between the separate bases.

[46] The “plain and obvious” test under Rule 21.01(1)(b) sets out a low threshold. The court considers whether the necessary elements of a cause of action are pleaded, assuming the facts as alleged are true. Consequently, if the allegations do not give rise to a recognized cause of action or if the claim fails to plead the necessary elements of an otherwise recognized cause of action, it will be struck under Rule 21.01(1)(b) (1597203, at para. 12(d)).

[47] The elements of a cause of action, however, may be established on a broad and generous reading of a pleading, taking into account drafting deficiencies and assessing whether the pleadings raise a factual matrix of concern within which the defendant’s possible liability is to be found, if the facts as pleaded implicitly advance a cause of action (Rausch, at paras. 94-95).

[48] In contrast, Rule 25.06 requires more than a low threshold that the elements of a cause of action can be shown by the pleadings. Rule 25.06 requires a minimum level of fact disclosure, such that the defendant is aware of the material facts (not evidence) that the plaintiff intends to establish the elements of the cause of action. This requires the court to review the facts pleaded to determine whether the “minimal level of material fact disclosure” has been made (Archibald J. et al., Ontario Superior Court Practice 2017, at p. 1166).

[49] Consequently, a pleading may withstand a motion to strike under Rule 21.01(1)(b) but may not withstand a motion under Rule 25.06.

iv) The test for leave to amend if a pleading is struck

[50] When a pleading is struck, leave to amend should be granted unless the claim contains a radical defect incapable of being cured by amendment. In Taylor v. Tamboril Cigar Co., [2005] O.J. No. 4182 (CA) (“Taylor”), the motion judge struck the pleading after finding that “the statement of claim failed to plead properly the claims for conspiracy, breach of fiduciary duty and breach of trust” (Taylor, at para. 1). The Court of Appeal upheld the finding that the pleading was deficient (Taylor, at para. 1).

[51] However, the court reversed the decision of the motion judge to refuse leave to amend. The court adopted the principles set out by Borins J. (as he then was) in Indal Metals v. Jordan Construction Management Inc., [1994] O.J. No. 1616 (Gen. Div.) (“Indal”) that leave to amend shall be granted unless the pleading contains “a radical defect incapable of being cured by amendment” (Taylor, at para. 4, citing Indal, at para. 13).

[52] The court added that “any tactical reasons behind the advancing of the pleading are more properly policed with costs sanctions at later stages of a proceeding” (Taylor, at para. 3).

[53] In Indal, Borins J. relied on his earlier decision in AGF Canadian Equity Fund v. Transamerica Commercial Finance Corp. Canada (1993), 14 O.R. (3d) 161 (Gen. Div.) (“AGF”), at pp. 172-3. Borins J. held (Indal, at para. 13):

Accordingly, the third party claim will be struck out. The only issue which remains is whether the defendant should be given the opportunity to amend its third party claim. In AGF Canadian Equity Fund v. Transamerica Commercial Finance Corp. Canada (1993), 14 O.R. (3d) 161 at 172-3 I had the opportunity to discuss the circumstances under which leave to amend should be granted when a statement of claim is struck out for not disclosing a reasonable cause of action:

This gives rise to the second consideration concerning the exercise of the powers given by rule 21.01(1)(b). The court also has the power to permit a party to amend its pleadings and so temper the coercive effect of the rule. As the authorities show, it is very rare that a case will be decided at the pleading stage without allowing the plaintiff either the opportunity to correct its statement of claim or to establish its claim at a trial. Although the question of when a plaintiff should be given the opportunity to amend its statement of claim was not discussed in Hunt v. Carey, supra, in my view it is reasonable to conclude from the strong policy views expressed by Wilson J. that a plaintiff should be afforded this opportunity unless the statement of claim contains a "radical defect" incapable of being cured by an amendment. Therefore, on a motion under rule 21.01(1)(b), the court may exercise both its coercive and its corrective powers in a suitable and proper case. The object of the corrective power, which is found in rule 2.01(1) and rule 26.01, is to allow the court in the appropriate case to allow the plaintiff to replead and thereby prevent the plaintiff from being "driven from the judgment seat ... without any court having considered his right to be heard": Dyson v. United Kingdom (Attorney General), [1911] 1 K.B. 410 at p. 419, 80 L.J.K.B. (C.A.), per Fletcher-Moulton L.J. Indeed, the liberal amendment policy of the Rules of Civil Procedure would be undermined by efforts to impose on a plaintiff rigid pleading requirements on pain of having the action dismissed unless perfection in pleading is achieved. In my experience, on a motion to strike out a statement of claim for failing to disclose a reasonable cause of action the usual practice is to grant leave to amend the statement of claim unless it is clear the plaintiff is unable to improve its case by an amendment it might properly be able to make: see, e.g., McDonald v. Mulqueen (1922), 53 O.L.R. 191 (H.C.J.); Kennedy v. Kennedy (1911), 24 O.L.R. 183 (C.A.); CBS Songs Ltd. v. Amstrad, [1988] A.C. 1013. The reason for this practice is the policy that cases should be finally decided on their merits and not on technicalities. On the other hand, unless there is reason to believe that the case can be improved by amendment, leave to amend will not be given: Hubbuck & Sons v. Wilkinson, Heywood & Clark, [1899] 1 Q.B. 86, [1895-99] All E.R. Rep. 244 (C.A.). For example, leave to amend will be refused and the action will be dismissed if it is statute-barred or the contract sued upon is illegal or in action for defamation that the occasion of publication was absolutely privileged. [Emphasis added.]

[54] (See also WP (33 Sheppard) Gourmet Express Restaurant Corp. v. WP Canada Bistro & Express Co., 2010 ONSC 2644 (SCJ), at para. 52).

[55] Consequently, if a pleading is capable of amendment, leave to amend ought to be granted if the pleading is struck.

v) The applicable law concerning the liability of commissioners (or chiefs of police) under the [PSA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html)

[56] Sections 17 and 41 of the PSA provide that a commissioner is responsible at law for the training and supervision of police officers.

[57] Section 41(1)(b) of the PSA provides that the duties of a chief of police[^9] include “ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community”.

[58] Section 17(2) of the PSA provides that the commissioner of the OPP “has the general control and administration of the Ontario Provincial Police and the employees concerned with it”.

[59] Sections 42(g) and (i) of the PSA state that the duties of a police officer include “performing the lawful duties that the chief of police assigns” and “completing the prescribed training”.

[60] A commissioner is not vicariously liable for conduct of police officers (K. (L.M.) v. Ontario (Ministry of Community & Social Services), [1996] O.J. No. 812 (Gen. Div.), at para. 56).[^10]

[61] A commissioner can only be liable for breaching his or her duties. It is an independent duty grounded under sections 17 and 41 of the PSA and can exist regardless of the conduct of a police officer. Consequently, a commissioner who fails to provide proper training or supervision faces personal liability.

[62] The leading cases setting out the principles of personal liability of a commissioner (or chief of police) are Odhavji Estate v. Woodhouse, 2003 SCC 69 (“Odhavji”) and Miguna v. Toronto (City) Police Services Board, 2008 ONCA 799 (“Miguna”). I review these cases below.

[63] In Odhavji, the Supreme Court upheld the decision of the Court of Appeal to permit a claim against the Toronto chief of police. In Odhavji, the plaintiff had pleaded (Odhavji, at paras. 34, 54, and 56-60):

i) The Chief was under a statutory duty pursuant to the PSA to ensure that members of the police force carried out their duties in accordance with the PSA (s. 41(1)(b) of the PSA);

ii) The police officers had a statutory duty pursuant to the PSA to co-operate with the SIU in an investigation (s. 113(9) of the PSA);

iii) The police officers were refusing to co-operate with the SIU in their investigation and were thereby in breach of their statutory duty;

iv) The police officers’ breach of their statutory duty could reasonably be expected to cause harm to the plaintiffs; and

v) The Chief had not forced the officers to fulfill their statutory duty to co-operate.

[64] In Odhavji, Iacobucci J. held that the pleadings disclosed sufficient proximity between the chief of police and members of the public as to give rise to a duty of care. He held that a chief of police could be liable for negligent supervision of members of the police force (Odhavji, at paras. 53-61).

[65] Iacobucci J. held that a relationship of proximity can exist when a chief of police fails to comply with his or her duties under the PSA in circumstances where it is reasonably foreseeable that damage would arise to the plaintiff. Iacobucci J. held (Odhavji, at para. 56):

In the present case, one factor that supports a finding of proximity is the relatively direct causal link between the alleged misconduct and the complained of harm. As discussed above, the duties of a chief of police include ensuring that the members of the force carry out their duties in accordance with the provisions of the Police Services Act. In those instances in which a member of the public is injured as a consequence of police misconduct, there is an extremely close causal connection between the negligent supervision and the resultant injury: the failure of the chief of police to ensure that the members of the force carry out their duties in accordance with the provisions of the Police Services Act leads directly to the police misconduct, which, in turn, leads directly to the complained of harm. The failure of the Chief to ensure the defendant officers cooperated with the SIU is thus but one step removed from the complained of harm. Although a close causal connection is not a condition precedent of liability, it strengthens the nexus between the parties. [Emphasis added.]

[66] Iacobucci J. held that a duty of care is owed by a chief of police to the public since the public expect a police chief to be mindful of injuries that might arise as a consequence of police misconduct. Iacobucci J. held (Odhavji, at para. 57):

A second factor that strengthens the nexus between the Chief and the Odhavjis is the fact that members of the public reasonably expect a chief of police to be mindful of the injuries that might arise as a consequence of police misconduct. Although the vast majority of police officers in our country exercise their powers responsibly, members of the force have a significant capacity to affect members of the public adversely through improper conduct in the exercise of police functions. It is only reasonable that members of the public vulnerable to the consequences of police misconduct would expect that a chief of police would take reasonable care to prevent, or at least to discourage, members of the force from injuring members of the public through improper conduct in the exercise of police functions. [Emphasis added.]

[67] Iacobucci J.’s conclusion that the public has a reasonable expectation that a chief of police owes a duty of care to members of the public to properly supervise and train police officers is consistent with the statutory obligations under the PSA set out above. Iacobucci J. held (Odhavji, at para. 58):

Finally, I also believe it noteworthy that this expectation is consistent with the statutory obligations that s. 41(1)(b) of the Police Services Act imposes on the Chief. Under s. 41(1)(b), the Chief is under a freestanding statutory obligation to ensure that the members of the force carry out their duties in accordance with the provisions of the Police Services Act and the needs of the community. This includes an obligation to ensure that members of the police force do not injure members of the public through misconduct in the exercise of police functions. The fact that the Chief already is under a duty to ensure compliance with an SIU investigation adds substantial weight to the position that it is neither unjust nor unfair to conclude that the Chief owed to the plaintiffs a duty of care to ensure that the defendant officers did, in fact, cooperate with the SIU investigation. [Emphasis added.]

[68] Iacobucci J. concluded that a chief of police owes an independent duty of care to ensure proper supervision and training. He held (Odhavji, at paras. 60-61):

… What the appellants seek, though, is not the opportunity to file a complaint that might result in the imposition of disciplinary sanctions but, rather, compensation for the psychological harm that they have suffered as a consequence of the Chief's inadequate supervision. The public complaints process is no alternative to liability in negligence.

In short, I believe that it would be inappropriate to strike the action for negligent supervision against the Chief on the basis that he did not owe the plaintiffs a duty of care. If the plaintiffs can establish that the complained of harm is a reasonably foreseeable consequence of the Chief's failure to ensure that the defendant officers cooperated with the SIU, the Chief was under a private law duty of care to take reasonable care to prevent such misconduct. The cross-appeal against the Court of Appeal's decision to allow the action in negligence against Police Chief Boothby to proceed is therefore dismissed. [Emphasis added.]

[69] The Commissioners and HMQ submit that the finding of a pleaded duty of care in Odhavji is based on a pleading that the chief of police had not compelled the officers to co-operate with the SIU. However, the above passages demonstrate the more general principle that a commissioner’s duty of care for negligent supervision or training can be based on a pleading which alleges personal liability on the chief of police for a breach of his or her obligations of training or supervision under the PSA.

[70] The fact that a police officer engages in the type of conduct alleged in the present case does not set out an absolute or vicarious liability for the commissioner under the Odhavji analysis. However, a claim for “negligent supervision” or “negligent training” can survive if there was an independent and personal failure by the commissioner to comply with his or her obligations under the PSA.

[71] In Miguna, the Court of Appeal reversed the decision of the motion judge who had struck out a statement of claim against the police chief.

[72] Blair J.A. spoke for the court and reaffirmed that “a chief of police is not vicariously liable for the acts of his or her police officers during the course of their employment” (Miguna, at para. 83). Nevertheless, the court allowed the claim to proceed because of the independent duty of care owed by a police chief to members of the public for breach of his or duties under s. 41 of the PSA. Consequently, Blair J.A. stated that “a claim could lie against Chief Fantino in negligence, if properly framed and pleaded” (Miguna, at paras. 83-84). [Italics in original text.]

[73] Blair J.A. then reviewed the statement of claim and held that it contained allegations which, if proven, could establish negligence of the chief of police for a failure to supervise and to ensure that police officers were properly trained. Blair J.A. stated (Miguna, at paras. 85-87):

In paras. 40-45 of the fresh amended statement of claim the Chief is alleged, essentially, to have been negligent, reckless or wilfully blind in fulfilling his statutory responsibilities for the day-to-day operations of his police force (Police Services Act, s. 41). The factual basis for this claim is said to be that he failed to exercise his supervisory and managerial authority over the Police Defendants by failing to ensure that the Police Defendants were adequately trained and did not engage in the improper conduct attributed to them in the pleading - and particularized in para. 41, subparagraphs (a) through (kk). Chief Fantino is alleged to have been grossly negligent or negligent in failing to order a comprehensive review of this conduct, to have encouraged and condoned the creation of an environment that fostered such conduct, and to have acted "capriciously, recklessly, negligently, incompetently or he was wilfully blind regarding the negligence, negligent investigations, recklessness, racial profiling and racism of the defendant police officers". He is alleged to have been motivated, in effect, by a desire to retaliate against Mr. Miguna because the latter "had acted against Fantino in previous litigation (both on behalf [of himself] or on behalf of his clients)".

The motion judge acknowledged that the failure of the Chief to take the steps he allegedly should have taken "could be negligent if he knew or had reason to know that the alleged misconduct was occurring and did not act against it", but he concluded that there were no allegations in the claim to that effect (Reasons, para. 306). Similarly, the failure to take such steps might be negligent if the Chief failed to ensure that procedures were in place to identify and report instances of misconduct of the sort put against the Police Defendants, but again the motion judge found no such allegations in the pleading. Finally, the motion judge concluded that the allegation regarding the failure to conduct a comprehensive review could not stand because there was no suggestion that such a review had been requested or that the Chief had a duty to conduct one.

Keeping in mind that pleadings are to be read generously at this stage and that the facts, as alleged, are to be taken as true, I arrive at a different conclusion. The assertion is that the Chief was reckless or wilfully blind in his approach to what is said to have been going on and, indeed, that he was motivated by extraneous considerations in not taking steps to intervene or to correct the alleged misconduct. Of course these serious allegations are merely allegations at this stage, and nothing has been proved. If they are established, however, they could give rise to personal liability on the part of Chief Fantino, as opposed to a vicarious liability claim based on the conduct of the Police Defendants. This is not one of those clear cases where it can be said to be plain and obvious that the claim cannot succeed. [Emphasis added; italics in original.]

[74] The Commissioners and HMQ seek to distinguish Miguna on the basis that the plaintiff in that case pleaded that the chief of police was motivated by a desire to retaliate against the plaintiff. However, the above passages demonstrate that a personal animus is not required to establish independent liability against a commissioner. As set out in Miguna, if the pleadings set out material facts such as “if he knew or had reason to know” of facts related to his obligations under the PSA and then “fail[ed] to take such steps” to address those duties, the commissioner “could be negligent”.

[75] Consequently, I find that the pleading of personal animus against the chief of police in Miguna is not a requirement to establish personal liability of a commissioner for negligence for failing to comply with his or her statutory obligations under the PSA.

[76] The independent duty of a chief of police for failure to ensure proper supervision and instruction is confirmed by Nordheimer J. (as he then was) in Deciantis v. Toronto (City) Police Services Board, 2001 O.J. No. 2615 (SCJ), at paras. 6 and 8:

… The Board is not responsible for supervision and training. That is the responsibility of the Chief. Similarly, the Board is not responsible for practices, standing and routine orders, directives, training programs and operational practices and structures. Those again are the responsibility of the Chief.

… The issue is whether the police officers are properly instructed and trained in the legitimate use of force in the carrying out of their duties. However, the responsibility for such instruction and training, as I have already explained, falls within the purview of the Chief of Police and not the Board. [Emphasis added.]

[77] Similarly, in Romagnuolo v. Hoskin, 2001 CarswellOnt 3183 (SCJ) (“Romagnuolo”), the court relied upon the Court of Appeal decision in Odhavji (which was upheld on this point by the Supreme Court). Keenan J. held (Romagnuolo, at paras. 19 and 22):

[T]he potential liability of a chief of police is not necessarily dependent upon a finding of negligence with respect to the officers. A chief of police may be found liable if he is negligent in the performance of his statutory duties, regardless of the conduct of his officers. [Emphasis added.]

[78] Consequently, there is an independent duty on a chief of police or commissioner to fulfill his or her statutory duties under the PSA to ensure proper training and supervision of police officers. A breach of that duty can give rise to a claim against the chief of police or commissioner.

[79] I now review the allegations in the Claim to determine (i) whether they disclose a reasonable cause of action against Commissioner Hawkes, (ii) if so, whether the material facts necessary to establish the constituent elements of the claim against Commissioner Hawkes have been pleaded, and (iii) whether the material facts necessary to establish the constituent elements of the claim against Commissioner Lewis have been pleaded.

[80] Where applicable, I also address whether the plaintiffs should be granted leave to amend the Claim.

b) Application of the above principles to the Claim

i) The motion to strike under Rule 21.01(1)(b) against Commissioner Hawkes

[81] The moving parties submit that Commissioner Hawkes cannot be liable, even if the facts as pleaded are true, since he assumed control on March 29, 2014, after the December 2013 events in question. They submit that this “timing” issue is determinative, in that no personal liability can be found since Commissioner Hawkes was not in office at the date of the arrest, alleged assault and battery, or detention.

[82] On this basis, HMQ submits in its factum that “naming Commissioner Hawkes is an abuse of process that can only be interpreted as an attempt to harass him by forcing him to participate in examinations for discovery”.

[83] I do not agree that this “timing” issue is determinative.

[84] The claim against Commissioner Hawkes is based on his obligations under the PSA for supervision and training for the time period when he was a commissioner, after the date he took command. In particular the plaintiffs plead that:

i) The Police Defendants failed to contact the SIU even though Dawson’s interactions with police left him unresponsive, unconscious and requiring emergency assistance at the hospital (paragraph 51 of the Claim); and

ii) Commissioner Hawkes (and Commissioner Lewis) failed to ensure that the Police Defendants carried out their duties in accordance with the provisions of the PSA (subparagraph 82(f) of the Claim).

[85] Under s. 113(9) of the PSA, police officers have a duty to co-operate fully with members of the SIU in the conduct of an investigation. Reading the Claim broadly, and allowing for any drafting deficiencies, a failure of the Police Defendants to report the incident (as pleaded) and a failure of Commissioner Hawkes to ensure that the Police Defendants carried out their duties under the PSA (as pleaded) could present a “factual matrix of concern to the plaintiff” (Rausch, at para. 95, citing Lauwers J. (as he then was) in BMO, at paras. 26-27) that Commissioner Hawkes failed to properly supervise the Police Defendants during his mandate.

[86] Further, the allegations in the Claim can support a claim for personal liability on the part of Commissioner Hawkes for his alleged failure to supervise which led to the alleged negligent investigation, malicious prosecution, and restrictive bail conditions, all of which resulted in alleged damage to the plaintiffs after the events of December 25-30, 2013.

[87] The plaintiffs’ claim, read generously, is that if Commissioner Hawkes had properly trained or supervised the Police Defendants after the incident, so that the Police Defendants would have reported the incident to the SIU, Dawson would not have been subject to a continuing malicious prosecution or the imposition of restrictive bail conditions. The claim against Commissioner Hawkes discloses a reasonable cause of action since “the facts as pleaded implicitly advance such a claim”, “even if the plaintiff does not explicitly set out the technical cause of action on which it relies” (Rausch, at para. 95, citing Lauwers J. (as he then was) in BMO, at paras. 26-27).

[88] Given the low threshold for sustaining a pleading, I do not accept the “timing” argument raised by the Commissioners and HMQ. I find that the allegations in the Claim disclose a reasonable cause of action against Commissioner Hawkes.

ii) The motion to strike under Rule 25.11 and 21.01(3)(d) against Commissioner Hawkes

[89] The obligation to plead sufficient facts to establish the constituent elements of a cause of action exists even if pleadings can be read broadly to disclose a reasonable cause of action. On the pleadings in the present case, I do not find that there are sufficient facts pleaded to establish the constituent elements of personal liability for Commissioner Hawkes.

[90] It is not sufficient to plead generally in subparagraph 82(f) that “The Commissioners failed to ensure that the Police Defendants carried out their duties in accordance with the provisions of the Police Services Act”.

[91] In Romagnuolo, Keenan J. refused to strike a claim under Rule 21.01(1)(b) which pled general allegations of liability against the chief of police with respect to supervision and training (see paragraph 28B of the claim in Romagnuolo, cited at para. 24 of the reasons).

[92] The allegations in Romagnuolo included general allegations that the chief of police (i) failed to comply with his duties under the PSA, (ii) failed to ensure that his members underwent proper and adequate education or training, (iii) failed to implement a program for routine supervision of police officers, and (iv) continued to employ officers whose work history and record of complaints for use of excessive force showed that they were unsuitable for continued employment as police officers (see the allegations at subparagraphs 28B (a), (d), (e), (f), (g), (n), and (o) of the claim referred to at Romagnuolo, at para. 24).

[93] Keenan J. dismissed the claim against the chief of police (and other defendants) for a failure to disclose material facts. He held (Romagnuolo, at paras. 55-56):

The claims set out in subparagraph 28B.(a) do not meet the test set out by Rosenberg J. in Region Plaza. Similarly, all further claims against the Chiefs of Police and the Boards, as set out in paragraph 28B, are unsupported in the pleadings of material fact contained in the Amended Statement of Claim. For example, with respect to subparagraphs 28B.(c), (d), (h) and (i), I cannot find any mention of material facts disclosing: failure "to give proper orders or directions to the chief of police"; failure "to insure that its members underwent proper and adequate education and training required by the Solicitor General and to periodically upgrade"; failure "to establish adequate or any guidelines, by-laws and rules for the effective management of the police service"; or failure "to adequately or effectively oversee the chief of police in his duties".

Similar concerns arise regarding subparagraphs 28B.(j), (k), (l), (m) and (p), which relate to the duties of polices services boards under subsection 31(1)(a). The allegations are not limited in scope, and effectively allege that the defendant Boards failed to follow proper hiring practices at all times with respect to all officers hired. I find such broad and sweeping allegations irrelevant in this matter as between the plaintiffs and the defendant Boards. As noted in Sopinka and Lederman: The Law in Civil Cases (Toronto: Butterworth, 1974), at p. 19 (as cited in Union Gas Ltd. v. Steel Co. of Canada Ltd. (1976), 1 C.P.C. 325 (Ont. H.C.) by Weatherston J.):

Evidence of similar acts is considered collateral, and therefore irrelevant, unless some special nexus between the fact in issue and the evidence tendered is shown, which creates a relationship beyond mere similarity. General similarity is not sufficient. [Emphasis added.]

[94] In order to ground liability against Commissioner Hawkes for his conduct after he became Commissioner, material facts as to his liability must be pleaded. If a factual basis is pleaded to establish that (i) Commissioner Hawkes either knew of the incident and did not report it[^11] or (ii) did not supervise or train the Police Officers with respect to their obligation to co-operate with the SIU when the Police Defendants had not reported the incident, such material facts may establish the constituent elements of a cause of action against Commissioner Hawkes.

[95] However, in the present case, a broad allegation under subparagraph 82(f) of the Claim that Commissioner Hawkes “failed to ensure that the Police Defendants carried out their duties in accordance with the provisions of the Police Services Act” does not set out the material facts to establish his liability.

[96] Consequently, I strike the claim against Commissioner Hawkes for failure to disclose material facts under Rule 25.06.

iii) Leave to amend the Claim against Commissioner Hawkes

[97] Based on the law I discuss above, I grant leave to amend the Claim with respect to the cause of action against Commissioner Hawkes. I would do so even if I had found that the Claim discloses no reasonable cause of action.

[98] Given the potential liability of Commissioner Hawkes, either under s. 3 of the Regulation, or under ss. 17 and 41 of the PSA if he failed to comply with his duties of supervision and training which led to the alleged malicious prosecution, negligent investigation, or restrictive bail conditions, it cannot be said that “the plaintiff is unable to improve its case by an amendment it might properly be able to make” or that there is a “radical defect incapable of being cured by an amendment” (Indal, at para. 13, citing AGF at pp. 172-73, as approved in Taylor, at para. 4).

[99] Consequently, regardless of whether paragraphs 28 and 82 of the Claim ought to be struck against Commissioner Hawkes under either Rule 21.01(1)(b) or Rules 25.11 and 21.01(3)(d), I grant leave to amend the Claim against Commissioner Hawkes.

iv) The motion to strike under Rule 25.11 and 21.01(3)(d) against Commissioner Lewis

[100] The Commissioners and HMQ submit that the allegations in the Claim against Commissioner Lewis should be struck for failure to disclose material facts. For the reasons that follow, I do not agree.

[101] If the material facts are pleaded to support a cause of action that the Commissioner failed to meet the expected standard of care, the test under Rule 25.06 is met. It is not necessary to plead the evidence on which a party relies to make the assertions of material fact.

[102] The constituent elements of a claim against the Commissioners are set out in Odhavji and Miguna. In particular, those cases establish that a commissioner owes a duty of care and can be held liable if the commissioner fails to exercise his or her statutory obligations of supervision or training under sections 17 and 41 of the PSA.

[103] In Miguna, the court allowed the claim to proceed when “[t]he factual basis for this claim is said to be that he failed to exercise his supervisory and managerial authority over the Police Defendants by failing to ensure that the Police Defendants were adequately trained and did not engage in the improper conduct attributed to them in the pleading” (Miguna, at para. 85).

[104] As I discuss above, the plaintiffs seek to distinguish Miguna on the basis that the plaintiff in that case pleaded that the chief of police engaged in the impugned conduct because he was seeking to retaliate against the plaintiff. However, a claim in negligence requires only that a person (i) is in a relationship of proximity and (ii) does not exercise the care of a reasonable person in such circumstances.

[105] In the present case, the plaintiffs allege in subparagraphs 82(a) to (e), and subparagraphs 82(h) and (i) that Commissioner Lewis knew or ought to have known of facts that placed him in a position of proximity if he failed to take steps under his supervisory or training role.

[106] The plaintiffs plead at subparagraphs 82(a) to (e) and 82 (h) and (i) facts which are material to Commissioner Lewis’ statutory duties under the PSA and a cause of action against him. The plaintiffs plead (quoted verbatim from those subparagraphs):

a) the Police Defendants were insufficiently trained to be dealing with the public;

b) the Police Defendants were insufficiently or incorrectly trained in proper restraint techniques;

c) the Police Defendants were insufficiently trained in conflict resolution and de-escalation techniques with the public;

d) the Police Defendants suffered from psychological and/or psychiatric problems rendering them unfit to be police officers;

e) the Police Defendants were unfit to perform duties reasonably expected of OPP officers;

h) the Police Defendants were incompetent and/or insufficiently skilled OPP officers having regard to their training, experience, and record of previous incidents of improper or inappropriate conduct [and] the Police Defendants have engaged in similar excessive uses of force in the past and continue to engage in excessive uses of force; and

i) the Police Defendants have been subject to numerous public and internal complaints for their excessive use of force.

[107] The plaintiffs then plead that Commissioner Lewis knew or ought to have known the existence of those facts, failed to ensure that the Police Defendants carried out their duties in accordance with the provisions of the PSA and failed to maintain appropriate supervision and control over the Police Defendants.

[108] Unlike in the cases relied upon by the plaintiffs, which I address below, the pleadings in the present claim against Commissioner Lewis set out the constituent elements of the cause of action. The plaintiffs plead the material facts that:

i) the Police Defendants did not have adequate training;

ii) the Police Defendants had psychological problems;

iii) the Police Defendants engaged in excessive use of force in the past and had been subject to numerous public and internal complaints for such excessive use of force; and

iv) Commissioner Lewis knew or ought to have known all of the above facts.

[109] If Commissioner Lewis knew or ought to have known that the Police Defendants (i) were insufficiently trained, (ii) had psychological problems, or (iii) were incompetent or subject to numerous complaints of excessive force[^12], and then “failed to ensure that the Police Defendants carried out their duties in accordance with the provisions of the Police Services Act” or failed to maintain appropriate supervision and control over the Police Defendants”[^13], then these are facts capable of supporting the constituent elements of the cause of action against Commissioner Lewis under the test in Odhavji and Miguna.

[110] The moving parties rely on other cases in which the court found that material facts had not been pleaded to establish liability. In particular, the moving parties rely on (i) two related decisions in Bilotta v. Barrie Police Services Board 2010 ONSC 622 (“Bilotta 1”) and Bilotta v. Barrie (City) Police Services Board, 2010 ONSC 4457 (“Bilotta 2”), (ii) Bilich v. Toronto (City) Police Services Board, 2013 ONSC 1445 (“Bilich”), and (iii) Romagnuolo.

[111] I review these cases below.

[112] Both Bilotta 1 and Bilotta 2 do not arise in the context of a claim against a commissioner or a chief of police. The claim was against the police services board, which is liable only for policy decisions. Consequently, the cases do not stand for the proposition of what constitutes material facts for a claim against a commissioner for breach of supervision or training obligations.

[113] In Bilotta 1, Di Tomaso J. stated that “It is not sufficient for a plaintiff to simply allege a breach of duty owed to the plaintiff by the defendant. The plaintiff must plead the material facts supporting such allegation” (Bilotta 1, at para. 23). I agree that a party cannot simply plead a breach of duty to establish the material facts.

[114] However, unlike in Bilotta 1, the plaintiffs in the present case did not plead only a general breach of duty of care which was not related to the conduct of the particular police officers.

[115] Instead, the plaintiffs in the present case pleaded that the Police Defendants were insufficiently trained, had psychological problems, were incompetent, had used excessive force in the past, and had received numerous public and internal complaints for their excessive use of force. The plaintiffs pleaded that all of those facts were known or ought to have been known by Commissioner Lewis and that Commissioner Lewis failed to maintain appropriate supervision and control. Such allegations are not a bald assertion of a legal duty in a vacuum as in Bilotta 1, but instead plead material facts capable of supporting the cause of action against Commissioner Lewis.

[116] In Bilotta 2, the court dismissed the claim since “the far more fundamental problem” was that “no cause of action lies against a Police Services Board for matters relating to the operational functions of a police force” (Bilotta 2, at para. 10). The claim in the Bilotta cases was not against a commissioner or chief of police.

[117] In obiter, the court commented that the claim against the police board “continues to fail to meet the minimum standard required of the pleading” (Bilotta 2, at para. 4). Excerpts of the revised pleading against the board in Bilotta 2 indicate that allegations similar to those in the present case were made with respect to the conduct of the particular police officers (see Appendix “A” to the reasons in Bilotta 2).

[118] If Bilotta 2 is to be taken as support for the proposition that a plaintiff cannot proceed with an action against a commissioner in which the plaintiff asserts that:

i) a named police officer was not properly trained, incompetent, had psychological problems, and a past record of excessive force;

ii) the commissioner knew or ought to have known that was the case;

iii) the commissioner failed to ensure adequate supervision or training of that named police officer;

iv) the named police officer failed to comply with obligations under the PSA; and

v) the plaintiff suffered damages as a result;

then I would not follow Bilotta 2 on this point. I find that such an interpretation is inconsistent with the comments of the Court of Appeal in Miguna and the law as set out in Odhavji, both of which allow such a claim and are consistent with the commissioner’s supervisory and training obligations under the PSA.

[119] In Bilich, the court struck a claim against the chief of police. Unlike in the present case, the plaintiff made allegations of a general nature seeking vicarious liability which were struck by the court under the settled law. Frank J. held (Bilich, at paras. 78-79) (endnotes omitted):

The plaintiff alleges that the defendant William Blair, the Chief of Police is "liable in negligence for the manner in which members of Toronto Police Services acted and implemented decisions" and for the "intentional manner in which member of the Toronto Police Services acted and implemented decisions" and should be held to have "directly and personally" committed the tort of defamation based on the news release with respect to the plaintiff's arrest.

As I said, above, the Police Chief is not vicariously liable for the acts committed by other police officers during the course of their employment. [Emphasis added.]

[120] In Bilich, the plaintiff made a general allegation that the chief of police failed to comply with his statutory duties. There was no pleading of any material facts to support such an allegation. Frank J. held (Bilich, at para. 80) (endnotes omitted):

Further, broad allegations that the Chief of Police failed to carry out his duty without being properly framed in negligence with the requisite elements and supporting facts being pleaded cannot succeed. The plaintiff has not specified in what manner or when Chief Blair was negligent or breached his duties. In effect, the plaintiff is asserting a claim of negligence against the office of the Chief of Police, rather than the Chief personally. Such a claim cannot succeed. [Emphasis added.]

[121] In Romagnuolo, the court held that that it was not sufficient for a plaintiff to simply allege a breach of duty owed by the defendant. The court held that the plaintiff must also plead the material facts supporting such allegations, as the defendant must know how and when they have breached their duties to the plaintiff (Romagnuolo, at para. 54).

[122] However, a review of the impugned pleadings in Romagnuolo (see paragraph 28B of the claim set out at para. 24 of the decision) demonstrates the difference between the pleadings in that case and in the present action. In Romagnuolo, the impugned subparagraphs listed numerous alleged failures of the chief of police, either as general propositions of law, or as statements of a general failure with respect to all police officers. There were no allegations about the particular police officers in the case.

[123] It was in that context that Keenan J. held (Romagnuolo, at para. 59):

The concerns that I have expressed with respect to the specific subparagraphs above apply to all of the subparagraphs of 28B. The broad claims against the Boards and the Chiefs of Police are made without any indication of the actions underlying the alleged tortious acts. The failure to allege material facts in support of the claims in paragraph 28B would effectively require the defendants to take positive steps to prove that they had satisfied all of their statutory duties for some undetermined period of time leading up to the events of December 28, 1998. Rule 25.06 exists to relieve the defendants of such an onerous task. [Emphasis added.]

[124] Consequently, the moving parties’ reliance on the statement by Keenan J. that (Romagnuolo, at para. 52):

The plaintiffs do not purport to have any knowledge of actual instances where either the Chiefs of Police or the Boards failed to meet their duties as set out in the statutes and regulations listed in subparagraph 28B.(a)

is misplaced. Keenan J. does not require evidence of actual instances to be pleaded, but rather material facts. In Romagnuolo, there were no material facts pleaded as to the particular conduct of the chief of police with respect to the particular police officers.

[125] Again, in the present case the pleadings relate to the Police Defendants and the knowledge of Commissioner Lewis. Those factual allegations, when pleaded with the allegation that Commissioner Lewis failed to adequately supervise the Police Defendants or ensure they carried out their duties under the PSA, set out the material facts.

[126] The distinction between pleading evidence of particular incidents and material facts sufficient to respond to the claim is set out in Miguna, at para. 54:

When the claim is read as a whole, however, the defendants are provided with sufficient particulars of the various allegations, and of the legal conclusions flowing from them, to enable them to plead to the allegations. The discovery phase of the action will enable them to pinpoint the allegations - and the evidence supporting them - further. That is one of the functions of the discovery phase. To repeat the observations of Justice Grange, in Temilini (at p. 668):

When the case appears only to lack evidence, so long as the gaps may be filled, either by discovery or the revelation of evidence at trial, the case should be allowed to proceed. Trials are notoriously unpredictable. [Italics in original.]

[127] A commissioner can be liable for breach of a duty to train or supervise. The reliance by the moving parties on the cases cited above does not alter that general principle. The court must examine the pleadings in each case to determine whether they can stand.

[128] In my view, the pleadings in the present case are more akin to those in Miguna or Odhavji. They raise a lack of training and competence of the specific police officers involved, knowledge of such lack of training and competence by the commissioner, and a failure to supervise in light of that knowledge. They are not bald pleadings of a duty of care.

[129] I do not agree with the moving parties that the pleadings are a “fishing expedition” so that the plaintiffs can obtain information on discovery. The pleadings are limited to the particular Police Defendants, and the knowledge of Commissioner Lewis about these Police Defendants.

[130] Commissioner Lewis will be able to respond (through pleadings and document and oral discovery) to the allegations (i) that he knew or ought to have known about the alleged insufficient training, psychological problems or incompetency of the Police Defendants, and (ii) concerning his training and supervision of these Police Defendants.

[131] This is not a case where Commissioner Lewis would be required “to take positive steps to prove that [he] had satisfied all of [his] statutory duties for some undetermined period of time”, as that concern was raised in Romagnuolo, at para. 59. Commissioner Lewis would only have to address supervision and training of these Police Defendants. [^14]

[132] The moving parties submit that Rule 25.06 is not satisfied because the plaintiffs have not pleaded any examples with respect to allegations that any of the Police Defendants had engaged in excessive use of force in the past or had prior complaints of such conduct. However, any such examples would be “evidence” under Rule 25.06, not a material fact. The plaintiffs can allege that such conduct took place, and prove the allegations through discovery, or face possible summary judgment if no evidence is forthcoming.

[133] For the above reasons, I dismiss the motion under Rule 25.11, 25.06 and 21.01(3)(d) with respect to Commissioner Lewis.

[134] I note that even if I were to strike the claim against Commissioner Lewis under Rules 25.06, 25.11 and 21.01(3)(d), I would grant leave to amend for the reasons I discuss above.

Order and costs

[135] There was divided success on this motion. The Commissioners and HMQ were successful in striking the claim against Commissioner Hawkes, although I rejected their submission that the claim should be struck without leave to amend. I rejected the moving parties’ request for an order striking the claim against Commissioner Lewis.

[136] Both parties had to prepare equally for the issues. While I granted the plaintiffs leave to amend the claim against Commissioner Hawkes, that legal issue was extremely minor in comparison to the substantive law addressing the pleading requirements for claims against commissioners, an issue on which both parties had some success.

[137] Also, I reject the plaintiffs’ submissions that substantial indemnity costs are appropriate from HMQ because HMQ submitted in its factum that “naming Commissioner Hawkes is an abuse of process that can only be interpreted as an attempt to harass him by forcing him to participate in examinations for discovery”. That submission only adopted language from existing case law in which the courts made similar comments, in situations when the pleadings disclosed no reasonable cause of action under Rule 21.01(1)(b).

[138] While I did not accept HMQ’s submission that the claim against Commissioner Hawkes should be struck under Rule 21.01(1)(b), I do not accept the plaintiffs’ submission at the hearing that HMQ’s statement in its factum was an “attack” on the “integrity” of the plaintiffs or their counsel. HMQ’s submission was based on the case law before the court, and was a conclusion open to the court if I had accepted its Rule 21.01(1)(b) argument.

[139] For the above reasons, I order no costs of the motion.

[140] I thank counsel for their thorough oral and written submissions which were of great assistance to the court.

GLUSTEIN J.

Date: 20171031

[^1]: Not every Police Defendant is alleged to have engaged in all of the conduct listed below. However, such distinctions are irrelevant for the purposes of setting out the claim against the Police Defendants as a group. [^2]: Not all of the Police Defendants are alleged to have entered the home, but again this distinction is irrelevant for the purposes of setting out the claim against the Police Defendants as a group. [^3]: These allegations are set out in the Claim as subparagraphs 82(a) to 82(i), so I use these subparagraph letters as part of a verbatim listing. [^4]: At the hearing, HMQ acknowledged that it was vicariously liable for any torts committed by the Police Defendants and the Commissioners. [^5]: These allegations are set out in the Claim as subparagraphs 82(a) to 82(i), so I use these subparagraph letters as part of a verbatim listing. [^6]: (citing Lauwers J. (as he then was) in 1309489 Ontario Inc. v. BMO Bank of Montreal, 2011 ONSC 5505 (“BMO”), at para. 27) [^7]: (again citing Lauwers J. in BMO, at paras. 26-27) [^8]: (The same test would also apply to Rule 21.01(3)(d) for a motion to strike on the basis of a failure to plead material facts.) [^9]: (or a commissioner under s. 2(1) of the PSA) [^10]: As I discuss above, HMQ advised the court during argument that it accepted that it would be vicariously liable for torts committed by the Police Defendants and the Commissioners. [^11]: (as he would have been required to do under s. 3 of the Ontario Regulation 267/10 (the “Regulation”) under the PSA relating to “Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit”) [^12]: (as pleaded at subparagraphs 82(a) to (e) and 82 (h) and (i) of the Claim) [^13]: (as pleaded at subparagraphs 82(f) and (g) of the Claim) [^14]: The same may be apply for Commissioner Hawkes if the amended Claim sets out material facts about his conduct, but any such determination would have to wait until review of such a pleading.