CITATION: Gravelle v. Wright et al., 2017 ONSC 7189
COURT FILE NO.: CV-16-0302; CV-16-0508
DATE: 2017-12-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Court File No: CV-16-0302
GORDON R. GRAVELLE
Self-Represented
Plaintiff
- and -
CONSTABLE LORI WRIGHT AND CITY OF THUNDER BAY POLICE SERVICES BOARD
E. Prpic, for the Defendants/Moving Parties
Defendants/Moving Parties
A N D B E T W E E N:
Court File No: CV-16-0508
GORDON R. GRAVELLE
Self-Represented
Plaintiff
- and -
CONSTABLE JESSE LEPERE AND CITY OF THUNDER BAY POLICE SERVICES BOARD
E. Prpic, for the Defendants/Moving Parties
Defendants/Moving Parties
HEARD: October 30 and November 3, 2017, at Thunder Bay, ON
FITZPATRICK J.
Judgment On Motion
[1] Gordon Gravelle, the plaintiff, has sued two Thunder Bay police officers and their employer, the City of Thunder Bay Police Services Board. Mr. Gravelle seeks a finding of liability against these officers and their employer as well as a significant award of damages for his conviction for impaired driving.
[2] The defendants in the two separate actions brought by the plaintiff bring two motions for similar relief. The defendants ask that statements of claim in both actions be dismissed or struck out in their entirety without leave to amend because (a) the pleadings are an abuse of process, and (b) the pleadings disclose no reasonable cause of action.
[3] In this regard, the moving parties rely on Rules 21.01(3)(d), 21.01(1)(b) and 25.11.
[4] In the alternative, the defendants seek to have specific sections of the claims struck out without leave to amend.
[5] The plaintiff has commenced two actions despite the fact that his cause of action arises from the same set of facts. The first action (CV-16-302-00) was commenced by way of notice of action in July 2016 against Constable Wright and the City of Thunder Bay Police Services Board (the “Wright Action”). The second was commenced by statement of claim in October 2016. The party defendants in the second action (CV-16-508-00) were Constable Lepere and the City of Thunder Bay Police Services Board (the “Lepere Action”). As the matters have not proceeded past the point of Mr. Gravelle filing his statements of claim, and seeking to amend those claims, the matters have not been consolidated. As noted above, the defendants in both actions now seek to have both actions struck in their entirety.
[6] The respective statements of claim are essentially identical, with the same causes of action pled and the same recitation of the facts underlying the causes of action relied upon. The Lepere Action at paras. 69 to 81 does set out statements, more in the nature of argument than a proper pleading, where the plaintiff clearly asserts the main thrust of his claim against all defendants. Mr. Gravelle asserts in his pleading that but for one interaction between the two officers (Lepere and Wright) and himself, he would not have hired counsel to defend him against the charge of driving while impaired. The plaintiff alleges this counsel was incompetent, and it was the bad tactical decisions of that counsel, in particular failing to call psychiatric evidence that Mr. Gravelle was in a state of non-insane automatism at the time of his arrest, that lead to his being convicted of impaired driving.
[7] Having listened to the arguments on this hearing, as well as having the benefit of having heard argument by Mr. Gravelle about the viability of his claims before on several scheduling dates for this motion, I am going to treat both actions as one for the purposes of this judgment. To the extent I require a reference to a particular claim, I will identify it as such.
[8] There was a preliminary issue on the motion arising from the plaintiff’s attempt to file what he characterized as “fresh evidence”. I declined to admit that evidence on these motions. I did not review the evidence other than being advised and accepting it was an alleged expert report from Dr. Alan B. Douglass. I will set out my reasons for declining to allow this evidence to be entered after a recitation of the background facts which are necessary to understand both my ruling on the “fresh evidence” as well as my disposition of the motions.
Background Facts
[9] Based on my review of the statement of claim and of the submissions of the parties, it seems to me that the statement of background facts as set out in the defendant’s factum was a most accurate and succinct summary. It was set out in paras. 1 to 7 of the defendant’s factum in the Lepere matter. I repeat those facts and adopt them here.
The plaintiff’s action arises as a result of events which occurred on July 6, 2014. The plaintiff had previously been charged with impaired driving on or about May 6, 2014. On July 6, 2014, the plaintiff attended at TBayTel to speak to an employee (Mr. Darren Seed) who was a witness to the events leading to his arrest. Due to his being impaired by drug at the time, the plaintiff did not have any recollection of the events leading to his arrest.
After the plaintiff attended at his place of employment, Mr. Seed contacted the Thunder Bay police. He spoke to Constable Wright and advised that he was uncomfortable with the plaintiff coming to his workplace and asking him questions. He did not want the plaintiff to speak to him any further. As a consequence of that discussion, Constables Wright and Lepere attended at the plaintiff’s residence on the evening of July 6, 2014, to caution him concerning contacting Mr. Seed going forward. The plaintiff alleges that Constable Wright told him that he was not to have contact with any witnesses prior to his criminal trial and that such contact could be construed as witness intimidation, resulting in his arrest.
As part of the criminal proceeding against him, the plaintiff brought an application to determine whether his section 7 Charter rights had been violated when he was allegedly told by Constable Wright not to talk to witnesses before his criminal trial. Said application was heard and determined by her Honour Madam Justice Baig on February 5, 2015. She found that the plaintiff’s section 7 Charter rights had not been violated. She also determined at the subsequent trial on December 9 & 10, 2015, that the plaintiff was guilty of the offence charged.
The plaintiff appealed both his conviction and the determination with respect to his section 7 Charter rights to the Superior Court of Justice. His appeal was heard (September 16, 2016) and determined by her Honour Madam Justice Pierce (reasons released on December 22, 2016). Justice Pierce dismissed the appeal both with respect to the conviction and the plaintiff’s section 7 Charter rights.
The plaintiff subsequently sought leave to appeal Justice Pierce’s decision from the Court of Appeal for Ontario on a number of grounds. That appeal was heard on May 30, 2017, with written reasons delivered on August 8, 2017. The plaintiff’s application for leave to appeal was dismissed.
The plaintiff subsequently commenced an action against the defendants in this matter on October 31, 2016. He subsequently amended his claim on February 2, 2017 and is now seeking damages totalling $1,010,000.00, alleging unlawful and tortious misconduct, misfeasance in public office, abuse of process, intimidation, obstruction of justice, civil conspiracy, negligent misrepresentation, breach of his Charter rights, along with a claim for punitive damages.
The defendants have not filed a statement of defence and seek to dismiss/strike out the statement of claim in its entirety.
The Issue of “Fresh Evidence”
[10] As of the date of the hearing of the motions, Mr. Gravelle had not formally commenced an application to have his conviction overturned on the basis of his obtaining fresh evidence. In the course of dismissing Mr. Gravelle’s appeal, Simmons J.A. directly dealt with the issue of the “fresh evidence” of Dr. Douglass that Mr. Gravelle also attempted to tender on these motions. Simmons J.A. found that there was no reasonable possibility that the proposed fresh evidence would be admitted on appeal. If the evidence was not good enough for a criminal appeal, where sensitivities to permitting procedural fairness and avoiding wrongful convictions are particularly heightened, I could not see how it could be said to be sufficient to be admitted on a civil motion where the stakes are very different. I also advised orally that I could see no new facts raised by Mr. Gravelle in support of attempting to file a “redo” of the very opinion evidence rejected by the Court of Appeal.
[11] I agree with Simmons J.A. that there was no explanation why this evidence was proffered late except if one accepts Mr. Gravelle’s explanation that it was because his counsel was incompetent. Be that as it may, the facts upon which the opinion evidence was based existed at the time of trial and therefore cannot be said to be new or of a nature that would convincingly impeach the original result. Also, I could not see the logic of how opinion evidence regarding a hypothetical defence based on facts gleaned only from an accused and not independently verified, could have anything to do with the causes of action asserted against Lepere, Wright and their employer. As such I declined to allow this evidence to be admitted on the motions.
Positions of the Parties
The Defendants
[12] The moving parties argue the claims are simply a collateral attack on Mr. Gravelle’s criminal conviction. The defendants note that the pleading is essentially premised on Mr. Gravelle having been wrongfully convicted. As all his appeals have now been exhausted, it is abundantly clear that he has been rightfully convicted. His conviction has been confirmed both by the Superior Court of Justice and the Ontario Court of Appeal. As such, the pleadings are an abuse of process, pure and simple.
[13] The defendants submit there is no logical basis to suggest that any actions of the officers had anything to do with Mr. Gravelle’s conviction. The tort requirement for a causal link between the actions alleged and the damages claimed cannot be accepted even if one accepts all the pleadings of fact as being true.
[14] As for the plaintiff’s claim of Charter damages, the defendants submit the pleading represents an abuse of process as the factual basis for the plea does not accord with the findings made by the trial judge who convicted Mr. Gravelle. Specifically, Mr. Gravelle’s claim that he was denied his s. 7 right to make full answer and defence was expressly dealt with and rejected by Baig J, by Pierce J. and Simmons J.A., as all courts acknowledged Mr. Gravelle knew well before trial that he was able to contact any witnesses that he wanted to and that his ability to defend himself was in no way impaired.
[15] The defence also argues Mr. Gravelle’s pleading fails to provide the material fact basis for the claims of the tort of intimidation, the tort of conspiracy, the tort of negligent investigation and the tort of misfeasance in public office.
The Plaintiff
[16] Mr. Gravelle submits his claim is not a collateral attack on his conviction. He argued that but for his one and only interaction with the officers, he would not have hired incompetent counsel and correspondingly would have not been convicted of impaired driving.
[17] Mr. Gravelle maintained that he was detained, intimidated, frightened, threatened with detention and had a number of his Charter rights breached. He also maintained that all of the alleged Charter breaches were properly pleaded if one takes a broad and liberal approach to his pleading as is required on motions of this type.
[18] To the extent that the court finds that Mr. Gravelle’s pleadings are deficient, he seeks leave to amend the pleadings that are struck out.
The Law
[19] I found the statements of the law applicable to these motions as set out in paras. 9 to 16 of the defendants’ factum to represent an accurate and succinct recital. I repeat and adopt those statements here:
Rule 21.01(1)(b) is designed to ensure that the court’s process is not abused. It provides that a judge may strike out a pleading if it discloses no reasonable cause of action. The purpose of the rule is to test whether a plaintiff’s allegations state a legally sufficient or substantially adequate claim. The failure to properly establish a cause of action can occur in one of two ways. The claim will be found to be legally insufficient when either the allegations it contains do not give rise to a recognized cause of action or if it fails to plead the necessary legal elements of an otherwise recognized cause of action. (Dawson v. Rexcraft Storage (1998) 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (C.A.), paras #9-16 Deep v. Ontario [2004] O.J. No. 2734 (S.C.J.), , para #32-36).
In a motion under Rule 21.01(1)(b), the court must be satisfied that it is “plain and obvious” that the action cannot succeed. The facts alleged in the Statement of Claim are taken as proven, provided they are capable of proof. (Hunt v. Carey Canada Inc. 1990 90 (SCC), [1990] 2 S.C.R. 959 (S.C.C.).
Rule 21.01 (3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or grant judgment accordingly.
Rule 25.06(1) Material facts - Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
Rule 25.06(2) Pleading law - A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.
Rule 25.11 The Court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
a) may prejudice or delay the fair trial of the action;
b) is scandalous, frivolous or vexatious; or
c) is an abuse of the process of the court.
Allegations of legal conclusions are not facts and are insufficient for the purposes of pleading. This is particularly so where allegations of intentional or malicious conduct are made. A pleading that demonstrates a complete absence of material facts will be declared to be frivolous or vexatious. Pleadings that are irrelevant, argumentative, or inserted for colour or that constitute bare allegations should be struck out as scandalous. (Deep v. Ontario [2004] O.J. No. 2734 (S.C.J.) para #38-40)
There is some degree of overlap between the phrases frivolous, vexatious and abuse of process. The common example appears to be the situation where a plaintiff seeks to re-litigate an issue which has already been decided by a court of competent jurisdiction. (Currie v. Halton Regional Police 2003 7815 (ONCA) para #17
[20] The leading case on the law of abuse of process applicable to matters such as are before the Court is the decision of the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. At paras. 37 and 51, Arbour J. stated:
37 In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would . . . bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).
One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]
As Goudge J.A.’s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. (See, for example, Franco v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391 (C.A.); Bomac Construction Ltd. v. Stevenson, 1986 3573 (SK CA), [1986] 5 W.W.R. 21 (Sask. C.A.); and Bjarnarson v. Government of Manitoba (1987), 1987 993 (MB QB), 38 D.L.R. (4th) 32 (Man. Q.B.), aff’d (1987), 1987 5396 (MB CA), 21 C.P.C. (2d) 302 (Man. C.A.).) This has resulted in some criticism, on the ground that the doctrine of abuse of process by relitigation is in effect non-mutual issue estoppel by another name without the important qualifications recognized by the American courts as part and parcel of the general doctrine of non-mutual issue estoppel (Watson, supra, at pp. 624-25)…
51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.
[21] More recently, in Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, the Supreme Court reaffirmed its decision in Toronto (City) v. C.U.P.E and noted at para. 40 that “[t]he doctrine of abuse of process is characterized by its flexibility. Unlike the concepts of res judicata and issue estoppel, abuse of process is unencumbered by specific requirements.”
Disposition
[22] I agree with the submission of the defendants that Mr. Gravelle has been rightfully convicted. He has no basis to assert that he has been wrongfully convicted. He has exhausted his appeals. The fundamental underpinning of his claims has been destroyed. I find his claims, even as set out in the proposed amended pleadings, are a collateral attack on his conviction. His theory that “but for” his interaction with two police officers he would not have been convicted bears no connection to reality. It is a claim that cannot possibly succeed in my view.
[23] Mr. Gravelle was not detained by the officers. As the Supreme Court of Canada has set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 29 and 44, “detention” refers to the suspension of an individual’s liberty interest by a significant physical or psychological restraint. Nothing in the pleading even if believed or taken as true can logically lead to a conclusion that Mr. Gravelle was dealt with in a manner that even remotely comes close to arbitrary detention or imprisonment.
[24] I also find that on the basis of the alleged facts set out in the pleading, Mr. Gravelle was not spoken to by the officers in a manner that anyone could reasonably consider to be a threat. He was disabused of the notion that he could not investigate his own case well before his trial. He has now had the benefit of consideration of his criminal case from three separate levels of court. He has taken up a great deal of public resources in his quest to have his conviction overturned. This was clearly his right as a citizen. However, he has now exhausted those rights.
[25] In my view, Mr. Gravelle’s continued attempts to take up court resources in aid of his quest to obtain a monetary remedy from these defendants should be curtailed. I find his pleadings represent an abuse of process. It is an attempt to relitigate matters that have been conclusively dealt with by three different levels of court. For all the reasons set out by the Supreme Court of Canada in the Toronto (City) v. C.U.P.E. as to why relitigation of matters should be discouraged, this matter should be brought to an end now.
[26] I also accept the causation arguments made by the defence in regard to the claims of negligent misrepresentation, intimidation, conspiracy and misfeasance in public office. All of these claims are supported by only bald assertions in the pleading. While pleadings are to be given a generous and liberal reading at this stage of the proceedings, that is not a basis to permit simple bald assertions to stand. I agree that Mr. Gravelle’s claim discloses no reasonable cause of action for any of the tortious action alleged as the facts he asserts cannot logically be said to have caused the damage he says he suffered, namely hiring an incompetent lawyer and being convicted. Also, in his submission, he acknowledges that any funds he spent on his lawyer would have been used to retain an expert. I agree with the defence assertion that Mr. Gravelle has suffered no damages for which these defendants can be liable.
[27] As to his claim for Charter damages, the Ontario Court of Justice, a court of competent jurisdiction, through the decision of Baig J., has found on the balance of probabilities that Mr. Gravelle’s s. 7 rights were not violated during the events which he particularizes in his statements of claim. This is precisely the same standard that would be applicable on a trial of the matters as set out in the pleading. As such, proceeding with the claim would simply be an attempt to find a different judge to make a different finding on the same facts. In my view, this is a classic abuse of process.
[28] The other Charter violations claimed by Mr. Gravelle (under ss. 9, 11(d) or 12) are not supported by any facts set out in his pleading. He was not detained by these officers. I can see no basis for a claim that he was denied the presumption of innocence during his trial. He was not subjected to cruel and unusual punishment by these officers. Mr. Gravelle’s claim for Charter damages plainly cannot succeed in my view.
[29] The references to infringements of Charter rights under ss. 24(1) and 24(2) are nonsensical. They have no logical bearing on what Mr. Gravelle asserts and reflect a “throw everything up against the wall and see what sticks” approach on his part. This is an abuse of process.
[30] For all these reasons, the motions of the defendants are allowed. It would serve no purpose to allow Mr. Gravelle to attempt to amend his pleading. It is plain that the whole claim is a collateral attack on matters which have already been given a complete, fair, full and generous consideration without yielding findings in favour of Mr. Gravelle. I find he has no cause of action against the parties against whom he claims arising from the one and only interaction he had with these officers. His claims are struck out without leave to amend.
[31] The parties may make submissions as to costs. The submissions are not to exceed two pages in addition to any bill of costs the parties may wish to submit. As the holidays are approaching, I am giving the parties a bit of extra time to make their submissions. The moving party shall make their submissions on or before January 12, 2018. Mr. Gravelle may make his submissions on or before January 19, 2018.
“original signed by”__
FITZPATRICK J.
Released: December 1, 2017
CITATION: Gravelle v. Wright et al., 2017 ONSC 7189
COURT FILE NO.: CV-16-0302; CV-16-0508
DATE: 2017-12-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GORDON R. GRAVELLE
Plaintiff
- and -
CONSTABLE LORI WRIGHT AND CITY OF THUNDER BAY POLICE SERVICES BOARD
Defendants/Moving Parties
A N D B E T W E E N:
GORDON R. GRAVELLE
Plaintiff
- and -
CONSTABLE JESSE LEPERE AND CITY OF THUNDER BAY POLICE SERVICES BOARD
Defendants/Moving Parties
JUDGMENT ON MOTION
FITZPATRICK J.
Released: December 1, 2017
/sab