COURT FILE NO.: 16-70631

DATE: 2018/05/16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Mahmood Wali Mahmad

Plaintiff

– and –

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

Defendants

Lawrence Greenspon & Tina H. Hill for the Plaintiff

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

HEARD: April 26, 2018 (at Ottawa)

ENDORSEMENT

o’bonsawin J.

[1] The Defendants, the Ottawa Police Services Board et al., seek an order striking out paragraph 64 of the Amended Amended Statement of Claim without leave to amend.

[2] In my Endorsement dated October 19, 2017, I ordered that paragraphs 64(a), (b), (c), (d), (e), (f), (g), and (j) of the Plaintiff’s Amended Statement of Claim were struck without leave to amend. In addition, I ordered that paragraphs 64(h) and (i) of the Plaintiff’s Amended Statement of Claim were struck with leave to amend, however, the word “training” was struck without leave to amend in paragraph 64(i).

[3] In response to my orders, the Plaintiff provided an Amended Amended Statement of Claim on December 15, 2017. The ordered paragraphs were struck by the Plaintiff, however, the word “training” in paragraph 64(i) remains. At the hearing before me, Counsel for the Defendants advised that this was an administrative error on his part and the word “training” would be removed.

[4] The two amended paragraphs in question are as follows:

64(h) ~~It ~~The Board and/or Chief Bordeleau failed to have any system in place by which they would become aware of any and all instances where it had been determined by a Court that ~~any~~ one or both of the Defendant Officers, or any officer had violated an individual’s rights under the Charter, resulting in the Board and/or Chief Bordeleau failing to recognize that the Defendant Officers had a propensity and history of breaching individuals’ rights under the Charter and/or that there was a systemic problem within the Ottawa Police Services of officers breaching individuals’ rights under the Charter;

64(i) As a consequence of (h) above, it the Board and/or Chief Bordeleau failed to take any remedial steps~~,~~ or training or implement policies or guidelines to prevent any further Charter violations thereby allowing such violations in this case to occur.~~; and~~

[5] As can be seen by reading the amended paragraphs, the Plaintiff identifies Chief of Police Charles Bordeleau in the narrative.

[6] It is important to begin by addressing the Defendants’ submission that Chief of Police Bordeleau should not be added to the pleadings since:

a) the allegations made against Chief of Police Bordeleau are new allegations;

b) he is not a party to this action; and

c) the limitation period has expired.

[7] The Defendants’ last two arguments must fail because Chief of Police Bordeleau has not been added as a party, and therefore, the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, does not apply in these circumstances. However, I agree with the Defendants that at the time this motion was argued before me on October 19, 2017, the Plaintiff did not argue that it was contemplating adding Chief of Police Bordeleau into the narrative. These allegations against Chief of Police Bordeleau are new allegations. When I issued the order providing the leave to amend paragraphs 64(h) and (i), I did not contemplate that Chief of Police Bordeleau would be added to the narrative. Consequently, I find that the Plaintiff cannot now add Chief of Police Bordeleau to the narrative since this is outside of the scope of my order providing him leave to amend his Amended Statement of Claim.

[8] With regards to the Plaintiff’s other amendments to paragraphs 64(j) and (i), the Defendants rely, in particular, on rules 25.06(1) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 21.01(1)(b) permits a judge to strike out a pleading on the grounds that it discloses no reasonable cause of action. As per rule 25.06(1), pleadings must contain a concise statement of the material facts that the party relies on for the claim, but not the evidence by which the facts are to be provided. Finally, rule 25.11 allows a court to strike out or expunge all or part of a pleading with or without leave to amend if the pleading prejudices or delays the fair trial of the action, is scandalous, frivolous or vexation, or is an abuse of the process of the court.

[9] In Abdi Jama (Litigation Guardian of) v. McDonald’s Restaurants of Canada Ltd., [2001] O.T.C. 203 (Ont. S.C.), at paragraph 21(a), Nordheimer J. states, “motions under rule 25.11 should only be granted in the ‘clearest of cases’.” This finding is also repeated by Boswell J. in Bilotta et al. v. Barrie Police Services Board et al., 2010 ONSC 4457, at paragraph 19: “[w]hen it is sought to strike out a claim on the basis that it discloses no cause of action, the court will only do so in the clearest of cases where it is plain and obvious that the case cannot succeed.”

[10] In Balanyk v. University of Toronto (1999), 1999 CanLII 14918 (ON SC), 1 C.P.R. (4th) 300 (Ont. S.C.), at paragraph 27, Cameron J. determines that to assess the adequacy of pleadings under rules 21.01, 25.06, and 25.11, the judge must keep in mind their purposes, which are to:

(a) define clearly and precisely the question in controversy between the litigants;

(b) give fair notice of the precise case which is required to be met and the precise remedies sought; and

[11] In Thode v. University of Ottawa, 2012 ONSC 7284, at paragraph 8, McNamara J. determines that the threshold for sustaining a pleading is not a high one. Accordingly, “[m]otions under rule 21.01 will only succeed where it is plain and obvious, assuming the facts plead [sic] to be true, that the pleading discloses no reasonable cause of action. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed.”

[12] As is evident by reading this Endorsement, I have repeated my analysis regarding the Rules from my last Endorsement, since the arguments are relatively the same.

[13] The Police Services Act, R.S.O. 1990, c. P.15, contains a declaration of principles in s. 1. The second paragraph states: “Police services shall be provided throughout Ontario in accordance with the following principles: … The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.” The Plaintiff argues that this is very relevant because in the new Police Services Act, it is referenced in the importance of conducting police services in accordance with the Charter. It must be noted that the new Police Services Act is not yet in effect. However, as judges, we must be mindful of the application of the Charter to all individuals, whether they are plaintiffs or defendants.

[14] Section 31 of the Police Services Act lists the responsibilities of the Police Services Board. The relevant responsibilities to this matter are:

31(1) A board is responsible for the provision of adequate and effective police services in the municipality and shall, … (c) establish policies for the effective management of the police force…

31(2) The members of the police force, whether they were appointed by the board or not, are under the board’s jurisdiction.

31(3) The board may give orders and directions to the chief of police, but not to other members of the police force, and no individual member of the board shall give orders or directions to any member of the police force.

31(4) The board shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operation of the police force.

[15] The amendments made by the Plaintiff, as cited in paragraph 4 of this Endorsement, fall under the purview of the Board’s responsibilities as per s. 31 of the Police Services Act. The Board would not be meddling in operational decisions, as noted in paragraph 31(4) of the Police Services Act, if it either had in place or created a system by which it would become aware of any and all instances where it had been determined by a Court that there was a violation of an individual’s rights by police officers.

[16] I remain of the view that paragraphs 64(h) and (i) of the Plaintiff’s Amended Amended Statement of Claim appear to contain a novel claim. The question that remains, however, is whether the Plaintiff has provided sufficient material facts to support these allegations. In his Amended Amended Statement of Claim, the Plaintiff created the nexus between the matter of having a system in place and how the Board failed to take remedial steps, implement policies or guidelines by clarifying that the alleged lack of a system in place “result[ed] in the Board and/or Chief Bordeleau failing to recognize that the Defendants Officers had a propensity and history of breaching individuals’ rights under the Charter and/or that there was a systemic problem within the Ottawa Police Services of officers breaching individuals’ rights under the Charter”. Paragraph 80 of the Amended Amended Statement of Claim states: “Each of the allegations outlined above as supporting a specific cause of action also forms a part of the allegations relied upon by the Plaintiff as supporting each of the other causes of action.” The new material information provided by the Plaintiff along with the reading of the existing paragraph 80 are sufficient for me to conclude that I should not strike out the Plaintiff’s paragraph 64 as requested by the Defendants.

[17] The amendments made by the Plaintiff now clearly define the question in controversy between the litigants. It gives fair notice of the precise case that must be met along with the precise remedies sought, and assists the court in its investigation of the trust of the allegations made.

[18] In conclusion, I order as follows:

(a) as per my Endorsement of October 19, 2017, the word “training” is struck without leave to amend in paragraph 64(i);

(b) the Defendants’ motion to strike paragraph 64 in its entirety is dismissed; and

Justice M. O’Bonsawin

Released: May 16, 2018

COURT FILE NO.: 16-70631

DATE: 2018/05/16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Mahmood Wali Mahmad

– and –

ENDORSEMENT

O’Bonsawin J.

Released: May 16, 2018

Mahmood Wali Mahmad v. Ottawa Police Services Board, 2018 ONSC 3063

Case Summary

ENDORSEMENT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 4