COURT FILE NO.: 16-69624
DATE: 2018/05/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Eliot Shore
Plaintiff
– and –
Capital Sports Properties Inc., Capital Sports & Entertainment Inc., Senators Sports & Entertainment, The Ottawa Police Services Board, Sergeant Robert Cairns, Officer Peter Koch, Officer Peter McKenna, Tina Scollan
Defendants
Lawrence Greenspon & Tina H. Hill for the Plaintiff
Jeremy Wright for the Defendants Ottawa Police Services Board, Sergeant Robert Cairns, Officer Peter Koch and Officer Peter McKenna
HEARD: April 26, 2018 (at Ottawa)
ENDORSEMENT
o’bonsawin J.
[1] The Defendants, the Ottawa Police Services Board, seek an order striking out paragraph 28 of the Amended Statement of Claim without leave to amend.
[2] In my Endorsement dated October 19, 2017, I ordered that paragraphs 28(a) and (b) of the Plaintiff's Statement of Claim were struck with leave to amend. In addition, I ordered that paragraphs 28(c), (d) and (e) of the Plaintiff's Statement of Claim were struck without leave to amend.
[3] In response to my orders, the Plaintiff provided an Amended Statement of Claim on December 15, 2017. The ordered paragraphs were struck by the Plaintiff. Paragraphs 28(a) and (b) were amended and replaced by paragraphs 28(a), (b) and (c).
[4] The amended paragraphs in question are as follows:
a. It The Board and/or Chief Bordeleau failed to have any system in place by which it they would become aware of any and all instances where it had been determined by a Court that one or both of the Defendant Officers, or any officerhad used excess force or violated an individual’s rights under the Charter~~.~~;
b. As a consequence of (a) above, the Board and/or Chief Bordeleau for whom the Board is liable, failed to take any remedial steps or training, or implement policies or guidelines, to prevent any further instances of excessive force or Charter violations thereby allowing the incident in this case to occur; and
c. It The Board and/or Chief Bordeleau knew or ought to have known that the Defendant Officers had a propensity and history of using excessive force because of past incidents involving these same officers and/or that there was a systemic problem within the Ottawa Police Services because of past incidents with other officers, and they failed to take appropriate steps to address these propensities and/or systemic problems at a policy level or at an operational level.
[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:
• the allegations made against Chief of Police Bordeleau are new allegations;
• he is not a party to this action; and
• 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