Court File and Parties
COURT FILE NO.: CV-19-613221 DATE: 20190220 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D!ONNE RENÉE, Applicant AND: TORONTO POLICE SERVICES BOARD, Respondent
BEFORE: Cavanagh J.
COUNSEL: D!ONNE Renée, In Person Fred Fischer, for the Respondent
HEARD: February 19, 2019
Endorsement
Overview
[1] The applicant D!ONNE Renée commenced this application against the respondent Toronto Police Services Board (the “Board”). The applicant seeks a final Order that the Board be restrained, enjoined and prohibited from further business of the Board, and other relief.
[2] The applicant also brought a motion for an interim order that the Board be restrained, enjoined and prohibited from further business of the Board until her application is heard and decided. I treat this motion as one for an interim and interlocutory injunction. As part of her motion, the applicant also seeks an interim order directing the Board to (i) immediately hold a press conference and publicly read the applicant’s written interim injunction application; (ii) direct the Chief of Police to make a public policy notice to all its members noting that punitive actions will be taken against Toronto Police Services members if the order sought is breached; (iii) cancel its meetings, (iv) publicly post a copy of the order requested and read it aloud at a press conference; (v) publicly post all documents in this matter on its website with links to these documents on its social media accounts; and (vi) answer in writing all questions raised by the applicant in emails to the Board associated with this matter and, in addition, answer 37 questions listed in the applicant’s Notice of Motion.
[3] The motion was brought on an urgent basis because there is a public meeting of the Board scheduled for February 21, 2019.
[4] By letter dated February 6, 2019 from the lawyers for the Board to the Registrar of the Ontario Superior Court of Justice, the Board requested an order pursuant to Rule 2.1.01(6) of the Rules of Civil Procedure dismissing this application on the ground that it appears on its face to be frivolous, vexatious, and/or an abuse of process. The Board also requested an order pursuant to section 106 of the Courts of Justice Act staying the application until such time as the court makes or denies the order requested.
[5] By endorsement dated February 8, 2019, Archibald J. scheduled the Board’s stay motion and the applicant’s motion for an interim injunction to both be heard on February 19, 2019. In his endorsement, Archibald J. set a schedule for responding materials to be delivered by the Board and for reply materials to be delivered by the applicant.
[6] The Board sent its motion materials to the applicant by email late in the afternoon on February 14, 2019. Hard copies were provided on February 15, 2019.
[7] The Board’s materials include:
a. A motion record responding to the applicant’s motion and in support of a cross-motion by the Board seeking an order striking out the Notice of Application, without leave to amend. The grounds stated by the Board in its Notice of Motion are (i) that the Notice of Application and accompanying materials disclose no reasonable cause of action; (ii) the Notice of Application and accompanying materials fail to disclose any recognizable factual or legal grounds for the extraordinary relief sought; (iii) the court does not have jurisdiction to judicially review the exercise of statutory powers by the Board, which jurisdiction rests with the Divisional Court; and (iv) the Application is without merit and is, therefore, frivolous, vexatious and an abuse of process. b. A Factum and Brief of Authorities in opposition to the applicant’s motion for an interim injunction and in support of the Board’s motion.
[8] The applicant served additional materials on the morning of February 19, 2019. These materials included a three paragraph affidavit sworn by the applicant on February 15, 2019 in which she states that the statements that she made in documents entitled “Application and Injunction”, “Interim Injunction”, and supplementary materials in support of her application and her motion for interim injunctive relief are true and, where the materials contain statements by others, she believes those statements to be true. The applicant also served an affidavit sworn by Derek Evon Moran on February 16, 2019.
[9] At the hearing of this motion, the applicant asked for leave to file her affidavit and the affidavit of Mr. Moran. Counsel for the Board advised that he had just received these documents on the morning of the hearing, and he objected to their inclusion as evidence for this motion. The information upon which the applicant relies is contained in the written statements that form part of the “Application and Injunction” and the “Interim Injunction”. The Board will not have been taken by surprise by this information. Although the affidavit evidence upon which the applicant relies should properly have been served with her application and motion materials, in the circumstances, I granted leave to the applicant to file her affidavit and the affidavit of Mr. Moran. In granting leave, I do not find that all of the statements in the “Application and Injunction” and in the “interim Injunction” are properly admissible in evidence before me. For example, to the extent that the information consists of statements of opinion, statements of legal principles, or arguments concerning the merits of the motion, such statements are not admissible as evidence on the motion before me.
[10] At the hearing on February 19, 2019, I heard the applicant’s motion for an interim injunction and related relief. I adjourned the Board’s motion to strike out the Notice of Application to a date to be set in the future in order to allow the applicant time to consider the Board’s motion and deliver responding materials. Depending on the outcome of the Board’s motion, a schedule will be set for the hearing of the applicant’s application.
[11] For the following reasons, the applicant’s motion for an interim injunction restraining, enjoining and prohibiting the Board from conducting future business until the application is heard and decided, and for other interim relief, is dismissed.
Analysis
Overview of applicant’s materials
[12] The applicant delivered two court documents upon which she relies on this motion for interim relief, one entitled “Application and Injunction”, and the other entitled “Interim Injunction”. The “Application and Injunction” consists of 52 pages and the “Interim Injunction” consists of 39 pages. The applicant also relies upon a brief of additional documents entitled “Interim Injunction Supplementary D” which contains copies of photographs, emails, social media posts, news articles, and statements made by other members of the public. The statements are made by persons that the applicant has identified as “Community Member X”, Kit Matte, S. Swartz, and Carlyn Bezic.
[13] The “Application and Injunction” specifies the main order sought on the application, that the Board be restrained, enjoined and prohibited from further business of the Board. As part of the “Application and Injunction”, the applicant includes a 47-page statement. The applicant states on page 1 that the application is brought to protect the public’s constitutional rights, to ensure that the public’s rights and interests are taken seriously, and to minimize and mitigate against further financial risk and legal burden to Torontonians. She states: “[t]he Public will not continue to be harmed, ignored, disrespected and/or dismissed. No more irreparable harm”.
[14] In succeeding pages of her written statement, the applicant describes generally her criticisms of the Board and she includes examples of its alleged failures and breaches of its duties with reference to various statutory provisions and the Board’s by-laws. The applicant describes her assessment of the public’s perceptions and observations of the Board that, she states, are such that there can be no acceptable measures other than for the Board to cease all its actions and decisions indefinitely. The applicant refers in her statement to various news articles, videos, and blog and social media posts. As I have noted, in her affidavit sworn February 15, 2019, the applicant states that the statements of fact in the “Application and Injunction” are true.
[15] In her grounds for relief, the applicant cites various provisions of the Courts of Justice Act, The Canadian Charter of Rights and Freedoms, the Human Rights Code, the Accessibility for Ontarians with Disabilities Act, and the Police Services Act.
[16] The applicant also includes in the “Interim Injunction” her statement that the Board has failed in its responsibility to be the oversight body of police service, including through alleged failures to hold public meetings that are transparent, accessible, and inclusive. The applicant includes nine pages of “supplementary references” that refer to videos, minutes of meetings of the Board, social media posts, and news reports.
Test for an interlocutory injunction
[17] The test for granting an interlocutory injunction is well-established. The moving party must show that (a) there is a serious question to be determined, (b) the moving party will suffer irreparable harm if the motion for an interlocutory injunction were refused, and (c) the balance of convenience favours the moving party. See RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at para. 43.
Is there a serious question to be determined?
[18] There are no specific requirements which must be met for the moving party to show that there is a serious question to be determined. The threshold is a low one. The judge hearing the motion must make a preliminary assessment of the merits of the case. Once the judge is satisfied that the motion is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if the judge is of the opinion that the moving party is unlikely to succeed at trial: RJR-MacDonald at paras. 49-50.
[19] In Currie v. Halton Regional Police Services Board Armstrong J.A. considered the meaning of the terms frivolous, vexatious and an abuse of process on a motion under rule 21 and held that although there is a degree of overlap in the meaning of the terms, any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process: Currie at para. 17.
[20] In her statement that forms part of the “Application and Injunction”, at page 1 of 47, the applicant summarizes the relief that she requests in her application:
To suspend all actions, duties and responsibilities of the Toronto Police Services Board until such time that structural and institutional changes are made to instill the Public’s confidence in an oversight body’s ability to protect the Public’s interests and to oversee and manage Police Services to provide adequate and effective Police Services. Disband current Board.
[21] The applicant seeks remedies that, she submits, fall properly within the court’s jurisdiction to grant equitable relief. In her evidence and submissions, the applicant makes wide-ranging complaints (that she expressed as being made on behalf of the public) concerning the Board’s performance generally, and includes allegations of discrimination, harassment, and breaches of statutory duties. The statements upon which the applicant relies include those relating to alleged failures of Board members to discharge their duties in a manner that (i) inspires public confidence in the abilities and integrity of the Board; (ii) respects the dignity of individuals and accords with the Human Rights Code and the Canadian Charter of Rights and Freedoms, and (iii) would not discredit or compromise the integrity of the Board. See page 17 of 30 of the applicant’s “Interim Injunction” document. These matters are also addressed in the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”) at ss. 7, 8, 9, and 13.
[22] In her submissions, the applicant referred to an email that she sent to the Board on December 14, 2018 in which she lists 38 reasons why, in her view, the members of the Board should resign immediately. The applicant relies upon evidence that she reported having been assaulted by an officer when she had attended at a meeting of the Board on September 21, 2016, and that an investigation that was promised was not done. The applicant gave evidence that the officers who were involved were allowed to attend other meetings of the Board that she attended, triggering re-traumatic stress and anxiety. The applicant’s evidence included statements concerning the conduct of police officers at Board meetings, including statements that members of the community were obstructed when they were entering meetings, and that placards that they carried were taken from them. The applicant’s evidence also included statements that she and others had requested that Board meetings not be held at the headquarters of the Toronto Police Services because of stress and anxiety that they experience at this location and, notwithstanding these complaints, meetings continue to be held at the same location. The applicant complains that minutes taken at a meeting on November 22, 2018 are incorrect because they do not reflect that the meeting was not officially concluded, and the public was improperly excluded from a part of this meeting. The applicant complains that the Board’s meetings are not productive, that the agenda items are not made public in a timely way, and that the Board “rubberstamps” its decisions on matters.
[23] In general, the applicant describes the conduct of the Board, including allegations of discriminatory conduct and conduct that she says is intended to intimidate her and members of the public generally, as being such that the public lacks confidence in the Board to such an extent that the Board is unable to discharge its duties under the PSA.
[24] The Board submits that the relief sought by the applicant is not suitable for determination by a court; in other words, it is not justiciable. In Tanudjaja v. Attorney General (Canada), 2013 ONSC 5410, Lederer J. cited at para. 138 the following passage with respect to the meaning of “justiciability” from Lorne M. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Scarborough: Carswell, 1999) at pp. 4-5:
The justiciability of the matter refers to it being suitable for determination by a court. Justiciability involves the subject matter of the question, the manner of its presentation and the appropriateness of judicial adjudication in light of these factors. This appropriateness may be determined according to both institutional and constitutional standards. It includes both the question of the adequacy of judicial machinery for the task as well as the legitimacy of using it.
[25] The Board is a creature of statute under the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”). Pursuant to s. 31(1) of the PSA, a police services board is responsible for the provision of adequate and effective police services in the municipality. A board’s specific responsibilities in this respect are set out in this subsection. Under the PSA, the Board is subject to the supervision, direction and oversight of the Solicitor General and the Ontario Civilian Police Commission, which are responsible for ensuring compliance with the prescribed standards of police services, for investigating the administration of municipal police forces, and for reviewing the conduct of police services board members: PSA, ss. 21-26.
[26] Courts must be sensitive to their role as judicial arbiters, and refrain from making decisions based upon public policy choices that are best left to the legislature or other bodies. In this way, respect for the functional separations of powers among the legislative and judicial branches of government in Canada is maintained: See Tanudjaja at para. 140.
[27] The relief that the applicant seeks is an order stopping the Board from fulfilling its statutory responsibilities under s. 31 of the PSA which include responsibility for the provision of adequate and effective police services in this municipality. The applicant seeks this sweeping relief on the ground that the Board has breached duties that it owes to the public and, because the public has lost confidence in the Board’s ability to discharge its responsibilities, the Board should be stopped by court order from continuing to act. The applicant is incorrect in her submission that she represents the public on her application and motion. Although the applicant is a member of the public and, based upon the statements in the record, there are other members of the public that support her application and motion, the applicant has not been appointed to represent the public at large. She brings this application and motion on her own behalf.
[28] The applicant, in effect, asks the court to undertake a comprehensive evaluation of the performance by the Board in the discharge of its statutory responsibilities under the PSA (based upon the complaints that she raises in her evidence and through her submissions), conclude that the Board should be stopped from continuing to fulfill these responsibilities, and make an order accordingly.
[29] I am satisfied that for a court to make such an order would involve an improper intrusion on the supervisory responsibilities of the legislature, the Solicitor General, and the Ontario Civilian Police Commission with respect to the discharge by the Board of its responsibilities under the PSA. The question raised on this application, whether the Board has lost the public’s confidence in the discharge of its statutory responsibilities to such an extent that it should be stopped from continuing to act, is not one for the court to answer. The role of the court is not to second-guess legislatures or to make value judgments on what they regard as the proper policy choices. This is for other branches of government: Tanudjaja at para. 141, citing Vriend v. Alberta, [1995] 1 S.C.R. 493 at para. 136.
[30] The question raised with respect to the relief sought on this application and on this motion is not judiciable.
[31] In reaching this conclusion, I do not find that a decision of the Board is beyond review by the courts. In the exercise of its statutory powers, the Board is subject to judicial review by the Divisional Court: Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[32] I conclude that the applicant has failed to show that there is a serious question to be determined with respect to the relief sought on her application or this motion.
Will the applicant suffer irreparable harm if the interim injunction were to be denied?
[33] Irreparable harm to the applicant is an essential factor in determining the appropriateness of an interlocutory injunction. At this stage, the only issue to be decided is whether a refusal to grant the relief would so adversely affect the moving party’s own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the motion for injunctive relief: see RJR-MacDonald at para. 58.
[34] If the injunctive relief that is sought is denied, the meetings of the Board will continue to be held, and the Board will continue to be able to decide how to discharge its responsibilities under the PSA.
[35] The applicant submits that she fears that she may be subject to physical assault at future meetings of the Board, as she stated in her evidence occurred at two prior Board meetings, and that this gives rise to a likelihood of irreparable harm. There is no question that physical or emotional injuries from an assault can cause very serious, even permanent, harm, but I am not able to conclude, on the record before me, that the risk that the applicant states that she would be taking if she were to attend future Board meetings constitutes irreparable harm that would not be compensable in damages and that would justify the extraordinary order that is sought on this motion.
[36] The applicant also submits that the public is suffering from “collective community trauma” as a result of the way in which the Board’s responsibilities have been discharged in the past, and this constitutes irreparable harm that cannot be compensated for in damages. As I have stated, I do not accept that the applicant represents the public at large on this motion.
[37] The applicant must tender evidence that she is likely to suffer irreparable harm if the injunctive relief that is sought is not granted. I conclude that the applicant has failed to do so.
Does the balance of convenience favour granting an interim injunction?
[38] In RJR-MacDonald, the Supreme Court of Canada explained at para. 62 the third prong of the test to be applied to determine whether an interlocutory injunction should be granted:
The third test to be applied in an application for interlocutory relief was described by Beetz J. in Metropolitan Stores at p. 334 as: “a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits”. In light of the relatively low threshold of the first test and the difficulties in applying the test of irreparable harm in Charter cases, many interlocutory proceedings will be determined at this stage.
[39] In a case such as this, where there is a challenge to the right of a public authority to discharge its statutory responsibilities, based in part on Charter grounds, it is open to both parties to rely upon considerations of the public interest. Each party is entitled to make the court aware of the danger it might suffer prior to a decision on the merits. In addition, either the moving party or the responding party may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. The term “public interest” includes both the concerns of society generally and the particular interests of identifiable groups: RJR-MacDonald at para. 66.
[40] When a party seeks to restrain a public authority from exercising its statutory powers and performing its statutory obligations, a court must take a larger view of the balance of convenience factor than it would in another case because the public interest is affected: Fort William Indian Band v. Thunder Bay (City), [2005] O.J. No. 100 at para. 66.
[41] The Board submits that at its monthly meetings, it considers issues of general public importance and of particular importance to policing in Toronto. The Board introduced evidence of the posted public meeting agendas for the last three meetings of the Board. The Board also provided evidence that it anticipates dealing with items of importance at its upcoming meeting including (i) funding for 2019 community events; (ii) funding for the 2019 Special Olympics hosted by the Toronto Police Service; (iii) the Independent Review of Missing Person’s Investigation; and (iv) a number of annual reports, including reports related to labour grievances, parking enforcement, freedom of information, healthy workplace initiative, promotions and protected disclosure. The Board submits that the Board also conducts important day-to-day business in the discharge of its responsibilities under the PSA.
[42] The applicant submits that the Board is not doing anything important because it is not properly discharging its responsibilities under the PSA and that it is merely “rubberstamping” recommendations made to it. The applicant submits, on this basis, that the balance of convenience favours granting the injunctive relief that she seeks.
[43] I do not accept that the applicant has shown that there would be no consequence to the public if the Board were to be stopped from conducting work in the discharge of its responsibilities under the Act. These responsibilities include appointing members of the municipal police force, establishing policies for the effective management of the police force, recruiting and appointing the chief of police and any deputy chief of police, and annually determining their remuneration and working conditions, directing the chief of police and monitoring his or her performance, establishing policies respecting disclosure by the chief of police of personal information about individuals, and establishing guidelines for dealing with complaints under Part V of the PSA. See PSA, s. 31(1).
[44] There is a compelling public interest in the Board continuing to discharge its responsibilities under the PSA. In my view, the public interest would not be served by making an order restraining the Board from conducting further business. I conclude that the applicant has failed to show that the balance of convenience favours the granting of the extraordinary injunctive relief that she seeks on this motion.
[45] I conclude that the applicant’s motion for interim and interlocutory relief must be denied.
Disposition
[46] For these reasons, the applicant’s motion is dismissed.
[47] At the hearing of this motion, I requested submissions from the applicant and from the Board with respect to costs, depending upon the outcome of the motion. The Board submitted that, if it were to be successful, it would limit its request for costs to $500. I regard this as extremely reasonable, and I fix costs of this motion to be paid by the applicant to the Board in the amount of $500.
[48] With respect to the board’s motion to strike out the Notice of Application, I ask the parties to consult with each other about the amount of time needed for this motion, and to contact the motions office to obtain a date when I could hear this motion. If there are any scheduling difficulties, I may be spoken to.
Cavanagh J.