SCALA v. TORONTO POLICE SERVICES BOARD, 2019 ONSC 2239

COURT FILE NO.: CV-10-406400

DATE: 20190408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FELICE SCALA and CATARINA SCALA

Plaintiffs

– and –

TORONTO POLICE SERVICES BOARD, DETECTIVE TODD HALL, POLICE OFFICER(S) JOHN DOE and POLICE OFFICER(S) JANE DOE

Defendants

Jonathan Shulman, Jason E. Bogle and Eric Blau, for the Plaintiffs

Douglas O. Smith and Rebecca Curcio, for the Defendants

HEARD: January 14 – 18, 28 and 30, 2019 and February 8, 2019

REASONS FOR JUDGMENT

SANFILIPPO, J.

Overview

[1] On the sunny, summer evening of July 10, 2008, the plaintiff Felice Scala, then 62 years old, was sitting on his porch in a Toronto neighborhood with his wife Catarina, his son Ralph and a friend. Mr. Scala and Ralph were at that moment under surveillance by members of the Major Crimes and Community Response units of the Toronto Police Service’s 11 Division. In total, eight police officers, some uniformed and some plain clothes, were prepared to arrest Mr. Scala and Ralph.

[2] At approximately 8:00 p.m., when Mr. Scala and Ralph left the house to take their pit bull terrier for a walk, the officer in charge directed the attending police officers toward Mr. Scala and Ralph for the purpose of arresting them.

[3] Mr. Scala was arrested on charges of breach of recognizance and criminal harassment. He concedes that the police had probable cause for his arrest, were required or authorized by law to perform the arrest and acted on reasonable grounds in doing so. As Ralph did not join his father in this lawsuit, no evidence was led concerning his role in the arrest, or the charges laid and the nature of his arrest, except insofar as it influenced the steps that were taken in the arrest of his father. The police officers testified that Ralph was the primary target for arrest and Mr. Scala was secondary.

[4] Mr. Scala claims that the police used excessive force in arresting him, causing chronic injuries that remain unresolved over ten years later. He testified that three uniformed police officers walked toward him that evening and, without telling him that he was being arrested, indeed without saying a single word, began to hit and beat him, thrusting him to the ground where he says they continued to punch him while kneeling on his back. The police officers deny that any police officer kicked, punched or kneed Mr. Scala. They say that they told him that he was being arrested. They admit that they used physical force to arrest Mr. Scala, taking him to the ground in a controlled manner by reason, they say, of Mr. Scala pulling away after they told him that he was under arrest.

[5] For the reasons that follow, I find that the force used by the police officers in arresting Mr. Scala on July 10, 2008 was necessary, justified and not excessive. The plaintiffs have not proven any basis for liability against the defendants. This action is dismissed.

I. ISSUES TO BE DETERMINED

A. This Action

[6] The Statement of Claim in this action was issued on July 8, 2010, mere days before the two-year anniversary of Mr. Scala’s arrest on July 10, 2008. This action was started under Rule 76 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194 as a simplified procedure case with a pleaded damage claim of $100,000. It nonetheless took over eight years to arrive at trial.

[7] In his Statement of Claim, Mr. Scala pleads that: he was “knocked intentionally to the ground by the Defendant Officers who proceeded to severely beat, punch and kick him on various parts of his body”, causing him to “scream and beg for the police officers to stop the beating” (paras. 21 and 22); the police officers did not indicate that “they were arresting him until after the assault ceased” (para. 23); he was “offered no food during his overnight stay at the police station” (para. 25); his requests to be taken to a hospital were ignored (para. 26); and he was denied the opportunity to relieve himself, despite his several requests, with the result that he was compelled to urinate on the floor of the police interview room, only then to be humiliated by being required by the police to clean up the urine with the shirt he was wearing (paras. 28 and 29).

[8] These allegations were pleaded against the Toronto Police Services Board (“TPS”) and Detective Constable Todd Hall, both of whom denied all the allegations. The Statement of Claim named two unidentified defendants: John (Police Officer) Doe and Jane (Police Officer) Doe. The plaintiffs did not amend their Statement of Claim to identify and thereby to replace the Doe Defendants. The plaintiffs presented their case at trial as if all the police officers involved in the events of July 10, 2008 were defendants when, except in the case of Detective Constable Hall, they were not. However, I heard and have assessed the plaintiffs’ submissions broadly and generously, considering them even in relation to parties not named as defendants, assessing the case as if the two police officers who admit having been involved in the arrest of Mr. Scala had been substituted for the Doe Defendants. For the reasons that follow, it made no difference to my determinations that only one police officer of those involved was joined in this action.

[9] I am mindful that the allegations pleaded against the individual defendant pertain to his conduct in Mr. Scala’s arrest, whereas the allegations pleaded against the TPS were for its oversight, management and responsibility for the officer’s conduct. As the TPS liability derives from the officer’s conduct, I will at times refer to the TPS and Detective Constable Hall together as the “Police Defendants”.

[10] Mr. Scala and his wife, Catarina, pleaded their claim for damages against the Police Defendants on the basis that they had: intentionally and without necessity severely assaulted Mr. Scala, using excessive and unnecessary force; ignored his medical needs and knowingly endangered his health; performed their duties in an incompetent manner; knowingly endangered the health and life of Catarina, causing her serious emotional distress; entered the Scala house without consent; caused harm to his pit bull terrier; and made inappropriate remarks and provided information to neighbours and to news media that severely damaged his reputation and that of his family.

[11] By the time of trial, the scope of the plaintiffs’ claims had narrowed significantly.

B. The Issues

[12] At trial, Catarina Scala abandoned her claims. Accordingly, the only claims requiring adjudication were those advanced by Mr. Scala, who I will at times refer to as the “Plaintiff”.

[13] Mr. Scala did not lead any evidence at trial in relation to several of the pleaded claims, including: harm to Catarina or to their dog; entry by the police into his house without consent; or of disseminating information or comment that damaged his reputation. These claims were not advanced and I treat them as abandoned.

[14] Mr. Scala admitted at trial that the Police Defendants had probable cause for his arrest on July 10, 2008, were required or authorized by law to perform the arrest and acted on reasonable grounds in doing so. The Police Defendants admitted that they used physical force in executing the arrest. As such, I must determine whether the police used excessive and unjustified force in arresting Mr. Scala. If I find that the police used excessive and unjustified force, I must then find whether the use of force caused him injury, and, if so, assess the damages that resulted from Mr. Scala’s injury. The Plaintiff also argued that the Police Defendants were liable for conduct apart from the force used in the arrest, seeking a finding that certain discrete acts were negligent and, although it was not pleaded, in breach of a fiduciary duty. I will address these claims as well.

II. BACKGROUND

A. The Plaintiff

[15] English is a second language for Mr. Scala. Although he testified through an interpreter, he often responded in English, at times even before translation. Mr. Scala conceded that in July 2008 he was able to understand, in the English language, what it meant to be arrested.

[16] By 2008, Mr. Scala had retired from his work as a spray painter in a furniture factory. Out-patient records from St. Joseph’s Hospital note that he was on a disability pension. Mr. Scala had quadruple by-pass surgery in 2000 and stated that this caused his weight to drop from 180 pounds to 140 pounds, which he said was his weight at the time of his arrest. However, the St. Joseph’s Hospital note of May 5, 2007 records his weight on that day as 83 kilos, or 182.6 pounds.

[17] I accept, from the medical records filed and from Mr. Scala’s testimony, that on July 10, 2008, he was a non-insulin dependent type 2 diabetic who suffered from high blood pressure, anxiety and depression, and was claustrophobic. He took five medications in the morning and five in the evening, including Ativan for anxiety, Percocet for hip pain, Metformin for blood sugar, Crestor for cholesterol, Trazadone for depression and ASA (aspirin).

[18] On July 10, 2008, Mr. Scala and his wife hosted their son Ralph for dinner. They sat outside and enjoyed the summer evening until about 8:00 p.m.

B. The Police Preparation for the Arrest

[19] Detective Constable (“DC”) Daniel McFadyen joined the Toronto Police Services in 2006 and in 2008 was assigned to the Major Crimes Unit (“MCU”) at 11 Division. DC McFadyen was the officer in charge of the surveillance and arrest of Mr. Scala and Ralph on July 10, 2008, deploying four uniformed police officers from 11 Division’s Community Response Unit (“CRU”) and four plain clothes police officers from 11 Division’s MCU.

[20] The police set out to arrest Mr. Scala on charges of breach of recognizance and criminal harassment involving death threats, but this tells only a small part of the story that day. Eight police officers were not gathered just to arrest a 62-year old on such charges. The MCU was there to arrest Ralph, who was the primary target of this operation. Since Ralph was not a party to this action, no evidence was adduced at trial regarding the basis or circumstances for his arrest or the charges laid against him, except to the extent that it influenced the arrest of Mr. Scala.

[21] That day, DC McFadyen briefed members of the MCU and the CRU on the plan to conduct surveillance and possibly the arrests as part of an ongoing MCU project. DC McFadyen briefed two members of the MCU who were involved in the arrest and testified at trial, DC Todd Hall and DC Dan MacNab, and three members of the CRU who were involved in the arrest and testified at trial: Sargent Blain Young, Police Constable (“PC”) James Makhlouf and PC Joseph Guerreiro. DC Richard Rand and DC Katafigiotis of the MCU were also involved in the arrests, as was PC Troy Lorimer of the CRU, but they did not testify.

[22] DC McFadyen went to the area proximate to the Scala residence at about 4:30 p.m. and took up a surveillance post. DC Hall arrived at about 4:45 p.m. and initiated surveillance at that time from a different location, although DC Hall changed location at about 6:55 p.m. because Mr. Scala had made it known to him that he was aware of his presence. DC MacNab arrived at about 5:25 p.m., as did DC Rand.

[23] The MCU officers had on scene two unmarked cars. DC McFadyen had also arranged for an officer from the Animal Services Division to attend, to handle Mr. Scala’s pit bull terrier.

[24] The MCU officers were all in plain clothes. DC McFadyen had arranged for the four members of the CRU to be present in uniform, with marked police cruisers, so that Mr. Scala and Ralph would, at the time of arrest, be able to see and understand clearly that they were involved in a police operation. Sargent Young was the supervisor of the CRU officers and was partnered with PC Makhlouf. PC Guerreiro was accompanied by PC Lorimer. They had been positioned in the area around the Scala residence since about 5:00 pm, awaiting directions.

[25] PC Guerreiro was familiar with Mr. Scala. Prior to July 10, 2008, PC Guerreiro had conducted community response work in the area of the Scala residence for some three to four years, spending considerable time patrolling around 11 Division’s neighborhoods, including Mr. Scala’s street. He had spoken with Mr. Scala on several occasions. He testified that he was always polite with Mr. Scala, as was Mr. Scala with him.

[26] The eight police officers communicated by tactical band police radios, with DC McFadyen directing. At 8:00 p.m., DC McFadyen saw that Mr. Scala and Ralph had left the porch with their pit bull terrier on a leash held by Ralph. At 8:05 p.m., he gave the command for the officers to arrest.

III. THE EVIDENCE OF THE ARREST

[27] The plain clothes officers approached Mr. Scala and Ralph from laneways adjacent to the direction that they were walking, wanting to ensure that they could not escape by changing path. The two pairs of uniformed officers drove up in their marked cars with the lights on but the sirens off. The use of uniformed officers and marked cars was intended to make immediately clear to Mr. Scala and Ralph that they were being arrested.

A. The Plaintiff’s Evidence Concerning the Arrest

[28] Mr. Scala testified about the police’s conduct in arresting him, and tendered the evidence of an eye witness, Mr. Graham Gladstone. Mr. Scala did not call to testify three others who witnessed the arrest and would be expected to support his recollection of events: namely, his wife Catarina Scala, his son Ralph and his friend Rick Malvini. I will have more to say about this later.

[29] Mr. Scala testified that as he and Ralph were walking with their dog, he observed three uniformed police officers and four or five plain clothes officers approach him and his son. He stated that as the police officers converged on him and Ralph, they did not say a single word. He denies that anyone told him that he was being arrested.

[30] Instead, he says that three police officers kicked his legs out, grabbed him, thrust him to the ground and began to beat him so hard that he was afraid that he was going to die. Mr. Scala testified that he was forced to lay face down on the ground, while three police officers pounded their knees on his back, and punched him repeatedly on his back, legs and shoulders. Mr. Scala stated that the only words that any of the police officers spoke to him during the beating were: “Do you like that now”.

[31] He testified that he cried for help, and pleaded with the officers to stop beating him, protesting that he was suffocating. He stated that three uniformed police officers continued to punch, kick and knee him for two to three minutes.

[32] Mr. Scala denies that he resisted the arrest. He stated that the police did not tell him that he was under arrest and did not place handcuffs on him during or after the assault. He denies that he assaulted any of the officers, testifying that he was compliant throughout. He said that the weight of the police officers kneeling on top of him prevented him from trying to get up from the ground.

[33] In cross-examination, Mr. Scala was questioned concerning inconsistencies in his trial testimony relative to the evidence that he gave at his examination for discovery. At examination for discovery, Mr. Scala testified that he was kneed and punched in the head, whereas at trial he denied that any of the blows were administered to his head. He testified earlier that he had sustained a head injury, but admitted at trial that he did not. At discovery he stated that he was beaten by two police officers, whereas at trial he testified that the beating was administered by three police officers. Mr. Scala had no explanation for these inconsistencies.

[34] Mr. Graham Gladstone testified that he was an eyewitness who observed the arrest on July 10, 2008. Mr. Gladstone knew Ralph, having previously acted as leasing agent in a building in which Ralph had an ownership interest. Mr. Gladstone stated that he was out for a walk while on a break from work at a nearby store, when he observed two men being pushed down by the police and beaten. He said that he knew Ralph Scala and recognized the pit bull terrier.

[35] Mr. Gladstone testified that he saw the police kick and punch the two men for two to three minutes. He stated that he saw Mr. Scala being kneed in the back, beaten and hit while face down on the ground. Mr. Gladstone recalled that Mr. Scala pleaded with the police officers to stop but they nonetheless continued to beat him. Mr. Gladstone stated that he left the scene because he could no longer stand to watch the beating, which he recalled as “horrific”.

[36] Mr. Gladstone identified the defendant DC Hall as one of the police officers involved in Ralph’s arrest.

[37] Mr. Scala testified that after the beating stopped, he was picked up from the ground and placed in the back of a police cruiser. He denied that he was told that he was under arrest and denied that he was handcuffed. He swears that the police did not drive him directly to the police station. Rather, Mr. Scala testified that the police drove him up and down his residential street, announcing loudly to his neighbours that “Scala is in the car”.

B. The Police Evidence Concerning the Arrest

(a) The Approach

[38] DC McFadyen stated that his first observation as he approached Mr. Scala and Ralph was that he saw Ralph hand the dog’s leash to Mr. Scala. He recalled that Mr. Scala looked surprised. He said that Ralph looked ready to fight.

(b) The Officer Deployment

[39] DC McFadyen stated that three MCU officers, DC Rand, DC MacNab and DC Hall, approached Ralph while two CRU officers, Sargent Young and PC Guerreiro, approached Mr. Scala. DC Hall and DC MacNab provided supporting testimony that they attended to the arrest of Ralph while Sargent Young and PC Guerreiro arrested Mr. Scala. This is corroborated by Sargent Young and PC Guerreiro.

[40] There is no evidence that DC Hall, the only police officer named as a defendant in this action, had any involvement in the arrest of Mr. Scala. DC Hall was involved in the arrest of Ralph.

(c) The Communication with Mr. Scala

[41] DC McFadyen testified that as soon as he was close enough to be heard, he told both Mr. Scala and Ralph that they were being placed under arrest. DC Hall corroborated this evidence, stating that he heard this as he and DC Rand approached Ralph.

[42] Sargent Young stated that Ralph was the primary party to be arrested; Mr. Scala was secondary. Sargent Young testified that he stood by to monitor Mr. Scala, who stood still while observing the combative arrest of Ralph by the MCU officers. Once Ralph was under control, Sargent Young stated that he told Mr. Scala that he was being arrested for failure to comply with recognizance and criminal harassment and placed his hand on Mr. Scala’s arm to take him under control. DC Hall testified that he heard Mr. Scala being told to “put your hands behind your back”.

(d) Initiating Physical Control

[43] Sargent Young did not anticipate any issue in arresting an individual who was two years younger than his father. He stated that his first task was to take control over the pit bull terrier which was in Mr. Scala’s control when he approached to arrest. Sargent Young stated that Mr. Scala willingly gave up the leash to the pit bull terrier. The animal control officer took the leash and a pull collar was placed on the dog, which was then taken from the scene.

[44] Sargent Young stated that with Ralph under control, and with the pit bull terrier taken away, he placed his right hand on Mr. Scala’s left arm to take him under control. Sargent Young testified that Mr. Scala walked backwards, breaking his grip on his arm, stating “No, No, No”. Sargent Young assessed that Mr. Scala’s conduct went from passive resistance to active resistance as he became non-compliant, stepping backwards and refusing to comply or give up his hands and repeatedly saying, “No, No, No”.

[45] PC Guerreiro recalled that he received the direction from DC McFadyen to move in to assist with the arrests and saw that the members of the MCU were attending to Ralph. He turned his attention to Mr. Scala, because he observed that his supervisor, Sargent Young, was already with Mr. Scala and was attempting to obtain physical control over him by holding onto his arm. He heard Sargent Young tell Mr. Scala that he was under arrest and that he was required to comply. He said that he saw that Mr. Scala was non-compliant, stepping back, refusing to show his hands and tugging away from Sargent Young.

[46] PC Guerreiro stated that he was not concerned that Mr. Scala was going to harm either him or Sargent Young but was concerned that Mr. Scala was going to hurt himself by struggling, which could result in Mr. Scala falling awkwardly or hurting himself by running uncontrollably or unexpectedly. He knew Mr. Scala from his community policing, and distinctly recalled telling him to “stop resisting” and to “stop struggling”.

[47] DC McFadyen and DC MacNab corroborated this evidence, stating that they observed Mr. Scala resist, and heard the other officers tell him that he was under arrest and must make his hands available to be handcuffed. As Mr. Scala was not obeying the commands to “stop resisting” or Sargent Young’s command that he was under arrest, and as the struggle to take control had continued for 15-20 seconds, Sargent Young stated that he directed PC Guerreiro that Mr. Scala be “taken to the ground”.

(e) The Use of Force

[48] The Police Defendants admit that they used physical force to take Mr. Scala to the ground to arrest him.

[49] Sargent Young and PC Guerreiro explained that the police’s use of force in an arrest depends on the response of the person being asked to submit to police custody. Sargent Young stated that he gave the order that Mr. Scala be taken to the ground because he was resisting arrest. He explained, as did PC Guerreiro, that this maneuver was intended to take away Mr. Scala’s mobility and range of motion and allow the officers to handcuff him.

[50] The evidence of Sargent Young and PC Guerreiro regarding what occurred after Sargent Young directed the “take-down” of Mr. Scala differs in only one respect. Sargent Young recalled that PC Guerreiro was present for some 30 seconds before he first placed his hand on Mr. Scala’s left arm to take him under control. PC Guerreiro’s evidence is that Sargent Young had already initiated the arrest when he arrived, and that he joined it in progress.

[51] Apart from this discrepancy in the timing of the start of the arrest, the description by Sargent Young and PC Guerreiro of the technique they deployed is identical in material respects. They stated that Sargent Young placed his hand on Mr. Scala’s left arm, and PC Guerreiro held Mr. Scala’s right arm in a similar manner. They explained that Mr. Scala continued to resist the arrest by protesting and stepping backwards.

[52] They testified that they executed a controlled take-down of Mr. Scala, with what they viewed as the least physical force possible to still be effective. Sargent Young described this as suddenly jerking Mr. Scala forward so that he momentarily lost balance, and then guiding him to the ground in a controlled fall. The officers stated that Mr. Scala fell with PC Guerreiro and Sargent Young each retaining a hold on one of his arms, from his sides, and following him to the ground.

[53] PC Guerreiro and Sargent Young both testified that they landed on the ground next to Mr. Scala and continued to ask that he “give up his hands”: meaning that he make his hands available for them to handcuff him. They say that Mr. Scala refused to do so, positioning his hands under his chest while face down on the ground. PC Guerreiro and Sargent Young stated that they struggled with Mr. Scala by pulling on his arms until they positioned his hands behind him. They then held his hands together for a third, unidentified officer to apply the handcuffs.

[54] Sargent Young testified that he landed next to Mr. Scala on his left side, and did not, at any time, land on top of him. He observed PC Guerreiro do the same, and then both tussled to pull Mr. Scala’s hands out from under his chest. Sargent Young is adamant, as is PC Guerreiro that Mr. Scala did not report any injury to them at that time, or indeed at any time subsequently.

[55] DC McFadyen observed the take-down of Mr. Scala from his vantage point two to three feet away. He corroborated the testimony of Sargent Young and PC Guerreiro, emphasizing his perception that they had to react to Mr. Scala pulling away and not allowing the police to arrest him. DC McFadyen stated that after tussling back and forth with Mr. Scala for some ten seconds, PC Guerreiro and Sargent Young pushed Mr. Scala to the ground, bracing him in the process, pried his hands out from under his body, put them behind him and handcuffed him. He observed that each officer had a hold of one of Mr. Scala’s arms and kneeled on the ground on either side of him.

[56] PC Guerreiro and Sargent Young are adamant that they did not kick, punch or strike Mr. Scala, they did not knee him or drop on him, and did not observe any other officer do so. They say that they caused Mr. Scala to lose his balance and fall by jerking him and swear that they did not apply a distractionary blow, or a blow of any nature to make him fall. Sargent Young stated that his objective was to take control of Mr. Scala in a manner best-suited to preventing injury. PC Guerreiro and Sargent Young stated that they were concerned when Mr. Scala was on the ground, face down, with his hands under his chest, as they could not see whether he was concealing anything. They pulled Mr. Scala’s hands into the open, tussling with him on the ground, so that the handcuffs could be applied.

[57] All of the police officers, Detective Constables McFadyen, Hall and MacNab, Sargent Young and Police Constables Guerreiro and Makhlouf, swore that they did not kick, punch, knee or strike Mr. Scala and did not observe any other police officer doing so. DC McFadyen added that there was no reason for any officer to apply any further force to Mr. Scala once he was on the ground as he was handcuffed and under control. DC MacNab testified that he heard Mr. Scala crying after he was arrested. This is consistent with Mr. Scala’s testimony that he cried out.

(f) The Transport to 11 Division

[58] PC Guerreiro testified that after Mr. Scala was handcuffed, he and PC Lorimer took him to their police cruiser and placed him in the rear seat. Ralph was taken in a different vehicle. PC Guerreiro stated that he again told Mr. Scala that he was under arrest, told him of the charges, and read to him his right to counsel and caution. PC Guerreiro denied that Mr. Scala was showcased through the neighbourhood streets, as stated by Mr. Scala. He denied that he or his partner made any announcements to any neighbours, or to anyone. Rather, he swears that the mileage reading on his cruiser confirmed that he drove one kilometre from the scene of the arrest to 11 Division, and that Mr. Scala was in police transport for barely over one minute.

[59] In the time that PC Guerreiro walked Mr. Scala to his cruiser from the scene of the arrest, drove him to 11 Division and then paraded him to the station booking Sargent, he is certain that Mr. Scala did not complain of any injury, and is adamant that he showed no signs of injury.

[60] DC MacNab states that he went to the Scala residence to tell Catarina that Mr. Scala and Ralph had been arrested and that the dog had been taken by the animal control officer. DC MacNab had met her before in the neighborhood, having spoken with her about other investigations. He said that she was visibly upset and shaken but did not make any complaints to him.

C. The Conflicting Evidence Concerning Conduct at the Police Station

[61] Mr. Scala testified that upon being taken to the police station, he asked the booking Sargent to be taken to hospital. He stated that he was bleeding and that his pants were torn. PC Guerreiro testified that he and PC Lorimer took Mr. Scala from the parking garage at 11 Division directly into the booking hall where he was paraded before the booking officer, Staff Sargent Tilley. He cautioned Mr. Scala that there would be an audio and video recording of his booking. He stated that during this process Mr. Scala did not complain of any injury.

[62] PC Guerreiro stated that he and PC Lorimer took Mr. Scala to an interview room after his booking, and conducted a complete search, one item of clothing at a time. He stated that the search was uneventful. PC Guerreiro testified that the search involved detecting any injury, that he did not record any, and that Mr. Scala, again, did not complain of any injury.

[63] Mr. Scala swears that he asked the booking Sargent to be allowed to use a washroom, but was not allowed to do so. PC Guerreiro denies that Mr. Scala made any such request while being booked or while being searched.

(a) Access to Washroom

[64] Mr. Scala says that he was locked in a windowless room for hours and asked “a hundred times” to be taken to a bathroom to urinate. In direct examination, Mr. Scala testified that his repeated requests to be taken to the washroom were ignored by the police officers attending to his detention. As a result, he says that he had to relieve himself by urinating on the floor. He testified that a police officer, who he was not able to identify in his direct examination, commanded that he remove his sweater and clean the urine off the floor, which he says he did.

[65] In his re-examination, Mr. Scala testified that a police officer did offer to take him to the washroom: indeed, the same officer who demanded that he clean the floor with his sweater.

[66] The police deny that Mr. Scala was denied the use of a washroom. PC Guerreiro stated that if Mr. Scala had made such a request, he simply would have been accompanied to a nearby washroom. PC Guerreiro has no recollection of Mr. Scala urinating on the floor, and denies that he told him at any time to use his sweater to clean the floor. DC McFadyen’s evidence of his observations of Mr. Scala in the interview room corroborates the evidence of PC Guerreiro.

[67] PC Makhlouf, assisted by his contemporaneous notes, testified that he was the police officer who offered to take Mr. Scala to the washroom, and accompanied him there. He denied that he observed any urine on the floor of the detention room, or that he directed Mr. Scala to clean any such urine from the floor. PC Makhlouf, DC McFadyen and PC Guerreiro testified that they did not observe any urine on the floor of the detention room and that the standard procedure would have been to call the maintenance staff to disinfect and clean any such disorder, had there been any. They said that Mr. Scala was taken to the washroom as required.

(b) Access to Medications

[68] Mr. Scala testified that on July 10, 2008, he was took five prescription medications in the morning, and five in the evening. On the morning of the arrest, he had taken the five prescription medications, but Mr. Scala stated that he was deprived his medication in the period after his arrest.

[69] DC MacNab testified that he attended at the Scala residence to speak with Mrs. Scala and to obtain from her any medications that Mr. Scala might require while detained. He was accompanied by Sargent Reggimeni, who could speak with Mrs. Scala in Italian. He swore that Mrs. Scala provided him with the medications that she considered were necessary for her husband during the time that he was at 11 Division.

[70] Mr. Scala submitted that insufficient notes were taken by Sargent Tilley regarding the medications that Mr. Scala required, and inadequate attention was given by DC MacNab to ensuring that he obtained the medications needed for Mr. Scala’s well-being while at the Toronto Jail. However, the Health Care Records of the Toronto Jail taken from July 11-14, 2008, show a complete list of all the prescription medications taken by Mr. Scala, together with a summary of his medical history and needs.

(c) Alleged Failure to Keep Proper Records

[71] The Plaintiff adduced evidence that the police officers did not complete the required forms at the time of Mr. Scala’s arrest, including a use of force report and an injury report. Additionally, the Record of Arrest does not record information regarding any medical concern, although Mr. Scala had a history of heart surgery and was taking a complement of ten medications.

[72] The police officers’ testimony was that an injury report was not completed because Mr. Scala did not complain of an injury and no injury was noted by PC Guerreiro on his search of Mr. Scala. PC Guerreiro also testified that the ‘soft physical control’ exerted by the use of force on Mr. Scala would not necessitate a use of force report. Any lack of information in the Record of Arrest concerning Mr. Scala’s medical conditions was, according to the Police Defendants, soon cured by the detailed medical history documented in the Health Care Records of the Toronto Jail.

IV. LEGAL PRINCIPLES APPLICABLE TO ANALYSIS

[73] The parties largely agreed on the legal principles applicable to the determination of the issues in dispute, relying on substantially the same legal authorities. Their disagreement was not with the applicable principles, but rather their application to the facts of this case.

[74] Section 42 of the Police Services Act, R.S.O., c. P.15 provides that the duties of a police officer include: “apprehending criminals and other offenders and others who may lawfully be taken into custody”.

[75] In Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at para. 73, the Supreme Court stated that the police officer’s discharge of her or his duties, including apprehension and arrest, must be in accordance with a standard of care of reasonableness, not perfection:

The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time that the decision was made…

[76] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paras. 34-35, the Supreme Court reiterated that the standard of care of the police officer carrying out her or his duties is not a standard of perfection. A police officer’s reaction to an emergency situation must be “judged in light of [the] exigent circumstances” present at the time for which his or her conduct is being assessed: also, Fleming v. Ontario, 2018 ONCA 160 at para. 63.

[77] The Police Defendants admit that the police used physical force to arrest Mr. Scala. Section 25(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides that every peace officer who is required or authorized by law to do anything for the enforcement of the law is, if he or she acts on reasonable grounds, justified in doing what he or she is required or authorized to do and in using as much force as is necessary for that purpose. Section 25(1) protects a police officer from liability when the requirements of this section are established. The parties urged upon me, and I adopt, the summary of the requirements for the application of s. 25(1) as set out by Salmers J. in Wilsdon v. Durhan (Regional Municipality) Police, 2011 ONSC 3419 at para. 68:

Section 25(1) of the Criminal Code protects a police officer from criminal and civil liability [citing Priestman v. Colangelo, Shynall and Smythson, 1959 CanLII 14 (SCC), [1959] S.C.R. 615 at 623]. To engage the protection of this section, a police officer must prove each of three elements on a balance of probabilities. The three elements that an officer must prove on a balance of probabilities are that he or she: (i) was required or authorized by law to perform the action, that the officer undertook, in the administration or enforcement of the law; (ii) acted on reasonable grounds in performing the action; and (iii) did not use unnecessary force.

[78] Here, the authority of the police officers to arrest, and their decision to do so, is not in issue. Mr. Scala admits that the police officers had reasonable and probable grounds on which to arrest him on July 10, 2008. As a result, the first two criteria set out in Wilsdon as requirements to satisfy s. 25(1) of the Criminal Code are conceded.

[79] This leaves for determination only the third criterion necessary for the police to engage the protection of s. 25(1) of the Criminal Code: did the police use unnecessary force in arresting Mr. Scala?

[80] In order for s. 25(1) to protect the Police Defendants from civil liability, they must establish that the level of force that they used to arrest Mr. Scala was necessary, meaning that it was objectively reasonable in the circumstances presented to the police officers: Wilsdon at para. 85. In R. v. Power, 2016 SKCA 29, 335 C.C.C. (3d) 317 at para. 35, the Saskatchewan Court of Appeal stated that an objective assessment of a police officer’s use of force requires assessing whether the force was “reasonable given the nature and quality of the threat, the force used in response to it, and the characteristics of the parties involved in terms of size, strength, gender, age and other immutable characteristics”.

[81] In Nasogaluak, at para. 34, the Supreme Court stated that the use of force under s. 25(3) of the Criminal Code must be evaluated on a ‘subjective-objective basis’: applying Chartier v. Greaves, [2001] O.T.C. 121 (S.C.J.) at para. 59. The conduct must be objectively reasonable in the context of the circumstances present at the time of the arrest. I agree with the statement by Gee J. in R. v. Park, 2017 ONCJ 268 at para. 26, that “the officer must honestly believe both, that the force is necessary and the amount used is a measured response to the situation, and that belief must be objectively reasonable”.

[82] The police conduct is not to be assessed through hindsight: Wilsdon at para. 86, relying on Crampton v. Walton, 2005 ABCA 81, 250 D.L.R. (4th) 292 at para. 45. Rather, the conduct of the police officers must be assessed from a perspective that is attentive to the circumstances that the police officers faced at the time of the conduct under scrutiny. In Berntt v. Vancouver (City), 1999 BCCA 345, 174 D.L.R. (4th) 403 at para. 24, the British Columbia Court of Appeal stated that the trial judge “should be a doppelganger to the peace officer whose conduct is in issue”, continuing to describe the required analysis at para. 25:

The judge must go with the officer, at least from the time the officer first was sent to the place where the riot was in progress. I say “at least” because the peace officer’s training, experience, the orders of the day given to him, are all part of what goes into the answer to the question of “reasonable grounds” [for the police officer’s belief that the force used was necessary and not excessive].

[83] The police officer is not required to measure his or her response to the apprehension or arrest with “exactitude”: Anderson v. Port Moody (City) Police Department, 2000 BCSC 1194 at para. 51. The law recognizes that police officers have to make quick decisions based on limited information: Castro v. Monteiro, 2012 ONSC 6907 at para. 45.

V. ANALYSIS

[84] I will assess whether the amount of force used by the police officers in the arrest of Mr. Scala was reasonable, on an objective standard, in the context of the circumstances faced by the police officers at the time of the arrest, and whether the police acted negligently in the other ways alleged. I will begin with determining what amount of force the police used to arrest Mr. Scala on July 10, 2008.

A. What Force Was Used By The Police?

[85] The parties are in agreement on what occurred up to the point of contact on July 10, 2008. Mr. Scala and Ralph were walking with their pit bull terrier on a leash when the four members of the MCU and the four members of the CRU approached. At this point, the evidence presented by Mr. Scala and Mr. Gladstone significantly diverges from the evidence of the six testifying police officers. In assessing the credibility and reliability of this evidence, I am assisted by two recordings that were made just after the arrest and entered into evidence, the video of Mr. Scala’s booking at 11 Division and photographs taken by Mr. Gladstone of Mr. Scala’s injuries, as well as various health records made while Mr. Scala was at the Toronto Jail and afterwards.

(a) The Video of the Booking

[86] The video of the booking at 11 Division begins at 8:23 pm on July 10, 2008, and so follows precisely in time sequence from the arrest which, according to the evidence of the police officers, initiated at 8:05 pm that day. The more than 10 years that passed from the time of the video to trial are evident, in that the image of Mr. Scala in the video shows a considerably more youthful, more robust and confident man – bordering on defiant – than his sullen presentation at trial.

[87] In this video, Mr. Scala does not look like a man who has been beaten for two to three minutes by three police officers. His clothes are orderly. He is composed. He stands erect, although he shows a marked limp when rising from a seated position to address the booking Sargent. Mr. Scala’s counsel submitted that he was only able to remain in a standing position because he was held up by the police officer who accompanied PC Guerreiro, but I did not see this. I observed from the video that an officer had his hand on Mr. Scala’s arm for control.

[88] Mr. Scala answered the questions posed to him in English, without any apparent difficulty in comprehension. The booking officer, Sargent Tilley, asked Mr. Scala if he understood that he was under arrest, to which Mr. Scala responded: “I don’t know, they just hit me boom, boom, boom, boom. I don’t understand”.

[89] Mr. Scala was also asked if he knew why he was under arrest. Mr. Scala said that he did not know, changing the topic to the manner by which he had been apprehended, stating: “They just hit me boom, boom, boom, boom. Hit me left then right – I don’t know nothing.” Sargent Tilley persisted in explaining to Mr. Scala that he was under arrest, and why, until he so acknowledged.

[90] Sargent Tilley asked Mr. Scala if he had any injuries: “Do you have any illness or disease, injuries, anything like that?” Mr. Scala explained to Sargent Tilley that he had a quadruple heart bypass seven years earlier, and receives treatment for depression. However, even though asked directly whether he had any injuries, Mr. Scala did not tell Sargent Tilley of any injury. Mr. Scala did not ask for any medical attention.

[91] After politely responding to a series of questions posed by the booking Sargent, Mr. Scala asked for permission to ask a question: “Can I ask a question, Sir?” Mr. Scala calmly asked why he was hit so hard by the police officers, stating that they “smash me like a criminal”, and why he was subjected to punches that he could not see coming: “They six guys and me, I don’t know what happened”.

[92] The booking Sargent commented that the matter was being “looked into”. Mr. Scala’s counsel criticized the booking Sargent and PC Guerreiro for not taking more seriously Mr. Scala’s comments that he had been beaten by as many as six officers, dismissively directing him to the next-step body search without further inquiry. Perhaps Sargent Tilley did not see in Mr. Scala’s presentation that day those signs of injury that would be expected of a person who had just been beaten by as many as six police officers.

(b) The Photographs

[93] Mr. Gladstone testified that four or five days after the events of July 10, 2008, he received a telephone call from Ralph, who told him that he and his father had been beaten, were now released from jail, and wanted some pictures taken. Mr. Gladstone did not provide any explanation regarding why he was asked to act as photographer when this was not his trade, other than that Ralph was his friend.

[94] Four pictures were taken by Mr. Gladstone and tendered into evidence (the “Photographs”). They show injury to four areas of Mr. Scala’s right leg: bruising to the back and side of the upper right leg from the buttock to the knee (the “Right Thigh Bruising”); bruising to the right calf (the “Right Calf Bruising”); a wound on the right knee (the “Right Knee Wound”); and two puncture wounds on the right shin (the “Right Shin Wounds”).

[95] Mr. Scala testified that all the injuries shown in the Photographs were sustained by him in the arrest. However, there is significant evidence that calls this testimony into question.

[96] PC Guerreiro testified to conducting the search of Mr. Scala in the interview room immediately after he was booked by Sargent Tilley. This search involved Mr. Scala removing one article of clothing at a time. PC Guerreiro was certain that in conducting this search of Mr. Scala, he did not see the injuries shown to the four parts of his right leg as shown in the Photographs. He was adamant that had he done so, he would have noted the injury in an Injury Report. He also stated that Mr. Scala did not complain of any injury or ask for any medical attention.

[97] The Plaintiff submitted that the Right Thigh Bruising and the Right Calf Bruising might not yet have emerged in the hour or so between the arrest and PC Guerreiro’s search of Mr. Scala. However, the Right Knee Wound was a gash the size of a two-dollar coin that would have been bleeding and visible at the time of the search if it was caused at the time of the arrest. The same is true for the Right Shin Wounds. Although smaller, they would have been visible and would have called for attention.

[98] Mr. Scala’s position is that all of his right leg injuries were simply missed by PC Guerreiro, or that PC Guerreiro is not being truthful about having observed them to justify his failure to complete the Injury Report that would have been required upon observing such injuries.

[99] A review of the medical records made in the days following PC Guerreiro’s search of Mr. Scala supports a finding that the bruising was present or was emerging after the arrest, as follows:

(i) On July 11, 2008, the Health Assessment conducted of Mr. Scala upon his entry into the Toronto Jail recorded a large bruise to the back of his right leg. There is no note of complaint by Mr. Scala of any other injury;

(ii) On July 11, 2008, at 6:00 p.m., an Accident/ Injury Report was completed by correctional officer (“CO”) Tan at the Toronto Jail that recorded a “large bruise in right leg – extends knee to groin area”. The registered nurse described this as bruising on Mr. Scala’s “upper right thigh”. A photograph was taken of the back of Mr. Scala’s right leg, only, and he was placed on the doctor’s list for assessment;

(iii) On July 12, 2008 at 11:43 a.m., CO Tan completed an Occurrence Report detailing “Injuries Sustained by Inmate Felice Scala Prior to Admittance into the Toronto Jail”. She reported “bruises on his upper right thigh”. She recorded that Mr. Scala was examined by a registered nurse and a picture was taken of the site of the injury, the back of the right leg, only;

(iv) On July 13, 2008, the Physician Health Care Record at the Toronto Jail notes that Mr. Scala had a “massive longitudinal blue bruise” on the right leg, from the knee to the base of the buttock. The detailed medical record does not note any other injury;

(v) Dr. Kerr examined Mr. Scala in the Toronto Jail on July 14, 2008. He recorded in the Physician Health Care Record that Mr. Scala complained of tenderness in his chest and ribs, and that there was a “big, huge blue and purple bruise” on the back of his right leg. Dr. Kerr did not note any injury to Mr. Scala’s back, shoulders, arms or head. He noted tenderness to Mr. Scala’s chest and bruising to his eye.

[100] All of these records clearly record the Right Thigh Bruising and the Right Calf Bruising, both of which increased in prominence and visibility over the days that they were observed by the medical care givers and attendants at the Toronto Jail. However, there is no mention in any of these records of the Right Knee Wound or the Right Shin Wound, even though these wounds, being abrasions, would have been visible and would have required dressing, had they been present.

[101] The first mention in any medical record of these injuries is found in a medical record produced from Dr. Pardis, who Mr. Scala saw at a medical clinic on July 16, 2008: after his release from jail. Dr. Pardis identified the Right Knee Wound, which he described as a “circular ulcerated superficial wound the size of a toonie covered by pussy crust”. Mr. Scala consulted with Dr. Pardis only once more, on July 25, 2008, at which time the physician noted that the wounds were improved and resolving.

(c) Assessment of Evidence Pertaining to the Arrest

[102] Mr. Scala’s arrest took place almost 10.5 years prior to trial. The police officers had the assistance of their notes, taken contemporaneously with the events of July 10, 2008, to assist them in recalling what happened that day and bringing it back to life a decade later. Mr. Scala, as a lay person, did not. As such, some discrepancies in his evidence over time ought to be expected and not factored against him in assessing the credibility and reliability of his evidence.

[103] However, there were significant problems in the internal consistency in Mr. Scala’s account of events, including the following:

(i) Mr. Scala testified at discovery, some five years before trial, that he had been beaten by two police officers but at trial swore that he was beaten by three police officers. In the video of his booking, taken within a half hour of the arrest, Mr. Scala stated: “They six guys and me”;

(ii) Mr. Scala pleaded that he had been “severely beat, punched and kicked” on “various parts of his body”. He testified at discovery that the police officers kneed him on the top of his upper body and head and punched him in his shoulders and head. At trial he stated that he was struck only on his back and legs;

(iii) At discovery, Mr. Scala swore that he had sustained a head injury in the arrest, but at trial admitted that he did not.

[104] These inconsistencies are incapable of being explained as the by-product of the passage of time, or Mr. Scala’s qualities as an historian. They are fundamental and foundational to the veracity of his explanation of what happened on July 10, 2008, so much so that I had to question which version of the Plaintiff’s account of events I was being asked to accept.

[105] Further, there were aspects of Mr. Scala’s account of events that were inherently not plausible, including the following:

(i) that when the police officers approached him and Ralph, they did not utter a single word;

(ii) that he was not told that he was being arrested at any time from his apprehension to his transport to 11 Division;

(iii) that he was not handcuffed after being apprehended, and when placed in the police cruiser for transport to 11 Division;

(iv) that after being placed in the police cruiser, he was showcased by being driven “up and down” the street on which he resided, with the police stating loudly that “Scala is in the car”.

[106] These elements are not plausible because they are inconsistent with a police operation that is taking place in daylight hours, just after dinner, in public view on a residential street. That setting is not well-suited for the surprise take-down and assault alleged by Mr. Scala, with no communication to him that he was being arrested.

[107] Last, there were elements of Mr. Scala’s testimony that were simply shown to be inaccurate, including the following:

(i) His testimony that when he was taken to the police station at 11 Division he was bleeding. There is no evidence of this on the booking video, or in PC Guerreiro’s examination of him, or in the examination by the medical care givers and attendants at the Toronto Jail in the period from July 10, 2008 to July 14, 2008;

(ii) He testified that when he was taken to the police station, his pants were torn. This is not borne out by the booking video;

(iii) His evidence that he asked the booking officer to be taken to the hospital to obtain care for his injuries. The booking video shows that Mr. Scala did not make any such request to Sargent Tilley. Indeed, when asked directly by Sargent Tilley whether he had any injuries, he did not mention any;

(iv) His evidence that he was not handcuffed until twenty minutes after he arrived at 11 Division, when the booking video shows that he was handcuffed at 8:23 pm, upon presentation for booking;

(v) His statement that he was forced to clean up a soiled floor in the detention area with his sweater, when the booking video shows that he did not have a sweater;

(vi) At trial, Mr. Scala stated that he did not drink any alcoholic beverages on the day of the arrest, and did not have a knife in his possession. The video shows that at the time of booking, Mr. Scala stated that he had a glass of wine with his lunch, and a small knife was found in his possession;

(vii) Mr. Scala testified that he did not have any medical issues with his back or leg prior to the arrest, and denied that he had undergone any medical diagnostic assessments in relation to any such issues. The medical records show that Mr. Scala complained to his physicians of back pain and left leg pain as much as three years before the arrest, and had at that time in 2005 undergone a nerve conduction study to assist in the diagnosis of these issues;

(viii) Mr. Scala pleaded, and testified, that he had never been convicted of a criminal offence. In cross-examination, the Police Defendants established that he was convicted on June 1, 2009 for failing to comply with a peace bond and on June 3, 2010 for failing to comply with a recognizance;

(ix) Mr. Scala stated that he told all of his medical caregivers that he had been beaten by the police. As I will discuss later, this is not supported by the medical records.

[108] I find that Mr. Scala’s evidence is not corroborated by the booking video or by the Photographs, neither of which support the extent of injury that he alleges. Mr. Scala’s evidence is not supported by the medical records that were produced, as I will explain later in these reasons.

[109] Mr. Scala’s testimony was corroborated only by Mr. Gladstone, whose evidence suffers from the same critical flaw as Mr. Scala’s account of events. In particular, the most telling aspect in assessing the credibility and reliability of Mr. Scala’s and Mr. Gladstone’s accounts of the arrest, is that had Mr. Scala been beaten by three or even two of the police officers who I observed in Court, sustaining repeated punches, kneeing and kicks to the back, shoulder and legs for two to three minutes (much less the head as earlier-alleged), the resultant injuries to Mr. Scala would have been much worse than those in evidence in the video and photographs, possibly life-threatening. This would be the case even if the duration of the assault were reduced from the stated two to three minutes to even one minute.

[110] I have assessed the Plaintiff’s evidence through the lenses of internal consistency, inherent plausibility and correctness to assess its credibility (honesty) and reliability (accuracy). I am guided by the Supreme Court’s statement in R v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223 at para. 49, that “credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter”. In assessing Mr. Scala’s evidence within the context of the totality of the evidence in this trial, I find that his account of the arrest and resultant detention lacks credibility and reliability.

[111] I have analysed carefully the conduct of those who had a role in Mr. Scala’s arrest: the officer in charge, DC McFadyen, and Sargent Young and PC Guerreiro, the two police officers who apprehended Mr. Scala. I have found that the only named police defendant, DC Hall, had no involvement in Mr. Scala’s arrest, even on the Plaintiff’s evidence. As such, I need not comment further on his role, although I have assessed his evidence as to his observations of Mr. Scala’s arrest

[112] DC McFadyen joined the Toronto Police Services in 2006, and was in charge of coordinating the arrest. He had briefed his team earlier in the day. The Plaintiff cross-examined DC McFadyen extensively on whether he notified the team members that Mr. Scala had undergone heart surgery some seven years earlier, suggesting that this showed an error in preparation. The evidence at trial showed that some, but not all of the officers involved in the briefing were aware of Mr. Scala’s prior heart surgery.

[113] DC McFadyen was, in his words, “on the eye” during the arrest. He supervised and left the actual physical arrest of Mr. Scala to the most seasoned police officer present that evening: Sargent Young. Sargent Young was, at that time, a 10 year veteran of the Toronto Police Force, and was responsible for a platoon, of which PC Guerreiro was a member. I found that Sargent Young presented his evidence at trial in a serious, forthright manner, and was clearly an experienced police officer at the time of the arrest. He kept detailed notes of the arrest, which was routine to him. I accept Sargent Young’s evidence that he did not expect to have to direct a take-down of Mr. Scala that evening, given his age, but did not hesitate in giving the direction to do so when he concluded that the situation called for it.

[114] PC Guerreiro had some five years of experience on the Toronto Police Force at the time of Mr. Scala’s arrest. PC Guerreiro presented as a keen, candid witness, who readily admitted to certain gaps in his notes, indeed to the point of being self-critical, and provided a clear, straightforward recall of the arrest. I find that he took his role in community policing seriously, having made efforts to know and meet the people in the neighborhoods under his watch, including Mr. Scala, with whom he was familiar. I accept that he followed the direction of his supervisor, Sargent Young, in assisting in the take-down of Mr. Scala.

[115] I was impressed with PC Guerreiro’s sincerity. His enthusiastic explanation of the police use of force protocol was presented with such detail and conviction that it was clear to me that he had not only studied it extensively but was committed to applying it thoroughly. I conclude that PC Guerreiro was truthful in his testimony regarding the manner by which he and Sargent Young took Mr. Scala to the ground as part of his arrest.

[116] DC McFadyen’s evidence concerning his observation of Mr. Scala’s arrest corroborated entirely the evidence of Sargent Young and PC Guerreiro. I accept that their notes were made contemporaneously and independently. I have taken into consideration the discrepancies in the testimony of the police officers, including: which subject first had the leash to the pit bull terrier; the timing of the transfer of control of the dog from one subject to the other; whether they noted Mr. Scala to have cried or to have yelled out; whether they all arrived on scene contemporaneously or sequentially. I find that these internal inconsistencies are to be expected given the passage of time and the number of note takers and supports their stated autonomy in note-taking. I conclude that these discrepancies do not diminish the credibility or reliability of their testimony.

[117] I find that DC McFadyen was in a position to observe and direct Mr. Scala’s arrest, and I accept that he would have intervened had any of the officers in his charge beaten Mr. Scala, as is alleged by the Plaintiff. I find that he carried out his mandate to see that Mr. Scala’s arrest was conducted in accordance with use of force protocols and guidelines.

[118] Having observed and considered the evidence of DC McFadyen, Sargent Young and PC Guerreiro, I find that their testimony is credible and reliable, as I find also the corroborating testimony of the other police officers on the events of July 10, 2008. Their evidence was internally consistent, plausible and accorded with the recorded evidence and the nature of the injuries sustained by Mr. Scala.

[119] I accept the evidence of the testifying police officers concerning the events of Mr. Scala’s arrest and his resultant detention over the evidence of Mr. Scala and Mr. Gladstone.

(d) Factual Findings

[120] Having assessed and determined the credibility and reliability of the witnesses and their testimony, I will now state my factual findings regarding the use of force by the police in the arrest of Mr. Scala, the other acts of negligence alleged, and the injuries that Mr. Scala sustained by reason of the police use of force.

(i) The Police Use of Force

[121] The Plaintiff bears the onus of establishing, on a balance of probabilities, what force was used: Wilsdon at para. 7; Street v. Toronto Police Services Board, 2018 ONSC 4290 at para. 76. I do not accept the Plaintiff’s evidence that he was punched, kicked, kneed or beaten by any of the police officers in his arrest of July 10, 2008. I similarly reject his evidence that he was not advised that he was under arrest and that he complied with requests that he submit to the arrest.

[122] I accept the account of the arrest as testified to by the police officers. I find that DC McFadyen, Sargent Young and PC Guerreiro did not punch, kick, knee or beat Mr. Scala and did not see anyone else do so. I accept as well that the other testifying officers, DC Hall, DC MacNab and PC Makhlouf were not even involved in Mr. Scala’s arrest, did not punch, kick, knee or beat him and did not see anyone else do so.

[123] I find that DC McFadyen and Sargent Young both told Mr. Scala that he was under arrest, and that Sargent Young explained that he was being arrested for failure to comply with recognizance and criminal harassment. I find that these police officers asked Mr. Scala to show his hands, and that Mr. Scala resisted by stepping backwards and verbally protesting. I determine that Sargent Young then directed PC Guerreiro to work with him in executing a take-down. I find that they shook Mr. Scala to cause him to momentarily lose his balance and then, each holding one of Mr. Scala’s arms on each side of him, guided him in a controlled fall to the ground. I find that Mr. Scala was forced to lie face down on the ground, immobilized and did not immediately comply with the demand that he show his hands. This resulted in Sargent Young and PC Guerreiro pulling Mr. Scala’s hands out from under him and handcuffing him and walking him to the police cruiser. I find that he was then driven by PC Guerreiro directly to 11 Division for booking, without incident, and without being showcased to onlookers in the manner stated by Mr. Scala.

(ii) Discrete Acts of Alleged Negligence

[124] Having determined that I accept the evidence of the testifying police officers concerning the events of Mr. Scala’s arrest and his resultant detention over the evidence of Mr. Scala and Mr. Gladstone, I will now explain my factual findings regarding certain discrete acts of alleged negligence.

Access to Washroom

[125] The video taken on Mr. Scala’s booking at 11 Division shows that he did not ask at that time to use the washroom, contrary to his direct testimony. I do not accept Mr. Scala’s statement, in his re-examination, that he asked to use the washroom in a low voice, presumably not caught by the audio recording. I similarly reject his evidence that once in the interview room he asked many times to use the washroom but was refused.

[126] In preferring the evidence of PC Makhlouf over that of Mr. Scala, I accept that PC Makhlouf accompanied Mr. Scala to the washroom without noting any urine on the floor of the detention room or on Mr. Scala’s clothing. I do not accept that he ordered Mr. Scala to clean a soiled floor, or humiliated him in the manner submitted by the Plaintiff. PC Makhlouf’s evidence is plausible and reliable in that it is consistent with the physical evidence and corroborated, in his recollection of the condition of the detention room floor, by PC Guerreiro and DC McFadyen.

Access to Medications

[127] The Plaintiff’s contention that he was denied access to medications while detained is contradicted by the Health Care Records of the Toronto Jail taken on July 11-14, 2008, which contain a complete list of all the prescription medications taken by Mr. Scala, together with a summary of his medical history and needs. These records establish that during his detention, the correctional officers and the Toronto Jail medical staff had full note of and made provision for the medications required by Mr. Scala.

(iii) The Injuries Sustained

[128] I will explain at this time my findings regarding the injuries sustained by Mr. Scala in the arrest, based on my assessment of the evidence of Mr. Scala, Mr. Gladstone and the police officers, and the booking video and photographs. These factual findings are also made on the basis of my assessment of Mr. Scala’s medical records, which is explained later in these Reasons.

[129] When asked by Sargent Tilley in the booking process whether he had any injuries, Mr. Scala did not mention any. I accept that PC Guerreiro did not notice any injury on Mr. Scala when conducting his physical search shortly after the booking. The counsel for the Police Defendants asked that I conclude from PC Guerreiro’s evidence that the injury to Mr. Scala’s right leg happened after he left 11 Division at approximately 6:00 am on July 11, 2008, such that he did not sustain any injury in the arrest, at all. I decline to do so.

[130] The Plaintiff submitted that the Right Thigh Bruising and Right Calf Bruising might not have been immediately visible at the time of PC Guerreiro’s search of Mr. Scala, but rather emerged later. The medical records made by the care givers and attendants at the Toronto Jail in the days immediately after the arrest, and after detailed examination of Mr. Scala’s injuries, all note the Right Thigh Bruising and Right Calf Bruising, indeed with increasing size and prominence day-to-day. I accept that in the course of Mr. Scala’s arrest, there was some trauma to the back of his right leg that resulted in bruising that was not apparent to PC Guerreiro in his search immediately after the arrest, but which emerged thereafter. I accept that the physical force used in the arrest of Mr. Scala caused the Right Thigh Bruising and Right Calf Bruising.

[131] The medical care givers and attendants who examined Mr. Scala at the Toronto Jail from July 11 to July 14, 2008 were in a position to record any statement that Mr. Scala may have made regarding injury to any other part of his body: shoulders, back and head. The only note made of any injury apart from the Right Thigh Bruising and Right Calf Bruising is Dr. Kerr’s note of July 14, 2008 where he observed tenderness to Mr. Scala’s chest and bruising to Mr. Scala’s eye. As there is no other mention of chest tenderness and eye bruising in the Toronto Jail records, as they were not photographed or documented, as they were not reported by Mr. Scala to his medical care givers after his release from jail and as there was no evidence that they required any treatment, I conclude that these were trifling injuries that resolved quickly.

[132] Mr. Gladstone, who was asked to photograph Mr. Scala’s right leg, was in a position to take photographs of any other injuries said by Mr. Scala to have been sustained, but took photographs of only Mr. Scala’s right leg. I do not accept Mr. Scala’s explanation, provided in cross-examination, that Mr. Gladstone was asked to take photographs only of the right leg because these injuries were worse than those on the other parts of his body

[133] The Toronto Jail records make no mention of the Right Knee Wound and the Right Shin Wound. The correctional officer and clinic staff were in a position to have taken pictures of any such injuries had they been present, but took pictures only of the back of Mr. Scala’s right leg. I conclude from this that Dr. Kerr, the medical care givers and correctional officer at the Toronto Jail did not see a wound to Mr. Scala’s right knee or puncture wounds to the front of his right shin.

[134] On my assessment of the totality of the evidence, including my analysis of the Plaintiff’s medical records and my rejection of the opinion evidence on causation tendered by the Plaintiff, which I will discuss later in these Reasons, I have determined that the only injuries caused by the police officers to Mr. Scala by their use of physical force in his arrest were the Right Thigh Bruising and Right Calf Bruising.

(e) Adverse Inference

[135] In light of my determinations, I am do not need to rely on an adverse inference in order to decide whether to accept the evidence of the Plaintiff or the police officers. Nonetheless, as the Police Defendants submitted that I should draw an adverse inference from Mr. Scala’s failure to call the evidence of his spouse, Catarina Scala and Ralph, I will outline my analysis of this issue.

[136] The court may draw an adverse inference against the party who fails to call a witness where it is clear from the evidence that the witness would have been able to testify to a material issue raised by that party: Robb Estate v. Canadian Red Cross Society (2001), 2001 CanLII 24138 (ON CA), 152 O.A.C. 60 (C.A.), at para. 158, quoting from Kaytor v. Lion’s Driving Range Ltd. (1962), 1962 CanLII 346 (BC SC), 40 W.W.R. 173 (B.C. S.C.J.), at p. 176:

It is, I think well established, that where a party fails to call a witness, and it is apparent from the evidence in the case that the witness would have been able to give evidence on a material issue, then the court may draw such inferences as the particular circumstances of the case warrant against the party failing to call the witness. This would apply, of course, only where the failure to call the witness is not satisfactorily explained.

[137] An adverse inference ought not to be drawn where there is a plausible reason why the witness was not called: R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641 at para. 47; R. v. Lapensee, 2009 ONCA 646, 99 O.R. (3d) 501 at para. 42; R. v. Rooke (1988), 1988 CanLII 2946 (BC CA), 40 C.C.C. (3d) 484 (B.C. C.A.) at pp. 512-513. Also, an adverse inference ought to be drawn against a party for failure to give material evidence only “when that party alone could bring the witness before the court”: Robb Estate, at para. 161, relying on Lambert v. Quinn (1994), 1994 CanLII 978 (ON CA), 110 D.L.R. (4th) 284 (Ont. C.A.) at pp. 287-288.

[138] In paragraph 36 of his Statement of Claim, Mr. Scala pleads that his wife observed his apprehension: “She observed the assault on her husband by the Defendants from the porch of the property”. Indeed, this observation was relied on for some eight years in support of the claim for emotional distress caused by the Police Defendants to Ms. Scala for having witnessed her husband’s arrest, before this claim was abandoned at trial. Mr. Scala conceded in evidence that his wife witnessed his arrest.

[139] Ralph observed and was part of the events of July 10, 2008 but was not called by Mr. Scala to testify. No plausible explanation was given by Mr. Scala for failing to call these witnesses, who were within his control.

[140] Had it been necessary to reach my determinations on the amount of force used by the police officers in the arrest of Mr. Scala, I would have drawn an adverse inference resulting from Mr. Scala’s failure to call Mrs. Scala and Ralph to testify.

B. Was the Force Used Reasonable in the Circumstances?

[141] Having determined the nature of the force that was used in the arrest of Mr. Scala, my next task is to determine whether the force used was justified and reasonable or excessive. The question of whether the force used was excessive is a question of fact, for determination on the totality of the evidence. The Police Defendants have the burden of proving that the physical force that they admit to having used was reasonably necessary and not excessive: Chartier at para. 64.

[142] I have found that Mr. Scala did not comply with the police officer’s demand that he surrender his hands. He did not “resign his personal liberty”: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3 at para. 47, citing Grainger v. Hill (1838), 4 Bing. (N.C.) 212, 132 E.R. 769 at p. 774, per Bosanquet J.

[143] In R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217 at para. 24, Lamer C.J. adopted the holding of Judson J. in R. v. Whitfield, 1969 CanLII 4 (SCC), [1970] S.C.R. 46 that an arrest consists of the “actual seizure or touching of a person’s body with a view to his detention, or (ii) the pronouncing of the ‘words of arrest’ to a person who submits to the arresting officer.” The Supreme Court also relied on this definition of arrest in Asante-Mensah at para. 42. However, in Asante-Mensah, at para. 47, the Supreme Court stated that when the person does not resign his personal liberty in response to words or touch, and “something more than words or touch” is required to secure compliance in an arrest, “something more was authorized”.

[144] As a result of Mr. Scala’s non-compliance, the “something more” required to secure his compliance consisted of Sargent Young and PC Guerreiro each holding one of Mr. Scala’s arms; causing him to lose his balance through an abrupt shake or shuddering motion, resulting in a controlled fall to the ground; and taking control of his hands by restraining his hands with handcuffs.

[145] In assessing the conduct of Sargent Young and PC Guerreiro in each taking a hold of one of Mr. Scala’s arms for the purpose of his detention, after he had failed to comply with their request for him to submit to the arrest, I find that the police officers acted reasonably.

[146] The act of taking a person resisting arrest to the ground, called “grounding”, is part of the police use of force protocol, as explained in testimony by PC Guerreiro. It is recognized in the case authorities. In R. v. K.G., 2012 ONSC 2372 at para. 52, Hill J. described grounding as “a common technique for which officers are trained – putting a subject forcefully to ground to control both him and his weapon”. In Leclair v. Ottawa (City) Police Services Board, 2012 ONSC 1729, Kershman J. found that the police had acted reasonably in grounding the plaintiff twice as this was necessary in order to control the situation. Similarly in Smith v. Van Sabben, 2009 SKQB 496, 344 Sask.R. 115 and in Ludlow v. Victoria, 2014 BCSC 295 at para. 113, it was held that taking an accused to the ground without excessive force was justified and reasonable.

[147] In each of these cases, like the present, the grounding would not have been required but for the lack of compliance with the arrest. I find that the police conduct of taking Mr. Scala to the ground to secure his detention was reasonable.

[148] A police officer’s authority to handcuff is well-established where the police officer is authorized to arrest and take someone into custody: Sherman v. Renwick, [2001] O.T.C. 135 (S.C.J.) at para. 69, citing Miller v. Stewart [1991] O.J. No. 2238 (C.J.); R. v. Cunningham (1979), 1979 CanLII 2874 (MB COCT), 49 C.C.C. (2d) 390 (M.B. Co.Ct.) at 397. I find that the police conduct of securing control of Mr. Scala’s hands and affixing handcuffs was reasonable.

[149] The steps taken by Sargent Young and PC Guerreiro to take control over Mr. Scala, who chose not to comply, were justifiable. In making this determination, I am guided by the direction provided by Binnie J. in Asante-Mensah at para. 75, that justification under s. 25(1) of the Criminal Code “looks at a broader range of factors than simply the physical force required to restrain a person arrested” and “depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference”.

[150] The officers had a duty to arrest Mr. Scala, and did so in accordance with established and accepted procedure. In using force to arrest Mr. Scala, Sargent Young and PC Guerreiro are “not expected to measure the precise amount of force the situation requires”: Webster v. Edmonton (City) Police Service, 2007 ABCA 23, 69 Alta L.R. (4th) 205 at para. 26. Their use of force will not be found to be excessive simply because they did not use the “least amount of force which might successfully achieve their objective”: Levesque v. Zanibbi, [1992] O.J. No. 512 (C.J.) at para. 17.

[151] The Plaintiff submitted that the police officers could not have assessed the least amount of force necessary as DC McFadyen had not informed all of the officers that Mr. Scala had undergone heart surgery in 2000. Both arresting officers, Sargent Young and PC Guerriero testified that they were not aware of Mr. Scala’s history of heart surgery when conducting his arrest. I find that any lack of knowledge by the arresting officers of Mr. Scala’s earlier heart surgery did not affect their subjective evaluation of the amount of force that was required because the force that they used in detaining Mr. Scala, purposefully guiding him to the ground in a controlled fall, obtaining control of his hands and applying handcuffs, was the least required to achieve the arrest of Mr. Scala, in the circumstances presented.

[152] The Plaintiff argued extensively that the nature of the injuries sustained by Mr. Scala, as depicted in the Photographs, established that excessive force must have been used. However, the presence of an injury following the use of force in an arrest does not establish that the force used was excessive. I agree with the statement by Kraus J. in Van Sabben at para. 95: “I accept that an injury does not signify whether force was reasonable or unreasonable, just as the absence of injury does not signify that force was reasonable”.

[153] Of course, absent any force, Mr. Scala would not have been injured at all. But this would have required that he comply with the arrest, which I have determined he did not.

[154] Having determined that the police officers involved in Mr. Scala’s arrest guided him through a controlled fall to the ground, gained control of his hands and applied handcuffs, and did not punch, kick, knee or beat him, I find that it was objectively reasonable throughout the arrest for the police officers to believe that they were applying appropriate amounts of force to Mr. Scala. I find that the injuries sustained by Mr. Scala in the arrest, the Right Thigh Bruising and Right Calf Bruising, resulted from necessary use of physical force caused by Mr. Scala not complying with his arrest. I conclude that the Police Defendants have established that their use of force in this arrest was necessary, justified and not excessive.

C. Negligence

[155] I have analysed the Plaintiff’s submission that the police were negligent in their conduct apart from the use of force in is arrest. I have applied the standard of care set out in Hill, at para. 73, that the police officer’s discharge of her or his duties must be assessed against a reasonableness standard and not a standard of perfection.

[156] I have rejected the Plaintiff’s evidence that he was denied access to a washroom, that he urinated on a floor in the police station and that he was made to clean up any such urine using his sweater. In light of these factual findings, I dismiss the Plaintiff’s claim that the police acted negligently in denying him washroom access.

[157] I found that the police administered to Mr. Scala, on the day of his arrest, the medications provided to DC MacNab by Mrs. Scala. Any inadequacy in Staff Sargent Tilley’s recording of Mr. Scala’s medicinal requirements was of limited relevance as a full medical history, with a complete inventory of medicinal requirements, was taken by the Toronto Jail correctional officer and medical staff the next day. Importantly, the Plaintiff did not adduce any evidence that Mr. Scala sustained any harm or any medical set-back of any nature, by reason of not having access to his complete set of medications while under arrest at 11 Division. Even if the Plaintiff missed a dosage of any of his medications, there is no evidence that this caused any harm. Mr. Scala’s claim of negligence in the police officer’s administration of his required medications, including their recording at the time of his booking, was not established and is dismissed.

[158] I have already addressed, as part of my use of force analysis, the Plaintiff’s submission that DC McFadyen acted negligently in briefing the police officers by failing to inform Sargent Young and PC Guerriero of Mr. Scala’s earlier heart surgery. I do not accept either that there was a defect in DC McFadyen’s briefing of his team or, even if there was, that any harm was caused to Mr. Scala by any lack of briefing of his full medical history.

[159] The Plaintiff’s submission that the police officers were negligent in failing to complete a use of force report and an injury report is rejected on my finding that Mr. Scala did not report any injury at the time of his booking or search and on my acceptance of PC Guerriero’s evidence that the ‘soft physical control’ exerted in the use of force on Mr. Scala did not necessitate a use of force report.

[160] I conclude that the acts of negligence alleged by Mr. Scala are not established. I find that the conduct of the Police Defendants was reasonable, in all the circumstances and Mr. Scala failed to establish that any of the acts of negligence caused him any harm.

D. Breach of Fiduciary Duty

[161] In closing argument, the Plaintiff submitted that I should find that the Police Defendants were fiduciaries of the Plaintiff and, based on their conduct, were in breach of such a fiduciary duty. The Plaintiff relied on a single authority in support of his contention that the Police Defendants were in a fiduciary relationship with Mr. Scala: Smith v. City of New Westminster, 2004 BCSC 818. In that case, Smith J. found, at para. 163, that the New Westminster Police Services entered into a fiduciary relationship with the plaintiffs when it agreed to provide them with witness protection in return for witness statements. The Plaintiff did not raise or address the case authorities that have determined that police officers, in the execution of their duties, are not in a fiduciary relationship with the public, such as the decision of Keenan J. in Romagnuolo v. Hoskin, [2001] O.T.C. 673 (S.C.J.) at paras. 40-41.

[162] The Plaintiff stated that a fiduciary duty was created by Sargent Tilley, who as noted was not named as a defendant, through his assurance to Mr. Scala that he would “look into” Mr. Scala’s statement that he had been beaten. The Plaintiff submitted that this gave rise to a fiduciary duty just as in Smith, where the B.C. court found that a fiduciary duty was created when the police assured witnesses that they would protect them in exchange for their witness statements.

[163] There is a critical, indeed fatal flaw with the Plaintiff’s argument that the Police Defendants owed a fiduciary duty to the Plaintiff and breached such a duty: this cause of action was not pleaded.

[164] In TSP-Intl Ltd. v. Mills (2006), 2006 CanLII 22468 (ON CA), 81 O.R. (3d) 266 (C.A.), the Court of Appeal set aside a trial judge’s determination of liability on a basis that was not pleaded. The Court relied on its previous decisions in Rodaro v. Royal Bank (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.) at paras. 59-63, A-C-H International Inc. v. Royal Bank (2005), 2005 CanLII 17769 (ON CA), 254 D.L.R. (4th) 327 (Ont. C.A.) at paras. 5-18, and 460635 Ontario Limited v. 1002953 Ontario Inc., 1999 CanLII 789 (ON CA), [1999] O.J. No. 4071 (C.A.) at para. 9, each of which found, consistent with the statement by Doherty J.A. in Rodaro at para. 60, that “it is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings”. Labrosse J.A. explained in 460635 Ontario Limited at para. 9 that a trial decision based on a cause of action that was not pleaded cannot stand:

The parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against the defendant on a basis that was not pleaded in the statement of claim cannot stand. It deprives the defendant of the opportunity to address that issue in the evidence at trial …

[165] The Plaintiff did not plead that the Police Defendants owed him a fiduciary duty, or that any such duty was breached. This issue cannot be raised at trial, in closing submissions, as a basis of liability. I reject the Plaintiff’s submission that the Police Defendants were liable as fiduciaries on the basis that this was not pleaded.

E. Conclusion – The Police Defendants are Not Liable

[166] Having assessed all of the evidence pertaining to the arrest of Mr. Scala, and having analysed the conduct of the police officers involved in the arrest in the circumstances presented to them and not through the lens of hindsight, I have concluded that the Plaintiff has failed to establish any liability on the part of the Defendants. I have determined, on a balance of probabilities, that the force used was necessary, in that it was objectively reasonable and was not excessive in the context of the circumstances presented to the police officers. The Police Defendants have thereby proven that their conduct in the arrest of Mr. Scala on July 10, 2008 was justified. I find that the requirements of s. 25(1) of the Criminal Code are established and protect the Police Defendants from the civil liability alleged by the Plaintiff in regard to the arrest.

[167] The Plaintiff has not proven any negligence. The allegation of breach of fiduciary duty, made in closing submissions, was not pleaded.

[168] I have concluded that the Police Defendants have no liability to the Plaintiffs.

VI. DAMAGES

[169] In the event that I have erred in my conclusion that the Police Defendants are not liable, I will determine what damages I would have found in favour of Mr. Scala had I concluded that the Police Defendants were liable to him in the manner that he alleged.

A. The Burden of Proof

[170] Mr. Scala has the onus of establishing his damage claim. He has the burden of proving that the injuries that he alleges to have been sustained in the arrest give rise to compensable damages: Hill, at para. 90.

B. Medical History Prior to the Arrest

[171] At the time of his arrest, Mr. Scala suffered from depression and anxiety and had high blood pressure. As noted, he had quadruple heart by-pass surgery in 2000, by reason of which he suffered a stroke affecting his right eye vision. Mr. Scala stated that he had been treated for anxiety by Dr. Richard Stall, a psychiatrist, since 2001. In March 2003, he was diagnosed as diabetic.

[172] On June 23, 2005, more than three years before the arrest, Mr. Scala consulted Dr. George M. Vincent, an orthopaedic specialist, complaining of back and left leg pain, which Dr. Vincent noted as having occurred “without provocation or injury”. Dr. Vincent wrote that Mr. Scala’s symptoms were suggestive of sciatica and ordered a CT scan. When this revealed evidence of a soft tissue swelling over the nerve root, Dr. Vincent ordered an MRI, from which Dr. Vincent concluded that Mr. Scala’s numbness in his left leg was likely related to a sensory neuropathy.

[173] Dr. Vincent arranged for Mr. Scala to undergo an electro myography examination (EMG) that was conducted by Dr. Chepesiuk. Dr. Chepesiuk stated in his clinical note of December 13, 2005 that Mr. Scala told him that after he had been working in his garden lifting heavy blocks, or perhaps as a result of an accident with his dog, he began to experience “pain radiating down his left leg with back pain”. Mr. Scala stated that he was not able to walk well, but his pain was eased with anti-inflammatories. Dr. Chepesiuk reported that “nerve conduction studies show a reduced peroneal nerve amplitude and needle examination confirm[ed] that he has an acute axonal lesion of the L4 nerve root.”

[174] Dr. Vincent recorded, in his note of December 22, 2005, his view that Mr. Scala likely had “a small disc herniation that has resulted in a residual radiculopathy, or that this was related to diabetes”. Dr. Vincent did not recommend any further diagnostic steps or treatment.

C. Reporting of Arrest-Related Injuries to Medical Practitioners

[175] Mr. Scala testified that he continues to experience lower back pain and pain in both his legs daily. On a scale where ten is the highest and one the lowest, he rates his average pain level over a week as a ten. He attributed this pain entirely to the arrest, stating that his condition has worsened since to the point that he has trouble walking.

[176] Mr. Scala’s family doctor, Dr. William Lu, was away at the time of his release from jail, such that the first physician consulted by Mr. Scala after his release was Dr. B. Pardis at a walk-in clinic on July 16, 2008. Dr. Pardis noted that Mr. Scala complained of right leg pain resulting from “being molested by police about 6 days ago”. Dr. Pardis recorded his observation of an infected circular wound on the lower right leg “the size of a toonie covered by pussy crust”. Dr. Pardis examined Mr. Scala again on July 25, 2008 at which time he reviewed with him x-rays taken of the right leg, which were normal, and noted that his skin wounds were improving and that his trauma was resolving. Dr. Pardis recommended that Mr. Scala follow-up with his family doctor, Dr. Lu, upon his return.

[177] Mr. Scala did not report to Dr. Pardis any issue with his back, shoulders, head or left leg. The only medical complaint that he mentioned to Dr. Pardis was in regard to his right leg.

[178] Mr. Scala saw his family doctor, Dr. William Lu, on August 2, 2008 but Dr. Lu’s notes do not record any report by Mr. Scala of being beaten by the police until his subsequent visit of August 14, 2008. Dr. Lu’s note of March 1, 2010 records Mr. Scala’s statement that his back pain and leg pain derived from having been injured by the police on July 10, 2008 and is the first time that Dr. Lu notes having been shown photographs of the bruising to Mr. Scala’s right leg. On April 27, 2010, Dr. Lu recorded Mr. Scala’s statement that he intended to sue the police.

[179] Mr. Scala testified that he told all his treating physicians about the incident with the police because he viewed his ongoing ailments as deriving directly from the arrest. However, on November 25, 2008, Mr. Scala consulted with his cardiologist, Dr. J. Reial, and did not mention the arrest or that he had sustained any injury by reason of contact with the police. Indeed, Dr. Reial’s clinical note records that: “Mr. Scala indicated that he had remained quite well since his lasts visit.” Similarly, on December 24, 2008, Mr. Scala saw Dr. E. Stone, an endocrinologist, for ongoing treatment of his diabetes. Dr. Stone’s note records Mr. Scala’s reporting that he missed his scheduled appointment of July 2008 due to “problems with police”. However, he did not mention to Dr. Stone that he had sustained any injury in any incident with the police.

[180] On December 4, 2008, Mr. Scala consulted with Dr. Stall, and reported that he had been arrested, charged and had spent five days in jail. However, he did not tell Dr. Stall that he had been beaten, or that he had any ongoing injuries resulting from how he was arrested. The first note of any comment by Mr. Scala to Dr. Stall about any injury resulting from his arrest was on March 21, 2013, where Mr. Scala reported that he had been beaten by the police.

[181] On March 10 and 20, 2018, Mr. Scala was assessed by Dr. Balkansky, a chiropractor retained as a litigation expert to assess Mr. Scala. Dr. Balkansky noted in his intake memorandum that Mr. Scala told him that he had been kneed in the back of the right leg by the police officers during the arrest. Dr. Balkansky testified that Mr. Scala did not tell him that he had been “hit, kicked, struck, punched or beaten” by the police.

[182] Mr. Scala’s testimony that he advised all of his medical caregivers of the injuries sustained during the alleged beating by the police is not supported by the medical records produced at trial. The record of Dr. Lu shows a report by Mr. Scala on August 14, 2008 of this incident, but the records of Dr. J. Reial and Dr. E. Stone contain no comment by Mr. Scala that he had been beaten by the police. Dr. Stall’s first note of any comment by Mr. Scala of a beating by the police was made some five years after the event.

[183] Mr. Scala saw a number of medical practitioners, including his family doctor and specialists, for his numerous medical needs. His history of heart-related issues, diabetes, back pain, left leg pain and depression were present years before the arrest, continued thereafter and are well-documented. The impact of the injury to his right leg sustained in the arrest was not highlighted by Mr. Scala to his medical caregivers. If Mr. Scala had considered the injury to his right leg as a significant contributing factor to the back and leg pains that he says he experiences daily, I would have expected to see mention of this in comments he made to his medical caregivers at a time proximate to the arrest.

[184] Mr. Scala did not call any of his treating medical practitioners to testify at trial except the chiropractor that he consulted in the months leading to this trial: Dr. John Balkansky.

D. The Expert Medical Evidence

(a) Qualification

[185] The Defendants conceded that Dr. Balkansky was qualified to give expert opinion evidence as a chiropractor. Dr. Balkansky graduated from the University of Toronto in 1993 with a Bachelor of Science specialist degree in Nutritional Sciences. In 1997, he graduated from Canadian Memorial Chiropractic College’s Doctor of Chiropractic Program.

[186] From 1997 to 2007, Dr. Balkansky practiced as a chiropractor, either in his own practice or as an independent practitioner in a multi-disciplinary rehabilitation clinic. From 2007 to present, Dr. Balkansky has been the clinic director of a Wellness Clinic and assessment centre. Dr. Balkansky completed a review course with the Canadian Memorial Chiropractic College in 2010 in Independent Chiropractic Evaluation. He has experience in conducting functional abilities assessments, clinical chiropractic evaluations and treatments.

(b) Threshold Admissibility

[187] The Defendants agreed that the scope of authorized practice of a chiropractor pertains to the assessment and treatment of conditions of the spine, nervous system and joints. The Defendants conceded Dr. Balkansky’s expertise in these areas, and conceded his ability to provide opinion evidence on the nature and cause of any injuries that Mr. Scala may have to his spine, nervous system and joints.

[188] In terms of the permissible scope of opinion testimony, the Plaintiff tendered Dr. Balkansky to give expert chiropractic evidence on Mr. Scala’s restrictions in daily living, ongoing symptoms and required ongoing treatment caused by his arrest, including the costs of ongoing chiropractic care. The Defendants did not object to this scope of opinion testimony, with one exception. The Defendants submitted, properly in my view, that the expert report delivered by Dr. Balkansky must, in accordance Rules 53.03(2.1)(4) & (5), set out the nature of the expert opinion evidence and the issue in the case to which it relates. The Defendants submitted that the report delivered by Dr. Balkansky was deficient in that it did not contain the nature of the opinion evidence that Dr. Balkansky proposed to provide on the issue of causation. After hearing submissions on this issue, I found that the requirements of Rule 53 had been satisfied in that the report stated, although minimally, Dr. Balkansky’s opinion on the causal connection between the injuries shown in the Photographs and the injury alleged by Mr. Scala.

[189] After consideration of the principles set out in R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, which draws on the tests set out in R v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, I admitted Dr. Balkansky as an expert chiropractor to provide expert opinion evidence within his area of expertise on the assessment and treatment of conditions of the spine, nervous system and joints generally; the nature and cause of any injuries that Mr. Scala may have to these areas; and any restrictions on daily living, ongoing symptoms and required ongoing treatment caused by his arrest, including the costs of ongoing chiropractic care.

(c) Assessment and Opinions

[190] Mr. Scala completed initial intake forms on March 10, 2018, and then was assessed by Dr. Balkansky on March 20, 2018. Mr. Scala recounted to Dr. Balkansky his account of the arrest, stating that he had been kneed by the police in the back of his right leg. Mr. Scala’s main complaints of continuing injury were low back pain and pain radiating down the posterior of the left leg. Mr. Scala did not report any right leg pain to Dr. Balkansky.

[191] Dr. Balkansky assessed Mr. Scala through a series of physical tests, and concluded that Mr. Scala was experiencing a compression of his L5 S1 nerve root. He cautioned that nerve velocity testing by a neurologist would be required to confirm any nerve root damage, and that this was not within his expertise. Dr. Balkansky explained that he analysed the photographs taken by Mr. Gladstone of Mr. Scala’s right leg and noted that there was severe trauma, particularly to the lower leg. Dr. Balkansky stated that he concluded from the injuries shown in the Photographs, together with his assessment of Mr. Scala, that Mr. Scala has developed post-traumatic arthritis. Dr. Balkansky stated that he “could not see” the post-traumatic arthritis being related to anything other than the injuries shown by the Photographs to have been sustained by Mr. Scala in the arrest.

[192] Dr. Balkansky provided his opinion, he said with 100% certainty, that there is a correlation between Mr. Scala’s current medical condition and the trauma of the arrest. He made this conclusion from his observation of the Photographs and his examination of Mr. Scala almost ten years after the arrest. At the time that he first reached his conclusion that Mr. Scala’s current medical issues are related to the events of the arrest, Dr. Balkansky had not yet had an opportunity to review Mr. Scala’s pre-arrest medical records but rather took into consideration Mr. Scala’s account of his medical history.

[193] Dr. Balkansky completed a functional capability assessment of Mr. Scala and determined that he has significant limitations in attending to daily activities. He found that Mr. Scala is unable to attend to his own household maintenance tasks, shopping and clothes cleaning, and can only attend to his own transfers and care with severe difficulty. Dr. Balkansky made these determinations based both on his observations of Mr. Scala and his testing. He provided an opinion, he said with 100% certainty, that these limitations are permanent. Dr. Balkansky stated that Mr. Scala would have had mobility limitations independent of the injury sustained in the arrest, but not to the extent that these limitations are currently present.

[194] Dr. Balkansky was permitted to give expert evidence on the cost of future chiropractic treatment to Mr. Scala, but was not allowed to give evidence on the cost of future care by others. Dr. Balkansky testified that Mr. Scala requires ongoing chiropractic management of his condition and provided estimates for the cost of the chiropractic treatments and continued evaluation.

(d) Analysis of the Expert Opinion Evidence

[195] In assessing Dr. Balkansky’s opinion evidence, I am guided by the statement by the Ontario Court of Appeal in Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584 at para. 66, that my gatekeeping function in relation to the admissibility of expert opinion evidence is ongoing and continues throughout the trial. In R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481 at para. 31, the Court of Appeal stated that: “a ruling in favour of the admission of expert evidence does not discharge the trial judge’s obligation to protect against the misuse of such evidence”. I maintain a residual discretion to exclude prejudicial evidence if prejudice manifests after admitting the evidence at the threshold admissibility stage.

[196] I accept Dr. Balkansky’s evidence of his chiropractic testing and chiropractic assessment of Mr. Scala’s current conditions, and his views concerning the further chiropractic treatment that might assist him. I reject, however, Dr. Balkansky’s diagnosis of post-traumatic arthritis and his opinions on the issue of causation or, as he termed it, correlation between the injury sustained by Mr. Scala in his arrest and his current conditions. I will explain these findings.

[197] I reject Dr. Balkansky’s opinion evidence on his diagnosis of post-traumatic arthritis for two reasons. First, Dr. Balkansky exceeded his qualifications in offering this opinion. Dr. Balkansky admitted in cross-examination that a diagnosis of post-traumatic arthritis is made by a rheumatologist. Similarly, he agreed that degenerative joint disease and degenerative arthritis are diagnosed by an orthopedic surgeon. He does not have these qualifications. Second, Dr. Balkansky came to this diagnosis without the benefit of the testing that he stated would assist in making such determinations. Dr. Balkansky testified that trauma can cause the release of biomarkers. He explained in cross-examination that biomarkers are qualitative or quantitative measurements that can convey information regarding the disease state of a patient and that they are detectable by a serum assay. Dr. Balkansky did not refer Mr. Scala for any bloodwork, stating that this was outside of his expertise. Additionally, Dr. Balkansky testified that he recommended that Mr. Scala have an MRI and a CT Scan to assist in formulating a diagnosis, but then came to a diagnosis without these tests having been undertaken.

[198] I reject Dr. Balkansky’s opinion evidence on the issue of causation for four reasons. First, when Dr. Balkansky formed his view on causation in March 2018, he had not yet seen any medical records pertaining to Mr. Scala’s pre-arrest medical condition. He had not, at that time, seen the pre-arrest medical records of Dr. Lu, Dr. Vincent, Dr. Chepesiuk, Dr. Stoll or Dr. Pardis. Rather, he received and reviewed the medical records of these five medical caregivers the weekend before he gave his evidence at trial. He did not have an opportunity to discuss with Mr. Scala the detail contained in his pre-arrest medical records before he offered his opinion at trial that he was “100% certain” that Mr. Scala’s current medical issues are directly correlated to the injuries sustained in the arrest. These medical records show that certain of the injuries that Dr. Balkansky saw in March 2018, being restriction in left leg movement and resultant pain and an issue at his L5 S1 nerve root, were present in 2005.

[199] Second, Dr. Balkansky’s opinion that Mr. Scala’s current medical issues were related to the injuries sustained in the arrest is based on his presumption that all of the injuries depicted in the Photographs were caused by the arrest. I have determined that the Right Thigh Bruising and the Right Calf Bruising were caused by the arrest, but not the Right Knee Wound or the Right Shin Wound.

[200] Third, Mr. Scala did not complain to Dr. Balkansky regarding his right leg: which is the part of the body that I found was injured in the arrest. Mr. Scala told Dr. Balkansky that he had pain in his back and left leg, which Dr. Balkansky connected to a back injury that I did not find to be caused by the arrest.

[201] Last, Dr. Balkansky is not a forensic pathologist. He is not qualified to give opinion evidence of the cause or ongoing impact of a right leg injury that occurred ten years before his assessment of Mr. Scala in the circumstances presented to him.

[202] My ongoing assessment of Dr. Balkansky’s independence in providing expert opinion evidence also raised concerns. Dr. Balkansky was tendered by the Plaintiff as a litigation expert, whose duty is to “provide opinion evidence that is fair, objective and non-partisan and within the expert’s area of expertise”: White Burgess, at para. 10; Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721 at para. 35; Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321. However, during the course of his cross-examination, Dr. Balkansky admitted that after he assessed Mr. Scala in March 2018 in his capacity as a litigation expert, he became Mr. Scala’s treating chiropractor and admitted that his duty in this capacity was to his patient. This placed in issue the independence of Dr. Balkansky’s evidence, which I do not have to decide given that I have decided to disregard his opinion evidence on other grounds.

E. Analysis – Damage Claim

[203] I have determined that Mr. Scala sustained the Right Thigh Bruising and the Right Calf Bruising in the arrest. The Plaintiff has not proven any long-term consequences resulting from this bruising. The medical evidence produced by the Plaintiff in this trial does not show that Mr. Scala sought treatment for the right leg injury after the months after his release from jail, and does not establish any connection between the right leg injury and any of the myriad medical issues that Mr. Scala continues to have, most of which pre-date the arrest. In particular, the Plaintiff did not call any medical evidence to establish any connection between the events of the arrest and Mr. Scala’s treatment for depression and anxiety.

[204] Had I found the Defendants liable, the Right Thigh Bruising and the Right Calf Bruising caused by the arrest would give rise to a claim for general damages for pain and suffering. The Plaintiff did not make any submission concerning the monetary valuation of a claim for general damages for pain and suffering for an injury of this nature. The only evidence of the duration of the right leg bruising was Dr. Pardis’ note of July 25, 2008 that the wounds were “improving” and that his trauma was “resolving”, and Dr. Lu’s note of August 14, 2008 that Mr. Scala had leg pain deriving from the arrest. The Plaintiff did not call any of his treating medical practitioners to testify, apart from Dr. Balkansky. The medical records do not show any continued complaint by Mr. Scala of the right leg bruising beyond a matter of months from the arrest. As a result, the Plaintiff has not established, on a balance of probabilities, that the right leg bruising remained unresolved for more than a few months from the arrest.

[205] Taking into consideration Mr. Scala’s age and health issues, and the limitations that would have resulting from the right leg bruising, which I find to have been present for less than a year from the arrest without long-term contribution to his current conditions, I value the general damage claim arising from the Right Thigh Bruising and Right Calf Bruising at $15,000.

[206] In terms of pecuniary damages, Mr. Scala was not working at the time of the arrest, or in the years preceding the arrest. As such, he had no claim for loss of income. The only evidence tendered by Mr. Scala in relation to future care costs was the evidence provided by Dr. Balkansky of ongoing expenses that would be payable for ongoing chiropractic care. Based on my findings, should Mr. Scala require any such ongoing chiropractic treatments, examinations, procedures or assistive equipment, they are for conditions that are not connected to the events of the arrest.

[207] I find that the damages that I would have awarded to Mr. Scala had I determined that the Police Defendants were liable would have been the sum of $15,000, plus pre-judgment and post-judgment interest in accordance with the Courts of Justice Act.

VII. CONCLUSIONS

[208] I conclude, on a balance of probabilities, that the force used in the arrest of Mr. Scala was necessary, in that it was objectively reasonable and was not excessive in the context of the circumstances presented to the police officers. The Police Defendants have thereby proven that their conduct in the arrest of Mr. Scala on July 10, 2008 was justified. The acts of negligence alleged are not proven. I find that the requirements of s. 25(1) of the Criminal Code are established, and protect the Police Defendants from the civil liability alleged by the Plaintiff in regard to the arrest. As a result, this action is dismissed.

[209] Had I determined that Mr. Scala had established liability against the Defendants, I would have awarded Mr. Scala damages for the bruising that he sustained to his right leg, which is the only injury that he established as having been caused by the police conduct. I would have awarded the Plaintiff general damages for pain and suffering, which I assess in the amount of $15,000. The Plaintiff did not establish any other damages.

VIII. DISPOSITION

[210] This action is dismissed.

IX. COSTS

[211] I encourage the parties to discuss and agree on the issue of costs.

[212] If the parties are not able to agree on the issue of costs by April 30, 2019, the Defendants may serve on the Plaintiffs and deliver to me no later than May 15, 2019, written submissions on costs of no more than 4 pages in length, plus their cost outline, any offer to settle and authorities relied on. The Plaintiffs shall then serve on the Defendants and deliver to me, within 15 days of receipt of the Defendants’ cost submissions or by May 30, 2019, whichever is earlier, their written submissions of a similar length on the issue of costs.

[213] If neither party delivers written costs submissions by May 30, 2019, I will deem the issue of costs to have been settled.

Sanfilippo J.

Released: April 8, 2019