COURT FILE NO.: CV-08-00359918

DATE: 20190415

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.F., L.F. and M.F.

Plaintiffs

– and –

P.C. ADAM EDGAR (7820), P.C. HASIUK (9424), P.C. ROBERT TOBIN (3919) and TORONTO POLICE SERVICES BOARD

Defendants

Ernest J. Guiste, for the Plaintiffs

Robin Squires and Samantha Bonanno, for the Defendants

HEARD: In writing

M. D. FAIETA J.

REASONS FOR DECISION

INTRODUCTION

[1] The plaintiff, K.F., alleges that he was wrongfully held in custody for six months for a robbery committed by his twin brother. The plaintiff, as well as his parents, seek damages from the defendants.

[2] At a pre-trial conference held on February 11, 2019, the plaintiffs indicated that it would seek the following procedural orders at trial: (1) an order requiring the defendant Toronto Police Services Board to answer written interrogatories delivered in 2013; (2) an order requiring one or more of the defendants to provide further and better answers to questions posed as written interrogatories; (3) an order requiring production of all documents required to be produced by Justice Otter’s order dated August 1, 2013 and in particular those doucments outlined in Schedule “B” of the defendants’ Affidavit of Documents. I directed that plaintiffs’ motion be made in writing to me.

[3] The plaintiffs’ Notice of Motion, dated February 25, 2019, states that the defendant Board has refused to provide relevant records and information relating to the criminal charges involving the plaintiff K.F. contrary to: (1) Rule 30 of the Rules of Civil Procedure; and (2) the production orders of The Honourable Justice R.J. Otter dated March 16, 2011 and August 1, 2013 made pursuant to the Youth Criminal Justice Act, S.C. 2002, c.1 (“YCJA”).

[4] Accordingly, the plaintiffs seek an order that requires the defendant Board serve a further and better Affidavit of Documents and comply with the production orders of The Honourable Justice R.J. Otter dated March 16, 2011 and August 1, 2013.

[5] For reasons described below, I order that the defendants deliver a further and better affidavit within 30 days.

ISSUE #1: SHOULD THE DEFENDANT TORONTO POLICE SERVICE BOARD BE REQUIRED TO DELIVER A FURTHER AND BETTER AFFIDAVIT OF DOCUMENTS?

[6] The defendants delivered an unsworn Affidavit of Documents on September 6, 2013 and an Affidavit of Documents on February 14, 2019 sworn by Elaine Wong, a Civil Litigation Coordinator for the Toronto Police Service.

[7] Schedule “B” of the Affidavit of Documents sostates that the Board objects to producing the following documetns on the grounds of privilege:

• Solicitor-Client Privilege: “Documents containing or reflecting confidential professional communications between the Service and the Service’s legal advisors directly relating to, seeking or receiving legal advice or legal assistance”;

• Without Prejudice Communications Privilege: “Documents containing or reflecting communications of a without prejudice nature concerning the matters in issue in this litigation”;

• Litigation Privilege: “Documents comprised of notes, memoranda and confidential correspondence and copies thereof, prepared for the purposes of obtaining or providing advice concerning this litigation, or obtaining or providing information and evidence to be used in this litigation and in preparing for and prosecuting this litigation”;

• Public Interest Protection: Pursuant to D.P. v. Wagg (Ontario Court of Appeal, May 18, 2004), the Service is obligated to object to producing the contents of a portion of the Crown Disclosure Brief as the Attorney General of Ontario has not consented to the production of these documents. INCLUDING:

o TAB 1 – Various Dates – Confidential Crown Brief Envelopes – Privilege (d)

o TAB 2 – February 2, 2007 – Complainant’s statement DVD #TPSD1444 – Privilege (d)

o TAB 3 – February 2, 2007 – 5 – I/CAD Event details Report (Event #B9802) – Privilege (d)

o TAB 4 – February 2, 2007 – 5 – I/CAD Event Details Report (Event #B9802) – Privilege (d)

o TAB 5 – February 4, 2007 – Application for Court Documents – Privilege (d)

o TAB 6 – February 4, 2017 – Crown brief checklist – Privilege (d)

o TAB 7 – February 15, 2017 – Crown brief checklist – Privilege (d)

[8] Prior to delivering its submissions, the defendants corrected their description of a document identified at Tab 2 in Schedule “B” of the Affidavit of Documents and produced a redacted copy of a photo-line-up report, related to the complainant’s selection of a suspect whose face he saw commit the robbery.

[9] The plaintiffs make the following submissions:

• The Affidavit of Documents does not comply with the requirements of Rule 30.03(1), (2) and (3) of the Rule of Civil Procedure in that it fails to list and describe the documents in Schedule B; and

• D.P. v. Wagg does not apply as: (1) the the consent of the Attorney General of Ontario is not required given that the Attorney General was a participant in the applications granted under the Youth Criminal Justice Act; (2) the Youth Court has paramount jurisdiction over Youth Criminal Justice records.

[10] Rule 30.02 of the Rules of Civil Procedure requires that an affidavit of documents “… shall shall list and describe, in separate schedules, all documents relevant to any matter in issue in the action …”. The Affidavit of Documents delivered by the Defendants fails to provide the requisite particulars. Adopting the views expressed by the Ontario Divisional Court in Davies v. American Home Assurance Co. (2002), 2002 62442 (ON SCDC), 60 O.R. (3d) 512, at para. 18, I order that the Defendants deliver a further and better affidavit of documents within 30 days “… in which the documents respecting which privilege is claimed are individually listed and the grounds for the privilege articulated and particularized …”. Also see Brown v. Hill, [2003] O.J. No. 829.

[11] However, I reject the plaintiffs’ submission that Wagg is inapplicable. First, no such application was made by the plaintiffs. Second, the purported Wagg application (which was really an application under the YCJA) was not made to the Ontario Superior Court of Justice, nor was there a screening process undertaken undertaken by the Ontario Superior Court of Justice.

ISSUE #2: HAVE THE DEFENDANTS COMPLIED WITH THE PRODUCTION ORDERS?

[12] Under s. 123(1)(a) of the YCJA, a youth justice court judge may, on application, order that the applicant be given access to all or part of a record kept by a court, a police force or a government in Canada relating to an offence committed by a young person if such access is, amongst other things, necessary in the interest of the proper administration of justice.

[13] On March 16, 2011, The Honourable Justice R.J. Otter ordered, pursuant to s. 123(1)(a) of the YCJA, that the parties in this action:

• are granted access to all records and information contained in the records relating to criminal charges and involving a young person (“K.F.”) within the meaning of the Youth Criminal Justice Act for the purpose of this civil action; and

• may use the records, including their disclosure and production pursuant to the Rules of Civil Procedure, in this action.

[14] On August 1, 2013, The Honourable Justice R.J. Otter granted the same order described above however with reference to the charges against M.F., who is the twin brother of the plaintiff K.F.. The Court order that the parties in this action with the exception ordered that the parties in this action:

• are granted access to all records and information contained in the records relating to criminal charges and involving a young person (“M.F.”) within the meaning of the Youth Criminal Justice Act for the purpose of this civil action; and

• may use the records, including their disclosure and production pursuant to the Rules of Civil Procedure, in this civil action.

[15] The defendants submit that they have complied with their disclosure obligations as they produced all records received pursuant to the Orders described above other than documents protected by privilege. Whether that is the case may be more easily determined once a further and better affidavit of documents is delivered.

Mr. Justice M. D. Faieta

Released: April 15, 2019

COURT FILE NO.: CV-08-00359918

DATE: 20190415

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.F., L.F. and M.F.

Plaintiffs

– and –

P.C. ADAM EDGAR (7820), P.C. HASIUK (9424), P.C. ROBERT TOBIN (3919) and TORONTO POLICE SERVICES BOARD

Defendants

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: April 15, 2019