Court File and Parties

COURT FILE NO.: 14-60327 DATE: 2019/07/05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Marion Andrzejewski Plaintiff – and – Ottawa Police Services Board et al Defendants

COUNSEL: Lawrence Greenspon and Tina Hill, for the Plaintiff Jeremy Wright, for the Defendants

HEARD: June 13, 2019 at Ottawa

SUMMARY JUDGMENT

R. SMITH J.

Overview

[1] The Defendants (hereinafter collectively referred to as the “Ottawa Police” or the “Police”) have brought a motion for summary judgement seeking the dismissal of the plaintiff Mr. Andrzejewski’s claim against all defendants.

[2] The plaintiff, is a 74 year old Polish speaking man with limited ability to speak English. He called 911 to report that he had been beaten during an invasion of his home. The police attended in response to his call.

[3] When the police officers arrived, they met two of the individuals involved in the invasion of the plaintiff’s home in the lobby of the plaintiff’s apartment building. Female 1 and Male 1 were together when they gave their version of events to the first officer to arrive on the scene. Then they told the officer that the plaintiff had sexually assaulted and confined Female 1 in his apartment. Male 1 stated that he and another male had kicked in the plaintiff’s door to rescue his mother, who was Female 1. Female 1 and Male 1 lived across the street from the plaintiff and Female 1 and the plaintiff knew each other.

[4] Female 1 had a lengthy history of prior contacts with the police of over 70 prior contacts including suspicion of drug use around her property, conflict and dispute with neighbours, mental health complaints and possible connections to prostitution. In one incident, Female 1 threatened another individual with “outing” their sexual relationship if he didn’t give her what she wanted. Female 1 also had a prior criminal record which included crimes of dishonesty such as fraud and forgery.

[5] As a result of Female 1’s complaint, officer Groulx arrested the plaintiff and officer Blais charged him with sexual assault and forcible confinement of Female 1.

[6] The plaintiff was denied bail on the secondary ground because he was unable to provide a surety and remained in jail for over 70 days. Early in the investigation through their Records Managements System (RMS), Detective Blais and Sgt. Groulx both became aware of Female 1’s extensive prior contacts with police. The background information of Female I’s extensive prior contacts with police and her criminal record were not disclosed to the Crown handling the bail hearing.

Analysis

[7] The Police submit that the police officers had reasonable and probable grounds to arrest and charge the plaintiff based on the information they had at the time and as a result, there is no merit to the plaintiff’s claim of negligent investigation. The Police rely on the legal principles applicable to the tort of negligent investigation as summarized in paragraph 60 of Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497.

[8] The plaintiff’s expert witness, Mr. Rosiak, agreed during cross examination that the police officers had reasonable and probable grounds to arrest and charge the plaintiff based on the information they had gathered at that time. However, in his expert report he gives his expert opinion that the police officers were negligent in the manner that the conducted their investigation after the charges were laid.

[9] The police submit that because of Mr. Rosiak’s admission that the police initially has reasonable and probable grounds to arrest and charge the plaintiff, that there is no dispute between expert witnesses and therefore this case is suitable to be decided on a summary motion.

[10] The plaintiff argues that the expert witnesses have expressed opposite conclusions in their reports. The plaintiff’s expert states that the Detective Blais was negligent in the manner in which she and her case manager conducted their investigation and that they fell below the standard of a reasonable police officer for a number of reasons set out in his report.

[11] The Police expert stated in his written report that in his opinion, the investigating officers were not negligent in how they conducted their investigation. The plaintiffs intend to challenge the police’s expert witnesses’ qualification as an expert.

[12] In Hyrniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87 at paragraph 66, the Supreme Court outlined the approach to be taken to a summary judgment motion. Justice Kanacasminis stated as follows:

On a motion of summary judgement under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring trial, she should determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[13] At paragraph 49-50, Hyrniak, the Supreme Court sets out the approach to decide if there is a genuine issue requiring a trial and stated as follows:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[14] In Cuming v. Toronto, 2019 ONSC 1720, Morgan J. refused to grant a summary judgment where the issues of causation and the standard of care were contentious as between experts. At paragraph 21 of his decision he stated “In the circumstances, the competing expert reports and the irreconcilably conflicting views of the experts on the key issues of causation and standard of care, lead me to conclude that there are a number of important and genuine issues requiring a trial. “

[15] In the case before me, the two experts have expressed opposite opinions on whether the investigating officers met the required standard in their investigation. It is not possible to make the necessary findings of fact or to assess the credibility to determine which expert is more persuasive after being subject to cross-examination, to decide if the officers met the required standard in carrying out or failing to carry out their investigation when considered with all of the other evidence.

[16] I agree with the Defendant’s submission that the admission by the plaintiff’s expert that the officers had reasonable grounds to arrest and charge the accused may dispose of his claims for false arrest, false imprisonment, malicious prosecution as well as his claim for damages under Sections 8 and 9 of the Charter. However, the existence of initial reasonable and probable grounds to arrest and charge the plaintiff does not determine whether the Police were negligent in the manner in which they conducted their initial and ongoing duty to investigate or whether the police officers met the required standard by failing to adequately continue the investigation in these unusual circumstances.

[17] In addition, a trial date has already been set for the spring of 2020, (approximately nine (9) months from now) and there would be limited benefit or saving of time, expense or court resources by deciding some of the issues in this motion and leaving the balance to be determined at trial.

Disposition

[18] I find that a trial is required to decide whether the police officers met the required standard of care in the manner in which they conducted the investigation and to assess the conflicting evidence of the expert witnesses. The Defendant’s motion for summary judgment is dismissed for the above reasons.

Costs

[19] The Defendants are ordered to pay costs to the plaintiff in the amount of $25,000 plus HST plus disbursements of $2,913 inclusive of HST. I have not awarded costs for the Plaintiff’s expert fees and they may be claimed if the plaintiffs are successful.

Mr. Justice R. Smith Released: 2019-07-05