Bernatchez v. Barrie Police Services Board et al.

[Indexed as: Bernatchez v. Barrie Police Services Board]

Ontario Reports

Ontario Superior Court of Justice

Christie J.

August 1, 2019

146 O.R. (3d) 742 | 2019 ONSC 4607

Case Summary

Civil procedure — Discovery — Production from non-parties — Police attended an altercation involving the plaintiff — Plaintiff claimed that officer used force on him, resulting in investigation by Special Investigations Unit — Investigation resulted in no charges against the officer — Plaintiff commenced personal injury action against the officer and police services board — Defendants moved for production of documents resulting from SIU investigation — Fairness demanded production in light of the importance of the information to the issue of whether the officer used reasonable force — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.10(1).

Police — Confidentiality of information — Police attended an altercation involving the plaintiff — Plaintiff claimed that officer used force on him, resulting in investigation by Special Investigations Unit — Investigation resulted in no charges against the officer — Plaintiff commenced personal injury action against the officer and police services board — Defendants moved for production of documents [page743] resulting from SIU investigation — Fairness demanded production in light of the importance of the information to the issue of whether the officer used reasonable force — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.10(1).

The plaintiff was part of an altercation that resulted in involvement by the police. The plaintiff claimed that one of the officers present used force on him and caused him personal injury. The Special Investigations Unit ("SIU") became involved, interviewing ten civilian witnesses and collecting 75 documents. The SIU investigation concluded with no criminal charges against the officer. In the plaintiff's personal injury action against the officer and the police services board, the defendants moved for production of eight items from the SIU interviews of four civilian witnesses. Two of the witnesses could not be located and the other two refused consent to production.

Held, the motion should be allowed.

One of the liability issues to be determined at trial was whether the force used by the officer was reasonable. It appeared that the witnesses observed the plaintiff's behaviour before his interaction with the officer, so the documents being sought were highly relevant and important. Knowing the evidence of the witnesses at the early stage rather than waiting until trial would help the parties assess the strengths and weaknesses of the case and possibly encourage resolution. Discovery of the parties was not an adequate substitute for production as it was clear that the parties had very different memories of what occurred. Although production was an extraordinary remedy, in light of the importance of the information to the litigation, it would have been unfair to require the moving parties to proceed to trial without having discovery of the documents sought.

Cases referred to

Boucher (Litigation guardian of) v. Charles, [2013] O.J. No. 3583, 2013 ONSC 3120; D.P. v. Wagg (2004), 71 O.R. (3d) 229, [2004] O.J. No. 2053, 239 D.L.R. (4th) 501, 187 O.A.C. 26, 184 C.C.C. (3d) 321, 46 C.P.C. (5th) 13, 120 C.R.R. (2d) 52, 130 A.C.W.S. (3d) 1098, 2004 CanLII 39048; Dorr v. Hamilton Police Services Board (May 11, 2016), Hamilton CV-15-52098 (Ont. S.C.J.); Marshall v. Gladders Estate, [2014] O.J. No. 4387, 2014 ONSC 2821, 66 M.V.R. (6th) 294, 244 A.C.W.S. (3d) 806, 68 C.P.C. (7th) 380; McGillivary v. Toronto Police Services Board (2014), 119 O.R. (3d) 201, 2014 ONSC 865; N.G. v. Upper Canada College, [2004] O.J. No 1011; Ontario (Attorney General) v. Stavro, (1995), 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39, [1995] O.J. No. 3136, 129 D.L.R. (4th) 52, 86 O.A.C. 43, 44 C.P.C. (3d) 91, 58 A.C.W.S. (3d) 564 (C.A.); Tetefsky v. General Motors Corp., [2010] O.J. No. 1117, 2010 ONSC 1675, 186 A.C.W.S. (3d) 658 (S.C.J.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.10, (1)

MOTION for non-party production of documents.

Aliza Karoly, for plaintiff.

Nadia Marotta, for defendants.

Andrew Jin, for non-party respondent, Special Investigations Unit. [page744]

CHRISTIE J.: —

Issue[MJ(1]

1The moving defendants, Barrie Police Services Board and Sergeant Douglas Henderson, have brought a motion for non-party production pursuant to rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194[CN2]. Specifically, the moving defendants seek production of eight items from the Special Investigations Unit ("SIU"), concerning four civilian witnesses, including audio recordings of the interviews with the SIU, typed summaries of the interviews prepared by investigators, SIU investigators' notes of the interviews and the SIU follow-up report that summarizes these and other witnesses.

2Initially, the request for production included many more documents, however, prior to the motion being heard, many documents were produced on consent.

Background Facts[MJ(3]

3This motion is brought in the context of a personal injury action, which arises out of events that occurred on August 14, 2016. The plaintiff was the patron of the Escrow Restolounge, a business establishment in Barrie. There was purportedly an altercation between the plaintiff and another male at the establishment. The police attended. Sergeant Douglas Henderson was one of the police officers present. It is alleged that Sergeant Henderson used force on the plaintiff. The primary issue in the litigation is whether Sergeant Henderson used reasonable force and whether in fact his use of force caused injuries to the plaintiff.

4There were numerous civilians who were present and who had the opportunity to witness the events. The Barrie Police Service did not lay any charges when they attended the scene and did not take any statements.

5Due to the suggested use of force and injuries allegedly caused by Sgt. Henderson, the SIU became involved. They collected 75 documents and interviewed ten civilian witnesses, including the plaintiff. All of the witnesses were interviewed by the SIU on or before November 1, 2016.

6The SIU investigation concluded with no criminal charges being laid against Sgt. Henderson.

7The plaintiff commenced a civil action against the Barrie Police Services Board and Sgt. Douglas Henderson. [page745]

Position of the Parties[MJ(4]

8The moving party submits that the two main issues to be determined in deciding liability in this action will be whether the use of force was reasonable and whether the use of force caused the injuries to the plaintiff. The witnesses present at the time, who were interviewed within a few months of the event, have relevant information to provide and it would be unfair for the defendants to proceed to trial without having the documents being sought.

9The responding party, the SIU, submits that there would be no unfairness, as the disputed records are not important to the underlying personal injury action, the moving party has access to informational equivalents and the public interest militates against the production. Due to the internal policy of the SIU, there can be no production without consent. In the case of the four civilian witnesses at issue in this production motion, two were unable to be located and the other two refused consent.

10While the plaintiff did not participate in this motion, he expressed his consent to the production sought by the moving parties.

Legal Analysis[MJ(5]

11Rule 30.10(1)[CN6] provides as follows:

30.10(1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that, [CN7]

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.[CN8]

12Production from non-parties has been determined by the court to be an exceptional remedy. In Ontario (Attorney General) v. Stavro (1995), 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39, [1995] O.J. No. 3136 (C.A.), at para. 13[MJ(9], the court stated:

. . . Unless production from and discovery of non-parties is subject to firm controls and recognized as the exception rather than the rule, the discovery process . . . will just grow and grow. [MJ(10]

See, also, Marshall [MJ(11]v. Gladders Estate, [2014] O.J. No. 4387, 2014 ONSC 2821 (S.C.J.), at para. 32[MJ(12].

13The courts have confirmed that the public interest is a relevant factor to consider in deciding whether to order production. See N.G. v. Upper Canada College, [2004] O.J. No. [MJ(13]1011 (Div. Ct.), at paras. 11, 14; Boucher (Litigation guardian of) v. Charles, [2013] O.J. No. 3583, 2013 ONSC 3120 (Master), at para. 27; D.P. v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229, [2004] O.J. No. 2053 (C.A.), at para. 17. [page746]

14The non-party respondent, the SIU, concedes that the material being sought for production is relevant to a material issue in the action. The issue to be determined by this court in granting the relief sought by the moving party, therefore, is that of fairness.

15In Stavro, the court provided a list of factors to be considered by the motion judge in these circumstances, which included the following:

(1) the importance of the documents to the litigation;

(2) whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the appellant;

(3) whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendants;

(4) the position of the non-parties with respect to production;

(5) the availability of the documents or their informational equivalent from some other source which is accessible to the moving parties;

(6) the relationship of the non-parties from whom the production is sought, to the litigation and the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true "stranger" to the litigation. [CN14]

16In Tetefsky v. General Motors Corp., [2010] O.J. No. 1117, 2010 ONSC 1675 (S.C.J.), Perell J. considered the application of rule 30.10 in the context of a request for production of proprietary information. The court stated [at para. 41]:

The case law associated with rule 30.10 establishes that the disclosure and production of a document from a non-party is a matter of fairness and necessity. The court determines whether it would be unfair to require the moving party to proceed to trial without a document in the possession of a non-party. Although production can be ordered from a non-party, it is not routinely sought and the threshold for granting it is high . . . An order under rule 30.10 should not be made as a matter of course and should only be made in exceptional circumstances[.]

17It is the view of this court that the concept of fairness in a motion for production such as this should be looked at in a broad sense. The consideration is whether it would be "unfair to require the moving party to proceed to trial" without the production. [page747] Proceeding to trial would logically include the decision to proceed to trial or to resolve the matter.

18With respect to the importance of the documents, those documents being requested relate to four witnesses who are unrelated to this litigation. The interviews were not contemporaneous with the events, but were taken within one to two months of the events. Nearly three years have now passed. The information can provide important context leading up to the use of force, in order to determine whether that force was reasonable. The information can also assist in understanding whether the injuries to the plaintiff were caused by Sgt. Henderson or were as a result of the altercation with the other male. These statements made to the SIU would seem to be the best evidence these witnesses will be able to provide. With respect to two of the witnesses, attempts have been made to locate them without success. Therefore, the statements made to the SIU are the only evidence of what they observed. With respect to the other two witnesses, in 2017, an investigator located and interviewed them and the report from the investigator notes as follows:

Roz Blackwell - . . . She states that she does not wish to provide any information at this time as she is afraid that she will contradict the statement she gave to "the SIU" back in the fall. She states that will be the most accurate description of what transpired that night.

Roland Brooks - . . . He confirms he provided a statement to SIU back in the fall and states that will be his best recollection of the incident[CN15].

19One of the liability issues to be determined in this action will be whether the force was reasonable, which will require an assessment of the facts leading to the use of force, and the conduct of the plaintiff will be relevant. In the report of the SIU dated March 27, 2017, on p. 2, there is reference to unnamed civilian witnesses who saw these events. According to para. 36 of the responding party's factum, "Director Loparco's letter of March 27, 2017 summarizes the evidence of the witnesses to the incident, including the evidence of the non-consenting witnesses, although they are not identified." It would appear from the summary that the civilians saw the plaintiff's behaviour prior to his interaction with Sgt. Henderson. Clearly, the documents being sought are highly relevant and important in this litigation.

20Production at this earlier stage of the process as opposed to production at trial is necessary to avoid unfairness to the defendants. Knowing the evidence of the witnesses at this early stage will help the parties assess the strengths and weaknesses of the case and may encourage resolution. The responding party suggests that the report of the SIU provides enough information to make this assessment without providing the further documents. [page748] The report of the SIU is not the first-hand account from the witness, but rather a summary of what was said. Clearly the actual words of the witness would provide the best evidence.

21Discovery of the parties with respect to the issues will not be an adequate substitute for production. It is clear from the pleadings that the parties have very different memories of what occurred. An eyewitness account from a non-party to this litigation, is crucial to determine what occurred.

22The court must consider whether the informational equivalent of what is contained in the documents sought is available from some other source which is accessible to the moving parties. The Barrie police did not interview these witnesses, as no charges were laid on the night in question. The SIU report provides a summary of the statements made by various witnesses, but does not, in some instances, indicate the person who made the statement. The responding party suggests that the moving party seek leave to examine the parties or subpoena them to the trial. Clearly this is not possible for two of the witnesses as their whereabouts is currently unknown. Further, production of these documents is certainly less intrusive in the circumstances. Even if production is made, of course, there may still be a need for examination. However, production allows the parties to fully assess their respective cases prior to getting to this point, which should be encouraged.

23The responding party submits that the moving party already has the information that they seek through production that has been made. In Dorr v. Hamilton Police Services Board (May 11, 2016), Hamilton CV-15-52098 (Ont. S.C.J.), the court was dealing with a situation where a large volume of records had already been produced, however more was being sought. The court stated[MJ(16]:

. . . But one has to be mindful that the issue is not quantity but quality, and based on the record that is before the court, it appears that the two individuals that the 30.10 motion is being brought against would have quality information that will be of assistance to the parties. [MJ(17]

24This court has considered the confidentiality assurance given to the witnesses by the SIU investigators. At the time of the investigation, all civilian witnesses were provided the confidentiality assurance in the following terms:

I am an investigator with the SIU. The SIU is a civilian law enforcement agency, which independently investigates the circumstances of serious injuries, which includes sexual assault allegations, or deaths involving the police. We are not investigating you. We are investigating the conduct of the police. Anything you tell us will be kept confidential by the SIU, unless you consent to its release or unless we have to release it by operation of law. The only other times your information would be released is if you give me information about an offence that is still happening or one that is yet to happen or if you attempt to deceive me. Do you understand what I have just told you?[CN18] [page749]

25Clearly, by virtue of the wording, this is not an absolute assurance. The phrase "release it by operation of law" would include an order of this court after a cnsideration of the appropriate legal principles. See Dorr v. Hamilton Police Services Board (May 11, 2016), Hamilton CV-15-52098 (Ont. S.C.J.), at p. 5. [MJ(19]

26Further, the responding party has not provided any evidence to support their suggestion that production of these documents will lead to difficulties for the SIU in future securing the co-operation of witnesses, or that it would undermine the ability of the SIU to effectively discharge its duty. See McGillivary v. Toronto Police Services Board (2014), 119 O.R. (3d) 201, 2014 ONSC 865 (Master), at paras. 32-34.

27In all of the circumstances, this court is satisfied that the conditions in rule 30.10(1) have been met. While this court acknowledges that production is an extraordinary remedy, and one that must take into account the public interest, it is the view of this court that it would be unfair to require the moving party to proceed to trial without having discovery of the documents sought, given the importance of this information to the litigation at issue. The motion is granted and the documents are to be produced.

28If there is no agreement as to costs on this motion, the parties are permitted to make written submissions as to costs. Such submissions must be received by the court by August 9, 2019. If no submissions are received, no costs are ordered.