Court File and Parties
Court File No.: 2627/18 Date: 2019-09-19 Superior Court of Justice - Ontario
Re: Melissa Facciolo, on her own behalf and as Estate Trustee of the Estate of Samuel Maurice Maloney, Plaintiffs And: London Police Services Board Chief of Police John Pare and Officers John and/or Jane Doe, Defendants
Before: Justice A. K. Mitchell
Counsel: R. Case, for the Plaintiffs A. Shaw, for the Defendants
Heard: July 12, 2019
Endorsement
Overview
[1] The plaintiff, Melissa Facciolo, brings two motions before the court:
(a) a motion seeking to amend the style of cause and the statement of claim to add the two minor children of Ms. Facciolo and her spouse, Samuel Maloney, naming the children as parties to the litigation by way of anonymous initials and naming Ms. Facciolo as the children’s litigation guardian; and
(b) a motion seeking to strike a portion of the first sentence of paragraph 20, the third sentence of paragraph 22, and paragraphs 23 through 27 of the statement of defence.
[2] The defendants take no position with respect to adding the two minor children as plaintiffs, naming the children by their initials and the proposed amendments to the statement of claim. However, the defendants are opposed to Ms. Facciolo acting as the children’s litigation guardian. The defendants oppose striking any portion of their statement of defence.
[3] The media were served with notice of the motion to amend with respect to the issue of having the minor children named anonymously. No members of the media attended on the return of the motion or communicated to the court a position on the motion.
Background
[4] In the early morning hours of December 23, 2016, London Police Services (“LPS”) officers executed a search warrant of the plaintiffs’ residence. The LPS officers proceeded by way of “dynamic entry” – breaking down the outer and inner doors to the plaintiffs’ residence. Mr. Maloney, Ms. Facciolo and their two children were inside the residence.
[5] While executing the search warrant of the residence, LPS officers fatally shot Mr. Maloney.
[6] Ms. Facciolo brings this action seeking damages in excess of $17 million, including punitive and aggravated damages, arising from the defendants’ alleged negligence in their execution of the search warrant and damages arising in assault and battery.
Appointing Ms. Facciolo as the Children’s Litigation Guardian
Position of the Plaintiffs
[7] Ms. Facciolo seeks to be appointed litigation guardian for her two minor children who are four and three years of age, as she is their sole provider, has day-to-day care of the children and makes all decisions related to their care, education and health.
Position of the Defendants
[8] The defendants oppose the appointment of Ms. Facciolo as litigation guardian for her two minor children claiming she has an interest in the proceeding adverse to the interests of her children which makes her unsuitable for the role.
Analysis
[9] Pursuant to r. 7.02(2) of the Rules of Civil Procedure no person shall act as a litigation guardian for a minor plaintiff until that person has filed an affidavit in which the person attests to the information required by paragraphs (a) through (h) of r. 7.02(2). Ms. Facciolo has filed such an affidavit and at paragraph 6 states that she has no interest in the proceeding adverse to that of her two minor children.
[10] For reasons which were not explained to me during argument, Ms. Facciolo did not name her minor children as plaintiffs (and herself their litigation guardian) at the time the statement of claim was issued. Rather, at paragraph 12 of the statement of claim she pleads:
Ms. Facciolo intends to act as her as (sic) minor children’s litigation guardian and bring a motion to permit her minor children to proceed anonymously as plaintiffs in this action.
[11] The defendants submit that it is their intention to amend their defence in response to the plaintiffs’ proposed amended statement of claim to counterclaim against Ms. Facciolo. The defendants argue that by doing so Ms. Facciolo’s interests will be brought into direct conflict with those of her minor children.
[12] The defendants rely on the decisions in Barbe-Langevin (Litigation Guardian of) v. Brasseur[^1] and Murray v. Children’s Centre Thunderbay[^2] to support their position. In Barbe-Langevin, the minor plaintiff was seriously injured in a snowmobile accident. Her older brother was driving, and she was a passenger. She was not wearing a helmet. The defendants brought a cross-claim against the minor plaintiff’s mother alleging she caused or contributed to her child’s injuries. During examination for discovery, the mother admitted she was present on the property at the time of the incident and she acknowledged she participated in the decision not to have her daughter wear a helmet. The court found that, in the circumstances, the minor plaintiff’s mother had an interest in minimizing the damages of her daughter and therefore was adverse in interest to the interests of her daughter in the litigation.
[13] In Murray the plaintiff under a disability claimed against the defendant for negligent mistreatment of his psychiatric disorders over a period of 5 years. The defendant brought a third party claim against the plaintiff’s parents alleging they were negligent in the care of their son, they refused care for him as recommended by the defendant and they failed to keep the defendant aware of their son’s condition. The court found that as third parties, the parents were not appropriate persons to act as the plaintiff’s litigation guardians as they held a legal interest in the proceeding adverse to that of the plaintiff.
[14] I have reviewed the statement of defence. I note it does not respond to paragraph 12 of the statement of claim nor does it contain a cross-claim against Ms. Facciolo. The statement of defence contains a single paragraph containing the bald allegation:
“The defendants state that the injuries described in the Statement of Claim were caused or contributed to by the plaintiffs’ actions”.
No further particulars of the conduct of Ms. Facciolo which the defendants believe caused or contributed to the plaintiffs’ injuries have been provided whether in the statement of defence or in response to this motion.
[15] The plaintiffs’ claims, as pleaded, relate almost exclusively to the manner in which the LPS executed on the search warrant and in particular its decision to use dynamic entry. Some evidence suggesting Ms. Facciolo’s conduct informed those decisions, is needed.
[16] Furthermore, the defendants did not include in the materials filed on this motion a draft proposed Amended Statement of Defence and Counterclaim. Particulars of Mr. Maloney’s conduct have been pleaded. However, I am left to speculate as to particulars of Ms. Facciolo’s conduct which might support a cross-claim and place her interests in conflict with those of her minor children. At best, the defendants’ opposition to the relief is premature. The mere possibility of a conflict of interest is not enough.
[17] I find Ms. Facciolo is an appropriate person to act as the minor children’s litigation guardian in these proceedings.
Motion to Strike Portions of the Statement of Defence
Position of the Plaintiffs
[18] The plaintiffs submit that the offending paragraphs contained in the statement of defence are not necessary for nor do they form a proper basis for any defence and argue they are improper, prejudicial, and scandalous and should be struck.
Position of the Defendants
[19] The defendants submit that the plaintiffs’ claims bring the entire LPS investigation of Mr. Maloney into question and argue that their version of the events leading up to, during and following the execution of the search warrant are all relevant and material to this action and properly form part of their pleading.
Analysis
[20] The offending paragraphs (or portions) of the statement of defence are set forth below and underlined:
The Defendants state that prior to firing the crossbow Maloney had contacted a lawyer and discussed with this lawyer matters concerning the LPS entering the house and stating they had a warrant…
The Defendants state that Maloney did not respond to the requests made by the LPS officers. Instead, Maloney armed himself with a hatchet. A firearm was also later found in a location available to Maloney...
The Defendants state that Facciolo was removed from 56 Duchess Ave. and a search of the Property was conducted wherein the computers believed to be involved in the offences referred to in paragraphs 10 and 11 of the Statement of Defence, and other weapons and ammunition were found to be located within 56 Duchess Ave.
LPS forensic computer examiners did not locate evidence that would connect Facciolo to the offences identified in paragraph 10 and 11 of the statement of defence. The Defendants state that Maloney had taken extensive measures to protect access to such data in the computers seized.
The Defendants state that on December 23, 2016, Facciolo was subject to two orders prohibiting her from possessing a weapon, including ammunition. On June 20, 2008, Facciolo was placed on a s. 109 prohibition order for a period of ten years, and on August 29, 2008, Facciolo was placed on a s. 110 prohibition order again for a period of 10 years.
The Defendants state that on December 23, 2016, Facciolo was arrested by the LPS and subsequently charged with a number of criminal offences, including possession of a weapon and ammunition while prohibited contrary to s. 117.01(1) of the Criminal Code.
The Defendants state that Facciolo was ultimately found guilty of possessing a prohibited weapon contrary to s. 92(2) of the Criminal Code.
[21] Only the material facts on which the defendant relies are to be pleaded. Evidence is not to be pleaded.[^3]
[22] The leading authority is Quizno’s Canada Restaurant Corp. v. Kileel Developments Ltd.[^4] In Quizno’s the court held:
A court may strike out portions of a pleading, even where the allegations are relevant, if the applicant can establish that they are of marginal probative value and their probative value is outweighed by their prejudicial effect. Before doing so, a judge must balance the rights of the parties on the particular facts of the case and must consider carefully the extent to which the particulars attacked are necessary to enable the defendant to prove its case and their probative value in establishing that case: see Clement v. McGuinty (2001), 18 C.P.C. (5th) 267 (Ont. C.A.) at paras. 21-24; Asper v. Lantos (2000), 51 O.R. (3d) 215 (Ont. Div. Ct.), at paras. 18-20; Lee v. Globe & Mail (The) (2001), 52 O.R. (3d) 652 (Ont. S.C.J.) at paras. 11 and 14. Where the allegations in question are relevant and material, however, the court should exercise this power with considerable caution, in my view.
[23] The defendants submit that the totality of their investigation is in issue in this action and not merely the execution of the search warrant, thereby making facts arising prior to, during and post-execution of the search warrant relevant. The allegations in the statement of defence relate only to an investigation of Mr. Maloney (see paragraphs 8, 9 and 10 of the statement of defence), not Ms. Facciolo. As a general finding, I agree with the defendants’ position but only in so far as the material facts pleaded relate to Mr. Maloney.
Paragraph 20 (Portion of 1st sentence)
[24] Paragraph 20 pleads the contents of a discussion Mr. Maloney had with his lawyer before firing his cross-bow. This is evidence in support of a material fact and is not appropriate. In addition, in their reply the plaintiffs have pleaded that privilege has not been waived. Based on the authority in Manning v. Epp[^5], this paragraph should be struck with no right to amend. The defendants may seek a ruling at trial that this evidence be admitted. For purposes of this motion; however, this evidence should not appear in the statement of defence.
Paragraph 22 (third sentence), Paragraphs 23 and 24
[25] The LPS believed that evidence would be found in Mr. Maloney’s residence related to the offences of mischief to computer data and fraudulently obtaining computer services. The LPS swore an Information to Obtain in support its application for a search warrant of the plaintiffs’ residence. Having been successful on the application, I am able to draw an inference that evidence sufficient to support the application was filed. Discovery has not taken place. Having regard to the principle enunciated in Quizno’s, this is not an appropriate stage in the litigation to limit the scope of the pleadings. Rather, for purposes of this motion, the focus is limited to assessing whether any portion of the offending paragraphs should be struck on the basis it is irrelevant to the defence as pleaded; it is of limited probative value having regard to its prejudicial effect and/or is scandalous.
[26] I find the third sentence of paragraph 22 and paragraphs 23 and 24 contain information relevant to the LPS investigation of Mr. Maloney. Despite being discovered after Mr. Maloney’s fatal shooting, the facts pleaded in these paragraphs relate directly to the information presented to and relied upon by the justice issuing the warrant to search Mr. Maloney’s residence.
Paragraph 25
[27] From a plain reading of paragraph 25, the suggestion appears to be that the defendants were justified in executing the search warrant using dynamic entry based on their perceived risk that Ms. Facciolo posed as a result of her historical weapons prohibition orders. However, the connection between these facts as pleaded and the investigation into Mr. Maloney’s conduct and the information relied on in support of the application for a search warrant, is not made out in the statement of defence. In fact, the statement of defence is silent on whether the defendants were aware of the outstanding weapons prohibition orders relating to Ms. Facciolo prior to execution of the search warrant or whether they learned of these orders after the incident.
[28] Paragraph 25 is struck subject to the defendants’ right to amend the statement of defence to properly plead their knowledge of these prohibition orders and their reliance on these prohibition orders to support their application for a warrant relating to the plaintiff’s residence if in fact that was the case. Otherwise, if the defendants acquired this information after Mr. Maloney’s fatal shooting, such information is not relevant to the defence of these claims and, in those circumstances, the defendants have no right to amend.
Paragraphs 26 and 27
[29] Only Mr. Maloney was the subject of the LPS investigation on December 23, 2016. As has been pleaded, the search warrant related only to suspected criminal activity of Mr. Maloney. Therefore, events relating to Ms. Facciolo, including her arrest and charges, which occurred subsequent to Mr. Maloney being fatally shot, are irrelevant and entirely unrelated to the LPS investigation of Mr. Maloney resulting in the issuance of a warrant and its execution on December 23, 2016.
[30] Paragraphs 26 and 27 of the statement of defence are hereby struck with no right to amend.
Disposition
[31] For the foregoing reasons, the following Order shall issue:
(a) the Statement of Claim is hereby amended in the form attached as Schedule “A” to the Notice of Motion dated June 20, 2019;
(b) paragraphs 20, 26 and 27 of the statement of defence are hereby struck without leave to amend; and
(c) paragraph 25 of the statement of defence is hereby struck with a limited right to amend in accordance with paragraph [28] above.
Costs
[32] The plaintiffs had the greatest success on the motions and are, therefore, presumptively entitled to their costs. At the direction of the court, costs outlines were received from the parties. The plaintiffs seek their partial indemnity costs of the motion to amend in the inclusive amount of $3,190.10 dollars and the motion to strike in the inclusive amount of $5,876.11.
[33] By comparison, the defendants’ partial indemnity costs of the motion to amend were $3,158.98 and their costs of the motion to strike were $2,858.19.
[34] I find that the amount awarded for costs should be reduced to reflect the following:
(a) The plaintiffs’ motion to amend proceeded unopposed save and except for the issue of Ms. Facciolo acting as litigation guardian for the minor children;
(b) It was necessary to file the motion to amend in open court rather than by way of a motion in writing in light of the relief sought in the nature of a publication ban;
(c) The motion to amend was necessary regardless of the defendants’ position in response;
(d) Both motions were returnable and argued at the same time thereby reducing time and costs of travel;
(e) There was divided success on the motion to strike; and
(f) The issues on the motions were not complicated.
[35] I find that a fair and reasonable cost award in favour of the plaintiffs is $3,500 inclusive of fees, disbursements and HST.
“Justice A.K. Mitchell”
Justice A. K. Mitchell
Date: September 19, 2019
[^1]: 2013 ONSC 1689. [^2]: 2010 ONSC 845. [^3]: Rule 25.06(1) of the Rules of Civil Procedure. [^4]: 2008 ONCA 644. [^5]: 2007 ONCA 390 at para. 12.