COURT FILE NO.: CV-15-54597

DATE: 17092019

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Paul Manning and Sabina Karolina Manning, Plaintiffs

AND:

Hamilton Police Services Board, Her Majesty the Queen in Right of Ontario, and Chief Glenn DeCaire, Defendants

BEFORE: Master P. Tamara Sugunasiri

COUNSEL: Phillips, O., Counsel for the Plaintiffs/Moving Parties Chisholm, S., Counsel for the Hamilton Police Services Board and Chief Glenn Decaire

HEARD: September 17, 2019

CorRECTED Endorsement

Overview:

[1] When a failure to comply with the Rules of Civil Procedure and court orders becomes so acute that it begins to bring the administration of justice into disrepute, it is appropriate for the Court to take what may be otherwise be draconian steps to maintain respect for our adversarial process. As the Chief Justice of Ontario recently said in the opening of the courts, the public’s confidence in our legal system and the rule of law strengthens our democracy. The rules of civil procedure are found within a regulation made pursuant to the Courts of Justice Act. They give order and predictability to the litigation process. For them to be meaningful, they must have teeth. In appropriate cases, the importance of enforcing these rules trump our preference to have cases heard on their merits. This is one such case.

[2] The Hamilton Police Services Board and Chief Glenn DeCaire (“HPSB Defendants”) have lost their right to continue defending this action. They may however bring a motion to a judge within 30 days to reinstate their defence with the proper record including at the very least, an explanation of the various delays, a proposed timetable and an explanation as to why there will be no prejudice to the parties or to trial fairness since they have now purged some relevant documents.

Background:

[3] Mr. Manning seeks damages against the HPSB Defendants for negligence, false arrest and detention, misfeasance in public office and breach of his Charter rights. Mr. Manning was an undercover police officer. He alleges that fellow police officers blew his cover, failed to protect him during an attack in March of 2006, and falsely arrested him and detained his wife once Chief DeCaire became aware of his intention to sue.

[4] The Mannings commenced their action on September 28, 2015. Since that time, they have had difficulty moving the action along through no fault of their own. They are still at the documentary production stage having had to take the unusual step of cross-examining the HPSB Defendants on their late Affidavit of Documents. The Mannings are now waiting for the HPSB Defendants to answer all of their undertakings given at that cross-examination. Those answers are late and continue to be incomplete despite the examination having taken place on May 8, 2019. At that time, counsel for the HPSB Defendants acknowledged that documents were missing from their sworn Affidavit.

Issues:

[5] Where a party fails to answer an undertaking within 60 days of having given it, a court may strike out the party’s defence or make any such other order as is just (Rules 31.07(1)(c), 34.15(b)(d)). The court also has jurisdiction to govern its own process pursuant to r. 2.01.

[6] I decide two issues in this motion to strike the HPSB Defendants’ defence:

a. Is HPSB’s conduct so egregious as to deprive them from continuing with their defence?

b. Are the Plaintiffs entitled to full indemnity costs?

Analysis:

a. Is the HPSB Defendants’ conduct so egregious as to deprive them from continuing with their defence?

[7] The HPSB Defendants’ conduct is sufficiently egregious to strike their defence. In so concluding, I apply the following key legal principals:[^1]

a. Obedience to court orders and court process is central to our justice system;

b. A failure to enforce the Rules can undermine the capacity of our justice system to process disputes fairly and efficiently;

c. Procedural rules are the “servants of justice” and there must be flexibility to allow for unexpected and unusual contingencies that prevent compliance;

d. Parties have an obligation to provide full disclosure of relevant information. Consistent and egregious failure to do so may cause non-compensable prejudice to the other party such that trial fairness is compromised;

e. Striking a defence is a remedy of last resort and should not be done for relatively minor forms of misconduct.

[8] Based on the record before me, the HPSB Defendants have been given more than enough indulgences to move this matter along. Some of the history of the action speaks for itself:

The Plaintiffs issued and served the Statement of Claim on or about October 22, 2015;

The HPSB Defendants were noted in default in January of 2016;

The HPSB Defendants had the noting in default set aside but did not defend until December of 2016;

The HPSB Defendants amended their defence on September 13, 2017;

Despite repeated requests, it was not until January 19, 2018 that HPSB Defendants served a draft Affidavit of Documents;

The HPSB Defendants consented to an order compelling them to deliver a sworn Affidavit of Documents no later than November 30, 2018;

Justice Milanetti ordered the HPSB Defendants to deliver their sworn Affidavit of Documents by November 30, 2018;

The HPSB Defendants served an unsworn Affidavit of Documents on November 30, 2018;

The Plaintiffs required the sworn Affidavit of Documents because as a result of his experience as a police officer, Mr. Manning believed there to be missing documents;

The Plaintiffs brought a contempt motion returnable February 14, 2019 for failing to comply with Milanetti, J’s order;

On the eve of that motion the HPSB Defendants delivered the sworn affidavit;

Justice Skarica ordered that the Plaintiffs could cross-examine a representative of the HPSB Defendants on their sworn Affidavit of Documents and that their defence would be struck if they did not comply. Justice Skarica also ordered the HPSB Defendants to pay costs of $20,000 and cautioned them that further delays without good reason would not be tolerated.

[9] Despite Justice Skarica’s caution, the HPSB Defendants continue along the same path. They have failed to answer undertakings in accordance with the rules having already acknowledged that documents were missing from their sworn Affidavit of Documents. They have failed to provide any responding materials for this motion. Counsel for the HPSB Defendants stated that he was away when he was served with the Notice of Motion and then the motion materials. However, Plaintiffs’ counsel had been in contact prior to that to try and address the outstanding undertakings. After July 11, 2019, the Plaintiffs were met with radio silence.

[10] This continued failure to respect the process, the rules, and opposing counsel’s time and efforts is unacceptable and rises to the level of bringing the administration of justice into disrepute. I also note from the record that at this point there may be non-compensable prejudice to the Plaintiffs and trial fairness because some of the relevant documents have been lost through HPSB’s retention and destruction policy.

[11] Keeping in line with Justice Skarica’s comments, the appropriate way forward is to strike the HPSB Defendants’ defence. If they wish to reinstate it, they may move before a judge within 30 days of my order, on notice to the Plaintiffs. At the very least their record should explain the delays and the failure to comply with Justice Milanetti’s order, propose a viable and expeditious timetable, and explain why there is no prejudice to the Plaintiffs or trial fairness as a result of their purging of relevant documents.

b. Are the Plaintiffs entitled to full indemnity costs?

[12] The Plaintiffs seek $16,000 in full indemnity costs for the time spent on the cross-examination and $26,000 in full indemnity costs for the within motion. The Plaintiffs have not provided any jurisprudence to support this claim. The HPSB Defendants suggest that costs be determined at trial and that the quanta in any event are too high.

[13] Section 131 of the Courts of Justice Act and Rule 57.01 gives the Court broad discretion in awarding costs. I agree that the HPSB Defendants should pay costs for both the cross-examination and the within motion. I do not agree that they should be on a full indemnity scale.

Costs of the Cross-examination

[14] While it is the Plaintiffs who sought leave to conduct this cross-examination, it was clearly needed to compel the HPSB Defendants to meet their obligations to disclose all relevant documents. Given the circumstances of this case, its history, and the conduct of these defendants, they shall pay to the Plaintiffs substantial indemnity costs of $13,600 inclusive within 30 days of today’s date.

Costs of this Motion

[15] The Plaintiffs provided a two-volume motion record, a factum and book of authorities. The volume of materials was warranted given the serious remedy sought and ordered. Given the HPSB Defendants’ past and present conduct culminating in this motion, they shall pay to the Plaintiffs substantial indemnity costs of $25,862.16 inclusive of HST and disbursements within 30 days of today’s date.

Disposition:

[16] For the foregoing reasons, I grant the Plaintiffs’ motion and strike the defence of the Hamilton Police Services Board and Chief Glenn Decaire. They may move before a judge to reinstate their defence within 30 days of today’s date. They shall pay total costs to the Plaintiffs of $39,462.16 within 30 days of today’s date. I have signed the order and it is ready for pick up.

Original signed

Master Sugunasiri

Date: September 17, 2019

[^1]: Son v Khan, 2018 ONSC 284 at paras. 75-86.