Sagos v. Canada (Attorney General), 2019 ONSC 5661

Court File and Parties

COURT FILE NO.: 16-68597

DATE: 2019/10/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Peter Sagos, Plaintiff

AND

Attorney General of Canada and Ottawa Police Services Board, Defendants

BEFORE: Justice R. Ryan Bell

COUNSEL: Ian McLean, for the Plaintiff Kevin Palframan, for the Defendant Attorney General of Canada Mary Simms, for the Defendant Ottawa Police Services Board

HEARD: September 25, 2019

ENDORSEMENT

Overview

1In 2009, the plaintiff, Peter Sagos, was charged with various crimes in Bermuda. He was detained in custody for a number of months before he “enter[ed] a plea” and left Bermuda. Mr. Sagos claims that after he returned to Ottawa, the Royal Canadian Mounted Police engaged in continuing surveillance of him. He also alleges that electronic devices have been placed in his car and other places by Ottawa Police Services (“OPS”) and/or the RCMP and that “[t]his ongoing campaign of intimidation and harassment continues to the present date.” Mr. Sagos claims against the Attorney General of Canada (“Canada”) and OPS for negligent investigation, ongoing harassment, intentional infliction of mental suffering, and breaches of his ss. 7, 8 and 9 rights under the Canadian Charter of Rights and Freedoms.

2Canada and OPS move for summary judgment dismissing the action. For its part, Canada submits that Mr. Sagos has provided only inferences, speculation and bald allegations in support of his claim, and that in any event, what has been provided does not support any of the causes of action pleaded. OPS’ position is that there is no genuine issue requiring a trial because the evidence before the court is that OPS did not place any electronic devices in Mr. Sagos’ car or elsewhere.

3Mr. Sagos’ position is that the authenticity of certain “uncomplimentary” emails, alleged to have originated from him, and upon which the RCMP and OPS acted, is a genuine issue requiring a trial. Mr. Sagos contends that Canada and OPS have not put their best foot forward and the only way for him to be assured a fair, just and reasonable resolution of the matters raised in his claim is a full trial.

4For the following reasons, the motions for summary judgment are granted and Mr. Sagos’ action is dismissed.

Summary Judgment

5Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” A judge hearing a motion for summary judgment has the power to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence (Rule 20.04(2.1)).

6There 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: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 4 and 49).

7As summarized by Corbett J. in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200,¹ at para. 33, on a motion for summary judgment, the court should undertake the following analysis:

(i) assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

(ii) on the basis of this record, decide whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

(iii) if the court cannot grant judgment on the motion, the court should (a) decide those issues that can be decided in accordance with the principles described in (ii); (b) identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues; and (c) in the absence of compelling reasons to the contrary, seize itself of the further steps required to bring the matter to a conclusion.

8A defendant moving for summary judgment bears the burden of persuading the court, with supporting affidavit material or other evidence, that no genuine issue requiring a trial exists. The defendant is not entitled to rely merely on the allegations in the statement of defence; the defendant, as moving party, is required to put its best evidentiary foot forward (Sanzone v. Schecter, 2016 ONCA 566, 402 D.L.R. (4th) 135 (Ont. C.A.), at para. 24). Only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the plaintiff responding party to prove that its claim has a real chance of success (Sanzone, at para. 30). The responding party, too, is required to put its best evidentiary foot forward (Rule 20.02(2) and Cuthbert v. TD Canada Trust, 2010 ONSC 830, at para. 12).

The Allegations in the Claim and the Evidence on the Motions

9Mr. Sagos commenced his action against Canada on May 16, 2016. On the same date, Mr. Sagos commenced an action against his Canadian counsel in connection with the criminal charges in Bermuda. Two months later, Mr. Sagos commenced proceedings against the Attorney General of Bermuda and others associated with the criminal proceedings in Bermuda. The latter two claims were dismissed by Beaudoin J. pursuant to Rule 2.1 of the Rules of Civil Procedure.

10In November 2017, Mr. Sagos moved to deliver and file a fresh as amended statement of claim and to add OPS as a defendant. Tranmer J. granted Mr. Sagos leave to deliver and file the proposed amended claim subject to certain portions being deleted for various reasons (Sagos v. Canada (Attorney General), 2017 ONSC 7201). In particular, Tranmer J. did not allow paragraph 17 of the proposed amended claim on the basis that it “is statute barred against the Ottawa Police Services Board as a plain reading of it attributes the conduct on the part of the Ottawa Police Service to have occurred on May 7, 2015” (Sagos, at para. 18).

11In his fresh as amended statement of claim, Mr. Sagos alleges that on his return to Ottawa in August 2010, “[f]or reasons unknown to the plaintiff,” the RCMP began a process of surveillance of the plaintiff which has continued to present time [sic]” (para. 9). The RCMP has never advised Mr. Sagos that he would be charged with any offence (para. 11). Mr. Sagos alleges that over the period 2010 to 2014, various informants attempted to establish a relationship with him; he alleges that these informants were associated with the RCMP (paras. 12-16).

12Mr. Sagos asserts in his claim that on May 7, 2015 and again on May 26, 2016, representative units of the RCMP parked vehicles “without reason” in front of his house. Mr. Sagos contends that these were attempts by the RCMP to intimidate him (para. 18).

13Paragraph 19 of the fresh as amended claim sets out Mr. Sagos’ claim against OPS:

The plaintiff states that from a date unknown to the plaintiff to the present, electronic devices have been placed in his home, car, computing devises [sic] and Smartphone by the Ottawa Police Service or by the Royal Canadian Mounted Police. This ongoing campaign of intimidation and harassment continues to the present date.

14I agree with counsel for OPS that the only material facts pleaded by Mr. Sagos against OPS are contained in paragraph 19 of the fresh as amended statement of claim.

15In support of its motion, Canada relies on the affidavit of Ed Yoshiyama, a sergeant with the RCMP. In late April 2015, when he was the RCMP liaison officer responsible for several American states, as well as Bermuda, Sergeant Yoshiyama received an inquiry regarding Mr. Sagos. The Bermuda Police Service requested that the RCMP locate Mr. Sagos and interview him in relation to threatening and offensive emails Mr. Sagos was alleged to have sent to Ms. Shade Subair. Sergeant Yoshiyama was informed that Ms. Subair had acted as Mr. Sagos’ defence lawyer in relation to a drug matter in Bermuda.

16In May 2015, Sergeant Yoshiyama was advised that the request from the Bermudian authorities fell under the jurisdiction of OPS. Accordingly, Sergeant Yoshiyama contacted OPS for assistance and forwarded the documents provided to him by the Bermudian authorities. At that point, Sergeant Yoshiyama closed his file.

17Based on his review of the RCMP database, Sergeant Yoshiyama’s evidence is that his conversation with the Bermuda Police Service in late April 2015 was the first communication the RCMP had with the Bermuda Police Service regarding Mr. Sagos since his return to Canada in August 2010. The RCMP’s only involvement with Mr. Sagos following the closure of their file in May 2015 was in relation to an incident in June 2018. Mr. Sagos is not currently under investigation by the RCMP.

18OPS relies on the affidavit of Staff Sergeant Isabelle Lemieux, a member of OPS assigned to Intelligence and Covert Operations. All electronic surveillance conducted by OPS is conducted through Intelligence and Covert Operations. The evidence of Staff Sergeant Lemieux, based on her review of internal files and consultations with other OPS members assigned to the department, is that there is no record of Mr. Sagos being the subject of electronic surveillance conducted by OPS.

19Mr. Sagos filed an affidavit in response to the motions. I make the following observations about Mr. Sagos’ affidavit. First, it purports to add to the allegations of material facts pleaded against the defendants. This is improper. It is the pleading, not an affidavit, that contains the material facts upon which a party relies in support of his or her claim (Rule 25.06(1)). For example, in his affidavit, Mr. Sagos now asserts that on May 6 and 7, 2015, representatives of Bermuda threatened him with new charges and that “this became assigned to an Ottawa Police case number” and that he was contacted by members of OPS at his residence. However, Tranmer J. concluded that allegations regarding the conduct of OPS said to have occurred on May 7, 2015 are statute-barred. Mr. Sagos cannot resurrect through the back door of an affidavit filed in response to a summary judgment motion that which he is precluded from raising in the claim as a result of a prior judicial finding.

20Second, in his affidavit, Mr. Sagos names certain individuals whom he believes are or were informants. There is no evidence that any of these individuals is a police informant. No evidence has been provided upon which the court could infer that any of these individuals worked for the RCMP.

21Third, the statement made by Mr. Sagos in his affidavit that after he complained to the Privacy Commissioner of Canada about his treatment by the RCMP, his complaint was determined to be “well founded” is misleading. The complaint to which the “well founded” comment refers is the RCMP’s failure to respond to a request for access to personal information within the statutory time limits of the Privacy Act.

22Fourth, Mr. Sagos’ statements in his affidavit that he is of the “knowledge, information and belief” that electronic devices have been placed in his vehicle and other places are nothing more than allegations and speculation. There is no evidentiary foundation provided. There is no evidence to link these alleged electronic devices to either the RCMP or OPS.

23Sergeant Yoshiyama and Staff Sergeant Lemieux were cross-examined on their affidavits. Mr. Sagos was not. Counsel for Mr. Sagos asserts that because Mr. Sagos was not cross-examined, the statements contained in his affidavit stand “uncontradicted.” I disagree. On the central issues – whether OPS conducted electronic surveillance of Mr. Sagos, and whether the RCMP had dealings in relation to Mr. Sagos beyond April-May 2015 – the statements in Mr. Sagos’ affidavit are directly contracted by the evidence of Sergeant Yoshiyama and Staff Sergeant Lemieux.

24Counsel for Mr. Sagos maintains there were a number of improper objections made during Staff Sergeant Lemieux’s cross-examination. In my view, the objections made by counsel during the cross-examination were not improper; in any event, Mr. Sagos did not bring a motion to compel answers to the questions he maintains were refused improperly.

Analysis

The claims against Canada

25Canada’s evidence is that Mr. Sagos is not under investigation by the RCMP. The RCMP has not investigated Mr. Sagos or had him under surveillance since he returned from Bermuda in August 2010. The file in relation to the Bermudian authorities’ inquiry was closed in May 2015.

26Mr. Sagos has responded to this evidence with allegations and speculation. What he has not provided is any evidence that the individuals named were police informants or that they were in any way associated with the RCMP.

27In his affidavit, Mr. Sagos describes problems with the satellite radio in his car in 2013, and a “burst of signal” problem and “clicking sounds” that interfered with the use of his cellular phone from 2011 to 2016. Mr. Sagos describes these as “badly referenced instances of electronic devices” placed in his vehicle and other places. Mr. Sagos tendered no expert evidence to support his assertion that electronic devices could have the effects he describes. He did not find a transponder or a GPS unit in or under his vehicle. Mr. Sagos himself is not certain whether “the source of the problems” was a “Canadian Police Agency” or an “international partner.” These statements are nothing more than allegations and suspicions; they are not evidence.

28Mr. Sagos is required to put his best evidentiary foot forward in response to the defendants’ motions for summary judgment. He has not done so. Based on the evidence on the motion, I find that the only involvement the RCMP had with Mr. Sagos was in response to a request for assistance from the Bermudian authorities.

29Mr. Sagos’ claims against Canada have no chance of success. I will deal with each of the claims in turn.

(i) Negligent Investigation

30To succeed on a claim for negligent investigation, the plaintiff must establish that: (i) the proceedings were initiated by the defendant; (ii) the proceedings were terminated in favour of the plaintiff; (iii) there was an absence of reasonable and probable cause to commence or continue with the prosecution; and (iv) the “pains and penalties” imposed on the plaintiff were imposed wrongfully (Solomonvici v. Toronto Police Services Board, 2009 CanLII 39060 (ON SC), at para. 9, and Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, at para. 92). In order to establish liability, a plaintiff must establish that the defendant breached the standard of care required of a reasonable police officer in similar circumstances (Brown v. Ministry of the Attorney General/Ontario, 2015 ONSC 5766, at para. 23).

31It is not appropriate to assess the actions and omissions of the police by a standard of perfection, nor are their decisions to be assessed on the basis of hindsight. The question is whether their conduct met the standard of care of a reasonable police officer in similar circumstances, giving due recognition to the discretion inherent in police investigations (Hill, at para. 73).

32I find on the evidence that the RCMP did not engage in an investigation of Mr. Sagos. A response to a police to police request for assistance from a foreign authority, without more, does not constitute an investigation. The RCMP forwarded the Bermudian authorities’ request to OPS. Mr. Sagos was not arrested. He was not charged. No proceedings were initiated.

33As no proceedings were initiated, it cannot be said that the proceedings were terminated in Mr. Sagos’ favour.

34The third element is an absence of reasonable and probable cause to commence or continue with the prosecution. The general rule is that the content of the standard of care of a professional, including a police officer, will require expert evidence. There are exceptions to the general rule. In particular, expert evidence will not be required where it is obvious that the professional’s conduct falls short of the standard of care, even without knowing the precise parameters of that standard of care (J.H. v. Windsor Police Services Board, 2017 ONSC 6507, at para. 6).

35There was no prosecution of Mr. Sagos. However, counsel for Mr. Sagos submits that there is a genuine issue requiring a trial as to the authentication or lack thereof of the emails alleged to have originated from Mr. Sagos and that prompted the “investigation.” I reject this submission. Mr. Sagos led no expert evidence on the standard of care of a police officer in these circumstances. Based on the evidence in the record, I find this is not a case that would fall within the exception to the general rule requiring expert evidence. In any event, I find that Mr. Sagos was not investigated by the RCMP.

36Finally, the RCMP did not impose any “pains or penalties” of any sort on Mr. Sagos.

37There is no genuine issue requiring a trial on the claim of negligent investigation as against Canada.

(ii) Harassment

38In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the Court of Appeal addressed whether a common law tort of harassment exists. The Court of Appeal concluded on this issue, at para. 53:

[i]n summary, while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that Merrifield has presented no compelling reason to recognize a new tort of harassment in this case.

39This is not a case that provides a compelling reason to recognize the tort of harassment. This claim cannot succeed.

(iii) Intentional Infliction of Mental Suffering

40The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove: (i) the defendant’s conduct was flagrant and outrageous; (ii) the defendant’s conduct was calculated to harm the plaintiff; and (iii) the defendant’s conduct caused the plaintiff to suffer a visible and provable illness (Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, at para. 41).

41There is no genuine issue requiring a trial with regard to this claim. The RCMP received information from the Bermudian police agency that Mr. Sagos was suspected to have engaged in behaviour possibly warranting criminal charges of harassment in Bermuda. The RCMP passed the information on to OPS. This is not flagrant and outrageous behaviour. Mr. Sagos’ claims that he saw an RCMP cruiser parked outside of his home do not amount to evidence of flagrant and outrageous behaviour on the part of the RCMP, particularly as there is no evidence that a cruiser was parked there because of Mr. Sagos. There is no evidence that the RCMP acted in a manner calculated to harm Mr. Sagos. There is no evidence that Mr. Sagos has suffered a visible and provable illness.

(iv) The Charter Claims

42While Mr. Sagos alleges in his claim that his ss. 7, 8 and 9 Charter rights were breached, at the hearing of the motions, his counsel stated that he was relying principally on s. 7 of the Charter. In order for s. 8 to apply, there must first have been a search or seizure. There is no evidence of either. Section 9 protects against arbitrary detention or imprisonment. There is no evidence that Mr. Sagos was detained or imprisoned by the RCMP.

43Nor is there a genuine issue requiring a trial with respect to Mr. Sagos’ section 7 Charter rights. There is no evidence that Mr. Sagos’ life or liberty has been infringed by the RCMP. There is no evidence that Mr. Sagos’ security of the person has been in any way compromised by the RCMP. Mr. Sagos was not subjected to threats or physical punishment by the RCMP and there is no evidence that the RCMP caused him psychological harm.

The claims against OPS

44I am also of the view that no genuine issue requiring a trial has been raised with respect to Mr. Sagos’ claims against OPS. Those claims are based solely on the allegations of electronic surveillance. There is nothing in the evidence that establishes that any electronic devices were placed in Mr. Sagos’ car, home, computing devices or phone, and nothing to establish a connection to OPS. There is no record of Mr. Sagos being the subject of electronic surveillance conducted by OPS. I find, based on this evidence, that he was not.

45With respect to Mr. Sagos’ s. 7 Charter claim, Mr. Sagos asserts in his affidavit that in December 2016, OPS came to his house, entered it without permission, and arrested him. These facts are not pleaded in the fresh as amended statement of claim. They are therefore of no relevance to my determination whether there is a genuine issue requiring a trial with respect to a claim in the action.

Disposition

46In my view, this is exactly the type of case that summary judgment is designed to address so that the parties are not put to the time and expense of a full blown trial. This case can be fairly and justly adjudicated on its merits, consistent with the goals of timeliness, affordability and proportionality.

47I find there are no genuine issues requiring a trial with respect to any of the claims in the action. Summary judgment is granted to the defendants and the action is dismissed with costs.

48If the parties are unable to agree on costs of the motion and the action, they may make written submissions limited to a maximum of three pages. The defendants shall deliver their costs submissions by October 16, 2019. Mr. Sagos shall deliver his responding costs submissions by October 31, 2019. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as amongst themselves.

Footnotes

1. 1Affirmed, 2014 ONCA 878. See also Mayers v. Khan, 2017 ONSC 200, affirmed 2017 ONCA 524, at para. 19.