COURT FILE NO.: 12-54273
DATE: October 16, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ZIAD CHEBIB
Plaintiff/Respondent
– and –
OTTAWA POLICE CONSTABLE MICHAEL DESHAW, OTTAWA POLICE CONSTABLE STEPHANIE ANDRASCIK, OTTAWA POLICE CONSTABLE POSSAMI AND OTTAWA POLICE SERVICES BOARD
Defendants/Moving parties
Self-represented
Jeremy Wright for the Defendants/Moving parties
HEARD: October 16, 2019
JUSTICE SALLY GOMERY
[1] On May 17, 2010, Ziad Chebib was arrested by Ottawa police constables while he was demonstrating on a downtown street. They handcuffed him, put him into a police cruiser, and placed him in a cell at the Ottawa police station. Mr. Chebib claims that, in doing so, the constables severely injured his head, neck, shoulders and hands. In 2012, he sued the constables and the Ottawa Police Services Board, claiming over $2 million in damages. He asserts that the constables used excessive force and breached his rights when they arrested him.
[2] The defendants now ask this court to dismiss Mr. Chebib’s lawsuit. In their summary judgment motion, they argue that he does not have critical evidence needed to prove his case. In particular, Mr. Chebib cannot establish that his alleged damages were caused by the constables’ actions on May 17, 2010.
[3] Mr. Chebib served a notice of cross-motion which largely replicates his response to the defendants’ motion. In it he also seeks declaratory relief and an order to reinstate evidence he says has been removed from the court record.
[4] At the hearing today, I learned that Mr. Chebib did not have a copy of the defendants’ factum and book of authorities, although the defendants attempted to deliver them by messenger and by mail. The defendants offered to provide Mr. Chebib with a copy of these materials in court again today. He refused to accept them, because he claims that the defendants and others have falsified documents in the past and tricked him into signing documents waiving his rights. He acknowledged that he received the envelope mailed to him by defence counsel in early October, but returned it because he did not want to admit service. In these circumstances, I find that the defendants complied with their obligation to serve their materials.
[5] Having reviewed the record, and heard submissions from Mr. Chebib and the defendants’ lawyer, I am granting the defendants’ motion, dismissing the plaintiff’s cross-motion, and dismissing the lawsuit.
[6] On a summary judgment motion like this, I must first consider whether it is appropriate to adjudicate the plaintiff’s claim without a full trial. This boils down to whether there is a genuine issue that can only be decided only by going to trial.
[7] A full trial is not required if, based on the evidence provided at the summary judgment motion, the court can resolve the dispute in a fair and just way, and if summary judgment is a timely, affordable and proportionate procedure.[^1] Ontario courts have, in the past, granted summary judgment or partial summary judgment in cases where an individual has sued for negligent prosecution, wrongful arrest or police misconduct.[^2] This is not to say that summary judgment will be appropriate in every such action, but simply that it may be available.
[8] Litigants must put their best foot forward in a summary judgment motion by providing the court with the best available evidence in support of their position. They are not entitled “to sit back and rely on possibility that more favorable facts may develop at trial”.[^3]
[9] Mr. Chebib has had ample time to mount his case. This lawsuit is based on events that occurred more than nine years ago. It was started seven years ago. Mr. Chebib has been represented by a series of lawyers. He was examined for discovery in 2015, 2017 and 2018. At these examinations, Mr. Chebib undertook to produce all relevant medical documents and opinions in his possession and control. The defendants’ motion for summary judgment, and a schedule of steps were set by the court on February 22, 2019.
[10] Although he has had a lengthy opportunity to do so, Mr. Chebib has not produced any medical records or opinions, or any other credible evidence, that establish, on a balance of probabilities, that his alleged physical injuries were caused by the defendant constables.
[11] There is moreover evidence on which a court could conclude that the injuries were not caused by the defendants’ actions.
[12] Based on the record of the hospital where Mr. Chebib was taken after his arrest on May 17, 2010, medical staff placed him in restraints for an hour due to his combative and aggressive behaviour. After the restraints were removed, he rested for seven hours with no complaints, except for a sore shoulder which Mr. Chebib apparently attributed to an old injury. During his examination for discovery, he admitted that he had an existing rotator cuff injury prior to May 2010.
[13] There are accordingly two other potential causes of some or all of Mr. Chebib’s alleged injuries: the restraints applied in the hospital and his pre-existing injury.
[14] The evidence furthermore undermines Mr. Chebib’s contention that he was seriously injured in any way on May 17, 2010. After his discharge from hospital on May 18, 2010, Mr. Chebib did not seek any medical attention for any alleged injury for three months. He admitted in discovery that he resumed his picketing activities, carrying two large signs and materials, two days after the incident. These actions are incompatible with the injuries alleged by Mr. Chebib.
[15] In a report dated June 30, 2010, Dr. Brad Booth, a psychiatrist, set out Mr. Chebib’s medical history. The report was based on assessments conducted on June 18 and 25, 2010, a few weeks after the arrest that gave rise to this lawsuit. Dr. Booth noted that Mr. Chebib reported shoulder problems since July 2009 and a previous wrist fracture, but that he “denied any head injuries”. This report is likewise incompatible with the plaintiff’s allegations of a serious injury, or any injury at all, in May 2010.
[16] Mr. Chebib has produced medical records showing that he has, over the past few years, told various physicians that his injuries are attributable to the defendants’ conduct. These records show only that Mr. Chebib believes he has injuries as a result of the events of May 17, 2010. They do not establish that the injuries were in fact caused by the defendants’ actions.
[17] A plaintiff seeking damages for personal injury may, in some circumstances, establish causation in the absence of a supporting expert report. Mr. Chebib has stated during discovery, and advised the court again today, that physicians have repeatedly told him that the defendants’ actions caused his injuries.
[18] Mr. Chebib was a combative, evasive and uncooperative witness during examinations for discovery. In court today, he advanced wild theories about how the government, the police, defence counsel and a lawyer he previously retained had plotted against him. I agree with the defendants that he is an unreliable narrator. I accordingly conclude that he could not, in the absence of corroborating evidence, establish that the defendants’ conduct caused his alleged injuries.
[19] Mr. Chebib contends that the defendants and others have tampered with the evidence, falsified records and engaged in various strategies to prevent him from obtaining justice. His arguments are incoherent, convoluted and do not bear serious scrutiny. They are not based on any credible evidence or any credible theory. He claimed that medical records have been removed from the record but is unable to explain what exactly was removed or why he was unable to put the records before the court.
[20] I am not without sympathy for Mr. Chebib, who apparently believes that he is the victim of a vast conspiracy. He has not however established that his inability to produce evidence in support of his claim is due to any malfeasance by the defendants, or that defence counsel or anyone else has engaged in any inappropriate conduct in this matter. Based on my review, defence counsel has treated Mr. Chebib courteously and patiently.
[21] The defendants’ summary judgment motion is granted. The plaintiff’s action and cross-motion are dismissed.
[22] I am granting the defendants $1000 in costs. This is a modest amount given the defendants’ actual costs in defending this action over the last seven years.
Justice Sally Gomery
Released: October 16, 2019
COURT FILE NO.: 12-54273
DATE: October 16, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ZIAD CHEBIB
Plaintiff/Respondent
– and –
OTTAWA POLICE CONSTABLE MICHAEL DESHAW, OTTAWA POLICE CONSTABLE STEPHANIE ANDRASCIK, OTTAWA POLICE CONSTABLE POSSAMI AND OTTAWA POLICE SERVICES BOARD
Defendants/Moving parties
REASONS FOR JUDGMENT
Madame Justice S. Gomery
Released: October 16, 2019
[^1]: Hryniak v. Mauldin, 2014 2014 SCC 7, at para. 66.
[^2]: Abboud v. Ottawa Police Services Board, 2016 ONSC 1052; Grann v. Thunder Bay (City) Police Services Board, 2015 ONSC 438; Obiorah v. Ottawa Police Services Board, 2019 ONSC 194; Farley v. Ottawa Police Services Board, 2016 ONSC 7817.
[^3]: Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 at para. 56, citing from the reasons of Justice Sharpe in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434.