Court File and Parties
COURT FILE NO.: CV-18-595090 DATE: 20200324 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JADE ELIZABETH THELWELL A.K.A. “JADE NARAINE” Plaintiff/Responding Party – and – TORONTO POLICE SERVICES BOARD, DETECTIVE MAUREEN TRUEMAN, DETECTIVE SERGEANT DANIEL SABADICS, DETECTIVE PASQUALE ALBERGA, DETECTIVE ERICA WESTER, CONSTABLE BENJAMIN WESTER, CONSTABLE KYLANN BALL, DETECTIVE CONSTABLE SAJEEV NAIR, DETECTIVE CONSTABLE LAUREN HASSARD, DETECTIVE CONSTABLE RUBY DHATT, DETECTIVE LORIE PALERMO, DETECTIVE NICOLE OZRETIC, DETECTIVE CONSTABLE TODD HIGO, JOHN DOE PC 1, JOHN DOE PC 2, JOHN DOE PC 3, JOHN DOE PC 4 Defendants/Moving parties
Counsel: Jade Elizabeth Thelwell, on her own behalf Jennifer Boyczuk, for the Defendants/Moving Parties
HEARD: March 3, 2020
P.J. Monahan J.
1Jade Elizabeth Thelwell has commenced an action for damages (the “Claim”) against the Toronto Police Services Board ("TPSB") and 16 police officers for alleged wrongful conduct that took place between 2014 and 2019. The Claim relates to various interactions with and/or incidents involving Ms. Thelwell and the police officer defendants, including investigations of Ms. Thelwell which resulted in criminal charges against her, as well as investigations of complaints made by Ms. Thelwell to the police. Ms. Thelwell seeks damages for (amongst other things) false arrest, false imprisonment, negligent investigation, malicious prosecution, misfeasance in public office, malicious breach of public duty, defamation, intentional infliction of mental suffering, breach of sections 2 (b), 6 (1), 7, 8, 9, 11 (e) and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”) and section 1 of the Human Rights Code. [1]
2The defendants seek to strike out certain parts of the Claim pursuant to Rule 21.01 (1) (a) and (b) of the Rules of Civil Procedure, on the basis that these parts of the Claim disclose no reasonable cause of action, have no reasonable prospect of success, and/or relate to claims that are plainly and obviously statute-barred by the Limitations Act, 2002. [2] The defendants also move to strike out parts of the Claim under Rule 25.11, on the basis that those parts of the Claim are frivolous, vexatious and/or an abuse of the court’s process.
Overview of the Claim
3It is well-established that on a Rule 21 motion to strike pleadings, the facts in the pleading are to be taken as proven and true unless they are patently ridiculous or incapable of proof. Accordingly, the facts as set out below are based on those alleged in the Claim, or in documents incorporated into the Claim. [3]
a. The Plaintiff
4Ms. Thelwell is a Canadian citizen, born in March 1992. She is an aspiring pop singer, using the alias “Jade Naraine” and has been actively pursuing a career in the music industry.
b. Claims against Detective Constable Lauren Hassard and Constable Kylann Ball
5On December 10, 2014, Ms. Thelwell was charged with extortion and harassment with respect to a Christopher Payne. DC Lauren Hassard (“Hassard”) was the officer in charge of investigating the charges.
6That evening, Hassard released Ms. Thelwell on a Promise to Appear (Form 10) and an Undertaking to a Peace Officer (Form 11.1). The Form 11.1 required Ms. Thelwell to, amongst other things, deposit her passport with Hassard. Hassard required Ms. Thelwell to deposit her passport upon learning that Ms. Thelwell was a performing artist who travelled frequently.
7On December 22, 2014, a Toronto Police Service officer ("TPS") filed a Report to Justice seeking an Order for Disposition of Items Seized (“Report to Justice”) under section 489.1 of the Criminal Code. The Report to Justice listed a laptop and a cell phone but did not list the passport. The Order for Disposition of Items Seized permitted TPS to hold the laptop and cell phone until the end of the proceedings.
8On June 11, 2015, Ms. Thelwell pleaded guilty to the charge of criminal harassment. She was given the sentence of an absolute discharge and entered into a 12-month peace bond, which included a condition that she not contact Christopher Payne. The Crown withdrew the extortion charge. This concluded the proceedings in respect of this matter in its entirety.
9Ms. Thelwell requested the return of her passport from Hassard immediately, but Hassard refused to do so.
10On June 17, 2015, Ms. Thelwell applied to Citizenship and Immigration Canada (“CIC”) for a new passport. On June 22, 2015, TPS Constable Kylann Ball (“Ball”) contacted CIC to advise that the TPS was in possession of Ms. Thelwell’s passport, and that the passport had been seized as a bail condition in a criminal proceeding. CIC requested Ball to deliver Ms. Thelwell’s passport to them, which Ball did. Ms. Thelwell was unaware of the communications between TPS and CIC.
11On September 11, 2015, CIC refused to issue a new passport to Ms. Thelwell and, in addition, imposed a period of refusal of passport services for five years. The basis of this decision was that Ms. Thelwell had provided false and/or misleading information as part of her passport application. In particular, Ms. Thelwell’s passport application was accompanied by a declaration that her existing passport was “about to expire, water-damaged, inaccessible, [or] thrown out by someone else.” [4]
12On October 29, 2015, Ms. Thelwell provided written submissions to CIC, requesting reconsideration of the five-year refusal of passport services imposed by CIC. These submissions included information explaining the impact of this refusal on Ms. Thelwell’s career as an aspiring pop singer, for whom travel to the USA is critical for success.
13On November 30, 2015, CIC advised that its original decision to refuse passport services for five years would stand.
14Ms. Thelwell commenced judicial review proceedings of the November 30, 2015 CIC decision in the Federal Court. On November 25, 2016, the Federal Court set aside CIC’s decision on the basis that the decision-makers had improperly fettered their discretion in their determination of Ms. Thelwell’s reconsideration request. The matter was remitted to a different decision-maker in CIC. [5]
15In January 2017, the CIC reaffirmed its decision to impose a five-year refusal of passport services on Ms. Thelwell.
16Ms. Thelwell commenced a second judicial review proceeding in the Federal Court. On October 3, 2017, the Federal Court set aside the CIC reconsideration decision on the basis that the decision-maker failed to properly balance the severity of the interference with Ms. Thelwell’s Charter-protected mobility rights with the objectives of the passport program. The matter was remitted to CIC for further reconsideration. [6]
17Ms. Thelwell subsequently received a new passport on January 3, 2019.
18Ms. Thelwell claims against Hassard, Ball and TPSB for false arrest, negligent investigation, malicious prosecution, interference with economic relations, unlawful and/or negligent seizure of her passport, trespass against chattels, detinue, and conversion, as well as breach of her rights protected by sections 6 (1), 8 and 11 (e) of the Charter.
19Ms. Thelwell also claims that Hassard subsequently improperly influenced other police officers in different investigations of Ms. Thelwell, as outlined below.
c. Claims against Detective Constable Todd Higo
20Towards the end of 2015, Ms. Thelwell reported to police that a John Matthews had sexually assaulted her. DC Todd Higo (“Higo”) was the officer in charge of investigating her complaint.
21During the course of his investigation, Higo received an email from Ms. Thelwell’s grandmother providing him with certain information about the sexual assault. Higo subsequently spoke with Ms. Thelwell’s grandmother over the phone and, as a result of that conversation, believed that Ms. Thelwell (rather than her grandmother) had sent the email in question. Higo closed the case without any further investigation. He also made a note on an internal TPS database that “Jade tried to manipulate the investigation.” This note was read aloud at an unrelated bail hearing on February 5, 2018.
22Ms. Thelwell claims against Higo and TPSB for negligent investigation of her complaint against John Matthews and for defamation in respect of the note on the TPS database.
d. Claims against Detective Pasquale Alberga
23In April and May 2016, Ms. Thelwell sent certain messages to Christopher Payne. Mr. Payne’s lawyer subsequently contacted TPS, alleging that Ms. Thelwell had breached the terms of her peace bond entered into in June 2015. Detective Pasquale Alberga (“Alberga”) was the officer in charge of investigating the matter.
24The Claim states that Alberga did not conduct a proper investigation but, instead, unreasonably relied on opinions provided to her by Hassard. On August 15, 2016, Alberga charged Ms. Thelwell with criminal harassment and breach of her peace bond. These charges were withdrawn at the request of the Crown on August 30, 2019.
25Ms. Thelwell claims against Alberga and TPSB for false arrest, negligent investigation, malice, and breach of her rights protected by sections 7 and 9 of the Charter. She claims malice against Hassard and TPSB in respect of the information and opinions provided by Hassard to Alberga.
e. Claims against Detective Nicole Ozretic
26On August 4, 2016, Detective Nicole Ozretic (“Ozretic”) charged Ms. Thelwell with two counts of criminal harassment relating to communications she made to an Adam Wylychenko. On August 15, 2016, Ozretic arrested Ms. Thelwell pursuant to an arrest warrant and held her pending a show cause hearing.
27On February 9, 2017, Ms. Thelwell pled guilty to one count of criminal harassment in relation to Wylychenko. The other charge was withdrawn at the request of the Crown. After the plea, Ms. Thelwell maintained her innocence and appealed. The guilty plea was set aside March 25, 2019, and the matter is currently before the courts.
28Ms. Thelwell claims against Ozretic and TPSB for negligent investigation, malicious prosecution, false arrest and breach of her rights as protected sections 7 and 9 of the Charter.
f. Claims against Detective Maureen Trueman and Detective Sergeant Daniel Sabadics
29In February 2017, Ms. Thelwell provided information to a probation officer in connection with a pre-sentence report that was being prepared in respect of the Wylychenko matter. This information included a reference letter signed by Ms. Thelwell’s then-boyfriend, Luc Halstead (“Halstead”).
30In March 2017, Ms. Thelwell reported to police that Halstead had sexually assaulted her. Detective Maureen Trueman (“Trueman”) was one of the officers assigned to investigate Ms. Thelwell’s complaint against Halstead. Detective Sergeant Daniel Sabadics (“Sabadics”) was Trueman’s supervisor at the time.
31Ms. Thelwell alleges that Trueman refused to investigate the complaint. She further alleges that Trueman provided false information about her to Halstead and others.
32As a result of these incidents, Ms. Thelwell claims negligent investigation, malice, defamation, misfeasance in public office/abuse of power against Trueman, and negligent investigation against Sabadics. Ms. Thelwell also claims against Trueman for breaching her rights under section 15 of the Charter and section 1 of the Human Rights Code on the basis of her race, age, sex and/or gender because Trueman failed to properly investigate the sexual assault complaint against Halstead.
g. Claims against Detective Erica Wester, Constable Benjamin Wester and John Doe PCs 1, 2 & 3
33In March 2017, Halstead reported to police that his reference letter in support of Ms. Thelwell, which had been provided to the probation officer in connection with Ms. Thelwell’s pre-sentence report relating to the Wylychenko matter, was a forgery.
34Constable Benjamin Wester (“B. Wester”) took a statement from Mr. Halstead regarding his allegations against Ms. Thelwell. Detective Erica Wester (“E. Wester”) was the officer in charge of investigating the matter.
35On June 12, 2017, Ms. Thelwell contacted police and alleged that the probation officer preparing the pre-sentence report in connection with the Wylychenko charges had provided a false report. She requested that police officers attend at her home so that she could file a complaint against the probation officer. TPS officers John Doe PC 1 and John Doe PC 2 attended at her home. However, Ms. Thelwell alleges that these officers refused to take a statement from her or permit her to file a complaint because they had received instructions to this effect from E. Wester.
36Ms. Thelwell then contacted TPS at 41 Division to report her complaint regarding the probation officer’s false report. She spoke with PC John Doe 3, who refused to take her complaint seriously.
37On June 14, 2017, E. Wester charged Ms. Thelwell with forgery in connection with the Halstead reference letter.
38Ms. Thelwell makes the following claims in connection with these events:
i. negligent investigation and misfeasance against E. Wester, B. Wester and TPSB for laying the forgery charge; ii. false arrest against E. Wester and TPSB for arresting her in connection with the forgery charge; iii. breach of her rights protected by section 7 of the Charter against E. Wester and TPSB for her arrest on the forgery charge; iv. negligent investigation and misfeasance against E. Wester and TPSB for instructing John Doe PCs 1 and 2 not take a report or permit her to file a complaint about the false report prepared by the probation officer; and v. negligent investigation and misfeasance against John Doe PCs 1, 2 & 3 and TPSB for refusing to take a report or permitting her to file a complaint regarding the probation officer.
h. Further Claims relating to Staying of Private Prosecution of Halstead
39Following the decision by TPS not to lay charges against Halstead based on her March 2017 sexual assault complaint, Ms. Thelwell commenced a private prosecution against Halstead for sexual assault.
40On December 17, 2017, Ms. Thelwell’s private prosecution was stayed by the Crown. The assigned Crown indicated that the decision to stay the case was based on information received from TPS officers.
41Ms. Thelwell alleges that the decision to stay her private prosecution was based on incorrect, insufficient, or misleading information provided by the police. She alleges that the TPS officers who were involved in having the private prosecution stayed included Trueman, E. Wester, B. Wester and Hassard.
42Ms. Thelwell brought a judicial review application of the Crown’s decision to stay the private prosecution. Her application was dismissed by the Divisional Court.
43Ms. Thelwell claims misfeasance/abuse of power against Trueman, E. Wester, B. Wester Hassard and TPSB for providing false information to the Crown in connection with the Crown’s decision to stay her private prosecution of Halstead.
i. Claims against Detective Constable Ruby Dhatt and Detective Lorie Palermo; Further claims against Trueman
44On January 24, 2018 and February 5, 2018, Ms. Thelwell was charged by DC Ruby Dhatt (“Dhatt”) and Detective Lorie Palermo (“Palermo”) with criminal harassment and failure to comply, in relation to text messages she had sent to an Andrei Korrotchenko. It was alleged by police that Ms. Thelwell had delivered text messages to Korrotchenko from another phone or using a proxy to make it appear as though the messages had been delivered by another phone number. These charges related to Korrotchenko are still before the courts.
45When she was arrested on January 24, 2018, her cell phone was seized without a warrant by John Doe PC 4. She was also arrested on February 5, 2018 in connection with these charges and held overnight at a correctional institution.
46Later, in June 2018, she sent an email to Trueman to report that she was being harassed and defamed by Korrotchenko and Halstead. Trueman failed to respond to her email.
47Ms. Thelwell makes the following claims in connection with these incidents:
i. negligent investigation against Dhatt, Palermo and TPSB for charging her with criminal harassment and failure to comply; ii. false arrest against Dhatt, Palermo and TPSB for arresting her for the criminal harassment and failure to comply charges; iii. breach of sections 7 and 9 of the Charter against Dhatt, Palermo and TPSB for her false arrest; iv. breach of section 8 of the Charter against John Doe PC 4 and TPSB for seizure of her cell phone on January 24, 2018; v. negligent investigation and abuse of power against Trueman and TPSB for failing to investigate her June 2018 complaint of harassment and defamation against Korrotchenko and Halstead; vi. breach of section 15 of the Charter against Trueman and TPSB for failing to investigate her June 2018 complaint of harassment and defamation against Korrotchenko and Halstead; vii. breach of section 1 of the Human Rights Code against Trueman and TPSB for failing to investigate her complaint of harassment and defamation against Korrotchenko and Halstead; and viii. breach of her right to freedom of expression protected by section 2 (b) of the Charter for charging her with criminal harassment and failure to comply.
j. Claims against Detective Constable Sajeev Nair
48On May 2, 2018, Ms. Thelwell was arrested and charged by DC Sajeev Nair (“Nair”) with two counts of failure to comply. These charges were in relation to a cease-and-desist letter sent by Ms. Thelwell’s lawyer to Korrotchenko and Halstead. The Claim states that Nair acted maliciously and abused his power in laying these charges. In the alternative, Ms. Thelwell claims he conducted a negligent investigation.
49Ms. Thelwell makes the following claims against Nair and TPSB:
i. negligent investigation; ii. false arrest; iii. abuse of power; iv. malicious prosecution; v. breach of rights protected by sections 7, 8 and 9 of the Charter; vi. discrimination against Ms. Thelwell, in breach of rights protected by section 15 of the Charter and section 1 of the Human Rights Code.
Issues
50The following issues arise on this motion:
a. whether the defendants should be granted leave to admit evidence under Rule 21.01 (2) (a) or Rule 25.11; b. whether parts of the Claim should be struck out because it is plain and obvious that the claims or allegations contained therein cannot succeed; c. whether parts of the Claim should be struck out because the claims or allegations contained therein are an abuse of process, frivolous, and/or vexatious; and d. whether Ms. Thelwell should be granted leave to further amend the Claim.
The Legal Framework
a. Rule 21
51A defendant may move under Rule 21.01 (1) (a) for the determination of a question of law raised by a pleading where the determination of the question may dispose of all or part of the action. A defendant may also move under Rule 21.01 (1) (b) to strike a pleading on the basis that it discloses no reasonable cause of action.
52The principles applicable to Rule 21 motions are well-established. Of particular relevance to this motion are the following:
i. the test for determining whether a pleading should be struck is whether, assuming the facts as stated in the statement of claim can be proved, it is plain and obvious that no reasonable cause of action is disclosed. The pleading should not be struck if there is a chance that the plaintiff might succeed. Only if the action is “certain to fail” because it contains a radical defect should the relevant portions of the statement of claim be struck out. [7] The purpose of the motion to strike is to eliminate “hopeless claims” and it is “a tool that must be used with care”; [8] ii. the statement of claim must disclose a cause of action founded in law, by pleading the necessary legal elements of an otherwise recognized cause of action. A cause of action is not “disclosed” simply by naming it or providing a bald and conclusory statement based on assumptions or speculation. The plaintiff must put forward a set of material facts that, assuming they could be proved, would establish the claim; [9] iii. on a motion to strike, the moving party defendant bears the burden of demonstrating that the plaintiff could not possibly succeed. It is not necessary for the plaintiff to demonstrate that they will succeed; [10] iv. where fraud, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred; [11] v. it is irrelevant that the cause of action is novel, nor does it matter whether the defendant has a very strong defence; [12] vi. no evidence is admissible on a “no reasonable cause of action” motion under Rule 21.01 (1) (b), and evidence is only admissible on a “question of law” motion under Rule 21.01 (1) (a) with leave of a judge or on consent of the parties. However, documents referred to or relied on in the statement of claim are in effect, incorporated into the pleading, and may be considered on a Rule 21 motion; [13] vii. a limitation period issue should generally be addressed at trial rather than on a Rule 21.01 (1) (a) motion. Discoverability of a claim is a fact-based analysis and does not raise a “question of law” subject to resolution under Rule 21; [14] and viii. where claims have been struck out, leave to amend can properly be given where the pleading can be put right or improved by amendment and no injustice is done thereby. Leave to amend should only be refused in the clearest of cases. [15]
b. Rule 25.11
53Rule 25.11 permits the court to strike out all or part of a pleading on grounds that the pleading is scandalous, frivolous, or vexatious, or is an abuse of the process of the court. However, the court will only strike a claim on the basis that it is frivolous or vexatious, or an abuse of process of the court, in the clearest of cases and where it is plain and obvious that the case cannot succeed. [16]
54Although evidence may be filed on a Rule 25.11 motion, this does not change the character of the motion, which is not to determine the merits but to decide whether the pleading should be struck as having no chance of success. [17]
55The doctrine of the abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bring the administration of justice into disrepute. It is a flexible doctrine that is most often applied to preclude re-litigation of issues, disputes or matters that have been addressed and finally determined in another forum, usually by another court, tribunal or decision-maker. A court may strike such pleadings as an abuse of process. [18]
Defendants’ Application to Admit Evidence
56The defendants seek to admit three affidavits with attached exhibits, pursuant to Rule 21.01 (2) (a) and/or Rule 25.11.
57The first such affidavit is from Hassard. Paragraphs 3, 8, 9 and 12 of her affidavit identify and attach the following documents:
a. the Promise to Appear (Form 10) and the Undertaking to a Peace Officer (Form 11.1) signed by Ms. Thelwell on December 10, 2014 in connection with her release following her being charged with criminal harassment and extortion; b. the Report to Justice, dated December 22, 2014, identifying items seized from Ms. Thelwell upon her arrest on December 10, 2014; c. the Order for Disposition of Items Seized, dated December 22, 2014; d. the Recognizance to Keep the Peace entered into by Ms. Thelwell, dated June 11, 2015.
58All of these documents are expressly referred to in the Claim and are therefore incorporated into the Claim. [19] I find that paragraphs 3, 8, 9 and 12 of the Hassard affidavit, and the exhibits attached to those paragraphs, are admissible on this motion.
59The remainder of the Hassard affidavit sets out various facts relied upon by the defendants in response to the claims made against Hassard. The affidavit also attaches correspondence between TPS and CIC regarding Ms. Thelwell’s passport. The defendants argue that this material will assist the court in understanding the proceedings and events and will assist the court in addressing the motion under Rule 21.01 (1) (a).
60In my view, however, this material is in substance an attempt to argue the merits of the Claim in relation to Hassard. As such, I find that the remainder of the Hassard affidavit is inadmissible on this motion.
61The second affidavit is sworn by Angelou Ramos, a TPS litigation coordinator. It attaches two Warrants for Arrest against Ms. Thelwell, one related to the charges laid against Ms. Thelwell by Alberga, and the other related to the charges laid against Ms. Thelwell by Ozretic.
62The Claim refers expressly to the Warrant for Arrest in relation to the charges laid by Ozretic and, as such, is incorporated into the Claim.
63The Warrant for Arrest related to the charges laid by Alberga is not expressly referred to in the Claim. However, this Warrant for Arrest is a noncontroversial, publicly-filed court document relating to a criminal proceeding expressly referred to in the Claim. Ms. Thelwell does not dispute the fact that the Warrant for Arrest attached to the Ramos affidavit was actually issued. For reasons explained below, the Warrant for Arrest is also a key document in determining whether Ms. Thelwell’s claim that she was falsely arrested by Alberga, and that this arrest violated her rights protected by sections 7 and 9 of the Charter, can succeed. In the circumstances, I would admit the Warrant for Arrest related to the charges laid by Alberga.
64The third affidavit filed by the defendants was sworn by Mitchell Lima, a law clerk for the City of Toronto, which is acting for TPSB in this matter. The Lima affidavit encloses earlier versions of the plaintiff’s pleadings in this matter that were previously provided to the defendants, along with correspondence between the parties regarding these earlier versions of the pleadings. The Lima affidavit also attaches Ms. Thelwell’s pleadings in connection with her judicial review application of the Crown’s decision to stay her private prosecution against Halstead.
65The defendants rely on the earlier versions of the plaintiff’s pleadings in support of their position that, to the extent any parts of the Claim are struck out, Ms. Thelwell should not be granted leave to amend her Claim. The defendants also rely on Ms. Thelwell’s pleadings in connection with her judicial review application in Divisional Court in support of their position that certain aspects of the Claim represent a collateral attack on the decision of the Divisional Court, and thus represent an abuse of process.
66I would not admit the Lima affidavit. At the outset of the argument of this motion, the parties agreed that the motion would be determined on the basis of the current version of the Claim. Ms. Thelwell also made submissions as to how various aspects of the Claim could be improved through amendment. I find that earlier versions of the claim shared with the defendants, as well as correspondence relating to those earlier versions, are of little assistance in determining whether the Claim could be improved through amendment. I would not admit such material on this motion.
67As for the defendant’s arguments relating to abuse of process, Ms. Thelwell’s pleadings in the Divisional Court are of limited assistance in that regard. The defendants have not provided a copy of the Divisional Court decision dismissing Ms. Thelwell’s judicial review application of the Crown’s decision to stay her private prosecution. As such, it is simply not possible to determine whether the Claim represents a collateral attack on the Divisional Court’s decision based on a review of the pleadings alone. These pleadings are not admissible on this motion.
Motion to Strike Claims against Hassard and Ball
68The defendants seek to strike out all of the claims against Hassard and Ball and the related claims against TPSB.
a. Claim for False Arrest against Hassard
69The Claim asserts that there were no reasonable and probable grounds to believe that Ms. Thelwell had committed an offence when she was arrested on December 10, 2014 by Hassard and that the arrest was therefore unlawful.
70However, Ms. Thelwell pleaded guilty to the charge of criminal harassment on June 11, 2015. The finding of guilt on the criminal charge precludes a finding that there were no reasonable and probable grounds for the arrest. Therefore, the claim for false arrest by Hassard (and the related claim against TPSB) must be struck without leave to amend.
b. Claims Relating to December 10, 2014 Charges by Hassard
71The Claim alleges that the charges of harassment and extortion laid by Hassard on December 10, 2014 were the result of a negligent investigation and/or a malicious prosecution.
72The torts of negligent investigation and malicious prosecution require proof of, amongst other things, that (i) the proceedings must have been terminated in favour of the plaintiff; and (ii) there must have been an absence of reasonable and probable grounds to make the arrest or commence or continue the legal proceedings. [20]
73Ms. Thelwell’s guilty plea to the charge of criminal harassment means that she is unable to establish either of these essential elements of the relevant torts. The claims for negligent investigation and malicious prosecution against Hassard in relation to the December 10, 2014 charges, and the related claims against TPSB, must therefore be struck without leave to amend.
c. Claims relating to December 10, 2014 Seizure of Passport
74Ms. Thelwell claims that the seizure of her passport by Hassard on December 10, 2014 was unlawful. As a result, she claims for negligence, malice/abuse of power, breach of sections 6, 8 and 11 (e) of the Charter, unlawful interference with economic relations, trespass to chattels, detinue and conversion.
75The Criminal Code provides express authority for a peace officer to require a person to deposit her passport with the peace officer as a condition of the person’s release from custody. [21] Ms. Thelwell executed an Undertaking agreeing to provide her passport as a condition of her release. The Form 11.1 Undertaking included an acknowledgement that Ms. Thelwell was not required to give the Undertaking but that, if she did not do so, she might be kept in custody and brought before a justice so that the Crown would be given a reasonable opportunity to show cause why she should not be released without the Undertaking. The Form 11.1 also acknowledged that Ms. Thelwell could apply at any time to have the Undertaking vacated or varied, in accordance with section 503 (2.2) of the Criminal Code. It further provided that the Undertaking would remain in effect until it was vacated or varied.
76Ms. Thelwell did not seek to vary or vacate the Undertaking, which therefore remained in effect while her criminal proceedings were ongoing. The rule against collateral attack applies to prevent persons from litigating the validity of a Form 11.1 Undertaking in a forum other than through the application process contemplated in section 503 (2.2) of the Criminal Code. She cannot now seek to challenge the lawfulness of the Undertaking, which included a requirement that she deposit her passport with Hassard, through a civil action.
77Therefore, the claims relating to the seizure of her passport as described above, all of which depend upon a finding that the seizure was unlawful, cannot succeed and must be struck without leave to amend. Similarly, any claims relating to the holding of the passport by Hassard while the criminal proceedings relating to the December 10, 2014 charges were ongoing must be struck for the same reason, without leave to amend.
d. Claims Relating to Delivery of Passport to CIC
78None of the documents relied upon by the defendants (i.e. the Promise to Appear, the Undertaking or the Report to Justice) provided TPS with authority to deliver the passport to CIC following the conclusion of the related criminal proceedings. Therefore, Ms. Thelwell’s claims in relation to the delivery of Ms. Thelwell’s passport to CIC do not involve a collateral attack on any of these documents.
79The defendants argue that the claims relating to the delivery of the passport to CIC are barred by the Limitations Act, 2002. The defendants argue that if Ms. Thelwell has a valid claim relating to the delivery of the passport to CIC, that cause of action was complete by June 2015. The Claim was not filed until April 3, 2018, which was more than two years after any cause of action would have arisen.
80However, the relevant date for the running of the two-year limitation period in section 4 of the Limitations Act, 2002 is the date upon which the claim was discovered, not when it arose. Ms. Thelwell claims that she did not discover the fact that TPS had handed her passport over to CIC until late 2017 or early 2018. The determination of the date upon which Ms. Thelwell “discovered” a claim in relation to the delivery of the passport to CIC would require a fact-based inquiry, and it does not involve a question of law which can be determined on a Rule 21 motion.
81The defendants also argue that the claims relating to the delivery of the passport to CIC would involve a collateral attack on findings made by the Federal Court in Ms. Thelwell’s judicial review proceedings of the CIC decisions to deny her a new passport. [22]
82I would not acede to this argument. The Claim is not attempting to relitigate the Federal Court's findings for a different result. [23] The judicial review proceedings in the Federal Court involved a consideration of CIC’s decisions to deny Ms. Thelwell a new passport. The Federal Court did not review or determine the legal authority of the TPS to deliver the passport to CIC. As such, the Claim does not involve a collateral attack on the Federal Court decisions.
83Thus, none of these arguments are sufficient to cause the court to strike out Ms. Thelwell’s claims relating to the delivery of her passport to CIC.
84There are, however, certain of the claims relating to the delivery of her passport to CIC which cannot succeed and should be struck without leave to amend. These are as follows:
a. the property-based claims (i.e. for detinue, conversion, and trespass to chattels) advanced in relation to the delivery of the passport to CIC all depend upon a finding that Ms. Thelwell had a right to and/or a proprietary interest in the passport. Subsection 3 (c) of the Canadian Passport Order, SI/81 – 86, makes clear that every passport shall at all times remain the property of Her Majesty in right of Canada. Subsection 3 (d) of the Canadian Passport Order further provides that every passport shall be issued on the condition that the bearer will return it to the Minister without delay after the Minister requests it. As such, Ms. Thelwell cannot plead the necessary elements of ownership and/or right to possession of the passport to make out the property-based causes of action alleged. Therefore, Ms. Thelwell’s claims for detinue, conversion, and trespass to chattels in relation to the delivery of her passport to CIC should be struck without leave to amend; b. the delivery of Ms. Thelwell’s passport to CIC did not involve a seizure of the passport, nor did it involve a denial of her right to reasonable bail. Therefore, Ms. Thelwell’s claim that the delivery of her passport violated her rights under sections 8 and 11 (d) of the Charter should be struck without leave to amend.
85I find that it is not plain and obvious that the remaining claims advanced by Ms. Thelwell in relation to the delivery of her passport to CIC by TPS cannot succeed. This includes her claims for negligence, misfeasance/abuse of power, interference with economic relations, and violation of her rights under section 6 of the Charter. I therefore decline to strike these claims against Hassard, Ball and TPSB.
Motion to Strike Claims against Higo
86The defendants seek to strike all of the claims against Higo.
a. Claim for Negligent Investigation of Complaint against John Matthews
87Ms. Thelwell claims that Higo negligently investigated her complaint of sexual assault by John Matthews.
88It is an essential element of the tort of negligent investigation that the defendants owed a duty of care to the plaintiff and did not meet the standard of a reasonable police officer in similar circumstances. [24] It is well-established that police owe no private or public duty to complainants with respect to investigations of their complaints. As such, complainants cannot seek redress from the police for an allegedly negligent investigation into their complaints. [25] Therefore this claim should be struck without leave to amend.
b. Claim for Defamation regarding Note on TPS Database
89Ms. Thelwell claims defamation in relation to the statement placed on the TPS database by Higo to the effect that “Jade tried to manipulate the investigation.” The defendants argue that this claim is barred by the rule providing for absolute immunity for statements made in the course of legal proceedings.
90Absolute privilege attaches to statements made in the course of judicial proceedings as an “indispensable attribute of the judicial process.” [26] If participants in judicial proceedings could be held civilly liable for anything said by them in the course of the proceedings, it could discourage candour and thereby undermine the proper administration of justice. Therefore, courts have barred all civil liability based on statements made in the course of judicial or quasi-judicial proceedings.
91While the doctrine of absolute privilege is well-established at common law, its precise boundaries are not firmly set. [27] Not only does it preclude civil actions for words spoken in the ordinary course of proceedings, it extends to documents properly used and regularly prepared for use in the proceedings. [28] However, a statement will not be protected unless it is made for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings. [29] Moreover, because access to the courts for the vindication of legal rights is an essential element of the rule of law, any extension of the privilege of absolute immunity should be “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.” [30]
92In light of these general principles, I would distinguish between Higo’s placing the statement “Jade tried to manipulate the investigation” on the internal TPS database, from the reading out of that statement during a subsequent unrelated bail hearing that occurred over two years later.
93It is not plain and obvious that absolute immunity applies to Higo’s placing this statement on the TPS internal database. Although the statement was read out in court at a subsequent bail hearing, it is not clear that it was prepared for that purpose. In fact, at the time when Higo made the statement, he had closed the investigation into the complaint of sexual assault against John Matthews. It does not appear that at that time, any further proceedings regarding the complaint were contemplated. Therefore, the statement was not made for the purpose of judicial proceedings by someone who had a duty to make the statement in the course of the proceedings. Since it is not plain and obvious that Higo’s making this statement on the TPS internal database is protected by the doctrine of absolute immunity, Ms. Thelwell’s claim for defamation based on the statement may therefore proceed.
94However, the reading out of that statement during a bail hearing falls squarely within the doctrine of absolute privilege, which applies to statements made in the course of judicial proceedings. Therefore Ms. Thelwell’s claim for defamation in relation to the reading out of that statement during the bail hearing should be struck without leave to amend.
Motion to Strike Claims against Alberga
95The defendants do not seek to strike the claim that Alberga was negligent in his investigation which led him to charge Ms. Thelwell with criminal harassment and breach of a peace bond in August 2016. However, the defendants seek to strike all of the remaining claims against Alberga and the related claims against TPSB.
a. Claims for False Arrest and Breach of Sections 7 and 9 of the Charter
96Thelwell claims that she was falsely arrested, and that her rights as protected by sections 7 and 9 of the Charter were violated, when she was arrested based on the charges laid by Alberga.
97It is settled law that where a peace officer makes an arrest based on a duly issued arrest warrant, no civil claim for false arrest can be maintained. This is because the arrest was authorized and “legally caused” by the judicial officer issuing the warrant rather than by the peace officer. [31]
98In this case, Ms. Thelwell was arrested pursuant to a warrant issued on August 5, 2016. The validity of that warrant has not been challenged. Therefore, it is plain and obvious that her claim for false arrest in relation to the Alberga charges cannot succeed and should be struck without leave to amend.
99For the same reason, Ms. Thelwell’s Charter claim based on an allegation of a false arrest must also be struck without leave to amend.
b. Claim for Malice against Alberga
100The defendants seek to strike the claim of malice against Alberga on the basis that Ms. Thelwell fails to plead sufficient particulars that could legally support such a claim.
101As noted earlier, a cause of action is not “disclosed” simply by naming it. A properly pleaded claim must be supported by a set of material facts that, assuming they could be proved, would establish the claim.
102One of the essential elements of the tort of malicious prosecution and/or misfeasance in office is that the relevant officeholder must have acted with an improper purpose or motive. [32] This means that a plaintiff alleging malicious prosecution or misfeasance in office must plead circumstances, particulars or facts showing actual malice, or those which a trier of fact could rely on to infer and find malice. It is not sufficient to allege that police officers were incompetent, negligent or reckless. [33]
103Although the Claim asserts that Alberga acted with malice, the defendants argue that it fails to provide adequate particulars to support the claim of malice. The allegations are pleaded as bald and conclusory assertions. The Claim does not plead circumstances, particulars, or facts that, if proven, would allow a trier of fact to infer that Alberga acted with an improper purpose or with an intent to harm Ms. Thelwell.
104I agree with the defendants’ submissions on this issue. The relevant paragraphs of the Claim (paras 53 to 62) state that Alberga did not properly investigate the matter and unreasonably relied on the opinion of other police officers in deciding to lay charges against Ms. Thelwell. The Claim further states that Alberga knew or should have known that Ms. Thelwell’s conduct did not amount to criminal harassment. However, no facts are pleaded that would support a conclusion that Alberga acted with an improper intent or motive to harm Ms. Thelwell.
105As such, the claim for malice and/or malicious prosecution as pleaded against Alberga should be struck. The same applies to claims of malice against Hassard and TPSB for their information provided to Alberga.
106In her submissions, Ms. Thelwell sought leave to amend any claims which were found to be legally insufficient. As noted earlier, leave to amend a deficient pleading should only be refused in the clearest of cases. [34] It is possible that the deficiencies in the Claim against Alberga could be cured by an appropriate amendment setting out relevant and material facts. I therefore grant Ms. Thelwell leave to serve and file a fresh amended Claim with sufficient particulars of her claim of malice against Alberga and, by extension, of her claim of malice against Hassard for the information she provided to Alberga.
Motion to Strike Claims against Ozretic
107The defendants move to strike all of the claims against Ozretic.
a. Claims for False Arrest and Breach of Sections 7 and 9 of the Charter
108Ms. Thelwell’s arrest for the charges laid by Ozretic was based on an arrest warrant, the validity of which has not been challenged. Therefore, for reasons outlined earlier in relation to similar claims against Alberga, no civil claim for false arrest can be maintained in the circumstances. Similarly, Ms. Thelwell’s claim that her rights protected by sections 7 and 9 of the Charter were breached when she was arrested for the Ozretic charges must also fail. Therefore, these claims are struck without leave to amend.
b. Claims for Negligent Investigation and Malicious Prosecution
109An essential element of claims for negligent investigation as well as for malicious prosecution is that the proceedings in question must have been resolved in the plaintiff’s favour. [35]
110In this case, the charge of criminal harassment laid by Ozretic is still before the courts. In these circumstances, Ms. Thelwell cannot satisfy this essential element of the cause of action in either negligent investigation or for malicious prosecution.
111A further difficulty is that the Claim fails to plead facts or circumstances that would support a finding of malice in relation to Ozretic. The Claim states that Ozretic failed to complete a reasonable or independent investigation into the allegations before charging Ms. Thelwell. The Claim also states that Ozretic improperly relied on the opinions of other police officers in deciding to charge Ms. Thelwell. Even if proven at trial, these facts would not support a finding of malice which, as discussed earlier, requires a finding that the police officer acted with an improper purpose or motive.
112Accordingly, the claim for negligent investigation and malicious prosecution against Ozretic is struck. However, this is without prejudice to Ms. Thelwell’s right to seek leave to amend her pleadings in this regard if the charge of criminal harassment laid by Ozretic is resolved in her favour.
Motion to Strike Claims against Trueman and Sabadics
113The defendants do not seek to strike the claims for misfeasance against Trueman, in relation to her investigation of the sexual assault complaint Ms. Thelwell filed against Halstead. Nor do the defendants seek to strike the claim against Trueman for defaming Ms. Thelwell by providing confidential and misleading information about her to Halstead and others.
114However, the defendants move to strike all the remaining claims against Trueman as well as the claim against Sabadics.
a. Claim for Negligent Investigation of Sexual Assault Complaint Against Trueman and Sabadics
115Ms. Thelwell claims that Trueman and Sabadics were negligent in the manner in which they investigated her complaint of sexual assault against Halstead.
116As noted above, police do not owe a duty of care to the alleged victim of crime. The existence of a duty of care to the plaintiff is an essential element of the tort of negligence. Therefore, it is plain and obvious that the claim of negligent investigation against Trueman, including that Trueman was negligent in providing incorrect information about Thelwell to other officers and to the Crown, cannot succeed and should be struck without leave to amend. The claim of negligent investigation against Sabadics should also be struck without leave to amend.
b. Claims for Breach of Charter and Human Rights Code
117Ms. Thelwell states that she is a young woman of mixed race. She claims that by failing to properly investigate her sexual assault complaint and, instead, investigating her, Trueman and other TPS officers treated her with disdain because of her race, age, sex and/or gender. Ms. Thelwell alleges that this breached her right to equal protection and equal benefit of the law as protected by section 15 of the Charter and section 1 of the Human Rights Code.
118The defendants argue that these claims should be struck out because Ms. Thelwell has failed to plead particulars of how she received adverse treatment or was discriminated against.
119Unlike claims for malicious prosecution or misfeasance in office, claimants alleging a breach of their rights under section 15 of the Charter or section 1 of the Human Rights Code need not prove an improper purpose or intent on the part of the government actor. A government action may be found to be discriminatory on the basis of the adverse effect on the claimant, even if the government actor did not intend to discriminate. [36]
120In this case, the Claim pleads specific actions which are said to give rise to a violation of her rights under the Charter and the Human Rights Code. In particular, the Claim alleges that the manner in which her complaint of sexual assault was investigated, as well as the information provided by Trueman and others to the Crown in order to have her private prosecution of Halstead stayed, reflected their disdain for her because of her race, age, sex, and/or gender. Assuming these facts to be true, it is not plain and obvious that her claims based on the Charter and the Human Rights Code are certain to fail.
121Therefore, I would dismiss the defendants’ motion to strike these claims on the basis that they fail to plead sufficient particulars of the rights violations in question.
c. Claims for Misfeasance in relation to Staying of Private Prosecution of Halstead
122The Claim alleges that Trueman, along with other TPS officers, provided incorrect, insufficient, or misleading information to the Crown regarding Ms. Thelwell’s private prosecution of Halstead. As a result, the Crown stayed Ms. Thelwell’s private prosecution. The Claim alleges misfeasance in office against Trueman and the other TPS officers.
123The defendants seek to have this misfeasance claim struck on three grounds: (i) any information provided by TPS officers to the Crown would be covered by absolute privilege/ witness immunity; (ii) the Claim fails to plead sufficient particulars of the malice or improper intent on the part of Trueman and the other TPS officers; and (iii) the misfeasance claim is a collateral attack on the Crown’s decision to stay the private prosecution, which has been upheld on judicial review.
124I would not give effect to the first or third of these arguments advanced by the defendants.
125Considering first the argument that absolute privilege attaches to statements made by Trueman or other TPS officers to the Crown, these statements were not made during a judicial proceeding. Nor were they made in a document prepared for use in a proceeding. In fact, it is not clear how or when the statements were made, since the Crown merely indicated that he made the decision to stay the case based on unspecified information received from TPS officers.
126The defendants appear to be suggesting that there is a blanket immunity attaching to any statements made from police officers to the Crown for the purpose of criminal proceedings. This would involve a significant expansion of the doctrine of absolute privilege. It would mean that police officers who deliberately provided false information to the Crown for an improper purpose in connection with a criminal prosecution would be shielded from civil liability for those statements.
127It is far from plain and obvious that the common law doctrine of absolute privilege should apply in these circumstances. There is no authority in Ontario in support of this position. Indeed, as the Court of Appeal noted in Amato, any extension of the existing common law doctrine of absolute privilege should be viewed with “the most jealous suspicion, and resisted, unless its necessity is demonstrated.” [37]
128Accordingly, I would decline to strike Ms. Thelwell’s claim for misfeasance in relation to information provided by TPS officers in connection with the private prosecution of Halstead on the basis of absolute privilege.
129Nor would I strike this claim on the basis that it represents a collateral attack on the decision of the Crown to stay the private prosecution, a decision which has been upheld by the Divisional Court. The defendants have not provided a copy of the Divisional Court’s decision in this matter. As such, it is not possible to determine or understand the legal basis for the decision. Nor is it possible to determine whether the Claim is an attempt to relitigate issues already determined by the Divisional Court. In the circumstances, the defendants have failed to discharge the burden of establishing that it is plain and obvious that the Claim represents a collateral attack on the Crown’s decision to stay the private prosecution, or the Divisional Court’s dismissal of the judicial review of the Crown decision.
130On the other hand, I would accept the defendants’ argument that the Claim fails to plead sufficient particulars of the malice or improper purpose which is an essential element of a claim for misfeasance. Paragraph 103 of the Claim describes various actions of Trueman and other TPS officers which were negligent, and then states that “[t]aken together, they demonstrate malice and abuse of power.”
131This is an incorrect statement of the law in relation to misfeasance in public office in the context of criminal proceedings. What distinguishes misfeasance on the one hand from acts of negligence, even gross negligence, on the other, is conduct fuelled by an improper motive involving “an abuse or perversion of the system of criminal justice for ends it was not designed to serve.” [38]
132As drafted, the claim fails to plead sufficient particulars of the improper purpose or malice which caused Trueman and the other TPS officers to improperly interfere with the private prosecution of Halstead. Accordingly, this aspect of the Claim should be struck with leave to amend.
Motion to Strike Claims against E. Wester, B. Wester and John Doe PCs 1, 2 & 3
133The defendants move to strike the claims for negligent investigation against E. Wester and John Doe PCs 1, 2 & 3, in connection with their investigation of Ms. Thelwell’s complaint that a probation officer had prepared a false pre-sentence report in the Wylychenko matter.
134The defendants do not seek to strike any of the other claims against E. Wester, B. Wester or John Doe PCs 1, 2 & 3.
a. Claims of negligent investigation against E. Wester and John Doe PCs 1, 2 & 3, in connection with Ms. Thelwell’s Complaint over the Probation Report
135The Claim alleges that E. Wester was negligent in that she instructed John Doe PCs 1 & 2 not take a complaint from Ms. Thelwell regarding the report of the probation officer.
136Similarly, the Claim alleges that John Doe PCs 1 & 2 were negligent in following these instructions, and that John Doe PC 3 was negligent in not taking her complaint seriously when she attended at 41 Division.
137For reasons explained earlier, police officers do not owe a duty of care to complainants with respect to investigations of their complaints. The existence of such a duty of care is an essential element of the tort of negligence. Since no such duty existed in the circumstances, the claims for negligent investigation against E. Wester and John Doe PCs 1, 2 & 3 involving the allegedly false report being prepared by the probation officer cannot succeed.
138Therefore, it is plain and obvious that these claims cannot succeed and should be struck out without leave to amend.
Motion to Strike Claims Against Dhatt, Palermo and Trueman
139The defendants move to strike out the following claims against Dhatt, Palermo and/or Trueman (collectively, the “Dhatt/Palermo/Trueman Challenged Claims”):
i. a claim for negligent investigation for charging Ms. Thelwell with harassment and failure to comply in relation to text messages sent to Andrei Korrotchenko; ii. a claim for malicious prosecution/abuse of power in relation to the charges of harassment and failure to comply; iii. a claim for negligent investigation for failing to investigate Ms. Thelwell’s complaint that she was being harassed and defamed by Korrotchenko, Halstead and others; and iv. a claim that the failure to investigate Ms. Thelwell’s complaints of harassment and defamation against Korrotchenko and Halstead constituted discrimination against Ms. Thelwell, contrary to section 15 of the Charter and section 1 of the Human Rights Code.
140The defendants do not otherwise seek to strike out the claims against Dhatt and Palermo.
141I agree that the Dhatt/Palermo/Trueman Challenged Claims should be struck, for the reasons and to the extent set out below:
i. The charges of criminal harassment and failure to comply laid by Dhatt and Palermo have not yet been resolved. For reasons described earlier, no claim for negligent investigation or malicious prosecution arising from the laying of those charges can succeed unless those charges are resolved in her favour. Therefore, Ms. Thelwell’s claims in that regard should be struck, without prejudice to her right to seek leave to amend her claim in the event that these charges are subsequently resolved in her favour; ii. Police officers do not owe a duty of care to complainants who allege criminal conduct by others. Therefore, the claim for negligent investigation and abuse of power for failing to investigate Ms. Thelwell’s complaint that she was being harassed and defamed by Korrotchenko, Halstead and others cannot succeed. This claim should be struck without leave to amend; iii. The Claim fails to plead particulars as to the manner in which the failure to investigate her complaint of harassment and defamation against Korrotchenko, Halstead and others violated her rights under the Charter or the Human Rights Code. The Claim states that Ms. Thelwell sent an email to Trueman and other police officers reporting the harassment and defamation. The Claim states that she received no response to this email. The Claim also states that she attended at 41 Division to report the harassment and defamation, where she spoke to a Detective Lynch. Detective Lynch refused to take her report in light of the fact that there were outstanding charges against Ms. Thelwell.
These facts, even if true, do not provide sufficient particulars to support a finding of discrimination. Therefore Ms. Thelwell’s claim of discrimination under the Charter and the Human Rights Code is struck out, with leave to file a fresh claim with the required particulars.
Motion to Strike Claims against Nair
142The defendants move to strike out the claims against Nair for abuse of power, malicious prosecution, and breach of section 15 of the Charter and section 1 of the Human Rights Code (collectively, the “Nair Challenged Claims”). The defendants argue that the Claim fails to plead sufficient particulars of the Nair Challenged Claims.
143The defendants do not otherwise seek to strike out the claims against Nair.
144I agree that the Claim fails to plead sufficient particulars of the Nair Challenged Claims. The Claim alleges that Nair acted unreasonably and failed to conduct a proper investigation before charging Ms. Thelwell with two counts of failure to comply, on the basis of a letter sent by Ms. Thelwell’s lawyer to Korrotchenko and Halstead. However, no facts or circumstances are pleaded in relation to any improper motive or purpose which caused Nair to lay these charges. Nor are any facts pleaded which would provide a basis for concluding that Nair discriminated against Ms. Thelwell, contrary to section 15 of the Charter or section 1 of the Human Rights Code.
145Accordingly, the Nair Challenged Claims are struck out, with leave to file an amended claim with the necessary particulars.
Disposition
146In summary, the following claims are struck to the extent described below:
a. the claim for false arrest against Hassard is struck without leave to amend; b. the claims for negligent investigation and/or malicious prosecution against Hassard in connection with the December 10, 2014 charges of harassment and extortion are struck without leave to amend; c. the claims for negligence, malice/abuse of power, breach of sections 6, 8 and 11 (e) of the Charter, unlawful interference with economic relations, trespass to chattels, detinue, and conversion, in connection with the December 10, 2014 seizure of Ms. Thelwell’s passport by Hassard, are struck without leave to amend; d. the claims for detinue, conversion, and trespass to chattels, as well as the claim for breach of Ms. Thelwell’s rights under sections 8 and 11 (d) of the Charter, in connection with the delivery of Ms. Thelwell’s passport to the CIC, are struck without leave to amend; e. the claim for negligent investigation against Higo, in connection with his investigation of Ms. Thelwell’s complaint of sexual assault by John Matthews, is struck without leave to amend; f. the claim for defamation in relation to the reading out of the statement “Jade tried to manipulate the investigation” during a February 5, 2018 bail hearing, is struck without leave to amend; g. the claim for false arrest, and for breach of rights protected by sections 7 and 9 of the Charter, in connection with Alberga’s August 2016 arrest of Ms. Thelwell, are struck without leave to amend; h. the claim of malice/malicious prosecution against Alberga in connection with the 2016 charges of criminal harassment and breach of a peace bond are struck, with leave for Ms. Thelwell to file a fresh amended claim setting out sufficient particulars of these claims; i. the claims for false arrest against Ozretic, as well as the related claim for breach of Ms. Thelwell’s rights under sections 7 and 9 of the Charter, are struck without leave to amend; j. the claims for negligent investigation and malicious prosecution in connection with the charges of criminal harassment laid by Ozretic are struck. However, this is without prejudice to Ms. Thelwell’s right to seek leave to amend her pleadings in this regard, with sufficient particulars of the claim for malice/malicious prosecution, in the event that these charges are subsequently resolved in her favour; k. the claim for negligent investigation against Trueman and Sabadics, in connection with their investigation of Ms. Thelwell’s complaint of sexual harassment by Halstead, are struck without leave to amend; l. the claim for malice/misfeasance in office in relation to statements made or information provided by TPS officers, which led to the staying of the private prosecution of Halstead, are struck, with leave to file an amended claim setting out sufficient particulars of the alleged malice/misfeasance; m. the claims of negligent investigation against E. Wester, and John Doe PCs 1, 2 & 3, relating to their investigation of Ms. Thelwell’s complaint regarding the pre-sentence report of the probation officer in the Wylychenko matter, are struck without leave to amend; n. the claims against Dhatt and Palermo for negligent investigation and malicious prosecution, in connection with their charging of Ms. Thelwell with harassment and failure to comply, are struck, without prejudice to Ms. Thelwell’s right to seek leave to amend her claim in the event that these charges are subsequently resolved in her favour; o. the claims for negligent investigation of Ms. Thelwell’s complaint that she was being harassed and defamed by Korrotchenko, Halstead and others are struck without leave to amend; p. the claim that the investigation of Ms. Thelwell’s complaint against Korrotchenko, Halstead and others involved a breach of her rights under section 15 of the Charter and section 1 of the Human Rights Code are struck, with leave to file a fresh amended claim setting out sufficient particulars of these allegations; q. the claims against Nair for abuse of power, malicious prosecution and breach of section 15 of the Charter and section 1 of the Human Rights Code, in connection with his laying of charges of failure to comply against Ms. Thelwell, are struck, with leave to file an amended claim setting out the necessary particulars; and r. to the extent that a claim against an individual police officer is struck, the related claim against TPSB is also struck.
147The Defendants’ motion is otherwise dismissed.
148In recognition of the widespread shutdown in effect in response to the COVID – 19 epidemic, Ms. Thelwell is granted leave to serve and file a fresh amended statement of claim in accordance with these reasons within 120 days of the date of the release of these reasons.
149Costs of this motion are to be in the cause.
P. J. Monahan J.
Released: March 24, 2020
COURT FILE NO.: CV-18-595090 DATE: 20200324 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JADE ELIZABETH THELWELL A.K.A. “JADE NARAINE” Plaintiff/Responding Party – and – TORONTO POLICE SERVICES BOARD, DETECTIVE MAUREEN TRUEMAN, DETECTIVE SERGEANT DANIEL SABADICS, DETECTIVE PASQUALE ALBERGA, DETECTIVE ERICA WESTER, CONSTABLE BENJAMIN WESTER, CONSTABLE KYLANN BALL, DETECTIVE CONSTABLE SAJEEV NAIR, DETECTIVE CONSTABLE LAUREN HASSARD, DETECTIVE CONSTABLE RUBY DHATT, DETECTIVE LORIE PALERMO, DETECTIVE NICOLE OZRETIC, DETECTIVE CONSTABLE TODD HIGO, JOHN DOE PC 1, JOHN DOE PC 2, JOHN DOE PC 3, JOHN DOE PC 4 Defendants/Moving parties
REASONS FOR JUDGMENT P. J. Monahan J. Released: March 24, 2020
1R.S.O. 1990, c. H.19 (the "Human Rights Code").
3As discussed below, where a statement of claim expressly refers to certain documents, those documents are incorporated into the claim and may be considered on a motion to strike. See Web Offset Publications Ltd. v. Vickery.
4These facts were found by the Federal Court in judicial review proceedings commenced by Ms. Thelwell in which she sought to overturn the decision by CIC to refuse the issuance of a new passport to her. See Thelwell v. The Attorney General of Canada, 2016 FC 1304 (Thelwell v. The Attorney General of Canada 2016) at paras 5 to 12.
5See Thelwell v. The Attorney General of Canada 2016.
6Thelwell v. The Attorney General of Canada, 2017 FC 872 (Thelwell v. The Attorney General of Canada 2017.)
7Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at para 36.
8Paton Estate v. Ontario Lottery and Gaming Corporation (Fallsview Casino Resort and OLG Casino Brantford), 2016 ONCA 458 at para 11.
9Abernethy v. Ontario, 2017 ONCA 340 at para 11.
10Addison Chevrolet Buick GMC Limited v. General Motors of Canada Limited, 2016 ONCA 324 at para 23.
11Rules of Civil Procedure, Rule 25.06 (8).
12Progressive Casualty Insurance Co. v. Saygili, [1999] O.J. No. 3331 (S.C.); leave to appeal to Divisional Court refused, [2000] O.J. No. 2017.
13Web Offset Publications Limited v. Vickery, above, at para 3.
14Brozmanova v. Tarshis, 2018 ONCA 523 at paras 16 to 23.
15Aristocrat Restaurants Limited v. Ontario, [2003] O.J. No. 5331 (S.C.) at para 85.
16Baradaran v. Alexanian, 2016 ONCA 533 at para 15.
18Toronto (City) v. CUPE, Local 79, 2003 SCC 63 at para 37.
19See Web Offset Publications Limited, above.
20Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at paras 63; Miazaga v. Kvello Estate, 2009 SCC 51 at paras 3, 76.
21See Criminal Code, section 503 (2.1) (d).
22See Thelwell v. The Attorney General of Canada 2016 and Thelwell v. The Attorney General of Canada, 2017, above.
23Toronto (City) v. CUPE, Local 79, above, at para 33.
24Bilich v. Toronto Police Services Board, 2013 ONSC 1445 at para 49, leave for time to perfect appeal refused, 2014 ONCA 13; Hill v. Hamilton-Wentworth Regional Police Services Board, above.
25Norris v. Gatlien, [2001] O.J. No. 4415 (C.A.) at para 18; Wellington v. Ontario, 2011 ONCA 274 at para 44.
26Mann v. O'Neill, [1997] H.C.A. 28, 71 ALJR 903 at 907 (High Court of Australia), cited by Amato v. Welsh, 2013 ONCA 258 at para 37.
27Amato v. Welsh, above, at para 68.
28Salasel v. Cuthbertson, 2015 ONCA 115 at para 35.
29Amato v. Welsh at para 34; Salasel v. Cuthbertson, above, at para 35.
30Mann v. O'Neill, at page 907, cited by Amato v. Welsh, above, at paras 38 and 70.
31Diaz v. Tossa, 2017 ONSC 54 at paras 20 to 21; Sil v. Cardinal, 2009 SKQB 408 at paras 37 to 39.
32Miazaga v. Kvello Estate, above, at paras 7 to 8.
33Abdullahi et al. v. Children's Aid Society of Toronto et al., 2019 ONSC 3816 at para 57; Miazaga v. Kvello Estate, above, at para 89.
34Aristocrat Restaurants Limited v. Ontario, above, at para 85.
35Miazaga v. Kvello Estate, above, at para 3.
36Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at pages 173 to 174; Canadian National Railway Company v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 at pages 1138 to 39.
37Amato v. Welsh, above, at para 38.
38Miazaga v. Kvello Estate, above, at para. 7.