Francis Aboagye v. Peel Police Services Board, 2020 ONSC 7794

COURT FILE NO.: CV-19-00624711-0000

DATE: 20201214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FRANCIS ABOAGYE Plaintiff

– and –

THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD Defendants

Francis Aboagye, In person

Jennifer Bruce, for the defendant Peel Police Services Board

Daphne V. Fedoruk for the Canadian Human Rights Commission

HEARD: November 27, 2020

papageorgiou j.

Nature of the Appeal.

1This is an appeal by the plaintiff of a Master’s Order dismissing the plaintiff’s request for production from the defendant the Regional Municipality of Peel Police Services Board (the “Board”) and a non-party, the Canadian Human Rights Commission (the “CHRC”).

Decision

2For the reasons that follow, I am granting the appeal in part.

Nature of the Action

3The plaintiff brought this action against the Board alleging that it has been improperly surveilling, investigating, and harassing him for more than a decade since an alleged false arrest in July 2006. The plaintiff is a self-represented litigant. He argues that as Black man, he has been endlessly harassed with significant impacts on his life. I found the plaintiff to be polite, well-prepared and respectful to the Court.

The Motion

4The plaintiff brought motions for the following relief:

The defendants to produce to the plaintiff every CRIMINAL Document and any other documents in their possession related to this matter including those found on OPTIC and NICHE.

The Canadian Human Rights Commission (CHRC) to produce all Police documents about the plaintiff in their possession to the Plaintiff as verification to the documents which will be submitted by the Documents.

5There is one document which Mr. Aboagye is particularly interested in obtaining-- an unredacted copy of a police occurrence report dated February 13, 2012, (the “Unredacted Occurrence Report”) which the CHRC has in its possession in connection with a Human Rights Code complaint which Mr. Aboagye had made against his employer. This Unredacted Occurrence Report was prepared by Port Hope Police Service and also referenced information which Port Hope Police Service obtained from the Hawkesbury OPP detachment. Mr. Aboagye had made extensive efforts to obtain the Unredacted Occurrence Report including requests through the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c. M.56, the Access to Information Act, RSC, 1985, c. A-1, and the Federal Courts Act, RSC, 1985, c. F-7, appeals to decisions pursuant to these acts, as well as a motion for disclosure during the judicial review of the CHRC’s decision to dismiss his Human Rights Code complaint.

6Based on the record before me, no one has ever explained to Mr. Aboagye why the information was redacted. I asked at the appeal and no one knew. All of this fuels his belief that there is something critical in the Unredacted Occurrence Report and that there has been a conspiracy to prevent him from seeing it.

7At the time of the plaintiff’s motion, pleadings were closed, the parties had not yet exchanged affidavits of documents, and there was a pending motion to strike brought by the defendant pursuant to Rule 21.

8With respect to the production request, the Board and CHRC argued as follows:

a. On February 28, 2019, Master Abrams had made a production order in a previous action brought by the plaintiff, Aboagye v. Her Majesty the Queen in Right of Ontario (CV-18-600872). The Board filed evidence that it had already produced everything in its possession in the previous action. With respect to the Unredacted Occurrence Report, the Board did not have it in its possession; all police divisions keep separate records.

b. The CHRC argued that Port Hope Police had provided the Unredacted Occurrence Report under the express condition that the unredacted version not be provided to Mr. Aboagye. The CHRC said that the Unredacted Occurrence Report in its possession was privileged.

9On January 17, 2020 Master Robinson ordered that documents produced by the Board in the previous action, pursuant to Master Abrams’ Order, may be relied upon in discoveries of this action and that the balance of the Plaintiff’s motion as against the Board was dismissed without prejudice to the plaintiff moving again following completion of exchange of productions if necessary. Master Robinson reasoned that relevancy for both documentary and oral discovery is determined by the pleadings and that the determination of the Board’s pending motion to strike may impact the scope of documentary production that the Board must make and that this court may properly order. With respect to the CHRC, he dismissed the motion but directed that the plaintiff could move for production from Port Hope Police and Hawkesbury OPP non-parties, after the Rule 21 motion and affidavits of documents were complete.

10The plaintiff appeals Master Todd Robinson’s decision dated January 17, 2020.

11The plaintiff’s Notice of Appeal requests the following relief:

a. That Master Robinson’s decision and order be overturned;

b. That the Court order production of every legal document in the possession of the defendant justifying:

i) Why the plaintiff has been placed on a never-ending (lifetime) investigation.

ii) When, how, and under what circumstances was the Plaintiff, a law-abiding citizen with no criminal history, was placed under surveillance that included recruiting and exploiting women and under aged girls to follow, track, harass and entice the plaintiff into committing some form of sexual-related offence.

c. That the Court issue an Order requiring the defendants to immediately remove every document about the Plaintiff from all Police enforcement systems including Niche Record Management Systems (Niche) and Ontario Police Technology Information Co-operative (OPTIC).

d. That the Court issue an ORDER requiring the defendant to immediately CEASE harassing following profiling and terrorizing the plaintiff so he can peacefully re-build his shattered life.

Nature of the Appeal

12This appeal raises the following issues:

a. May the plaintiff request the relief set out above?

b. Is the appeal out of time?

c. Did Master Robinson err in law or make a palpable and overriding error of fact or mixed fact and law.

May the plaintiff request the relief set out in its Notice of Appeal?

13The requested relief set out in paragraphs 6 c) and d) were not requested in his motion before Master Robinson. Accordingly, he may not seek this relief before me. Paragraph 6 b) is worded differently than the relief he requested from Master Robinson, but the essence of it is the same - essentially a request for production of all documents in the Board’s possession.

Is the Appeal out of time?

14Master Robinson heard the motion on January 13, 2020 and rendered his decision on January 17, 2020 which was delivered to the parties on January 21, 2020.

15On January 22, 2020 the plaintiff advised the defendant by email of his intention to deliver motion materials as he was not satisfied with the Master’s decision.

16Thereafter, the plaintiff delivered his notice of appeal on February 13, 2020.

17Master Robinson’s order does not finally dispose of the matter and accordingly is an interlocutory order. Rule 62.01(2) requires that an appeal shall be commenced by serving a notice of appeal within seven days after making of the order appealed from.

18The plaintiff did not deliver his Notice of Appeal within the time limits prescribed by the Rules and is out of time.

19In determining whether an extension of the time to appeal courts consider the following factors:

a. The prejudice, if any, to the respondent;

b. When the applicant formed the intention to appeal;

c. The explanation for the delay; and

d. Whether or not an extension is required by the justice of the case.

Munyal v. Dhillon [2004] O.J. No. 3906

20There is no prejudice to the respondent by this short delay. Although the defendant argues that the justice of the case does not require an extension because the plaintiff can still bring his production motion after discovery, I am inclined to grant an extension and deal with this appeal on its merits. The plaintiff is unrepresented and communicated his desire to do something about Master Robinson’s order the day after Master Robinson’s decision was delivered. He is not a lawyer and it appears that it took him longer than the 7 days to figure out that the correct process was an appeal, not a further motion.

21I referred the parties to the Canadian Judicial Council: Statement of Principles on Self-Represented Litigants and Accused Persons (“Principles on Self-Represented Litigants”) and the following relevant principles set out therein:

a. B.(2): Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

b. C(3) Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

22The short delay did not cause any prejudice to the other parties and I am granting leave to the plaintiff to extend the time for the plaintiff to appeal Master Robinson’s Order.

Did Master Robinson err in law or make palpable and overriding error of fact or mixed fact and law

23In accordance with Housen v. Nikolaisen, 2002 SCC 33, the standard of review is as follows:

a. For questions of law the standard is correctness; and

b. For questions of fact or questions of mixed fact and law, the standard of review is palpable and overriding error.

24I will deal with the plaintiff’s grounds set out in the Notice of Appeal in this section:

1. Ground: In moving the Hearing from November 29, 2019 to January 13, 2020, the Honourable Justice Schabas assured the plaintiff his right to appeal Master Todd Robinson’s ruling.

The plaintiff had originally brought his motion to Justice Schabas who adjourned it to be heard by a Master, In my view, any comments made by Justice Schabas explaining appeal procedures to the Plaintiff are not relevant to this appeal.

2. Ground: Master Robinson erred by indicating that the Defendants have complied with Master Abrams Order despite informing him in court the opposite.

Master Robinson did not do so. At paragraph 4 of his reasons, he acknowledged that the Board filed evidence that confirmed that all records within the Board’s possession regarding the plaintiff were previously produced to him in accordance with the order of Master Abrams dated February 28, 2019. At paragraph 6 of his reasons he stated: “Accordingly, even if the Board has additional documents in his possession, control or power not produced in compliance with Master Abrams order in CV-18-600871, relevance of those document cannot be determined until after disposition of the Board’s pending motion.”

3. Master Robinson also erred by allowing the CHRC’s pleadings of “Privilege” which had been rejected by Honourable Justice Campbell at the Federal Court in his rulings.

I have reviewed Justice Campbell’s Federal Court Order and it does not deal with the issue of privilege. I believe the plaintiff’s real argument is that Master Robinson erred in determining the Unredacted Occurrence Report is privileged. In my view, Master Robinson did not err in law in this determination. In paragraph 17 he thoroughly reviewed the Wigmore criteria set out in Philip Services Corp. v. Deloitte & Touche, 2015 ONCA 60 and concluded that the Port Hope Police provided the Unredacted Occurrence Report with the understanding that it would be kept confidential. He concluded that the CHRC has relationships with law enforcement agencies which are essential to its mandate of investigating and screening complaints, there is a public interest in maintaining these relationships, and is necessary to protect the integrity of the CHRC’s investigation processes. I would add that Master Robinson left open the possibility that the plaintiff could bring a production motion pursuant to Rule 30.10 as against Port Hope Police and Hawkesbury OPP. It would be preferable for the plaintiff to proceed in this manner rather than through an order against the CHRC, which could undermine its ability to carry out its statutory mandate. I note as well that it does not appear that Master Robinson reviewed the redactions and so there is no information as to what was redacted. It may be that police have legitimate reasons to redact information, e.g. to protect witnesses’ personal information, addresses etc. It would be preferable to consider the production of the Unredacted Occurrence Report after hearing from Port Hope Police and Hawkesbury OPP as to the reasons for the redactions.

4. Master Todd Robinson again failed to rely on the evidence before him indicating that the CHRC lied in Federal court to influence Justice Campbell’s decision.

In my view, there was no admissible evidence that the CHRC lied in Federal Court and accordingly, no error in this respect.

5. The Plaintiff’s Charter of Rights and Freedoms under the Canadian Constitution have been breached by the obscurity and actions resulting from the documents.

In my view, this argument relates to the merits of the case and does not impact on whether Master Robinson erred in his decision.

6. The documents are central to this litigation and should be available as evidence

Master Robinson concluded that he could not determine relevance of either the Board file, or the Unredacted Occurrence Report in the CHRC’s possession until after the Rule 21 motion.

The plaintiff’s case is that he is being harassed by the police who have been surveilling him. All documents in the Board’s possession relating to the plaintiff, as well as the Unredacted Occurrence Report (which related to him) are relevant to his action as currently constituted because everything in their possession in respect of him is relevant given the current action.

He is unrepresented and it is already difficult enough for people to represent themselves without having to bring endless motions and requests for documents as has the plaintiff, only to be turned away repeatedly for technical reasons. It is now almost a year since Mr. Aboagye first brought his motion and the entire proceeding has essentially stalled because of the production decision and this appeal. It would have been simple for the Board to simply review its file again and produce whatever it has at this stage, in the context of this action. I note that even though the Board gave evidence that it already produced documents pursuant to Master Abrams’ Order of February 18, 2019, almost two years have gone by and there may be additional documents.

I asked the Board lawyer whether there would be any difficulty with an order that they review their file again and produce relevant documents and they said it would not be difficult nor prejudicial.

In my view, Master Robinson made a palpable and over-riding error by failing to take into account the plaintiff’s status as an unrepresented party, and establishing a process which unjustly hinders his interests because it forces him to bring yet another motion after the Rule 21 motion, when there was no evidence of any hardship which would be occasioned by an Order that the Board produce everything in its possession relevant to the action as currently constituted. It was clear to me that the difficulty which Mr. Aboagye is having in obtaining production of documents is fueling his belief that there is a widespread conspiracy against him.

7. Despite acknowledging and even making a BOLD statement during the hearing that the police have been playing games to make it very difficult for the plaintiff to obtain the document in the past, Master Todd Robinson contributed to the plaintiff’s suffering by asking him to again bring further motions to obtain the document from Port Hope Police Services and Hawkesbury OPP.

Port Hope Services and Hawkesbury OPP were not served with any notice of production and the unredacted Occurrence Report is not in the possession of the Board. Master Robinson did not err in this regard and the plaintiff will have to bring a motion for production by serving them.

8. The Canadian Human Rights Commission (CHRC) abandoned their NEUTRALITY and brazenly showed their support for the Defendants and endorsed POLICE BRUTALITY by informing Master Robinson to ignore the Canadian Constitution even if he felt the document was related to the matter.

I am unclear as to what the plaintiff is referring to here and his oral arguments did not clarify it. I see no error based upon the above.

9. By failing to compel the Canadian Human Rights Commission (CHRC) to produce the document to the plaintiff, Master Todd Robinson inadvertently contributed to systemic OBSTACLES that make it very difficult for BLACKS and People of color in Canada to seek and obtain JUSTICE.

I reject any suggestion or inference that Master Robinson’s Order was based upon the plaintiff’s status as a racialized person. However, I acknowledge that racialized persons face additional hurdles in our society and that undue reliance on procedural technicalities may cause further disadvantage where a party is unrepresented. As noted above, the Principles on Self-Represented Litigants provides that judges should not allow procedural rules to hinder the interests of self-represented persons.

As I indicted above, in this case, concluding that the plaintiff may not move for production of documents relevant to the pleading as it stands because of a pending motion to strike, unjustly hinders his legal interests as a self-represented person by requiring him to bring it again when it is a simple matter for the Board to produce the requested documents now.

With respect to the Unredacted Occurrence Report, in my view, while I agree that he may not obtain production from the CHRC for the reasons set out above, he should be permitted to bring a motion pursuant to Rule 30.10 for production from Port Hope Police and Hawkesbury OPP before the Rule 21 motion is argued. I understand that the Rule 21 motion is not even currently scheduled.

25In conclusion:

a. I am setting aside Master Robinson’s Order that the plaintiff may not obtain production from the Board until after the Rule 21 motion is argued and ordering that the Board review its files and produce any documents relevant to the Statement of Claim as it currently exists within 30 days;

b. I am setting aside Master Robinson’s Order and determination that the plaintiff may only move for production from Port Hope Police and Hawkesbury OPP until after the Rule 21 motion.

c. I am dismissing the remainder of the appeal.

26I am deeply troubled by the difficulty which the plaintiff is having procedurally. He has now brought over 9 proceedings related to the Unredacted Occurrence Report (10 if I include case conferences), and I emphasize, this Unredacted Occurrence Report is about him and his case is about alleged police harassment. He has been met with technical arguments at each stage. He is in the wrong court. He is asking the wrong parties. He has brought the motion at the wrong time etc. Even if these technical objections are correct, altogether their impact is unfair and is causing all parties to expend additional resources.

27Part B(3) of the Canadian Judicial Council: Statement of Principles on Self-Represented Litigants and Accused Persons states:

Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.

28I am seizing myself of any future motions in this matter as well as the motion to strike subject to my availability on the civil list. Although production motions should be brought to a Master, I will also hear any future production motions because it is important for one adjudicator to deal with the procedural issues in this case.

29I ask that the parties arrange a case conference with me to address the scheduling of the Rule 21 motion and any production motions which may be brought to me at the same time to simplify procedural matters and reduce attendances.

30If the parties cannot agree on costs they may make written submissions as follows:

a. The plaintiff within 15 days of this decision;

b. The Board and CHRC within 15 days thereafter.

Papageorgiou J.