Holland et al. v. The Toronto Police Services Board
COURT FILE NO.: CV-19-615397
DATE: 20210825
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: INGA HOLLAND, EARL HOLLAND, BRIAN SUDDS and JENNIFER WITTEK
AND:
THE TORONTO POLICE SERVICES BOARD
BEFORE: VERMETTE J.
COUNSEL: Jennifer Wittek, self-represented
Michele Brady, for the Defendant
HEARD: June 17, 2021
ENDORSEMENT
[1] The Defendant, the Toronto Police Services Board (“TPSB”), brings this motion for: (a) an order dismissing the action on the basis that there is no genuine issue requiring a trial because the claim is barred by operation of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Act”); (b) an order striking out the Statement of Claim, or parts thereof, without leave to amend, on the ground that it discloses no reasonable cause of action; and/or (c) an order striking out the Statement of Claim, or parts thereof, without leave to amend, on the ground that it is scandalous, frivolous, vexatious, and an abuse of process.
[2] In their materials, the Plaintiffs requested a number of substantive orders, but since there is no proper motion before me for such relief, the Plaintiffs’ requested orders are not addressed in this endorsement.
The Plaintiffs’ claims
[3] The Plaintiffs issued their Statement of Claim on March 1, 2019. It is 64 pages in length and contains 250 paragraphs.
[4] All the Plaintiffs reside in the same building in Etobicoke, in two different units. Mr. Earl Holland is the son and caregiver of Ms. Inga Holland. Mr. Brian Sudds and Ms. Jennifer Wittek are husband and wife.
[5] The Plaintiffs’ claims arise out of two incidents involving another tenant in the Plaintiffs’ building, Ms. Stevens. Both incidents occurred in August 2012, more specifically on August 9 and 13, 2012 (more than 6 years before the issuance of the Statement of Claim). Facts that are related to the August 2012 incidents but that occurred later (sometimes many years later) are also pleaded in the Statement of Claim. The following is a very general summary of the allegations in the Statement of Claim.
[6] On August 9, 2012, there was a brief exchange between Ms. Wittek, Ms. Stevens and Ms. Stevens’ daughter about the fact that Ms. Stevens’ daughter was taking pictures of Ms. Wittek’s balcony and dog. Approximately 2 hours later, at about 10 p.m., a Toronto Police Service (“TPS”) officer who did not identify herself knocked on the door of the apartment of Ms. Wittek and Mr. Sudds and asked a series of “personal invasive questions” to Ms. Wittek, with no explanation as to the purpose of the questioning.
[7] On August 13, 2012, Ms. Stevens assaulted Mr. Holland, attempted to assault Ms. Holland, and subsequently forced entry into Ms. Wittek and Mr. Sudds’ unit where she damaged property, continued to assault Mr. Holland and threatened Ms. Wittek. Ms. Wittek called 911. Emergency Medical Services (“EMS”) arrived six minutes later. At the request of EMS, Ms. Wittek agreed to “keep an eye” on Ms. Stevens in her unit while waiting for the police to arrive. TPS officers only arrived 1 hour 40 minutes after Ms. Wittek’s call.
[8] Ultimately, no charges were laid against Ms. Stevens with respect to the August 13, 2012 incident. It is alleged that the two TPSB officers who attended on August 13, 2012 acted inappropriately and failed to investigate or were negligent in their investigation.
[9] The Statement of Claim states that Ms. Wittek’s 911 call was deemed “non-essential” as a result of being unlawfully “profiled” by the TPS officer on August 9, 2012, and that this recklessly endangered the Plaintiffs’ lives, safety and well-being. It is alleged that the unlawful profiling of Ms. Wittek breached her rights, defamed her character and reputation, and inflicted “detrimental damage to [Ms. Wittek’s] security clearances.”
[10] The Plaintiffs received the 911 log and audio file in November 2017 as a result of a request to access information. In March 2018, they received copies of the Field Information Report and Community Inquiry Report prepared by TPS officers with respect to the events of August 9 and 13, 2012. The Plaintiffs plead that community inquiry reports are entered into the TPS Data Warehouse Database and are accessible by police personnel with database security privileges. They state that the Community Inquiry Report prepared with respect to the August 13, 2012 incident defamed the character of Mr. Holland and Ms. Wittek and discredited them.
[11] Later during the week of August 13, 2012, Ms. Holland and Ms. Wittek made complaints to TPS 22 Division against the two officers who attended at their residences on August 13, 2012. Various other complaints and requests for investigation, including complaints to the Office of the Independent Police Review Director, were made in 2013, 2014, 2015 and 2018. The Plaintiffs allege a deliberate breach of the duty to investigate on the part of the TPS 22 Division, as well as intimidation and harassment. They also complain about the involvement of TPS officers in various proceedings that took place after the August 2012 incidents.
[12] Based on the allegations set out in the Statement of Claim, the Plaintiffs seek general damages in the amount of $1.1 million for “breach of duty, coercion and intimidation, defamation of character, failure to investigate, gross negligence, harassment, invasion of privacy, negligence and obstruction against the Plaintiffs”. In addition, they seek $500,000 for breaches of sections 7 and 15 of the Canadian Charter of Rights and Freedoms (“Charter”) and the Ontario Human Rights Code, R.S.O. 1990, c. H.19, and for aggravated and punitive damages. Finally, they seek “[d]eclarations and orders requiring that the defendants expunge records for the plaintiffs’ Community Inquiry reports (Form 306s) and Field Information reports are to be destroyed”, and “[s]pecial damages for the Plaintiffs’ loss of time, emotional and economic distress, pain and suffering and interruption in business and routine of life”.
Analysis
a. Motion for summary judgment based on limitation period issue
[13] As stated above, the TPSB moves for summary judgment under Rule 20 of the Rules of Civil Procedure. It seeks an order dismissing the Plaintiffs’ claims on the basis that there is no genuine issue requiring a trial because the claims are statute-barred by operation of the Act.
[14] The TPSB did not file any affidavit evidence on this motion. Its motion record only contains a notice of motion, the Statement of Claim, and the Statement of Defence. While this is appropriate for a motion under Rule 21.01 of the Rules of Civil Procedure, it falls short of the requirements applicable to a motion for summary judgment.
[15] Rule 20.01(3) states that “[a] defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.” [Emphasis added.]
[16] Here, the TPSB did not file any affidavit material or other evidence in support of its motion. The TPSB bore the burden of persuading the court, through evidence, that no genuine issue requiring a trial existed. It was not entitled to rely merely on the allegations in its Statement of Defence – it was required to put its best evidentiary foot forward. It is only after the moving party defendant has discharged its evidentiary burden of proving that there is no genuine issue requiring a trial for its resolution that the burden shift to the plaintiff to prove that its claim has a real chance of success. See Sanzone v. Schechter, 2016 ONCA 566 at paras. 24, 30, 32-33 and Kinectrics Inc. v. FCL Fisker Customs & Logistics Inc., 2020 ONSC 6748 at paras. 33-35. These principles apply to motions for summary judgment based on a limitation period defence: see Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16 at para. 33 and Kinectrics Inc. v. FCL Fisker Customs & Logistics Inc., 2020 ONSC 6748 at paras. 37-38.
[17] Given that the TPSB has not discharged its evidentiary burden by filing any evidence, the burden never shifted to the Plaintiffs to prove that their claims had a real chance of success and were not statute-barred. As a result, the TPSB’s motion for summary judgment is dismissed.
[18] The Court of Appeal has held that because the issue of discoverability is one of mixed fact and law, there are only very limited circumstances in which a limitation issue can properly be determined under Rule 21.01(1), unless pleadings are closed and it is clear that the facts are undisputed: see, e.g., Ridel v. Goldberg, 2017 ONCA 739 at para. 12 and Brozmanova v. Tarshis, 2018 ONCA 523 at paras. 16-23.
[19] In my view, this case is not one of the rare cases where it would be appropriate to determine a limitation period issue based on the pleadings only. A more complete record is required to permit the court to determine whether some or all of the Plaintiffs’ claims are statute-barred.
[20] As a result, the issue of whether the Plaintiffs’ claims are statute-barred cannot be determined on this motion.
b. Motion to strike the Statement of Claim on the ground that it discloses no reasonable cause of action
[21] On a Rule 21.01(1)(b) motion, a pleading will only be struck out if, assuming the facts pleaded to be true, it is plain and obvious that it discloses no reasonable cause of action – that is, where the pleading has no reasonable prospect of success: Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 at para. 18.
[22] The Court of Appeal set out the principles applicable to a motion to strike in McCreight v. Canada (Attorney General), 2013 ONCA 483 at para. 39:
In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping dimension underlies rule 21.
If the cause of action pleaded has been recognized, all of its essential elements must be pleaded.
If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed.
The claim should not be struck merely because it is novel.
Unless manifestly incapable of being proven, the facts pleaded are accepted as being true for the purposes of the motion.
The pleading forms the basis of the motion; possible future facts that have not been pleaded may not supplement the pleading.
No evidence is admissible on such a motion.
The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.
A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence.
[23] While the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 at para. 31.
[24] While a pleading may be struck, leave to amend should be denied only in the clearest of cases. The fact that the allegations are bald is not, in itself, a basis for refusing leave. It is only where it is clear that the plaintiff cannot allege further material facts that the plaintiff knows to be true to support the allegations that leave to amend will be refused. While a party should not be given unlimited scope to amend its pleading, the fact that no prior amendments have been made is a relevant consideration. See Miguna v. Ontario (Attorney General), 2005 CanLII 46385 at para. 22, Tran v. University of Western Ontario, 2015 ONCA 295 at para. 27, and Horfil Holding Corp. v. Queens Walk Inc., 2019 ONSC 1381 at paras. 33-34.
[25] I discuss below each of the causes of action pleaded by the Plaintiffs in the Statement of Claim.
i. Negligent investigation
[26] The Plaintiffs allege that TPS officers acted negligently and in breach of their duties by, among other things: failing to perform certain steps in the investigation; taking 1 hour and 40 minutes to respond to a call; improperly or incorrectly taking notes for the incidents; and refusing to investigate certain officers’ alleged misconduct following the incidents.
[27] There is long-standing, binding appellate authority in Ontario that no cause of action against the police is available to a victim of crime for negligent investigation on the part of the police: see Norris v. Gatien, (2001), 2001 CanLII 2486 (ON CA), 56 O.R. (3d) 441 (C.A.), Wellington v. Ontario, 2011 ONCA 274, and T.L. v. Ottawa Police Services, 2021 ONSC 4753 at paras. 14-17. While the police owe a duty of care to a particular suspect under investigation and a duty to warn a narrow and distinct group of potential victims of a specific threat, it does not owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes: T.L. v. Ottawa Police Services, 2021 ONSC 4753 at para. 16 and Wellington v. Ontario, 2011 ONCA 274 at para. 20.
[28] In light of the above, I find that the Plaintiffs’ claim against the TPSB based on negligent investigation has no reasonable prospect of success.[^1] This claim is struck without leave to amend because, in the absence of a recognized duty of care, the Plaintiffs cannot allege further material facts to support the allegations of negligent investigation.
ii. Harassment
[29] The Plaintiffs claim damages for harassment.
[30] There is no actionable tort of harassment: Merrifield v. Canada (Attorney General), 2019 ONCA 205 at para. 43 and McDonald v. Belleville (City of), 2021 ONSC 1049 at para. 29.
[31] However, allegations of harassment can “fall under” the tort of intentional infliction of mental suffering, which requires that the plaintiff demonstrate that the conduct of the defendant: (1) was flagrant and outrageous; (2) was calculated to produce harm; and (3) resulted in visible and provable illness: Merrifield v. Canada (Attorney General), 2019 ONCA 205 at para. 45.
[32] Where malice or intent is alleged, the pleading must contain full particulars: Rule 25.06(8) of the Rules of Civil Procedure. A plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to properly infer intentional or malicious conduct. I agree with the TPSB that the Plaintiffs’ claim for harassment fails to plead the necessary particulars to make out a claim for intentional infliction of mental suffering. While this claim is struck on that basis, leave to amend is granted. No prior amendments have been made to the Statement of Claim in this case and the Plaintiffs should not be deprived of the opportunity to attempt to remedy their deficient pleadings: Tran v. University of Western Ontario, 2015 ONCA 295 at para. 27.
iii. Invasion of privacy
[33] The Plaintiffs also claim damages for invasion of privacy. They appear to take offence at questions posed by TPS officers during the course of a police investigation.
[34] In light of the facts of this case, the only privacy-related tort that could be relevant is the tort of intrusion upon seclusion. The three elements of this tort are: (1) the defendant’s conduct must be intentional or reckless; (2) the defendant must have invaded the plaintiff’s private affairs or concerns, without lawful justification; and (3) a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish. See Jones v. Tsige, 2012 ONCA 32 at para. 71.
[35] These elements have not been properly pleaded. While I have significant doubts that, given the alleged facts of this case, the tort of intrusion upon seclusion can ever be pleaded in such a way that it has a reasonable prospect of success, I do not think that it would be fair to strike out this claim without giving the Plaintiffs an opportunity to attempt to remedy their deficient pleadings. Therefore, this claim is struck with leave to amend.
iv. Intimidation and coercion
[36] The Plaintiffs plead the tort of intimidation. They allege, among other things, that TPS officers coerced Mr. Holland against laying charges against Ms. Stevens. The Plaintiffs also allege intimidation on the part of the TPS 22 Division with respect to their attempts to have matters investigated or to pursue various remedies or complaints.
[37] The elements of the tort of intimidation are as follows: (1) the party threatened to commit an act or to use unlawful means against the interest of the threatened person; (2) the threat caused the threatened person to do or refrain from doing something they were entitled to do; and (3) the party making the threat intended to injure the threatened person.
[38] These elements are not properly pleaded. Further, as stated above, where malice or intent is alleged, the pleading must contain full particulars: Rule 25.06(8) of the Rules of Civil Procedure. Accordingly, the claim is struck with leave to amend. This is not one of the clearest cases where leave to amend should be denied.
v. Defamation
[39] The Plaintiffs claim that the reports prepared by TPS officers in relation to the August 9 and 13, 2012 incidents amount to defamation.
[40] A pleading of defamation must set out a concise statement of the material facts on which the plaintiff relies. The material facts to be pleaded are: (1) particulars of the allegedly defamatory words; (2) publication of the words by the defendant; (3) to whom the words were published; and (4) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo: see The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85 at para. 23.
[41] Here, among other things, the Plaintiffs have failed to identify with precision the alleged defamatory words, whether the words were published and to whom. This claim is struck with leave to amend. Again, this is not one of the clearest cases where leave to amend should be denied, even though I have significant doubts that a claim for defamation can have a reasonable prospect of success in the circumstances of this case.
vi. Obstruction of justice
[42] There is no tort of obstruction of justice: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664 at para. 10. Therefore, the claim for obstruction of justice is struck without leave to amend.
[43] I note that the allegations of obstruction in the Statement of Claim appear to relate to the same facts as the ones alleged with respect to the tort of intimidation. In their amended pleading, the Plaintiffs should focus on the tort of intimidation.
vii. Charter and Human Rights Code breaches
[44] The Plaintiffs allege breaches of the Human Rights Code and sections 7 and 15 of the Charter.
[45] With respect to the alleged breaches of section 7 of the Charter, they appear to be based on: (a) the omission of Mr. Sudds in the reports/notes relating to the August 9, 2012 incident; and (b) the uncorroborated “profiling” of Ms. Wittek, which caused her 911 call to be placed as non-priority, which in turn allegedly endangered the Plaintiffs’ life and security of the person.
[46] In order to engage the operation of section 7 of the Charter, a plaintiff must plead facts to establish a deprivation of their right to life, right to liberty or right to security of the person. The claim must then set out facts to show that any deprivation of these rights was effected in a manner contrary to the principles of fundamental justice. See Ogiamen v. Peel Regional Police, 2017 ONSC 2312 at para. 30.
[47] The allegations of breaches of section 7 of the Charter with respect to the “omission” of Mr. Sudds in reports and notes are devoid of any explanation as to how this affected his right to life, liberty or security of the person in a manner that was contrary to the principles of fundamental justice. As for the alleged “profiling” of Ms. Wittek, while it is alleged that this ended up endangering the Plaintiffs’ life and security of the person, there is no mention of the principles of fundamental justice anywhere in the Statement of Claim. Therefore, this claim is struck with leave to amend. The Plaintiffs should be given an opportunity to attempt to remedy their deficient pleadings.
[48] With respect to the allegations of discrimination, i.e. breaches of the Human Rights Code and section 15 of the Charter, the allegations appear to relate to: (a) the fact that Mr. Sudds is living with epilepsy; (b) the “profiling” of Ms. Wittek; (c) the alleged treatment of Ms. Holland by TPS officers because of her age; and (d) the fact that Mr. Holland has a criminal record.
[49] A plaintiff who makes discrimination claims under the Human Rights Code is required to show that: (1) they have a characteristic protected from discrimination; (2) they experienced an adverse impact in how they were treated; and (3) the protected characteristic was a factor in the adverse impact: Anoquot v. Toronto Police Services Board, 2015 ONSC 553 at para. 23. Similarly, a claim that alleges breaches of section 15 of the Charter must contain sufficient material facts to support the allegation that: (1) on its face or in its impact, the state action creates a distinction based on a prohibited ground (either enumerated or analogous); and (2) the state action imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage: see Meekis v. Ontario, 2021 ONCA 534 at paras. 133-134, 146.
[50] The Plaintiffs’ allegations of discrimination are, for the most part, bald and not supported by material facts. There is no protected ground pleaded regarding the alleged “profiling” of Ms. Wittek. With respect to the allegations relating to Mr. Sudds and Mr. Holland, it is unclear from the pleading what the adverse impact is alleged to be and how the protected grounds of disability (for Mr. Sudds and potentially Mr. Holland, although it is unclear) and record of offences (for Mr. Holland) were a factor in the adverse impact. The Statement of Claim is slightly more detailed regarding the alleged discrimination against Ms. Holland on the basis of age in that the TPS officers are alleged to have said that they did not want to speak to an “old woman”.
[51] The claims for breaches of the Human Rights Code and section 15 of the Charter are struck, except for the allegations of discrimination against Ms. Holland based on age. Leave to amend is granted as the Plaintiffs should be given an opportunity to attempt to remedy their deficient pleadings.
c. Motion to strike the Statement of Claim on the ground that it is scandalous, frivolous, vexatious and an abuse of process
[52] Rule 25.11 of the Rules of Civil Procedure permits the court to strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is scandalous, frivolous or vexatious, or is an abuse of the process of the court.
[53] The TPSB’s position with respect to this ground is set out as follows in its Factum:
There are numerous issues with the Claim as pleaded that make it nearly impossible for the Board to adequately defend itself or the action of those for whom it may be vicariously liable. It is impossible to point out all of the deficiencies in the Claim, as it is comprised of 250 paragraphs, and those paragraphs each contain numerous subparagraphs and clauses. Many of the paragraphs are long, confusing or irrelevant, contain numerous factual allegations and sub-allegations, and are repeated many times with only slight modification throughout the Claim. Many of the allegations are scandalous, frivolous or vexatious, and irrelevant to any legitimate cause of action that may exist in the claim. Additionally, the Plaintiffs are attempting to relitigate issues that they raised in complaints to 22 Division, and in three separate complaints to the [Office of the Independent Police Review Director]. For these reasons, the Claim must also be struck.
[54] The Statement of Claim is very long and extremely repetitive. It contains a number of factual allegations that appear to be irrelevant to any potential liability of the TPSB, or the relevancy of which is unexplained and unclear.[^2] At the same time, as pointed out above, many of the relevant allegations are bare ones or without sufficient particulars to allow the TPSB to adequately defend itself. Contrary to the requirement set out in Rule 25.06 of the Rules of Civil Procedure, the Statement of Claim does not constitute “a concise statement of the material facts on which the party relies for the claim.”
[55] However, I disagree with the TPSB that “[m]any of the allegations are scandalous, frivolous or vexatious”. It is also not possible, based on the record before me, to make any findings with respect to attempted relitigation. While the Statement of Claim discloses that complaints were made against certain TPS officers, the TPSB has not adduced any evidence with respect to the complaints, their determination, and any overlap between them and this action. While some evidence regarding the complaints was adduced by the Plaintiffs, it is incomplete and insufficient to support a finding of abuse of process.
[56] The pleading in issue in this case does not reach the level of an abuse of process, or of being scandalous, frivolous or vexatious. Therefore, I decline to strike the Statement of Claim on this ground.
Conclusion
[57] The TPSB’s motion is granted, in part.
[58] The Plaintiffs’ claims for obstruction and negligent investigation (including breach of duty, failure to investigate, gross negligence and negligence) are struck out without leave to amend.
[59] With respect to the balance of the Plaintiffs’ claims, I am of the view that it is neither possible nor productive to try to identify with precision the paragraphs and/or sentences that need to be struck out and those that do not need to be in order to implement this decision. This conclusion is based on, among other things: (a) my decision to strike out almost all of the remaining claims advanced in the Statement of Claim (although with leave to amend), (b) the manner in which the Statement of Claim is drafted and structured, and (c) the length and repetitive nature of the Statement of Claim. Consequently, the entire Statement of Claim is struck out, with leave to file a Fresh as Amended Statement of Claim that complies with this decision with respect to the following causes of action: (1) intentional infliction of mental suffering; (2) intrusion upon seclusion; (3) intimidation; (4) defamation; (5) breaches of section 7 of the Charter; and (6) breaches of the Human Rights Code and section 15 of the Charter. The Fresh as Amended Statement of Claim is to be filed within 45 days of the date of this decision.
[60] In accordance with the Rules of Civil Procedure, the Fresh as Amended Statement of Claim is to contain a concise statement of the material facts on which the Plaintiffs rely for the causes of action set out above, and sufficient particulars to allow the TPSB to adequately defend itself. Where one of the elements of a cause of action includes intent or malice, the Plaintiffs must plead circumstances, particulars or facts which are sufficient to enable a judge to properly infer intentional or malicious conduct.
[61] If costs cannot be agreed upon, the TPSB shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this decision. The Plaintiffs shall deliver their responding submissions (with the same page limit) within 14 days of their receipt of the TPSB’s submissions.
VERMETTE J.
Date: August 25, 2021
[^1]: This includes the allegations of breach of duty, failure to investigate, gross negligence and negligence.
[^2]: For instance, all of the allegations pertaining to the proceeding before the Criminal Injuries Compensation Board (“CICB”) appear, without further explanation, to be irrelevant as these proceedings were commenced by Ms. Stevens, not TPS officers. The CICB is an adjudicative tribunal and the TPSB has no control over the CICB’s proceedings. Similar comments apply to the allegations regarding the Ombudsman of Ontario’s investigation into the CICB proceeding.