Court File and Parties

COURT FILE NO.: CV-15-527229 MOTION HEARD: 20210819 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Justin William George Fearon, Plaintiff AND: Sergeant Allan Louken, Police Constable “John Doe1”, “John Doe2” and Toronto Police Services Board, Defendants

BEFORE: Associate Justice Jolley

COUNSEL: Davies Bagambiire, Counsel for the Moving Party Plaintiff Fred Fischer, Counsel for the Responding Party Defendants and the Proposed Defendant Benjamin Elliott

HEARD: 19 August 2021

REASONS FOR DECISION

[1] The plaintiff brings this motion to correct a misnomer and properly identify the defendant John Doe 1 as Benjamin Elliott (“Elliott’). (I note that the plaintiff spells the proposed defendant’s last name as Elliot but the proposed defendant himself has spelled his name Elliott, and I have adopted that spelling.)

[2] He seeks to dismiss the action against John Doe 2. This relief is not opposed and an order shall go to that effect.

[3] Finally, the plaintiff seeks leave to make a number of amendments to his statement of claim. The defendants oppose only those amendments discussed below. All other amendments are unopposed and leave is granted to amend the claim accordingly.

Misnomer

[4] Rule 5.04(2) provides that “at any stage of proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

[5] The law applicable to misnomer is well settled. The doctrine of misnomer requires a finding that a proposed defendant said to have been identified by a pseudonym or fictitious name i.e. John Doe or Jane Doe, would have known upon receiving the claim that that the "litigating finger" was clearly being pointed at him or her (Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 (Ont. C.A.); Spribille v. Rockcliffe Nursing Home, 2010 ONSC 5408 (Ont. S.C.J.); 970708 Ontario Inc. v. PCS Security Systems Inc., 2014 ONSC 4433 (Ont. S.C.J.); Mohabir v. Mohabir, 2014 ONSC 5484 (Ont. S.C.J.)). This test has been characterized as asking whether a reasonable person receiving and reviewing the claim, in all the circumstances of the case, and looking at it as a whole, would say to himself or herself: "of course it must mean me, but they have got my name wrong".

[6] Elliott concedes that the claim points the litigating finger at him. He would know, reading paragraph 6 of the statement of claim, that he was a police officer and a member of the Toronto Police Service. He would know he was based at 54 Division (paragraph 6). He would know that he was working as a plain clothes officer on the date in question, that he came upon the scene with Sergeant Louken (spelling to be amended to Locken in the amended claim) holding the plaintiff on the ground, that the two officers arrested the plaintiff, handcuffed him, put him in the police cruiser and took him to the police station (paragraph 21).

[7] Nonetheless, Elliott argues that the court should decline to exercise its discretion to correct the misnomer given the plaintiff’s substantial delay in bringing this motion. In the language of Rule 5.04(2), the correction would not be just nor can terms be imposed to make it so.

[8] Elliott is correct that Rule 5.04 is discretionary and that, even if he is acknowledged to be the named John Doe, the court may refuse to permit the correction where it would be unjust to do so.

[9] He notes that the court can take into account prejudice as well as the plaintiff’s significant unexplained delay in moving to amend, in addition to the public policy reasons supporting adherence to established limitation periods and the lack of notice to proposed substituted defendants.

[10] In many of the cases that have refused to permit a plaintiff to correct a misnomer on these bases, the court was concerned that the proposed defendant had not had actual notice of the claim for some years since the events in question. While they were deemed to know under the misnomer principle, they did not in fact have knowledge. This case differs on the facts. Here, we are likely not faced with the legal fiction of whether Elliott knew. He likely actually knew of the claim at the time because his notes were obtained and produced as part of the defendants’ productions. Further, the Board, which is vicariously liable for the actions of Elliott, knew of the allegations since it received the statement of claim.

[11] I agree there has been significant delay. The plaintiff knew that John Doe 1 was Elliott in March 2016. While leave should have been sought to correct the misnomer then, there is no issue of the expiry of a limitation period as Elliott was named in the original statement of claim, albeit incorrectly. Elliott was aware since 2017 of the plaintiff’s intention to bring this motion. There were some conversations on the issue in 2020 but it was not pursued until September 2020. The plaintiff should have provided an explanation for the delay in bringing this motion. However, I do not find this fatal to the motion. Delay is an important factor but not the only factor and I find on the facts of this case, not alone sufficient for me to decline to exercise my discretion to permit the correction of the misnomer.

[12] Further, while Elliott argued prejudice on the motion, he did not file an affidavit stating that his memory has been adversely impacted or otherwise suggesting that he is prejudiced. Nor can I infer prejudice. His notes of the evening have been produced and are available to refresh his memory, if needed.

[13] Elliott also argues that the stage of the proceedings militates against him being substituted. Examinations for discovery were completed in March 2016. Absent the pandemic, the action would have been on the verge of being dismissed. I find that this can be addressed by requiring an expedited examination schedule.

[14] Lastly, Elliott argues that naming him in the action will have no significant impact because the Toronto Police Services Board (the “Board”) will be vicariously liable for his actions, whether he is named or not. While this may be so, if the events alleged are true, the plaintiff is entitled to a finding that Elliott assaulted him and unlawfully searched and detained him and a finding that he is liable for those actions, even if the damages are backstopped by the Board.

[15] The misnomer of John Doe 1 in the style of cause and through the pleading shall be corrected to read Benjamin Elliott.

Amendments to the Statement of Claim

[16] The plaintiff seeks to add paragraphs 3A and 3B, paragraphs 21A and 21B, paragraphs 33A, 33B and 33C and paragraphs 38(g), 38A, 38B and 44H.

[17] The law on amendments is well set out in Klassen v. Beausoleil 2019 ONCA 407. The court affirmed that an amendment will be statute-barred if it seeks to assert a new cause of action after the expiry of the applicable limitation period. It further notes that an amendment does not assert a new cause of action if “the original pleading contains all the facts necessary to support the amendments [such that] the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded. [Conversely] an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a fundamentally different claim based on facts not originally pleaded.” (paragraph 28).

[18] The principle is succinctly put by Perell and Morden, The Law of Civil Procedure, 3rd, ed. as follows:

A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based.

(a) Proposed paragraphs 3A and 3B

[19] These proposed paragraphs read as follows:

3A. The Plaintiff further claims damages as against the Toronto Police Services Board for failure to offer effective and meaningful training to Sergeant Allan Locken and Detective Constable Benjamin Elliot in the proper use of force. The Plaintiff states that it is the lack of effective training in the proper use of force and/or disregard for that training and the procedures that govern the use of force that led to the excessive use of force by Sergeant Allan Locken and Detective Constable Benjamin Elliot towards the Plaintiff.

3B. The Plaintiff pleads that the force used by Sergeant Allan Locken and Detective Constable Benjamin Elliot towards him was neither necessary. reasonable. nor proportionate in the circumstances.

[20] The plaintiff argues that these paragraphs do not allege a new cause of action against the Board. They particularize the allegations already contained in paragraphs 3 and 9 of the statement of claim. Paragraph 3 alleges that the Board is vicariously liable, as an employer, for the actions of Elliott and Locken carried out in the course of their employment and within the scope of their duties. Paragraph 9 alleges that the Board is responsible for “the establishment of policies for the effective management of the Toronto Police Service, the conduct of its members, and for ensuring that those members enforce the law in a manner consistent with the provisions of the Act and the regulations, policies and procedures made under, and in accordance with provisions of the Charter, in particular sections 7, 8, 9, 10, 15(1) and 27 of the Charter”.

[21] The plaintiff argues that proposed paragraphs 3A and 3B particularize the Board’s obligation to manage the Toronto Police Service and ensure that its members enforce the law in accordance with the stated legal requirements.

[22] He further argues that the allegations go the factual matrix of the plaintiff’s complaint about his interaction with the police.

[23] I find paragraph 3A to be a new cause of action and leave to add it is denied as it is being advanced after the limitation period has expired. When one reviews the present statement of claim, the claim against the Board is one of vicarious liability. It contains no allegation of negligence against the Board and does not allege that the Board owed the plaintiff a duty of care. Paragraph 3 pleads as follows:

3. The Plaintiff also claims damages as against the Toronto Police Services Board vicariously, as employer of the Police Officers, for their actions and conduct, in the course of their employment and within the scope of their duties.

[24] The proposed amendment in paragraph 3A raises a direct cause of action based on a direct failing by the Board. The amendment cannot be said to be a clarification of facts already pleaded or a cause of action or different legal conclusion arising from facts already pleaded.

[25] While the present claim does note in paragraph 9 that the Board is responsible for establishing policies for the effective management of the police force and for ensuring the members enforce the law appropriately, there is no breach alleged as against the Board with respect to that allegation and no claim for damages arising from the facts set out in that paragraph. The relevant breach of those policies as pleaded in paragraphs 36 and 37 of the present pleading is that of the police officers. The plaintiff alleges that the officers owed him a duty to carry out their investigation in accordance with acceptable police practices, policies, procedures and standards and that they breached that duty to him. The present claim is that the officers did not follow the policies and procedures, not that the policies and procedures were ineffective.

[26] Paragraph 38 of the present claim contains a long list of particulars of negligence against the officers. That there are no similar particulars against the Board confirms that its present exposure is to a vicarious liability claim only. Proposed paragraph 3A cannot be said to be “an alternative claim for relief arising out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based.” (Markovic v. Abbott 2020 ONSC 26 at paragraph 17, citing Ascent Inc. v. Fox 40 International Inc., 2009 O.J. No. 2964 at paragraph 3).

[27] Finally, this view of the pleading is also consistent with the parties’ conduct at the 2016 examinations for discovery. At that time, it was agreed that a representative of the Board need not be examined as the case against it was vicarious, dependent not on its own conduct but on the conduct of its employee police officers.

[28] Had I not disallowed paragraph 3A on the basis of the limitation period issue, I would have disallowed it on the basis that it is not tenable in law. Paragraph 3A alleges that the Board failed to offer effective and meaningful training to Locken and Elliott. As noted in Deciantis v. Toronto Police Service 2001 O.J. No. 2615 (S.C.J.), a decision relied upon by Master Dash in Markovic, supra at paragraph 54, “the Board is not responsible for the supervision and training of police officers. That is the responsibility of the Chief. Similarly, the Board is not responsible for practices, standing and routine orders, directives, training programs and operational practices and structures. Those again are the responsibility of the Chief.”

[29] Unlike proposed paragraph 3A, proposed paragraph 3B is not directed at the Board. It is directed at the conduct of Locken and Elliott. It alleges that they used force against the plaintiff that was “neither necessary, reasonable nor proportionate in the circumstances”.

[30] This amendment is allowed. I find proposed paragraph 3B does not raise a new cause of action but provides particulars of the physical injuries, assault (and its scope) and battery the plaintiff alleges he suffered at the hands of Locken and Elliot.

(b) Proposed paragraphs 21A and 21B

[31] These proposed paragraphs read as follows, with paragraph 21 reproduced for context:

Handcuffed and Taken to Police Station

21. The Plaintiff states that both Sergeant Louken Locken and Officer John Doe 1 Detective Constable Benjamin Elliot handcuffed him tightly and put him in the back of the cruiser. Sergeant Louken Locken then drove him to the police station.

21A. The Plaintiff states that prior to arriving at the police station but after driving from the corner of Kelvin Avenue and the Janeway where the Plaintiff had been arrested and assaulted, Sergeant Locken drove his cruiser and parked it at a bar known as Sunrise Bar located at the foot of Kelvin Avenue and Danforth Avenue. He remained at this location for an unreasonable length of time, without due regard for the effect that the handcuffs that were tightly fastened on the Plaintiff’s hands were having on the Plaintiff.

21B. The Plaintiff states that he experienced great pain and agony from the handcuffs while he sat in the back of the police cruiser outside of Sunrise Bar. The handcuffs which had been fastened very tightly were causing him a lot of excruciating pain and agony. The Plaintiff appealed to Sergeant Locken to loosen the handcuffs. but his appeals were simply ignored. The Plaintiff alleges that stopping and idling his cruiser at the Sunrise Bar was simply an attempt to cause pain to the Plaintiff and extract a confession from him.

[32] The defendants argue that this factual episode is entirely new, represents a separate cause of action and is barred by the Limitations Act. To date, the claim concerned the use of force by Locken and Elliot in the arrest of the plaintiff. These new paragraphs raise an attempt to extract a confession from the plaintiff by isolating him for ten minutes en route to the station. The defendants argue that, not only is this a new cause of action, it was known to the plaintiff since the event took place, was specifically mentioned in the officers’ notes and shown in the car video, both of which he received in December 2015 and was also discussed during Locken’s discovery in March 2016. In short, it is too late for the plaintiff to raise this new cause of action.

[33] I find the defendants’ “common factual matrix” is drawn too narrowly. Looking at the claim as a whole, the plaintiff’s complaint concerns his treatment at the hands of Locken and Elliott throughout his entire interaction with them. It is not parsed minute by minute or separate interaction by separate interaction. His claim seeks damages for racial profiling, assault, battery, unlawful search, unlawful detention, false imprisonment and violation of his Charter rights (paragraph 1(a)). He alleges that his right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, as guaranteed by section 7 of the Charter, were violated (paragraph 1(d). He pleads that his right not to be arbitrarily detained was violated (paragraph 1(f)). A review of the claim confirms that the plaintiff has put in issue the period of time commencing when he alleges he was approached by Locken in his police car and told to get on the ground or be shot until the time of his release from the police station some hours later.

[34] Having put the entirety of his interaction with the police in issue, I do not find this to be a new cause of action but particulars of those claims already pleaded and set out above. These amendments are permitted.

(c) Paragraphs 33A, 33B and 33C

[35] These proposed paragraphs read as follows:

33A. The Plaintiff states that even though the victim had apparently described the suspect as wearing a black jacket with a "hoodie" and stripe on it, Sergeant Locken and Detective Constable Benjamin Elliot arrested and viciously assaulted and beat up the Plaintiff. even though the Plaintiff was not wearing what the victim had described.

33B. The Plaintiff states that in the 911 call to the Police, the victim had not described the suspect as being Black. and had in fact thought that the suspect was Indian. However, the 911 Police Dispatcher, Sergeant Locken and Detective Constable Benjamin Elliot focused on "Black", as the race of the suspect. The Plaintiff states that the dispatcher, Sergeant Locken and Detective Constable Benjamin Elliot focused only on "Black" because of stereotyping. anti-Black racism and a mindset that Blacks are the ones more likely to commit crime than anyone else.

33C. The Plaintiff further states that he did not in fact match or substantially match the description that the victim gave to the 911 Police Dispatcher. The Plaintiff states that Sergeant Locken and Detective Constable Benjamin Elliot did not have reasonable grounds for arresting and violently and viciously beating and assaulting the Plaintiff in the circumstances.

[36] In these proposed paragraphs, the plaintiff alleges that he was racially profiled. He argues that the police assumed the assailant was Black, based on the description of someone wearing a hoodie.

[37] The defendants argue that this is a new cause of action which alleges that the officers and the dispatcher breached their duty to the plaintiff by either misrelaying information or misinterpreting what they were told.

[38] I do not agree that this is a new cause of action. The present claim claims damages for racial profiling (paragraph 1(a)) and alleges that the plaintiff was stopped at gunpoint, assaulted and arrested only because he was Black (paragraph 18). Further, the defendants do not challenge the proposed amendment to paragraph 19, which will then read: “the Plaintiff states that Detective Constable Benjamin Elliott as well engaged in an act of racial profiling of the Plaintiff, when he assisted in arresting him because he was Black and allegedly fitted the description of the suspect he was looking for.”

[39] Paragraphs 33A, 33B and 33C provide particulars of the allegations already pleaded in paragraphs 1(a), 18, 19 and elsewhere in the claim or are additional facts upon which the original right of action is based. These amendments are permitted.

(d) Paragraphs 38(g), 38A, 38B and 44(h)

[40] These proposed paragraphs read as follows:

Particulars of Negligence with Respect to the Arrest and Detention

38. The Particulars of negligence on the part of the Officers Sergeant Locken and Detective Constable Benjamin Elliott with respect to the arrest and detention of the Plaintiff include but are not limited to the following:

(g) Failing to arrange for the Plaintiff to receive medical care and attention before he was released after they beat him up violently and viciously.

38A. The Plaintiff further states that Sergeant Locken and Detective Constable Elliot owed him a duty of care to make sure that he received medical care and attention after they viciously and violently assaulted and beat him up in the course of the arrest. The Plaintiff states that Sergeant Locken and Detective Constable Benjamin Elliot became aware or should have become aware at the scene of the arrest, that there were stains of blood on the T-Shirt the Plaintiff was wearing; that the Plaintiff was bruised: that there were physical signs of trauma and injury all over the Plaintiff’s body and that they should have been alerted to the fact that the Plaintiff required medical care and attention.

38B. The Plaintiff states that Sergeant Locken and Detective Constable Benjamin Elliot breached the duty of care towards the Plaintiff when they failed to get him medical care and attention.

44(h)

Punitive Damages

44. The Plaintiff as well seeks punitive damages from the Police Officers, for the harsh, vindictive, reprehensible, malicious and high-handed manner in which they handled the Plaintiff. The conduct of the Police Officers which justifies an award of punitive damages, includes but is not limited to the following:

Particulars of Conduct Justifying Punitive Damages

(h) Failing to ensure that the Plaintiff was given medical care and attention as was dictated by the circumstances.

[41] The defendants argue that these paragraphs allege a new cause of action, namely the failure of Locken and Elliott to get medical care for the plaintiff, for which the Board would be vicariously liable. They argue that this expands the cause of action from one of negligence “premised on factual and legal claims of negligent investigation”. They argue in their factum that “the factual matrix of the original claim is focused entirely on the errors made investigating the Plaintiff for robbery.”

[42] I disagree with that narrow characterization of both the claim and the factual matrix. The claim is wider than one of negligent investigation; it sounds equally in assault and battery. The plaintiff claims damages for the physical injuries as well as the mental, emotional and psychological injuries he alleges he sustained. He alleges his injuries were significant enough for him to seek treatment at Toronto East General Hospital.

[43] The plaintiff argues that this failure to provide him with medical attention is a further particular of the assault and is relevant to his damages claim. Further, it is a logical extension of the duty they owed him, which arose from the beating they allegedly gave him and goes to their obligation to mitigate any physical and psychological damages they caused him.

[44] The claim in Davis v. East Side Mario’s Barrie 2018 ONCA 410, on which the defendants rely, pleaded that the plaintiff suffered injury due to the condition of the stairs in a restaurant. She alleged the stairs were dangerous, inadequately maintained, poorly lit and caused her to fall. When that claim was struck she amended the claim to add paragraphs alleging that the restaurant should have advised her that there was a restroom on the first floor, which would have allowed her to avoid the stairs. The claim proposed to raise a duty to advise as opposed to a claim in negligence focused on the stairs. Unlike the facts in Davis, I find these amendments particularize the assault claims and claims for physical injuries already included in the pleading.

[45] The statement of claim is replete with material facts concerning the individual defendants’ alleged beating of the plaintiff, the physical damages he suffered, the fact that he was bruised and had blood stains on his shirt. From this factual matrix derives the new paragraphs that plead the individual defendants, once having, allegedly, violently beaten the plaintiff, were required to ensure he received medical care and they failed to do so. The proposed paragraphs are sufficiently related to the present cause of action pleaded for assault, physical injury, and mental injury. They particularize the damages the plaintiff allegedly suffered from an untreated beating. Further, the alleged failure to get the plaintiff medical treatment is arguably an assault in and of itself, falling within the umbrella of assaults pleaded. These amendments are permitted.

Terms of Amendments

[46] This action is now 6 years old and the events giving rise to it took place more than 7 years ago. The remaining steps to trial should proceed expeditiously.

[47] The plaintiff shall amend his statement of claim, in accordance with these reasons, and have it issued within 30 days. The defendants shall have 30 days from receipt of the amended pleading to serve and file an amended defence. The defendants are at liberty to plead a limitations defence should they deem it advisable. The plaintiff should also answer any presently outstanding undertakings in the next 30 days.

[48] The defendants are entitled to examine the plaintiff on these new allegations and the plaintiff is entitled to examine Elliott. The examination of Elliott will be limited to a maximum of three hours. Ideally his discovery and the discovery on the plaintiff on the amendments should be concluded by the end of 2021 which will require counsel to arrange dates now; in any event, they are to be completed by 31 January 2022. I am not prepared to order that the plaintiff bear the cost of this discovery at this stage. Had those paragraphs been in the original pleading, the defendants would likely have spent more time during the original examination as they would have had to question the plaintiff then about these allegations.

[49] If the parties are unable to agree on costs within 30 days, they may submit a bill of costs and a costs outline no more than three pages in length to my assistant trial co-ordinator Ms. Meditskos at Christine.Meditskos@ontario.ca.

Associate Justice Jolley

Date: 6 September 2021