Sharon Paterson v. Her Majesty the Queen in the Right of Ontario et al.
COURT FILE NO.: CV-17-0093
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sharon Paterson
Plaintiff
– and –
Her Majesty the Queen in the Right of Ontario, Detective Sergeant James Thistlethwaite, Constable Kim Johnston
Defendants
D. Charney, for the Plaintiff
D. Pheland, for the Defendants
HEARD: July 26, 2021
RULING ON MOTIONS
J. Di luca j.
[1] These reasons address a motion by the plaintiff seeking an order directing a fresh or, in the alternative, a continued examination for discovery of the two named individual defendants. The plaintiff argues that the unnecessarily aggressive, combative, and condescending conduct of defendants’ counsel (not Mr. Pheland) effectively thwarted the fair conduct of the examinations for discovery thus warranting this court’s intervention.
[2] These reasons also address a cross-motion by the defendants seeking an order striking out portions of the claim that fail to disclose a reasonable cause of action and dismissing portions of the claim and/or striking out pleadings that are frivolous, vexatious or an abuse of process. The defendants argue that the core complaint in the Statement of Claim discloses no reasonable cause of action.
[3] Counsel agree that I should consider the cross-motion first as the outcome on that motion may inform, at least to some degree, the outcome of the initial motion.
Background to the Action
[4] This action stems from interactions between Sharon Paterson and two Ontario Provincial Police Officers following a domestic incident on November 12, 2014. On that date, Ms. Paterson was arrested and charged with assaulting her common-law partner, Dennis Sunstrum. The allegation was that she grabbed and ripped Mr. Sunstrum’s shirt during an argument. Constable Kim Johnston was the investigating officer. Sergeant James Thistlethwaite was Cst. Johnston’s superior.
[5] While dealing with Cst. Johnston in relation to the allegation made against her, Ms. Paterson conveyed an allegation of voyeurism by Mr. Sunstrum. More specifically, Ms. Paterson advised Cst. Johnston that the reason she and Mr. Sunstrum got into an argument was her discovery of surreptitiously recorded videos taken by Mr. Sunstrum which depicted a young woman who had stayed at their house, in a state of undress or undressing. Ms. Paterson indicated that she found the videos on Mr. Sunstrum’s computer and had taken copies of eight such videos. She wanted the police to investigate and charge him accordingly.
[6] Mr. Sunstrum was also interviewed by police. He was confronted with the allegation of voyeurism and it is alleged that he effectively admitted committing the offence.
[7] Despite the information received, the investigating police officer, in consultation with her superior officer, declined to lay a charge against Mr. Sunstrum. Instead, as Ms. Paterson alleges, the police told her that she could be charged for having copies of the videos. She was also counseled by police to destroy the videos and the camera.
[8] In June 2015, following the peace bond resolution and withdrawal of her charge before the court, Ms. Paterson again pursued the issue of charges against Mr. Sunstrum with Cst. Johnston. It is alleged that Cst. Johnston tried to persuade Ms. Paterson to “drop the matter.” However, Cst. Johnston eventually brought the matter to the attention of other police officers, who eventually laid a voyeurism charge against Mr. Sunstrum. While it appears that by that time the offending videos had been deleted, police were able to retrieve three videos from his computer using forensic tools.
[9] Mr. Sunstrum was eventually convicted of voyeurism following a trial in the Ontario Court of Justice.
[10] Ms. Paterson commenced her claim on January 11, 2017. As originally framed, the claim sought approximately $400,000 in damages for, inter alia, negligent/malicious investigation of the allegations against Mr. Sunstrum, and for torts of negligence, battery, trespass, conversion, intimidation and conspiracy in relation to how the police treated her in relation to the allegations she raised against Mr. Sunstrum. She also sought damages for violations of her Charter rights and for violations of the Human Rights Code.
The Events Leading up to the Examinations for Discovery
[11] On May 3, 2017, Crown counsel wrote to plaintiff’s counsel indicating that he had decided to bring a motion to “clean up the pleadings”, including removing “torts” which were not torts at law, striking certain aspects of the claim such as the claim for negligent investigation and striking the claim based on the Human Rights Code.
[12] A statement of defence was delivered on October 5, 2017.
[13] Examinations for discovery were scheduled for April 25 and 26, 2018 in Cobourg. Despite the earlier letter from Crown counsel, no motion to strike was brought in advance of the discoveries.
[14] On April 20, 2018, a few days before the discoveries, Crown counsel wrote to Ms. Paterson’s counsel and outlined his position on certain aspects of the action. He did so “as a courtesy” and “to ensure there are no surprises at the upcoming examinations for discovery.” Crown counsel re-iterated the position stated in the Statement of Defence, namely; that the plaintiff has no legal right to direct that police discretion be exercised against another individual, and that as a result any allegations related to the police decision to not lay charges against Mr. Sunstrum are not material facts and are “scandalous and embarrassing.”
[15] The letter also states as follows:
I can advise that any questions arising from anything other than the facts related to the charge laid against your client and its resolution will be refused as irrelevant. In the event that a refusals motion is brought in respect of any such refusals, I can advise I will seek instruction to bring a cross-motion at that time to strike all related allegations in your client’s claim.
I can further advise that on the same principle, it is not my intention to question your client about any allegation made about a third party in her claim.
[16] Ms. Paterson’s examination for discovery was conducted on April 25, 2018. It was much briefer than expected.
[17] The discoveries of Cst. Johnston and Sgt. Thistlethwaite were conducted on April 26, 2018. These examinations were also brief. As will be discussed below, these examinations were also fractured, disrupted and marked by an unnecessary degree of incivility.
[18] Following discoveries, counsel respectively decided to bring these motions. In an email dated March 5, 2019, counsel for the plaintiff wrote to Crown counsel as follows:
If your cross-motion is to strike paragraphs from the statement of claim, please let me know what paragraphs you seeking [sic] to have struck so that I can seek instructions from my client. We might avoid the costs of you bringing a contested motion or at least limit the issues.
[19] This email went unanswered. However, Crown counsel delivered a Notice of Cross-Motion which specified which paragraphs of the claim he was seeking to strike.
[20] In an email dated March 27, 2019, counsel for Ms. Paterson agreed that paragraphs 32(a) and 32(b) be struck. These paragraphs allege Cst. Johnston and Det. Thistlethwaite were negligent and/or malicious when they; (a) failed to investigate, charge and arrest Mr. Sunstrum; and, (b) failed to seize evidence of a serious criminal offence.
[21] On May 24, 2019, the parties appeared before Corkery J. for argument of the motions. Justice Corkery did not hear the substance of the motions, but instead held an in-chambers pretrial conference which resulted in an Order requiring the plaintiff to file an amended Statement of Claim.
[22] In accordance with the Order of Corkery J., an Amended Statement of Claim was filed on June 14, 2019. While the order also directed the delivery of an Amended Statement of Defence, Crown counsel took the position that in view of the minimal amendments made, there was no need to do so.
The Motion to Strike
[23] As set out in the Amended Amended Notice of Motion, the defendants rely on Rule 21.01(b) of the Rules of Civil Procedure to strike out certain claims, or portions thereof, in the Amended Statement of Claim on the basis that they disclose no reasonable cause of action. They also argue that other aspects of the claim should be dismissed under either Rule 21.01(3)(a) or (d). In the alternative, the defendants rely on Rule 25.11 and seek to strike out certain paragraphs of the pleadings on the basis that they are scandalous and/or an abuse of the court’s process.
[24] The plaintiff argues that the motion should be dismissed outright as it was not brought promptly as required by Rule 21.02. In the alternative, the plaintiff argues that the Amended Statement of Claim, which no longer advances a claim of negligent/malicious investigation in relation to the investigation of Mr. Sunstrum, survives the scrutiny of a Rule 21 and Rule 25.11 motion.
Analysis and Findings
[25] There is no issue that a Rule 21 motion should be brought “promptly” as required by Rule 21.02. There is also no issue that in appropriate circumstances, a court may refuse to hear a motion to strike that has not been brought promptly, see Fleet Street Financial Corp. v. Levinson, 2003 21878 (ONSC). The requirement to act promptly in bringing such a motion is consistent with the goals of reducing costs in litigation, facilitating early resolution of matters and bringing cases to an expeditious and just determination.
[26] In this case, I am not satisfied that I should dismiss the motion on this basis. First, there is no issue that portions of the claim, as originally framed, would have been struck as disclosing no reasonable cause of action. This is implicit in the fact that the Amended Statement of Claim no longer advances certain aspects of the original claim. Second, while it would have been preferable for the issue to have been determined in advance of the examinations for discovery, this is not a case where plaintiff’s counsel, having been placed on notice that a motion was being contemplated, took the position that examinations for discovery should await its determination. Instead, it appears that plaintiff’s counsel acquiesced in the proposal set out in Crown counsel’s letter dated April 20, 2018.
[27] However, as will be discussed later in these reasons, Crown counsel’s strategy to only bring a Rule 21 motion if the plaintiff brought a refusals motion was ill-conceived. Crown counsel’s position on the relevance of the discovery questions relating to the investigation of Mr. Sunstrum was simply wrong. That mistaken position set up the inevitable demise of the discovery process. That demise could have been avoided if the Rule 21 motion had been brought in advance.
[28] While I decline to dismiss the cross-motion at the outset, I will consider the timing of the motion and the implications of the timing of the motion on the issue of costs.
[29] Turning to the merits of the cross-motion, I note that on a Rule 21.01(b) motion the test is whether, assuming the pleaded facts to be true, the claim has no reasonable prospect of success, see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17. The test is applied generously so as to allow novel but arguable claims to proceed to trial, see Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526 at paras. 15 and 16 and O’Farrell v. Canada (Attorney General), 2016 ONSC 6342 at paras. 31-34.
[30] Where the issue relates to the jurisdiction of the court to determine the claim, a defendant may move under Rule 21.01(3)(a) for the dismissal of an action on jurisdictional grounds. On such a motion, the question is whether or not jurisdiction exists, not whether the claim has a reasonable prospect of success; see Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), supra, at para. 17.
[31] Under Rule 21.01(3)(d), a defendant may move to dismiss an action that is frivolous or vexatious or otherwise an abuse of the court’s process. A claim may be found to be frivolous, vexatious, or an abuse of process where it asserts untenable pleas, contains insufficient material facts to support the allegations made, is generally without merit, or is commenced for an extraneous or collateral purpose, see White v. Canada, 2011 ONSC 5816, at para. 20. The test for dismissing an action on this basis is high and requires that the court be satisfied that there is no merit in the claim. The court should only dismiss an action on this basis “in the clearest of cases”, see Salasel v. Cuthbertson, 2015 ONCA 115 and Currie v. Halton Regional Police Services Board, 2003 7815 (ON CA) at paras. 17-18.
[32] Rule 25.11(b) states that a court may strike out all or part of a pleading with or without leave to amend if the pleading is scandalous, frivolous or vexatious. Pleadings that are irrelevant, argumentative or inserted only for colour, or that constitute bare unfounded allegations should be struck out, see Parker v. Pfizer Canada Inc., 2011 ONSC 5169 at para. 25 and Fockler et al. v. Eisen et al., 2012 ONSC 5435, at para. 27.
[33] Against the backdrop of these principles, I turn next to determining the specific complaints raised by the defendants.
[34] The plaintiff initially included a claim against the individual defendants for damages relating to the negligent and/or malicious investigation of Mr. Sunstrum. In particular, the plaintiff claimed that the defendants “failed in their duties to prevent and investigate crime, apprehend criminals and assist victims of an offence” and further that they “failed to investigate, charge and arrest Sunstrum” and “failed to seize evidence of a serious criminal offence.”
[35] During the initial stages of this proceeding, the defendants quite properly took the position that the investigating police officers owed no duty of care to the plaintiff in relation to their investigation of Mr. Sunstrum for the offence of voyeurism. This position is based on a well-established line of authority which stands for the general proposition that public authorities, charged with making decisions in the general public interest, ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public, see Wellington v. Ontario, 2011 ONCA 274 and Connelly v. Toronto (City) Police Services Board, 2018 ONCA 368 at paras. 5-7.
[36] Perhaps in recognition of this case law, the plaintiff abandoned the aspects of the claim alleging negligent and/or malicious investigation in relation to the investigation of Mr. Sunstrum. In this regard, I note the amendments to paragraph 32 and the deletion of paragraphs 32(a) and (b) in the Amended Statement of Claim. In my view, the Amended Statement of Claim resolves the core issue on the cross-motion.
[37] Notwithstanding the Amended Statement of Claim, Crown counsel argues that this action, in essence, remains centered on Ms. Paterson’s personal complaint about the failure of the investigating officer to charge Mr. Sunstrum. The plaintiff’s position is that the claim is mainly about how Ms. Paterson was treated by the investigating officer and that the context for the claim includes what the police did in relation to Mr. Sunstrum. The plaintiff points to paragraphs 24 to 31 of the Amended Statement of Claim to support the over-arching submission that the core of the complaint is (as always has been) Ms. Paterson’s treatment by the police officers.
[38] On this issue, I agree with the plaintiff. The claim, as presently constituted, only seeks damages in relation to what the police did to Ms. Paterson when she brought to their attention her basis for believing that her domestic partner had committed the offence of voyeurism. Her central complaint is that the police threatened her with a false arrest and directed her to destroy her property. This complaint is advanced as a claim in negligence, trespass, conversion, intimidation, conspiracy, malicious breach of public duty and misfeasance of public office. As such, I see no basis to strike the claim on the basis that it reveals no reasonable cause of action.
[39] That said and for the sake of completeness, I will review the impugned paragraphs as listed in the Amended Amended Notice of Motion and as addressed in paragraph 7 of the defendants’ factum.
The Impugned Claims
a. Paragraph 1(a) – “malicious breach of public duty and misfeasance of public office” – in view of the amendments to the claim which remove the claims of negligent and malicious investigation vis-à-vis Mr. Sunstrum, the aspects of the claim that plead breach of public duty and misfeasance of public office now relate solely to the claim relating to the plaintiff’s alleged mistreatment by the police defendants. Viewed in this manner, I see no basis upon which to strike this portion of the claim. To the extent that the material facts pleaded relate to the investigation of Mr. Sunstrum, I am further satisfied that they provide essential context and narrative that serve to frame the nature of the conduct vis-à-vis Ms. Paterson.
b. Paragraph 1(b) – “breach of the plaintiff’s Charter rights under…s. 15” – on this issue, the plaintiff pleads that the police violated her section 15 Charter rights by treating her through a lens of sexist stereotypes. The defendants argue that this claim is frivolous and vexatious as there is nothing to suggest that the plaintiff’s equality rights were infringed in this case.
In view of the test that is to be applied in assessing this aspect of the claim, I see no basis upon which it should be struck or dismissed. The material facts pleaded support a finding that Ms. Paterson was treated differently on the basis of sexist stereotypes, and in particular the sexist stereotype of a vindictive spurned woman. The material facts include allegations that her male domestic partner was treated very differently, despite the presence of reasonable grounds to believe that he had committed an objectively more serious criminal offence. On the basis of the material facts as pleaded, I am unable to conclude that the section 15 Charter claim is “doomed to fail” as that phrase is used in the case law. I also see no basis to find that this aspect of the claim is frivolous, vexatious or otherwise an abuse of process.
c. Paragraphs 1(c), 30 and 38 – “breach of section 1 of the Human Rights Code” – the defendants argue that the court has no jurisdiction to determine an alleged Human Rights Code violation and that the proper forum for this aspect of the claim is before the Human Rights Tribunal. This argument is answered by sections 46.1 and 46.2 of the Human Rights Code and the related caselaw. Under section 46.1, a court has the jurisdiction to award damages for a violation of the Human Rights Code. However, commencing an action based solely on a claimed violation of the Human Rights Code is prohibited by section 46.2. The issue, therefore, is whether there is a proper claim before the court apart from the Human Rights Code claim, see Jaffer v. York University, 2010 ONCA 654 at para. 44, Nelson v. Ontario, 2020 ONCA 751 at paras. 36-38 and Kideckel v. Gard-X Automotive Refinish Inc., 2020 123 (Div.Ct.) at paras. 24-26.
In this case, I am satisfied that there exists a proper claim before the court apart from the Human Rights Code allegation. Further, I do not view this action as a “stealth” Human Rights Code action which would, in effect, violate section 46.2 of the Code.
The Impugned Pleadings
d. Paragraphs 11, 13-16, 18 (as amended), 19 and 22 – these paragraphs plead material facts that, in whole or in part, describe what the police did or did not do vis-à-vis Mr. Sunstrum. The defendants argue that any pleadings that relate to the investigation of Mr. Sunstrum are improper, as the claim for negligent and/or malicious investigation of Mr. Sunstrum is improper and is no longer being advanced.
I am not satisfied that these impugned paragraphs should be struck as frivolous or vexatious, even in the absence of a claim for negligence in relation to the investigation of Mr. Sunstrum. Again, the nature of the police conduct vis-à-vis Mr. Sunstrum is relevant and material to the claim advanced by Ms. Paterson. The claim posits that the police threatened her with criminal charges and pressured her into destroying evidence while not pursuing that very same matter against the actual perpetrator of the voyeurism offence. The impugned paragraphs provide the context and narrative within which the claim by the plaintiff is situated. They are not frivolous, vexatious, abusive, scandalous or embarrassing as suggested by the defendants.
In addition, some of these paragraphs plead material facts in support of the section 15 Charter and Human Rights Code claim. As I am satisfied that those claims are properly before the court, I see no basis on which to strike these paragraphs.
e. Paragraphs 26, 28-30, 33 – these paragraphs are found in the portion of the Amended Statement of Claim entitled “Basis for Claim.” When this portion of the claim is viewed in context with the Amended Statement of Claim as a whole, the purpose of these paragraphs appears to be setting out the manner in which the material facts pleaded support the various causes of action advanced. When I consider the claim as presently constituted, and consider the material relevance of the alleged police conduct vis-à-vis Mr. Sunstrum, I am not prepared to strike the impugned paragraphs, despite the presence of one or two arguably colourful adjectives.
Paragraph 32 – as discussed above, the claim of negligent investigation of Mr. Sunstrum is no longer advanced in the Amended Statement of Claim. I see no basis to strike any portion of the paragraph as it now stands.
[40] The cross-motion is dismissed.
The Discoveries Motion
[41] I turn next to the motion dealing with the discoveries of Cst. Johnston and Sgt. Thistlethwaite. The plaintiff brings this motion pursuant to Rule 34.14(2) of the Rules and seeks direction from the court with respect to the continuation of the examination of the defendants. The plaintiff argues that the conduct of defendants’ counsel thwarted the fair conduct of the discoveries. In particular, the plaintiff argues that defendants’ counsel:
a. Interfered with the examination with improper interruptions and objections and refusals to answer relevant questions;
b. Inappropriately answered questions on behalf of defendants and/or directed them on how to answer; and,
c. Subjected plaintiff’s counsel to personal attacks and ridicule.
[42] The plaintiff seeks an order under Rule 34.15 compelling the defendants to re-attend discoveries and answer relevant questions that were refused. The plaintiff also seeks costs thrown away for the discoveries already conducted as well as costs for the continued discoveries.
[43] Building on the position advanced in the cross-motion, the defendants argue that the permissible scope of examination for discovery was properly narrowed by Crown counsel who objected to any question relating to the investigation of the voyeurism charge against Mr. Sunstrum. Further, the defendants argue that while the conduct exhibited during the discovery was not entirely balanced and civil, it was also not one-sided and involved both counsel exchanging barbed comments amidst escalating tensions.
[44] I start my analysis of this issue by reiterating that the position of Crown counsel on the relevance of questions relating to the investigation of Mr. Sunstrum in relation to allegations of voyeurism was simply wrong. As indicated, what the police did vis-à-vis Mr. Sunstrum is integrally related to the overall context and narrative of the claims advanced by Ms. Paterson, even in the absence of a claim for negligent investigation in relation to Mr. Sunstrum. As such, it was entirely proper for plaintiff’s counsel to seek to discover the defendants on these issues.
[45] Crown counsel’s position on relevance was not only wrong, but it also doomed the discovery process as it essentially “set up” plaintiff’s counsel, who either had to acquiesce in the mistaken position on relevance or face a long string of refusals. Understandably, counsel attempted to ask what he believed were relevant questions and not surprisingly his questions were met with refusals. While the defendants argue that since plaintiff’s counsel knew in advance what Crown counsel’s position was going to be, the fault for the demise of the discovery rests on him. It must be remembered that when discoveries took place the pleading alleging negligent investigation of Mr. Sunstrum was a “live pleading.” Crown counsel had the option of bringing a motion in advance to strike the pleading and perhaps frame the scope of discovery, but he chose not to do so. Instead, he opted to force the issue onto the plaintiff. On this basis alone, I am prepared to find that the discovery process was fatally flawed essentially from the get-go.
[46] Nonetheless, I turn to assessing whether Crown counsel’s conduct also unfairly impacted the discoveries. On this issue, I start with an acknowledgement of the over-arching importance of civility between counsel. Uncivil conduct undermines the adversarial process in a number of ways; it can prejudice a client’s position, it is distracting and can serve to draw attention away from the actual task at hand, it makes participation in the justice system more stressful for everyone including witnesses and opposing counsel, and it erodes public confidence in the administration of justice, see Groia v. Law Society of Upper Canada, 2018 SCC 27 at paras. 63-67.
[47] While “trials are not tea parties” and significant leeway must be granted for forceful advocacy, when matters descend into the realm of personal attacks and ridicule, the goals of professionalism and ethical advocacy are unquestionably undermined. This is so even when, as at discovery, there is no judge in the room. Indeed, the onus on counsel to act civilly and professionally may arguably be heightened when proceedings take place in the absence of a judicial officer who can quickly stop any uncivil conduct. More to the point, the absence of the moderating presence of a judicial officer should not be viewed as a licence to engage in bullying or other similarly aggressive and unwarranted behaviour that would never be appropriate before the court.
[48] In this case, I agree with plaintiff’s counsel that the conduct of Crown counsel devolved into unwarranted personal attacks and ridicule. The personal attacks and ridicule undermined the fairness of the proceeding and, in combination with the erroneous position taken on relevance, ultimately thwarted the very purpose of the discovery process. Rather than serving as a valuable step in the truth-seeking process, these examinations for discovery were essentially pointless.
[49] Some context for these conclusions is required. The first day of discovery, April 25, 2018, was reserved for the plaintiff. That examination was brief and focussed, lasting less than 40 minutes. Indeed, it appears that the brevity of the examination took plaintiff’s counsel by surprise.
[50] On April 26, 2018, discovery of the two individual defendants took place. At the outset of the examination of Sgt. Thistlethwaite, plaintiff’s counsel indicated he wished to memorialize an “off the record” discussion from the day prior. Over Crown counsel’s objections, he noted the brevity of Ms. Paterson’s discovery given that the questions were focussed on damages and not liability. He then noted that the discoveries of all three parties could have been combined into one day with less costs incurred. Crown counsel replied, “your speechifying is not proper on this.” Plaintiff’s counsel returned to the issue of relevance which had been the subject of prior discussion. The following exchange then took place:
MR. CHARNEY: …I think we’re going to have some disputes around what’s relevant; it seemed to me, again based on our discussion yesterday, that you had misread the claim?
CROWN COUNSEL: Okay. Now, I object. I mean, this is -- this, you know, your opinion piece editorial about our response to this claim is one thing, but I think it’s very improper to put it on the record on a discovery.
MR. CHARNEY: All right, but I think it’s just going to inform us as we go forward as to we’re going to keep ---
CROWN COUNSEL: It’s not informing me of anything.
MR. CHARNEY: --- having this --- we’re going to have this discussion around what’s relevant and what’s not and I just think that today, like yesterday, is going to not be very efficient. but anyway let’s see how ---
CROWN COUNSEL: Well thank you for your thoughts and they mean absolutely nothing in terms of discovery.
CROWN COUNSEL: Sorry, the one comment I will have, though ---
MR. CHARNEY: Sure.
CROWN COUNSEL: --- is if you had a problem with yesterday’s discovery, as I believe I may have said yesterday, you have your relief, bring a motion.
MR. CHARNEY: Yeah.
CROWN COUNSEL: You know, like, jabbering on and on here, on the record about your interpretation of what was said yesterday, is pointless and is timewasting in and of itself; and self-help, you know when you throw in a term like “costs thrown away” etcetera. I’m not going to debate more than that. So if we can proceed with the discovery, that’s good.
[51] Regrettably, it appears that this initial exchange set the tone for the examination that followed. At repeated instances during the remainder of the examination, Crown counsel interrupted counsel, editorialized, and generally impeded the orderly process of discovery.
[52] Some of the more obvious examples during Sgt. Thistlethwaite’s examination are set out below:
a. When plaintiff’s counsel was trying to determine what portions of the officer’s notes related to the incident, Crown counsel repeatedly insisted that anything to do with Mr. Sunstrum was irrelevant – though he did not assist in clarifying whether a specific notation was related to Mr. Sunstrum or to an entirely unrelated investigation. When plaintiff’s counsel attempted to clarify, Crown counsel replied, “that’s a ridiculous question” and indicated that he would not “debate” the issue. When counsel pressed for clarification, Crown counsel replied “Let’s move on. This is going to take an hour to get through a page of unrelated information, counsel. Is that the best way to spend your client’s money?” [Emphasis added.]
b. In response to plaintiff’s counsel raising the relevance of matters relating to Mr. Sunstrum, Crown counsel stated that the issue was irrelevant as it related to a claim that the plaintiff could not advance and then added, “and you have heard that first in our defence, in our letter accompanying our documents, in the letter I sent you on April 20th, so it should not have been a surprise to you. If you’ve read our defense, which I presume you have –"
c. When counsel attempted to ask Sgt. Thistlethwaite when he first became aware of the plaintiff, Crown counsel objected stating, “that’s not a proper question.” When plaintiff’s counsel asked why it was not a proper question, Crown counsel replied, “Well I say it’s not and I say it’s irrelevant and we won’t deal with it. Bring a motion.” Plaintiff’s counsel then stated “But you’re saying everything is irrelevant” to which Crown counsel responded, “No, that’s not what I’m saying and I’m not going to engage in endless argument with you on the record, that’s not what the rules provide.”
d. When plaintiff’s counsel attempted to ask the question in the fashion suggested by Crown counsel, albeit with reference to a paragraph of the Statement of Claim, Crown counsel objected and indicated that the witness would respond in accordance with the Statement of Defence and not the Statement of Claim. Plaintiff’s counsel then stated, “Sorry, you don’t get to define the claim. You defend the claim.” Crown counsel responded, “…this is not law school; this isn’t some debating forum. If you want to read me that sort of lecture about how one responds to a claim, do so other than here.” [Emphasis added.]
e. The examination concluded with the following exchange:
MR. CHARNEY: All right, So, you know, subject to a future court order, I guess directing the officer to answer questions, then it’s ---
CROWN COUNSEL: I think a more proper way of saying it is subject to a motion.
MR. CHARNEY: Yeah.
CROWN COUNSEL: The resulting motion is something else.
MR. CHARNEY: Sure, okay. Thanks, that’s it.
[53] The examination for discovery of Cst. Johnston followed. Again, Crown counsel repeatedly and unnecessarily interrupted the questioning, at times answering questions and at times refusing on the mistaken basis that the question was irrelevant. Some of the more troubling instances include, inter alia, the following:
a. Cst. Johnston agreed that she told the plaintiff that she could be charged with a criminal offence in relation to her possession of copies of the videos taken by Mr. Sunstrum. When plaintiff’s counsel asked what specific criminal offence the officer had in mind, Crown counsel refused to permit the answer on the basis of relevance.
b. When plaintiff’s counsel mistakenly referred to the “affidavit of documents” prepared on behalf of the defendants, Crown counsel stated “The Crown doesn’t produce an affidavit of documents….It’s a list of documents pursuant to the Proceedings Against the Crown….Let’s have some specificity.”
c. When plaintiff’s counsel appeared to pause while looking at various documents, Crown counsel interjected, “Counsel, I note these little delays, are you just reading it now? Is that why we’re taking time?” [Emphasis added.]
d. When plaintiff’s counsel attempted to ask questions about the Information to Obtain the search warrant for Mr. Sunstrum’s computer, Crown counsel objected on the basis of irrelevance. He then added:
CROWN COUNSEL: …anything to do with the information to obtain, any of its contents, is not going to be answered. It’s a refusal for the reasons set out in the defence, in my letter to you of April 20th, and which you’re painfully aware I’m sure at this point. So going through it is an empty exercise.
MR. CHARNEY: It seems that these discoveries have been an empty exercise, entirely.
CROWN COUNSEL: Oh, your feelings and opinions matter very little in terms of a discovery, sir. I’ve heard a lot about them, but they don’t really matter. And editorializing does not push the cause forward at all, and doesn’t even help you on any eventual motion. But editorialize as you will, it’s your client’s money. [Emphasis added.]
e. During an exchange wherein plaintiff’s counsel was attempting to ask questions about issues relating to the claim, but which Crown counsel maintained were irrelevant based on his stated position regarding the investigation of Mr. Sunstrum, plaintiff’s counsel attempted to gain a better understanding of the precise nature and scope of the objection. Crown counsel commented, “I’ve provided a brief explanation, in fact I did you the courtesy of writing to you on April 20th, to advise you of the same thing, and if you’d read with any understanding the defence, you would understand the basis for those refusals. This should come as no surprise…” Mr. Charney expressed his surprise and then attempted to move on to his questions. Crown counsel then added, “Yes, because anything – your statements of opinion and feeling are becoming a little tiresome….Its now 12:15. And we’ve heard more about how you feel than anything else, sir. [Emphasis added.]
f. In response to Crown counsel answering a question by referring to a specific portion of the statement of defence, plaintiff’s counsel, no doubt frustrated by the frequency of this manner of responding to questions, stated, “Your counsel can direct you as to how to answer the question.” Crown counsel noted that this comment was improper and continued, “But I don’t expect much more from you at this point. You’re trying to be provocative, and that is counterproductive, time wasting.” [Emphasis added.]
g. When plaintiff’s counsel again attempted to ask questions about the nature of the criminal offence that his client was told she could be charged with, Crown counsel objected. When Mr. Charney attempted to address the matter, Crown counsel replied, “Well that’s a pretty little speech, I’ve already refused the question, so when you get a chance, move on. Once again, this is not a place for endless debate, endless speeches about what you think your claim is about.” [Emphasis added.]
h. On more than one occasion, Crown counsel directed plaintiff’s counsel to ask “proper questions” in instances where there was nothing overtly objectionable with the question. On one such occasion, he added for good measure, “or we’ll be here for two days, three days.” And on another occasion, helpfully adding, “See, yeah! Try not to insinuate or make prejudicial comments as part of your question. It’ll go a lot faster.” [Emphasis added.]
i. On more than one occasion, Crown counsel objected to a question seemingly because it asked the witness to recite or expand upon facts pleaded in the statement of defence. Crown counsel appears to have taken the position that if the matter was stated in the statement of defence it was essentially adopted by the witness. On several occasions when doing so, he answered for the witness rather than simply letting the witness respond to the questions.
j. Following a less than productive exchange, Crown counsel stated “You placed the question on the record. What are you – you’re padding the time now, counsel?” [Emphasis added.]
k. Following another less than productive exchange about the provenance of an electronic document which ended with plaintiff’s counsel suggesting that it was an issue that Crown counsel could have asked the plaintiff during examination for discovery but did not, Crown counsel commented, “Sir, your sarcasm about how I conducted the discovery yesterday as per how I wanted – You know, you’re gloss of comments on it are – I think rather juvenile.” [Emphasis added.]
l. Following another instance where Crown counsel reiterated his objection to questions relating to Mr. Sunstrum, Crown counsel took plaintiff’s counsel to task for talking over him and then added, “Are you – this is some science of being ignorant, is it, that you developed? Do you find that aggravating people actually works in your practice? [Emphasis added.]
m. When plaintiff’s counsel asks Crown counsel to permit the witness to answer her own questions, Crown counsel replied, “Well, in discoveries, if counsel answers, and if the witness adopts that answer, that is an answer of the person.”
n. After a repeated string of refusals and comments by Crown counsel suggesting that he was not prepared to “debate refusals”, plaintiff’s counsel stated “…so im going to move on to another area, but just for the record, I have not asked all my questions about the phone conversations.” Crown counsel replied, “That’s a ridiculous thing to put on the record. Ask your questions, I’ll refuse them….Otherwise you’re sitting there generating your own little reality.” [Emphasis added.]
o. On another instance where Crown counsel answered on behalf of a witness and plaintiff’s counsel objected, Crown counsel commented, “Is this another one of your little speeches that I’m going to have to listen to?” and further on “You can really stretch the clock out, counsel.” [Emphasis added.]
[54] The defendants acknowledge that some of the comments by Crown counsel at the discovery may have “crossed the line.” That said, they maintain that this was not a “one-sided” affair. They argue that this discovery can be best viewed as an instance of both sides “digging-in” and refusing to bend.
[55] I have read and re-read the transcripts of the examinations for discovery. Despite the limitations inherent in reading a transcript as opposed to hearing matters viva voce, I am satisfied that the passages highlighted above give an objective and distinct flavour of the nature and tone of the proceedings. It is not one that should be either countenanced or encouraged.
[56] While plaintiff’s counsel’s conduct was not perfect, I do not see his conduct as substantiating any of the responses, comments and criticisms offered by Crown counsel. Plaintiff’s counsel was correct on the issue of the relevance. He attempted to conduct an examination on that basis. He was not only obstructed, but he was also subject to repeated personal attacks and insinuations that served to potentially undermine his relationship with his client. This was not a two-sided affair.
[57] I am satisfied that the plaintiff’s right to examine both individual defendants was interfered with by an excess of improper interruptions and objections in violation of Rule 34.14(1)(a) of the Rules.
[58] In terms of remedy, I have considered the option of reviewing and ruling on each refusal and ordering the witnesses to answer accordingly. While I agree with the defendants’ submission that the vast majority of questions asked were actually answered, given the overall tenor of the examinations, the number of interruptions including several that were openly uncivil, and in view of my ruling on the relevance of discovery questions relating to the investigation of Mr. Sunstrum, I am of the view that a fresh examination for discovery is required.
[59] I trust that any future discoveries will not only be conducted in accordance with these reasons, but also in the true spirit of civility and professionalism that stands as one of the hallmarks of our justice system.
Conclusion
[60] The defendants’ cross-motion is dismissed. There is no basis to strike any portion of the claim or pleadings as set out in the Amended Statement of Claim.
[61] The plaintiff’s motion is allowed. A fresh discovery of the two individual defendants is ordered.
[62] In addition, paragraph 1(iv) of the Amended Amended Notice of Cross-Motion seeks an order either sealing or redacting the Information to Obtain a Search Warrant contained in the Plaintiff’s motion record, as this document reveals the identity of the complainant on the voyeurism charge as well as the name of another female non-party. This aspect of the motion is on consent. I leave it to counsel to confer and determine which approach is the most practical, though in the interim I impose a non-publication order banning publication of any detail that would identify either female non-party.
[63] In terms of costs, I note that at the outset of the hearing, counsel for the plaintiff confirmed that he was no longer seeking costs personally against Crown counsel who had initial carriage of the matter as that counsel had since retired.
[64] I also note that counsel seeks costs thrown away for the discoveries to date and costs of the future discoveries that I have now ordered. I am satisfied that the plaintiff should get costs thrown away for the second day of the discoveries. While I will not fix an amount at this time, I will indicate that I am not satisfied that costs thrown away include costs in relation to the first day of discovery, nor do they include costs of staying overnight in Cobourg.
[65] In terms of the costs of the future discoveries, while Rule 34.15(2)(a) permits the granting of costs for “any continuation” of the examination, I am not satisfied that I should do so. While the conduct exhibited in these proceedings is not common, this is not a case where it warrants the cost consequence relating to the future discovery. Given that I am ordering costs thrown away in relation to the second day of discovery, costs of the fresh discovery should be borne by the plaintiff as in the ordinary course.
[66] Counsel are invited to provide costs submissions addressing both motions, including the quantum of costs thrown away in relation to the second day of discoveries, through my judicial assistant at Diane.Massey@ontario.ca. The submissions shall be combined and no longer than 5 pages in length, exclusive of appropriate appendices. The plaintiff’s submissions are due within 14 days of the release of these reasons. The defendants shall have 7 days to respond once they receive the plaintiff’s submissions.
J. Di Luca J.
Released: September 22, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sharon Paterson
Plaintiff
– and –
Her Majesty the Queen in the Right of Ontario, Detective Sergeant James Thistlethwaite, Constable Kim Johnston
Defendants
ruling on motions
Justice J. Di Luca
Released: September 22, 2021