Court File and Parties
COURT FILE NO.: CV-21-76641 (Hamilton)
DATE: 2022/07/07
SUPERIOR COURT OF JUSTICE-ONTARIO
RE: ERDUAN SOLAK, ASHLEY SOLAK, AUSTIN DANIEL SOLAK, BLAKE ALEXANDER SOLAK, and ERIC REID SOLAK AND HAZEL LAUREN SOLAK by their Litigation Guardian ASHLEY SOLAK, Plaintiffs
-and-
BRANTFORD POLICE SERVICES BOARD, PAUL WIACEK, STEVEN SHEFFAR, JOHN DOE #1, JOHN DOE #2, JOHN DOE #3, CHIEF OF POLICE ROBERT DAVIS, CHIEF OF POLICE GEOFF NELSON, and CHIEF OF POLICE JASON SAUNDERS, Defendants
BEFORE: Gibson J.
COUNSEL: Daniel Roncari, Counsel for the Plaintiffs Alexander Neaves and Stacey Williams, Counsel for the Defendants Brantford Police Services Board, Paul Wiacek, Steven Sheffar, Robert Davis, Geoff Nelson and Jason Saunders
HEARD: March 31, 2022
ENDORSEMENT
Overview
[1] This action arises out of an incident that occurred on July 31, 2019, when the plaintiff, Erduan Solak, was shot by the defendant Brantford police officers, Stevan Sheffar and Paul Wiacek. The plaintiffs are Erduan Solak (“Solak”) and derivative Family Law Act claimants.
[2] The statement of claim was issued on July 28, 2021, and names as defendants:
a. The Brantford Police Services Board;
b. Three Chiefs of Police: Robert Davis, Geoff Nelson and Jason Saunders (“the police chief defendants”);
c. Two police officers, Paul Wiacek and Steven Sheffar; and
d. Three unnamed police officers, identified as John Does #1, #2 and #3 (“the John Doe constables”).
[3] The moving parties (the identified defendants) move under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the statement of claim as against the police chief defendants and the John Doe constables on the grounds that the pleadings fail to disclose a reasonable cause of action against these defendants. The moving parties also seek an Order striking out the plaintiffs’ claim for punitive, exemplary, and/or aggravated damages on the grounds that the statement of claim fails to plead the material facts underpinning a claim for punitive and aggravated damages. The responding party plaintiffs oppose the motions.
Summary of Facts
[4] The statement of claim asserts that Solak was a person in crisis exhibiting signs of mental illness on July 31, 2019, when he encountered police officers of the Brantford Police Service. At approximately 8:00 a.m., Solak, who had been out driving, pulled his vehicle into the parking lot of the Polish Hall in Brantford. He was feeling unwell and called 911. While parked, Solak made a second 911 call requesting help. Officer Steven Sheffar met Solak at the Polish Hall parking lot and had difficulty getting information from him. Sheffar requested assistance from the police dispatch. Solak got out of his vehicle unaware that he was holding a knife. Sheffar told Solak to drop the knife and when he failed to do so, Sheffar fired his Taser at Solak, who then fell to the ground while still holding the knife. Solak, while disoriented, still holding the knife, got up to his feet. At the same time, Officer Paul Wiacek arrived. As Wiacek approached, and without first talking to Sheffar, Wiacek fired two shots from his police pistol. This was followed immediately by Sheffar firing two shots from his police pistol. Solak was struck in the torso and in the back. He was taken by ambulance to a trauma unit and underwent emergency surgery. The injuries listed at paragraph 26 of the statement of claim include complete paraplegia and multiple fractures throughout his body.
Positions of the Parties
[5] The position of the moving parties (identified defendants) is that the pleadings fail to disclose a reasonable cause of action against the police chief defendants and the John Doe constables, and that the statement of claim fails to plead the material facts underpinning a claim for punitive and aggravated damages.
[6] The position of the responding party plaintiffs is that the motion should be dismissed as the moving party has failed to satisfy the requirements under Rule 21.01(1)(b) to strike out a pleading, because: the threshold for sustaining a pleading is not high, and the moving party has failed to demonstrate that the statement of claim contains less than a germ or scintilla of a cause of action against the defendant chiefs of police and the John Doe constables; the allegations contained in the statement of claim clearly give rise to a recognized cause of action against the defendant chiefs of police and the defendant John Doe constables; and that the statement of claim pleads the material facts and necessary elements to sustain a claim for punitive, exemplary and aggravated damages as against the defendants.
Issues
[7] The issues in this matter are:
Should the action as against the police chief defendants be struck out and dismissed?
Should the action as against the John Doe constables be struck out and dismissed?
Should the plaintiffs’ claim for punitive, exemplary, and/or aggravated damages be struck out?
Law
[8] On a motion under Rule 21.01(1)(b), the facts giving rise to a cause of action against a defendant are derived from the allegations contained in the statement of claim, which are presumed to be true: Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 1990 CanLII 6611 (ON SC), 72 D.L.R. (4th) 580 (Ont. Div. Ct.). A court hearing a Rule 21.01 motion to strike pleadings should apply the following governing principles, as summarized by Conway J. in 1597203 Ontario Ltd. v. Ontario, 2007 CarswellOnt 3782 (Ont.S.C.J.) at para. 12:
a. The facts in the pleading are to be taken as proven and true unless they are patently ridiculous or incapable of proof;
b. It must be “plain and obvious” that the pleading is unfounded or contains no reasonable cause of action in order for the motion to succeed;
c. The threshold for sustaining a pleading is not high- a “germ” or “scintilla” of a cause of action will be sufficient;
d. The pleading will only be struck if the allegations do not give rise to a recognized cause of action or if the claim fails to plead the necessary elements of an otherwise recognized cause of action;
e. No evidence is to be admitted on the motion;
f. The pleading is to be read generously;
g. The novelty of the claim does not prevent a plaintiff from proceeding with its case; and
h. The court’s role at the motion stage is not to determine the strength of the case or the likelihood of success.
[9] The absence of a necessary element of the cause of action is a radical defect which makes it plain and obvious that the plaintiff cannot succeed: Dawson v. Rexcraft Storage and Warehouse Inc., 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.).
[10] A pleading lacking any material facts is frivolous and vexatious. Bare allegations, particularly of intentional or malicious conduct, should be struck as scandalous: Aristocrat Restaurant Ltd. (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No 5331 (Ont. S.C.J.) at paras. 19-21.
[11] Particulars of the specific acts complained of, i.e. “who did what and when” must be pled: Salehi v. Association of Professional Engineers of Ontario, 2016 ONCA 438, at para. 9.
[12] A basic principle of tort law is that a defendant is not liable for negligence unless a duty of care is owed. The existence of such a duty is determined in accordance with the two-step analysis enunciated by the House of Lords in Anns v. Merton London Borough Council (1977), [1978] A.C. 728, and followed in Nielson v. Kamloops (City), [1984] 2 S.C.R. (S.C.C.): Odhavji Estate v. Woodhouse, 2003 SCC 69 at paras. 45-46.
[13] Under the Anns/Cooper analytical framework, a prima facie duty of care is established by the conjunction of proximity of relationship and foreseeability of injury. Foreseeability alone is insufficient to ground the existence of a duty of care. Rather, a duty arises only where a sufficient relationship of “proximity” exists, and there are no overriding policy considerations which negate a prima facie duty of care. Whether proximity exists between two parties will depend on the relationship at issue: Cooper v. Hobart, 2001 SCC 79 at paras. 22 and 30-32.
[14] A private law duty of care on the part of a public body or official must arise from a public duty imposed on that same body or official by statute. In cases involving tort claims against public bodies, the factors giving rise to a tortious duty of care must arise from the statute governing the public body: Cooper, at para. 43.
[15] A chief of police is responsible for the day-to-day operations of a police force pursuant to ss. 41(1)(a) and 41(1)(b) of the Police Services Act.
[16] While the police owe certain duties to the public at large, they do not owe a private law duty of care to every member of society who might be at risk: Jane Doe, at para. 14.
[17] The purpose of punitive damages is to punish and deter unacceptable conduct: Marshall v. Watson Wyatt & Co., 2002 CanLII 13354 (ON CA), 2002 CarswellOnt 65 (ONCA) at paras. 44-45.
[18] Aggravated damages are distinct from punitive damages. While aggravated damages will frequently cover conduct that could be subject to punitive damages, the role of aggravated damages remains compensatory: Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), 1989 CarswellBC 76 at para. 16.
Analysis
I. The Police Chief Defendants
[19] The allegations against the police chief defendants are that they were responsible for the supervision, training, direction and control of the police officers employed by the Brantford Police Service, including the defendant constables; and that they breached a duty of care to Solak in failing to monitor the defendant constables and ensure adequate training, supervision and direction.
[20] Section 41 of the Police Services Act does not create a private law duty of care on the police chief defendants to individuals: Haggerty Estate (Litigation Administrator of) v. Rogers, 2011 ONSC 5312, at paras. 91 and 92. Their duty was to the public as a whole. The alleged facts as pleaded do not establish the requisite proximity for a private law duty of care as between the chiefs of police and the plaintiffs. For a claim for negligent supervision to succeed, there would need to be an independent and personal failure by the chief to comply with their obligations under the Police Services Act: Dawson v. Baker, 2017 ONSC 6477 at paras. 69 and 70.
[21] There is no personalization of a claim against any one of the three chiefs of police. Here, there is no nexus between any one of the police chief defendants and Solak. Missing from the statement of claim are material facts that establish a personal failure by the chiefs, and how this is tied to Solak himself.
[22] Moreover, the pleading lumps all three chiefs together. Which one supposedly failed? What is the alleged failure, and of which individual chief? It is pleaded that they failed to ensure the presence of a senior supervisor officer on scene to provide direction. Again, which chief? There are no material facts pled.
[23] A ‘shotgun’ approach, to get them to discovery and sort out the details later, is improper: Haggerty Estate at para. 97, Romagnuolo v. Hoskin, 2001 CarswellOnt 3183, (Ont. S.C.J.), at paras. 59-61.
[24] It is plain and obvious that the claims as against the police chief defendants cannot succeed both because they disclose no reasonable cause of action, and no material facts are pleaded. They are therefore improper and should be struck.
II. The John Doe Constables
[25] It is plain and obvious that the pleadings are deficient and do not disclose a reasonable cause of action as against the John Doe constables. As the moving party notes, they are empty placeholders for constables whose existence is hypothetical and undefined. There is no indication of how the purported John Doe constables were involved, or of what they did or failed to do.
[26] Paragraph 7 of the statement of claim lacks any material facts in relation to these defendants. There is no actual complaint that any other officers committed tortious acts. One cannot simply put in placeholders and fill in the details after discovery.
[27] Bald allegations without supporting facts do not create a duty of care.
[28] The statement of claim therefore fails to disclose a reasonable cause of action as against the John Doe constables.
[29] These claims must therefore be struck.
III. Punitive and Aggravated Damages
[30] Punitive damages are an extraordinary remedy designed to punish the wrongdoer as opposed to compensate the injured. The basis for punitive damages must be pleaded separately, clearly setting out the amount claimed and the material facts supporting the claim must be pleaded with reasonable particularity. Simply pleading that conduct is deserving of punitive damages is not enough: Filanovsky v. Filanovsky, [2009] O.J. No. 919 (Ont. S.C.J.) at paras. 13-14 and 21.
[31] The plaintiffs’ pleadings regarding punitive, exemplary and/or aggravated damages lack any material facts and thus similarly do not survive scrutiny under Rules 21.01 and 25.06. No actual facts are pleaded in support of such damages, only conclusory descriptors.
[32] As indicated at para. 87 in Whiten v. Pilot Insurance Co., 2002 SCC 18, facts said to justify punitive damages should be pleaded with some particularity, which is absent in this case.
[33] Similarly, a claim for aggravated damages must be pleaded with material facts to support it. The absence of a pleading of the specific material facts giving rise to a claim for aggravated damages does not disclose a reasonable cause of action for aggravated damages: Cohen v. Cambridge Mercantile Corp., 2007 CanLII 21596 (ON SC), [2007] O.J. No. 2305 (Ont. S.C.J.) at para. 41.
[34] The responding party asserted in oral submissions that the fact pleaded at paragraph 19 of the statement of claim that some of the shots fired by the police constables hit Solak in the back is sufficient on its own to clearly allege malice. This is an unsustainable leap of logic. The rules of pleading are not that elastic.
[35] I conclude that in this instance the claim for punitive and aggravated damages should be struck.
Order
[36] The Court Orders that:
The action as against the defendants, John Doe #1, John Doe #2, John Doe#3, Robert Davis, Geoff Nelson, and Jason Saunders is struck out and dismissed; and
The plaintiffs’ claim for punitive, exemplary and/or aggravated damages is struck out.
Costs
[37] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The moving party defendants may have 14 days from the release of this decision to provide their submissions, with a copy to the responding party plaintiffs; the plaintiffs a further 14 days to respond; and the moving party defendants a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the moving party defendants’ initial submissions, I will consider that the parties do not wish to make any further submissions and will decide on the basis of the material that I have received.
M. Gibson, J.
Date: July 7, 2022