COURT FILE NO.: CV-21-0064-00

DATE: 2022-11-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Myles Alberto Sousa

Plaintiff

• and -

Attorney General of Ontario

Defendant

COUNSEL:

J. Rock, for the Plaintiff

G. Frelick, for the Defendant

HEARD: July 27, 2022, at Thunder Bay, Ontario

BEFORE: Madam Justice T. J. Nieckarz

Decision On Motion

OVERVIEW:

[1] The Defendant brings a motion to strike the Plaintiff’s Amended Statement of Claim for failure to disclose a reasonable cause of action. The Defendant also takes issue with the sufficiency of the pleading, arguing that the pleading is speculative and, contains bald allegations and legal conclusions that are unsupported by material facts and full particulars of malice. The Defendant further argues that the pleading contains irrelevancies and allegations inserted only for colour. The Defendant argues that the Amended Statement of Claim is so deficient in its failure to comply with the rules of pleading that it is an abuse of process and cannot be cured through amendments.

[2] The Plaintiff brings a motion to compel the Defendant to produce an affidavit of documents. The Plaintiff acknowledges certain deficiencies with its pleading but argues that until the Defendant produces the relevant documents in this matter, it is unable to correct the deficiencies to plead certain material facts and elements of the claims made. The Plaintiff argues that the particulars sought by the Defendant are within the exclusive knowledge of the Defendant, and it would be extremely unfair to permit the Defendant to withhold the documents required to correct the deficiencies and dismiss his action.

[3] For the reasons that follow, each party’s motions are granted, in part.

FACTS:

[4] This action was commenced on February 18, 2021.

[5] The Statement of Claim read as a whole, alleges negligent prosecution.

[6] On March 4, 2021, counsel for the Defendant wrote to counsel for the Plaintiff advising of its position that there is no cause of action for negligent prosecution, only malicious prosecution. The Statement of Claim was amended March 26, 2021, to allege malicious prosecution.

[7] The Defendant took the position that the claim was stayed pursuant to s. 17 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17. Having said this, in light of the decision of Justice Broad in Poorkid Investments Inc. v. Ontario, 2022 ONSC 883, that declared s. 17 of no force and effect (a decision currently under appeal), the Defendant consented to the lifting of the stay.

[8] The Plaintiff alleges he has suffered damages from a malicious criminal prosecution he was subjected to for a period of four years.

[9] Specifically, the Plaintiff was charged in October 2016 with the sexual assault and forcible confinement of a woman, which was alleged to have occurred in October 2015.

[10] The woman alleged that she was approached by a man in downtown Thunder Bay, entered his vehicle and agreed to exchange oral sex for payment of money from the man. She further alleged that the man became violent and sexually assaulted her before she could escape from the vehicle. She provided a description of the man and the vehicle.

[11] One year after the alleged event, and only after the Complainant went to the media complaining as to the treatment her case had received from police, the Plaintiff was arrested and charged with the sexual assault. The Plaintiff maintained his innocence, stating that he had no knowledge of or involvement in the assault. His name was published in media reports about the assault, and in various social media platforms.

[12] The Plaintiff alleges that the assault may have been perpetrated by a different individual. He points to two strikingly similar violent sexual assaults taking place on November 5, 2015 (24 days after the assault the Plaintiff was charged with), and May 18, 2016. A man with a similar description and a similar vehicle to the Plaintiff was charged with those assaults after DNA recovered during the investigation of those incidents matched the man’s DNA profile. This other man was also charged with two other subsequent sexual assaults. The Plaintiff’s defence counsel discovered this other suspect at some point during the course of the prosecution. I am uncertain as to whether it was through the Crown disclosure (Stinchcombe disclosure) or otherwise.

[13] The Plaintiff’s defence counsel brought a third-party suspect application to be heard at the commencement of the Plaintiff’s criminal trial. That application was never argued. At the commencement of the trial, Crown counsel indicated to the trial judge that the Crown was not prepared to proceed as she had had no contact with the Complainant, and the Complainant had not attended court. The matter was stood down so inquiries could be made as to the whereabouts of the Complainant. When court resumed the Complainant still had not attended and the Crown sought a stay of proceedings.

[14] After hearing from the defence, comments were made by Warkentin, R.S.J., and qualified by the fact that her opinion was based on a very brief synopsis of the case in the file, that the defence had a “very strong case…on the basis of mistaken identity…” The Assistant Crown Attorney acknowledged that there were “triable issues”. She stated that but for the Complainant’s lack of attendance, the Crown had been willing to take the case to trial.

[15] The Plaintiff seeks general damages in the amount of $500,000 and punitive, aggravated, and special damages in the amount of $4,000,000.

[16] The Plaintiff alleges that the Defendant was, or ought reasonably to have been aware that by virtue of this third-party suspect with strikingly similar patterns of assault, there was no reasonable basis for prosecuting the Plaintiff. It is alleged that the Defendant wrongfully maintained the charges against the Plaintiff for almost four years with no reasonable prospect of conviction, and in the face of evidence and indications that the crime had not been committed by the Plaintiff.

[17] The Plaintiff alleges that despite knowing it lacked reasonable or any grounds against him, and despite knowing of this other suspect, the Defendant wrongfully maintained its charges against the Plaintiff for nearly four years from his arrest. He argues that the Defendant’s actions, combined with the public broadcast of the allegations and his name, had a profound impact on his life, which caused him catastrophic damage and loss. The Plaintiff alleges that the Defendant’s actions, and the willful disregard of the Plaintiff and his jeopardy, “constitute malice”.

[18] While not pleaded in the Amended Statement of Claim, the Defendant argues that the Plaintiff maintained the charges against him because of the public outcry that arose following a media interview of the Complainant, in which she alleged that her Indigenous ancestry resulted in differential treatment in the handling of her case by authorities. The Complainant alleged racism was the cause of the differential treatment. The Plaintiff argues this case became about police and the Crown saving face and avoiding public backlash or scrutiny for the alleged mishandling of the assault allegations, and not about prosecuting the actual perpetrator of the crime.

[19] The Plaintiff has not sued the police, nor has he made any claims that the initial investigation was negligent. He acknowledges that the police had reasonable and probable grounds to arrest him, but once the third party suspect later came to light, it became evident that there was no prospect of conviction against the Plaintiff, and his continued prosecution by the Crown was malicious.

[20] As of the date of hearing of these motions, no Statement of Defence has been filed.

[21] The Plaintiff has served an affidavit of documents. The Plaintiff argues that he finds himself in a “catch-22” in that the Defendant wants more particulars of the allegations of malice, which the Plaintiff cannot provide without the disclosure he seeks.

[22] These motions raise the following issues:

a. Should the Amended Statement of Claim be struck as against the Defendant without leave to amend because:

i. The claim fails to disclose a reasonable cause of action; and

ii. The claim is speculative and contains bald allegations and legal conclusions that are unsupported by material facts and full particulars of malice; and

iii. The claim is so deficient in failing to comply with the rules of pleading that it is an abuse of process and cannot be cured through amendments.

b. Should the Defendant be required to produce an affidavit of documents, and all relevant documents, and the Plaintiff granted leave to correct deficiencies in its pleading?

Motion to Strike:

Applicable Legal Principles:

[23] Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) provides that a judge may strike out a pleading that discloses no reasonable cause of action.

[24] To succeed on this motion, the Defendant must show that it is “plain and obvious” that the claim cannot succeed.

[25] The test will be met where:

a. A plaintiff pleads allegations that do not give rise to a recognized cause of action;

b. A plaintiff fails to plead a necessary element of a recognized cause of action;

c. The allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts; or

d. Where mere conclusions of law are asserted.

See: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 958 at pg. 980; Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331 (S.C.J.), at para. 18; Hunter v. Bravener, 2003 28855 (ON CA).

[26] For the purpose of a Rule 21 motion, the general rule is that allegations as set out in the statement of claim are taken as true. This general rule does not require allegations based on assumptions and speculation to be taken as true. See: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 [2011] S.C.J. No. 42, at paras. 17-25; Operation Dismantle v. The Queen, 1985 74 (SCC), at para. 27; and Gilbert v. Gilkinson, 2005 46386 (ON CA), at para. 15.

[27] Rule 21.01(3)(d) of the Rules empowers a judge to dismiss actions that are frivolous, vexatious or an abuse of process.

[28] Rule 25 of the Rules provides for various rules related to pleadings and also provides for the striking of a pleading that is scandalous, frivolous, vexatious or an abuse of process.

[29] Rule 25.06(1) requires the pleading of the material facts relied on by a party in support of a claim or defence.

[30] Where malice or actions that can be characterized as malice are pleaded, there is a heavier onus to set out the material facts relied upon. The pleading must contain full particulars. See: Aristocrat Restaurants Ltd., at para. 21.

[31] Bald allegations of malice involving undefined Crown Prosecutors are insufficient and cannot be remedied by amending the claim. It is important that the alleged wrongdoer be able to understand what is alleged against him or her with some precision. See: Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 (S.C.J.), at paras. 66-67, and paras. 73-74, aff’d., 2002 4770 (ON CA).

[32] A pleading devoid of material facts will be declared to be frivolous or vexatious. A pleading containing nothing more than vague allegations that make it impossible for an opposing party to reply, should be struck. Pleadings that are irrelevant, argumentative, inserted for colour or that constitute bare allegations should be struck out as scandalous pursuant to Rule 25.11. See: Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.), at para. 52; Cerqueira v. Ontario, 2010 ONSC 3954 (ON SC), at para. 11; Matharu v. Manheim, 2014 ONSC 3459, at para. 45; Aristocrats Restaurants, at paras. 19-21; and Wilson v. Toronto, at paras.66-67.

[33] Individual Crown Attorneys and Assistant Crown Attorneys are immune from civil liability for any act done or omitted to be done in the performance of a duty in relation to a prosecution. The Defendant is not immune from liability for the actions or omission of its Crown Attorneys and Assistant Crown Attorneys if they amount to malicious prosecution. This is an established cause of action. No action may be maintained against the Defendant for merely negligent actions of Crown Attorneys and Assistant Crown Attorneys. See: Ministry of the Attorney General Act, R.S.O. 1990, c. M. 17, s. 8(1), (2) and (3); Nelles v. Ontario, 1989 77(SCC).

[34] There are four necessary elements that must be established, and therefore plead, in a claim for malicious prosecution:

a. The proceedings must have been initiated by the Defendant;

b. The proceedings must have been terminated in favour of the Plaintiff;

c. The absence of reasonable and probable cause; and

d. Malice, or a primary purpose other than that of carrying the law into effect.

Application of the Legal Principles to the Facts:

[35] The Defendant acknowledges the tort of malicious prosecution as a cause of action but argues that the materials facts required to establish all of the essential elements of the cause of action have not been pleaded; that the pleading is nothing more than bald assertions. The Defendant cites all of the foregoing Rules and principles related to pleading the tort of malicious prosecution in support of its request to strike the claim without leave to amend.

[36] There is no dispute that the proceedings disclose who was prosecuted, which prosecution, that the prosecution was initiated by the Defendant and terminated in favour of the Plaintiff. The Defendant argues that what is not sufficient pleaded are material facts related to the absence of reasonable and probable cause and malice. Furthermore, because the claim is vicarious in nature, the Crown Attorney or Assistant Crown Attorney(s) alleged to have been involved in the malicious prosecution must be named. The Attorney General is not responsible for unidentified agent Crown prosecutors.

[37] There are deficiencies in the pleading. Even without production from the Defendant (which I will discuss below) the Plaintiff can easily determine who the Crown Attorney was for Thunder Bay, and the Plaintiff is aware as to which Assistant Crown Attorney had carriage of the trial. Despite this, they have not been named in the pleading and this is a deficiency, particularly given the vicarious liability nature of the claim. It is a deficiency that the Plaintiff has not attempted to correct. It is understandable that the Plaintiff may not have knowledge of other Assistant Crown Attorneys who may have had a hand in advancing his prosecution, as court dockets and speak to lists would not necessarily reveal those involved in the decision-making process. The pleading should, however, name those who the Plaintiff is aware of.

[38] The Plaintiff should also have a general knowledge, even if he does not have access to his Stinchcombe disclosure, as what the general nature of the evidence against him was. The Crown agent must have a genuine belief, based on reasonable grounds, that the prosecution is justified (Wilson v. Toronto (Metropolitan) Police Service, at para. 33). In alleging lack of reasonable and probable cause, facts as to the nature of the evidence against the Plaintiff, if any, should be pleaded, or if there was no evidence then this should be pleaded. The Crown is correct in arguing there is nothing more in the pleading than a bald assertion that the Crown lacked reasonable or any grounds to prosecute the charges in the face of another possible suspect. There are no material facts pleaded to support this conclusion.

[39] With respect to malice, the Plaintiff must show that the actual motive for the prosecution was improper or demonstrate that the prosecution can only be explained by imputing a wrong motive. A bald allegation of malice is insufficient. See: Aristocrat Restaurants Ltd., at para. 28.

[40] Paragraph 24 of the Amended Statement of Claim reads:

In the premises, the defendant commenced and thereafter continued a criminal prosecution with knowledge that the Crown had no ability to prove the case. The Crown commenced and continued with knowledge that other same or similar crimes had been committed and that in fact a suspect had been arrested and convicted or pleaded guilty to those crimes. The Crown continued to prosecute despite all evidence and indications that the crime had no been committed by the Plaintiff. In the circumstances of the knowledge of the police and the Crown as to the above, while proceeding up until the commencement of trial, such actions constitute malice and the wilful disregard of the Plaintiff and his jeopardy resulting from the conduct are similarly malicious and thereby actionable at law.

There are no other allegations of malice in the pleading.

[41] Plaintiff’s counsel in submissions on the motion acknowledges that while not pleaded, the Plaintiff alleges that the case was prosecuted against him to try to quell public backlash over the Complainant’s allegations of racism in a failure to properly investigate the case. The Plaintiff argues that the Defendant prosecuted the case in the face of an absence of any evidence against the Plaintiff, and in the face of a third-party suspect, simply to avoid further negative publicity. This, the Plaintiff argues, is an improper purpose and constitutes malice. He seeks leave to amend the pleading to make the allegation. It is unclear as to why it was not properly pleaded in the first place.

[42] Even reading the Amended Statement of Claim generously, the Plaintiff has failed to plead sufficient material facts for the necessary legal elements of malicious prosecution. I agree with the Defendant that the Amended Statement of Claim as it now stands requires it to respond to little more than bald allegations. As such, the pleading discloses no cause of action as against the Defendant and this is one of those clearest cases in which the pleading as is, should be struck.

[43] Other than the lack of material facts to support the bald allegations and conclusions in the Amended Statement of Claim, I see no other issues with the pleading. I see no paragraphs that are inflammatory or inserted merely for colour.

[44] The question then becomes whether I provide the Plaintiff with an opportunity to rectify the deficiencies in the pleading, with or without the production order sought, or whether I strike it without leave.

[45] The Defendant argues that the Plaintiff has had sufficient opportunity to rectify the deficiencies in the pleading both when it was required to amend its pleading to allege malice and when it brought its motion to lift the stay of proceedings. The Plaintiff argues that proper correction of the deficiencies in the proceeding requires disclosure from the Defendant.

[46] I find that this is not a case in which the claim should be struck without leave. Striking the pleading based on the deficiencies noted above without leave to amend, and given the disclosure issues identified below, will do little to advance the ends of justice. While I appreciate the Defendant’s frustrations with the Plaintiff’s failure to plead even that which is in his knowledge without further disclosure, I cannot conclude that his failure to do so should effectively terminate his claim currently before the court.

[47] As was the case in Aristocrat Restaurants Ltd., relied upon by the Defendant, I find that a recognized cause of action has been improperly pleaded, and the deficiencies noted can be put right without non-compensable prejudice to the Defendant. In keeping with the objectives set out in Rule 1.04, the Plaintiff should have an opportunity to correct these deficiencies based on the facts currently within his knowledge, and the disclosure I will be ordering the Crown to make.

[48] This case is easily distinguished from the result in Abernethy v. Ontario, 2017 ONCA 340, relied upon by the Defendant. In that case the self-represented Plaintiff provided a lengthy and rambling pleading that alleged general misconduct by Crown agents against her over a long period of time. The pleading was devoid of any indication of what was being alleged to have happened, when, and by whom. It was impossible to discern any reasonable cause of action. The Plaintiff had been provided with an opportunity to correct the pleading previously, but the same concerns persisted. Given the issues in that particular case and the lack of any clear indication as to what in fact was being alleged, the motions judge had no faith that a further opportunity to amend the pleading would cure the significant issues with it.

[49] Unlike Abernethy, it is not manifest in this case that the pleading is not curable by amendment. In this case, we know the substance of what is being alleged, we simply do not have sufficient material facts pleaded with respect to all of the essential elements of the tort to allow the Defendant to properly defend the claim and to determine whether there is in fact a cause of action.

[50] The Defendant relies on Wilson v. Toronto (Metropolitan) Police Service in arguing that no leave should be given to amend the pleading. In that case, Dambrot, J., refused to grant leave in the face of a failure to allege facts that there was an absence of reasonable and probable cause to justify the continuation of the prosecution, and in the face of nothing more than a bald allegation of malice.

[51] While there are certain similarities between this case and the Wilson v. Toronto (Metropolitan) Police Service case, there are also distinguishing facts.

[52] In Wilson, the Assistant Crown Attorney relied on the eyewitness evidence of someone who later recanted their statement, causing the criminal charges against the plaintiff to be withdrawn. The plaintiff alleged that another individual had been implicated in the homicide, there was no evidence against the plaintiff other than the eyewitness, the eyewitness was someone with a serious criminal record who had been contradicted on a key party of her evidence by another individual, and there was no evidence of motive. The plaintiff in that case argued that the Assistant Crown Attorney responsible for the prosecution “knew or ought to have known” that the eyewitness evidence was not reliable. The allegation of malice was that the prosecution was continued in the absence of reasonable and probable grounds to secure a conviction. The result in Wilson turns on Dambrot, J.’s conclusion that even if the plaintiff was permitted to amend his claim to plead that the prosecutor had knowledge of facts that amounted to an absence of reasonable and probable cause, there are no facts in that case from which the trier of fact could infer malice.

[53] The meaning of “malice” in the context of the tort of malicious prosecution was canvassed extensively in Wilson. Malice is “the use of the criminal justice system for an improper purpose”. The proper use of the criminal justice system is to bring before the Court a person who the prosecutor has reasonable and probable cause to believe has committed a criminal offence. If, during the course of a prosecution the prosecutor obtains information suggesting the person probably did not commit the offence, the prosecutor lacks reasonable and probable cause to continue the prosecution, and malice may be inferred. See: Wilson v. Toronto (Metropolitan) Police Service, at paras. 59-63. Similarly, if a prosecution is continued in the absence of information pointing to guilt, or based on information obviously insufficient, an inference of malice may be warranted. But to properly determine whether malice may be inferred, there needs to be sufficient material facts plead to determine whether reasonable and probable cause exists or not.

[54] In this case, there is not. I do not know what the facts were that caused police to arrest, and the Crown to prosecute the Plaintiff. I know of the existence of a third-party suspect, but that alone does not mean there was not reasonable and probable cause. Unlike Wilson, it is not clear to me at this time that if the claim was properly pleaded, the Plaintiff could not succeed. Unlike Wilson, I do not know whether the Plaintiff can plead facts, for example, that the prosecution was continued in the absence of any information pointing to guilt or upon evidence that was obviously insufficient. Unlike Wilson, I cannot conclude that there is no amendment to the claim that can be responsibly made.

[55] This is a case in which it is proper to exercise discretion in favour of granting the Plaintiff leave to amend the Statement of Claim.

Disclosure:

The Issue and Positions:

[56] The question then becomes whether the court should exercise its discretion under Rule 30.03(1) to order the Defendant to produce an affidavit of documents and comply with evidentiary disclosure rules to enable the Plaintiff to properly plead a claim for malicious prosecution?

[57] The Plaintiff argues that the unusual procedural order of production prior to the close of pleadings should be made to allow him to correct the deficiencies in his pleading and to provide the specificity required of him for a claim of malicious prosecution. He argues this is information within the exclusive knowledge of the Defendant, who has an obligation to produce it upon the close of pleadings in any event. He argues that the interests of justice necessitate early production.

[58] The Plaintiff does not seek a specific file, but rather an Affidavit of Documents setting out all documents in the power, possession and control of the Defendant. The Plaintiff has no knowledge as to what documents exist, and therefore the Affidavit of Documents is necessary.

[59] The Defendant argues that this is nothing more than a fishing expedition and no early production order should be made. The Defendant submits that to request unspecified “file or files” is without merit, disproportional and premature, and amounts to nothing other than a search for evidence to support nothing more than speculation. Furthermore, production is not necessary as the deficiencies in the pleading relate to information that is known and knowable to the Plaintiff.

Legal Framework:

[60] The court has the discretion pursuant to Rule 30.04(5) of the Rules of Civil Procedure to order production of documents at any time, provided those documents are not privileged and are in the possession, control or power of the other party. Generally, the power to order documentary disclosure before the close of pleadings is used sparingly but will be used where it is in the interests of justice to do so. See: De Iuliis v. Zilli, 2014 ONSC 5515, at para. 14.

[61] Production of documents should not be ordered before the close of pleadings unless the court is satisfied that the documents at issue are essential or necessary to allow the requesting party to plead. See: De Iuliis, at para. 15 (citing Re Official Receiver of Hong Kong and Wing, et. al., 1986 2811 (ON SC), [1986] O.J. No. 1104).

[62] In De Iuliis, Emery J., concluded that given the strict rules of pleading for defamation claims and the defendant’s intention to bring a motion under Rule 21 to strike the statement of claim, the interests of justice necessitated production prior to the close of pleadings. The fact that “the pleading of the plaintiff is under attack and the life of the action is placed in imminent danger of being dismissed”, is a significant consideration in cases such as this.

[63] A similar issue was before Turnbull, J., in Kalen v. Brantford, 2011 ONSC 1891. In that case, the plaintiff brought a motion seeking production of certain documents to permit him to finalize his pleadings. The defendants brought a motion to strike various paragraphs of the statement of claim for various reasons. One argument of the defendants was that allegations of defamation were not sufficiently particularized in the pleading. The plaintiff argued that this could not happen without an early production order. The defendants argued that the plaintiff was on a fishing expedition to find evidence.

[64] In Kalen, the defendants acknowledged that the relevant documents would need to be produced pursuant to the Rules of Civil Procedure eventually. In ordering production of certain documents prior to pleadings being finalized, Turnbull J., noted at paragraphs 43-46:

a. In circumstances in which the defendants have a motion to strike pleadings on the basis that the cause of action is not sufficiently plead, it may be necessary for production to be ordered to enable justice to be done;

b. The Rules of Civil Procedure must be interpreted liberally to secure the most “just, most expeditious and least expensive determination of every civil proceeding on its merits” (See Rule 1.04);

c. It may not be just to strike the plaintiff’s claims when the defendants arguably have some or all of the information in their possession and control to support such allegations; and

d. The most expeditious and least expensive way to determine a civil proceeding may not be to wait for production after pleadings have closed and then risk yet another motion to amend pleadings.

Discussion:

[65] The Defendant argues that the foregoing cases in which the courts found a valid reason for exercising their discretion to order production of documents under Rule 30.04(5) are distinguishable on the following basis:

a. Each of those cases involved allegations of defamation, which had caused or contributed to the termination of a plaintiff’s employment;

b. In each of those cases a nexus had been established between the categories of documents sought and the termination;

c. In each of those cases the moving party had unsuccessfully requested or attempted to obtain the documents, which the responding party acknowledged having in their possession and an obligation to produce at some point in the litigation. There is no such acknowledgement or evidence to support this conclusion in this case;

d. The content of the documents was demonstrated to be necessary to plead the substance of the alleged defamation. In this case, there is an absence of evidentiary support for the Plaintiff’s argument that the documents are necessary to enable it to properly plead;

e. None of the foregoing cases involved sweeping production orders in the nature of an Affidavit of Documents;

f. None of these cases concerned a claim for malicious prosecution brought by a person who was the subject of the public prosecution; and

g. In the case at hand there is no evidence of necessity for the court to exercise its discretion to order production of unspecified documents because the Plaintiff does not otherwise have access to the information. All proceedings in criminal courts are open to the public and the Plaintiff was required to be present during the prosecution. He has had full access to the information he needs or can obtain copies of public court documents, including the Information, any warrants, court dockets and case event lists, and most significantly, the Crown disclosure brief that was given to his defence counsel setting out the evidence of the Crown. The Plaintiff has provided no evidence of efforts to obtain information himself.

[66] I agree with the Defendant that the evidentiary record is lacking in many respects. The Plaintiff fails to provide an evidentiary basis for establishing what has been done to obtain certain documents himself. For example, in argument counsel for the Plaintiff indicated that the Stinchcombe production in the possession of defence counsel was requested of him but refused, but there is no evidence as to the basis for that refusal. The Crown argues that there are no restrictions placed on the disclosure that prevent disclosure for the purpose of the civil proceeding.

[67] There is also no evidence as to what efforts were made by the Plaintiff and/or his counsel to obtain information in the court file, including transcripts of appearances other than the first day of trial. Having said this, I agree with the Plaintiff that this information could be of limited value. Particularly “speak to” and not substantive appearances will not provide sufficient information to the Plaintiff to know whether the Crown agent appearing had any responsibility for, or carriage of the matter, nor will it necessarily reveal what was in the knowledge of that Crown agent.

[68] Overall, the Plaintiff’s evidence and, I infer his efforts, to obtain information on his own behalf is lacking. Nonetheless, I am prepared to accept the Plaintiff’s counsel’s submissions that for some reason, he has been unable to obtain the Stinchcombe disclosure from defence counsel. I am satisfied that the Plaintiff’s counsel needs to know what evidence the Crown had to support the prosecution, failing which the Plaintiff will not be able to properly plead the essential element of a lack of reasonable and probable cause. The Plaintiff also needs to know what Crown agents had carriage of the matter, and the level of their involvement. This is information that may not be within his knowledge. It is also necessary to rectify a deficiency alleged by the Crown.

[69] I find that to require the Plaintiff to attempt to rectify his pleading without access to this information will place him at an unfair disadvantage. Some, even if not all of this information is in the exclusive knowledge of the Defendant, and the Defendant will need to disclose it in the ordinary course of this claim in any event.

[70] I find that the motion of the defendant to strike pleadings rendered the production of this information necessary to secure the just, most expeditious and least expensive determination of this civil proceeding on the merits. Having said this, production does not need to be as sweeping as the Plaintiff seeks at this time. I agree with the Crown that this could result in a fishing expedition. The Plaintiff merely needs enough to rectify the deficiencies in his pleading; the Defendant does not need to make the Plaintiff’s case for him at this early stage.

[71] The Plaintiff needs to have the names of those Crown agents involved in the prosecution, their level of involvement, and the evidence in the Defendant’s file to support the prosecution. It may be that this is simply the Stinchombe disclosure reproduced, but it may be more than that. There is some reference in the materials to a line-up having been conducted. This is relevant information. Without knowing what is there, it is difficult for me to say. If the parties cannot agree on the necessary disclosure, an appointment may be scheduled before me with further submissions on this point, and I will decide.

[72] I find that production is necessary in the interests of justice to allow the Plaintiffs to endeavour to amend the statement of claim to meet the technical requirements for pleading malice. There is something fundamentally unfair about a defendant who seeks to strike a pleading on the basis that the material facts to support the essential elements of the cause of action have not been pleaded, when some or all of those facts are within the exclusive knowledge of the defendant, and they refuse to disclose them prior to the close of pleadings knowing full well of their obligation to do so in any event later in the proceeding. The plaintiff is put at an unfair disadvantage. There is nothing I am ordering produced that the Defendant will not have to later disclose in the litigation. By disclosing it now, the court is also endeavouring to avoid the necessity of further amendments required to the pleadings later when the names of Crown agents responsible for the prosecution become known through discovery.

[73] Production may also assist the parties in determining early on whether the claim is without merit, and allow it to be determined on the merits, with full opportunity for the Plaintiff to rectify the difficulties with his pleading. It may be that once the Plaintiff has had a fulsome opportunity to rectify his pleading, with preliminary disclosure that enables him to do so, that the Defendant will seek a summary dismissal or further motion to strike. It may be that the Defendant delivers its Statement of Defence and the claim proceeds in the usual course.

Order:

[74] For the foregoing reasons, it is ordered that:

a. The Amended Statement of Claim is struck, with leave to amend.

b. The Defendant shall provide disclosure of the information set out in paragraph 71 herein within 60 days of the date of this order.

c. The Plaintiff shall have 30 days thereafter to deliver an Amended Statement of Claim.

d. If the parties disagree on the scope of productions required by paragraph 71 herein, they shall schedule an appearance before me by Zoom.

e. Any of the timelines provided for in this order may be extended by mutual agreement between the parties or court order.

f. The parties appear to have enjoyed divided success on the motions, suggesting that no costs should be awarded. If, however, a party is claiming costs, they shall deliver written costs submissions within 30 days of the date of these Reasons, failing which costs shall be deemed to be resolved. The responding party shall deliver their written costs submissions within 30 days of receipt of the claiming party. Submissions shall be limited to five pages, double-spaced (excluding a Bill of Costs and other attachments). Any reply shall be delivered within 15 days of receipt of the responding submissions, and shall be limited to two pages, double-spaced (excluding attachments).

g. This order is without prejudice to the right of the Defendant to bring a further motion to strike.

h. I am seized only with respect to issues arising out of these Reasons and my order, and not any subsequent pleadings or other motions.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: November 29, 2022

COURT FILE NO.: CV-21-0064-00

DATE: 2022-11-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Myles Alberto Sousa

Plaintiff

• and –

Attorney General of Ontario

Defendant

DECISION ON MOTION

Nieckarz J.

Released: November 29, 2022