COURT FILE NO.: CV-21-3320-0000

DATE: 2022-12-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Emad El-Din Elguindy, Irene Elguindy and Aziz Elguindy

Self-represented

Plaintiffs

• and -

Halton Regional Police Service Board, Chief of Police Stephen J. Tanner, Detective Matthew Ren of Halton Police

Douglas O. Smith and Samantha Bonanno, for the Defendants

Defendants

HEARD: October 3, 2022

REASONS FOR DECISION

C. Chang J.

Overview

[1] The defendants bring this motion for summary dismissal of the action herein. In the alternative, the defendants seek an order requiring the plaintiffs to post security for costs.

[2] In the action, the plaintiffs claim damages relating to the alleged theft of cash and jewellery committed by Eustache Economou ("Economou"). They allege that the defendants were negligent and committed misfeasance in public office in failing to recover the allegedly stolen property.

[3] For the sake of efficiency and clarity, when I refer to each of the plaintiffs in these reasons for decision, I will use their given names only, being "Emad", "Irene" and "Aziz". In doing so, I intend no disrespect whatsoever and it is my sincere hope that none of the plaintiffs feels disrespected in any way or takes exception to being referred to by his or her given name only.

Preliminary Matters

Emad's Submissions on Behalf of All Plaintiffs

[4] At the outset of the hearing, the plaintiffs sought leave for the plaintiff Emad to act as their representative and to make submissions on their behalf. All three plaintiffs were in the courtroom and, when I canvassed the issue with each of them, all three unequivocally communicated their respective desires to have Emad speak for them and their collective request that he be allowed to do so.

[5] The defendants' counsel expressed concern about the propriety of what was being proposed, but did not object to the request.

[6] Emad advised that he is "a very smart man", that he has a Ph.D., that he was previously a paralegal in Ontario for very many years and that he is well acquainted with the court's processes and procedures.

[7] In the circumstances and in the interests of justice, I granted the plaintiffs' request that Emad be permitted to act as their representative on this motion and to make submissions on their behalf.

Narrowing of Issues

[8] Given the somewhat unfocussed statement of claim, at the outset of oral argument I requested that the plaintiffs clarify the nature of their claims herein.

[9] They advised that their claims are limited to negligence and misfeasance in public office respecting the defendants' failure to recover the property that Economou allegedly stole from the Residence (as that term is defined below). Their action against the defendants does not go beyond those two specific claims.

[10] I proceeded with the hearing accordingly.

Plaintiffs' Recusal Motion

[11] After the defendants had completed their submissions and the plaintiffs were almost one hour into theirs, the plaintiffs demanded that I recuse myself on the grounds that I was biased in favour of the defendants.

[12] I denied the plaintiffs' recusal motion as meritless and the plaintiffs proceeded with and completed the remainder of their oral argument.

[13] The law is settled that a party alleging bias on the part of a judicial officer faces a very difficult burden, as "there is a strong presumption of judicial impartiality that is not easily displaced" (see: Yukon Francophone School Board v. Yukon (A.G.), 2015 SCC 25, at paras. 25-26; Fancy Barristers P.C. v. Morse Shannon LLP, 2017 ONCA 82, at para. 12).

[14] The circumstances of the case-at-bar fail to come anywhere near meeting the very high threshold for rebutting the presumption of judicial impartiality.

[15] I have not, at any material time, been in any sort of proximal relationship with any of the defendants. I was never employed by any of them. I have never been retained by any of them to provide legal or other services. I have never worked for or with any of them professionally or otherwise.

[16] I also have not, at any material time, been in any sort of proximal relationship with the defendants' lawyers or their law firm, Borden Ladner Gervais LLP ("BLG"). I was never employed by BLG or anyone at that firm. I have never acted as co-counsel or as agent for BLG or anyone at that firm. I have never otherwise been engaged by or worked for or with BLG or anyone at that firm.

[17] There are no circumstances in the case-at-bar that would, in any way, impair my ability to fairly and impartially discharge my judicial duty.

Facts

[18] The facts are undisputed.

[19] The plaintiffs, Emad and Irene, reside at Unit 701, 480 Maple Avenue, Burlington, Ontario (the "Residence").

[20] Aziz is Emad's and Irene's son. Aziz does not live at the Residence.

[21] Economou is Emad and Irene's nephew.

Economou's Alleged Break and Enter at the Residence

[22] At 1:56 a.m. on October 1, 2021, the Halton Regional Police Service ("Halton Police") received a call from Economou respecting the Residence. During that call, Economou was generally incoherent. He claimed that a locksmith was going to shoot him before abruptly ending the call.

[23] Halton Police officers attended the building, located Economou in the lobby and tried to speak with him. Economou appeared agitated and paranoid, was acting erratically and was generally incoherent. He referred to "black guys" who were trying to rob and harm him. The attending officers believed that Economou may have been under the influence of drugs and that he posed a risk of harm to himself and to others.

[24] The officers apprehended Economou pursuant to the Mental Health Act, R.S.O. 1990, c. M.7 and took him to hospital, where he was admitted as an involuntary patient.

[25] At 7:02 p.m. on October 1, 2021, Halton Police received a call from Aziz, who reported that the Residence had been broken into and cash stolen therefrom.

[26] Officers attended the Residence and were met by Irene, Aziz and Waroud Kamal (Aziz's girlfriend), who reported as follows:

a) Emad and Irene had been traveling overseas and Aziz was housesitting the Residence in their absence, attending there twice weekly;

b) when Aziz was at the Residence three days earlier, he noticed that mail had been left outside the door, which he left there, and that a safe in the bedroom was locked;

c) Irene returned to Canada on October 1, 2021 and Aziz and Ms. Kamal picked her up from the airport;

d) when they arrived at the Residence, the door was unlocked and the mail that had been outside the door three days earlier was now on a coffee table inside;

e) the three of them immediately went to check the safe, which had been forced open and was empty;

f) the safe had previously held $70,000 in U.S. currency, $3,000 in Canadian currency and jewellery; and

g) they were certain that Economou had broken in and emptied the safe, as he had lived at the Residence for a time in 2021 and knew about the safe, and they believed that, at some point during that time, Economou had a key to the Residence made.

[27] The officers also spoke with the building's site manager, who advised that the building's office manager had spoken with Economou in the building's lobby earlier that day. The office manager identified Economou as Emad's brother, who had "just moved in with him".

[28] Thereafter, the officers twice attended at Economou's home address, but were unable to make contact with him. They subsequently obtained a tracking warrant for Economou's cellphone and were eventually able to locate him at a gas station in Burlington, where they arrested him and charged him with break and enter.

[29] During a video-recorded interview while in police custody, Economou said that he planned to plead guilty, "do his time" and would assist in the recovery of the stolen money after his release. He said that he had committed the theft so that he could pay off a debt owed to his drug dealer, but, immediately after the break and enter, he was robbed at gunpoint at a motel where he was staying with an acquaintance, Karrie Hurst. Economou was otherwise uncooperative. He was later released from custody on a promise to appear in court the following month.

[30] In the meantime, the investigation continued.

[31] Halton Police officers interviewed the locksmith who unlocked the Residence for Economou, obtained judicial authorization to access Economou's seized cellphone and attended Economou's home in efforts to recover the stolen property. They also remained in contact with the plaintiffs.

[32] The investigation revealed that Economou had committed a previous break and enter at the Residence on September 28, 2021 and that Ms. Hurst was an accomplice. Economou removed some of the contents of the safe on September 28, 2021 and went back for the rest on October 1, 2021. Mr. Economou was arrested and charged with the September 28, 2021 break and enter. Ms. Hurst was also arrested and charged.

[33] During a police interview following his second arrest, Economou confirmed that he and Ms. Hurst had been robbed following the October 1, 2021 break and enter and advised that recovery of Irene's and Emad's property would be unlikely because he could not locate the two people who robbed him.

[34] Prior to the events of either September 28, 2021 or October 1, 2021, Halton Police did not have any information respecting any specific threat posed by Economou to the plaintiffs or the Residence. They also had no information respecting any criminal activity allegedly committed by Economou against the plaintiffs or the Residence. None of the plaintiffs had ever filed a complaint to Halton Police against Economou or sought protection from him.

Emad's Previous Legal Proceedings Against Halton Police

[35] In 2018, Emad commenced an action in the Small Claims Court at Brampton against an officer of Halton Police. In November 2018, that action was dismissed on a motion brought by the defendant officer under rule 12.02 of the Rules of the Small Claims Court, O.Reg. 258/98. The presiding deputy judge ordered costs against Emad in the amount of $3,759.00, which costs have not been paid.

[36] Emad appealed the dismissal and costs orders, which appeal was dismissed with costs against Emad in the amount of $3,750.00. Those costs have also not been paid.

[37] There are, at least, eight writs of execution filed against Emad.

No Cross-Examinations

[38] Neither the plaintiffs nor the defendants conducted any cross-examinations on the affidavits filed on this motion or any examinations pursuant to rule 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Issues

[39] The issues to be determined on this motion are as follows:

a) Is there a genuine issue requiring a trial respecting the plaintiffs' claims that the defendants were negligent or committed misfeasance in public office respecting their alleged failure to recover the property allegedly stolen by Economou?

b) Should the plaintiffs be ordered to post security for costs?

Parties' Respective Positions

Defendants

[40] The defendants submit that there is no genuine issue requiring a trial in this matter and that the action herein should be dismissed accordingly.

[41] They argue that this matter turns on the determination of whether or not the defendants owed a private law duty of care to the plaintiffs. Subject to two very limited exceptions, the police do not owe a private law duty of care to specific members of the public and neither exception applies in the case-at-bar.

[42] Specifically, the defendants argue that they did not owe to the plaintiffs any duty of care to effect the recovery of the stolen property and that such recovery is the domain of civil or administrative adjudication (e.g., civil legal proceedings or through the Criminal Injuries Compensation Board) and not of police authority.

[43] Even if there is such a duty owed to the plaintiffs, the defendants did not breach the applicable standard of care.

[44] The defendants also argue that the plaintiffs have not made out a claim for misfeasance in public office, as there is no evidence of any unlawful conduct or bad faith on the part of the defendants. Indeed, the plaintiffs' allegations – even if proven – do not rise to the level of bad faith.

Plaintiffs

[45] The plaintiffs submit there are genuine issues requiring a trial because a trial is required in order for them to be able to prove their case.

[46] They argue that the court cannot read the minds of the defendants. This is a triable issue and all of their claims should be put over for a trial. The only way for the defendants' bad faith or dishonesty to be proven is at trial, where the defendants will be forced to take the stand and testify. This case, the plaintiffs say, "cries out for a trial".

[47] The plaintiffs also argue that the evidence shows that the defendants seized their stolen monies from Economou's accomplice, Ms. Hurst, but have failed to return same.

Decision

[48] I find there to be no genuine issue requiring a trial respecting the claims advanced by the plaintiffs herein and that the action should be dismissed accordingly.

[49] Given the above, I need not address the issue of security for costs.

Applicable Law

[50] The law respecting summary judgment is well settled.

[51] The relevant rules under the Rules of Civil Procedure are summarized as follows:

20.01(3) – a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim;

20.02(2) – in response to affidavit or other evidence on a motion for summary judgment, a responding party may not rest solely on its pleadings, but must set out, in affidavit or other evidence, specific facts showing that there is a genuine issue requiring a trial;

20.04(2) – the court shall grant summary judgment accordingly if:

i) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence, or

ii) the parties agree to have all or part of the claim determined by, and the court is satisfied that it is appropriate to grant, summary judgment; and

20.04(2.1) – in determining whether there is a genuine issue requiring a trial, the presiding judge may exercise any of the following powers, unless it is in the interests of justice for such powers to be exercised only at trial:

i) weighing the evidence,

ii) evaluating the credibility of a deponent, and

iii) drawing any reasonable inference from the evidence.

[52] In order for there to be no genuine issue requiring a trial, the motion judge must be able, on the motion, to reach a fair and just determination on the merits, i.e., when the motion process: 1) allows the judge to make the necessary findings of fact; 2) allows the judge to apply the law to the facts; and 3) is a proportionate, more expeditious and less expensive means to achieve a just result (see: Hryniak v. Mauldin, 2014 SCC 7, at para. 49). These principles are interconnected (see: Hryniak, at para. 50).

[53] In deciding a motion for summary judgment, the judge should: 1) first determine if there is a genuine issue requiring a trial based only on the evidence before her or him, without resort to r. 20.04; and 2) if there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial could be avoided by using the enhanced powers under r. 20.04 (see: Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, at para. 24).

[54] The following well-settled principles also apply:

a) the parties are required to "put their best foot forward";

b) the motion judge is entitled to presume the completeness of the evidentiary record and that there will be nothing further if the issue were to proceed to a trial;

c) once the moving party has shown that there is no genuine issue requiring a trial, the burden shifts to the responding party to show that its claim has a real chance of success; and

d) the motion judge must "take a hard look" at the evidence to determine whether there is a genuine issue requiring a trial.

(See: Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438, at para. 7; James v. Chedli, 2021 ONCA 593, at para. 31; Dia v. Calypso Theme Waterpark, 2021 ONCA 273, at para. 25; and Summa Engineering Limited v. Selectra Contracting Ltd., 2017 ONSC 6380, at para. 25, aff'd 2018 ONSC 5733)

[55] Respecting claims of alleged police negligence, it is settled law that the police owe a duty of care to suspects under investigation of alleged criminality and a duty to warn "a narrow and distinct group of potential victims of a specific threat" (see: Wellington v. Ontario, 2011 ONCA 274, at para. 20). However, police "owe no private law duty of care to victims of crime and their families in regard to the investigation of crime, rather they owe a duty to the public at large" (see: T.L. v. Ottawa Police Services et al., 2021 ONSC 4753, at para. 17).

[56] The tort of misfeasance in public office falls into two categories of deliberate and unlawful conduct by a public official:

a) conduct specifically intended to injure a person or class of persons; or

b) conduct that the public official knows both he or she has no power to engage in and is likely to injure the plaintiff.

(See: The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2022 ONCA 168, at para. 14)

[57] Misfeasance in public office requires an element of bad faith or dishonesty: the plaintiff "must demonstrate that the defendant knowingly acted illegally and in bad faith chose a course of action specifically to injure the plaintiff" (see: Catalyst Capital, at paras. 15-16; Pikangikum First Nation v. Nault, 2012 ONCA 705, at para. 77).

Analysis

No Valid Claim in Negligence

[58] I find there to be no genuine issue requiring a trial that the defendants are not liable in negligence respecting the non-recovery of the items allegedly stolen by Economou from the Residence.

[59] As outlined above, the law is settled that, outside of two specific circumstances, the police do not owe a private law duty of care to any specific member of the public.

[60] Neither of the two specified circumstances applies to the case-at-bar, as none of the plaintiffs is a suspect under investigation in this matter or a member of "a narrow and distinct group of potential victims of a specific threat". It is undisputed that, prior to October 1, 2021, the defendants did not have any information that Economou posed any specific threat to the plaintiffs or to the Residence or that Economou had engaged in any criminality respecting the plaintiffs or the Residence. In addition, the plaintiffs never filed any applicable complaint or sought police protection.

[61] Therefore, the defendants do not owe any private law duty of care to the plaintiffs respecting the overall investigation, let alone any such duty respecting the recovery of the plaintiffs' applicable property.

[62] Even if the defendants did owe such duty of care, there is no evidence that the defendants failed to meet the requisite standard of care of reasonable police officers in the circumstances. There is no evidence that the defendants unreasonably acted or failed to act in carrying out their investigations in this matter. In fact, the evidence shows that the defendants acted reasonably and diligently in the execution of their investigative mandate and were sensitive to the plaintiffs' circumstances and concerns and were responsive to them.

[63] Even if the defendants failed to meet the requisite standard of care, there is no evidence that the plaintiffs suffered any resultant damages. Beyond uncorroborated and self-serving statements in the plaintiffs' affidavit material, there is no evidence of what, if any, of the allegedly stolen property would have been recoverable but for the defendants' alleged negligence. Respecting Aziz, there is neither allegation nor evidence that any applicable property at the Residence – stolen, damaged or otherwise – belonged to him.

[64] There is no genuine issue requiring a trial that the defendants are not liable to the plaintiffs in negligence and the plaintiffs have failed to demonstrate that their claim in this respect has any chance of success.

No Valid Claim in Misfeasance in Public Office

[65] I also find there to be no genuine issue requiring a trial that the defendants are not liable to the plaintiffs for misfeasance in public office.

[66] As outlined above, the law is settled that the tort of misfeasance in public office requires not only deliberate and unlawful conduct by a public official, but also bad faith or dishonesty on his or her part.

[67] There is no evidence in the case-at-bar that could support any such finding against the defendants. To the contrary, as outlined above, the evidence is that the defendants acted lawfully, reasonably and in good faith in the execution of their duties in this matter.

[68] Furthermore, I accept the defendants' argument that the plaintiffs' own allegations – both in the statement of claim and in their responding materials on this motion – do not rise to the level of deliberate unlawful conduct or bad faith or dishonesty.

[69] The closest that the plaintiffs come to an allegation of deliberate and unlawful conduct committed with dishonesty or in bad faith is the allegation made during oral argument that the defendants seized some of the allegedly stolen cash, but refused to return same. The only evidence of this to which I was directed is the "Arrest Report" for Karrie Hurst that contains a field for "Cash taken"; however, the corresponding entry for that field is blank. In addition, the plaintiffs admit that the defendants never advised them that any property had been seized in respect of this matter.

[70] There is no genuine issue requiring a trial that the defendants are not liable to the plaintiffs in misfeasance in public office and the plaintiffs have failed to demonstrate that their claim in this respect has any chance of success.

[71] I do not accept the plaintiffs' argument that a trial is required because the defendants' oral testimony is required in order for them to be able to prove their case.

[72] The obligation on parties to a summary judgment motion to put their best foot forward is beyond clear, as is the presumption that the applicable evidentiary record is complete and that there will be nothing further if the issue were to proceed to a trial. Beyond this, the plaintiffs could have secured the defendants' oral evidence for use on this motion by way of cross-examination and/or examination under rule 39.03, but they failed to conduct any such examinations.

[73] I also do not accept the plaintiffs' argument that the defendants have acted deliberately unlawfully and with dishonesty or in bad faith because they seized cash that was allegedly stolen from the Residence and refused to return same.

[74] As outlined above, the plaintiffs admit that they were not advised of any seizure of property from Economou or Ms. Hurst and there is no evidence whatsoever of any such seizure. Furthermore, the Arrest Report referred to by the plaintiffs as proving that the defendants seized cash, in fact, shows the contrary.

Summary & Disposition

[75] As outlined above, there is no genuine issue requiring a trial respecting the plaintiffs' claims herein that the defendants are liable for non-recovery of the allegedly stolen property. On the evidence, there is no such liability and the plaintiffs' action is therefore dismissed.

[76] Order to go accordingly.

[77] I sincerely sympathize with the plaintiffs, who have allegedly had their home and their trust violated by a family member. However, that sympathy cannot, and does not, serve as a basis to cast aside and disregard long-settled legal precedent in order to find there to be a triable issue respecting the liability of the defendants who investigated that family member's alleged crimes. Furthermore, the plaintiffs have other available avenues of redress (see: Wellington, at para. 53) and they have pursued, at least, one of those by way of a civil action against Economou.

[78] In light of the result above, I need not decide the defendants' motion for an order requiring the plaintiffs to post security for costs.

Costs

[79] The defendants were successful on their motion and are entitled to their costs.

[80] I urge the parties to agree on the scale and quantum of costs and, upon such agreement, to forthwith advise me accordingly through the Milton Administration Office.

[81] Failing such agreement, the parties are to make their respective written submissions on costs (limited to two pages, excluding offers to settle) and deliver same through the Milton Administration Office as follows:

a) the defendants by no later than 4:00 p.m. on December 15, 2022;

b) the plaintiffs by no later than 4:00 p.m. on December 22, 2022; and

c) there shall be no reply.

C. Chang J.

Released: December 7, 2022