COURT FILE NO.: CV-17-569102

DATE: 20230613

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Tanya Rebello, Plaintiff

-and-

His Majesty The King in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police), defendant

BEFORE: Robert Centa J.

COUNSEL: Tanya Rebello, self-represented plaintiff (written submissions only)

Adam Mortimer and Bhavini Lekhi, for the defendant

HEARD: June 9, 2023

ENDORSEMENT

1On November 25, 2015, Tanya Rebello contacted the Ontario Provincial Police to complain about a car that frequently drove by her house, most often between 4:00 a.m. and 5:00 a.m. The OPP investigated, identified the car, spoke to the driver, and learned that the driver was delivering the Toronto Star newspaper to Ms. Rebello’s neighbour. The police concluded that there was no criminal activity afoot and told Ms. Rebello what they had learned. Ms. Rebello did not accept this explanation.

2On April 23, 2018, Ms. Rebello contacted the OPP to complain that a woman was trespassing on her property and appeared to be digging holes or burying objects in her yard. The OPP investigated and spoke with Ms. Rebello’s neighbour, who apologized profusely, and explained that his wife suffered from dementia and severe mental health issues, and sometimes wandered off. The police concluded that there was no criminal activity and told Ms. Rebello what they learned. Ms. Rebello did not accept this explanation. Instead, she stated that it “is very clear that there was criminal intent and [the OPP officer] failed to perform his duties and arrest this woman trying to harm” Ms. Rebello.

3Rather than accept the results of the police investigation, Ms. Rebello issued a $17 million claim against the defendant His Majesty The King in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police). She summarizes her claim as follows:

The plaintiff Ms. Tanya Rebello filed numerous complaints and police reports with the defendant The Ontario Provincial Police (OPP) to which the OPP failed to prevent crimes from being committed against the plaintiff who was a victim of crimes of stalking, trespassing, intimidation, threatening and voyeurisms. The OPP failed to assist and the plaintiff's who was a victim of crimes against her, by failing to laid [sic] charges and stop this person from terrorizing almost every night as per their duty and responsibility.

The defendant (OPP) allowed the person driving the white Mitsubishi with licence plate [omitted], to stalk harass and terrorize the plaintiff numerous times at irregular hours at night (12:00am-5:00am), for a number of years, and did not even charge this person for these criminal actions.

The plaintiff Ms. Tanya Rebello was and still is continually being stalked, harassed and violated by this person driving the white Mitsubishi with licence plate [omitted], on her street and property at [omitted] making it impossible for her to live there on her property for no justifiable reason, to which the OPP did nothing to protect her and was negligent in their actions and inactions.

The plaintiff was and is still being denied her Charter of rights and freedom section 7 by the defendant.

4The Crown moves for summary judgment to dismiss Ms. Rebello’s claim.

5I am satisfied that there are no genuine issues requiring a trial and that summary judgment is appropriate. First, many of Ms. Rebello’s claims cannot succeed as a matter of law. Second, Ms. Rebello was required to advance her best case and to ensure that the record contains all the evidence that she would present at trial. With respect to many of her claims, Ms. Rebello has not filed evidence to support her pleadings. Third, in the few instances where there is a dispute in the evidence, I am confident that I can do justice to the parties by weighing the evidence, evaluating the credibility of the affiants, and drawing inferences from the evidence. In each case, I prefer the evidence of the defendant, which is supported by contemporaneous notes, occurrence reports, and telephone logs.

6A fair and just resolution of this case without a trial is possible. For the reasons that follow, I dismiss Ms. Rebello’s action.

The pleadings and this motion

7On February 6, 2017, Ms. Rebello issued the statement of claim that commenced this proceeding. On February 7, 2018, the Crown filed its statement of defence. Ms. Rebello filed a reply on February 15, 2018, and an amended reply on March 6, 2018.

8On April 20, 2022, Ms. Rebello issued a fresh as amended statement of claim. On May 2, 2022, the Crown served an amended statement of defence.

9On May 4, 2022, the Crown served a notice of motion for summary judgment. In response, Ms. Rebello sought leave to deliver a further fresh as amended statement of claim. I have described the somewhat complicated management of this case in my reasons for decision that dismissed Ms. Rebello’s motion that I recuse myself due to a reasonable apprehension of bias.¹ I will not repeat that history here, except to note that on November 25, 2022, I set the schedule for the exchange of motion materials. On November 28, 2023, I directed that the Crown’s motion to be heard on June 9, 2023.

10On January 27, 2023, Ms. Rebello issued a further fresh as amended statement of claim. The Crown delivered an amended amended statement of defence on January 31, 2023, and Ms. Rebello delivered an amended amended reply on February 2, 2023. These three pleadings form the backdrop to this motion for summary judgment and for the remainder of these reasons for decision, I will refer to them as the statement of claim, the statement of defence, and the reply.

Case conference held on May 29, 2023

11At Ms. Rebello’s request, I convened a case conference on May 29, 2023. She requested, among other issues, that I adjourn the motion for summary judgment (which had been scheduled six months earlier) so that she could conduct examinations for discovery. I denied the adjournment request and ordered that the hearing proceed on a peremptory basis on June 9, 2023. Having reviewed all of the evidence filed on this motion, including the cross-examination transcripts, I do not believe the absence of examinations for discovery created a genuine issue requiring a trial.

12Ms. Rebello had participated in the prior steps in this proceeding by audio-only Zoom, which was unsatisfactory for many reasons. In particular, at times it was very difficult for me to hear, follow, and communicate with Ms. Rebello during the recusal motion on March 2, 2023. On May 29, 2023, I raised the prospect of holding the hearing on June 9, 2023, in-person.

13Ms. Rebello objected to attending in person. In rapid succession, she provided the following reasons for her objection: that it was her choice whether or not to attend in person, and she chose not to do so; that she had a work conference on the day of the full-day motion for summary judgment; that she was out of town; that she was not available in person; that she was not vaccinated; that she had the right to protect her health and that if I had a problem with that, I should “take it up with Ottawa”; that she would not be able to drive down to Toronto that quickly; that there was no reason for me to want the hearing to proceed in-person unless I had “another vested interest;” and that her work demands would not allow her to leave.

14Considering the issues raised on the summary judgment motion, the fact that it was to be a day-long hearing, the evidentiary record before me, the complexity of the legal issues, and that the outcome of the motion could result in a substantive disposition of the case, I concluded that an in-person hearing would be in the interests of justice. For these reasons, I exercised my discretion to order the hearing to proceed in person.²

15Ms. Rebello subsequently sent a series of emails requesting that she be able to participate by Zoom. Through my judicial assistant I confirmed that the hearing would take place in person.

Ms. Rebello does not attend the hearing

16At the commencement of the hearing, Ms. Rebello was not present. Mr. Mortimer advised me that Ms. Rebello had sent an email that morning mentioning Environment Canada and the smoke that blanketed the province from the unfortunate forest fires around the country. I adjourned the matter for 15 minutes, consistent rule 3.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. During the break, my judicial assistant provided me with a message that she received from Ms. Rebello that morning. It read:

As you are aware there is a high health risk in the Toronto Downtown area which was determined by Environment Canada, due to the smoke pollution and advise people to stay away, especially if anyone has any kind of health issues on Friday June 9, 2023.

I spoke with Environment Canada and Health Canada and Health Ontario and they all agreed that no company or even court can order anyone to come downtown Toronto with the high health risk of the smoke pollution in Toronto for June 9, 2023 and there is no reason why Zoom hearings (which is accessible) should not be used. This would go against the health warns [sic] of Environment Canada and Health Canada.

17I do not accept the accuracy of Ms. Rebello’s characterization of the advice she purportedly received from these agencies. The hearing date was peremptory upon her and none of her requests persuaded me to adjourn the hearing or change its mode of proceeding.

18I proceeded in the absence of Ms. Rebello but have considered her written evidence and submissions.

The evidence on this motion

19The Crown served affidavits from Provincial Constable Jiri Hlavacek dated January 17, 2022, August 11, 2022, and February 16, 2023. Ms. Rebello cross-examined P.C Hlavacek on September 1, 2022.

20Ms. Rebello swore affidavits dated July 26, 2022, August 19, 2022, October 19, 2022, and February 16, 2023. She was cross-examined on those affidavits on September 1, 2022.

Transcripts

21In her motion materials, Ms. Rebello included five “draft transcripts” of her conversations with various OPP officers as exhibits to her affidavit sworn July 26, 2022. She prepared these draft transcripts from recordings that she had in her possession. In her affidavit dated August 19, 2022, she stated that she was not a “licenced transcriber and did her best to summarize the conversation between the OPP officers” and that she “believes the draft transcripts are fairly accurate.” On cross-examination, Ms. Rebello admitted that she may have “missed a few things” when she was transcribing the conversations. In her factum, she described these documents as “draft partial transcript[s] of the conversation[s].” She also stated that she had copies of the audio recordings of the conversation, but she did not place those recordings into evidence.

22In my view, the transcripts are likely not admissible evidence. The recordings that Ms. Rebello made of the conversations may well have been admissible, but she did not enter them into evidence.³ Even if I were to admit the transcripts, I would give them very little weight. First, they were not prepared by an independent, professional transcriptionist. They were prepared by the plaintiff, who is an interested party. Second, the transcripts are incomplete. While Ms. Rebello acknowledges that she missed a few things, the effective cross-examination by Crown counsel demonstrated that it is more likely that significant portions of the calls were omitted.

23I am not satisfied that the transcripts represent a fair or accurate record of the conversations with the officers. I give the transcripts very little weight in my assessment of this motion for summary judgment.

Third supplementary motion record

24On May 1, 2023, Ms. Rebello served a “Third Further Supplementary Responding and Cross-Motion Record.” This was over two months after all affidavits were due (February 17, 2023) and a month after the Crown’s factum was delivered (March 31, 2023). The Crown objected to the admissibility of this late served evidence.

25The motion contained a brief affidavit attaching correspondence Ms. Rebello sent to the OPP Commissioner on August 2, 2016, August 26, 2016, January 25, 2017, January 19, 2017, June 8, 2020, and June 14, 2020, complaining about the OPP investigation of her complaints. The record also contained a letter sent by Ms. Rebello to an Inspector at the OPP. Given the dates of the letters, there is no reason that they could not have been included in any of Ms. Rebello’s prior motion records.

26At the case conference on May 29, 2023, I directed that Ms. Rebello could not rely on this late-filed material and that she should not upload it to CaseLines. Contrary to my direction, on June 6, 2023, Ms. Rebello uploaded the Third Further Supplementary and Responding Cross-Motion Record to the CaseLines bundle for this motion.

27Consistent with my earlier direction, I will not consider this material. For completeness, had this material formed part of the record before me, it would not have changed the outcome of this motion.

The principles of summary judgment

28Summary judgment is an important tool for enhancing access to justice where it provides a fair process that results in a just adjudication of disputes.⁴ Used properly, it can achieve proportionate, timely, and cost-effective adjudication.

29On a motion for summary judgment, I am to:

a. determine if there is a genuine issue requiring a trial based only on the evidence before me, without using the enhanced fact-finding powers under rule 20.04(2.1);

b. if there appears to be a genuine issue requiring a trial, determine if the need for a trial could be avoided by using the enhanced powers under

i. rule 20.04(2.1), which allow me to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence; and

ii. under rule 20.04(2.2), which allows me to order that oral evidence be presented by one or more parties.⁵

30At para. 66 of Hryniak, the Supreme Court of Canada emphasized that I must focus on whether the evidence before me permits a fair and just adjudication of the dispute and cautioned that judges should not use the enhanced powers where their use would be against the interests of justice:

On a motion for summary judgment under rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

31On a motion for summary judgment, the court assumes that the parties have each advanced their best case and that the record contains all the evidence that would be led at trial. Each party is obliged to put their best foot forward. They are not permitted to sit back and suggest that they would call additional evidence at trial.⁶

32Ms. Rebello states in her affidavit that she has “video evidence to show all the actions that occurred,” that the videos show the “criminal intent” of the persons she complained about. She did not put any of these videos in evidence on this motion. If she felt that this evidence was important for the just determination of this motion for summary judgment, she was required to file it. She tried to explain the absence of this evidence in her second factum as follows:

The plaintiff has substantial video and audio evidence, letters etc, which she needed to do examination for discoveries to have this transcript evidence available for the hearing, which the defendants to participate in the examination for discoveries and refused to provide sworn evidence from other OPP officers.

33Ms. Rebello did not need examinations for discovery to put video and audio evidence in her possession before the court on this motion for summary judgment. She could have included this material as exhibits to her affidavit. She could have questioned P.C. Hlavacek about this evidence during his cross-examination. She chose not to do any of those things. The absence of that evidence from the record on this motion does not raise a genuine issue requiring a trial.

34In my view, I am able to reach a fair and just determination on the merits of the action on this motion for summary judgment. The process allows me to make the necessary findings of fact and apply the law to the facts. Deciding the merits of this case on a motion for summary judgment is a proportionate, more expeditions, and less expensive means to achieve a just result.

35On a few points, it will be necessary for me to weigh the evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence. I am satisfied that it is not in the interest of justice that these powers, set out in rule 20.04(2.1), only be exercised at a trial.

Findings of fact

Assessing reliability and credibility

36On a few points, Ms. Rebello’s evidence conflicts with the evidence of P.C. Hlavacek. I must assess their reliability and credibility. One of the leading decisions on assessing credibility is Faryna v. Chorny, in which the court explained that:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.⁷

37I am entitled to accept all, some, or none of the evidence of a witness. I will assess the evidence before me according to many factors including:

a. if the evidence makes sense by being internally consistent, logical, or plausible;

b. if there are inconsistencies or weaknesses in the evidence of the witness such as internal inconsistencies, prior inconsistent statements, or inconsistencies with the evidence of other witnesses;

c. if there is independent evidence to confirm or contradict the witness’ evidence, or a lack of such evidence;

d. the witness’s demeanour, including their sincerity and use of language, although this must be considered with caution; and

e. if the witness, particularly one that is a party in a case, may have a motive to fabricate.⁸

38When I am assessing their affidavits, I will consider the following factors:

a. presence or absence of details supporting conclusory assertions;

b. artful drafting which shields equivocation;

c. use of language in an affidavit which is inappropriate to the particular witness;

d. indications that the deponent has not read the affidavit;

e. affidavits which lack the best evidence available;

f. lack of precision and factual errors;

g. omission of significant facts which should be addressed; and

h. disguised hearsay.⁹

39In my view, Ms. Rebello’s evidence is neither reliable nor credible. I will address some specific examples in the section below. In general, her affidavits contain virtually no details to support her conclusory assertions. To say her evidence is implausible is a significant understatement. There are many internal inconstancies within her affidavits. Her evidence is frequently contradicted by contemporaneous documents. Ms. Rebello’s reaction to being told the results of the OPP’s investigation into her complaints is puzzling. She is not willing to accept the evidence discovered by the OPP or their conclusions. Her subjective beliefs, even if deeply held, are no substitute for credible or reliable evidence in support of her claims.

The investigation of the suspicious vehicles driving on her street

40I have reviewed the contemporaneous handwritten police notes prepared by P.C. Hlavacek, Constable Vanden Tillart, the contemporaneous logs created by the OPP telephone operator, and the affidavits of P.C. Hlavacek. I find that the OPP General Occurrence Report SP15321221 accurately describes the investigation of Ms. Rebello’s complaint about the cars driving past her residence:

Complaint: Suspicious vehicle slowing down in front of complainant's residence.

Occurrence Location: 395 Norham Road, Municipality of Trent Hills, Northumberland County.

Investigation: The complainant in this matter contacted Northumberland OPP on the 23rd of November, 2015 at approximately 02:41 hours to report a suspicious vehicle driving by her residence in the early morning hours, approximately 4 times a week.

The initial report was taken by Constable VANDEN TILLAART who queried the suspect vehicle licence plate [omitted] which came back to a 2009 Mitsubishi Outlander registered to [D.S.] of [redacted] in Campbellford. The motor vehicle fit the descriptors provided by the complainant who was able to retrieve that information from surveillance installed on her house.

Given the early morning hours on the reported date, Constable Vanden Tillaart did not proceed to contact the registered owner of that motor vehicle, which resulted in the complainant calling back on the 23rd of November, 2015 at 19:04 hours (see SP15321952 for more information) to inquire about the status of the investigation. PC HLAVACEK proceeded to contact the registered owner of the above-mentioned Mitsubishi Outlander and at approximately 20:05 hours on the same date spoke to the registered owner's husband, [J.S.], who advised the officer that he delivers for the Toronto Star newspaper to 392 Norham Road, the [name omitted] residence, 4 times a week driving his wife's Mitsubishi Outlander. The remainder of the week is covered by his business partner, [R.B.], who delivers the same Toronto Star paper on Tuesday's, Wednesday's and Saturday's using his beige minivan, which is also one of the suspect vehicles described by the complainant.

The complainant was advised of the findings by the officer at 20:50 hours via telephone and was satisfied with the information provided.

She further inquired about people jumping her fence looking for golf balls. Rebello's property is located next to a local golf course, and she often sees players come onto her property to retrieve their golf balls that land in her yard. She does not like that, and was questioning the officer if police could get involved in assisting her resolving this issue. PC Hlavacek advised her that this matter would have to be addressed by her with the golf course management, perhaps they could caution their customers not to trespass onto her property. She was satisfied with advice given.

No further action in this matter.

Disposition: Complete - solved (non-criminal)

41Ms. Rebello disputes this account of events. I do not accept her evidence or submissions. She denies speaking with officers on the dates and at the times recorded in their contemporaneous handwritten notes. I prefer and accept those contemporaneous records.

42Ms. Rebello denies telling the OPP about a brown minivan. However, P.C. Vanden Tillaart’s handwritten notes from his 2:45 a.m. call with Ms. Rebello on November 23, 2015, recorded the following after Ms. Rebello described the white car:

another vehicle

also goes by

brown minivan

[with] tinted windows

43There is no reason for the officer to have written that in his notes unless Ms. Rebello said those words to him. The officer made those notes contemporaneously with his call with Ms. Rebello, before he knew the outcome of the investigation, and long before this litigation. In my view, the officer’s contemporaneous notes are far more reliable that Ms. Rebello’s evidence.

44Ms. Rebello did not accept the results of the investigation because the OPP did not obtain proof that the driver has a paper route “by obtaining a pay stub, T-4, job letter, bank statement showing pay etc. and if they cannot produce any documents to prove they work at the Toronto Star, then lay charges for mischief.” I do not accept that the OPP was required to take any of these steps. At the completion of the investigation, P.C. Hlavacek did not have a reasonable suspicion, much less reasonable and probable grounds to believe an offence had been committed. No further investigation was warranted in these circumstances.

45Ms. Rebello called the OPP again on June 13, 2016, to complain that she saw a suspicious motor vehicle on her surveillance system. I accept the version of events set out in the police report SP16159959 as an accurate description of the interaction between Ms. Rebello and the OPP:

Complaint: Suspicious vehicle travelling slowly in front of the complainant's residence.

Occurrence Location: 395 Norham Road, Percy Township, Municipality of Trent Hills History: The complainant, Tanya REBELLO, reported the same matter a few times before. It was determined that the suspect vehicle is driven by a newspaper delivery personnel that delivers paper on a daily basis to nearby residents. Nothing suspicious whatsoever.

Investigation: The complainant in this matter, Tanya Rebello, contacted Northumberland OPP on the 13th of June, 2016 to report seeing a suspicious motor vehicle on her surveillance system in the early morning hours. The licence plate for the motor vehicle provided was ARPF167.

It was subsequently checked by the writer and determined that he had actually spoken to the vehicle owner in November 2015 and confirmed that Norham Road was a part of his delivery route. In fact, just two driveways up the road he has to drop off Toronto Star to two of his customers.

PC HLAVACEK attempted to reach the complainant between 17:00 hours and 18:00 hours 7 times which, however, yielded negative results. Every time her phone was called, the officer would get no answer. Her voicemail was not set up. PC Hlavacek requested a night shift officer, PC VANDEN TILLAART, to follow up on this matter by calling the complainant which also yielded negative results as there was no answer when her number was called.

The complainant called back on the reported date at approximately 23:30 hours and spoke to PC Vanden Tillaart, at which time she advised him that she does not believe that the white Mitsubishi person delivers papers to the nearby residents. She further advised the officer that she has been dealing with RCMP over issues of multiple stalkers in Warkworth and issues with the OPP. She would not give PC Vanden Tillaart any information on who she's been dealing with at the RCMP.

In addition to the report about the SUV, she also reported that a male walks by her house and she thinks that he has taken some of her mail. PC Vanden Tillaart questioned about the video evidence from the surveillance installed at her residence. Rebello claimed that her lawyer has instructed her not to provide that surveillance at this point.

PC Vanden Tillaart requested that the complainant attends the Campbellford OPP detachment and brings the video or some sort of evidence with her and meet with the writer in person. She has agreed to attend the detachment but after she checks with her Bay Street lawyer to see if he would come with her. It was suggested by PC Vanden Tillaart that bringing a lawyer is not necessary. Rebello is supposed to call on the 14th of June in order to arrange for a meeting.

PIP search was also conducted by PC Vanden Tillaart and it revealed that Rebello called Toronto Police in December of 2015 and reported that she believes that OPP are involved with the SUV driver and believes that both the OPP and the driver are stalking her.

Attempts to be made to meet with Rebello, further supplementary report to be added upon speaking to her.

46Ms. Rebello submits that the OPP erred by not coming to her house to view the videotape evidence and that the “OPP officers failed to come to my home as they did not want to see the clear evidence to file the charge of mischief.” I disagree. I do not accept Ms. Rebello’s evidence. In my view, she was invited to bring the videotapes to the police station. It was incumbent upon her to do so if she wanted the police to review the tapes. There was no reason, based on the results of the police investigation to that point, that the OPP had to come to Ms. Rebello’s house. Indeed, in a subsequent police report, the police record that Ms Rebello refused to bring the video recordings because that would be a “breach of her privacy.” P.C. Hlavacek’s report dated June 15, 2016, states:

PC Hlavacek requested her to come into the Campbellford detachment and bring the surveillance recordings in order to assist with investigation into the suspicious vehicles that she was talking about. Rebello agreed do so next week, but stated that she will not bring video recordings as that would be a breach of her privacy, but she agreed to bring in photographs of suspected vehicles and plates.

47Ms. Rebello declined to provide the videotapes to the police. It is difficult to see how that is the OPP’s fault.

48Ms. Rebello also states in her responding affidavit that there is no “proof whatsoever that [P.C. Hlavacek] tried to contact me several times.” I disagree. P.C. Hlavacek authored a supplementary occurrence report SP16159959 on June 23, 2016. It states:

The complainant in this matter, Tanya REBELLO, was supposed to come to the OPP Campbellford Detachment on the 22nd of June 2016 at 13:00 hours however she failed to do so. No messages were received prior to the meeting cancelling such.

PC HLAVACEK attempted to reach the complainant on the 22nd of June 2016 at the following times: 13:34 hours - no answer, unable to leave voice mail as one was not initialized by the phone owner. 14:56 hours same result. 18:16 hours same result.

One more additional phone call was made on the 23rd of June 2016 at 06:41 hours. This one also yielded negative results for the same reason.

Given the attempts made and the fact that the complainant did not attend at the Detachment for mutually agreed upon meeting, no further follow up is to be conducted. Investigation closed until complainant calls back.

49I accept the evidence of P.C. Hlavacek. I find that the OPP did attempt to contact Ms. Rebello and were unsuccessful because she did not answer the telephone and had not initialized her voicemail. It is possible that Ms. Rebello did not know at the time that P.C. Hlavacek attempted to call her, but her unwillingness to accept this contemporaneous evidence undermines her credibility.

50I do not accept Ms. Rebello’s statement in her affidavit sworn on July 26, 2022, that “at no time did OPP officers respond to my complaints, or act in good faith in their response, but were instead negligent in not performing their duties.” I do not accept Ms. Rebello’s characterization of the actions of the OPP. It is entirely inconsistent with the notes and occurrence reports prepared by the officers.

The investigation of the two men who came on Ms. Rebello’s property in November 2016

51On January 15, 2017, Ms. Rebello contacted the OPP to report that on November 10, 2016, she observed through her security system that two people came on her property.

52I have reviewed the contemporaneous handwritten police notes prepared by P.C. Eitzen, the contemporaneous logs created by the OPP telephone operator, and the affidavits of P.C. Hlavacek. I find that the OPP General Occurrence Report OP17015345 accurately describes the investigation of Ms. Rebello’s complaint about the trespassers. The police report about this incident reads as follows:

Investigation: On January 15, 2017, the complainant in this matter, Tanya Rebello, contacted Police to say that she had seen two individuals on her security camera sometime in November, and she believes they are suspicious in nature. She also indicated that her power had been turned off by Hydro One, and believes it was on the direction of an unknown person. The writer contacted the complainant and spoke to her about the issues.

She stated that on November 3, 2016, her power was cut off by Hydro One. She had contacted Hydro was told that someone had called them and requested that the power to that address be turned off. She finds this to be suspicious. Then, on November 10, 2016, she observed two people on her security system come onto the property. She believes the people to be [J.W.] from Scotiabank and [W.C.], a former OPP officer. She told the writer she isn't certain the people on camera are [J.W.] and [W.C.], but she would like them questioned by Police in regards to the trespass. When asked why she waited until January 15, 2017 to call this in when it happened in the beginning of November, she stated she was in the process of getting new cameras installed that came in over the holidays. It is not clear to the writer how having new cameras come in prevented the complainant from reporting an incident that was apparently captured by the old cameras more than a month earlier. The complainant told the writer the men on the video were not carrying anything on them, but she could tell from the video they appeared nervous and seemed to be looking for something. She told the officer that she is involved in a civil lawsuit, and these two men are also involved as witnesses. She then began to speculate that the men were on the property in order to plant things there to incriminate the complainant. When the officer asked her to clarify what she meant by that, she said she believes they were there to plant evidence and could possibly leave things like bear traps or deadly weapons on her property, and even insinuated that a dead body could be left on her property, for which she would then be blamed. She had not been to the back part of the property where she believes all these things could be left, and said she did not intend to go there. Her biggest concern seemed to be to get the officer to assure her that she would not be held responsible for anything found on her property. She also specifically stated that should something happen to officers on her property, she wanted the writer to assure her that she would not be held accountable for that. Not having been to the property and having no idea what could be found on the property, the officer told her he could not give her a carte blanche guarantee that she is not responsible for anything on her property. The complainant also stated she believes someone did something to her shed since the screws on it appear to have been tampered with, but she has not looked inside to see if there is anything amiss inside. At the time of the complaint, there was a thick layer of snow on the ground, and the complainant [indicated] that she would not be at the property anytime in the near future to meet the officers and continue with the investigation. The writer informed her that he is not going to go and begin to question people without first seeing the video footage and going to the property, especially since she is not certain who the men are, and is strictly speculating at this point that they are planting incriminating things there. He also told the complainant that officers would be happy to accompany her on a check of the property once the ground is clear, and invited her to call Police when she is at the property and is able to show officers the video. She told the writer she would think about that and perhaps call later.

It is the writer's opinion that other than perhaps a minor trespass, the complainant has not provided any reason for more investigative steps to be taken. Pending further information from the complainant, specifically producing the video she captured of the men on her property for officers to view, and accompanying officers to the property to check it, no more action will be taken.

53I find that the OPP did not ignore her complaint about the trespassing incident. Instead, the OPP reasonably waited for Ms. Rebello to provide additional evidence to justify the OPP taking further steps to investigate her complaints. Ms. Rebello never followed up with the police about this incident. She never showed them the videotape of the incident. Instead, less than a month later, on February 6, 2017, Ms. Rebello issued the statement of claim that commenced this proceeding.

The investigation of the woman who came on Ms. Rebello’s property in April 2018

54In her statement of claim, Ms. Rebello pleads that she suffered damages because the OPP refused to charge a woman who came onto Ms. Rebello’s property with “trespassing, invasion of property and mischief and damage to property” and because the OPP “did absolutely nothing about this incident.”

55On April 23, 2018, Ms. Rebello contacted the OPP to report that her neighbour’s wife had trespassed on her property. I have reviewed the contemporaneous handwritten police notes prepared by P.C. MacGregor, the contemporaneous logs created by the OPP telephone operator, and the affidavits of P.C. Hlavacek. I find that the OPP General Occurrence Report OP18160074 accurately describes the investigation of Ms. Rebello’s complaint about the trespassers. P.C. Hlavacek’s affidavit, sworn on August 11, 2022, well describes the investigation:

8. At paragraph 22 of her affidavit, the Plaintiff alleges that P.C. MacGregor of my detachment failed to investigate an allegation of trespassing by a neighbour's wife on or about April 22, 2018. On or about April 23, 2018, the Plaintiff contacted the OPP to report that she had seen a woman on her surveillance cameras climb over her fence at 395 Norham Road (the "Norham Property") and appear to be digging or burying an object in the Plaintiff's yard.

9. In response to this call, P.C. MacGregor spoke to the Plaintiff to gather information including the approximate location on the Norham Property where this took place. He then attended a neighbour's property, spoke to the neighbour and determined that the neighbour's wife fit the description provided by the Plaintiff. The neighbour apologized, explaining that his wife suffered from dementia and severe mental health issues. The neighbour explained that his wife used to go and pick golf balls from the Norham Property in the past, and sometimes wanders off. He denied any criminal intent.

10. P.C. MacGregor noted that the incident was not criminal in nature. He attempted to contact the Plaintiff multiple times by telephone without success. He left the Plaintiff a message indicating she could contact the OPP to follow up.

56There is no evidence in the record to suggest that Ms. Rebello followed up with P.C. MacGregor.

57I do not accept Ms. Rebello’s affidavit evidence that P.C. MacGregor failed to investigate her allegations of trespass. Ms. Rebello’s allegation is, again, contradicted by contemporaneous written evidence. I do not accept her affidavit evidence that “the video evidence is very clear that there was criminal intent,” because Ms. Rebello did not put that video evidence before the court. I do not accept Ms. Rebello’s submission that the failure of the OPP to “provide any medical records to confirm that this woman has alleged mental health issues” undermines the credibility or reliability of the police evidence. I do not accept Ms. Rebello’s submission that the OPP “failed to perform [their] duties and arrest this dangerous woman trying to harm the plaintiff.” I see no basis in the evidence for the OPP to make an arrest.

58Against these factual findings, I will now address the claims specific causes of action advanced by Ms. Rebello. I will explain why I find that none of her claims raises a genuine issue for trial.

The negligence claims

59In order to prove negligence, a plaintiff must demonstrate (1) that the defendant owed her a duty of care; (2) that the defendant’s actions or omissions breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.¹⁰

60For the reasons that follow, I find that Ms. Rebello’s claim of negligent investigation and negligent supervision and training do not raise a genuine issue requiring a trial.

Negligent investigation

61Ms. Rebello claims that the OPP owed her a duty of care in negligence, which includes the duty to ensure that the police officers’ filed reports are correct and accurate, including that they accurately record a complainant’s statements. I disagree.

62A victim of crime has no cause of action against the police for a negligent investigation.¹¹ The police do not owe a private law duty of care to victims of crime in relation to the investigation of alleged crimes.¹² The police may owe a duty of care to a particular suspect under investigation and a duty to warn a narrow and distinct group of potential victims where the police have information of a specific threat to those victims and the potential victims do not.¹³ Ms. Rebello does not allege that she comes within either of these exceptions and there is no evidence in the record to suggest that she does.

63I am bound by the decisions of the Court of Appeal that the police do not owe a private law duty of care to victims of crime in relation to the investigation of alleged crimes.¹⁴ Ms. Rebello’s claim of negligent investigation does not raise a genuine issue for trial.

Negligent supervision or training of police officers by the OPP Commissioner

64Ms. Rebello submits that the OPP Commissioner owes her a private law duty of care to:

have policies, procedures, systems, supervision and training and operations in place with the OPP officers when dealing with public about complaints that need to be investigated and charges that should be charged should have a duty to ensure that all reports filed by the OPP correct and accurate information that they file above the plaintiff (member of the public) in the police database.

65I disagree. The OPP Commissioner owes public law duties under ss. 2, 17(2), and 41 of the Police Services Act, R.S.O. 1990, c. P.15. These statutory provisions do not create a private law duty of care owed by the Commissioner to citizens.¹⁵

66It is possible that a Commissioner can be shown to have sufficient proximity to a plaintiff to establish a private law duty of care. The plaintiff would also have to lead evidence of an independent and personal failure by the Commissioner to comply with her or his obligations under the Police Services Act.¹⁶

67Ms. Rebello has filed no evidence to demonstrate sufficient proximity with the Commissioner to impose a private law duty of care. Ms. Rebello first contacted the OPP in 2015 about these events. Since that time, four officers have served as OPP Commissioner.¹⁷ P.C. Hlavacek affirmed that none of those four OPP Commissioners had any direct involvement in the investigation into Ms. Rebello’s complaints. In 2021, Ms. Rebello complained to the Commissioner’s Office about the investigation into her complaints, but that is not sufficient to establish proximity for imposing a private law duty of care.¹⁸ There is no evidence that any of the OPP Commissioners were aware of actual police misconduct toward Ms. Rebello.¹⁹

68Moreover, the uncontradicted evidence of the Crown is that the OPP did have police orders in place that related to accurate note-taking, the preparation and filing of police reports, and investigating complaints of harassment or stalking. There are also police orders that place strict limits on access to police reports and notebooks. Ms. Rebello did not file any expert evidence that would be necessary to demonstrate that enacting these policies did not meet the standard of care.

69Finally, as set out above, the evidence filed on these motions satisfies me that the OPP officers investigated Ms. Rebello’s complaints thoroughly and professionally. It is not a genuine issue requiring a trial.

70Ms. Rebello’s claim of negligent supervision does not raise a genuine issue for trial.

The claim for intentional infliction of mental suffering

71Ms. Rebello submits that there is a genuine issue for trial relating to her claim that the Crown is liable for the intentional infliction of mental suffering. She submits that the OPP officers “ignored the multiple complaints [she] filed,” breached her privacy, filed false and defamatory reports about her, and did this “intentionally to inflict mental anguish and suffering” on her. I disagree.

72To meet the test for intentional infliction of mental suffering, a plaintiff must establish conduct that:

a. is flagrant and outrageous;

b. calculated to produce harm; and

c. results in visible and provable illness.²⁰

73I find that there is no genuine issue requiring a trial because Ms. Rebello has not led evidence to satisfy any of the three elements of this test.

74First, the evidence overwhelmingly demonstrates that the OPP officers did not engage in any conduct that could meet the test of “flagrant and outrageous.” The evidence demonstrates that the officers took Ms. Rebello’s complaints seriously, investigated them promptly and thoroughly, and concluded that the conduct of which she complained was not criminal in nature. If Ms. Rebello wanted the police to review the “substantial evidence” from her home video surveillance system, it was incumbent on her to provide this evidence to the police. Moreover, Ms. Rebello did not file this video evidence on the motion for summary judgment. To the extent that Ms. Rebello did not cooperate with the investigation, she cannot now blame the OPP for any deficiencies. There is nothing flagrant or outrageous about any of the police conduct in this case.

75Second, Ms. Rebello filed no evidence to suggest that the OPP’s actions were calculated to produce harm or that their actions resulted in her suffering any visible and provable illness.

76Ms. Rebello’s claim of intentional infliction of mental suffering does not raise a genuine issue for trial.

The claim for breach of privacy and intrusion upon seclusion

77Ms. Rebello claims damages for breach of privacy.²¹ She pleads as follows:

57. The OPP Officer Jiri Hlavacek…breached the plaintiff privacy to the privacy act, by filing a false report #OP18359136 against the plaintiff name in permanent database without identify and verifying the plaintiff named and date of birth and whether she was actually the person in these reports before filing this false police report in her name without her knowledge and without any of the OPP Officer Hlacvacek ever calling the plaintiff to inform her there was a complaint filed against her name or her friends Gary Curtis's name. Instead, OPP Hlavacek secretly filed this report on a public data base which the OPP, RCMP, government and banks and the public can access that anyone can access without notifying the plaintiff. This only came to the plaintiff attention on or about on May 12, 2022, when the plaintiff received reports from the OPP.

58. The OPP Officer Jiri Hlavacek knew or ought to have known that this breach of privacy and reckless by filing false reports against the plaintiff's name and date of birth without her knowledge or consent of false reports that did not involve the plaintiff and did not occur and was filed with no lawful justification whatsoever.

59. On about December 12, 2016, OPP Officer Christie…, made a false report# SP16175444, stating the plaintiff has mental health issues, which she does not have he is not a medical expert to make this assessment and should never have publicly this report in a permanent public OPP site which can be view by all third parties through freedom of information. The plaintiff only discovered this on or about May 2022, when she received the reports from the defendant.

78I find that there is no genuine issue requiring a trial regarding this claim.

79First, even if an OPP officer breached an applicable privacy statute, there is no tort for breach of a statutory duty.²²

80Second, there is no evidence that any police report arising from Ms. Rebello’s complaints to the OPP was placed in a “public database.” The uncontradicted evidence before me confirms that the OPP placed their reports in secure databases that are available only to certain other police services that are under similarly strict confidentiality obligations. Moreover, the Freedom of Information and Protection of Privacy Act specifically allows the sharing of personal information as between law enforcement agencies within Canada.²³ Non-policing third parties, however, do not have ready access to the police reports about Ms. Rebello’s complaints.²⁴

81Third, there is no evidence that anyone other than the police officers involved in processing Ms. Rebello’s complaints or providing her with production in this litigation ever accessed any of the police reports.

82Fourth, even if an OPP police report contained false information, which I do not accept, that is not fairly described as a breach of privacy. To the extent that the police reports recorded the observations and opinions of a police officer about Ms. Rebello’s health, that cannot be described as a breach of privacy.

83For all of these reasons, Ms. Rebello’s claim for damages arising from a breach of privacy does not raise a genuine issue requiring a trial.

The defamation claim

84Ms. Rebello claims that she is entitled to damages for defamation. She pleads as follows:

In 2019 and 2020, The defendants' police officers, falsely published and communicating in writing that the plaintiff committed criminal acts, by filing a number of false reports #20-589407 and #2020-1583003, 2020-131165 and 20-139703 and 20-35003907 and other reports mentioned above, in a Toronto Police public data base, which can be viewed by all levels of police (TPS, OPP and RCMP) in Canada, government, banks and Access to privacy, which were totally false.

63. The OPP Officer Jiri Hlavacek… defamed the plaintiff character by publishing false statements about the plaintiff's name and date and date of birth on public date base. By filing a false report #OP18359136 against the plaintiff's name in permanent database without identify and verifying the plaintiff named and date of birth and whether she was actually the person in these reports before filing these false police report in her name without her knowledge and without any of the OPP Officer Hlacvacek ever calling the plaintiff to inform her there was a complaint filed against her name or her friends Gary Curtis's name. Instead, OPP Hlavacek secretly filed this report on a public data base which the OPP, RCMP, government and banks and the public can access that anyone can access without notifying the plaintiff. This only came to the plaintiff attention on or about on May 12, 2022, when the plaintiff received reports from the OPP.

64. The OPP Officer Jiri Hlavacek knew that the statements in the reports he published about the plaintiff's name and date of birth were completely false.

65. On about December 12, 2016, OPP Officer Christie… made a false report# SP16175444, stating the plaintiff has mental health issues, which she does not have he is not a medical expert to make this assessment and should never have reported this false public report to be entered in a permanent public OPP site which can be view by all third parties through freedom of information. The plaintiff only discovered this on or about May 2022, when she received the reports from the defendant.

85I find that there is no genuine issue requiring a trial regarding this claim.

86To prove a defamation claim, a plaintiff must establish:

a. The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

b. The impugned words in fact referred to the plaintiff; and

c. The words were published.²⁵

87If a plaintiff establishes these elements, the onus shifts to the defendant to establish one of the available defences.²⁶

88As a first step, it is necessary to identify what statements are properly at issue. In her statement of claim, Ms. Rebello bases her defamation claim, in part, on a number of police reports prepared by the Toronto Police Service.²⁷ Ms. Rebello did not place those reports in evidence on this motion and, therefore, I will not consider them further.

89In her statement of claim, Ms. Rebello did not set out the precise words that she alleges are defamatory. Because Ms. Rebello is self-represented, and the law of pleading is fairly complicated, I am prepared to overlook this deficiency. From her submissions, I infer that she alleges that Officer Christie’s statement in OPP Report SP16175444 that Ms. Rebello is, in his opinion, "very paranoid, exhibiting signs of delusions and of persecution" is defamatory.

90However, there are several other reasons why this claim does not raise a genuine issue for trial.

91First, a libel must be published to a third party. Ms. Rebello alleges that that OPP published their reports by filing them in the Niche database. The evidence before me conclusively demonstrates that the police reports were not circulated or distributed other than by being placed in the database. I rely on my findings above about the extremely limited access to the reports filed in the police database. I choose to follow the decision of the Alberta Court of Appeal in MacRae v. Calgary (City) Police Service and conclude that the mere fact of making a police report does not amount to a publication where, as here, the police reports are not made available to the public.²⁸ There is no evidence before me that these reports were ever disclosed to a member of the public, a bank, or any other order of government.

92Second, based on the evidence before me, I am satisfied that the Crown would be able to establish a defence of qualified privilege. On an occasion of qualified privilege, a person may defame another without liability. The law presumes that the defamatory statement was made honestly and in good faith.²⁹ The law provides this defence where the interest to be protected by the statement is important enough to justify a limited immunity from a defamation action. The defence extends only to statements that are germane, reasonably appropriate, made honestly, and in good faith or without malice.³⁰

93The person making the statement must have an interest in making it and the person to whom the statement is made must have some interest in receiving it. In RTC Engineering, at para. 16, Laskin J.A. explained this notion of reciprocity or mutuality of interests as follows:

At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality. A defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it. “Interest”, however, should not be viewed technically or narrowly. The interest sought to be served may be personal, social, business, financial, or legal. The context is important. The nature of the statement, the circumstances under which it was made, and by whom and to whom it was made are all relevant in determining whether the defence of qualified privilege applies.

94The defence of qualified privilege is not absolute. The privilege may be lost if the defendant’s dominant motive for making the statement was malice or if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion, or because the recipients of the statement have no interest in receiving it.³¹

95In this case, the police reports were made on an occasion of qualified privilege. OPP officers are under a legal duty to keep notes, prepare reports, file the reports in the OPP’s Niche database, and review prior reports related to the same occurrence. These are core aspects of a police officer’s investigative duties.³² Courts have previously found that police reports are made on an occasion of qualified privilege.³³

96There is no evidence to suggest that the reports were prepared for a malicious purpose. The evidence overwhelmingly demonstrates that these reports were prepared in good faith by officers investigating Ms. Rebello’s complaints. The statement to which Ms. Rebello objects is simply the officer’s observations of his interactions with Ms. Rebello.

97Ms. Rebello’s defamation claim does not raise a genuine issue for trial.

The claim for damages for breach of the Charter of Rights and Freedoms

98Ms. Rebello seeks damages for breach of her rights under sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms.³⁴

Section 7 of the Charter

99Section 7 of the Charter provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” To establish a breach of section 7, a plaintiff must demonstrate that:

a. there is some state conduct to which the Charter applies;

b. the plaintiff is a natural person or otherwise has standing to invoke a natural person’s s. 7 rights;

c. the state conduct affects the plaintiff’s life, liberty, or security of the person; and

d. the state conduct is not in accordance with the principles of fundamental justice.³⁵

100Ms. Rebello submits that the conduct of the OPP violated her section 7 rights. She explains as follows:

The plaintiff’s right to live in peace and liberty, freedom and security was violated because the OPP ignored the ongoing multiple attacks and harm done to the plaintiff and her property preventing her from maintaining, residing, selling or enjoying her property and home; the plaintiff's freedom and liberty was severely violated, and her safety was put at severe risk. The OPP not only ignored all the plaintiff’s complaints and refused to attend the plaintiff's home to view and obtain the proof of the harm inflicted on the plaintiff from her home video surveillance, instead the OPP filed public reports saying the plaintiff has mental health issues.

101Ms. Rebello’s claim that the OPP breached her s. 7 rights does not raise a genuine issue for trial. Based on the evidence in the record, I find that there was no state action that deprived her of a protected interest.³⁶ There is no credible evidence in the record that:

a. Ms. Rebello was ever physically attacked or that her safety was put at risk;

b. the actions of the OPP officers

i. prevented her from maintaining, residing, selling or enjoying her property;³⁷

ii. violated her freedom and liberty in any way, much less seriously;

iii. ignored her complaints or refused to collect evidence;

iv. made any reports about the plaintiff available to the public.

102Based on the record before me, there is no genuine issue requiring a trial over whether the OPP conduct amounted to serious state-imposed psychological stress rising to the level of a deprivation of Ms. Rebello’s security of the person.³⁸ The state conduct must have a serious and profound effect on a person’s psychological integrity. These effects are to be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.³⁹

103Ms. Rebello does not have a legal interest in the charging or prosecution of another person, therefore the decision of the OPP officers not to lay charges did not engage Ms. Rebello’s section 7 rights.⁴⁰

104Finally, even if the OPP officers breached Ms. Rebello’s right to life, liberty, or security of the person, Ms. Rebello has not identified how this conduct was not in accordance with the principles of fundamental justice. Ms. Rebello did not identify the applicable principle of fundamental justice. In Bowman, the Court of Appeal held that:

It is not for a court to speculate which principles of fundamental justice might be in play in a proceeding; it is for the claimant to identify the operative principles of fundamental justice in its pleading… That omission in their Amended Claim is fatal to the appellants’ appeal on this issue.⁴¹

105In addition, Ms. Rebello tendered no evidence of a violation of any of the principles of fundamental justice, which is equally fatal to her claim.

106Ms. Rebello’s claim for a breach of s. 7 of the Charter does not raise a genuine issue for trial.

Section 15 of the Charter

107Subsection 15(1) of the Charter provides that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

108To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned state action:

a. on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and

b. imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.⁴²

109Ms. Rebello submits that the conduct of the OPP officers breached her s. 15 rights as follows:

The OPP officers (all Caucasian) breached the plaintiffs' section 15 of her charter of rights as they refused to believe any of the plaintiff's (minority) complaints about people in the area (who were Caucasian). Instead, the OPP filed reports stating that the plaintiff had mental health issues to cover the harm and crimes that were being committed against the plaintiff, and not provide equal protection and equal benefit under the law.

110Ms. Rebello has filed no evidence to support her allegation that the OPP breached her s. 15 rights. There is no evidence to demonstrate any nexus between the actions of the OPP and an enumerated (or analogous) ground listed in s. 15.

111In addition, for the reasons set out above, I find that the OPP took Ms. Rebello’s complaints seriously, investigated them, and reached good faith conclusions that the complaints did not disclose criminal activity. There is no evidence in the record to suggest that the actions of the OPP created a distinction based on an enumerate or analogous ground or denied Ms. Rebello a benefit in a manner that exacerbated a disadvantage.

112There is no genuine issue requiring a trial in respect of Ms. Rebello’s claim for a breach of s. 15 of the Charter.

Conclusion and costs

113None of Ms. Rebello’s claims raise a genuine issue requiring a trial. I grant summary judgment in favour of the Crown and dismiss Ms. Rebello’s claim in its entirety.

114The Crown uploaded a Costs Outline to CaseLines. It seeks $35,399.53 in costs on a substantial indemnity scale, or $24,247.69 on a partial indemnity scale.

115Prior to the hearing, Ms. Rebello uploaded to CaseLines her own costs submissions dated June 8, 2023. She requests that each party should bear their own costs of the proceeding.

116In Apotex Inc. v. Eli Lilly Canada Inc., the Court of Appeal for Ontario recently restated the general principles to be applied in the court’s exercise of its discretion to award costs.⁴³ Fixing costs is a discretionary decision under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In exercising my discretion, I may consider the factors listed in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. These factors include the result achieved, the amounts claimed and recovered, the complexity of and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, as well as any other matter relevant to costs.

117A proper costs assessment requires the court to undertake a critical examination of the relevant factors as applied to the costs claimed and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable.”⁴⁴ The overarching objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant.⁴⁵

118While the reasonable expectation of the parties concerning the amount of a costs award is a relevant factor that informs the determination of what is fair and reasonable, it is not the only, determinative factor and cannot be allowed to overwhelm the analysis of what is objectively reasonable in the circumstances of the case.⁴⁶

119Costs that are reasonable, fair, and proportionate for a party to pay in the circumstances of the case should reflect what is reasonably predictable and warranted for the type of activity undertaken in the circumstances of the case, rather than the amount of time that a party’s lawyer is willing or permitted to expend. The party required to pay the successful party’s costs “must not be faced with an award that does not reasonably reflect the amount of time and effort that was warranted by the proceedings.”⁴⁷

120The party seeking costs bears the burden of proving them to be reasonable, fair, and proportionate. Absent dockets, a description of the activities for which fees and disbursements are claimed must be sufficient to permit for the kind of close scrutiny that the court is required to undertake.⁴⁸

121In my view, it is appropriate to fix costs on a partial indemnity scale as opposed to a substantial indemnity scale.

122Ms. Rebello describes the Crown’s request for costs on a partial indemnity scale as “completely outrageous.” In support of her submission, Ms. Rebello wrote:

It is important to note that the Crown has a trial with the plaintiff against their servants the MTO for the MTO actually unlawfully transferred the plaintiff car ownership to some unknown company without her knowledge or signed consent, which is going to trial the week of December 5, 2022. The Crown knows they are not going to be successful at trial and are trying to get significant costs in this matter to reduce the amount they will have to pay in that action, which the Crown should not be allowed to do so.

123I observe that Morgan J. dismissed Ms. Rebello’s claim in reasons for decision released on January 30, 2023.⁴⁹ On March 7, 2023, Morgan J. ordered Ms. Rebello to pay $100,000 in costs to Ontario. For this reason, among others, I do not accept Ms. Rebello’s submission that the “Crown has inflated these costs in bad faith so the Crown can offset these costs [against] the MTO costs that they will have to pay….”

124The Crown was successful on this motion, which resulted in the entire action being dismissed. The importance of these issues to the Crown is obvious, given the wide-ranging and serious allegations made by Ms. Rebello. The costs claimed by the Crown for this motion are objectively reasonable given the number of different pleadings at issue, the number of affidavits required, the lengthy cross-examinations, the number of legal issues raised by Ms. Rebello’s many causes of action, and the number of case-management attendances required.

125The rate for salaried Crown counsel is to be determined based on a reasonable rate for independent counsel of comparable experience. Costs are not to be disallowed or reduced merely because they relate to a lawyer who is a salaried officer of the Crown.⁵⁰

126Ms. Rebello, although self-represented, is an experienced litigant.⁵¹ She should reasonably have expected to pay a costs order on the scale of the one sought by the Crown if she was not successful.

127I order that Ms. Rebello pay the costs of this motion on a partial indemnity scale, fixed in the amount of $24,247.69, inclusive of disbursements and taxes, to the Minister of Finance for Ontario within 30 days of this decision.

Robert Centa J.

Footnotes

1. 1Rebello v. Ontario, 2023 ONSC 1544.
2. 2Superior Court of Justice, Guidelines To Determine Mode of Proceeding in Civil, April 19, 2022, s. 1.
3. 3R. v. Rowbotham, 1988 CanLII 147, 25 O.A.C. 321 (C.A.), at para. 123.
4. 4Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 4-7.
5. 5Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 154 O.R. (3d) 561, at para. 24.
6. 6Prism Resources Inc. v. Detour Gold Corp., 2022 ONCA 326, 162 O.R. (3d) 200, at para. 4; Ntakos Estate v. Ntakos, 2022 ONCA 301, 75 E.T.R. (4th) 167, at para. 38; Salvatore v. Tommasini, 2021 ONCA 691, at para. 17; Miaskowski (Litigation guardian of) v. Persaud, 2015 ONSC 1654, 51 R.P.R. (5th) 234, at para. 62, rev’d on other grounds, 2015 ONCA 758, 342 O.A.C. 167.
7. 71951 CanLII 252, [1952] 2 D.L.R. 354 (B.C.C.A.), at para. 10; see also Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., 1971 CanLII 389 (ON CA), [1971] 2 O.R. 637 (C.A.).
8. 8Caroti v. Vuletic, 2022 ONSC 4695, at paras. 434-436; 1088558 Ontario Inc. v. Musial, 2022 ONSC 5239, at para. 83.
9. 9Konstan v. Berkovits, 2023 ONSC 497, paras. 8 to 12; Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178 (S.C.), at para. 46.
10. 10Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3; Levac v. James, 2023 ONCA 73, at para. 43.
11. 11Norris v. Gatien, (2001), 2001 CanLII 2486 (ON CA), 56 O.R. (3d) 441 (C.A.); Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81; Holland v. Toronto (City) Police Services Board, 2021 ONSC 5727, at para. 27; T.L. v. Ottawa Police Services, 2021 ONSC 4753 at paras. 14-17.
12. 12Wellington at para. 20; T.L., at para 16; Holland, at para. 24; Thompson v. Saanich (District) Police Department, 2010 BCCA 308, 320 D.L.R. (4th) 496 (C.A.); Fockler v. Toronto (City), [2007] O.J. No. 11, 43 M.P.L.R. (4th) 141 (S.C.J.); Project 360 Investments Ltd. (c.o.b. Sound Emposium Nightclub) v. Toronto Police Services Board, 2009 CanLII 36380, [2009] O.J. No. 2473 (S.C.J.); Spencer v. Canada (Attorney General), 2010 NSSC 446, 304 N.S.R. (2d) 1; Petryshyn v. Alberta (Minister of Justice), [2003] A.J. No. 108, 2003 ABQB 86.
13. 13Wellington, at para. 20.
14. 14Wellington at para. 20; T.L., at para 16; Holland, at para. 24; Thompson v. Saanich (District) Police Department, 2010 BCCA 308, 320 D.L.R. (4th) 496 (C.A.); Fockler v. Toronto (City), [2007] O.J. No. 11, 43 M.P.L.R. (4th) 141 (S.C.J.); Project 360 Investments Ltd. (c.o.b. Sound Emposium Nightclub) v. Toronto Police Services Board, 2009 CanLII 36380, [2009] O.J. No. 2473 (S.C.J.); Spencer v. Canada (Attorney General), 2010 NSSC 446, 304 N.S.R. (2d) 1; Petryshyn v. Alberta (Minister of Justice), [2003] A.J. No. 108, 2003 ABQB 86.
15. 15Solak v. Brantford Police Services Board, 2022 ONSC 4025, at para. 20; Haggerty Estate (Litigation Administrator of) v. Rogers, 2011 ONSC 5312, at paras. 91 and 92.
16. 16Dawson v. Baker, 2017 ONSC 6477 at paras. 69 and 70.
17. 17Vince Hawkes, Brad Blair (as of November 3, 2018), Gary Couture (as of December 17, 2018), Thomas Carrique (as of June 6, 2019).
18. 18Miguna v. Toronto Police Services Board, 2008 ONCA 799, at paras. 82 to 87;
19. 19The fact that Ms. Rebello filed multiple complaints with the Commissioners of the OPP does not change the fact that none of those complaints disclosed actual misconduct. Even if I had admitted into evidence Ms. Rebello’s Third Further Supplementary Responding and Cross-Motion Record, and considered the additional complaints that Ms. Rebello sent to the OPP, this would not change my analysis.
20. 20Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), at para. 48; Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494 at para. 45.
21. 21In one place in her statement of claim, Ms. Rebello pleads that she is seeking damages for “breach of privacy and/or intrusion upon seclusion.” This is the only reference to intrusion upon seclusion in the statement of claim. She did not plead any facts that would establish that tort and has filed no evidence that could make it out. I will not address it further except to say that this single reference to intrusion upon seclusion does not create a genuine issue for trial and would grant summary judgment to the Crown and dismiss that claim.
22. 22Saskatchewan Wheat Pool v. Canada, 1983 CanLII 21 (SCC), [1983] 1 S.C.R. 205.
23. 23Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 42(1)(d), (f), (g) [FIPPA].
24. 24FIPPA, s. 14.
25. 25Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 at para. 28; Zoutman v. Graham, 2020 ONCA 767, at para. 20.
26. 26Grant at para. 29.
27. 27The reports are numbered 20-589407, 2020-1583003, 2020-131165, 20-139703, and 20-35003907.
28. 282016 ABCA 343, 47 Alta. L.R. (6th) 118 at para. 16.
29. 29RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General & Correctional Services-Office of Fire Marshall) (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 14.
30. 30RTC Engineering, at paras. 15-18.
31. 31Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] 1 S.C.R. 275; RTC Engineering, at para. 18.
32. 32Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053, at paras. 61 to 68.
33. 33Presley v. Reti, 1998 CarswellYukon 99 (YKSC),
34. 34Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
35. 35Leroux (Litigation guardian of) v. Ontario, 2023 ONCA 314, at para. 75; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55; Bowman v. Ontario, 2022 ONCA 477, 162 O.R. (3d) 561 at para. 94; Professor Hamish Stewart, in Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2019), at p. 23.
36. 36Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 at para. 81.
37. 37This assumes that her use and enjoyment of her property falls within the interests protected by s. 7 of the Charter, which I doubt.
38. 38R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336 at paras. 106, 120, 121.
39. 39R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336 at paras. 106, 120, 121.
40. 40Wellington, at para. 31.
41. 41Bowman, at paras. 96-97.
42. 42Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, at para. 27; Meekis v. Ontario, 2021 ONCA 534, 158 O.R. (3d) 1, at para. 134.
43. 432022 ONCA 587, at paras. 59 to 66.
44. 44Apotex, at para. 60; Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 1, at para. 356, citing Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 24.
45. 45Apotex, at para. 61; Boucher, at para. 26.
46. 46Apotex, at para. 62.
47. 47Gratton-Masuy Environmental Technologies Inc. (c.o.b. Ecoflo Ontario) v. Building Materials Evaluation Commission, 2003 CanLII 8279 (ON SCDC), 2003 ONSC 8279, 170 O.A.C. 388 (Div. Ct.), at para. 17; Apotex, at para. 65.
48. 48Leonard v. Zychowicz, 2022 ONCA 212, at para. 33.
49. 49Rebello v. Ontario, 2023 ONSC 601.
50. 50Section 36 of the Solicitor's Act, R.S.O. 1990, c. S.15; Ontario v. Rothmans Inc., 2012 ONSC 1804, aff'd 2013 ONCA 353, 115 O.R. (3d) 561, leave to appeal refused [2013] S.C.C.A. No. 327; s. 131(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43,
51. 51See, for example, in addition to the other cases cited in these reasons for decision, see Rebello v. The Bank of Nova Scotia, 2018 ONSC 7127, Rebello v. Paragon Security, 2020 ONSC 2303, Rebello v. Del Property Management, 2021 ONSC 7888, Rebello v. The Bank of Nova Scotia, 2018 ONSC 4776, Rebello v. The Bank of Nova Scotia, 2017 ONSC 658, Rebello v. Attorney General for Ontario, 2021 ONSC 6502, Rebello v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 3752.