Court File and Parties

COURT FILE NO.: CV-19-633354 MOTION HEARD: 20230621; 20230721, 20231013 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Martin and Nancy Martin, Plaintiffs AND: Toronto Police Services Board, Constable Michael Limsiaco, Constable Dina El Halabi, Constable Andrew Watts and Constable Jeffrey Graham, Defendants

BEFORE: Associate Justice L. La Horey

COUNSEL: Davin Charney, Counsel for the plaintiffs Rebecca Bush and Taha Hassan, Counsel for the defendants

HEARD: June 21, 2023 (in person), July 21, 2023 (by videoconference), October 13, 2023 (teleconference agreement on facts)

REASONS FOR DECISION

OVERVIEW

[1] The plaintiffs and defendants bring competing motions with respect to the deemed undertaking rule. The plaintiffs David Martin and his mother Nancy Martin bring this action against the Toronto police in connection with Mr. Martin’s arrest for break and enter. The criminal charges against Mr. Martin were dismissed after a preliminary hearing. The plaintiffs allege various wrongdoing against the police officers involved including negligent investigation, malicious prosecution and an unlawful search of the plaintiffs’ residence.

[2] The plaintiffs brought a motion for an order that the deemed undertaking rule does not apply and that the plaintiffs can utilize certain discovery evidence to pursue their existing complaint to the Office of the Independent Police Director (“OIPRD”) and a contemplated criminal proceeding – a private criminal prosecution against two police officers who are not named defendants.

[3] The defendants oppose the plaintiffs’ motion. Their notice of motion asks for an order striking out the plaintiffs’ statement of claim on the basis that they breached the deemed undertaking rule by improperly using discovery evidence to advance their complaint to the OIPRD and an order for costs. At the hearing, Ms. Bush advised that the defendants are no longer seeking to strike or stay the plaintiffs’ claim, rather they are seeking only an enhanced cost award because of the plaintiffs’ breach of the deemed undertaking rule. The defendants’ request for costs is not being dealt with at this stage.

[4] This motion has evolved since it was first brought. The plaintiffs originally sought an order permitting them relief from the deemed undertaking rule with respect to:

a. the Show Cause Brief from the criminal proceedings against Mr. Martin dated December 2017 (“Show Cause Brief”) and authored by DC Tayabali that was produced by the defendants as part of their affidavit of documents, as described more particularly below;

b. excerpts from the transcript for discovery of the defendant Constable Michael Limsiaco and,

c. excerpts from the transcript for discovery of the defendant Constable Andrew Watts.

[5] During the hearing on June 21, 2023, the plaintiffs withdrew their requests with respect to the discovery transcripts, leaving only a request for relief from the deemed undertaking rule for the Show Cause Brief.

[6] Between the first and second day of oral argument, the plaintiffs received a copy of the Show Cause Brief pursuant to a freedom of information request and filed a supplementary affidavit attaching the request and the response prior to the second day of the hearing. The defendants maintained their position that the plaintiffs should not be relieved of their undertaking with respect to the Show Cause Brief. The motion was adjourned after the second day of oral argument at the request of the plaintiffs.

[7] In the course of a case conference on October 13, 2023, the parties agreed on additional facts regarding the Show Cause Brief as set out in my endorsement of that day.

[8] For the reasons that follow, I grant the plaintiffs relief from the deemed undertaking rule in connection with the Show Cause Brief.

BACKGROUND

[9] This action arises out of interactions between the plaintiff David Martin and Toronto Police Service (“TPS”) officers in December 2017, in the context of a break and enter investigation. Mr. Martin was arrested by TPS officers and charged with offences under the Criminal Code. The police searched the residence shared by the plaintiffs. Mr. Martin was released at a bail hearing on December 24, 2017. The charges against Mr. Martin were dismissed after a preliminary inquiry.

[10] The plaintiffs commenced this action in December 2019 seeking damages for, among other things, negligent investigation, malicious prosecution, assault, false imprisonment, trespass in respect of an allegedly illegal search, and Charter damages. Ms. Martin seeks damages under the Family Law Act.

[11] The parties have exchanged affidavits of documents. The named defendant officers were examined for discovery in July 2021.

[12] The defendants agreed to produce for discovery four police officers who were not defendants to the action, Detective Constable Tayabali (“DC Tayabali”), Detective Constable Lee (“DC Lee”) and two others, on the condition that they not become party defendants to the action. Because the defendant Toronto Police Services Board (“TPSB”) is statutorily liable for torts committed by TPS officers in the course of their employment, the plaintiffs are able to seek redress for any tortious activity committed by these officers even if they are not named as defendants. The examination of DC Tayabali took place in July 2021. The defendants have refused to schedule the examination of DC Lee at this time.

[13] One of the documents contained in the defendants’ affidavit of documents is a document called a Show Cause Brief authored by DC Tayabali. It is a short document without attachments. A Show Cause Brief is a document providing information about the case that is prepared by the police for the Crown in advance of a bail hearing. It sets out the police’s opinion and recommendations regarding bail. The decision and responsibility as to whether to produce the Show Cause Brief to defence counsel as part of Crown disclosure is that of the Crown. In some cases, the Show Cause brief is disclosed to the accused (in a redacted form) and in some cases it is not. In this case it was not produced to Mr. Martin as part of the Crown disclosure in the criminal proceeding.

[14] In the interval between the first day of hearing and the resumption of the oral hearing, plaintiffs’ counsel received a response to a request to the TPS pursuant to the Municipal Freedom of Information and Protection of Privacy Act, [1] made by Mr. Charney on behalf of Mr. Martin pursuant to his letter of May 29, 2023 (the “FOI request”). The FOI request requests a copy of the Show Cause Brief only. The FOI request was made well after the motion was scheduled. Mr. Charney received a redacted copy of the Show Cause Brief on or about July 7, 2023. For the purposes of this motion, the redactions do not appear to be material. The plaintiffs tendered the FOI request and the response shortly prior to the resumption of the motion.

[15] Another document included in the defendants’ affidavit of documents is an affidavit sworn by DC Lee for the search warrant. This document was disclosed to Mr. Martin as part of the Crown disclosure in the criminal proceeding.

[16] On December 20, 2021, the plaintiffs filed a complaint with the OIPRD against DC Tayabali and DC Lee. The complaint was submitted by plaintiffs’ counsel on their behalf. The mandate of the OIPRD is to investigate public complaints against police officers. OIPRD investigations can lead to disciplinary proceedings being brought against police officers with potentially significant consequences, up to and including dismissal.

[17] In the OIPRD complaint, the plaintiffs contend that DC Tayabali was neglectful in his duty and deceitful when he included false and misleading information in the Show Cause Brief. They assert that the Show Cause Brief contains false statements that were designed to mislead the Crown prosecutor and the court. In this Show Cause Brief the officer states that the police were “vehemently opposed to the release of the accused” on bail. Notwithstanding the police recommendation, the Crown consented to bail at the hearing.

[18] As against DC Lee, the plaintiffs’ contention is that he was neglectful in his duty and deceitful when he gave false information to DC Tayabali for the Show Cause Brief and when he included false information in his affidavit in support of the search warrant including false allegations that DC Lee attributes to other officers, but were never made by those officers.

[19] The plaintiffs suggest that the officers’ conduct could amount to a criminal offence of obstructing justice. The defendants deny all allegations of wrongdoing against the officers.

LAW AND ANALYSIS

The deemed undertaking rule

[20] Rule 30.1 of the Rules of Civil Procedure codifies the common law deemed undertaking rule. It provides as follows:

Application

30.1.01 (1) This Rule applies to,

(a) evidence obtained under,

(i) Rule 30 (documentary discovery),

(ii) Rule 31 (examination for discovery),

(iii) Rule 32 (inspection of property),

(iv) Rule 33 (medical examination),

(v) Rule 35 (examination for discovery by written questions); and

(b) information obtained from evidence referred to in clause (a).

(2) This Rule does not apply to evidence or information obtained otherwise than under the rules referred to in subrule (1).

Deemed Undertaking

(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.

Exceptions

(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents.

(5) Subrule (3) does not prohibit the use, for any purpose, of ,

(a) evidence that is filed with the court;

(b) evidence that is given or referred to during a hearing;

(c) information obtained from evidence referred to in clause (a) or (b).

(6) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.

(7) Subrule (3) does not prohibit the use of evidence or information in accordance with subrule 31.11 (8) (subsequent action).

Order that Undertaking does not Apply

(8) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just.

The purpose of the deemed undertaking rule - Juman v Doucette

[21] The leading case on the deemed undertaking rule is the decision of the Supreme Court of Canada in Juman v Doucette. [2] In this case, Justice Binnie for the court described the rationale for the rule at length: [3]

… The rationale of the implied undertaking rule rests on the statutory compulsion that requires a party to make documentary and oral discovery regardless of privacy concerns and whether or not it tends to self-incriminate. The more serious the criminality, the greater would be the reluctance of a party to make disclosure fully and candidly, and the greater is the need for broad protection to facilitate his or her cooperation in civil litigation.

The root of the implied undertaking is the statutory compulsion to participate fully in pre-trial oral and documentary discovery. If the opposing party seeks information that is relevant and is not protected by privilege, it must be disclosed even if it tends to self-incrimination.

The public interest in getting at the truth in a civil action outweighs the examinee's privacy interest, but the latter is nevertheless entitled to a measure of protection. The answers and documents are compelled by statute solely for the purpose of the civil action and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy that purpose and that purpose alone.

There is a second rationale supporting the existence of an implied undertaking. A litigant who has some assurance that the documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid discovery. This is of particular interest in an era where documentary production is of a magnitude ("litigation by avalanche") as often to preclude careful pre-screening by the individuals or corporations making production.

For good reason, therefore, the law imposes on the parties to civil litigation an undertaking to the court not to use the documents or answers for any purpose other than securing justice in the civil proceedings in which the answers were compelled (whether or not such documents or answers were in their origin confidential or incriminatory in nature).

Was the deemed undertaking rule breached?

[22] The plaintiffs concede that the deemed undertaking rule was breached when they used the discovery evidence in making the OIPRD complaint, unless the exception in subrule 30.1.01(5)(a) and (b) applies and subject to leave being granted pursuant to 30.1.01(8). There is no dispute that the plaintiffs did not seek the consent of the defendants prior to using the evidence.

[23] The plaintiffs take the position that they have not breached the deemed undertaking rule with respect to the potential private prosecution. The defendants do not suggest otherwise.

[24] It is apparent on the face of the OIPRD complaint that discovery evidence from this action, the Show Cause Brief and evidence from the oral discoveries, was used by the plaintiffs in its preparation. The OIPRD complaint states in part:

4. At David’s bail hearing certain false and outrageous information was shared with the court. The source of the information was not clear. During the civil claim, police records were released to Nancy and David. One of the documents was [a] brief for show cause, authored by D/C Tayabali (the Show Cause Brief). This document was produced to the complainants on or about February 15, 2021 [pursuant to the discovery process in this action].

5. The facts regarding this fraud [referring to alleged false statements in the Show Cause Brief] became apparent to the complainants on July 22, 2021 during civil discoveries. [July 22, 2021 is the date that DC Tayabali and DC Watts were examined for discovery]

[25] Ms. Martin filed an affidavit on this motion. In this affidavit she says:

Much of the information in my police complaint was within my knowledge before I filed the civil claim. [4] However, I acknowledge that, when I filed the complaint, I used information which I learned during the discoveries. I did not serve or file any documents produced in the civil claim.

[26] In cross-examination Ms. Martin admitted that at the time she reviewed the draft OIPRD complaint prepared by counsel, she was aware that there was certain information, including the evidence obtained from the officers on examinations for discovery, that the plaintiffs were not entitled to use. Specifically she admitted that the plaintiffs knew that she could not use the discovery evidence of DC Tayabali in the complaint against him.

[27] The plaintiffs dispute that their breach of the deemed undertaking rule is as extensive as the defendants allege, arguing that much of the OIPRD complaint was based on knowledge that the plaintiffs possessed prior to receiving the defendants’ discovery evidence, in particular, information from Crown disclosure in the criminal proceedings. In dealing with a similar argument in Brome Financial Corp. v Bank of Montreal, Justice D.M. Brown (as he then was) stated as follows: [5]

Rule 30.1.01(3) talks simply of "use"; it does not qualify or modify "use" by specifying the particular degree of "use" which would result in a breach of the deemed undertaking rule …

Given that the deemed undertaking rule aims to encourage the robust and fulsome disclosure of relevant evidence or information in the production process by affording such disclosure a high degree of protection by limiting what a party can do with any evidence obtained, in my view liability under the deemed undertaking rule does not turn on the extent of the use which a party may have made of the evidence. To start down the road of measuring the degree of use in ascertaining whether the deemed undertaking rule has been breached risks seriously undermining the protection intended by the rule. Parties to civil litigation need to know in advance of making compulsory production that no use will be made of their productions other than in the litigation, absent a court order. The integrity and utility of the documentary production process requires such a "bright line" standard.

[28] The plaintiffs also provide an explanation for their breach. Ms. Martin in her affidavit says:

I now understand that the ideal procedure to use information and records from discoveries in a police complaint would be to ask the court’s permission first. I did not understand the procedure when I filed the police complaint. I did know that there was an exception to the rules. I was worried that the 6 month limitation in the Police Services Act would expire.

[29] Further, the plaintiffs say that their use of the discovery evidence in making the OIPRD complaint was not motivated by any strategy to procure advantage in this action. Rather, they submit that the plaintiffs’ motivation was a desire to protect the integrity of the criminal justice system by ensuring the accountability of police officers.

[30] The plaintiffs did not provide me with any authority suggesting that a valid excuse for the breach negates the finding of a breach. The reasons advanced by the plaintiffs for the breach may be relevant to whether leave should be granted to use the evidence, remedies for breach and costs.

[31] Moreover, none of these reasons for using the discovery evidence in the OIPRD complaint precluded the plaintiffs from asking for consent of the defendants, or, if consent was refused, bringing an urgent motion.

[32] I also note that there is no hard six month limitation period in the Police Services Act, which provides: [6]

The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred.

[33] Subject to the potential exemption discussed below, I find that the plaintiffs breached the deemed undertaking rule.

Does the exemption in Rule 30.1.01(5)(a) and (b) apply?

[34] At the hearing, Mr. Charney confirmed that the only exemptions that the plaintiffs rely upon are the exceptions in Rule 30.1.01(5)(a) and (b) which provide:

Subrule (3) does not prohibit the use, for any purpose, of,

(a) evidence that is filed with the court;

(b) evidence that is given or referred to during a hearing;

[35] Mr. Charney submits that the fact that the discovery transcripts in question and Show Cause Brief have been filed with court and referred to on this motion, is sufficient to trigger the exemption. If this interpretation were correct, all a party would have to do to avoid the deemed undertaking would be to bring a motion under Rule 31.1.01(8) and the moving party would be entitled to an exemption. This interpretation makes no sense.

[36] Further, the rule refers to use of evidence that “is filed” and that “is given or referred to”. At the time of the breach of the deemed undertaking rule, the evidence had not been filed with the court or to referred at a hearing.

[37] I was directed to no case where this argument has been considered. This is not surprising.

[38] I therefore conclude that the plaintiffs breached the deemed undertaking rule in their use of discovery evidence in making the OIPRD complaint.

Is leave required for the plaintiffs to use the Show Cause Brief?

[39] Rule 30.1.01(2) provides:

(2) This Rule does not apply to evidence or information obtained otherwise than under the rules referred to in subrule (1).

[40] As set out above, the plaintiffs are now only seeking an order permitting them to use the Show Cause Brief for the OIPRD complaint and the pending private prosecution against the police officers. They are not seeking relief from the deemed undertaking rule to use any of the other discovery evidence.

[41] The plaintiffs submit that the deemed undertaking does not apply because they have obtained virtually the same document [7] pursuant to their FOI request and thus by virtue of Rule 30.1.01(2), the deemed undertaking does not apply.

[42] The defendants take the position that the deemed undertaking rule applies because the existence of the Show Cause Brief became known to the plaintiffs during the discovery process. The plaintiffs’ FOI request is a specific request for the Show Cause Brief with the particulars of date and author derived from reviewing the document produced by the defendants as part of the discovery process. The deemed undertaking rule applies to information obtained from the discovery process, in this case, that the document exists and was prepared by DC Tayabali on the date in question.

[43] In support of their position, the defendants rely on the decision of Burwash v Levy. [8] In that case, the plaintiff obtained documents from a non-party, SCM, delivered by them in compliance with a production order against SCM made pursuant to the provisions of Rule 30.10 (non-party discovery) in her tort action. The plaintiff wished to use these documents to found the basis of a separate action against SCM and others. The plaintiff brought a motion pursuant to Rule 30.1.0(8) seeking leave to use these documents in the plaintiff’s subsequent action against SCM. Justice Hackland refused the plaintiff’s request for leave to use the documents. In so doing, he rejected the plaintiff’s argument that SCM’s documentation could have been obtained by other means than a court order, including through an application under the Personal Health Information and Protection Act. He held: “the protection afforded by the deemed undertaking would be of minimal benefit if it were held to not apply simply because the same documentation might have been obtainable outside of the discovery process.” [9]

[44] There are a number of differences between the Burwash case and the case before me. In Burwash, the plaintiff’s lawyer had offered assurances to counsel for SCM that the plaintiff would be bound by the deemed undertaking rule with respect to the documents they were compelled to produce. Further, Justice Hackland observed that if SCM had been advised by the plaintiff that she was contemplating an action against them, SCM might have taken a different position on the Rule 30.10 motion. In addition, unlike the Burwash case, the defendants in this action are not private actors.

[45] In my view, it is an open question whether leave is required in the circumstances of this case, where the plaintiffs have used the discovery process in a case involving a public authority to help them identify a document available through the freedom of information request from that public authority.

[46] Based on my conclusion on whether leave should be granted, I do not need to decide this question. I shall assume that leave is required.

Should leave be granted to the plaintiffs to use the Show Cause Brief?

[47] As set out above, Rule 30.1.01(8) permits a party to seek relief from the deemed undertaking rule. The court may grant such relief “where the interest of justice outweighs any prejudice that would result to a party who disclosed evidence.” This statutory test reflects the common law test. [10]

[48] As a general rule, a party should seek such relief prior to making use of evidence or information subject to the rule, rather than asking for forgiveness after the breach. [11] In this case, the plaintiff is applying after the fact to use the Show Cause Brief in the OIPRD complaint and in advance with regards to the private prosecution.

[49] The court in Juman set out the criteria to be applied for relief from the deemed undertaking, stating as follows: [12]

An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation. …

[50] The discretion to be exercised involves: [13]

a careful weighing of the public interest asserted by the applicant (here the prosecution of a serious crime) against the public interest in protecting the right against self-incrimination as well as upholding a litigant's privacy and promoting an efficient civil justice process. What is important is the identification of the competing values, and the weighing of one in the light of the others, rather than setting up an absolute barrier to occasioning any "injustice to the person giving discovery". Prejudice, possibly amounting to injustice, to a particular litigant may exceptionally be held justified by a higher public interest.… Of course any perceived prejudice to the examinee is a factor that will always weigh heavily in the balance. …

Interest of Justice

[51] The plaintiffs submit that the interest of justice requires that leave be given to them to use the Show Cause Brief in the OIPRD complaint and potential private prosecution.

[52] Both of the plaintiffs are First Nations individuals. [14] In her affidavit Ms. Martin states that it is her view that David Martin was targeted and stopped “because he looked out-of-place in our neighbourhood.” She goes on to say:

(4) It is also my opinion, and historical fact, that First Nations peoples have been denied access to justice, especially in their dealings with police. This is an important reason as to why I am pursuing this case.

(5) After David’s charges were dismissed, I considered that I should let this all go and continue on with my life. But I could not do that. It is important to me to see this case to the end and to ensure that justice is done and that police officers are held accountable.

(6) I am pursuing this case, and the police complaint, despite the very significant financial and emotional costs. As of today, I’ve spent more than $35,000 on this case. For me, this is a very significant amount of money. The risk of having to pay further fees, including the costs of this motion, is daunting.

(7) Too many other First Nations people do not have the resources or they feel powerless to pursue justice after they have been abused by police. So I am pursuing this case to get justice for myself and David, but also for other mothers and their children who could not get justice.

(8) If this court does not give permission to use the best evidence in the police complaint and a private prosecution, I may not be able to hold officers DC Azhar Tayabali (DC Tayabali) and DC Jorge Lee (DC Lee) accountable for what, in my opinion, was dishonest and abusive conduct.

[53] Ms. Martin goes on to state that:

(58) I think it’s important for the courts and prosecutors to know, when they get documents from the police, that they are accurate and truthful. In this case, they were not. This is especially true in bail hearings where there is no time to properly vet information and at hearings to obtain warrants when a suspect is not present and cross examination is not possible.

[54] I accept that that the plaintiffs have advanced an important public interest in ensuring that police officers are accountable for the truth of the documents that they prepare for the Crown and the court in a criminal prosecution.

[55] The defendants say that it is clear from the case law [15] that the investigation of criminal conduct alone is not determinative of whether relief from the deemed undertaking ought to be granted. I accept this proposition. The plaintiffs must satisfy the court that the interest of justice outweighs the prejudice to the defendants.

Prejudice

[56] The prejudice referred to in Rule 30.1.01(8) is the prejudice to the party who disclosed the evidence, [16] in this case the defendants. The defendants submit that they would be prejudiced by relief from the deemed undertaking rule. They contend that the prejudice to them arises from concerns of self-incrimination, interference with the efficient conduct of civil litigation, and the tactical and prejudicial implications of concurrent disciplinary and/or criminal investigations.

[57] Protection against self-incrimination is one of the values that the deemed undertaking is designed to safeguard. Given that the plaintiffs are not now seeking relief from the deemed undertaking rule with respect to any of the discovery transcripts this concern is diminished as is any privacy concern. The Show Cause Brief is a document that police prepare for criminal proceedings and provide to the Crown in the exercise of their public duties. Although the police were compelled to disclose the document by the virtue of the discovery process in this action, the officer knew when the document was created that the document would be provided to the Crown who in turn could disclose to the accused as part of the Crown disclosure (in redacted form). Moreover, it was also a document that the plaintiffs could potentially obtain through a freedom of information request.

[58] In their factum, the defendants argue that the use of the discovery disclosure in this case is contrary to the efficient conduct of litigation. They say that as a result of its statutory vicarious liability, the TPSB is regularly named as defendant in civil proceedings. Given its statutory liability, the TPS/ TPSB takes a practical approach to the inclusion of necessary defendants in police negligence actions and the production of non-parties for examinations for discovery. In this case, the defendants consented to multiple amendments to the statement of claim, and agreed to produce TPS officers for discovery who were not named as defendants. The defendants say that they did not expect that this cooperative approach to discovery would inadvertently expose the TPS officers to whom the defendants had facilitated access to disciplinary and criminal proceedings. As with the concern with self-incrimination, the concern is greater in regards to use of discovery transcripts of the defendants and non-party officers.

[59] The defendants submit that they are prejudiced by concurrent disciplinary and criminal proceedings, relying on the decision of Justice Lococo in Longo v Tricom Security Services. [17] In that case the plaintiffs brought an action against two security guards for assault in the parking lot of a shopping plaza. The plaintiffs sought to use a security video produced in the litigation in their pursuit of a criminal prosecution against the security guards and a police officer. Although Justice Lococo accepted that the plaintiffs’ desire to have the security guards and police officer held criminally responsible was bona fide, and that the interest of justice includes the investigation of potential criminal conduct, he nonetheless refused to grant relief from the deemed undertaking rule. In so doing, he noted the prejudice to defendants resulting from pressure to settle a civil action in the face of a concurrent criminal investigation. [18]

[60] I agree that the possibility of concurrent proceedings is prejudicial to the defendants and is a factor for me to consider in the weighing exercise that I must undertake.

Weighing the interest of justice against the prejudice to the defendants

[61] In my opinion, this is one of those exceptional circumstances in which the interest of justice, in this case police accountability, outweighs the prejudice to the defendants such that I exercise my discretion to grant leave to the plaintiffs to use the Show Cause Brief (in its redacted form) in the OIPRD complaint and the prospective private prosecution.

[62] The defendants rely on the Longo case, where Justice Lococo decided that the interest of justice in the investigation into potential criminal conduct by the security guards and police did not outweigh the interests protected by the deemed undertaking rule. Longo is distinguishable from the case at bar in respect of the nature of the evidence in issue. In Longo the evidence was a private security video. In this case the evidence is a document that was prepared by a police officer in the course of his public duties, that was subject to potential disclosure by the Crown to Mr. Martin and is also available to the plaintiffs pursuant to an FOI request.

[63] The nature of the evidence in this case, in respect of which leave is sought, is such that the prejudice to the defendants is diminished.

[64] The defendants submit that in this balancing exercise, I should take into account that the plaintiffs have already breached the deemed undertaking rule. In my view, this does not tip the scales in the defendants’ favour but remains part of the consideration on costs.

Remedies for breach of the deemed undertaking rule

[65] Potential remedies for breach of the deemed undertaking rule are adverted to in Juman, [19] including dismissal of the action and contempt proceedings. The defendants are seeking neither remedy in this case (and, in any event, as an associate judge I do not have the jurisdiction to make a contempt order).

[66] The defendants are seeking costs, including against Mr. Charney personally. It was agreed that the request for an enhanced costs award as a remedy for breach of the deemed undertaking rule as well as costs in connection with the motion would be deferred until after I released my decision.

DISPOSITION

[67] An order shall go granting the plaintiffs leave to use the Show Cause Brief for the purposes of the OIPRD complaint, nunc pro tunc, and for the prospective private criminal prosecution against DC Lee and DC Tayabali.

[68] The parties should contact my assistant trial coordinator to arrange a teleconference to discuss the procedure for determining costs.

L. La Horey, A.J.

Date: October 31, 2023

[1] RSO 1990, c. M.56 [2] 2008 SCC 8 [3] Juman at paras 3, 20, 25, 26 and 27 [4] Although Ms. Martin refers to herself as filing the OIPRD claim, the claim was filed on behalf of both plaintiffs. [5] Brome Financial Corp. v Bank of Montreal, 2013 ONSC 6834 at paras 43, 44 [6] RSO 1990, c. P.15, s. 60(2) [7] There is a slight difference given the redactions, but these difference are not material given what was already in the record and otherwise known to the plaintiffs. [8] Burwash v Levy, 2018 ONSC 682 [9] Burwash at para 40a [10] Juman at para 34 [11] Brome at para 47 [12] Juman at para 32 [13] Juman at para 33 [14] In her affidavit Ms. Martin describes herself as a First Nations woman and her son as a First Nations man. [15] Longo v Tricom Security Services Inc., 2020 ONSC 4160 at para 67 [16] Kitchenham v AXA Insurance Canada, (2008) 2008 ONCA 877, 94 O.R. (3d) 276 at para 59; Longo at para 59 [17] Longo at para 62 [18] Longo at para 63, 67, 68, 73 [19] Juman at para 29