Court File and Parties
COURT FILE NO.: CV-18-78329 DATE: 23/11/2023 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
UMER KHAN Plaintiff – and – SERGE BUJOLD and SYLVIE BUJOLD Defendants
Counsel: Cheryl Letourneau for Plaintiff Denis Cadieux for Defendants
HEARD: June 12 to 16 and 19 to 23, 2023
JUDGMENT
Justice Sally Gomery
1Omur Khan lived next door to Sylvie and Serge Bujold on Tooney Crescent, a quiet street in an Ottawa suburb, for eight years. They initially got on well. But petty disagreements soon escalated to open conflict. Police or by-law officers were called to Tooney Crescent at least twelve times, and the Bujolds made two formal complaints to Khan’s employer, the Ottawa Police Services (OPS). Khan started this lawsuit in late 2018. Mrs. Bujold applied unsuccessfully for a peace bond against him in 2019. Mrs. Bujold now awaits a criminal trial on a mischief charge for, among other things, videotaping Khan and his fiancée in their backyard hot tub.
2The central question in this case is whether Mr. and Mrs. Bujold crossed the line from unneighbourly behaviour to tortious acts. Khan says they did. He alleges that, knowing that he suffered from Post Traumatic Stress Disorder (PTSD), anxiety and other psychological conditions, the Bujolds acted to deprive him of any enjoyment to his property, to derail his career as a police officer, to ruin his reputation, and to cause a criminal procedure to be initiated against him. He seeks damages for intentional infliction of mental distress, defamation, nuisance, trespass to property, harassment, and malicious prosecution.
3The Bujolds contend that they have done nothing wrong, or at least nothing that could attract civil liability. They say that most of Khan’s complaints about them are baseless or trivial and that they recorded his movements only to defend themselves in this lawsuit. They have their own set of grievances, although they have not counter-claimed.
4For the reasons that follow, Khan’s action is granted and the Bujolds are ordered to pay him $25,000 total in general damages.
FACTS
5Khan and the Bujolds testified at trial. The court also heard from Khan’s fiancée, Emily Beausoleil; his psychologist, Dr. Tasleem Damji; his friends and coworkers, Prasanth Tella and Pierre Lapointe; and two of the parties’ other neighbours: Philippe Bertrand and Joanne Calvé. I will make observations about the credibility of the witnesses and the quality of other evidence as I review the facts.
The parties
6Mr. Bujold is employed as a stationary engineer and building operator. He operates the heating and cooling plant and other industrial infrastructure for a private company. He works long hours, often more than five days a week.
7Mrs. Bujold worked as a manager at an LCBO for many years before training as a medical office administrator. She worked at the Montfort Hospital until 2015. She left this job due to administrative changes at work and because she had to deal with issues at the Bujolds’ new house on Tooney Crescent. Mrs. Bujold took care of her grandchildren at the beginning of the COVID pandemic but had to stop due to stress. Since January 2023, the Bujolds have hosted international students in their home. They sold their house on Tooney Crescent and moved away a short time later.
8Khan has been a police officer since 2002. He initially worked in Markham, then transferred to the OPS in October 2004. In 2012 and 2013, he served a twelve month tour of duty as a police officer in Afghanistan.
9I will review some events in Khan’s personal and professional life over the past twenty years, since they provide important context to his interactions with the Bujolds.
10Khan suffered a traumatic incident in May 2005. While on duty, he was trying to subdue someone who was drunk and disorderly. The man aimed a gun at Khan’s face and pulled the trigger twice. The gun misfired both times, but Khan was deeply shaken by this experience. He continued to work because did not want to be seen as weak. Six months later, after following a stolen vehicle, he suddenly lost his hearing and over-reacted to a suspect when she resisted arrest. Khan then sought professional help and was diagnosed with PTSD in early 2006. He took some time off work, got therapy, and returned to the OPS in 2007.
11On June 22, 2018, Khan was charged with impaired driving and dangerous operation of a motor vehicle following an afternoon of drinking at a casino in Gatineau, Quebec. He pleaded guilty to driving while impaired and was granted a conditional discharge on the dangerous driving charge. In September 2020, Khan was sentenced to one year of probation and fined on the impaired driving charge, leaving him with a criminal record. He was directed to get counselling for his alcohol addiction and to do community service. Khan was prohibited from driving for a year, which ultimately extended to 16 months as a result of delays in road testing during the COVID-19 pandemic.
12Following his June 2018 arrest, Khan went on disability leave for treatment of re-emergent PTSD symptoms. He returned to work in February 2019, but went back on disability a few months later after discovering a meme circulated online by a fellow officer, referring to Khan and other racialized officers. Khan currently remains on leave, receiving Workers Safety and Insurance Benefits, but expects to return to work.
The parties’ interactions in 2016 and 2017
13Khan moved into his house on Tooney Crescent in the summer of 2015. The Bujolds moved into the house next door a short time later. The homes were two of three in-fill houses newly built by the same contractor. Based on photos and videos, the houses are a few metres apart. A shared walkway between the houses provides access to the parties’ back yards.
14Khan and the Bujolds were cordial when they first moved into their respective houses on Tooney Crescent. They shared the cost of a backyard fence and for landscaping in the walkway between the two houses. The Bujolds had many complaints about the contractor who built their house, which they shared with Khan.
15A series of petty disputes soon soured the parties’ relationship. Late one evening in late 2016, Khan woke to discover Mr. Bujold filling two buckets with river stones delivered for installation in the shared walkway, so that he could use them elsewhere on his property. Khan accused Mr. Bujold of stealing the stones. On another occasion, Khan asked Mrs. Bujold whether she had sprayed water on the joint fence, because the stain he was applying to it on his side would not adhere. Finally, while sitting on the second floor balcony at the front of the house, the Bujolds reprimanded Khan for letting his dog urinate on their property, and he suggested that Mr. Bujold should come down to talk about it face to face.
16I will mention one other alleged incident, because it bears on my assessment of Mrs. Bujold’s credibility. At trial, she recalled that her first unpleasant interaction with Khan occurred when she was returning from walking her dog with her grand-daughter, and Khan’s dog came out to greet them. Mrs. Bujold testified that she took out her phone and texted Khan to let him know that his dog was on her property. According to her, Khan replied by saying that she should never text or call him again.
17Khan was not asked about this alleged event in cross-examination. I do not find Mrs. Bujold’s account plausible. She implied that she texted Khan because she was apprehensive about contact between his dog and her grandchild. She admitted, however, that Khan was somewhere on his property when this incident supposedly happened. If she were frightened by Khan’s dog, the natural reaction would have been to take her granddaughter inside, or alternatively to shout out to Khan. It is implausible that she would take the time to text him. I also do not believe that Khan would have responded as Mrs. Bujold claims, if she simply asked him to take his dog inside.
18This is one of several times that I found Mrs. Bujold’s evidence to be implausible on its face, or where her evidence must be rejected due to internal inconsistences or based on the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). She was not always truthful, for example with respect to when she first learned about Khan’s psychological issues and her reaction to believing that she caught Khan breaching a driving prohibition in May 2020. I generally did not find her to be a credible witness. I found Mr. Bujold to be more forthright, but he seemed to rely on his wife’s account of many interactions with Khan.
19Hostilities between the parties truly broke out in 2017, when Khan installed three exterior security cameras and signs warning that the property was under video surveillance and that trespassers would be prosecuted.
20Khan testified that he installed the cameras as a general security measure and because of the river stone incident. One camera pointed at Khan’s driveway; one pointed to the shared walkway; and a third pointed along the backyard fence to the end of Khan’s property line. He also had a doorbell camera and a security camera inside his house.
21I am satisfied that Khan never used his security cameras to spy on the Bujolds or track their movements. The cameras were installed by a professional security company. At trial, I viewed the feed from each of the outside cameras. Aside from the one in the shared walkway, they provide a very limited view of the edge of the Bujolds’ property, incidental to the primary view of Khan’s property. The cameras have no capacity to record audio and so could not be used to record the Bujolds’ private conversations or remarks. I do not find that Khan told the company to direct the cameras specifically at the Bujolds’ property, that he manipulated them after they were installed, or that he made a practice of watching the camera to see what the Bujolds were doing.
22Mr. and Mrs. Bujold testified that they were convinced that Khan was targeting them with the security cameras. Instead of asking him about this, however, Mrs. Bujold contacted the contractor hired by Khan to install the cameras to ask about their range, and later asked the OPS if the police could see the feed from Khan’s cameras. She testified that she was told by an OPS officer that Khan had refused to allow the police to see the feed from the security cameras. I do not believe this. Khan testified to the contrary and his evidence on this issue was not challenged in cross-examination.
23Mr. Bujold testified that he was “very, very, upset” about Khan’s security cameras, and about the no trespassing sign on the side of his house, which was visible from the Bujolds’ kitchen window. In cross-examination, he acknowledged that there was another such sign on the front of Khan’s house and that the Bujolds themselves had a sign in the form of a sticker on their window.
24Mr. Bujold also testified that he had done an internet search on Khan when he installed the security system and learned that Khan had once threatened someone. No search results or pre-August 2019 media reports were produced at trial, however Mr. Bujold’s evidence about Khan’s history was generally unreliable. At the hearing on Mrs. Bujold’s application for a peace bond in 2019, he testified under oath that he had obtained information about Khan from a confidential source. At trial, he admitted that he had no such source.
25Mr. Bujold phoned the local by-law office to complain about Khan’s security cameras. That office told him that a property owner has the right to install security cameras and declined to send anyone to investigate. Mr. Bujold then called the local OPS community office to complain. The OPS also declined to send anyone to investigate, but told Mr. Bujold that, since Khan was a police officer, the Bujolds could file complaint to the Office of the Independent Police Review Director (OIPRD), a police oversight body, if they felt that he had engaged in misconduct.
26Mr. Khan learned about Mr. Bujold’s call to the local OPS station from a co-worker. When he arrived home later that day, he confronted Mr. Bujold, who was outside his house hosing down the front of his garage. Khan admits he was angry that Mr. Bujold had raised their interpersonal conflicts with his employer and that he yelled and swore at him. To his credit, Mr. Bujold did not respond, but simply turned around and went inside his garage. This only made Khan angrier. He raised his voice and used profanities, some of which were captured in a recording made by Mrs. Bujold of the incident.
The OIPRD complaints
27In December 2017, shortly the confrontation in the driveway, Mr. Bujold filed an OIPRD complaint against Khan under the Code of Conduct established pursuant to Regulation 268/10 of the Police Services Act, RSO 1990, c P.15. He described Khan’s phone call to his wife about the wet fence, his installation of security cameras, and how Khan had lost his temper and yelled on two separate occasions. He claimed that Khan had threatened him.
28In the complaint, Mr. Bujold alleged that Khan “uses his power [to] interfere with our privacy” and wrote that: “If I was to threaten names or call anyone names I would no longer have employment at where I work, as I have top security clearance. As a policeman I believe you have to be professional as you are in publics eye on a daily basis. You should not use your power because of your work”. [1] Mr. Bujold demanded an investigation, saying that if nothing was done, he would “go public”. At trial, Mr. Bujold admitted that he thought that Khan should be professionally disciplined and perhaps fired from the OPS.
29There is no evidence that Khan ever misused his power as a police officer in his interactions with the Bujolds or threatened to do so. As already mentioned, his security system did not target the Bujolds. Mr. Bujold suggested, in cross-examination, that Khan abused his power as an officer by letting his dog urinate on their property. This is ridiculous on its face. Mrs. Bujold testified that, just after they moved in, Khan suggested to her that they might get a better price on stain for the shared fence if he accompanied her to the store wearing his uniform. Khan denies that he said this. I accept his evidence on this point. If Khan had suggested he misuse his position this way, I would have expected that this would be included in the 2017 OIPRD complaint. In any event, Mrs. Bujold acknowledged that she ended up buying stain for her side of the fence on her own, and she admitted that she never saw Khan using his status as a police officer to attempt to get a better deal on anything.
30I also reject Mr. Bujold’s allegation in the 2017 OIPRD complaint that Khan threatened him. The only potentially threatening statement mentioned in the complaint is Khan’s invitation for Mr. Bujold to discuss the dog-urinating issue face to face. In Mr. Bujold’s view, this showed that Khan “wanted to fight”. Khan testified that he simply wanted to have a conversation with Mr. Bujold instead of being yelled at from their balcony. Again, I prefer his evidence on this issue.
31The chief of the Ottawa Police Services completed its investigation of Mr. Bujold’s 2017 complaint in June 2018, after interviewing Khan. He concluded that Khan had not engaged in discreditable conduct.
32Mr. Bujold requested that the OIPRD review this decision. On November 13, 2018, the OIPRD reversed the police chief’s decision. It noted that Khan admitted that he swore and yelled at Mr. Bujold after learning that Mr. Bujold had contacted the OPS to complain about him. The OIPRD concluded that this conduct was likely to bring the OPS into disrepute and was therefore discreditable. It characterised the misconduct, however, as of a “less serious nature”. This decision was put on Khan’s personnel file for two years and he was directed not to talk to the Bujolds.
33Very shortly after receiving the final decision on her husband’s OIPRD complaint, Mrs. Bujold filed a second OIPRD complaint with respect to Khan. She alleged that he had behaved inappropriately towards their siding contractor, impeded the installation of security cameras on their house, made gestures and derogatory remarks towards them, yelled at them, and videotaped them at the dog park. Khan again had to submit a written response and participate in an interview during the investigation of this compliant. On July 4, 2019, an investigation concluded that the second OIPRD complaint was unfounded. Ms. Bujold did not appeal this result.
Interactions in 2018
34In 2018, Khan complained to the city by-law department about work that the Bujolds were doing on their property that caused dirt to accumulate on his driveway. A short time later, he phoned to police to report that a contractor hired by the Bujolds failed to remove nails that had fallen onto Khan’s property, then became angry and swore when Khan asked him to do so. Khan testified that made these complaints to document his interactions with the Bujolds, as he had been directed to do by the OPS. He was, by this point, convinced that the Bujolds were deliberately trying to irritate and inconvenience him.
35On August 31, 2018, Mr. Bujold installed a camera on top of a pole attached to the parties’ shared backyard fence. It had a battery-operated red light so it appeared to be recording. The camera pointed directly at the hot tub in Khan’s backyard. Khan testified that he could not believe this when he saw the camera, as he had just finished building a wooden structure around the tub to enhance his privacy.
36Khan called the City of Ottawa, who told him he should report the camera to the police. A police officer visited the Bujolds to investigate the situation and let Khan know that the camera was fake. The officer directed the Bujolds to remove it, because the pole to which it was attached exceeded a height restriction. When Mr. Bujold did not immediately remove the camera, Khan called the OPS. Mr. Bujold took the camera down about ten days after putting it up.
37Khan testified that he became even more upset and angry after he discovered the camera was fake. Even though the camera was not real, he felt as though his movements were being watched and recorded.
38The Bujolds testified that they installed the fake camera because they wanted Khan to feel the same loss of privacy that they felt due to his security cameras. As I have already found, Khan’s cameras did not target the Bujolds or permit him to record their activities on their property in any meaningful sense. I reject Mrs. Bujold’s evidence that the police were unable to confirm this.
39The parties’ relationship deteriorated further in the months that followed. On September 14, 2018, Khan was contacted by Ottawa by-law services, who told him that the Bujolds said his downspout was causing water to drain on their property. When Khan went into the shared walkway to inspect the downspout, he saw Mr. Bujold and waved at him. This prompted Mr. Bujold to phone the OPS complaint that Khan had behaved in a threatening manner. Three police cruisers arrived at his house a few minutes later. The attending officers concluded that no criminal offence had taken place.
40Two days later, Khan was almost hit by a panel of siding that fell from the Bujolds’ house. The panel scratched glass panelling under the railing of his front stoop. Khan testified that he saw Mr. Bujold jumping up and down on his roof just before the panel fell. He contacted the police to report this incident. Mr. Bujold admits that he was on his roof, inspecting the siding but denies that he did anything to make a panel fall on Khan.
41On October 27, 2018, Khan’s security camera recorded a contractor hired by the Bujolds moving his downspout so that it was directed towards the foundation of Khan’s house. At around this time, according to Khan, the Bujolds began following him when he took his dog to a local park. The Bujolds deny they followed Khan, although they recalled running into him there.
42I am not persuaded, on the evidence before me, that Mr. Bujold deliberately caused a panel to fall from his house or that the Bujolds followed him to the park. I am persuaded, however, that Khan sincerely believed that he was being targeted.
43On November 5, 2018, Khan began this action.
44There were other petty incidents between the parties in 2018 and 2019. On December 24, 2018, for example, the Bujolds videotaped Khan taking photos of their basement window wells in the shared walkway. I did not understand Khan’s explanation for doing this but reject the Bujolds’ suggestion that I should infer that he had a sinister motive.
Mrs. Bujold’s peace bond application
45On January 29, 2019, right after making the second OIPRD complaint, Mrs. Bujold swore an information to obtain a peace bond against Khan under s. 810 of the Criminal Code. Section 810(1) provides that a person may seek a bond if they swear that they fear “on reasonable grounds that another person will cause personal injury to them or to their intimate partner or child or will damage their property”. In the information she swore, Mrs. Bujold alleged that she had reasonable grounds to fear that Khan would cause personal injury to her.
46Khan testified that he was devastated when he was served with Ms. Bujold’s peace bond application in January 2019. He explained that, at this time, he had been assigned to a unit outside Ottawa urban core while awaiting trial on the dangerous/impaired driving charges. He was also dealing with other complaints made about his conduct. Attending in court in response to a summons later than month was embarrassing since he ran into other police officers there.
47On April 10, 2019, following a hearing, Mrs. Bujold’s peace bond application was dismissed. The presiding justice found that Khan had not made any threats to the Bujolds’ property or persons, although he admitted that he had spoken loudly and in derogatory terms about them. In the transcript of the hearing, JP Desjardins noted that Khan’s statements were the subject of an OIPRD complaint and that this appeared to be a dispute between neighbours. Although he accepted that Mrs. Bujold was afraid of Khan, he did not find there was an objective basis for that fear.
Mrs. Bujold’s online comment about Khan
48On August 21, 2019, local Ottawa newspapers published an article about the outcome of the charges laid against Khan in June 2018 for impaired and dangerous driving. The article detailed how Khan had been arrested at gunpoint after a high-speed chase by the Gatineau police. The Crown and the defence had agreed on a joint statement of facts, based upon which Khan pleaded guilty to the impaired driving charge. The article mentioned other incidents that reflected negatively on Khan, including a car crash in 2010 and confrontations with members of the public on and off duty. It noted that he had been subject to internal disciplinary measures.
49In his interview with the reporter who wrote the article, Khan attributed his reckless conduct in June 2018 to the PTSD he continued to suffer following the 2005 shooting incident. His lawyer advised that he would argue that the mandatory minimum sentence for impaired driving was unconstitutional and that the sentencing judge should have the latitude to suspend punishment so that Khan would not have a criminal record that could force him to leave the OPS.
50In comments posted in response to an online version of the article, various readers expressed their disagreement with the outcome of the case. Ms. Bujold posted the following:
POWER DIRTY COP, his name is Umer Khan, shortly after his incident in Gatineau, dangerous driving and impaired driving files a lawsuit against us, unfortunately we are his nextdoor neighbor. He has put our life through hell. Please google his name and you will see his history, this is the kind of officer we have to protect our community.
51In response to a comment by another reader advocating zero tolerance for drunk driving, Ms. Bujold wrote: “yia so he needs someone to blame and worse someone to pay for his mistake a lawsuit, so we have to pay for his expensive lawyers”.
52Ms. Bujold posted a link to the news article and reproduced her comment on her Facebook page. In cross-examination, she said that she has since taken the post down but could not say when she did so. Following the publication of Mrs. Bujold’s August 21, 2019 post, Khan amended this action to add a claim for defamation.
Further interactions between the parties from 2020 to trial
53The parties testified at length about other incidents from 2020 onwards. I will only review the most significant interactions.
54On May 28, 2020, Khan asked a friend and fellow officer, Pierre Lapointe, to help him move some furniture to his house. Khan was at this time still subject to a driving prohibition. Lapointe drove Khan’s truck with Khan in the front passenger seat. Beausoleil was following them in her SUV.
55As the vehicles turned onto Tooney Crescent, Khan, Lapierre and Beausoleil saw the Bujolds on second floor balcony on the front of their house. Mr. Bujold was waving and gesturing excitedly towards Khan’s vehicle, while Mrs. Bujold was recording its arrival using her cellphone. Lapierre testified that he asked Khan what was going on. Khan said it was okay and that he should park. Lapierre and Beausoleil both said they wanted to ask the Bujolds if something was wrong but Khan told them they should not speak to them. Another neighbour, Phil Bertrand, also saw Mrs. Bujold recording the arrival of Khan’s SUV in his driveway, and asked Khan what was going on. Beausoleil observed that Khan was distraught and upset about this incident.
56Khan contacted the police about this incident because he was concerned that the Bujolds would falsely allege that he had been driving. The investigating officer interviewed the Bujolds, then told Khan to avoid contact with them.
57At trial, Mrs. Bujold admitted that, when she and Mr. Bujold saw Khan’s truck pulling up on May 28, 2020, they assumed that he was driving it and was therefore in breach of his probation. Mrs. Bujold admitted that she was recording Khan’s arrival but denied that she and her husband were laughing and waving their arms. This was contradicted by Mr. Bujold, who admitted that they were happy and excited at the idea that Khan was violating his probation. Based on his admission, as well as the evidence of Khan, Lapierre and Beausoleil, I find that the Bujolds were visibly celebrating.
58In 2022, a windstorm knocked down the shared fence in the backyard, and Khan’s lawn chairs were blown onto the Bujolds’ property. Khan asked a friend, Prasanth Tella, to ask them if he could retrieve it, since Khan had been warned not to speak directly to the Bujolds. Tella had his phone in his pocket, recording, during his conversation with Mrs. Bujold. He testified that he recorded the interaction because he is a police officer, he knew the Bujolds had a dispute with Khan, and he did not want to be accused of misconduct.
59Mrs. Bujold initially told Tella that they had to get permission from their insurer before moving anything, but then added that Tella should not be allowed to “trespass” on their property, since Khan had a “no trespassing” sign on his house. Tella told them that it would not be trespassing if he had permission to come into their property. The Bujolds stood by their refusal. The Bujolds finally gave the chairs back to Beausoleil five days later, somewhat the worse for wear but still useable. When Beausoleil approached Mrs. Bujold about picking up the furniture, Mrs. Bujold again said that Beausoleil would be trespassing if she came onto the Bujolds’ property. Mrs. Bujold agreed with Beausoleil’s suggestion, however, that she pass the chairs over the fallen back fence.
60I do not accept the Bujolds’ explanation that they refused to return Khan’s furniture pending an insurance claim. Their refusal to give him his furniture back immediately after the storm was an act of petty spite.
61After the wooden fence was blown down, Khan testified that it was “open season” on his private life. Mrs. Bujold admitted in cross-examination that she routinely videotaped Khan’s activities on his property in 2022. I find that Mrs. Bujold sought out opportunities to do this. Although Mrs. Bujold said that she started to do this only in June 2022, I find that it occurred occasionally even before the May 28, 2020 incident. The Bujolds would record Khan and Beausoleil when they were going to or returning from the dog park on foot, for example. Both Mrs. Bujold and her daughter used cellphones to record Khan and Beausoleil cleaning their yard after the storm. Mrs. Bujold said she has many more recording than the scores that were produced at trial, although she denied there were “hundreds”.
62Mrs. Bujold initially testified that she began making recordings after she learned of a letter from Khan’s psychologist saying that Khan was unable to enjoy his property due to the Bujolds’ actions. I do not believe this, because many recordings were made much earlier. Mrs. Bujold’s evidence in cross-examination was telling. She asserted that she was entitled to whatever photos and videos she liked from her own property.
63Other footage was taken by security cameras that the Bujolds installed on their house in 2018. Mrs. Bujold testified that they could see feed from the cameras on phone, her tablet, and on their television. The camera closest to Khan’s property also records audio. So, for example, there is a recording of Khan bringing his dog back from a walk, speaking to himself as he does so. There were also videos taken by Mr. or Mrs. Bujold using a cellphone. These include multiple videos or pictures of Khan in the hot tub, working out on his deck, and taking care of his lawn. On one or more occasion, Mrs. Bujold videotaped Khan from atop the play structure in her yard.
64In cross-examination, Mrs. Bujold admitted that she videotaped Khan in his hot tub on three separate occasions. On one occasion, she was recorded by Beausoleil leaning far out of a second story window while holding a cellphone, having removed a window screen for this purpose.
65In December 2022, Mr. Bujold came out of his house and started shoveling his driveway while Khan was shoveling his. Khan went inside, returning only when he no longer heard Mr. Bujold outside. When Khan began shoveling again, two neighbours came over and began shoveling the Bujolds’ driveway. Khan contacted the police about this incident.
66The defence called another neighbour, Joanne Calvé, to testify. Her house faces the parties’ houses. She installed security cameras, which also record audio, in October 2021. Calvé is sympathetic to the Bujolds. She provided them with a recording showing that Khan saying that he thought Mrs. Bujold might have poisoned pizza mistakenly delivered to the Bujold house before he and Beausoleil retrieved it. I did not find her evidence helpful except that it shows that Khan’s belief that he is under surveillance in his home was not unfounded.
Mrs. Bujold’s public mischief charge
67In July 2022, Mrs. Bujold was charged with public mischief for wilfully obstructing, interrupting, or interfering with Khan’s lawful use and enjoyment of his property, contrary to s. 430 of the Criminal Code. This charge was laid after she was seen videotaping him in his hot tub from her second story window. Mrs. Bujold signed an undertaking on September 1st, 2022, that she would not communicate, directly or indirectly, with Khan, or use her cellphone to videotape him or photograph him when he was on his own property. Khan alleges that Mrs. Bujold has breached these conditions. Her trial on the mischief charge is set to take place in February 2024.
ANALYSIS OF KHAN’S LEGAL CLAIMS
Defamation
68As detailed more fully already, Mrs. Bujold posted an online comment in August 2019 entitled “POWER DIRTY COP” in relation to a media report on Khan’s criminal charges. She identified Khan as her next door neighbour and said that he had put “our life through hell”. This post was linked to Mrs. Bujold’s Facebook page and continued to be published for an indeterminate period of time. It was shared 59 times, according to the screenshot produced at trial. Mrs. Bujold has never retracted the statement. She claimed that she took it down at some point but could not remember when.
69I find that Mrs. Bujold’s post is defamatory. A person reading the comment would reasonably infer that Khan, as a “power dirty cop”, uses his position or authority as a police officer for personal advantage. This statement would reasonably be read as a statement of fact, as opposed to opinion, because Mrs. Bujold uses Khan’s given name, she says she knows him personally, and she implies that she has herself suffered because he has abused his authority.
70In the statement of defence, Mrs. Bujold asserts defenses of justification and fair comment. Both of these defenses fail.
71To succeed on the defence of justification, a defendant must adduce evidence showing that the impugned statement was substantially true: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640, at para. 32. The Bujolds have not presented any credible evidence that Khan ever abused his power as a police officer for personal gain. In his 2017 OIPRD complaint, Mr. Bujold asserted that Khan had used his power as a police officer to interfere with the Bujolds’ privacy. I have found this to be untrue.
72The defence of fair comment fails for two reasons. First, Mrs. Bujold’s post would not reasonably be understood to be an opinion. Second, even if the title “power dirty cop” could be read as comment, the defence would have to prove that it was based on fact, and that a person could honestly express the opinion on proved facts: Grant v. Torstar, at para. 31. There was again no factual basis on which Mrs. Bujold could honestly express the opinion that Khan misused his power, as a police officer, against her personally.
73I conclude that Mrs. Bujold defamed Khan, and that he is entitled to damages as a result. I will assess the damages at the end of these reasons.
Malicious prosecution
74As established in Nelles v. Ontario, [1989] 2 SCR 170 at par. 24, a plaintiff suing for malicious prosecution must prove that:
a. The defendant initiated proceedings against the plaintiff; b. The proceedings were terminated in favour of the plaintiff; c. There was no reasonable and probable cause for the proceeding; and d. The defendant was actuated by malice, or a primary purpose other than the carrying of the law into effect.
The first and second criteria are readily made out in this case. Mrs. Bujold applied for a peace bond against Khan under s. 810 of the Criminal Code, and that application was dismissed.
75The third leg of the test is also made out. I find that Khan has proved that Mrs. Bujold lacked a reasonable and probable cause for the peace bond application. As found by the justice who heard the application, and as established on the evidence before this court, Mrs. Bujold had no objectively reasonable basis to fear for her personal safety or the safety of her property. Khan never threatened her physically and never did anything to damage her property or threaten to do so. Unlike the justice of the peace, I do not accept that Mrs. Bujold was even subjectively frightened of Khan, as she claimed in her application and in her testimony in chief. A person who was afraid would not stand in their backyard, openly taking video of their alleged aggressor, or make defamatory statements about them online. In cross-examination, Mrs. Bujold claimed she felt safe so long as she was on her own property. Given that Khan could have easily walked a few steps over to the Bujolds’ property, this explanation makes no sense.
76Finally, I find that Mrs. Bujold did not apply for a peace bond to enforce the criminal law or to bring Khan to justice. She applied for a peace bond and made a second OIPRD complaint because she was upset that Khan had started this action against her and Mr. Bujold. Based on her testimony at trial, she was motivated by malice and a desire for revenge.
77I accordingly conclude that Khan has proved that Mrs. Bujold committed the tort of malicious prosecution when she filed the peace bond application. I will consider the damages flowing from this at the end of these reasons.
Intentional infliction of mental distress
78A defendant is liable for intentional infliction of mental distress if (1) he engages in flagrant and outrageous conduct; (2) that conduct is calculated to produce harm; and (3) it results in a visible and provable injury such as a recognized psychiatric illness: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 41; Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.).
79I find that the Bujolds engaged in flagrant and outrageous conduct by openly and continuously recording Khan’s movements while he was on and around his property. The surveillance was conducted using cellphones and security cameras directed at Khan’s property.
80The determination of whether conduct is “flagrant and outrageous” is an objective one, assessed from the standpoint of a reasonable bystander, aware of all the facts: Colistro v. Tbaytel, 2019 ONCA 197, at paras. 15 and 55. The Bujolds did not disguise that they were recording Khan and rejoicing at the prospect of doing so to get him into trouble. Their conduct was so public and extreme that it alarmed Khan’s fellow officer, Lapointe, and his neighbour, Bertrand when they witnessed it in 2020. In my view, a reasonable person would be similarly outraged at learning that Mrs. Bujold was deliberately recording Khan and his girlfriend in a backyard hot tub, and routinely going outside whenever she saw him around, for the purpose of tracking his movements.
81The Bujolds attempted instead to justify their surveillance of Khan based on his installation of home security cameras and the steps he took to create a record of any negative interactions with them. But the parties’ conduct was not comparable. The Bujolds actively sought to record Khan’s activities. The trial record contains many pictures and videos taken by the Bujolds and there are, by their own admission, many more. Khan installed security system that in no way targeted the Bujolds. He testified, and I accept, that he reported incidents with the Bujolds to the police because he was concerned, after the first OIPRD complaint, that he would be the subject of further unfounded complaints. His fears were borne out by a second OIPRD complaint immediately after the first one was resolved, and Mrs. Bujold’s application for a peace bond.
82The Bujolds also contended that they recorded Khan’s movements to defend themselves in this lawsuit, after they received a copy of a report from his treating psychologist, Dr. Damji, in 2022. The Bujolds had started recording Khan’s actions years before, however. The first audio recording dates from 2017, when Khan reacted to Mr. Bujold phoning his employer to complain about him. It is true that it ramped up after Khan began this action, but one of the most flagrant examples — Mrs. Bujold’s open and gleeful recording of what she took to be Khan’s breach of his no-driving term — took place two years before she received Dr. Damji’s report.
83Each of the Bujolds’ actions, taken separately, might seem trivial. These days, most people know that they may be recorded when they are walking past a store or ride on public transit. There is a difference, however, between being incidentally filmed in a public place, or being seen in passing on a home security system, and being the target of a deliberate campaign of surveillance by a next-door neighbour while mowing the back lawn, sitting in the backyard, or returning home from work.
84Mrs. Bujold’s recording of Khan’s everyday movements took place in a context in which she had shown herself willing to file a baseless OIPRD complaint and peace bond application against him. This supports the finding that the recording constituted flagrant and outrageous conduct.
85I do not think it was unreasonable for Mr. Bujold to file the first OIPRD complaint against Khan in 2017. Khan never threatened the Bujolds’ property or persons, but he made derogatory comments about Mr. Bujold that were eventually determined to be unbecoming to a police officer, even though he was off-duty at the time. Society has a strong interest in ensuring that citizens feel that they can complain about police officers without retribution, even if their complaint turns out to be unfounded. Police officers, like other public figures, must accept that their conduct, even in private, may be subject to heightened scrutiny and attract professional consequences. That is why Khan was ultimately found to have breached the Code of Conduct in the outcome of the first OIPRD complaint.
86As I have already found, however, Mrs. Bujold’s application for a peace bond was not only without foundation, but motivated by a desire for retribution. I reach the same conclusion with respect to her OIPRD complaint. There was no good faith basis for Mrs. Bujold to seek futher disciplinary sanctions against Khan. She filed the complaint because she was upset that he had sued her. The second OIPRD complaint, like the peace bond application, was a disproportionate and unreasonable step to take.
87I find that the Bujolds’ recording of Khan’s movements was calculated to harm him.
88Intentional infliction of mental distress requires more than mere knowledge that an action might cause an injury. The defendant’s conduct must be calculated to produce harm, and the plaintiff must prove that the defendant subjectively intended to injure the plaintiff or that he knew that the injury was “substantially certain to follow”: Piresferreira v. Ayotte, 2010 ONCA 384, 319 D.L.R. (4th) 665, at paras. 78-79, leave to appeal refused, [2010] S.C.C.A. No. 283; Colistro v. Tbaytel, 2019 ONCA 197 (“Colistro”), at para. 15; Boucher, at para. 44. Evidence of mere foreseeability or reckless disregard is not enough: Colistro, at para. 26.
89By early 2019, the Bujolds knew that Khan suffered from PTSD and that he would be upset by being recorded.
90In her examination in chief, Mrs. Bujold said that she first learned about Khan’s PTSD through the discovery process in this action in 2021. She denied that she knew about it earlier. This was untrue. As Mrs. Bujold later admitted in cross-examination, Khan’s PTSD was mentioned in his November 2018 statement of claim and again in the media articles published in August 2020. In her application for a peace bond in December 2018, Mrs. Bujold wrote that she found Khan “has an aggressive history of violence, illness, or mental conditions”. Mrs. Bujold was provided with a copy of Khan’s medical records in February 2019, and brought them to the peace bond application hearing in April 2019.
91In cross-examination, Mr. Bujold denied that he knew, when he filed the 2017 OIPRD complaint, that Khan had PTSD. He admitted, however, that he knew Khan was “paranoid”. He testified that he erected the fake camera directed into Khan’s backyard because he wanted to make him angry and upset.
92Given the extent of their surveillance of Khan and their knowledge of his mental health history, I conclude that the Bujolds subjectively intended to injure Khan or knew that his mental health would almost certainly be negatively impacted by their conduct.
93Finally, I find that the Bujolds’ conduct injured Khan.
94Khan testified that he came under significant stress as a result of the Bujolds’ conduct in late 2018. He developed sleep disorders, nightmares and acid reflux, and had to attend local emergency rooms twice. He was prescribed Ativan for anxiety and depression, and Trazodone to help him sleep. He was deeply and justifiably concerned that the second OIPRD complaint and the peace bond application would derail his career.
95Over time, Khan began avoiding spending time outside because he felt he was being watched. This diminished his general enjoyment of life. Khan testified that he stayed with his parents for a week in June 2021 as a result of stress from the situation with the Bujolds and other neighbours who took their side in their dispute. He thought that time away would de-escalate tensions, but it did not. In 2023, Khan was devastated to learn that the Bujolds had videotaped and photographed him many times without his knowledge. He testified that this triggered a resurgence of PTSD symptoms and made him anxious and fearful whenever he was at home. At trial, Khan said that he continues to feel that his movements on his property are being monitored, even though the Bujolds have now moved away.
96Beausoleil spent increasing amounts of time at Khan’s house from the time they began dating in 2019 to when she moved in with him in 2023. She confirmed that his social life was affected by his issues with the Bujolds. He used to have friends over once or twice a week, but this decreased over time. She also testified about how Khan was negatively impacted by specific incidents.
97The impact of the Bujolds’ conduct towards Khan was also corroborated by evidence from his treating physicians.
98Dr. Damji is a clinical psychologist who began treating Khan in August 2018. She ceased being his primary therapist in September 2021, but continues to see him every six to eight weeks to monitor his situation in the context of his WSIB claim. Her clinical notes and records to January 2020 were produced in evidence, along with a report she wrote on January 31, 2019 assessing the impact of Khan’s interactions with the Bujolds.
99Dr. Damji testified that Khan first mentioned issues with his neighbours during an appointment on September 4, 2018. Khan told her that the neighours were spying on him and had contacted the police to complain about them. Dr. Damji recommended that Khan avoid contact with them. In later appointments, Khan mentioned an escalation of events, including being videotaped when he was in his backyard. This caused Khan’s PTSD symptoms to re-emerge.
100Khan’s issues with the Bujolds came up often in his discussions with Dr. Damji. In her January 2019 report, she concluded that Khan had become “more vigilant, agitated, paranoid, frustrated, angry, and overwhelmed” as a result of these issues. She explained how this had affected Khan’s everyday life:
He avoids leaving his home, as he is afraid of potential damage his neighbours may do. His sleep has been affected, to the point where he has started to take Lorazepam and Trazadone again to help with his sleep. He feels like he is forgetting things and he feels like he has to document events, so is keeping notes as he has challenges with his memory. He feels "like a prisoner" in his home as the neighbours' camera continues to be pointed towards Cst. Khan's home. … He has become isolated from his family and friends as a result. The stressors have also impacted his relationship as he is arguing more due to his decreased ability to handle stressors. His intimacy has also decreased due to the stressors he is experiencing. In addition, he experiences the following symptoms: decrease in appetite; loss of enjoyment (e.g ., going to the gym); decrease in energy levels; increased irritability; and increase worry in what his neighbours may do to him or his career.
101In her notes about a December 2019 appointment with Khan, Dr. Damji again mentioned “issues of paranoia, mistrust”. She recalled that Khan felt that he was always being observed, watched, and recorded.
102Dr. Damji was an impressive witness. She testified in a measured, objective way and answered questions in cross-examination clearly and directly. She acknowledged that she relied, to a large extent, on Khan’s own account of his interactions with the Bujolds and their impact on him. She testified, however, that she asks patients probing questions to ascertain whether their reactions are based on actual events or projections or fears. Given her experience treating first responders for trauma, I find that she is able to discern the difference. She did not think that Khan was imagining that he was being watched by the Bujolds. As she pointed out at trial, there was ample evidence that they were.
103In a February 17, 2019 letter, Khan’s family physician, Dr. Marie-Josee Klett likewise noted that he complained of “the ongoing problems he has been having with his neighbours that [was] significantly contributing to this stress”. In March 2020, Dr. Grey, a psychiatrist who assessed Khan for the purpose of his sentencing on the impaired driving charge, expressed the view that “the disputes with his neighbour acted as a major source of anxiety, precipitating symptoms of PTSD, because of the feelings of loss of control similar to what he experienced at the times of his past traumas. Having been exposed to multiple traumas in the past, he was at that point more vulnerable to relapse of symptoms in response to stress.”
104Feuds between neighbours do not routinely give rise to civil liability; see, for example, Eks v. Tadeu, 2019 ONSC 3745, aff’d 2020 ONCA 425. Living in close proximity to someone you dislike or distrust is inherently stressful. There are, however, some lines that should not be crossed. They were crossed here, when the Bujolds engaged in active surveillance of Khan, in a way calculated to heighten his feelings of paranoia and persecution.
105I conclude that the Bujolds are liable for intentional infliction of mental distress. I will again address damages later in these reasons.
Intrusion on seclusion, trespass, nuisance, and harassment
106Khan argues that the Bujolds are also liable based on other causes of action. Given my conclusion with respect to malicious prosecution and intentional infliction of mental distress, I need not consider these alternative claims in any detail. Courts have concluded that conduct similar to the Bujolds’ gives rise to liability for nuisance and trespass; see, for example, Cecchin v. Lander and Saelman v. Hill.
Damages
107Khan seeks general and punitive damages. The Bujolds argue that total damages for all causes of action should not exceed $20,000 and that no punitive damages should be awarded.
Defamation
108Khan seeks $7,500 to $10,000 in general damages, and $5,000 in punitive damages, for defamation. He testified that he was upset by Ms. Bujold’s online comment, because it implies that he is corrupt. He felt as though he had sacrificed by serving as a police officer in Afghanistan and in the local community, and he had worked hard to redeem himself after his arrest.
109Defamation is a strict liability tort and damages for defamation are presumed: Grant v. Torstar, at para. 28; Best v. Weatherall, 2010 BCCA 202, at para. 45. In Leenen v. Canadian Broadcasting Corp. (2000), 48 OR (3d) 656, 50 CCLT (2d) 213, at para. 205; affirmed (2001), 54 O.R. (3d) 612; leave to appeal ref’d [2001] S.C.C.A. No. 432, Cunningham J. set out some factors that courts have considered relevant in assessing damages. They include:
(a) the seriousness of the defamatory statement; (b) the identity of the accuser; (c) the breadth of the distribution of the publication of the libel; (d) republication of the libel; (e) the failure to give the audience both sides of the picture and not presenting a balanced review; (f) the conduct of the defendant and defendant's counsel through to the end of trial; (g) the absence or refusal of any retraction or apology; (h) the failure to establish a plea of justification.
110Accusing a police officer of using his position and power against his neighbours is a serious matter. Mrs. Bujold has never apologized for or retracted her online statement and did not offer any credible justification for it at trial. The Facebook post was shared 52 times, and there is no way to tell how many people read the original online post.
111In the circumstances, I award Khan $10,000 in general damages for defamation.
112I decline to award any punitive damages. Khan relied on Pritchard v. Van Nes, 2016 BCSC 686. In that case, the defendant posted online comments over many months accusing the plaintiff, a schoolteacher, of being a paedophile. The plaintiff was awarded $50,000 in general damages, and an additional $15,000 in punitive damages “as a means of rebuking the plaintiff for her thoughtless, reckless behaviour”. Mrs. Bujold did not wage a relentless online campaign against Khan. Her August 2019 post was thoughtless and reckless, but it falls short of the outrageous and high-handed behaviour that attracts a punitive damages award.
Malicious prosecution
113Khan seeks damages of $10,000 to $15,000 for malicious prosecution. The Bujolds contend that I should not assess separate damages for this cause of action.
114In my view, it is appropriate to award damages for malicious prosecution, separate and apart from the damages otherwise awarded. Although the peace bond application was part of a larger campaign by the Bujolds against Khan, it is by itself an actionable wrong. The weaponization of the criminal justice system against an individual cannot be condoned, particularly where the target is vulnerable due to his job and his psychological state.
115That being said, the damages suffered by Khan as a result of this specific act appear modest. He was legitimately worried that, if the application were successful, this would affect his job. He was also concerned about the prospect of testifying and encountering his fellow officers at the courthouse when he did so. Khan was not taken into custody, however, nor was he charged with any offence. In his discussions with health care providers, he did not single out the peace bond application as a specific source of stress.
116In the circumstances, I award Khan $5,000 in damages for malicious prosecution.
Intentional infliction of mental distress, nuisance, and trespass
117In his amended amended statement of claim, Khan seeks $200,000 in general damages for causes of action other than defamation. He relies on Fitzpatrick v. Orwin, 2012 ONSC 492, where the plaintiff was awarded $115,000. Although the Bujolds’ conduct was not as serious as the conduct by the defendant in that case, he claims that it had a profound impact on him due to his fragile psychological state and the impact that the Bujolds’ actions could have on his career.
118The Bujolds argued that the damages sought are excessive, because Khan’s psychological injuries cannot be attributed only, or primarily, to their actions towards him. They are not responsible for traumatic events prior to 2017 that caused him to develop PTSD and to abuse alcohol. They are also not responsible for his current disability from work, which arises from his reaction to the racist meme distributed within the OPS. Finally, they argue that Khan over-reacted or imagined some injuries. For example, he believed that the Bujolds might poison his food or place explosive devices under his hot tub.
119Dr. Damji acknowledged that the criminal charges against Khan, as well as this lawsuit, workplace issues, and family relationships, have also contributed to his psychological condition. In cross-examination, she was confronted with letters and reports she wrote that were directed to the WSIB and to Khan’s LTD insurer in October 2018, January 2019 and June 2019. In these documents, she stated that Khan’s PTSD and alcohol abuse was retriggered by his June 2018 arrest and other workplace issues. She mentioned nothing specifically about his problems with the Bujolds. I accept Dr. Damji’s explanation that this did not imply that his conflict with them played no role in his psychological state at the time. She wrote the letters to support Khan’s claim for compensation for a workplace injury, and so focussed on his problems at work.
120Khan’s current symptoms are clearly not uniquely attributable to his interactions with the Bujolds. At various times, he has attempted to downplay the role that other events played. He denied, for example, that his PTSD symptoms resurfaced in Afghanistan; this was contradicted by Dr. Damji. Khan ultimately admitted, in cross-examination, that he made a very poor judgment call in driving while impaired in June 2018, even though he testified at his discovery that he drove drunk due to the stress of the situation with the Bujolds.
121The defendants have not, however, successfully challenged Khan’s evidence, supported by Dr. Damji, Beausoleil, and others, that the Bujolds’ tracking of his movements caused him anxiety and sleeplessness and an inability to enjoy his property. Khan admitted that his conflict with the Bujolds did not prevent him from doing property maintenance or using the hot tub occasionally. Once the fence was knocked over, though, he stopped inviting most family and friends into the backyard, because he did not want their activities to be videotaped or recorded. I accept this evidence.
122Taking this all into account, I find that Khan is entitled to modest general damages for intentional infliction of mental distress. This case is distinguishable from Fitzpatrick v. Orwin, 2012 ONSC 492, both in terms of the conduct of the defendants and the harm it alone caused to the plaintiffs. In two other actions where defendants were found liable for intentional infliction of mental distress in other contexts, they were awarded only $15,000: McLean v. Danicic (2009), 95 O.R. (3d) 570; and Prinzo v. Baycrest Centre for Geriatric Care. Care must be taken not to overcompensate a plaintiff who is awarded damages for overlapping causes of action.
123I accordingly award Khan $10,000 in general damages for intentional infliction of mental distress. In the alternative, I would award him the same damages for nuisance and trespass.
Disposition
124The action is granted. Khan is awarded a total of $25,000 in general damages. In his amended amended statement of claim, he also sought a retraction of Mrs. Bujold’s defamatory comments, but this remedy was not pursued at trial.
125If the parties are unable to agree on costs, they may each submit a costs outline to my attention by no later than December 8, 2023. Each outline shall not be longer than three pages but should attach relevant supporting documents.
Justice Sally Gomery Released: November 23, 2023
1I have reproduced this and other excerpts from records exactly as they appear in the original.