Court File and Parties

COURT FILE NO.: CV-17-00057229 DATE: 2024-01-03 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Roger Beckett Plaintiff

• and - Recovery Science Corporation and Stephen Tan Defendants

Counsel: M. Hoy, for the Plaintiff K. Bailey, for the Defendants

HEARD: December 13, 2023

The Honourable Justice J. R. Henderson

Reasons for Decision on Summary Judgment Motion

1This is a motion brought by the defendants, Recovery Science Corporation (“RSC”) and Stephen Tan (“Tan”), for summary dismissal of the plaintiff’s claim pursuant to rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

2RSC is a corporation that, among other things, provides and installs GPS monitoring devices such as ankle bracelets. Tan is the director of operations for RSC.

3In the fall of 2015, the plaintiff was arrested, charged with a criminal offence, and detained in custody. After a bail hearing, the plaintiff was released on a recognizance that included conditions that the plaintiff would remain in his residence, that the plaintiff would wear a GPS monitoring device, and that the plaintiff would comply with a contract with RSC regarding the monitoring device.

4Upon his release from custody, the plaintiff entered into a written contract with RSC, called a Participant Agreement (“the Agreement”), and the plaintiff signed a Liability Waiver (“the Waiver”) that formed part of the Agreement. On the same day, a GPS ankle bracelet was attached to the plaintiff’s ankle by Tan.

5A few weeks later, the GPS ankle bracelet generated an alert that indicated that the ankle bracelet was malfunctioning. After a brief investigation, the plaintiff was arrested and charged with breach of recognizance as it was alleged that the plaintiff had tampered with the GPS ankle bracelet. The plaintiff’s bail was revoked, and he was thereafter detained in custody.

6The plaintiff now sues the defendants in negligence. The plaintiff alleges, among other things, that the defendants provided faulty equipment, that the defendants failed to adequately investigate the cause of the malfunction, that the defendants carelessly removed the ankle bracelet, and that Tan gave false or misleading information to police about the cause of the damage to the ankle bracelet.

7It is the position of the defendants that most of the facts in this case are not in dispute, and that any remaining factual issues can be resolved on this motion by the use of the enhanced powers provided by rule 20.04(2.1). Moreover, the defendants submit that the terms of the Waiver release the defendants from any claim that could be made by the plaintiff in these circumstances. Therefore, the defendants submit that the plaintiff’s case should be dismissed in its entirety on this motion.

8The plaintiff submits that there are significant factual issues between the parties that cannot be resolved on this motion. The plaintiff also submits that the Waiver is invalid, and that, in the alternative, the scope of the Waiver is not broad enough to release the defendants from the claims that are alleged in the pleadings. Therefore, the plaintiff submits that there are genuine issues that require a trial.

The Law Regarding Rule 20 Motions

9Rule 20.04(2)(a) provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

10It is trite law that on a rule 20 motion a judge must take a hard look at the evidence to determine whether or not there is a genuine issue for trial. Rule 20.04(2.1) provides the motions judge with enhanced powers that the judge may exercise in making that determination, including the power to weigh the evidence, evaluate credibility, and draw inferences.

11The Supreme Court of Canada established a two-step approach for determining summary judgment motions in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. First, the motions judge should consider the evidence without using the enhanced powers to determine if there is a genuine issue requiring a trial. If there is no genuine issue requiring a trial, summary judgment should be granted. Second, if there appears to be a genuine issue, the motions judge is entitled to use the new fact-finding powers to determine if the need for a trial can be avoided.

12There will be no genuine issue for trial if the judge is able to reach a fair and just determination on the merits on the summary judgment motion: see Hryniak at para. 49.

Analysis

13On this summary judgment motion, there are both factual issues and legal issues. I find that I can resolve some, but not all, of these issues at this stage.

The Background Facts

14There is no significant dispute with respect to the facts that led up to the signing of the Agreement and the Waiver. The plaintiff was charged with a criminal offence and was detained in custody. His lawyer, Vijai Singh, contacted RSC on approximately September 1, 2015, with a request that RSC agree to provide GPS monitoring of the plaintiff as part of a proposed plan for the plaintiff’s release from custody. RSC accepted that request.

15A bail hearing was conducted on September 17, 2015. Mr. Singh had obtained blank copies of the Agreement and the Waiver, and these were filed as exhibits at the bail hearing. Tan testified on behalf of the plaintiff at the bail hearing and explained the RSC program, the reporting obligations, and the mechanics of GPS monitoring.

16At the conclusion of the bail hearing, the plaintiff was released on a recognizance with conditions. Condition number seven of his recognizance stated that, “You are to be fitted with a monitoring bracelet and to comply with all the terms in the contract of Recovery Science Corporation.”

17The plaintiff admits, and I accept, that he was advised by his lawyer of the proposed GPS monitoring plan prior to the bail hearing. I find that the plaintiff had an opportunity to ask questions of his lawyer about the plan, but he chose not to do so. I also find that the plaintiff was present at the bail hearing and heard Tan’s testimony regarding the particulars of the GPS monitoring program.

18After the bail hearing was concluded, Tan attached the ankle bracelet to the plaintiff at the courthouse. The fitting took approximately 30 minutes. I find that Mr. Singh, the plaintiff’s surety, and the Crown prosecutor were all present at various times during the fitting. At approximately the same time, the plaintiff signed the Agreement and the Waiver. I find that the plaintiff had an opportunity to read both of these documents at the courthouse, and that he had an opportunity to ask any questions of his lawyer or Tan, but he chose not to do so.

The Validity of the Waiver

19The first significant issue is the plaintiff’s submission that the Waiver is invalid as the plaintiff was unduly pressured into signing the Waiver and/or there were misrepresentations made to him that induced him into signing the Waiver, and/or the defendants failed to bring the Waiver to his attention.

20I find that the terms of the Waiver were brought to the attention of the plaintiff, and that the plaintiff was made aware of the nature of the Agreement and the Waiver. I accept that the Agreement and the Waiver were explained to him prior to the bail hearing, at the bail hearing, and after the bail hearing at the courthouse. Furthermore, I find that there were no misrepresentations about the Waiver, and that the plaintiff was not pressured into signing the documents against his will. Accordingly, I will resolve this issue on this motion; I find that the Agreement and the Waiver are valid and binding on both parties.

Who Caused the Damage to the Ankle Bracelet?

21It is not disputed that on approximately October 15, 2015, an alert appeared on the monitoring website of the manufacturer, Buddi Limited (“Buddi”). The alert indicated that the GPS ankle bracelet was no longer communicating data. The alert came to the attention of Tan who initially notified the plaintiff’s surety and then notified the local police department.

22I find that a police officer attended at the plaintiff’s residence in the afternoon of October 15, 2015 and found that the plaintiff was at home. Thus, the plaintiff appeared to be in compliance with the condition of his recognizance that required him to remain in his residence.

23I find that, later the same day, Tan attended the plaintiff’s residence to inspect the ankle bracelet. Tan determined that the ankle bracelet should be removed and replaced. I find that Tan informed the plaintiff that he had forgotten the tool that he needed to remove the ankle bracelet, and asked the plaintiff if he had a tool that could be used. The plaintiff then provided scissors and/or metal shears that were used to remove the ankle bracelet.

24There is a factual issue as to how and by whom the ankle bracelet was removed. The plaintiff’s evidence is that Tan first tried using scissors to cut off the ankle bracelet, but that he was unable to do so. Then, the plaintiff said that he produced metal shears that were approximately 12 inches in length. The plaintiff’s evidence is that Tan instructed the plaintiff to cut off the bracelet using the metal shears, and that the plaintiff did so.

25However, the plaintiff’s evidence is contradicted by Tan. Tan initially informed police officers by email dated November 4, 2015, that the plaintiff provided him with a pair of scissors that he used to cut off the ankle bracelet. Later, on his examination for discovery in this matter, Tan testified that he did not recall any request for, or use of, scissors. Tan testified that he, Tan, removed the ankle bracelet using metal shears that had been provided by the plaintiff.

26This factual issue is relevant to the fundamental issue of whether the plaintiff caused any damage to the device prior to its removal. Defence counsel submits that I should find that the ankle bracelet had been badly damaged by the plaintiff before it was removed by Tan, but plaintiff’s counsel submits that there is no clear evidence that the ankle bracelet was badly damaged before it was removed, and that I should infer that the use of the metal shears to remove the ankle bracelet caused significant damage.

27In support of its position, the defendants heavily rely on the expert report of Buddi, who examined the ankle bracelet at RSC’s request. In the Buddi report, it was noted that the device was badly damaged; there were multiple scratches, pieces had been sheared off, there was an oily residue inside the device, and there were signs that excessive heat had been applied to the device. The report concluded that the ankle bracelet had been subjected to excessive force that had caused damage to the device, and that some type of lubricant had been applied to the device.

28The strength of the Buddi report is tempered by a concern raised by the plaintiff that Tan did not provide Buddi with fulsome information about the damage caused by the removal of the ankle bracelet. Therefore, the plaintiff submits that the conclusions in the Buddi report may be called into question. The evidence on this point is sparse at this stage.

29The plaintiff also relies on some evidence that suggests that there had been minimal damage to the ankle bracelet prior to its removal. In particular, the police officer who attended to check on the plaintiff on October 15, 2015, prior to the removal of the ankle bracelet, did not note any scratches or damage to the ankle bracelet. Further, Tan testified that at the time that he removed the ankle bracelet he did not see any obvious damage to it other than a missing piece of plastic, and that Tan did not observe any oily residue on the ankle bracelet.

30In summary, there are several disputed factual issues about the cause of the damage to the ankle bracelet for which there is conflicting evidence or an absence of evidence. In my view, these factual issues cannot be resolved without a trial. The state of the device at the time of removal and the circumstances surrounding the removal can only be fairly determined by a court after hearing the viva voce testimony of Tan, the plaintiff, and the police officer. There are credibility concerns about both Tan and the plaintiff that cannot be resolved on the evidence before this motions court. Further, there will likely be significant cross examination on the expert opinion of Buddi based on the quality of information that was provided to Buddi prior to the author of the report reaching a conclusion. That examination should also be done viva voce.

31For these reasons, I find that it would not be fair and just to make any findings of fact as to who removed the device, how it was removed, and what damage had occurred before the device was removed without the benefit of hearing viva voce evidence from the relevant witnesses.

The Scope of the Waiver

32Despite the court’s inability to resolve all of the facts of this case on this motion, the defendants take the position that it is open to this court to find that, based on the Waiver, the plaintiff’s claim cannot succeed. Therefore, the defendants submit that the motion for summary dismissal should be granted in any event. Counsel for the plaintiff disagrees.

33This raises an issue of mixed fact and law. In considering this issue, I note that paragraph six of the Waiver reads as follows:

I THEREFORE PERMANENTLY AND IRREVOCABLY WAIVE ALL RIGHTS to make any claim against RSC… or any of their respective employees, agents, officers or directors… in connection with any harm or loss that I may suffer or that is caused or alleged to have been caused as a direct or indirect result of my wearing the Ankle Bracelet, my failing to comply with my release conditions, and/or my being arrested as a result of an RSC report to police…

34It is also important to note that the Agreement contains a waiver of confidentiality whereby the plaintiff agrees that RSC may provide any information about the plaintiff to any police service or court at any time in its own discretion with respect to the GPS monitoring through the ankle bracelet.

35It is the position of the defendants that based on the findings of fact that I am able to make today, and the constellation of possible findings that could be made with respect to the unresolved facts, the scope of the Waiver is so broad that any possible claim that has been alleged by the plaintiff would be prohibited by the Waiver.

36However, the plaintiff’s position is that the plaintiff’s release of any claim for damages as a result of an RSC report to police is not broad enough to cover the plaintiff’s allegations in this case. The plaintiff submits that Tan had an implied duty to be forthright when he reported any malfunction or difficulty with the ankle bracelet to police; that is, the Waiver is only effective if Tan acted honestly and in a forthright manner.

37The evidence is that police officers were informed by RSC that Buddi had concluded that the device had been deliberately damaged, and shortly thereafter the plaintiff was charged with breach of recognizance as a result of his alleged tampering with the ankle bracelet.

38However, by the time the plaintiff was charged, Tan had already removed the ankle bracelet and would have been aware that some damage had occurred in removing the bracelet. The plaintiff submits that Tan did not provide fulsome information to the police about any damage that may have been caused by his removal of the device. This allegation is denied by the defendants.

39In my view, there is a distinct possibility that a court could find that there was an implied duty on Tan to be open and forthright with police when making a report about the malfunction of the ankle bracelet. If a court determines that Tan was not forthright with police, it is possible that the Waiver may not provide a full defence for the defendants.

40Therefore, a court will be required to make findings as to what damage was caused by the removal of the ankle bracelet, and whether that information was provided to police by RSC before a court will be able to determine whether the scope of the Waiver is broad enough to cover the factual circumstances of this case. In my opinion, those findings can only be fairly made after hearing the viva voce testimony of the plaintiff, representatives of RSC, and representatives of the local police department.

Conclusion

41For all of these reasons, it is my view that it would not be fair and just to determine this matter on a summary judgment motion. I find that there are unresolved issues of fact and law that require a trial. I note that the plaintiff also raised other issues with respect to gross negligence and unconscionability. I make no comment on those issues.

42Therefore, the defendants’ motion to summarily dismiss the action is dismissed. I order partial indemnity costs of the motion to the plaintiff, fixed at the amount of $7,500 plus HST, payable within 90 days.

43With respect to the trial, I will not remain seized of this case because of the scheduling difficulties that might arise, although I am prepared to conduct the trial if that can be arranged through the trial co-ordinator.

Justice J. R. Henderson