Court File and Parties

COURT FILE NO.: CV-22-00089537-0000 DATE: 20240419 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NICOLE WHITEWAY, RYLAN HAMILTON, CAMDEN HAMILTON, B.S, A MINOR BY LITIGATION GUARDIAN NICOLE WHITEWAY and O.S., A MINOR BY LITIGATION GUARDIAN NICOLE WHITEWAY Plaintiffs

– and –

DURHAM REGIONAL POLICE SERVICE, DURHAM REGIONAL POLICE SERVICE BOARD, UDAY JASWAL, NICK LISI, PAUL MARTIN, MITCH MARTIN, RYAN CONNOLLEY, PAUL HALLET, KEVIN STUART, STAN MACLELLAN, IAN B. JOHNSTONE, DANIELLE KENT-JOHNSTON, SHAWN MCCURDIE, KIM BULLOCH, CYD GILLIS, DON PATRICK, CINDI BRADLEY, CHRISTINE WALKER, TODD ROLLAUER AND DAVID SANDERSON Defendants

Counsel: Justin Villeneuve and Charles Genest, for the Plaintiffs C. Kirk Boggs and Nadia Marotta, for the Defendants, Durham Regional Police Service, Durham Regional Police Service Board, Uday Jaswal, Nick Lisi, Paul Martin, Mitch Martin, Ryan Connolley, Paul Hallet, Kevin Stuart, Stan MacLellan, Danielle Kent-Johnston, Shawn McCurdie, Kim Bulloch, Cyd Gillis, Don Patrick, Cindi Bradley, Christine Walker, Todd Rollauer and David Sanderson Tim Gleason and Rebecca Glass for the Defendant, Ian Johnstone

HEARD: January 30, 2024

Decision

K. MCVEY J.

Introduction

[1] In June 2022, Nicole Whiteway, a police officer with the Durham Regional Police Service (“DRPS”), commenced an action against a number of police officers and superior officers with whom she worked at various times, two prior Chiefs of Police, the DRPS Board and a number of its administrators (collectively the “DRPS Defendants”), as well as a lawyer, Ian Johnstone (“Johnstone”), who was designated by the Chief of Police pursuant to the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”) to prosecute Ms. Whiteway for discreditable conduct and corrupt practice. Ms. Whiteway and her children seek damages for civil conspiracy, misfeasance in public office, negligence, defamation, and abuse of non-criminal proceedings. Although Ms. Whiteway’s children have joined her in the action, I will refer to her as the plaintiff throughout these reasons.

[2] Pursuant to r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), the defendants move for dismissal of the action for want of jurisdiction. They argue that pursuant to the exclusive jurisdiction model adopted by the Supreme Court of Canada in the seminal case of Weber v Ontario Hydro, [1995] 2 S.C.R. 929, labour arbitrators have exclusive jurisdiction over this dispute.

[3] At all material times, the plaintiff’s employment was governed by the terms of a collective agreement that contained grievance procedures and provided for binding arbitration as required by the Ontario Labour Relations Act, S.O. 1995, c. 1. It is well-established that disputes between an employer and an employee that arise in their essential character from the interpretation, application or violation of a collective agreement are to be determined through arbitration and not in the courts.

[4] Whether the jurisdiction of this Court to hear the plaintiff’s claim is ousted pursuant to the above principles hinges on whether the dispute between the plaintiff and the defendants, in its essential character, arises from the collective agreement that binds them. The defendants argue that the overall genre or thrust of the dispute is the improper exercise of managerial authority to the detriment of a unionized police officer bound by the collective agreement. The plaintiff asserts that the nature and extent of the intrusions into her personal life takes this matter beyond what could reasonably be contemplated by the collective agreement.

[5] Johnstone also seeks to have the claim dismissed against him on the basis that 1) the statement of claim does not disclose a reasonable cause of action against him; 2) the claims are not capable of proof given the evidentiary limitations in section 83 of the PSA; 3) he is protected by the common law principle of prosecutorial immunity; and 4) the claim against him is frivolous, vexatious and an abuse of process.

Pleadings

[6] The plaintiff pleads the following facts that I must assume true for the purposes of determining this motion to strike.

Internal Complaint

[7] In 2016, the plaintiff launched an internal complaint regarding what she alleged was inappropriate behavior on the part of her supervisor, Inspector Nick Lisi (“Lisi”). The DRPS Board did not intervene. Instead, it suggested that the plaintiff speak to Lisi directly about her concerns. Though the plaintiff disagreed with that approach, she complied. Lisi’s behavior worsened as a result, culminating in him berating the plaintiff for taking time off to bring her sick infant to the hospital. Days after the incident, Lisi sent an officer to the plaintiff’s home to persuade her not to file a complaint. The plaintiff was warned that “going against management” would be a huge mistake.

[8] The plaintiff filed a formal complaint against Lisi in November 2016. The DRPS Board launched an internal investigation. In January 2017, while the investigation into Lisi’s alleged misconduct was ongoing, the DRPS Board permitted Lisi to participate in the plaintiff’s performance review. She received a poor performance rating for the first time in her 23-year policing career. In her review, the plaintiff documented what she viewed as the blatant conflict of interest posed by Lisi’s participation.

[9] In March 2017, Superintendent Kim Bulloch, in the presence of a human resources representative, Danielle Kent-Johnston, told the plaintiff that she would be charged with insubordination and prosecuted pursuant to the PSA if she did not remove her written critique from her performance review. The plaintiff chose to remove her comments rather than face prosecution.

Domestic Abuse

[10] As the above dispute was ongoing, the plaintiff was co-parenting children with her estranged spouse, David Sanderson (“Sanderson”). The couple had separated in July 2015.

[11] In April 2017, Sanderson was watching his and the plaintiff’s four-year-old daughter while the plaintiff was out for the evening. When Sanderson learned that the plaintiff was on a date, he spiraled into a jealous rage and while on the phone with the plaintiff threatened to kill himself and their daughter. He sent the plaintiff a video of their daughter saying “goodbye” and subsequently another video asserting that she was dead, and that her body could be found on a picnic table.

[12] The plaintiff called police and frantically returned home. When she arrived, Acting Sergeant Shawn McCurdie (“McCurdie”) and Detective Constable Kevin Stuart (“Stuart”) were waiting for her. They advised the plaintiff that her daughter was safe, and that police had apprehended Sanderson pursuant to the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”). Stuart called the plaintiff later that evening and advised her that Sanderson had been released, a decision that unsettled the plaintiff given Sanderson’s aggressive, threatening, and unhinged behavior just hours earlier.

[13] The following day, the plaintiff met Sanderson in a public parking lot to exchange items for the children. Sanderson appeared to suffer a stroke, so the plaintiff rushed him to the hospital. Hours later, because the plaintiff was still listed as Sanderson’s emergency contact, a nurse called the plaintiff and asked about Sanderson’s medical history. The plaintiff told the nurse that Sanderson had been treated at the hospital the day before after being apprehended pursuant to the MHA for uttering suicidal and homicidal threats. The nurse advised the plaintiff that there was no record of Sanderson’s recent admission or treatment.

[14] When confronted by the plaintiff, Sanderson admitted that DRPS officers had not taken him to the hospital the day before. Instead, officers had taken him to an underground parking area behind the hospital. They advised him that they did so to ensure that the GPS data in their cruiser would reflect that they had taken him for treatment. The officers told Sanderson that they would neither arrest him nor bring him for treatment provided he implicate the plaintiff in some form of professional misconduct. To prompt a response from Sanderson, they told him that the plaintiff was “fucking guys at work.” Sanderson refused to give the officers information. The officers brought Sanderson home and advised him not to speak about their interaction.

[15] The following day, the plaintiff submitted a Freedom of Information Request for the police report associated with Sanderson’s supposed apprehension. Her request was denied three days later.

[16] The plaintiff retained counsel and filed a complaint with the DRPS Professional Standards Unit. Sanderson obtained independent counsel and submitted a written statement regarding his staged apprehension to the Office of the Independent Police Review Director. The DRPS Board eventually terminated its investigation into the event. The plaintiff believes that some of the officers involved in the staged apprehension may have faced PSA charges relating to the incident that were resolved informally. Details of those resolutions have never been disclosed to her.

[17] After the staged apprehension, the plaintiff alleges that Sanderson, possessed with and inspired by the understanding that DRPS would not intervene to assist the plaintiff, went on to physically, psychologically, and sexually abuse the plaintiff for months, at times in the presence of her children.

[18] In October 2017, the plaintiff called 911 in distress while Sanderson was damaging her property. DRPS dispatch advised the plaintiff that they would send officers and then hung up. Officers attended twenty minutes later, much longer than the average response time for the area. Upon arrival, the plaintiff’s child told the responding officers that Sanderson had been torturing the family and would kill his mom one day. The officers advised the plaintiff that DRPS did not wish to deal with her as she had caused too many problems. They allegedly refused to detain or lay charges against Sanderson.

[19] The following day, the plaintiff attended the DRPS Domestic Violence Unit and showed the Staff Sergeant pictures of her broken property from the night before, and photos of prior injuries that she sustained at the hands of Sanderson. Sanderson was arrested that day and subsequently charged with twenty-nine counts of domestic-related offences.

PSA Charges

[20] Sanderson remained in custody until October 23, 2017, at which point he was released on bail. While Sanderson was detained, the plaintiff advised the Staff Sergeant of the Domestic Violence Unit, the Landlord and Tenant Board, and Sanderson’s landlord of her intention to enter Sanderson’s apartment and retrieve belongings she needed for the children. The plaintiff also sought legal advice prior to entering. On October 18, 2017, the plaintiff entered Sanderson’s apartment in the presence of his landlord and friend and removed her children’s things.

[21] During subsequent family law proceedings, the plaintiff discovered that Sanderson was cooperating with the DRPS Professional Standards Unit. Sanderson had told police that the plaintiff had stolen approximately $20,000 of cash as well as jewellery when she entered his apartment. DRPS had approached the Crown Attorney regarding the prospect of laying criminal charges against the plaintiff. The Crown Attorney saw no reasonable prospect of conviction.

[22] On April 20, 2018, the Chief of Police charged the plaintiff with two counts of discreditable conduct and two counts of corrupt practice. The plaintiff received partial disclosure in June 2018. The plaintiff learned that Sanderson could not confirm the amount of money stolen nor where it was stored in the home. Neither of the individuals present when the plaintiff entered the property observed her take any money.

[23] Pursuant to the PSA, the Chief of Police designated Johnstone to prosecute the PSA charges against the plaintiff.

Abuse of Process

[24] In August 2018, Deputy Chief of Police Uday Jaswal (“Jaswal”) contacted the plaintiff indirectly through a friend to ascertain if the plaintiff was willing to meet with him. The plaintiff met Jaswal in person on August 17, 2018, at a local coffee shop. Jaswal advised the plaintiff that DRPS did not believe that she had stolen anything and wished to deal with the PSA matter informally. Jaswal asked the plaintiff for information about a video recording of him that had been taken while he was intoxicated at a police event. Jaswal also asked the plaintiff whether she had a sexual relationship with DRPS Deputy Chief Chris Fernandes, with whom Jaswal was at odds.

[25] Days later, the plaintiff’s counsel spoke with Jaswal on the phone. Jaswal confirmed that DRPS did not believe that the PSA charges against the plaintiff were meritorious. Nonetheless, Jaswal advised the plaintiff’s counsel that they would only withdraw the charges if the plaintiff provided damning information about Deputy Chief Fernandes. The plaintiff refused.

[26] In October 2018, the plaintiff, the plaintiff’s counsel, Jaswal, and Johnstone’s colleague, Phillip Wright (“Wright”), met to discuss the PSA charges. In that meeting, both Wright and Jaswal advised the plaintiff that they would only withdraw the PSA charges if she provided unfavorable information about Deputy Chief Fernandes.

[27] In October 2018, the plaintiff and Sanderson appeared in family court. Sanderson advised the plaintiff that he would only resolve the family law and PSA matters if she agreed not to testify in his criminal case. The plaintiff brought this to the attention of DRPS. A detective advised the plaintiff that he intended to charge Sanderson with witness tampering. For reasons unknown to the plaintiff, that detective was later told not to charge Sanderson.

[28] Sanderson eventually pleaded guilty to multiple assaults, assaults with a weapon, and uttering threats to cause death against the plaintiff. He is now deceased.

OCPC Review

[29] Due to several internal complaints of misconduct, on January 16, 2019, the Solicitor General requested that the Ontario Civilian Police Commission (“OCPC”) investigate concerns about the operation of the DRPS. After a preliminary review, OCPC appointed an Administrator pursuant to s. 25 of the PSA to carry out all functions relating to internal discipline within the police service. After reviewing the PSA charges against the plaintiff, the Administrator directed DRPS to withdraw them. Among other things, the Administrator found that tying an informal resolution of the PSA charges against the plaintiff to her providing information about an unrelated senior officer was improper and abusive. The Chief of Police unsuccessfully sought to have the Administrator’s decision quashed pursuant to judicial review: see Rollauer v Federico, 2021 ONSC 512.

The Law

[30] Section 48(1) of the Ontario Labour Relations Act confers exclusive jurisdiction on labour tribunals to deal with all disputes between employers and their employees that arise from the interpretation, application, administration, or alleged violation of a collective agreement that governs conditions of employment: Weber, at para 67. The exclusive jurisdiction model adopted in Weber is a policy choice reflecting the specialized expertise possessed by labour arbitrators. The objective of the exclusive jurisdiction model is to effectively eliminate the involvement of courts as first instance decision-makers regarding workplace disputes: Cherubini Metal Works Ltd. v Nova Scotia (Attorney General), 2007 NSCA 38, at para 41. Among other things, this deferential approach ensures that workplace issues arising from collective agreements are resolved economically, efficiently, and expeditiously.

[31] The determination of jurisdiction therefore depends on whether the dispute, viewed from the perspective of its essential character, arises from the collective agreement that binds the parties. When resolving this issue, I must follow the analytical approach adopted in Weber. First, I must identify the essential character of the disagreement between the parties. Second, I must discern whether the essential character of the dispute is explicitly or implicitly contemplated by the collective agreement. This latter determination does not hinge on the legal characterization of the claim. An aggrieved party cannot avoid arbitration through imaginative pleadings: Weber, at para 43.

[32] Similarly, the location where the impugned conduct is alleged to have taken place does not dictate jurisdiction. Matters arising from the collective agreement may occur off the workplace, and, conversely, events can occur at the workplace that do not arise from the collective agreement: Weber, at para 52. I must not conflate the relationship between the parties with the essential character of their dispute. A dispute is not necessarily “workplace centered” because the alleged mischief has some genesis in the workplace because almost all disputes between an employer and an employee are going to have such a connection.

[33] The existence of an employer/employee relationship cannot dominate the analysis. That was the error committed in Rukavina v. Ottawa (City) Police Services Board, 2020 ONCA 533. In Rukavina, the appellant was an Acting Staff Sergeant in the tactical unit of the Ottawa Police Service (“OPS”). While the appellant was commanding a training exercise, an explosive device detonated causing serious injuries to paramedics and two police officers. The Special Investigations Unit (“SIU”) became involved. Its investigation led to criminal charges being laid against the appellant. Crown counsel eventually stayed the charges once they learned that contrary to what the respondents had advised SIU investigators, the training exercise had taken place in accordance with longstanding OPS practice.

[34] The appellant commenced an action alleging that the respondents had improperly influenced the SIU investigation by knowingly providing false information to SIU investigators and by releasing confidential information to the media that painted the appellant in a poor light because they felt he was unfit to serve as Acting Staff Sergeant. At first instance, the respondents succeeded with having the appellant’s claim dismissed on jurisdictional grounds. The motion Judge concluded that the essential character of the dispute was “workplace centered” as it involved tensions at the workplace, and therefore it was governed exclusively by the collective agreement and the disciplinary regime under the PSA.

[35] The Court of Appeal restored the appellant’s civil claim. The Court emphasized that the Superior Court’s jurisdiction is not necessarily ousted just because a claim involves a police officer and its employer: Rukavina, at paras 30, 35. The motion Judge erred by allowing the relationship between the parties to overtake the analysis and thereby failing to grapple with the actual facts: Rukavina, at para 49.

[36] The Court found that while the genesis of the dispute between the parties was workplace related, once the SIU became involved, the matter was taken completely outside of the workplace: Rukavina, at paras 43, 64. The motivation of the officers involved, i.e., workplace retaliation, did not define the essential character of the claim. The Court further held that a civil claim was not barred just because the Chief of Police launched an internal complaint regarding the officers implicated in the misinformation campaign. The Court stated that “there is nothing about a matter being dealt with under the PSA that would or should oust a private claim”: Rukavina, at para 72.

Analysis

[37] The defendants argue that the essential character of the parties’ dispute is “management unfairly targeting one of its employees in the workplace to protect their power,” and therefore the dispute is “workplace centered” and governed exclusively by the collective agreement. In my view, accepting the defendants’ interpretation risks committing the very same error as seen in Rukavina.

[38] Protecting their managerial hierarchy may have been the defendants’ motivation in allegedly mistreating the plaintiff. But to resolve the question of jurisdiction, I must look at the actions they took to achieve that end, and whether that conduct was contemplated by the terms of the collective agreement. The logical extension of the defendants’ argument is that any misconduct by the defendants would fall within the scope of the collective agreement provided they were incentivized by a workplace agenda. In my view, determining the essential character of the dispute involves a much more nuanced analysis.

[39] The defendants allegedly targeted the plaintiff and members of her family in their personal capacities. The collective agreement did not purport to regulate the relationship between DRPS and the plaintiff in her capacity as a private citizen. Like Rukavina, the parties’ dispute undoubtedly originated in the workplace. It began when the plaintiff filed an internal complaint against her supervisor and then received a negative performance review as a result. Had the dispute between the parties ended there, it would most certainly have fallen to be resolved through the arbitration mechanism in the collective agreement.

[40] But the allegation is that the defendants chose to target the plaintiff in her capacity as a civilian. When police officers responded to a credible report of homicidal and suicidal threats levied by the plaintiff’s abusive ex-spouse, the police purportedly prioritized their workplace agenda over the plaintiff’s safety and that of her family. They allegedly failed to have Sanderson assessed by a professional before releasing him, and then purportedly lied to the plaintiff about it. The plaintiff pleads that their conduct placed her and her children in harm’s way, and arguably lulled the plaintiff into a sense of safety given that the police purposefully placed her under the apprehension that a medical professional had assessed Sanderson and deemed him safe for release.

[41] The plaintiff alleges that not only did the police release Sanderson without having him psychologically assessed, but they provoked him before doing so. The police purportedly told Sanderson that the plaintiff was “fucking guys at work” in the hopes it would prompt him to disclose damaging information about the plaintiff. They did so despite knowing that just hours earlier, Sanderson had threatened to kill both himself and his own child in a jealousy-fueled rage. It is arguable that a dangerous outcome to their incendiary behavior was objectively foreseeable. Though they may have been motivated by workplace tensions, the defendants’ conduct had absolutely nothing to do with the collective agreement between the parties or the terms of the plaintiff’s employment.

[42] Further, the plaintiff alleges that this was not an isolated incident. Months later, after Sanderson allegedly subjected the plaintiff to physical and sexual abuse, fellow officers did not promptly respond to a 911 call. When they did respond, they purportedly told the plaintiff that they did not wish to deal with her because she had caused too many issues at work. According to the plaintiff, they maintained that position despite the plaintiff’s child informing them that Sanderson had been torturing them and was going to kill his mother one day. They allegedly refused to arrest Sanderson or lay charges. In addition, DRPS later failed to charge Sanderson criminally when he allegedly sought to interfere with the plaintiff in her capacity as a witness in criminal proceedings.

[43] Once again, these incidents had nothing to do with the conditions of the plaintiff’s employment as governed by the collective agreement. The essential character of this dispute is an allegation that the police abused their authority by targeting the plaintiff within the workplace and outside the workplace by depriving the plaintiff and her family of protection in their private capacities. As noted, aspects of the alleged misconduct when viewed individually undoubtedly fit within what would be contemplated by the collective agreement, but much does not.

[44] In the cases relied upon by the defendants, the impugned misconduct on the part of the employer was unquestionably workplace centered. The matter before this Court is more analogous to the facts in Rukavina. Though workplace differences may have motivated the defendants, in my view, their alleged misconduct transcended the boundaries of what could reasonably be contemplated by the collective agreement.

[45] Accordingly, I find that the dispute resolution mechanism in the collective agreement has not ousted this Court’s jurisdiction to hear the plaintiff’s claim.

Defendant Johnstone

[46] Johnstone seeks to have the claim dismissed against him on additional grounds. He argues that 1) the statement of claim does not disclose a reasonable cause of action against him; 2) the claims are not capable of proof given the evidentiary limitations in section 83 of the PSA; 3) he is protected by the common law principle of prosecutorial immunity; and 4) the claim against him is frivolous, vexatious and an abuse of process.

[47] Rule 21.01(b) permits the court to strike out a pleading which discloses no cause of action against a defendant. The court should strike a claim only if it is “plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action” against the moving party: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42.

[48] The claims against Johnstone entirely concern his actions as a prosecutor designated by the Chief of Police pursuant to the PSA to prosecute disciplinary charges against the plaintiff. The facts supporting the claims against Johnstone are scant. First, the plaintiff asserts that Johnstone did not subjectively believe Sanderson’s allegations against the plaintiff yet sustained the PSA prosecution in any event. Second, the plaintiff alleges that Wright, Johnstone’s colleague, while attending a meeting with Jaswal and the plaintiff’s lawyer to discuss the resolution of the charges, advised the plaintiff that the PSA charges would only be withdrawn if she provided information about Deputy Chief Fernandes.

[49] Wright is not a named defendant in the action. There are no pleadings in relation to Wright’s relationship to Johnstone other than that they are “colleagues.” There is no suggestion that Johnstone was aware of the acrimonious history between DRPS and the plaintiff, including the staged apprehension of Sanderson, the plaintiff’s problematic performance review, and the alleged inadequate police response to the plaintiff’s domestic abuse allegations. The plaintiff has not alleged that Johnstone was aware in advance of what would take place during the meeting with Wright or that Johnstone was informed of the developments after the fact.

[50] In my view, the pleadings against Johnstone do not disclose a cause of action. At their highest, the plaintiff pleads only that Johnstone prosecuted PSA charges against her without subjectively believing that she engaged in the wrongdoing alleged. This alone does not constitute tortious conduct. Reading the statement of claim at its highest, I find that there is no prospect of success against this defendant.

[51] Having found that the claim should be struck, there is no need to assess Johnstone’s claim that he is protected by prosecutorial immunity or that the claim against him is incapable of proof due to s. 83 of the PSA.

[52] In the circumstances of this case, I decline to grant the plaintiff leave to amend. Amendments would only further delay the action and increase the costs, all in the face of a highly uncertain cause of action against Johnstone given the evidentiary limitations set out in the PSA; the common law principle of prosecutorial immunity; and his marginal role, if any, in the overall dispute. The plaintiff could have amended the pleadings well before now after becoming aware of the deficiencies and could have come before the Court with a draft amended pleading. She opted not to do so. Proportionality weighs against granting the plaintiff the opportunity to rehabilitate her claim.

Conclusion

[53] For the above reasons, the motion to strike brought by the DRPS defendants is dismissed. The motion to strike the claim against Johnstone is granted. Leave to amend is refused and the action against Johnstone is dismissed.

Costs

[54] Any party making a claim for costs will have ten days to do so and shall specify against which party the claim for costs is made and the parties against whom a claim for costs has been made will have seven days to respond. There will be no reply without leave of the Court.

The Honourable Madam Justice K. McVey Released: April 19, 2024