Ontario Superior Court of Justice
Court File No.: CV-22-2231-00
Date Released: 2025-05-16
Between
Guillermo Neil Delfin, Elizabeth Delfin, Neil Delfin and Mary Delfin
Plaintiffs (Respondents)
and
CAA Insurance, Economical Insurance Group, His Majesty the King in Right of Ontario, Alex Critelli, Mark Chimiski, Justin Lyon, John Doe Transport Truck Driver and John Doe Transport Truck Owner
Defendants (Moving Parties)
Appearances:
Joseph Campisi Jr. and Ashu Ismail, for the Plaintiffs
Timothy Gindi and Tony Yin, for the Defendants, His Majesty the King in Right of Ontario, Alex Critelli, Mark Chimiski, and Justin Lyon
Heard: March 13, 2025
Decision Released: May 16, 2025
Justice P. Sutherland
Decision on Rule 21 and 25.11 Motion
Introduction
[1] This is a motion brought by the defendants, His Majesty the King in Right of Ontario (HMK), represented by Alex Critelli, Mark Chimiski, and Justin Lyon (the Moving Parties) for an order striking out portions of the plaintiffs’ Amended Amended Statement of Claim (the Claim), as well as portions of Economical Insurance Group’s Statement of Defence and Crossclaim (Economical’s Defence), pursuant to rr. 21 and 25.11 of the Rules of Civil Procedure ("Rules") along with an amendment to the title of proceedings.
[2] The moving parties request that paragraphs 1(j), 29(a)-(f), 29A, 51(d)-(f) of the Claim and paragraph 10(a) of Economical’s Defence (the “impugned paragraphs”) be struck for failing to disclose a reasonable cause of action. As well, the title of proceedings be amended to change the defendant’s name from “The King His Majesty in Right of Ontario” to “His Majesty the King in right of Ontario” in accordance with s. 14 of the Crown Liability and Proceedings Act, 2019. The moving parties request a direction that the plaintiffs file a Fresh as Amended Statement of Claim to appropriately delineate which paragraphs are struck or added but that paragraph 1(j) of the Claim be struck with no right to amend.
[3] For the reasons that follow, paragraphs 1(j), 29 and 29A of the Claim and paragraph 10(a) of Economical’s Defence are struck, and the remaining impugned paragraphs are not struck. I also grant the plaintiffs an opportunity to amend.
The Parties
[4] The plaintiff, Guillermo Delfin (“Delfin”), was involved in a motor vehicle accident on September 27, 2021, with an unidentified transport truck (“2021 MVA”).
[5] The remaining plaintiffs bring their action pursuant to the Family Law Act.
[6] The defendant, Economical Insurance Group, is the insurer of Delfin’s vehicle.
[7] The defendants, Alex Critelli, Mark Chimiski, and Justin Lyon, are Ontario Provincial Police officers (collectively, the “OPP Officers”). They are employed by HMK, who is also vicariously liable for them.
[8] The defendants, John Doe Truck Driver and John Doe Transport Truck Owner, are believed to be the operator and owner of the unidentified transport truck.
The Claim
[9] The substance of the Claim is for damages suffered by Delfin from the 2021 MVA. Around 6:00 a.m. on September 27, 2021, while transporting a passenger, Michala Abramovitch, to Pearson International Airport on behalf of Uber, Delfin was struck by an unidentified transport truck on Highway 401 near Jane Street, causing his Honda vehicle to spin out of control. The transport truck fled the scene.
[10] Paragraphs 14 to 26 of the Claim read as follows:
Due to the immediate onset of paralysis, Guillermo was physically unable to call 911. While waiting for police, Guillermo remained slouched over the steering wheel, losing sensation in his extremities.
Guillermo's passenger, Michala, called 911 approximately three times before police attended the scene. Michala advised dispatch and the OPP that Guillermo was or may be paralyzed.
At approximately 7:00 a.m., Critelli arrived on scene, and on receiving Guillermo's paralysis complaint, made her own determination that Guillermo was not paralyzed.
Chimiski was the second officer on scene, and upon hearing Guillermo's paralysis complaint, said that Guillermo was exaggerating, noting aloud that he had witnessed other similar accident victims attempting to commit insurance fraud.
Chimiski advised that he was previously a paramedic, and in the face of Guillermo's immobility, complaints and the direct information received from Michala, stated that Guillermo was not paralyzed.
Thereafter, Chimiski shifted his focus to Michala, and flirtatiously offered her a ride to the airport, so she would not miss her flight, despite being advised by Michala that she would not be able to catch her flight. Chimiski left the scene with Michala.
Neither officer attempted to stabilize Guillermo to prevent further injury.
Neither officer collected a statement from Michala.
Neither officer undertook their own investigation or was directed by Lyons to complete any of the appropriate investigation of the accident and/or of the unidentified transport truck responsible for Guillermo's paralysis.
The officers told the paralyzed plaintiff to attend the collision reporting centre to request an accident report be created.
The officers waited an hour before calling an ambulance.
The Motor Vehicle Accident Report was not finalized until approximately January 4, 2022.
Description of Guillermo’s Injuries
- As a result of the accident, Delfin suffered serious and permanent injuries, including:
- (a) quadriplegia;
- (b) severe cervical spine extension injury with severe central canal stenosis at the C2-C6 level;
- (c) spinal cord contusion injury at C3-C5 with cord hemorrhage;
- (d) C2-T1 spinal fusion and C1-C7 decompression;
- (e) loss of bladder control;
- (f) loss of bowel control;
- (g) chronic pain;
- (h) emotional trauma;
- (i) behavioural changes; and
- (j) complete loss of independent function
The Impugned Paragraphs
[11] The impugned paragraphs concern allegations of negligence of the OPP Officers for their action and inaction in the investigation of the accident. The plaintiffs allege that the action and/or inaction of the OPP Officers in their investigation caused or contributed to Delfin’s losses.
[12] The impugned paragraphs are reproduced in Appendix A.
Legal Principles of Rules 21 and 25.11
[13] Rule 21.01(1)(b) of the Rules permits a party to move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action.
[14] The test to strike pleadings is that it must be “plain and obvious” that the Statement of Claim does not include a reasonable cause of action. [Hunt v. Carey Canada Inc.] A plaintiff will have their pleadings struck where they fail to plead the necessary factual elements of a recognizable cause of action, plead simply conjecture, assumptions or speculation unsupported by material facts or assert mere conclusions of law. [Sousa v. Attorney General of Ontario, 2022 ONSC 6730, paras. 24-25] The allegations advanced in the Statement of Claim must be taken as correct. [Sousa, para. 26; Islington Village Inc. v. Canadian Imperial Bank of Commerce, 1992 CarswellOnt 368 (Ont. Gen. Div.), para. 4]
[15] The court must give the pleading a generous reading to allow for drafting deficiencies and the plaintiffs’ lack of access to material documents and discovery information. The court should allow novel or unique matters of law that are unsettled or that require detailed analysis of the evidence to proceed. [Hunt v. Carey, at p. 977; Rivard v. Ontario, 2025 ONCA 100, para. 22] They should not be resolved without a full factual record. [McCreight v. Canada (Attorney General), 2013 ONCA 483, para. 63]
[16] The striking of pleadings should be exercised with great care and reluctance. [Islington Village, para. 4; Nguyen v. Economical Mutual Insurance Co., 2015 ONSC 2646, para. 9]
[17] Rule 25.11 provides that the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the basis that the pleading:
a) may prejudice or delay the fair trial of the action;
b) is scandalous, frivolous, or vexatious; or
c) is an abuse of the process of the court.
[18] A claim may be found to be frivolous, vexatious, or an abuse of process when the claim asserts untenable pleas in law, is argumentative, contains insufficient material facts to support the allegation made, or is made for an extraneous or collateral purpose. [Steadfast Inc. v. Dyncare Laboratories, 2019 ONSC 6626, paras. 34-36]
Analysis and Conclusions
Duty of Care Owed by Police Officers
[19] Police officers are not immune to liability in Canada. [Hill v. Hamilton-Wentworth Regional Police Service Board, 2007 SCC 41, para. 3] Although the Supreme Court of Canada found that the police owe suspects a duty of care during an investigation, the law is settled that police officers do not owe a duty of care to victims of an investigation, unless it is narrowly construed, or a statute directs a specific relationship between the investigators and the victims/family. [Odhavji Estate v. Woodhouse, 2003 SCC 69, para. 72] No individual has a private right to a thorough, competent, and credible criminal investigation. [Wellington v. Ontario, 2011 ONCA 274, para. 26]
[20] The Supreme Court of Canada in Odhavji Estate v. Woodhouse declined to strike a claim for negligence against the Chief of Police (the “Chief”). In that case, Manish Odhavji was fatally shot by the Metropolitan Toronto Police Service while running to his vehicle after a bank robbery. The Chief notified the Special Investigations Unit (SIU), an agency statutorily mandated to conduct independent investigations of police conduct in cases of death or serious injury caused by the police. Section 41(1)(b) of the Police Services Act (PSA) set out the responsibilities of the Chief including:
(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;
[21] Section 113(9) of the PSA requires the police force to “co-operate fully” with the members of the SIU during an investigation. Considering how these two statutory provisions work together, the Court found that it would “be inappropriate to strike the action for negligent supervision against the Chief on the basis that he did not owe the plaintiffs a duty of care.” [Odhavji Estate, para. 61] The Court found that it was possible for the plaintiffs to argue that their harm was a reasonably foreseeable consequence of the Chief’s negligent supervision of the investigation and therefore had a duty of care to take reasonable care to prevent the misconduct.
[22] Hill v. Hamilton-Wentworth Regional Police Service Board concerned a wrongfully convicted person who sued the police for the negligent investigation that resulted in him being incarcerated for 20 months. McLachlin C.J., writing for the majority, specifically found that the police owed a duty of care to “particular suspects” who were being investigated in the case. Suspects can be distinguished from victims and their families who are not owed a duty of care except in very specific instances. It is important to understand the public law obligations that are placed on public agencies:
[44] There is now a well-established line of cases standing for the general proposition that public authorities, charged with making decisions in the general public interest, ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public. Discretionary public duties of this nature are "not aimed at or geared to the protection of the private interests of specific individuals" and do "not give rise to a private law duty sufficient to ground an action in negligence" [citations omitted]
[23] Hence, it is my view that it is clear. The police do not owe a free-standing duty of care to victims to a potential crime or their family members. [Connelly v. Toronto (Police Service Board), 2018 ONCA 368, para. 7] There is not a sufficiently proximate relationship as there is with a deprivation of liberty with a suspect or an accused. However, the Supreme Court of Canada and the Ontario Court of Appeal appear to have accepted that victims and their families may sue for a breach of duty of care as a member of the public in the discharge of an officers’ statutory duties. [Wellington, para. 53; Rivard, paras. 38-42]
The Impugned Paragraphs
Paragraph 1(j) and the Style of Proceedings
[24] The plaintiffs have conceded that paragraph 1(j) should be struck and that there be an amendment to the style of proceeding. Hence, there is no contest to the striking of paragraph 1(j) and amending the style of proceeding.
The Remaining Paragraphs
[25] In viewing the remaining paragraphs, I keep in mind that the allegations in the Claim must be accepted to be correct, and must be generously read as a whole.
[26] In this light, the Ontario Court of Appeal accepted the statements of the Divisional Court in Rivard and quoted McCarthy J.:
To strike a pleading because the facts as alleged are not encased in rich enough detail would unfairly hamper many wronged plaintiffs from ever getting out of the starter’s box. This is especially the case where, as here, much of the evidence to be elicited in support of the allegations against the Chief and the Board (internal policies, investigations, officer records, training manuals, course materials) are likely in the exclusive possession of the Defendants. That “evidence” may not be routinely available for public viewing and may not be divulged to the Plaintiff prior to the discovery process. It is hardly fair to brand a broadly worded allegation as a mere fishing expedition or dismiss it as bald and conclusory when the prospective tortfeasor has exclusive possession over the documents and evidence which would support the pleading. In the absence of those documents and that evidence, it would be exceedingly unfair to expect a plaintiff to advance anything but broadly stated allegations. [Rivard, para. 51]
[27] Nonetheless, the pleading must be sufficiently detailed for the defendant to know the what, when, and why of the claim. That is, they must have enough information to understand the claims made against them and be able to sufficiently answer those claims.
[28] The plaintiffs in the Claim have referenced the PSA and the Highway Traffic Act (HTA).
[29] In submissions, the plaintiffs alleged that the OPP Officers failed to comply with their statutory duties as set in the HTA and the PSA and in doing so were negligent in the execution of their duties. The PSA sets out the obligations of police officers and the Chief of Police. The HTA sets out the obligations of officers to investigate, complete and file the Motor Vehicle Collision Report (MVCR) to the Ministry of Transportation within a specified time period.
[30] However, the question for this Court to determine is if the impugned paragraphs provide sufficient detail for the defendants to know the substance of the allegations against them.
[31] In my review of paragraphs 29 and 29A, even given a generous reading, I agree with the OPP Officers that the paragraphs do not provide sufficient particulars of the substance of the allegations against them. Further, there is no distinction between the allegations of negligence or breach of duty as between Chimiski, Critelli and then Lyon.
[32] Paragraph 29A further pleads negligent investigation which as stated above is not a private duty owed by police officers to victims and their families. This paragraph appears to rely only on a private duty of care.
[33] Paragraph 51(d-h) pled, not a private duty of care, but that the OPP Officers failed to investigate a motor vehicle collision, and other failures relating to a motor vehicle accident. I cannot say given the provisions of the HTA and the PSA that these allegations are not tenable in law. This conclusion is further supported by the allegation that the OPP Officers interacted with the plaintiff, Delfin at the time of the accident.
[34] Consequently, I agree with the OPP Officers that paragraphs 29 and 29A should be struck for failing to provide sufficient particulars about the alleged breach of duty and negligence as against the OPP Officers. I do not accept that the subparagraphs in paragraph 51 should be struck.
[35] I do not accept the submissions of the OPP Officers that the plaintiffs should not be given the opportunity to amend for there is no cause of action in law. I do conclude that there may be a tenable claim against the OPP Officers in breach of a duty of care or negligence in their statutory duties as described in the PSA and HTA. Their statutory duties may provide the necessary proximate relationship that is required to create the requisite relationship. The plaintiffs should be given the opportunity to amend their Claim to sufficiently plead their allegations that the OPP Officers breached a duty of care based on statutory obligations and negligence, keeping in mind the settled law on police officers’ duties and negligence as stated above. This may very well be a novel claim which requires evidence that may be discovered as this proceeding continues.
[36] At this early stage of the proceeding and the inability of the plaintiffs to develop their case in the ordinary discovery process, I determine that it would be appropriate to provide the plaintiffs the opportunity to amend their claim accordingly. I therefore do not accept the OPP Officers’ submissions denying a right to amend. I do accept the request of the OPP Officers that the plaintiffs amend the Claim by a Fresh as Amended Statement of Claim, due to the numerous amendments already made.
[37] Concerning Economical’s Defence, I strike paragraph 10(a) for the same reasons that the paragraphs of the Claim are struck. However, similar to the plaintiffs, Economical is given the opportunity to amend their Defence, if they deem it appropriate to do so.
Disposition
[38] I make the following Orders:
(a) The allegations in paragraphs 1(j), 29 and 29A of the Claim and paragraph 10(a) of the Economical Defence are struck.
(b) The allegations in paragraph 51(d-h) of the Claim are not struck.
(c) The style of proceeding to be amended to properly name His Majesty the King.
(d) The plaintiffs have 45 days from the date of this Decision to serve and file a Fresh as Amended Statement of Claim.
(e) Economical has 30 days after service of the Fresh as Amended Statement of Claim to serve and file an Amended Statement of Defence and Crossclaim.
(f) If the parties cannot agree on costs, the OPP Officers to serve and file their submissions of costs within 21 days from the date of this Decision, and the plaintiffs will have 14 days thereafter to serve and file their submissions. The submission is to be no more than three pages, double spaced, exclusive of any bill of cost, case law, and offers to settle. All case law is to be hyperlinked in the submissions. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.
Justice P. Sutherland
Released: May 16, 2025
Appendix A
The Amended Amended Statement of Claim
29. Guillermo’s losses have been caused or contributed to by the gross negligence and misfeasance of Chimiski, Critelli and Lyon, whom in law the Crown is responsible, and the Crown itself, the particulars of which are, but not limited to, the following:
(a) they knew to, or ought to have been trained to conduct a reasonable, prudent investigation of the transport truck, and the driver accused of fleeing the scene, but failed to do so;
(b) they knew to, or ought to have been trained to take statements, which they did not;
(c) they knew to, or ought to have been trained to request a reconstruction of the accident, but did not;
(d) they knew to, or ought to have been trained to seek out and collect any available video footage, but did not;
(e) Lyons ought to, or have been trained to, supervise and direct the appropriate investigation which he did not do; and/or
(f) they conducted little or no investigation of the fleeing transport truck, which they ought to have or been trained to complete.
29A. The negligent investigation of the Crown and/or its employees have severely prejudiced the plaintiffs' ability to locate and hold responsible the transport truck resulting in damages to the plaintiffs for which the plaintiffs claim damages against the Crown and/or its employees (Chimiski, Critelli and/or Lyon).
51. Because Guillermo had a disability and/or is a visible minority, the crown defendants did not treat his injuries or account of the accident seriously, including his report that he was paralyzed, which led to the following adverse outcomes, including, but not limited to, the foregoing allegations in paragraphs 28 and 29 and the following:
(d) they failed to investigate the accident as is required in serious traffic incidents;
(e) they failed to obtain a serious collision accident reconstruction report;
(f) they failed to pursue or investigate the identity of the driver / transport truck responsible for the accident;
Economical Defence
10. Economical states that if the Plaintiffs sustained the damages as alleged in the Statement of Claim, or at all, then such damages were caused or contributed by the negligence of the OPP Defendants. The particulars of such negligence include:
(a) they knew to, or ought to have been trained to conduct a reasonable, prudent investigation of the transport truck, and the driver accused of fleeing the scene, but failed to do so;
Endnotes
[1] R.R.O. 1990, Reg. 194, as amended.
[2] S.O. 2019, c. 7, Sched. 17.
[3] R.S.O. 1990, c. F.3.
[4] Hunt v. Carey Canada Inc., [1990] S.C.R. 959, at p. 972.
[5] Sousa v. Attorney General of Ontario, 2022 ONSC 6730, at paras. 24-25.
[6] Sousa, at para. 26; Islington Village Inc. v. Canadian Imperial Bank of Commerce, 1992 CarswellOnt 368 (Ont. Gen. Div.), at para. 4.
[7] Hunt v. Carey, at p. 977. Also see Rivard v. Ontario, 2025 ONCA 100, at para. 22.
[8] McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 63.
[9] Islington Village, at para. 4; Nguyen v. Economical Mutual Insurance Co., 2015 ONSC 2646, at para. 9.
[10] Steadfast Inc. v. Dyncare Laboratories, 2019 ONSC 6626, at paras. 34-36.
[11] Hill v. Hamilton-Wentworth Regional Police Service Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 3.
[12] Hill v. Hamilton-Wentworth Regional Police Service Board, at para. 3.
[13] Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 72.
[14] Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81, at para. 26.
[15] R.S.O. 1990, c. P.15. Also, on April 1, 2024, the PSA was replaced by the Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1.
[16] Odhavji Estate, at para. 61.
[17] Hill v. Hamilton-Wentworth, at paras. 39, 45.
[18] Connelly v. Toronto (Police Service Board), 2018 ONCA 368, at para. 7.
[19] See Wellington, at para. 53; Rivard, at paras. 38-42.
[20] Rivard, at para. 51.
[21] R.S.O. 1990 c. H.8.
[22] PSA, ss. 41 and 42.
[23] HTA, s. 199; Motor Vehicle Collision Report (MCVR) Manual, Government of Ontario (2011), at ss. 0101(4) and 0322(1).