Reasons for Decision
Court File No.: CV-18-00610493-0000
Date: 2025-05-15
Ontario Superior Court of Justice
Between:
Haytham Elzayat, Plaintiff
and
Toronto Police Services Board, Defendant
Heard: January 6, 7, and 8, 2025
Counsel:
Plaintiff: Self-represented
Defendant: Timothy Carre and Aisha Hussain
Judge: G. Dow
Introduction
1The plaintiff, Haytham Elzayat, claims damages from the defendant, Toronto Police Services Board (improperly referred to in the title of proceeding as Metropolitan Toronto Police), for alleged misconduct arising from his being arrested and charged with assault on October 17, 2016, and April 15, 2017. Despite the matter proceeding as a summary trial, with evidence in chief tendered by affidavits, the parties agreed the trial was not proceeding under Rule 76 – Simplified Procedure, particularly with regard to the monetary limit under Rule 76.02(1)2.
2There were 15 Exhibits marked over the three days of the trial. Haytham Elzayat was the only witness called as part of the plaintiff’s case. I raised with him my concerns that this would result in evidence upon which he intended to rely being hearsay. His evidence consisted of an original affidavit, sworn March 5, 2024, which attached various “exhibits” (not to be confused with the Exhibits tendered and marked at the trial and shall be referred to in these Reasons as “items”). There was also a second, Supplementary Affidavit, sworn December 15, 2024, by Haytham Elzayat which referred to four documents (items Z, Y, K, and J as contained in Exhibit 7), being medical records that detailed the plaintiff’s health issues between 2015 to 2024.
3The defendant called two police officers directly involved in the arrest of October 17, 2016, being (now) Sergeant James Makhlouf and Police Constable Neil Crossley. I found their affidavit evidence and answers to questions under cross-examination to be straightforward and credible.
4In addition, three police officers directly involved in the arrest and booking on April 15, 2017, gave evidence: Constables Paul Frias, Nikola Ciric, and Chelsea Bolland (then Chelsea Brown). I found their affidavit evidence and answers to questions under cross-examination also to be straightforward and credible.
5The evidence tendered at the trial included video and audio recordings created by the defendant in the conduct of its contact with the plaintiff and, apparently, another tenant, David Boxembaum, while living at 2654 Lakeshore Blvd. West where the key events of October 17, 2016, occurred. As with text messages from this and another individual (items C and E of Exhibit 7), counsel for the defendant did not object to the material the plaintiff wished to rely upon being marked as Exhibits, conceding the fact of their existence but opposing the use of the material for the truth of its contents.
6The specific causes of action being alleged as stated in paragraph 14 of the Amended Statement of Claim, December 10, 2018 (Trial Record, tab 2) were:
a) failed to serve/defend, attend, respond to emergency calls;
b) negligence of duty;
c) improper investigations;
d) misleading, unlawful/false arrest and detention;
e) breach/violation of Charter rights; and
f) discrimination in investigating and processing the arrest.
Background Facts
7From the documents tendered and oral evidence, Haytham Elzayat was born in Egypt, July 25, 1984. He came to Ontario in or about 2010 after obtaining a Bachelor of Science: International Business from the University of New Brunswick in 2005 (Exhibit 9 – plaintiff’s resume). Haytham Elzayat was involved in a motor vehicle accident on March 31, 2014, which resulted in him being assessed by Dr. Rawkins, psychiatrist (Item Z in Exhibit 7), on December 15, 2015. Haytham Elzayat complained of being depressed. That report also detailed his identifying (at bottom of page 2) “financial stress, and notes that he has not been employed since 2014 and does not feel that he could work at this time.” He was also being assessed for possible asthma. The diagnosis was (at page 4) “Major Depressive Disorder, single episode, mild to moderate, with anxious distress.” Dr. Rawkins appeared to have some concerns about the veracity of what he was told by the plaintiff, stating he “wondered aloud with him if there were aspects of either his experience or his desired outcome from assessment that he was not openly sharing, but he denied this.” He was prescribed anti-depressant medication.
8The medical evidence tendered (part of Item K to Exhibit 7) also included the first two pages of a psychiatric consultation report dated June 1, 2023, authored by Dr. Frank Frantseva, a staff psychiatrist, and Shelly Munro, a nurse practitioner, both at the Canadian Mental Health Association, which described Haytham Elzayat as on “ODSP since 2016.” Haytham Elzayat’s evidence at trial was his application was not approved until 2017 and payments were retroactive. This compared to his resume (Exhibit 9) noting employment as a “Project Lead” with Phillip Morris International between May to September, 2016. It was Haytham Elzayat’s evidence this work was only taking a few hours per week and allowed for him to collect ODSP.
9Haytham Elzayat was also seen by Dr. Duckworth, psychiatrist, January 26, 2016 (Item S of Exhibit 7), regarding anxiety and depression following the March 31, 2014, motor vehicle accident. This report also states that he has been “unable to work” since that accident.
10Finally, there was cross-examination on clinical notes from Dr. Mendez-Fernandez between September 20 – October 5, 2016 (Item FF of Exhibit 7). Haytham Elzayat described this doctor as his family physician. The notes detail the ODSP claim being processed and the need for the plaintiff to use Cipralex (an anti-depressant) that had been prescribed daily rather than “qod” (which is every other day).
October 17, 2016 Incident
11Haytham Elzayat appeared to begin renting a (bed)room at 2654 Lakeshore Blvd. West from the landlord, Pedro Pimental, in or about August, 2016 (Item U of Exhibit 7). With that came conflict and calls to the police which were summarized by police records (Item R of Exhibit 7) indicating the landlord was accessing Haytham Elzayat’s personal space. The records begin October 10, 2016. The contact with the police continued until October 17, 2016, with Officers Makhlouf and Crossley being dispatched around 1:30 pm in response to calls from both Haytham Elzayat and Pedro Pimental of an altercation between them. Haytham Elzayat also requested and an ambulance was dispatched.
12Upon the arrival by the investigating police officer (working in plain clothes), the ambulance was already there attending to Haytham Elzayat. Officer Makhlouf described his initial contact with Haytham Elzayat as being argumentative and not giving straight answers. That evidence was not undermined in any substantive way in cross-examination. Further, the paramedics advised Officer Makhlouf that the plaintiff “did not require medical attention but that he was demanding be transported to the Hospital” (Exhibit 12, paragraph 11). The ambulance departed the scene with Haytham Elzayat.
13The officers continued their investigation by speaking to Pedro Pimental and his spouse, Qiu Li Wang, who gave them a statement as to what occurred. Pedro Pimental advised he was switching rooms with one of the other tenants who was scared to be upstairs because of Haytham Elzayat’s behaviour and, while doing so, Haytham Elzayat blocked his way. When Pedro Pimental attempted to pass through, he was kicked and then grabbed on his arm and scratched.
14The landlord’s spouse attempted to intervene with Haytham Elzayat pushing her in the chest and grabbing her arms, scraping her on her left arm below the elbow. Pursuant to police procedure, the officers made notes and prepared an occurrence report (Item BB of Exhibit 7).
15Officer Crossley’s evidence was that his investigation mirrored that of Officer Makhlouf. This included Pedro Pimental and his spouse attending at the station where photographs of their apparent (minor) injuries were taken (Item P of Exhibit 7).
16The officers attended at St. Joseph’s Hospital where Haytham Elzayat had been transported. He was observed standing outside. After confirming he was done at the hospital, Officer Makhlouf placed Haytham Elzayat under arrest for assault. He was transported to the police station and processed.
17The evidence at trial included tendering the video (of 5 minutes and 29 seconds) showing portions of that process. Having reviewed that video, I observed and find nothing occurred in the conduct of the police which raised any concern about police conduct. Haytham Elzayat was asked if he was a Canadian Citizen (and not of any other country).
18During the video, Haytham Elzayat exhibited an inability to easily or promptly recall his medical health condition or medication.
19Haytham Elzayat obtained a surety to secure his release. However, that individual rescinded his security, subsequently resulting in Haytham Elzayat being detained again while another surety was secured. The charge was withdrawn after Haytham Elzayat agreed to enter into a peace bond not to remain or return to 2654 Lakeshore Blvd. West or have contact with the landlord or spouse.
20Haytham Elzayat’s concern over his treatment includes the investigating officer’s failure to have the details of his earlier complaints with them upon arrival. In cross-examinations, both officers explained that the information provided to them was over the radio (as opposed to any computer data that could be accessed on a computer screen). This appears to have been as a result of them being in plain clothes. Further, the officers explained their primary need to attend and investigate what was being complained of that gave rise to the request that they attend. I find that they did so.
21Haytham Elzayat also relied on text messages between he and Raymond Todaro (Item C of Exhibit 7). This individual apparently resided downstairs at 2654 Lakeshore Blvd. West. The initial texts between these two was under the date of October 9, 2016, and appears to deal with internet service at the home. The next exchange of texts was under the date December 5, 2016, and deals with problems each was having with the landlord. This was an extended series of exchanges and included use of the Landlord Tenant Board to pursue said complaints.
22What also appears to be relevant is Haytham Elzayat’s texts to Raymond Todaro on that date that he was looking for an “assault injury lawyer” and “seeking damages need personal injury lawyer.” This is relevant to the defendant’s position that this claim, having been issued December 10, 2018, was commenced more than two years after Haytham Elzayat was aware of his cause of action and is thus barred under Section 5 of the Limitations Act, 2002, SO 2002, c 24.
April 15, 2017 Incident
23It would appear Haytham Elzayat moved to a room at 13 Artisan Place, North York at the beginning of April 2017 (Item 1 of Exhibit 7 – email April 2, 2017 and Item V of Exhibit 7). The conflict began with the landlord, Jingfang (Jane) Xu (Item CC of Exhibit 7), within days. This included Haytham Elzayat’s evidence of another tenant complaining of his failure to clean up the shared bathroom after using same. Further, Haytham Elzayat testified of an incident where the landlord ran after him with a knife so he went outside towards his car where he was aware of video cameras recorded activity. This was reported to the police who attended and reviewed the video but did not charge the landlord. As with the October, 2016 incident, the contact with the defendant was summarized by them beginning April 9 with Haytham Elzayat complaining the landlord was stealing his tires to his vehicle. There were also incidents summarized on April 11 and April 12, 2017. The closing comment on April 12, 2017 (item R of Exhibit 7 at page 6) is “Spoke with all parties, dispute only, no new criminal allegations … LL attempted to return rent and have Tenant move out, tenant became argumentative. All parties cautioned to keep the peace and referred to LLTB and Sheriff’s office.”
24The incident on April 15 has both the landlord and Haytham Elzayat contacting the police as of about 7:50 pm. Haytham Elzayat advised the landlord has punched him (19:49:37). The landlord advised she had been pushed (19:52:13).
25Officers Frias and Bolland were dispatched to investigate and arrived at 19:58. Their evidence was being advised by a female that answered the door that she was the tenant who had complained to the landlord that Haytham Elzayat had used the bathroom and not cleaned up. The landlord then went to speak to Haytham Elzayat and she observed Haytham Elzayat push and spit on the landlord before going back in his room and closing the door.
26At this point Haytham Elzayat emerged from his room “and began yelling that he was the one who called the police and that we should not be talking to the Witness” (paragraph 9 of Exhibit 14). The officers next spoke with the landlord, Jingping (Jane) Xu, who had wet marks on her light blue sweater. The officers’ efforts to speak with Haytham Elzayat was met with a demand to speak to the Staff Sergeant which was attempted but did not occur. Haytham Elzayat was advised his version of events “did not match up with what the Landlord or the Witness” (paragraph 15 of Exhibit 14) had told them. Haytham Elzayat “became very angry and belligerent” (paragraph 15 of Exhibit 14). Officer Frias obtained statements from the landlord and other tenant, each of whom agreed to attend the police station. With that evidence, Officers Frias arrested Haytham Elzayat for assault and transported him to the police station. The video of Haytham Elzayat’s booking was played at the trial. I find it shows Haytham Elzayat acting uncooperatively. I find the police conduct was firm but professional.
27This included a Level 3 search conducted off camera. Officer Ciric gave evidence that Haytham Elzayat “was very argumentative” (paragraph 7 of Exhibit 15) as noted in the video. The balance of this officer’s affidavit (paragraphs 12 to 14 of Exhibit 15) detailed how the search was conducted. That evidence was not challenged on cross-examination.
28Haytham Elzayat referenced the inclusion of his “Country of Birth” and “Citizenship” in the General Occurrence Information Document (Item CC of Exhibit 9) as relevant and important to his claim. I understood this to be a basis for him being discriminated against and a violation of his Canadian Charter of Rights and Freedoms. This may have been a result of the document also noting, on the second page, his being a Canadian Citizen. I also clarified at the conclusion of his evidence that all of this information was accurate. That is, Haytham Elzayat was born in Egypt. He is a citizen of Egypt and was not required to relinquish that citizenship upon becoming a Canadian citizen.
29The second charge of assault was also withdrawn upon Haytham Elzayat’s agreement to enter into a peace bond not to return to 13 Artisan Place or have contact with the landlord (fifth page of Item CC of Exhibit 7).
30During his cross-examination, Haytham Elzayat was referred to his examination for discovery evidence, taken March 3, 2023, at pages 65-67, questions 182-187. This evidence was read into the record as part of the defendant’s case. It detailed what occurred between Haytham Elzayat and his landlord Jingfang (Jane) Xu on April 15, 2017. This includes his statement, under affirmation to tell the truth, at the end of question 184, that he “spit on her.” Haytham Elzayat attempted to resile from that admission on the basis English was not his first language and that he had confused the meaning of the word “on” with that of “at.” His version of events at trial was that he spat in the direction of, but did not strike, Jingfang (Jane) Xu.
31I reminded Haytham Elzayat of his obligation under Rule 31.09 of the Rules of Civil Procedure to correct answers previously given at an examination for discovery and he confirmed saying that correction had not occurred before the trial. I do not accept this evidence, first made under cross-examination at the trial, to be credible. Further, it gives me doubt about accepting any of Haytham Elzayat’s evidence where it conflicts with evidence from some other source. I prefer and find to be credible and accurate the investigating officers’ observations of wet marks on Jingfang (Jane) Xu’s light blue sweater.
Issue – Limitation Defence, October 17, 2016 Incident
32The defendant submitted the above-described awareness by Haytham Elzayat of his claim for damages arising from police conduct on October 17, 2016, should be barred by the two-year limitation for commencing a claim, the plaintiff not having done so until December 17, 2018.
33Section 5 of the Limitations Act, 2002 was relied on along with Haytham Elzayat’s texting, believed to be made December 5, 2016, to Raymond Todaro that he was seeking a personal injury lawyer to advance a claim. That section does set out parameters for the discovery of a claim and subsection 2 which places the onus on the plaintiff of showing that it was not on the day the events that the action was based upon, occurred. In this regard, the reasons in Winmill v. Woodstock Police Services Board, 2017 ONCA 962 assist. In that action, the plaintiff commenced his action for damages arising from an alleged battery more than two years after the incident occurred but less than two years after the criminal charges against him were disposed of. The conclusion of the majority of the Court of Appeal was “a logical inconsistency in asking a civil court to rule on the propriety of a criminal prosecution before the criminal court has had the opportunity to assess the merits of the underlying charge” (at paragraph 32).
34In this matter, it is not contested that the assault charge of October 17, 2016, was not resolved until after December 10, 2016. As a result, this defence fails.
35The alternate submission whether Section 7 of the Limitations Act, 2002 applies, need not be addressed. This was the plaintiff raising his medical condition stopped running of the limitation period. Should it have been required, I would have found that none of the medical evidence tendered raised the plaintiff’s psychological condition to be at a level that he was incapable of managing his own affairs and specifically this litigation. I agree with the analysis and requirements set out in Bell v. Long, 2022 ONSC 1929 (at paragraph 47).
Issue – Duty of Care
36While this is how Haytham Elzayat described his claim in his written submissions, I propose to address it as including the Statement of Claim allegations of failed to serve/defend, attend, respond to emergency calls and negligence of duty. The plaintiff utilized what I would describe as a broad reliance on basic tort principles. The first tort principle is whether the defendant owed him a duty of care. The analysis intertwines with the claim of negligent investigation, to be reviewed below.
37The criteria at law was reviewed in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (at paragraphs 27 and 45).
38The first requirement is whether the proximity between the police officer and the suspect can give rise to the requisite duty. It concluded, as do I, there was a sufficiently close proximity to give rise to a duty at law. Further, no broad policy exists to negate that duty or requirement.
39I find this leads to what duty is owed. Unfortunately, no evidence, particularly expert evidence, was led to establish the duty required to be met. Haytham Elzayat relied on portions of Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497 (at paragraphs 34 and 47) where the trial judge noted this general rule has exceptions for cases involving non-technical matters within the knowledge and experience of the trier of fact. It should be noted those reasons conclude the trial judge was in error and on this point as the trial judge had failed to address the authority being relied upon (Meady v. Greyhound Canada Transportation, 2015 ONCA 6) and had a ‘wealth of other evidence available to him with respect to the police policies, procedures and standards that applied at the time” (at paragraph 48).
40As a result, that duty was stated to be and I rely on the broad principles set out in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (at paragraph 3) being “how a reasonable officer in like circumstances would have acted.” In this regard, Haytham Elzayat raised the history between he and his landlord, particularly the calls made to the defendant in the days preceding the events which led to his arrest, being charged and processed with his subsequent release on bail.
41I find the officers acted reasonably and met the required standard of care. They attended on the scene at the request of, in both instances, Haytham Elzayat and his landlord at that time. The officers began an investigation as detailed above. While they did not have all of the information available to them of the circumstances leading up to the investigation to be conducted by them, I find they acted reasonably. In both instances, they had information not only from the purported victim but another individual/witness who described the events in a similar manner.
42Haytham Elzayat raised, that in the October 17, 2016, incident the other individual/witness was the landlord’s spouse, and that there was some evidentiary bar to considering the information that individual provided. I disagree. While section 4 of the Canada Evidence Act, RSC 1985, c C-5 raises limitations as to whether a spouse can be compelled to testify for the prosecution, it does not prevent a spouse from responding to a police officer’s investigation.
43Regarding the prior information available, while it would have been informative, it would not have vitiated the information obtained of an assault as defined in Section 265 of the Criminal Code, RSC 1985, c C-46. That section defines assault to include the application of force or “attempts or threatens, by an act or a gesture to apply force to another.” Further, as noted in the cross-examinations of one of the officers, the prior contact had been investigated and was not the subject of or should be reinvestigated upon that officer’s arrival at the scene.
44Finally, returning to Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (at paragraph 3): “the law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably.” I find that the police officers involved acted in a reasonable manner and as other officers should have in these circumstances. Haytham Elzayat’s claims under this cause of action are dismissed.
Issue – Negligent Investigation
45This includes the plaintiff’s claim of improper investigation, misleading unlawful/false arrest and detention. Haytham Elzayat relied on Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497 (at paragraph 60) for the requisite legal principles which I would summarize to be:
a) the standard of care is that of the reasonable police officer in similar circumstances;
b) the standard of care is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence;
c) this standard does not require the involved police officer to establish a prima facie case for conviction;
d) the investigating officers are not required to evaluate the evidence to a legal standard; and
e) the involved officers are not required to exhaust all possible routes of investigation or inquiry or interview all potential witnesses prior to arrest or obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.
46In this matter, there was, as relied on by Haytham Elzayat, his contact and complaints to the police about the conduct of each landlord in the days before the arrests on October 17, 2016, and April 15, 2017. It is clear it forms the essence of his belief that he was wrongfully arrested and charged on each occasion. I accept that Haytham Elzayat has a very different version of what occurred than what formed the reasonable and probable grounds for the investigating police officers to arrest and charge him after each occurrence. However, given my concerns about Haytham Elzayat’s credibility and the veracity of his evidence, as detailed above, I find and prefer the evidence tendered by the police officers employed by the defendant.
47This is reinforced by the absence of any other witness attending court to give evidence (and be cross-examined) which would corroborate Haytham Elzayat’s version of events. It is further reinforced by the fact any notes made of the events at or shortly after the events occurred were made by the investigating officers and I find, in combination with the demeanor and viva voce evidence of the officers, to be more reliable.
48With regard to the October 17, 2016, incident, the investigating officers developed and achieved reasonable and probable grounds to believe the assault by Haytham Elzayat had occurred with the statement not only of the landlord but another individual (admittedly his spouse). These consistent versions of what had occurred were supported by scratches and an abrasion observed by the officers as attested to in the photographs (Item P of Exhibit 7).
49This was not a situation where other potential witnesses, such as David Boxembaum, came forward at the scene and volunteered their observations to the investigating officers. As noted in the legal principles summarized above, the law does not require the investigating officers “to exhaust all possible routes of investigation.”
50Similarly, with regard to the incident on April 15, 2017, the investigating officers had not only the information obtained from the landlord but also of another tenant (admittedly a possible adopted child of the landlord). These consistent versions of what occurred were supported by the officers’ observation of wet marks on the light blue sweater of the landlord. Again, the investigating officers were not required to exhaust all possible routes of investigation in meeting the legal standard of reasonable and probable grounds to believe Haytham Elzayat had committed the offence.
51Haytham Elzayat relied on statements in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 citing a phrase from paragraph 41 of that decision of the police “duty to investigate in accordance with the law.” As previously detailed, I find that occurred in each instance.
52Haytham Elzayat also relied on a phrase in paragraph 76 of Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 of the “failure to make proper records of events and interviews with witnesses.” To the contrary, in each incident, the investigating officers took notes of information obtained from the complainant and another witness along with further personal observations of scratches and wet marks which they recorded by photographing same. I find that activity met the legal principle required to establish reasonable and probable grounds to believe Haytham Elzayat had committed the offence of assault.
53Finally, Haytham Elzayat maintained that he was “always polite and co-operative” (paragraph 38 of Haytham Elzayat’s written submissions). I disagree based on both the observations as noted by the investigating officers and my review of the videotape of his booking on April 15, 2017, played during the trial.
54An issue was raised whether the resulting peace bond in each instance was termination of the investigation in favour of Haytham Elzayat. It was raised as part of determining if a claim for negligent investigation could succeed. The most recent statement of the law to which I was directed appears to be Bagha v. Toronto Police Services Board, 2018 ONSC 4748 (at paragraph 41) which summarized various decisions on the issue and concluded that “peace bonds may, but not necessarily will, defeat the claims of malicious prosecutions and negligent investigation.” Given my conclusion, the officers employed by the defendant had the requisite reasonable and probable grounds, it is not necessary for this issue to be determined.
Issue – Breach of Charter Rights
55While this claim was not detailed by Haytham Elzayat in oral submissions, his written submissions included Section 8 of the Canadian Charter of Rights and Freedoms which protects individuals from unreasonable search or seizure. Given the evidence tendered at trial of the Level 3 (strip) search of Haytham Elzayat following his April 15, 2017, arrest, the video of his booking and the evidence of officer Ciric, who conducted the search, I find no breach occurred. No evidence was tendered as to the appropriate and proper circumstances or required policy or procedure to be followed. The evidence at trial was the staff sergeant (Jeffrey Taylor) who was present at the booking made that decision following Haytham Elzayat not answering questions and demanding to know why he was being arrested (after being told same). The reason given for the Level 3 search (as contained in the video) was to ensure Haytham Elzayat had no weapons.
56The search was carried out as described by Officer Ciric in his affidavit and cross-examination and was not contested or undermined by any other evidence. I find Haytham Elzayat’s behaviour in the station, in the absence of any evidence of a breach of police policy or procedure, warranted the Level 3 search.
57The plaintiff’s claim, presumably advanced under Section 24 of the Charter, as part of a claim for pecuniary and compensatory damages is dismissed.
Damages
58Despite finding the plaintiff’s claim cannot succeed, it is my duty to assess damages that would have been awarded had the claim succeeded.
59Regarding non-pecuniary damages, Haytham Elzayat did not lead independent evidence nor tendered any viva voce evidence of specific physical injury aside from an asthma attack on October 17, 2016. Despite his transport to hospital by ambulance, no ambulance attendant nor hospital records for that date was tendered. This undermines any claim of significant injury with an inference that same did not occur.
60The medical records that were tendered go back to 2015 and describe a minor head injury with a depressive disorder following a motor vehicle accident on March 31, 2014. There is also a subsequent motor vehicle accident in 2017 with alleged exacerbation of injuries. Aside from self-described “worsening mental health” (item K of Exhibit 7), there is no diagnosis or relating Haytham Elzayat’s health issues to his arrest and detention for assault on the two specified occasions.
61The medical records indicate an inability to work following the March 31, 2014, accident and there is the plaintiff’s evidence of a successful application for Ontario Disability Support Payments (“ODSP”).
62Regarding pecuniary losses, Haytham Elzayat raised the charges as having undermined his ability to obtain employment. This first requires his being fit to work. The only evidence tendered in this regard are two emails dated October 27, 2016, and October 28, 2016 (Item F at Exhibit 7), which do not support what is being claimed. To the contrary, they appear to be confirmation of job interviews with no evidence or details as to the outcome. They also support the plaintiff was not working at the time of the first arrest and, as a result, did not suffer any loss of income.
63Haytham Elzayat submitted that he was detained for a total of 11 days arising from both charges (paragraph 61 of Haytham Elzayat’s written submissions). However, he also submitted, without evidence to confirm same, that in his last employment before the incident giving rise to his claim that he was earning at or in excess of $75,000 per year. Haytham Elzayat relied on the threat of serious harm while in custody (paragraphs 58 through 67 of his written submissions) in his own assessment of the results of those incidents.
64Given my conclusion about his credibility, I do not agree these claims have been substantiated or can be assessed beyond a nominal level.
65Counsel for the defendant submitted that, in the event of any liability rested on the defendant, the claim ought to be assessed in the range of $2,500 - $5,000. The case law provided suggested arrest and detention for 11 days should attract a higher assessment which I fix at $15,000 for both pecuniary and non-pecuniary claims and including prejudgment interest.
Conclusion
66The action by Haytham Elzayat is dismissed.
Costs
67During the trial, the parties were requested by me to prepare and exchange their claims for costs in the event each was successful as part of closing submissions. I received same from the defendant. Haytham Elzayat requested additional time which I granted to January 10, 2025. No materials were uploaded to Case Center or forwarded to me by that date.
68I was also advised no Rule 49 Offers to Settle were made that would require consideration.
69The defendant’s Bill of Costs sought $54,160 for fees using hourly rates for counsel in the range of $240 - $290 per hour. The involved lawyers were between 2009 to 2020 years of call. No additional amounts were sought, such as for HST or disbursements.
70I raised the quantum of hours being of concern and was advised this matter did not proceed to trial as scheduled on March 24, 2024, on direction from the Civil Trial Team Leader. I was subsequently advised by court staff this occurred as a result of the parties' failure to have filed a Trial Record. The time preparing for the earlier trial date appears excessive. As a result, mindful of the principles set out in Rule 57.01 and the discretion afforded to me under section 131 of the Courts of Justice Act, RSO 1990, c C.43, I fix costs payable by Haytham Elzayat to the Toronto Police Services Board at $45,000, inclusive of all fees, HST and disbursements, payable in the next 30 days.
G. Dow
Released: May 15, 2025