Court File and Parties

Court File No.: CV-21-3000

Date: October 2, 2025

Superior Court of Justice – Ontario

Re: Walter Garrick, Wilfred Garrick, and Jordan Faulkovsky, Plaintiffs

And: Halton Police Board, Sergeant Boyce, Detective Constable Lindsay Murray, Detective Constable Jessica Osgood, Constable Amanda Allsop, Constable Walsh, Constable Jaworski, Officer John Doe #1, Officer John Doe #2, Michael Krog, and Jane Doe, Defendants

Before: Justice Ranjan K. Agarwal

Counsel:

Walter Garrick, acting in person
Wilfred Garrick, acting in person
Jordan Faulkovsky, acting in person
Samantha Bonanno, for the defendants Halton Police Board, Detective Constable Lindsay Murray, Detective Constable Jessica Osgood, Constable Amanda Allsop, Constable Walsh, and Constable Jaworski (together, the Police defendants)
Samantha Bonanno, for the responding parties Officer Matthew Proulx, Officer Dan Pinkney, Officer Bowes, Officer Forde, Officer Blanchard, and Officer Vander Heyden
Michael Krog, acting in person
No one appearing for the defendant Sergeant Boyce
No one appearing for the responding party Sara Nielsen
No one appearing for the responding party Ekaterina Latour

Heard: In Writing; Supplementary submissions heard on September 10, 2025

Endorsement

I. INTRODUCTION

[1] The plaintiffs sue the defendants for tort damages from an alleged trespass and police assault in Fall 2021. I'm designated to hear all motions in this proceeding.

[2] This parties have brought several motions in writing:

(a) the plaintiffs move to amend their statement of claim to add or substitute Officer Corey Bowes, Matthew Proulx, Daniel Pinkney, Officer Forde, Officer Blanchard, Officer Vander Heyden, and Sara Nielsen as defendants to the action;

(b) the plaintiffs move to examine for discovery a non-party, Ekaterina Latour; and

[3] For the reasons discussed below:

(a) the plaintiffs are granted leave to amend their statement of claim to substitute Bowes, Pinkney, and Nielsen as parties;

(b) Krog's counterclaim is discontinued, with costs of $2500 for the counterclaim and $2500 for the motion payable on or before October 31, 2025; and

[4] The other relief sought by the parties is dismissed.

II. BACKGROUND FACTS

[5] The plaintiff Jordan Faulkovsky owns an undeveloped property in Milton. He alleges that people often trespass on his property and have vandalized the buildings with hate speech. He called the police in early 2020 but, according to him, they didn't do anything and downplayed the hate speech.

[6] On August 2, 2021, Krog and his wife (who we now know is Nielsen) were on the property for a picnic. Faulkovsky confronted them. Krog and Nielsen left. A few minutes later, Faulkovsky passed Krog and Nielsen on the road. One of Faulkovsky's passengers got out of the car. Krog and Nielsen complained to the police that the passenger threatened them with a gun.

[7] Throughout August, the police investigated the complaint. In September 2021, the police searched the home of the plaintiffs Walter Garrick and Wilfred Garrick for a gun. Faulkovsky happened to be there. The plaintiffs allege that the police used undue force during the search and subsequent arrest of Faulkovsky and Walter. The charges were withdrawn in October 2021.

[8] In November 2021, the plaintiffs sued the Police defendants in tort and for breaches of their rights under the Canadian Charter of Rights and Freedoms and the Human Rights Code. They also sued Krog and Jane Doe (because they didn't know Nielsen's name at the time) for conspiracy, malicious prosecution, and defamation.

[9] Krog and the Police defendants served statements of defence in December 2021. Krog counterclaimed against the plaintiffs.

[10] In January 2022, Krog changed lawyers. The plaintiffs changed lawyers in January 2023.

[11] The Police defendants served their documentary discovery on the plaintiffs on March 9, 2023. The documentary discovery included memo book notes from Forde, Blanchard, Vander Heyden, Bowes, Pinkney, and Proulx.

[12] The plaintiffs were examined for discovery in September 2023. Krog was examined in April 2023.

[13] In January 2025, the plaintiffs became self-represented. In July 2025, Krog became self-represented.

[14] Nielsen and Latour aren't parties to this action but they are responding parties to the plaintiff's motions. Neither of them responded to the plaintiffs' motions.

III. ANALYSIS AND DISPOSITION

A. Issue #1: Should Bowes be substituted for Officer John Doe #2?

[15] At any stage of a proceeding the court may by order substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. See Rules of Civil Procedure, r 5.04(2). A party may amend the party's pleading on filing the consent of all parties and, where a person is to be added or substituted as a party, the person's consent, or with leave of the court. See Rules of Civil Procedure, r 26.02.

[16] Where the plaintiff intended to name a particular defendant and that defendant knew they were the target of the claim, the court may permit an amendment to correct a misnomer or misdescription, even after the limitation period has expired. See Ormerod v Ferner, 2009 ONCA 697, at para 21.

[17] The plaintiffs move to substitute Bowes for Officer John Doe #2. The Police defendants and Bowes consent to the substitution. Krog didn't take a position on this issue.

[18] Given that no one opposes this relief, I endorse an order that the plaintiffs may amend their statement of claim to substitute Bowes for Officer John Doe #2 in the title of proceedings and paragraphs 1, 11, 31, 32, 44, 46, and 66.

B. Issue #2: Should Officer John Doe #1 be substituted for Pinkney or Proulx?

[19] The plaintiffs allege that Officer John Doe #1 committed assault and battery, and is liable for general and punitive damages:

One of the masked individuals was Officer John Doe #1. Officer John Doe #1 instructed Walt to exit the Garrick Home with him. Walt agreed and asked if he could put on his shoes. Suddenly and without warning, Officer John Doe #1 slammed Walt in the head with his shield. Walt fell to the ground in shock and with a concussion.

Officer John Doe #1 then placed Walt's left hand behind his back and his knee on Walt's right shoulder blade, pinning Walt to the ground. Officer John Doe #1 then began to tase Walt repeatedly and aggressively in the back and neck while Walt's face was against the floor. Officer John Doe #1 tased Walt twelve times in total. Each time Officer John Doe #1 tased Walt, it caused a painful and visible injury to Walt's body.

At no point was Walt resisting Officer John Doe #1. There was no reason for Officer John Doe #1 to apply any force, much less the brutalizing acts of torture he inflicted on Walt while Walt lay prone on the floor. Walt sustained serious and permanent injuries as a result of this assault and battery. Walt's head was also busted open.

[20] In addition, the plaintiffs sue all the "Officers" for abuse of power, negligent investigation, wrongful arrest, trespass, intrusion upon seclusion, breach of the Code, and breach of the Charter. The plaintiffs also sue all the defendants for conspiracy.

[21] The plaintiffs move to substitute Pinkney and Proulx for Officer John Doe #1. The plaintiffs propose to substitute Proulx for Officer John Doe #1 in paragraph 28 and Pinkney for Officer John Doe #1 in paragraph 29. In paragraph 30, they propose to substitute Pinkney and Proulx for Officer John Doe #1. The plaintiffs also seek leave to amend their claims in paragraphs 28 to 30.

[22] The Police defendants, Pinkney, Proulx, and Krog consent to Pinkney being substituted for Officer John Doe #1. But they oppose Proulx being "co-substituted" with Pinkney.

[23] Proulx admits that he "used the shield to make contact with [Walter] in an attempt to pin [him] against the wall." Pinkney admits that he used his taser on Walter's back multiple times in a "drive stun mode".

[24] The Police defendants concede that "Officer Proulx contacted Walter Garrick with his shield and Officer Pinkney deployed his taser when Walter Garrick refused to comply with his commands." They acknowledge that the pleading amalgamates Proulx and Pinkney. But they argue that since the plaintiffs only named "Officer John Doe #1" as a defendant, only one of Proulx or Pinkney can be substituted for that defendant. The plaintiffs respond, in submissions, that they didn't know that there were two officers involved in the take-down and tasering because Walter's face was on the floor. Walter didn't give any evidence on this motion.

[25] I agree with the defendants. Officer John Doe #1 is a single, unique defendant. As a result, only one of Proulx or Pinkney can be substituted for him. The rule governing misnomers and the rule governing amendments shouldn't be conflated. See Mazzuca v Silvercreek Pharmacy Ltd. (2001), 56 OR (3d) 768 (CA), at para 26. Further, the plaintiff's submission could be used to circumvent the expiry of a limitation period, which doesn't apply to misnomers but does apply to amendments. See Loblaw Properties Limited v Turner Fleischer Architects Inc., 2018 ONSC 1376, at para 13.

[26] As a result, I endorse an order that the plaintiffs may amend the statement of claim to substitute Pinkney for Officer John Doe #1 in the title of proceedings and paragraphs 1, 11, 28, 29, 30, 44, 45, and 66. I discuss whether Proulx should be added to the statement of claim below.

C. Issue #3: Should Nielsen be substituted for Jane Doe?

[27] The plaintiffs sue Jane Doe for malicious prosecution, defamation, and conspiracy. They allege that:

Doe is Krog's wife or girlfriend
on August 3, 2021, Doe and Krog were trespassing, and Faulkovsky confronted them
Doe told the police that Faulkovsky's passenger "brandished a firearm" at them

[28] The plaintiffs move to substitute Nielsen for Jane Doe. The Police defendants and Krog don't oppose the motion. Nielsen's position is harder to discern but, ultimately, she didn't oppose the motion.

[29] At examination for discovery, Krog was asked to produce his wife's name and contact information. He refused. The Police defendants also had Krog's wife's name because she gave a statement to the police after the August 2021 incident. But the Police defendants redacted her name when they produced the statement to the plaintiffs. The Police defendants contended that they were barred from disclosing her name under the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M.56.

[30] The plaintiffs moved for a ruling on Krog's objection. I held that it was improper. See Garrick v Halton Police Board (2 July 2025), Brampton CV-21-3000 (Sup Ct). In response to my endorsement, Krog advised the plaintiffs that his wife's name is Sara Nielsen, and he produced her contact information. The mailing address he provided is a business address. Nielsen emailed the plaintiffs that the business's employees will accept service on her behalf. She also said that she consented to being served by email. I endorsed an order accordingly. See Garrick v Halton Police Board (16 July 2025), Brampton CV-21-3000 (Sup Ct).

[31] Despite the emails, the plaintiffs asserted that they are being tricked: "the defendants continued to hide the name of Mr. Krogs 'wife.' We have received the name Jael Nielsen, 'Nancy' by Mr. Krog underoath [sic] and now with the order to satisfy the undertaking by the honourable court, we have received the name at the deadline of 'Sara Nielsen'". At examination for discovery, Krog referred to his wife as Nancy—"So, if he was starting to shoot or something that Nancy would get down in the car so she wouldn't obviously get hurt".

[32] Nielsen then emailed the court, purporting to withdraw her consent to service by email. I endorsed an order that my previous order remained in effect. See Garrick v Halton Police Board (18 July 2025), Brampton CV-21-3000 (Sup Ct). Nielsen also stated her intention "of no further participation in this matter." That's not an option. As the misnomer motion was to be heard in writing, I endorsed that Nielsen's response to the motion shall be filed by August 8, 2025.

[33] Nielsen never responded to the motion. After reviewing the parties' materials, I directed a case conference to hear oral submissions on several issues. Inadvertently, Nielsen wasn't advised of the case conference but none of the issues dealt with the motion as against her. After the conference, Nielsen emailed the court to advise that:

she told the plaintiffs on July 21st and July 23rd that she didn't consent to the motion
she hasn't received any communications from the court or the parties since August 14th
she was "awaiting Your Honour's direction on how to proceed"

[34] Nielsen was served, by email, on July 23rd. She had notice of this motion and my order dated July 18th. She didn't file a response by the time limit or even late. The fact that she wasn't invited to the conference on September 10th is beside the point given that I didn't request submissions from her, and she took no position on the motion in any event. Nielsen didn't ask to me to re-open the conference so she could make submissions.

[35] After the case conference, the Police defendants produced an unredacted copy of Nielsen's statement. The name on the statement is Jael Nielsen Skomager. This disclosure has led to a flurry of emails. The plaintiffs allege that Nielsen is not the same person that gave the police a statement about the August 2021 incident. The plaintiffs "intend to seek sanctions against the co-conspirators who have deceived the court", which I infer means the Police defendants' lawyers. The Police defendants responded by asking for a case conference. The plaintiffs repeated their request for sanctions.

[36] I'm concerned that the plaintiffs are overstating the issue here:

it's reasonable that Nielsen's legal name, which she chose to use when giving her police statement, is Jael Nielsen Skomager
Nielsen's emails to the court in July 2025 contain details about the alleged incident and later events
Nielsen's email dated July 16, 2025, states that she provided a statement to the police about the August 2021 incident
when the Police defendants wrote to Nielsen asking for consent to disclose her name to the plaintiffs, she emailed "I do not consent to the release of the unredacted version of my witness statement" (emphasis in original)
Nielsen has evinced an intention to defend this claim
there are several explanations for Krog's evidence at discovery examinations—Nielsen's nickname is Nancy, Krog misspoke, or the court reporter made a mistake

[37] I discuss the plaintiffs' request for a "sanctions hearing" below. But, for the purpose of my discussion about this issue, I infer that Jael Nielsen Skomager is Nielsen's legal name.

[38] The plaintiffs intended to sue Krog's wife. They didn't know her name, and Krog and the Police defendants refused to provide it. Nielsen would have known that the litigation finger was pointing at her. Krog and Nielsen were, at the time, married and not separated, and living together. Nielsen hasn't responded to this motion to argue, for example, that she knew nothing about this lawsuit. Nielsen, acting reasonably, could only have concluded that the plaintiffs meant to sue her: she was Krog's wife, she was at the scene on August 3, 2021, and she gave the police a statement. See Ormerod, at para 12.

[39] Further, there's no evidence of any prejudice to Nielsen other than the passage of time, which was caused in part by Krog's improper refusal and the Police defendants' redaction of Nielsen's police statement.

[40] Thus, I endorse an order that the plaintiffs may amend the statement of claim to substitute Jael Nielsen Skomager aka Sara Nielsen for Jane Doe in the title of proceedings and paragraphs 4, 12, and 17.

D. Issue #4: Should Proulx, Forde, Blanchard, or Vander Heyden be added as parties?

[41] A person can't be added to an existing proceeding if the two-year limitation period in respect of a claim against the person has expired. See Limitations Act, 2002, SO 2002, c. 24, Sched. B, ss 4, 21(1). As a result, the clear expiration of a limitation period is an absolute bar to the addition of a party to an existing action. See Arcari v Dawson, 2016 ONCA 715, at para 7.

[42] As discussed above, in paragraphs 28 and 30 of the draft amended statement of claim, the plaintiffs allege that Proulx "slammed" his shield into Walter's head, and then continued to "bludgeon" him "until blood spurted halfway up the wall from his head….".

[43] In paragraph 41 of the draft claim, the plaintiffs allege that Forde and Blanchard conspired against the plaintiffs to "conduct an illegal search and arrest" and harm Walter.

[44] In paragraph 43 of the draft claim, the plaintiffs allege that Blanchard prepared Krog's statement, and then made changes to the statement (e.g., "changing the vehicle from a jeep to a Land Rover").

[45] In paragraph 60 of the draft claim, the plaintiffs allege that Vander Heyden "manufactured a false report". The report states that Krog saw a handgun both on and off the property. This fact is allegedly absent from Krog's witness statements.

[46] As these officers are all defined as "Officers" in paragraph 11 of the draft claim, the plaintiffs seek to sue them for abuse of power, negligent investigation, wrongful arrest, trespass, intrusion upon seclusion, breach of the Code, breach of the Charter, and conspiracy. In addition, the plaintiffs seek to sue Proulx for assault and battery.

[47] The plaintiffs served their motion to substitute Pinkney and Proulx on April 18, 2025. On May 16, 2025, the plaintiffs emailed a draft amended statement of claim, which added five Officer John Does as defendants. On July 18, 2025, the plaintiffs emailed a draft amended statement of claim, which added Bowes, Forde, and Vander Heyden as defendants. On July 22, 2025, the plaintiffs emailed another draft amended statement of claim, which added Blanchard.

[48] The Police defendants argue that the limitation period to claim against these defendants has expired.

[49] The date of "discovery" is key to assessing whether the limitation period in respect of a claim has expired. See Morrison v Barzo, 2018 ONCA 979, at para 28; Limitations Act, ss 4, 5. The plaintiffs are presumed to have discovered the claim on the day the act or omission on which the claim is based took place, unless the contrary is proved. See Limitations Act, s 5(2).

[50] First, the court must make a finding as to when the plaintiff first knew the elements of the claim listed in s 5(1)(a) (i.e., date of actual discovery). The plaintiffs have the burden of proving when the claim was actually discovered. The plaintiffs don't have to show due diligence at this step. See Morrison, at paras 29, 31; Wilhelm Concrete v Shackelton, 2025 ONSC 3071, at paras 117-118.

[51] Second, if the date of actual discovery brings the claim within the limitation period, the defendant can argue that "reasonable discoverability" brings the claim outside the limitation period (under s 5(1)(b)). The plaintiff must offer a "reasonable explanation on proper evidence" as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold is low. The plaintiff's explanation should be given a "generous reading", and considered in the context of the claim. See Morrison, at paras 29, 32.

[52] For the purposes of this motion, the Police defendants argue that the presumptive discovery date is October 18, 2023, when the charges against Walter and Faulkovsky were withdrawn. See Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, at paras 96-98.

[53] The Police defendants concede that the plaintiffs couldn't have discovered the identifies of these officers until they had the Police defendants' productions. Thus, the Police defendants submit that the actual date of discovery is March 9, 2023, when the plaintiffs' productions were served on the plaintiffs' lawyer. As a result, they argue that the limitation period expired on March 9, 2025. Even if the service of the plaintiffs' motion record to substitute Proulx and Pinkney in April 2025 stopped the limitation clock, the claim is still out of time. See Bank of Nova Scotia v PCL Constructors Canada Inc., at para 94.

[54] The plaintiffs respond that they didn't discover their claim against Proulx, Forde, Blanchard, and Vander Heyden until January 2024, when they first reviewed the Police defendants' productions. Faulkovsky deposes that their previous lawyers didn't provide "the names or affidavit of documents containing their names" until January 2024, despite the plaintiffs' requests.

[55] I agree with the Police defendants that the plaintiffs actually discovered the claim when their lawyer was served in March 2023. The plaintiffs' lawyer was acting as their agent. His knowledge is imputed to them. This case is like Wong v Adler (2004), 70 OR (3d) 460 (Sup Ct). There, the plaintiff was rear-ended by the defendant, who had been rear-ended by a third party. Shortly after the accident, the defendant's insurer told the plaintiff's paralegal that its position was that the third party was liable. The plaintiff's lawyer had this information before he started the lawsuit. Associate Justice Dash held that the paralegal's information was imputed to the plaintiff as the paralegal was the plaintiff's agent.

[56] So too here. The plaintiffs' lawyer, and thus the plaintiffs, had the identity of the other officers in March 2023. The plaintiffs concede that the Police defendants' disclosure was sufficient to identify the alleged defendants. They had everything they needed to discover whether the plaintiffs had claims against Proulx, Forde, Blanchard, or Vander Heyden. The plaintiffs had two years to move to add these officers as parties. They say they couldn't review the documents until January 2024, but they don't say why. Moreover, that evidence is inconsistent with the fact that they were examined for discovery in September 2023. Most parties will review the productions in preparation for discoveries. If the plaintiffs didn't do that here, they don't explain why. There's no evidence from Walter or Wilfred.

[57] As the actual date of discovery was March 9, 2023, the limitation period expired on March 9, 2025. The plaintiffs didn't seek to add Proulx, Forde, Blanchard, or Vander Heyden until April 2025, which was out of time. As a result, I don't need to consider reasonable discoverability. Thus, the plaintiffs' motion to add Proulx, Forde, Blanchard, or Vander Heyden is dismissed.

[58] That said, it doesn't matter to the prosecution of the plaintiffs' claim—there was no need to name any of the officers as defendants. Under the Police Services Act, RSO 1990, c P.15, s 50, the Board is liable in respect of torts committed by members of the police force in the course of their employment. To the extent the plaintiffs are seeking accountability for what happened to them, these officers will have to testify. The plaintiffs can cross-examine them. The court will make findings of fact. Adding them as defendants doesn't change the fact that the Board will be held liable for their actions if the court finds the officers committed a tort.

E. Issue #5: Should the plaintiffs be granted leave to make their other amendments?

[59] Rule 26.01 requires the court to grant leave to amend unless:

the responding party would suffer non-compensable prejudice
the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process
the pleading discloses no reasonable cause of action

See 1588444 Ontario Ltd. v State Farm Fire and Casualty Company, 2017 ONCA 42, at para 25.

[60] Every pleading shall contain a concise statement of the material facts that the party relies on for the claim, but not the evidence by which those facts are to be proven. See Rules of Civil Procedure, r 25.06(1). The prohibition against pleading evidence is designed to restrain the pleading of facts that are "subordinate" and that "merely tend towards proving the truth of the material facts." See Jacobson v Skurka, 2015 ONSC 1699, at para 43.

[61] My disposition on the issues raised by the Police defendants is as follows:

Amended Pleading	Disposition
Para 1(a): General and aggravated damages in the amount of $5,000,000 for attempted murder, aggravated assault and battery	The plaintiffs haven't adduced any authority for the proposition that attempted murder or aggravated assault are recognizable torts. Without any authority, this claim is doomed to fail. See Atlantic Lottery Corp. Inc. v Babstock, 2020 SCC 19, at para 90. Leave is denied to amend the claim to add these causes of action.
Para 52-56: The plaintiffs allege that the Police defendants didn't provide full disclosure to them.	The Police defendants argue that these allegations are a new cause of action. I disagree. The plaintiffs are particularizing their claim for conspiracy. As a result, leave is granted to add these paragraphs.
Para 60: The Police defendants manufactured a false report, specifically Officer Vander Heyden, directed by Officer Osgood.	(See next row)
Para 72: The Officers used an unnecessary threat of force to gain entry inside the Garrick Home, and once inside administered brutal and potentially lethal force tantamount to aggravated assault at its lowest and attempted murder at its highest. The search warrant was not presented until after the brutal attack on the Family.	The Police defendants argue that the reference to "aggravated assault or murder" is scandalous, frivolous, and vexatious. The use of the words "aggravated assault" or "attempted murder" isn't scandalous. The plaintiffs are claiming that the Police defendants' actions were a more serious form of assault and that the police intended to kill them. The plaintiffs have pleaded the material facts to support this claim. Given the allegations, the use of these words isn't inflammatory. Leave is granted to the plaintiffs to amend their claim as requested. The plaintiffs, in making these statements in these paragraphs, aren't seeking to assert new causes of action.
Para 89: The defendants' conduct was intentional, excessive, and egregious. The plaintiffs are entitled to punitive and aggravated damages as (1) Officer John Doe #1 Officer Matthew Proulx, and #2 Officer Daniel Pinkney and Officer Bowes engaged in excessive use of force that is an attempted murder or maiming and/or causing serious bodily harm against Walt and Wilfred while in a position of trust and power and was assisted by the other Officers in perpetrating the assault and battery, (2) the Officers were intentionally or recklessly negligent in their investigation and arrest of Faulkovsky and Walt, and raid break in on the Garrick Home, (3) the Civilian Defendants Maliciously made the False Complaint to cause harm to the plaintiffs and deflect from their own wrongdoing.	(See above)
Para 62: The police defendants' lawyer, only after receiving photographs from the plaintiffs claimed the exacto blade was a weapon.	The plaintiffs are pleading evidence, which violates rule 25.06. The plaintiffs have claimed that the police didn't have grounds to arrest them. The basis for the police's belief is a matter for trial. Leave is denied to amend the claim to add this allegation.
Para 75: … It is unlikely this is the first time given their limited effort to cover it up. There was a comfort in their conspiracy.	This claim is a bald allegation. There are no material facts to support the claim that the officers have conspired previously. Leave is denied to amend the claim to add this allegation.

F. Issue #6: Should the plaintiffs be granted leave to examine Latour for discovery?

[62] The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action. See Rules of Civil Procedure, r 31.10(1).

[63] Leave shall not be granted unless the court is satisfied that:

(a) the moving party has been unable to obtain the information from other persons who the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

(c) the examination will not (i) unduly delay the commencement of the trial of the action, (ii) entail unreasonable expense for other parties, or (iii) result in unfairness to the person the moving party seeks to examine.

See Rules of Civil Procedure, r 31.10(2).

[64] To start, Latour wasn't served properly. A motion to examine a non-party should be served personally. For that party, the motion is an originating process in that it's the first step in a proceeding against them. The plaintiffs' motion record was left at the front door of Latour's home (though there's no evidence why the plaintiffs believe this address is her home). It wasn't left with her, or an adult member of the same household. The plaintiffs didn't mail her a copy. Latour didn't respond to the motion—maybe she didn't know about it.

[65] In any event, even if she had been served properly, I would have dismissed the motion.

[66] At examination for discovery, Krog deposed that after the August 2021 incident, the next call he made was to his "ex-wife" about an unrelated incident: "she lied to me and I had to figure something out very urgently. So, there was an emergency and, yeah." He also testified that he went to the police to report this family matter and while he was there, then told the police about the August 2021 incident: "It was after I conversed about this other situation which is family related and I was trying to get some information from them because I wasn't able to deal with them earlier because I was forwarded to Toronto." The plaintiffs find it hard to believe that Krog would report this family matter to the police before the incident, which allegedly involved a gun. They want to examine Latour about Krog's credibility: "We have several critical questions for Ekaterina Krog on his credibility which has been properly established to be absent under oath and by the evidence." They also want to question her about whether Krog uses the police to "leverage whatever position he has at any given time", his alleged involvement with "neo nazi or far right-wing groups", and "about violence".

[67] The plaintiffs can't use Latour's discovery transcript in that manner. They can't read in her evidence at trial. See Rules of Civil Procedure, r 31.10(5). They can only use it to impeach her credibility. But they can't use it to impeach Krog's credibility. Further, nothing stops the plaintiffs from interviewing Latour and obtaining her information. There's no property in a witness. See Sandhu v Wellington Place Apartments, 2008 ONCA 215, at para 78. If her evidence is relevant and probative, the plaintiffs could call her as a witness at trial.

[68] The plaintiffs also seek information from Latour about when Krog sold his home, and why. On discovery, they asked Krog to produce "a complete copy of the family law divorce proceeding records and any settlement documents", which Krog has refused to produce. I understood the plaintiffs were seeking these records in respect of Krog's counterclaim for emotional distress. I ordered Krog to produce these records if he's continuing his counterclaim. The plaintiffs have now changed their position—in any event, Krog's divorce proceeding isn't relevant to the plaintiffs' claim (which is about whether Krog manufactured a police report against the plaintiffs).

[69] As a result, the plaintiffs' motion to discover Latour is dismissed. The plaintiffs shall mail a copy of this endorsement to Latour's address so she's aware that she has been the subject of a court ruling.

G. Issue #7: Should Michael Krog's counterclaim be dismissed?

[70] Krog, who's self-represented, requests an order dismissing his counterclaim. While the Rules of Civil Procedure allow a plaintiff (or plaintiff by counterclaim) to discontinue its own action, they don't permit a plaintiff to bring a motion to dismiss it. See Iroquois Falls Power Corp. v Jacobs Canada Inc., 2018 ONCA 412, at para 17.

[71] A plaintiff may discontinue all or part of an action against any defendant after the close of pleadings, with leave of the court or at any time, by filing the consent of all parties. See Rules of Civil Procedure, r 23.01(1), 23.07.

[72] The plaintiffs don't oppose the discontinuance of Krog's counterclaim provided it's on terms. They seek "aggravated/moral damages, punitive damages". Again, I appreciate the plaintiffs are self-represented, but they can't claim damages in defence of a counterclaim. They also seek an order that the dismissal be with prejudice.

[73] The main issue is whether the plaintiffs are entitled to their costs of the counterclaim. If all or part of an action is discontinued, any party to the action may, within thirty days after the action is discontinued, make a motion respecting the costs of the action. See Rules of Civil Procedure, r 23.05(1). If a plaintiff chooses to end its claim, it faces the presumptive costs consequences. See Dubuc v 1663066 Ontario Inc. (Laurier Optical), 2009 ONCA 914, at paras 12-13.

[74] The bona fide test remains the starting point in considering costs of a discontinued action. The defendant would be entitled to costs if the plaintiff commenced the action without justification and bona fides. That said, even if the court determines that the plaintiff had a bona fide claim when it commenced the action, that wouldn't, by itself, relieve the plaintiff of the potential cost consequences of a discontinued action. Whether or not a defendant should be awarded costs on the discontinuance of an action will require a very fact-specific analysis of the circumstances giving rise to the initiation of the action and its discontinuance. See Enerworks Inc. v Glenbarra Energy Solutions Inc., 2016 ONSC 4291, at paras 14-15.

[75] At the September 10th conference, Krog asked the court to adjourn his motion. He seemed surprised that he had brought a motion returnable at the case conference. It's hard to see how that can be. The motion record has his name and email address on it. He filed an affidavit and a factum. It was returnable on September 10, 2025. He didn't provide any valid reasons for adjourning the motion.

[76] Krog bears the burden of showing that the action was bona fide. He's introduced no evidence in support of this branch of the test. Most of his supporting affidavit retells his version of the alleged incident. He doesn't seek to justify his counterclaim, which alleges that the plaintiffs' actions caused him harm. He's refused to produce any documentation to support his counterclaim because he says he's ending it. For example, there's no evidence that Krog suffered any of the losses claimed in his counterclaim. Indeed, one of the reasons for discontinuing his counterclaim is because he doesn't want to produce private information that's relevant to the counterclaim. Krog's counterclaim pleads that because of the plaintiffs' actions, he "has been forced to sell his property…." But on December 28, 2021, Krog's lawyer emailed the plaintiffs' lawyer: "…this sale was unrelated to the litigation as it was finalized to well prior to service of the statement of claim." At the case conference, Krog conceded this statement, but then argued that the lawyer that filed his defence wasn't actually his lawyer.

[77] Given Krog's failure to justify his counterclaim and the inconsistencies in his position, I find that the counterclaim wasn't started in good faith.

[78] The plaintiffs haven't filed a costs outline showing the costs of their lawyers for reviewing the counterclaim, preparing a defence, and examining on the issues raised by the counterclaim. As an exercise of my discretion, I endorse an order that Krog shall pay the costs of the counterclaim, fixed in the amount of $2500, by October 31, 2025. The plaintiffs had to incur some legal fees in dealing with the counterclaim. For example, their lawyer asked several questions about the counterclaim at discovery examinations. But the issues raised by the counterclaim are a small proportion of the issues in dispute in this proceeding. As a result, $2500, inclusive of fees and disbursements, is a reasonable, fair, and proportionate amount. See Boucher v Public Accountants Council (Ontario) (2004), 71 OR (3d) 291 (CA), at para 26.

H. Issue #8: Should any party pay the costs of these motions?

[79] Subject to the provisions of an act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. See Courts of Justice Act, RSO 1990, c C.43, s 131.

[80] In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, together with the result in the proceeding and any offer to settle or to contribute made in writing, the factors listed in Rules of Civil Procedure, r 57.01.

[81] In the usual case, costs are awarded to the prevailing party after judgment has been given. The traditional purpose of an award of costs is to indemnify the successful party in respect of the expenses sustained either defending a claim that in the end proved unfounded (if the successful party was the defendant), or in pursuing a valid legal right (if the plaintiff prevailed). Costs awards are "in the nature of damages awarded to the successful litigant against the unsuccessful, and by way of compensation for the expense to which he has been put by the suit improperly brought". See British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, at paras 20-21.

[82] The main objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant. See Boucher, at para 26.

[83] The Police defendants conceded that Bowes and Pinkney should be substituted for the John Doe defendants. They did so before the hearing but after the plaintiffs served their motion record. That's a reasonable approach to a motion like this. As a result, I don't award either party their costs on those issues.

[84] On the motion to add defendants, the Police defendants were the successful party. They seek partial indemnity costs of $2582.05, inclusive of fees, disbursements, and taxes. The time spent and hourly rates are lower than I would have anticipated. This amount is fair, reasonable, and proportionate. I endorse an order that the plaintiffs shall pay the Police defendants' costs, fixed in the amount of $2500, by October 31, 2025.

[85] The plaintiffs were successful in their motion to add Nielsen. But she didn't oppose the motion. As a result, I don't award the plaintiffs any costs for that motion.

[86] The plaintiffs were unsuccessful in their motion to examine Latour. But she didn't oppose the motion or seek costs.

[87] On the motion for leave to discontinue the claim, the plaintiffs were successful. Krog opposed their request for costs, but didn't lead any evidence to show the action was bona fide. He unsuccessfully argued for an adjournment.

[88] The plaintiffs seek $14,369 in costs. The provide an hourly rate for Walter and Faulkovsky. Walter and Faulkovsky are self-represented. Self-represented litigants may be awarded costs, but not on the same basis as litigants who retain a lawyer. Costs should only be granted where a lay litigant can show that they undertook work typically performed by a lawyer and, in doing so, incurred an opportunity cost by giving up income-producing activities. See Fong v Chan (1999), 46 OR (3d) 330 (CA), at paras 21-26. The plaintiffs also claim fees from Paula Garrick, their McKenzie Friend. Ms. Garrick is a U.S. lawyer, but she's not acting as the plaintiffs' counsel. They can't claim her costs.

[89] I endorse an order that Krog shall pay the plaintiffs' costs of the motion, fixed in the amount of $2500, by October 31, 2025. The plaintiffs undertook work that a lawyer usually performs. The materials were necessary and, to a point, helpful. They had to attend court because Krog opposed their request. This amount is fair, reasonable, and proportionate.

IV. CONCLUSION

[90] This action is floundering. I'm sensitive to the fact that many of the parties are self-represented. But the claim needs to proceed to trial expeditiously. It has been over four years since the alleged incidents.

[91] The plaintiffs and Krog shall amend their pleadings in accordance with these reasons. They shall send a copy to me by October 17, 2025, 4pm, and I'll have them issued.

[92] The amended statement of claim shall be served on all the parties, including Nielsen, by November 21, 2025. Nielsen shall deliver a defence by December 22, 2025. The plaintiffs shall deliver a reply by January 2, 2026.

[93] The parties, including Nielsen, shall serve their affidavits of documents by January 12, 2026. Any further examinations for discovery shall be completed by February 11, 2026. I encourage the parties to set aside dates for these examinations now. The parties shall use rule 34.12 for objections. The plaintiffs shall set the action down for trial March 1, 2026. This timetable can't be amended by the parties.

[94] To the extent the plaintiffs are seeking relief against the Police defendants' lawyers, they can serve a notice of motion and affidavit for that relief, stating the legal and factual grounds for the motion. Once I have the motion record, I will schedule a case conference to determine whether to schedule a hearing. There may be costs consequences if the motion is summarily dismissed because it's improper under the rules.

Agarwal J

Date: October 2, 2025

Footnotes

[1] The plaintiffs refer to a five-year limitation period—I infer they mean the time limit for setting the action down for trial. See Rules of Civil Procedure, r 48.14(1).

[2] The presumptive limitation period for some or all the other claims likely started to run on September 3, 2021. But the later date benefits the plaintiffs, so I use that date.

Garrick v. Halton Police Board, 2025 ONSC 5593

Case Summary