Court File and Parties

Court File No.: CV-21-00060093-0000
Date: 2025-02-03
Court: Ontario Superior Court of Justice

Between:
Maria Stiles, Jack Stiles, and The Estate of Peter Elie, deceased (Plaintiffs/Moving Parties)
– and –
401701 Ontario Limited, 1388010 Ontario Inc., and Amelin Property Management (Defendants/Respondents)
The Attorney General of Ontario (Non-Party/Respondent)
Toronto Police Service (Non-Party/Respondent)

Appearances:

• A. Lomaga, counsel for the Plaintiffs
• D. Green, counsel for the Defendants
• M. Ion, counsel for the Attorney General of Ontario (not appearing on the motion)

Heard: January 30, 2025
Justice: J. R. Henderson

Endorsement on Motion

Introduction

[1] This is a motion brought by the plaintiffs pursuant to rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for production of the Toronto Police Service (“TPS”) investigative records and documents regarding the death of Peter Elie (“Elie”) that occurred on May 14, 2020, at the apartment building in which he lived in Toronto, Ontario.

[2] The Attorney General submits that many of the documents requested by the plaintiffs are not relevant, and that the plaintiffs have not shown that it would be unfair to require the plaintiffs to proceed to trial without the production of these documents. Further, the Attorney General submits that the amount of time and expense that would be required to screen and produce the requested documents is out of proportion to the value of the documents.

[3] The background to the motion is that Elie was killed by Rico Harvey (“Harvey”) in the common laundry room of his rental apartment building. The defendants in the civil action are the landlord and management company of the apartment building. The civil action is based on the plaintiffs’ allegation that the defendants failed to take reasonable care to ensure that the tenants of the building were safe. In this case, it is alleged that Harvey unlawfully bypassed the inadequate security system at the apartment building and entered the common laundry room where he encountered Elie.

[4] I note that this motion includes a request for TPS to provide the plaintiffs’ lawyer with a complete copy of its unredacted police records and investigation with respect to 20 prior attendances at the apartment building that occurred between April 2015 and January 2020. In response to that aspect of the motion, TPS has agreed to provide the records for these 20 prior attendances on certain terms. Accordingly, I will order that the police records with respect to these 20 prior attendances are to be produced on the terms requested by TPS.

[5] The remaining dispute relates to the plaintiffs’ request for the complete unredacted police records and investigation with respect to the death of Elie at the apartment building. As a result of the TPS investigation, Harvey was charged with Elie’s murder. After a jury trial, Harvey was convicted of manslaughter in April 2024. Harvey’s sentencing for the manslaughter conviction has not yet been completed. Further, the Crown has brought a dangerous offender application that has not been decided.

[6] The plaintiffs’ civil action is now scheduled for trial commencing September 2025. The plaintiffs have engaged a security expert who will be preparing a report for that trial. The plaintiffs submit that the TPS records are necessary so that the security expert can prepare the report in a timely manner prior to the trial.

[7] The defendants support the plaintiffs’ request for the production of the TPS records. TPS does not take a position on this part of the motion and defers to the submissions made by the Attorney General.

Legal Principles

[8] The law with respect to the production of documents that are in the possession, control, or power of a non-party is set out in rule 30.10. In the case of D.P. v. Wagg, 71 O.R. (3d) 229, the Ontario Court of Appeal discussed the issues involved in a motion in a civil action for the production of the Crown brief and police statements regarding the related criminal proceeding. Although the request before me today is not a request for a Crown brief but rather for the TPS investigative records, I accept that the principles set out in the Wagg decision apply.

[9] There are two criteria in a rule 30.10 motion. The onus is on the moving party (the plaintiffs in this case) to show that the requested documents are relevant to a material issue and that it would be unfair to require the moving party to proceed to trial without having production of the documents.

Relevance

[10] Regarding relevance, I accept the plaintiffs’ position that the documents obtained or created by TPS in its investigation of Elie’s death are relevant to the civil action based upon his wrongful death. It is beyond dispute that the primary purpose of the TPS investigation was to attempt to determine the facts surrounding Elie’s death, including the cause of death, the nature of his injuries, the time at which he was injured, the time of his death, the identity of the person who caused his death, Elie’s activities that led up to his death, and the activities of the person who caused his death. These facts are all relevant to the allegations in the civil action.

[11] The Attorney General submits that some of the records, such as the 911 calls, the records of EMS and paramedics, and some of the photographs, are not relevant. Although the relevance of all of these documents may not be high, I accept that even the more peripheral documents may be important to the civil case. The true value of each individual document will not be known unless and until all of the documents are closely examined.

[12] For example, a 911 call about the death of a person may not on its face seem important. However, the recording of the 911 call would constitute a contemporaneous statement of a potential witness. The same comments can be made with respect to the EMS and paramedical records.

[13] Therefore, I find that the plaintiffs have shown that the requested documents are relevant to the civil action.

Fairness

[14] As to the second criterion, I adopt the comments made by Perell J. in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2014 ONSC 3513, para 131, that the onus is on the moving party to demonstrate that the information sought is more than just useful or helpful. However, I disagree that the moving party must prove that the information is necessary to the civil case, as it is very difficult to prove necessity without examining the actual documents. The standard is that the moving party must show that it would be unfair to require the moving party to proceed to trial without production of the documents.

[15] On this point, the Attorney General referred to a list of factors compiled in the case of Ontario (Attorney General) v. Stavro, 26 O.R. (3d) 39 (C.A.), para 15. I accept that some of these factors are relevant to the present case.

[16] Considering the Stavro factors, I have no difficulty finding that the documents are important to the litigation, that the non-parties do not have an interest in the civil litigation, and that the non-parties have discussed the potential for producing some of these documents with the plaintiffs prior to the motion.

[17] The Attorney General’s main submissions on this point is that most of these documents are already accessible to the plaintiffs as many of the documents had been made exhibits at the criminal trial. In addition, the Attorney General submits that the plaintiffs could obtain transcripts of the testimony of the witnesses who were called at the criminal trial, and thus production of the TPS witness statements is not needed. Because the requested documents and investigative records are available to the plaintiffs through these other sources, the Attorney General submits that the plaintiffs have not established that it would be unfair to the plaintiffs if a rule 30.10 order was not made.

[18] In my view, the exhibits and the recorded evidence from the criminal trial would be helpful to the plaintiffs, but production from those public sources alone would not be adequate to meet the fairness standard. For example, transcripts of a witness’s testimony at trial are not necessarily as complete or accurate as the witness’s statement given to a police officer on the evening of the death of the subject person. Further, photographs or video recordings that were introduced at the trial would not encompass all of the investigation of the security system that is the subject of the civil action.

[19] Therefore, I find that it would be unfair to the plaintiffs if they were required to proceed to trial without full disclosure of the records and documents of the TPS. That is, it would be unfair if the production to the plaintiffs was restricted to production of only those records that were publicly available.

Proportionality

[20] Finally, I have considered the proportionality issue. The Attorney General correctly states that the requested documents must be screened before they can be produced. I accept that if any of these documents are to be produced, a Crown official must screen the documents for potential privilege, confidentiality, and any other ineligibility.

[21] However, as discussed in Wagg at para. 53, society has an interest in seeing that justice is done in civil cases as well as in criminal cases. The fruits of the investigation done by TPS are not the property of the Crown for the Crown’s sole use in prosecuting the criminal case. Thus, both civil and criminal proceedings may benefit from the TPS investigation.

[22] In my view, where evidence about an incident has been collected by a public body such as TPS, the principles of proportionality suggest that the evidence should be made available to plaintiffs who are pursuing a civil action arising out of the same incident. There would be a needless waste of time and expense if the plaintiffs were required to duplicate the investigation that had already been conducted by TPS. The work required to screen the documents is far less than the work required to repeat the investigation.

[23] Generally, justice will be done when the parties are given the opportunity to put all relevant evidence before the court in the civil action. Therefore, once the criteria in rule 30.10 have been established, the requested documents are producible unless there is a prevailing public interest in the case that overrides the public interest in promoting the administration of justice through full access of the litigants to relevant information. No such prevailing public interest exists in this case.

Conclusion and Order

[24] In conclusion, I find that the plaintiffs have established the two criteria set out in rule 30.10. Further, I find that the Attorney General has not established that there is a reason to override the public interest in promoting the administration of justice through full access to the documents.

[25] Therefore, I hereby order:

1. The Toronto Police Service shall provide the plaintiffs with a copy of its complete police records and investigation, including but not limited to officers’ notes, witness statements, witness names and contact information, 911 call logs and recordings, police reports, field notes, and photographs with respect to the death of Peter Elie within 60 days.

2. Prior to the release of these records to the plaintiffs, the Attorney General will be permitted to screen the records and remove or redact any material that the Attorney General believes cannot be produced.

3. If any material is removed or redacted before production, the Attorney General will inform the plaintiffs in general terms of the nature of any such material and the reason for the removal or redaction.

[26] With respect to costs, the plaintiffs are the successful parties on this motion and therefore are entitled to costs. Because the Attorney General was engaged in its public duty as a guardian of the public records, I will reduce the costs otherwise payable. Therefore, I order that the Attorney General pay the costs of the plaintiffs fixed at $2,500 all-inclusive payable within 60 days.

J. R. Henderson

Released: February 3, 2025