HOW TO SUE ONTARIO GOVERNMENT AND THE CROWN ATTORNEY
Leadbeater v. Ontario, 2001 28341 (ON SC)2001-09-04Ontario Supreme Court Leadbeater v. Ontario Date: 2001-09-04 Leadbeater and The Queen in right of Ontario, Attorney General of Ontario, Corporation of the Town of Port Hope, Port Hope Police Services Board, Chief of the Port Hope Police Service, Strongman, Thompson, Kelneck and Rae
Ontario Superior Court of Justice, Nordheimer J. September 4, 2001. (No. 99-CV-173665CM)
Stephen Carmen Leadbeater, on his own behalf, plaintiff.
Murray Stieber, for Corporation of the Town of Port Hope, Port Hope Police Services Board and the Chief of the Port Hope Police Service, defendants. Frank E. Walwyn, for Darren Strongman, defendant.
[1] NORDHEIMER J.:—The defendants collectively move to strike out the amended statement of claim, pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it discloses no reasonable cause of action against any of the defendants. [2] This action arises out of criminal charges of sexual assault involving a female minor that were brought against the plaintiff and lead to his being tried before a judge and jury which in turn resulted in his conviction. The plaintiff appealed his conviction. The Court of Appeal allowed his appeal, set aside the conviction and ordered a new trial. On the plaintiff’s re-trial, an order was eventually granted staying the charges against the plaintiff on the basis that the Crown had not made proper and timely disclosure of information to the plaintiff, that the failures in this regard amounted to a breach of the plaintiffs rights under ss. 7, 10(b) and 11(e) of the Canadian Charter of Rights and Freedoms and that, as a consequence, it was not clear that the plaintiff would be able to receive a fair trial if the matter was to continue. There were various times during this entire process when the plaintiff was incarcerated. [3] This action was subsequently commenced. In addition to the government defendants, there are named as defendants Darren Strongman, the investigating police officer, and David Thompson, Bradley Kelneck and Nancy Rae who were all Crown Attorneys who were involved in the prosecution of the plaintiff at various times. There are a variety [of] causes of action alleged in the amended statement of claim, the principal ones of which are malicious prosecution and breach of Charter rights. There are also claims for negligent prosecution, conspiracy to injure, fraudulent or negligent misrepresentation and deceit, intentional infliction of harm and mental suffering, breach of fiduciary duty and wrongful imprisonment. [4] The statement of claim has, to date, been amended four times. The pleading is not, to say the least, a model of clarity. It is certainly not a concise statement of the material facts without the evidence by which those facts are to be proved as required by r. 25.06(1). This is not entirely surprising given that the plaintiff is unrepresented. As I will come to later, there are clearly portions of the statement of claim that must be struck out. At the core of this motion, however, is whether there is a sufficient pleading of material facts which give rise to any reasonable cause of action keeping in mind that the statement of claim is to be read generously with due allowance for drafting deficiencies—see R. v. Operation Dismantle Inc. 1985 74 (SCC), (1985), 13 C.R.R. 287, [1985] 1 S.C.R. 441. [5] I will say here, as I did at the outset of the hearing, that I am concerned that the defendants have confused the nature of the motion that is before me for determination. It is a motion to strike out a statement of claim as disclosing no reasonable cause of action. On such a motion, the allegations in the statement of claim are taken as being true or capable of being proven unless they are patently ridiculous or incapable of proof—see Nash v. Ontario 1995 2934 (ON CA), (1995), 27 O.R. (3d) 1, 59 A.C.W.S. (3d) 1083 (C.A.). It is not a motion for summary judgment. However, in my view, the defendants, especially the Crown defendants, very much attempted to turn the motion into one for summary judgment by asserting that, if I looked at the facts as revealed by the record of the prosecution of the plaintiff, I would be satisfied that the Crown had reasonable and probable cause to both commence and continue the prosecution and that, consequently, the principal claim of malicious prosecution could not possibly succeed. [6] This confusion, in turn, created an issue as to what material I could properly consider in determining the motion. Rule 21.01(2)(b) provides that no evidence is admissible on a motion under r. 21.01(1)(b). The defendants, however, submit that r. 21.01(2)(b) is not as absolute as it may appear and, in that regard, rely on Montreal Trust Co. of Canada v. Toronto-Dominion Bank, [1992] O.J. No. 1274 (Gen. Div.) where Borins J. said, at pp. 3-4: Relying on rule 25.06(7), it is my view that a statement of claim is deemed to include any statement or documents incorporated in it by reference and which form an integral part of a plaintiff’s claim. The purpose of rule 25.06(7) is to avoid unnecessary verbosity in pleading and, therefore, it is not expected, or required, that a plaintiff will reproduce the provisions of an agreement or other document, upon which it must rely to establish its claim. The second reason is that the agreements are not, in my view, evidence within the meaning of rule 21.01(2). In my opinion evidence is intended to encompass affidavits, transcripts of the evidence of a witness taken under rule 39.03 or other extraneous documents not referred to in the statement of claim and which would be appropriate, for example, to a motion for summary judgment under rule 20. Trendsetter Developments Ltd. v. Ottawa Financial Corporation (1989), 33 C.P.C. (2d) 16 (Ont. C.A.) is an example of a case in which the court improperly considered evidence on a rule 21.01(1)(b) motion. Because a motion under rule 21.01(1)(b) challenges the facts alleged on the face of a statement of claim, or, more accurately, the statements alleged in the statement of claim, when a statement of claim sufficiently pleads documents within the requirement of rule 25.06(7) it is necessary that the court have before it the relevant documents in assessing the substantive adequacy of the claim. In this regard it is necessary to keep in mind the distinction between a fact as pleaded and the evidence necessary to prove the fact and to remember that rule 21.01(1) is concerned with facts only, and assuming that they can be proved, whether they raise a question of law determinative of the action or fail to disclose a reasonable cause of action. Viewed from this perspective, the agreements do not constitute evidence intended to prove facts and the provisions of the agreements relied on by the plaintiffs constitute facts just as if they were reproduced as part of the statement of claim. [7] The defendants assert that, based on this authority, they can refer to considerable material from the criminal proceedings against the plaintiff including the actual charges laid, the transcripts of the proceedings and the rulings made by various judges in the course of those proceedings. I have difficulty with the scope of that submission. I note that Mr. Justice Borins was very careful to draw a line between facts on the one hand and evidence on the other. I believe that the defendants are attempting to take the conclusion in the Montreal Trust case farther than it was intended by Borins J. to go. [8] I accept the basic proposition that the court can review documents that are referred to in the statement of claim. I would also be prepared to accept, in the circumstances of this case where the criminal proceedings are referred to numerous times in the statement of claim, that the defendants would be entitled to refer to material from those proceedings for certain basic facts, such as the date that charges were laid, the exact wording of the charges, the time when the trial occurred, the result of the trial, when the appeal took place, the result of the appeal and so on. Where the matter becomes problematic is at the stage where the defendants say, for example, that I can have reference to findings made by a judge in the criminal proceeding to conclude that any given cause of action cannot possibly succeed. For example, it was urged upon me by Mr. Bell that if I reviewed the ruling made by Mr. Justice MacDougall that lead to the stay of the charges, I would be able to determine from that ruling that the prosecution was commenced and continued with reasonable and probable cause because it was based, among other things, on the statements of the complainant and her mother that were never recanted. Mr. Bell proceeds from this assertion to then submit that the plaintiff cannot meet the four-part test for malicious prosecution set out in Nelles v. Ontario 1989 77 (SCC), (1989), 42 C.R.R. 1, [1989] 2 S.C.R. 170 (specifically the third and fourth components of the test) and therefore, no reasonable cause of action for malicious prosecution is made out. [9] It is at this point that I fear the matter transgresses from a motion to strike the pleading into a summary judgment motion. I am of the view that, with the exception of basic factual matters of the type to which I have referred, it is not proper to have reference to other evidence on a motion such as this for the purpose of trying to establish that the plaintiff’s claim has no chance of success. On the contrary, I must look solely at the pleading and determine whether the necessary facts are pleaded to support any or all of the causes of action alleged. The issue of whether those facts can successfully prove the claims alleged when confronted with other facts is a matter that must be dealt with at a later date. To do otherwise is to muddy what is otherwise a clear line between motions such as this and summary judgment motions to the obvious detriment of the plaintiff. This point is aptly made by Dambrot J. in Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 where, in commenting on an observation of Carthy J.A. in Prete v. Ontario 1993 3386 (ON CA), (1993), 18 C.R.R. (2d) 291, 16 O.R. (3d) 161 (C.A.), Dambrot J. said, at para. 23: But I take his comment to be a rejection of the notion that on a motion brought under Rule 21, the Court can look beyond the pleadings and conclude, based on an examination of evidence led on the motion, that the claim is factually hopeless. I intend, therefore, to keep my consideration of this motion to the narrow focus which is contemplated under r. 21.01(1)(b). MALICIOUS PROSECUTION AND CHARTER CLAIMS [10] I now turn to a consideration of the various causes of action alleged in the amended statement of claim. First, and foremost, is the claim of malicious prosecution. I earlier referred to the four-part test in Nelles v. Ontario, supra, in which Mr. Justice Lamer set out the elements that must be proved to succeed in an action for malicious prosecution at p. 20 C.R.R., pp. 192-93 S.C.R.: There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution: (a) the proceedings must have been initiated by the defendant; (b) the proceedings must have terminated in favour of the plaintiff; (c) the absence of reasonable and probable cause; (d) malice, or a primary purpose other than that of carrying the law into effect. [11] The defendants assert that there are insufficient material facts pleaded by the plaintiff to sustain a claim for malicious prosecution with respect to the third and fourth parts of the test. I do not agree. While there is a great deal in the statement of claim that ought not to be there, one can glean from the statement of claim that the plaintiff makes the following material allegations: (i) there was a failure to disclose information to the plaintiff in the course of his criminal proceeding; (ii) the failure to disclose the information was intentional; (iii) the intention in failing to disclose the information was to harm the plaintiff; (iv) the undisclosed information was known to the defendants to be material, relevant and “to a large part” exculpatory; (v) the undisclosed information, if disclosed, would have established that there was no reasonable or probable cause for the charges; (vi) the defendants did not have an honest and reasonable belief in the guilt of the plaintiff as evidenced by the hiding of the original complaint, the ongoing withholding of proper disclosure, the suppression of the Snowden investigation and prosecution and the suppression of the Fisher allegations; (vii) the direct result of these actions of the defendants was that the plaintiff was subjected to a protracted prosecution, was incarcerated for periods of time, was physically and emotionally harmed, suffered a loss of income and is now subject to a stigma and loss of reputation as a consequence of the actions of the defendants. I should mention that Snowden and Fisher were two individuals against whom the same complainant made allegations of sexual assault in the same time frame as at least some of the allegations were made against the plaintiff. It is pleaded that Snowden pled guilty to the resulting charges, that Fisher was never charged and that the existence of these events was never disclosed to the plaintiff. [12] In my view, if each of these allegations could be established at a trial, then it would be open to a trial judge to conclude that there was malice present in the course of the prosecution of the plaintiff. I base this conclusion on the findings made by the Court of Appeal in Oniel v. Marks 2001 24091 (ON CA), (2001), 80 C.R.R. (2d) 90, 195 D.L.R. (4th) 59 (Ont. C.A.) as to the type of evidence that can constitute malice as that term is used in the context of a malicious prosecution claim. In that case, Borins J.A. for the majority said, at p. 81 D.L.R.: Although the prosecutor may have reasonable and probable cause to commence a prosecution, if the prosecutor obtains information which suggests that the person probably did not commit the offence, or recklessly disregards advice that such information could be obtained through routine investigative steps, the prosecutor lacks reasonable and probable cause to continue the prosecution, and malice may be inferred. [13] Later in Oniel at p. 86 D.L.R., Borins J.A. quotes with approval from the decision in Watters v. Pacific Delivery Service Ltd. (1963), 42 D.L.R. (2d) 661, 2 C.C.C. 62 (B.C. S.C.) and then said, at p. 86 D.L.R.: Watters is therefore helpful in reinforcing the fact that the police have the training and experience to investigate a possible offence impartially and with skill and in that process to assess whether the evidence justifies invoking or continuing the criminal process. The police have the professionalism to critically weigh and test the reliability of complainants and information provided by them which might be affected by the self-interest or ill will of the complainant. Thus, as Watters holds, the failure of a police officer to make adequate inquiries before charging a person, or continuing a prosecution, may constitute malice. [14] Considerable emphasis was placed by the defendants, especially the Crown defendants, on the need to “weed out meritless claims” in order to safeguard Crown Attorneys from needless harassment in the performance of their duties. While I am conscious of that need, two points need to be kept in mind. One is that a motion under Rule 21 is not the only method by which meritless claims can be weeded out. Summary judgment motions under Rule 20 are at least an equal, if not more effective, remedy for that purpose. It must be remembered that there are very important differences between motions under these two rules. As Carthy J.A. observed in Prete v. Ontario, supra, at pp. 170-71 O.R.: There is no difference that I can see between the Rule 20 test of no genuine issue for trial and the test suggested by Weiler J.A. of “no chance of success” or “plain and obvious that the action cannot succeed”. Applying those tests under Rule 21 to a pleading undermines the purpose of Rule 20, and also avoids the safeguards under Rule 20 of having sworn testimony from both sides to assure the court that there truly is no issue for trial In the present case that would include testimony from the defence to demonstrate that the defendants had no knowledge which could constitute a basis for an allegation that they improperly advanced the prosecution. I would therefore permit the pleading to stand. (emphasis added) [15] The other point that must be kept in mind, which is referred to in the above quotation, is that there are inherent risks in striking out an action at the pleading stage when there is no sworn evidence before the court. That is why it is said that the power to strike out a claim on a Rule 21 motion ought to be used sparingly and only in the clearest of cases. On this point, I believe it is worthwhile repeating the oft-quoted passage from Madam Justice Wilson’s decision in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273, where she said, at p. 980 S.C.R.: Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C., O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff’s statement of claim be struck out under Rule 19(24)(a). (emphasis added) [16] In response, the defendants rely on the decision in German v. Major reflex, (1985), 39 Alta. L.R. (2d) 270, 20 D.L.R. (4th) 703 (Alta. C.A.) where Kerans J.A. said, at p. 713 D.L.R.: I agree with the learned chambers judge that it is impossible for German to win this suit because the judgments in the criminal case support the conclusion, beyond any reasonable doubt, that his criminal prosecution was reasonably justified. It is, in short, plain and obvious that German’s action will not succeed. I note that in the course of his decision, Kerans J.A. refers to the fact that the procedure under Alberta Rule 129 includes what he refers to as “hopeless-fact” cases where, if the court concludes that the plaintiff’s chances of proving the facts as pleaded is hopeless, then the action can be struck out as disclosing no reasonable cause of action. One reason for this approach may well be that the procedure of a summary judgment motion was not available in Alberta. In any event, the procedure in Ontario under r. 21.01(1)(b) does not go so far. The Court of Appeal for Ontario has adopted what I consider to be a narrower test, that is, whether the facts are patently ridiculous or incapable of proof. In so doing, I believe that our approach leaves the issue of whether the plaintiff has any reasonable chance of success as one to be dealt with under Rule 20 by way of a motion for summary judgment—an approach, I might add, which Kerans J.A. seemed to agree was the preferable way of dealing with such issues. [17] The defendants also rely on certain cases where the court has struck out such a claim on a Rule 21 motion as evidencing the approach they urge me to take. They refer in particular to Osborne v. Ontario (Attorney General), [1996] O.J. No. 2678 (Gen. Div.), appeal dismissed [1998] O.J. No. 4457 (C.A.), Lemcke v. Ontario, [1999] O.J. No. 2588 (S.C.J.) and, most recently, Wilson v. Toronto (Metropolitan) Police Service, supra. The difficulty with attempting to draw a general approach from these cases is, of course, that they each depend very much on their own particular facts and, for the most part, on the specific contents of the pleading that was before the court. It can equally be noted that there are cases where such motions have failed. One example is McTaggart v. Ontario reflex, (1991), 6 O.R. (3d) 456, 30 A.C.W.S. (3d) 648 (Gen. Div.) in which, like the case before me, it was alleged that the Crown withheld exculpatory evidence. Consequently, I do not find that these other cases help me greatly in determining whether the specific pleading before me does or does not disclose a reasonable cause of action. [18] I must also address the submission made on behalf of the Crown defendants that there is a different and higher standard for a pleading of malicious prosecution when one is dealing with Crown Attorneys as opposed to police officers. The Crown defendants contend that the quotation that I set out in para. 12 above, from Oniel v. Marks et al., supra, regarding prosecutors and reasonable and probable cause, insofar as it may broaden the basis for an allegation of malicious prosecution, refers only to police officers and not to Crown Attorneys. The Crown defendants refer to Wilson v. Toronto (Metropolitan) Police Service, supra, where Mr. Justice Dambrot said, at para. 63: I note that the use of the word ‘prosecutor’ in this quotation from Oniel means the person who commenced the prosecution, and not Crown counsel. The Crown defendants then assert that the narrow scope for the liability of Crown Attorneys set out in Nelles v. Ontario, supra, remains unchanged by the decision in Oniel. [19] I do not agree with the contention of the Crown defendants on this point. While I appreciate that in Oniel there were no Crown Attorneys who were named as defendants, I do not believe that that fact alone necessarily requires a restrictive reading of the decision of Mr. Justice Borins so that it would apply only to the role of police officers as “prosecutors”. I see no principled reason why it should be read so restrictively. I also do not read the decision of Mr. Justice Dambrot as saying that it should be so restrictive. While he clearly finds, in the above quotation, that the use of the term “prosecutor” referred only to the police and not to Crown counsel, Mr. Justice Dambrot also stated, a few paragraphs earlier in his decision, at para. 56: As will be seen shortly, it may be that where Crown counsel recklessly disregards advice that information suggesting that the accused probably did not commit the offence could be obtained through routine investigative steps, he or she is fixed with knowledge of those facts. This is, of course, exactly the same wording that Mr. Justice Borins uses in the subject quotation regarding “prosecutors” so it appears that Mr. Justice Dambrot was prepared to consider that it was possible that the same principle could be applied to Crown Attorneys. I also note that, for the purposes of his decision, Mr. Justice Dambrot proceeded on the basis that the principle would encompass Crown Attorneys. [20] I will say that I see no reason why the principle should not be equally applicable to Crown Attorneys as to police officers. If a Crown Attorney receives information which suggests that the accused probably did not commit the offence, or if a Crown Attorney were to recklessly disregard advice that such information could be obtained through routine investigative steps, why should it not be open to a trier of fact to infer malice on the part of a Crown Attorney in such circumstances just as the Court of Appeal said that it could for a police officer (assuming that the observation of Borins J A. should be so restricted)? [21] Counsel for the Crown defendants submitted that a different result is justified by the decision in Nelles v. Ontario, supra, because a more restrictive definition of malice was used by Mr. Justice Lamer in respect of Crown Attorneys. Mr. Justice Lamer said, at p. 21 C.R.R., p. 194 S.C.R., that the requirement for malice in respect of a Crown Attorney would require a finding that the Crown Attorney “perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice”. With due respect to the contrary view, I do not see that this definition is so restrictive that it precludes the application of the principle from Oniel to Crown Attorneys. If there is evidence that a Crown Attorney has, or could routinely obtain, information that would suggest that the accused probably did not commit the offence, then it seems to me that it should be open to a trier of fact to determine whether that evidence is a sufficient basis on which to conclude that the Crown Attorney has abused his or her office, and the process of criminal justice, in continuing the prosecution. The possibility of such a conclusion being drawn does not seem out of line for persons who are to be held to “the highest standards of conduct in exercising a public trust” as stated by Lamer J. in Nelles at p. 22 C.R.R., p. 195 S.C.R. In any event, it would seem to me that this debate reveals “a difficult and important point of law” which, in and of itself, makes it “critical that the action be allowed to proceed”—see Hunt v. Carey Canada Inc., supra, per Wilson J. at pp. 990-91 S.C.R. [22] In this case, it is not alleged that the Crown Attorneys could have obtained such information. It is alleged that they had such information and failed to disclose it to the plaintiff. It may well be that it will turn out that the Crown Attorneys did not, in fact, have such information because it was never provided to them by the police. But I would require sworn evidence from the Crown Attorneys involved to that effect before I would be prepared to conclude that there was truly no issue for trial in this case and that is not the function of this motion. [23] The function here is to determine whether these facts, if they could be proved, would satisfy the requirements for the cause of action pleaded. The plaintiff was charged, put on trial, convicted, sentenced, incarcerated, then appealed, won his appeal, went back for a re?trial and ultimately had the charges stayed on the basis that the failure to make proper and timely disclosure by the Crown had rendered the charges an abuse of process. If the plaintiff can establish that all of this occurred as the result of an intentional act by one or more of the defendants, or that it resulted from a reckless disregard by one or more of the defendants regarding their obligations to an accused in a criminal proceeding, it would be open to a court to infer malice in such circumstances. As a result, I conclude that the necessary elements for the claim of malicious prosecution are pleaded and that the motion to strike that cause of action must fail. [24] The plaintiff alleges a breach of his rights under ss. 7, 11(d) and 11 (e) of the Charter. Insofar as this claim mirrors the claim for malicious prosecution, it will stand or fall with the results of that claim but the plaintiff is nonetheless entitled to advance it. NEGLIGENT PROSECUTION [25] As is apparent from the Supreme Court of Canada’s decision in Nelles v. Ontario, supra, no claim lies for an alleged negligent prosecution as against the Crown or against Crown Attorneys. While the Supreme Court of Canada was not prepared to adopt a rule of absolute immunity for the Attorney General and Crown Attorneys, it only carved out from such a rule claims for malicious prosecution. The immunity enjoyed by the Attorney General and Crown Attorneys was not otherwise impacted. At p. 25 C.R.R., p. 199 S.C.R., Mr. Justice Lamer said: Further, it is important to note that what we are dealing with here is an immunity from suit for malicious prosecution; we are not dealing with errors in judgment or discretion or even professional negligence. [26] This result is made clear by the subsequent decision of the Court of Appeal in Thompson v. Ontario, [1998] O.J. No. 3917 (C.A.) where Osborne J.A. said, at para. 56: With respect to the claims against the three Crown attorneys for negligent prosecution, negligent investigation and false imprisonment, I think the motions judge was correct in concluding that those claims disclose no reasonable cause of action. Nelles qualified the Crown’s common law immunity from suit only to the extent of permitting actions for malicious prosecution, but not for negligence. Thus, the appellant’s claims against the Crown attorneys generally based on negligence in the performance of their duties disclose no reasonable cause of action. [27] It follows that this claim cannot, therefore, stand against the defendants, Thompson, Kelneck and Rae nor, as a consequence, can it be maintained as against Her Majesty the Queen or the Attorney General, and it must be struck out against all of those defendants. CONSPIRACY TO INJURE, FRAUDULENT OR NEGLIGENT MISREPRESENTATION AND DECEIT, INTENTIONAL INFLICTION OF HARM AND MENTAL SUFFERING [28] These causes of action can be dealt with together because they involve similar issues. The requirements for pleading such causes of action are demanding. The requirements for a pleading of misrepresentation, for example, are set out in Rahn v. McNeill 1987 2507 (BC SC), (1987), 19 B.C.L.R. (2d) 384 at p. 392, 7 A.C.W.S. (3d) 233 (S.C.); quoted with approval by Greer J. in Lana International Ltd. v. Menasco Aerospace Ltd. 1996 7974 (ON SC), (1996), 28 O.R. (3d) 343 at p. 350, 62 A.C.W.S. (3d) 1092, as follows: The pleading, even of innocent misrepresentation, must set out with careful particularity the elements of the misrepresentation relied upon, that is:
A claim arising from an alleged conspiracy must be pleaded with similar exactitude—see Normart Management Ltd. v. West Hill Redevelopment Co. 1998 2447 (ON CA), (1998), 37 O.R. (3d) 97, 155 D.L.R. (4th) 627 (C.A.) at p. 104 O.R. [29] The statement of claim does not come close to meeting these requirements notwithstanding that there have been five versions of the statement of claim offered to date. These claims must therefore be struck out. FIDUCIARY DUTY [30] There is no proper pleading for a claim of a fiduciary duty in the statement of claim. Further, and in any event, I cannot conceive how a fiduciary duty would arise in these circumstances. This claim can also not stand and must be struck out. WRONGFUL IMPRISONMENT [31] The claim for wrongful or false imprisonment is similar to that of malicious prosecution. In Linden, Canadian Tort Law, 6th ed. (1997), the author states, at p. 52: False imprisonment and malicious prosecution are available against the Attorney General or Crown prosecutors who are not immune from tort liability in respect of their prosecutorial functions. [32] Here, the facts that are pleaded in respect of the claim for malicious prosecution are the same facts which would give rise to the claim of wrongful imprisonment since the imprisonment arose from the institution of the charges and the plaintiff’s subsequent trial and conviction on those charges. If the charges were laid or the prosecution continued as a consequence of improper actions by one or more of the defendants then it is possible that the claim of wrongful imprisonment could also succeed. Since the same facts are relied upon and I have found that those facts are sufficient for the malicious prosecution claim, it follows that they are sufficient for the wrongful imprisonment claim and that claim must therefore be permitted to stand. THE NAMED DEFENDANTS [33] There are certain defendants named in this action that are not proper parties to this claim. As between Her Majesty the Queen and the Attorney General of Ontario, counsel for the Crown defendants submit that it is only the Attorney General who is the proper party as it is the Attorney General who is the person responsible for the acts of Crown Attorneys. Counsel for the Crown defendants acknowledges that the issue as to whether the proper defendant is Her Majesty the Queen or the Attorney General is a matter of debate even within the Attorney General’s office itself. Indeed, I recently had the opposite submission made to me on behalf of the Crown in another case. On this version of the argument, it is submitted that Her Majesty the Queen in right of Ontario cannot be a proper party because of s. 5(6) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 which states: No proceeding lies against the Crown under this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in the person or responsibilities that the person has in connection with the execution of judicial process. [34] With respect. I believe that this submission confuses the concept of immunity, as provided by s. 5(6), with the concept of vicarious liability. Section 5 of the statute makes it clear that Her Majesty the Queen is responsible for the tortious acts of Crown servants and agents and the definition of servant in s. 1 of the statute includes a Minister of the Crown. While Crown Attorneys are servants of the Crown, and the Attorney General is responsible for the Crown Attorneys, the Attorney General is also a servant of the Crown. One servant cannot be vicariously liable for the acts of another servant. Rather, it is at the feet of Her Majesty the Queen where the vicarious liability for acts of servants and agents of the Crown ultimately rests. Therefore, if a Crown Attorney is negligent in the performance of her or his duties, vicarious liability for that negligence attaches to the person who is ultimately responsible for their actions, that is, Her Majesty the Queen. It may be that section 5(6) can provide immunity to Her Majesty for the acts of those Crown servants notwithstanding that those acts are tortious. That fact, however, does not change the chain of liability. It simply means that when you reach the end of the chain, the immunity provision of s. 5(6) may come into play. I say may come into play because the plaintiff is challenging the constitutional validity of s. 5(6) in this action. I mention in passing that Mr. Justice Lamer in Nelles v. Ontario, supra, stated that the constitutional validity of the section was “an open question”. [35] There is no factual basis for an independent claim directly against the Attorney General. In my view, therefore, it is Her Majesty the Queen who is the proper defendant arising from any claim of vicarious liability for improper acts of the Crown Attorneys. Whether, assuming that the Crown Attorneys acted improperly, Her Majesty the Queen may claim the benefit of the immunity accorded by s. 5(6) to defeat that liability is an issue to be decided at a later date. All of the claims against the Attorney General of Ontario, as a consequence, must be struck out. [36] In a similar vein, there are three entities at the municipal level that have been named as defendants on the basis that they are vicariously liable for the acts of the investigating police officer. The issue is which of these parties is the proper defendant. The Police Services Act, R.S.O. 1990, c. P.15 sets out the responsibility of the Police Services Board in each municipality and states in s. 30(1):
The statute further states in s. 50(1):
[37] It is clear from the statute, therefore, that it is the Police Services Board that is responsible for any torts committed by a police officer and the claim against the Corporation of the Town of Port Hope and the Chief of the Port Hope Police Service must, as a consequence, be struck out. The plaintiff submits that the Chief of Police should be retained as a defendant because the Police Services Board may argue that the defendant, Strongman, was acting outside the course of his duties. Even assuming that such a contention is advanced by the Board, it would not make the Chief of Police liable for the acts of the defendant, Strongman, and it does not, therefore, change my conclusion that the action against these two defendants must be struck out. NON-PUBLICATION ORDERS [38] Before turning to the pleading itself, there is one final issue that should be mentioned. Counsel for the defendant, Strongman, points out that there are existing orders from the criminal proceedings which banned publication of the complainant’s name. The issue is then raised as to how those orders, which are still extant, should impact on this proceeding. [39] In my view, the appropriate way of responding to this issue is, recognizing that the earlier orders are still valid and in full force and effect, to ensure that in all documents filed in this proceeding the complainant is identified simply as the complainant or, if it becomes necessary to differentiate her from any other complainant, to use the complainant’s initials as opposed to her full and proper name. THE PLEADING ITSELF [40] I now turn to what should happen with the statement of claim as a consequence of my conclusions. The defendants all submitted that the statement of claim should be struck out in its entirety without leave to amend. It is not appropriate to do so given that certain causes of action have survived the defendants’ challenges. However, I also do not consider it appropriate to strike out the statement of claim with leave to amend. The statement of claim has already been amended four times and I have no doubt that if the plaintiff is permitted to amend it again there will be yet another challenge to it. Instead, I consider the appropriate course is to review each of the paragraphs of the statement of claim, indicate what portions must be struck out and then have the plaintiff deliver a fresh statement of claim containing what remains in accordance with those findings. While this involves a somewhat laborious task, it is the only way that I can see that an adequate pleading will be produced so that the defendants can file their statements of defence and the action can then move forward. I note in this regard that this is a case managed action to which Rule 77 applies and that the purpose of case management, as stated in r. 77.02, is: The purpose of this Rule is to establish a case management system throughout Ontario that reduces unnecessary cost and delay in civil litigation, facilitates early and fair settlements and brings proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding. I believe it fulfills the purpose of Rule 77 to proceed in this fashion in these particular circumstances. [41] Insofar as the reasons for striking out portions of the statement of claim are not obvious from my reasons above, I will provide my reasons for so doing below. I wish also to make it clear that in reaching my conclusions I have, where necessary, given the benefit of the doubt to the plaintiff as well as giving him very considerable latitude in his pleading. I do so because I consider it fair in the circumstances to give the plaintiff a greater allowance than I would allow to a represented party as a way of permitting the claim to move forward and because I am also firmly of the view that the defendants will know the case that they have to meet and will be able to adequately respond to it. Any further confusion or need for clarification in the statement of claim can be dealt with at the examinations for discovery, if necessary. I therefore order that the following portions of the statement of claim are struck out:
[42] The plaintiff is to prepare a fresh statement of claim in accordance with these reasons within 30 days of the date of these reasons. For greater clarity, the fresh statement of claim is to be so entitled, the title of proceedings is to be amended to remove the names of the defendants against whom the action has been dismissed, all underlining is to be removed, and the paragraphs and subparagraphs are to be renumbered so that they will be consecutive after the offending portions of the claim are removed. I recognize that despite my efforts there remains the possibility of some confusion as to the contents of the fresh statement of claim. If that turns out to be the case, the parties may arrange an appointment before me to address any such issues. [43] The defendants have, to a large degree, been successful in their motions. In accordance with the normal expectation, they are entitled to their costs. I therefore award the costs of the motions to the defendants payable by the plaintiff in any event of the cause. Application granted.
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