Hardy v Rumancik, 2021 ABQB 484

Court of Queen’s Bench of Alberta Citation: Hardy v Rumancik, 2021 ABQB 484 Date: 20210623 Docket: 1601 15910 Registry: Calgary Between: Jacob Hardy Plaintiff - and - Candace Rumancik, also known as Candace Hardy, also known as Candace Mantai, Constable Joel Rumancik, Constable Jason Schneider, Constable Steven Hopper, Sergeant Doug Crippe and Roger Chaffin as Chief of Police of the Calgary Police Service Defendants _______________________________________________________ Endorsement of the Honourable Mr. Justice W.P.

Sullivan _______________________________________________________ Introduction [ 1 ] The Plaintiff, Jacob Hardy, is suing the Defendants for conspiring against him, for malicious prosecution, for unlawful arrest and for unlawful confinement. He also alleges malfeasance in public office, breach of privacy and finally, negligent investigation. As a result of all of these allegations, he claims that he has been damaged and harmed by the Defendants. Mr.

Hardy seeks numerous remedies as listed in his claim. [ 2 ] The Statement of Defence denies all the claims and denies that the Plaintiff has suffered any harm as a result of the actions of the Defendants in the execution of their duty.

Request for More Disclosure [ 3 ] The Plaintiff requests further and better disclosure from the Defendants and states in his brief that there is a “reasonable likelihood the Plaintiff, Jacob Hardy, [Hardy] will prove that he should never have been charged with perjury and there were no substantive or objective grounds for police to believe that any such offense had been committed by him”.

[ 4 ] Specifically, the application before me as case management judge states that Mr. Hardy is seeking the following relief: 1. An order for a further and better affidavits of records, and to forthwith produce relevant and material records relating to each of: (

i) Chief of Police of the Calgary Police Service [CPS]; (ii) Constable Jason Schneider [Cst. Schneider]; (iii) Constable Joel Rumancik [Cst. Rumancik]; and (iv) Candace Rumancik [Candace]; [collectively the Respondents] 2. An order for penalties to be paid to Hardy pursuant to Rule 5.12 and to the Court pursuant to Rule 10.49; and 3. Costs of the application on an enhanced scale. [ 5 ] The Plaintiff claims that in support of his demand, the Defendants should produce further relevant and material records. There are two main categories of records relating to the action which are sought by Mr. Hardy.

He outlines these in paragraph 12 of his brief, “...CPS directives, policies, procedure, and training records [CPS Policy Records]; and Social media, telephone, text, email, and other personal relationship records as between Cst. Schneider, Cst. Rumancik, Candace and Giselle Caballero (Personal Relationship Records). [ 6 ] In reply to the demand by Mr. Hardy, the Defendants have agreed to the following with respect to the first category of records: With respect to the CPS Policy Records, the Defendants do not agree that the CPS policy records requested are necessarily relevant and material to the triable issues.

However, the Defendants will withdraw their objection to producing the policies requested. Accordingly, in addition to the Arrest Release Detention Policy, the Plaintiff has requested CPS policies concerning investigations, charging and reporting, obtaining Crown opinion/pre-charge approval, conflict of interest, note taking, disclosure and ethical conduct. Those topics are addressed in the following policies which are being produced: a. Notebooks policy; b. Authority and Jurisdiction policy; c. Reporting Procedures policy; d. Conduct Discipline (Sworn) policy; and e. CPS Member Investigations policy. [ 7 ] Mr.

Hardy has also requested, as part of the second category of records, the production of social media, telephone, text, email and other the “Personal Relationship Records” as between the Defendants. In response to that demand, counsel for the Defendants has stated that “with respect to personal communication records, the Defendants take the position that the records sought are not relevant and constitute an improper fishing expedition”. [ 8 ] In his brief, Mr. Hardy states, “The first step in determining relevance is to examine the issues, generally within the context of the pleadings.

A record should be produced if it is relevant and material.

A record is relevant and material if it could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings; or to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings... “Relevant” refers to the issues in the pleadings and “material” refers to whether the information can help, directly or indirectly, prove a fact in issue....”. [ 9 ] The key with respect to this claim is whether the information demanded, or requested, can help directly or indirectly prove a fact in issue.

I accept that this is the matter that I must decide regarding Mr. Hardy’s application. Is the information that is requested, the Personal Relationship Records, helpful? [ 10 ] In this case, Mr. Hardy alleges that the records are known to exist and I accept that that is accurate. Many of the records, if not all, that Mr. Hardy seeks with respect to determining the state of mind of the litigants, exist. The best evidence of this is his affidavit sworn on December 4, 2020, wherein he files as Exhibit “C” to this Affidavit, his Notice to Admit Facts to Constable Jason Schneider.

I am satisfied that the Notice to Admit Facts is an exhibit that goes both ways and in particular demonstrates the existence of the material that Mr. Hardy wishes to have produced. His Affidavit also includes the reply of Constable Schneider to the Notice to Admit Facts. [ 11 ] Mr. Hardy claims that Constable Schneider’s failure to comply with his duties of disclosure provides further basis to justify the order for disclosure and production of the Personal Relationship Records, which he now seeks.

He states that the concealment of the conflict of interest is strong circumstantial evidence of malice; in his brief, Mr. Hardy describes the nature of the relationship and friendship between the Defendants. [ 12 ] The Defendants begin their reply brief with a review of the necessary legal requirements to prove a conspiracy.

They start with Murphy Oil v Predator Corp , 2006 ABCA 69 , which states at paragraph 87, “Additionally, an inference that defendants entered into an agreement to injure the Plaintiff or commit an unlawful act may only be drawn where the facts do not fairly admit of any other inference: Nicholls ”. In Nicholls v Richmond (Municipality) , [1983] BCWLD 243 ; 1984 CarswellBC 87 (B.C.S.C.) , the case referenced to in Murphy Oil , the Court explained the rationale behind the principle at paragraph 40:

Such an agreement can be proved by direct evidence. But it may also be inferred if the facts justify its inference on the basis of the following test set out by the Lord Chancellor in Sweeney v. Coote , [1907] A.C. 221 at 222 (H.L.) : In such a proceeding [i.e., where civil conspiracy is alleged] it is necessary for the plaintiff to prove a design, common to the defendant and to others, to damage the plaintiff, without just cause or excuse. That, at all events, it is necessary to prove. Now, a conclusion of that kind is not to be arrived at by a light conjecture; it must be plainly established.

It may, like other conclusions, be established as a matter of inference from proved facts, but the point it is not whether you can draw that particular inference, but whether the facts are such that they cannot fairly admit of any other inference being drawn from them . [ 13 ] On the question of conspiracy and the request for evidence regarding personal communications, the Defendants say that “as a matter of public policy people are allowed to report crimes” and they go on “similarly, a police officer who investigates a complaint of a criminal act cannot be considered to be in a conspiracy with the one who brought the complaint.

Police officers have a duty to enforce the criminal law: R. v. Beaudry, [2007] 1 .S.C.R. 190(S.C.C.).” The Defendants continue “an officer’s duty to enforce the criminal law includes investigating allegations of criminal activity...and because the Defendants were friends is not an inference that they formed an agreement to act for the primary purpose of injuring the Plaintiff”. [ 14 ] Important in this decision, and on the facts of this case, is that the some of the Defendants were friends, socialized together and had a significant friendship.

This is well known and admitted by the Defendants as a fact in this litigation. The Defendants’ brief clearly states “in essence the Plaintiff seeks production of records to prove a fact that has been admitted”. [ 15 ] The Defendants have agreed to produce all the information requested in this application, aside from the Personal Relationship Records.

It is therefore not necessary for me to deal with the other aspects of the Plaintiff’s request but to simply deal with one question: Production of the Personal Records as identified at the opening of this endorsement. [ 16 ] As I indicated above, the clearest evidence of the nature of the material sought is from the Notice to Admit Facts filed by Mr. Hardy, and served on Constable Jason Schneider. Much of the personal history and relationship of the Defendants, as seen on social media, is well known to Mr. Hardy. It introduces into this application, evidence of the family law dispute between Mr.

Hardy and his ex- wife Candace Rumancik and her new family. [ 17 ] It goes on in significant detail about the personal relationship between the Defendants, which again, is admitted and not denied. The Notice to Admit Facts alleges that the Defendants’ friendship continued even after the perjury investigation commenced. Again admitted. I have little doubt that Mr. Hardy knows the information he demands be produced. Decision [ 18 ] I am satisfied that the production of the large volume of personal communication, as demanded by the Plaintiff, will not assist in the proper prosecution of this action.

Rather, it will likely impair the proper progress of this matter to trial, allowing for irrelevant, extraneous and collateral matters to unnecessarily hinder or delay arriving at the truth of the facts. [ 19 ] Therefore, the application is dismissed with respect to Mr. Hardy’s demand for the production of the Defendants’ Personal Relationship Records. Heard on the 19 th day of November, 2020. Dated at the City of Calgary, Alberta this 23 rd day of June, 2021. W.P. Sullivan J.C.Q.B.A. Appearances: Mr. Michael Bates For Jacob Hardy Mr. Douglas Merchant For the City of Calgary