SR v Edmonton (Police Service), 2023 ABKB 257

Court of King’s Bench of Alberta Citation: SR v Edmonton (Police Service), 2023 ABKB 257 Date: 20230427 Docket: 2203 05132 Registry: Edmonton Between: SR Plaintiff - and - Chief of the Edmonton Police Service, Jack Meikle and Manuel Illner Defendants _______________________________________________________ Memorandum of Decision of the Honourable Justice N.J. Whitling _______________________________________________________ I. Introduction [ 1 ] In this action, the Plaintiff SR, sues the Defendants Jack Meikle, Manuel Illner, and the Chief of the Edmonton Police Service for the tort of negligent investigation.

The Plaintiff’s claim arises from her arrest and prosecution for the offences of criminal negligence causing bodily harm contrary to s. 215 of the Criminal Code , RSC 1985 c C-46 , and failing to provide the necessaries of life contrary to s. 221 . The Plaintiff was acquitted of those charges by the Hon. Madam Justice J.A.

Fagnan, then of this court, by Reasons for Judgment reported as R v SR , 2021 ABQB 771 . [ 2 ] These reasons address an interlocutory application by the Defendants for an order setting aside a Notice of Appointment served upon the Defendant the Chief of the Edmonton Police Service (“EPS”), and a cross-application by the Plaintiff for an order directing the Chief of the EPS (or his designate) to attend for questioning and to bring certain medical records to that questioning.

The Plaintiff seeks to obtain those records and to conduct this questioning as part of her response to an outstanding application by the Defendants to summarily dismiss her claim.

[ 3 ] The parties also seek procedural directions as to whether the Plaintiff’s outstanding applications to strike and to summarily dismiss the Defendants’ limitations defence ought to be heard together or separately. The Plaintiff asks that her application to strike be heard at the same time as the Defendants’

summary dismissal application, but that her application to summarily dismiss be heard separately and subsequently, if necessary. The Defendants submit that all three applications ought to be heard at the same time. [ 4 ] For the reasons that follow, the Defendants’ application is denied and the Plaintiff’s cross-application is granted. The Chief of the EPS or his designate shall attend for questioning at a mutually convenient time and place to be arranged between counsel, and shall bring the EPS’s copies of the medical records at issue to that questioning. The Plaintiff’s application to strike the Defendants’ limitations defence shall be heard together with the Defendants’

summary dismissal application, and the Plaintiff’s application to summarily dismiss the Defendants’ limitations defence shall be heard at a later time, if necessary. II. Factual Background [ 5 ] On March 6, 2017, the Plaintiff’s child was admitted to the Stollery Hospital in Edmonton. The child had lost a significant amount of weight in the several months prior to her admission. The Plaintiff had reported this weight loss to the child’s doctors on numerous occasions, and had attributed the condition to certain food intolerances which made it difficult for the child to digest food.

The theory underlying the charges was that the Plaintiff’s reports of those food intolerances were exaggerated or fabricated, and that the Plaintiff had subjected the child to unnecessary medical interventions by giving false and incomplete information to health professionals. It was further alleged that the Plaintiff had deprived her child of nutrition by interfering with certain feeding tubes that had been directed by medical professionals. [ 6 ] At the Stollery, the Plaintiff’s child was treated by a team of healthcare providers. One of the consulting doctors was Dr.

Lionel Dibden, then the Director of the Stollery’s Child and Adolescent Protection Centre. In a consultation report signed on June 16, 2017, Dr. Dibden wrote, among other things, that the child’s “state of starvation upon admission to hospital was a direct result of inadequate access to appropriate nutrition and there is no objective evidence to support food intolerance, allergy or intestinal dysfunction”. In the concluding

section of the report, Dr. Dibden wrote: In short, [the child] has shown that her previously describe[d] feeding difficulty, growth failure and elimination symptoms have been resolved by the systematic exclusion of [the Plaintiff] from her care. It is thus apparent that these prior concerns have all been the result of the attitude, actions, inactions, deceptions and distortions of [the Plaintiff] and the result of barriers to effective treatment created by her.

The clinical report of the American Academy of Pediatrics titled “Caregiver-Fabricated Illness in a Child: A Manifestation of Child Maltreatment” (Sept. 2013), the references cited in this report, my clinical judgment and my prior experience provide the substantive basis for my opinion that [the child] has been the subject of Caregiver Fabricated Illness. [ 7 ] At some point, the Edmonton Police Service became involved in the situation, and the Defendant Det. Jack Meikle was assigned to investigate. At an early stage in the investigation, he received and reviewed Dr. Dibden’s report of June 16, 2017. [ 8 ] Det.

Meikle met with Dr. Dibden and others on June 28, 2017. At that meeting, Dr. Dibden told Det. Meikle, among other things, that in preparing his report, he had relied upon certain medical records respecting the Plaintiff’s care held by seven separate health care providers, namely the Stollery, Northern Lights Regional Health Centre, Bright Futures Clinic, Glenrose Rehabilitation Hospital, River Valley Pediatrics Clinic, Royal Alexandra Hospital and University of Alberta Hospital Medical Genetics Clinic. Det. Meikle believed that Dr.

Dibden had reviewed these records in preparing his opinion. [ 9 ] The medical records referred to in the preceding paragraph are the ones at the centre of the present dispute (the “Medical Records”). The Plaintiff seeks to obtain the EPS’s copies of those records and to enter them as exhibits on the Defendants’

summary dismissal application. I am not aware of any other documents that are presently in dispute. [ 10 ] Substantially the same conclusions as those reflected in Dr. Dibden’s letter were reiterated in a letter dated June 26, 2017, and signed by Dr. Matthew Carroll, Specialist Pediatric Gastroenterologist, on behalf of a group of the child’s medical care providers. [ 11 ] On October 4, 2017, Det. Meikle acquired the letter from Dr. Carroll. [ 12 ] Det. Meikle found the opinions of Dr. Dibden and Dr. Carroll to be credible, and he believed them. Based upon this and other information, Det.

Meikle concluded that there were reasonable grounds to believe that the Plaintiff had committed the offences. Although Det. Meikle is unable to identify a specific date upon which that conclusion crystalized, he says that it occurred sometime after October 4, 2017, when he received the letter from Dr. Carroll, and sometime on or before November 23, 2017, when he contacted Assistant Chief Crown Prosecutor Danielle Green by phone to discuss the case. [ 13 ] On December 6, 2017, Det. Meikle met in person with Ms. Green to discuss the case further. At that meeting, Det. Meikle advised Ms. Green that Dr.

Dibden had relied upon the Medical Records in reaching his opinion. Ms. Green advised Det. Meikle that it would be necessary for him to obtain the Medical Records for the purposes of a future prosecution. Ms. Green did not advise Det. Meikle to obtain or review the Medical Records for the purposes of forming reasonable grounds to arrest the Plaintiff and to lay the charges. Her advice was that Det. Meikle had already acquired reasonable grounds to take those steps, notably from Dr. Dibden’s report. [ 14 ] Pursuant to Ms. Green’s advice, Det.

Meikle set out to acquire the Medical Records from the seven health care providers pursuant to production orders. The first tranche of those records received by Det. Meikle consisted of 13 pages of records from the Bright Futures Clinic, which were received on February 1, 2018. Det. Meikle next received 320 pages of records from River Valley Pediatrics Clinic on February 16, 2018. [ 15 ] In her Amended Statement of Claim, the Plaintiff pleads that the River Valley Pediatrics Clinic records received by Det.

Meikle on February 16, 2018, contained credible, reliable, and significant information that had the tendency to exculpate the Plaintiff, and to undermine the credibility and reliability of Dr. Dibden and Dr. Carroll. [ 16 ] The Plaintiff was arrested without a warrant and charged on February 22, 2018, in Ft. McMurray. Although Det. Meikle had, by that time, received the Medical Records from the Bright Futures Clinic and the River Valley Pediatrics Clinic, he did not review or consider their contents before arresting and charging the Plaintiff.

During questioning, he stated that he did not do so since he is not qualified to review and interpret medical records. Further, he had already received expert opinions from medical professionals who had themselves reviewed those same records. [ 17 ] At the time of the arrest on February 22, 2018, many of the Medical Records had not yet been received by the EPS. Det. Meikle states in his Affidavit that he did not delay the arrest pending his receipt of the outstanding Medical Records since he had concerns respecting imminent danger to the child. The Plaintiff’s position is that Det.

Meikle’s evidence respecting the supposed urgency of the situation at the time of the arrest is not credible. [ 18 ] Following her arrest and an in-custody interview, the Plaintiff was ordered to be released from custody upon entering into a recognizance with conditions which included that she have no contact with her child, that she not attend within 200 metres of her family home, and that she make no medical decisions on behalf of her children. These conditions were relaxed from time to time until they were set aside on November 19, 2020. [ 19 ] Det.

Meikle received the Medical Records from the remaining 5 health care providers on March 15, 2018. [ 20 ] Det. Meikle’s involvement in the investigation continued until April 5, 2018, when he prepared a report of his investigation. He subsequently took leave of his duties at the Child Protection

Section and was reassigned elsewhere. Responsibility for the file then passed to the Defendant Sgt. Manuel Illner who undertook certain inquiries at the request of the Crown. It does not appear that any post- arrest analysis of the available evidence was conducted by the police after the charges had been laid. [ 21 ] A four-count indictment was issued against the Plaintiff on September 10, 2019. [ 22 ] The Plaintiff’s trial commenced before Justice Fagnan on March 15, 2021. In the course of that trial, Justice Fagnan held that Dr. Dibden did not qualify as an expert in the area of caregiver fabricated illness.

She also held that certain material he relied upon in forming his opinion was not admissible for the truth of its contents for a number of reasons, including that it was incomplete, unreliable and not objective, and had a very high potential to be a time-consuming distraction and misleading. [1] [ 23 ] On May 10, 2021, the Plaintiff was acquitted on count 1 of the Indictment. On September 24, 2021, she was acquitted of the remaining counts 2, 3 and 4. [ 24 ] The Plaintiff filed her Statement of Claim on March 31, 2022.

An Amended Statement of Claim was filed on June 21, 2022. [ 25 ] In her Amended Statement of Claim, the Plaintiff alleges that the Defendants are liable for the tort of negligent investigation since they relied upon the opinions of Dr. Dibden and Dr.

Carroll which were not credible, failed to consider exculpatory evidence in their possession at the time of the arrest (notably the River Valley Pediatric Clinic records), and failed to acquire and review other evidence reasonably available to them before arresting and charging the Plaintiff (including the other Medical Records). [ 26 ] The events complained of in the Plaintiff’s Amended Statement of Claim are not limited to the events surrounding her initial arrest and detention.

The Plaintiff also pleads at paragraph 13 that “[s]ubsequent to the arrest of the Plaintiff”, the Defendants breached their respective duties of care by, among other things, “[f] ailing to thoroughly, carefully and diligently review and assess the evidence available to the Defendants in the course of the investigation” and “[f] ailing to notify the Crown Prosecutors of evidence in the Defendants’ possession that the Defendants knew or ought to have known was exculpatory and that undermined the credibility and reliability of the inculpatory evidence”. [ 27 ] Similarly, the damages claimed by the Plaintiff are not limited to the injuries she allegedly experienced during her initial arrest and detention on February 22, 2018.

She also claims damages for injuries allegedly attributable to the release conditions that she endured until November 19, 2020, as well as the overall stress and trauma attributable to the prosecution that persisted until her acquittal on September 24, 2021. III. Procedural Background [ 28 ] On July 27, 2022, the Defendants filed an application to summarily dismiss the Plaintiff’s claim. On August 19, 2022, affidavits of Det. Meikle and Sgt. Illner were filed in support of that

summary dismissal application. The primary basis for this application is that the Defendants’ decisions to arrest and charge the Plaintiff were legal since the information relied upon by Det. Meikle (notably the reports of Dr. Dibden and Dr. Carroll) supplied reasonable and probable grounds to believe that the Plaintiff had committed the offences. [ 29 ] On August 22, 2022, the Plaintiff obtained a “ Wagg Order” [2] from Justice Rothwell allowing her to use the Crown disclosure from the prosecution in the context of the present action. [ 30 ] On October 3, 2022, the Plaintiff swore an affidavit in opposition to the Defendants’

summary dismissal application. She has not yet been questioned on that affidavit. [ 31 ] Also on October 3, 2022, the Plaintiff produced more than 6,000 pages of medical records to the Defendants. I assume that many if not all of those records were those acquired by the Plaintiff from the disclosure she received from the Crown in the prosecution, and that their production in this action was enabled by Justice Rothwell’s Wagg Order. The Plaintiff also indicated an intention to refer to those records during the questioning of Det. Meikle and Sgt. Illner on the Defendants’

summary dismissal application.

[ 32 ] On October 6, 2022, counsel for the Defendants took the position that the copies of the medical records provided on October 3, 2022, could not be entered as exhibits during the questioning of Det. Meikle or Sgt. Illner since they did not review those records at the time they were obtained, and since most of them were obtained after the Plaintiff’s arrest. It is this objection to the entry of exhibits during questioning that has given rise to the present dispute. [ 33 ] On October 6, 2022, counsel for the Plaintiff took the position that Det. Meikle and Sgt.

Illner were required to review the medical records provided on October 3, 2022, and to cross-reference them against those contained within the EPS’s Property and Exhibit Unit (“PEU”) so that the records could be identified and entered as exhibits. In response, the Defendants advised that they would not be doing so. [ 34 ] Upon being advised that Det. Meikle and Sgt.

Illner would not be cross-referencing the medical records to those contained within the PEU, the Plaintiff served Notices of Appointment for all three Defendants on October 6, 2022. [ 35 ] On October 8, 2022, counsel for the Plaintiff offered to proceed with the remote questioning of Det. Meikle and Sgt. Illner if they had the Plaintiff’s proposed exhibits “available to them”. The parties agreed to proceed with questioning on that basis. On the basis of that agreement, the Plaintiff withdrew her Notices of Appointment for both Det. Meikle and Sgt.

Illner, but did not withdraw her Notice of Appointment for the Chief of the EPS. [ 36 ] Between October 11, 2022, and October 13, 2022, Det. Meikle and Sgt. Illner were questioned on their affidavits in support of the

summary dismissal application. [ 37 ] During the questioning of Det. Meikle, copies of at least some of the Medical Records obtained by the Plaintiff through disclosure in the prosecution were marked as exhibits for identification. The Plaintiff states that Det. Meikle refused to acknowledge or identify those copies of the records on the ground that he does not know their origin. The Defendants take issue with this characterization of Det. Meikle’s evidence, and state that Det.

Meikle “cannot confirm that the records shown to him by the Plaintiff’s counsel are the same that he gathered” since there are thousands of pages of records and he did not review them. [3] [ 38 ] There are two applications presently before me, the first being an application filed by the Defendants on October 18, 2022, and the second being a cross-application filed by the Plaintiff on November 17, 2022.

So me of the various points of relief sought in those applications have been discontinued or are otherwise not proceeding at the present time. [ 39 ] The relief presently sought by the Plaintiff may be summarized as follows. [ 40 ] Firstly, the Plaintiff seeks an Order directing that Chief of the EPS (or his designate) shall attend for questioning at the time and place directed by the court, and to bring the copies of the Medical Records presently in the possession of the EPS.

The purpose of this cross-application is to overcome the Defendants’ objection of October 6, 2022, to the Medical Records being marked as full exhibits on the Defendants’

summary dismissal application. The Plaintiff also seeks to elicit evidence from the EPS regarding such matters as when the various Medical Records in the possession of the EPS were received, the availability of those records to Det. Meikle and Sgt. Illner at various points in time, and the general provenance and continuity of the EPS’s copies of those records. [ 41 ] Secondly, the Plaintiff seeks a direction that her application to strike the Defendants’ limitations defence shall be heard at the same time as the Defendants’

summary dismissal application, but prior to and separately from her application to summarily dismiss the Defendants’ limitations defence. The Plaintiff wishes to have her application to strike heard first since success on that application or the Defendants’

summary dismissal application would negate the need for the Plaintiff to gather and lead substantial evidence in support of her

summary dismissal application, notably expert evidence that would likely provoke conflicting expert evidence in response. [ 42 ] The relief presently sought by the Defendants may be summarized as follows. [ 43 ] Firstly, the Defendants seek an order setting aside the Notice of Appointment issued to the Chief of the EPS on the basis that the Chief is not in possession of any records or other evidence that is relevant and material to the

summary dismissal application. [ 44 ] Secondly, the Defendants seek a direction that the Plaintiff’s applications to strike and to summarily dismiss the Defendants’ limitations defence both be heard at the same time as the Defendants’

summary dismissal application. They submit that this approach is more efficient in that it will minimize expense and duplication. They also seek deadlines and other procedural directions for the timely determination of the outstanding applications. IV. Can the existence of reasonable grounds to arrest be determined at this preliminary stage? [ 45 ] At the outset of my analysis, it is necessary to emphasize the preliminary nature of the present applications. This is not a

summary dismissal application. It is rather, an application to determine what evidence will be produced and admitted in a

summary dismissal application. [ 46 ] Throughout their submissions, the Defendants argue that the Medical Records are irrelevant to the

summary dismissal application since Det. Meikle relied upon the opinions of Dr. Dibden and Dr. Carroll which, as a matter of law, constituted reasonable grounds for the Plaintiff’s arrest. Although the criminal trial court ultimately found those opinions to be unreliable, Det. Meikle could not have foreseen the trial outcome at the time of his decisions to arrest and charge the Plaintiff. In support of this position, the Defendants cite numerous cases in which it was concluded, after a trial, that reasonable and probable grounds arose from circumstances which included medical and/or other reliable hearsay evidence.

[47] There is no doubt that the Defendants have meritorious arguments respecting the legality of the Plaintiff’s arrest. But in myview, their present arguments on this subject are premature. The Defendants’

summary dismissal application is not presently before thecourt. The legality of Det. Meikle’s decisions cannot be assessed or determined at this preliminary stage. [48] It is acknowledged by both sides that Det. Meikle relied upon the opinions of medical experts, and that he himself is not amedical expert. But these considerations do not, as a matter of law, automatically immunize his decisions from scrutiny against thereasonable grounds standard.

That inquiry has yet to be conducted, and the Plaintiff must be accorded a fair opportunity to respond to theDefendants’ arguments respecting that inquiry. [49] I therefore decline to determine, at this preliminary stage, whether Det. Meikle arrested and charged the Plaintiff on the basisof reasonable grounds for the purposes of s. 495(1)(

a) of the Criminal Code. That issue will be assessed at the

summary dismissalapplication, and if necessary, at a trial. V. Is the existence of reasonable grounds determined atthe time that grounds were formed in Det. Meikle’s mind, or atthe time of the arrest? [50] The Defendants submit that the Medical Records are irrelevant to the

summary dismissal application since they were allacquired after November 23, 2017, by which date Det. Meikle had, in his own mind, formed reasonable grounds to arrest the Plaintiff. Atparagraph 132 of their Brief, the Defendants submit: “Critically, the determination of the existence of RPG is based on an analysis of thecircumstances at the time that RPG to arrest was formed.” (Emphasis in original) On this basis, the Defendants submit that the MedicalRecords received by the EPS after November 23, 2017, but before the arrest on February 22, 2018, must be excluded from the inquiryand are irrelevant.

These records would include the River Valley Pediatric Clinic records which were received on February 16, 2018. [51] In support of the proposition that the legality of an arrest must be assessed as of the moment that reasonable and probablegrounds are formed in the mind of an arresting officer as opposed to the time of the arrest, the Defendants rely upon the followingpassage from J.H. v Windsor (City) Police Services Board, 2017 ONSC 6507 at para. 6: The determination as to whether there were reasonable and probable grounds is based upon an analysis of the circumstances apparent tothe officer at the time of the officer’s decision to make an arrest or lay charges, and not upon what the officer or anyone else may havelearned later.

In particular, if reasonable and probable grounds existed at the relevant time, they still exist in the sense required even where the information relied upon changes at a later date, or otherwise turns out to be deficient or inaccurate.18 [Emphasis added] [52] The footnote supporting the above passage from J.H. reads: 18 See, for example: R. v. Golub, (ON CA), [1997] O.J. No. 3097 (C.A.), at paragraphs 23-24; Wiles v. Ontario(Police Complaints Commissioner), [1997] O.J. No. 6274 (Gen.Div.), at paragraph 48; and Wong v. Kyriacou, [[2009] O.J.

No. 5067,2009 CarswellOnt 7412, (SCJ)] at paragraph 61, cited with approval in 495793 Ontario Ltd. (c.o.b. Central AutoParts) v. Barclay [(2016), 2016 ONCA 656 , 132 O.R. (3d) 241 (C.A.)], at paragraph 51. [53] The Defendants’ submissions on this point are incorrect. [54] As an initial matter, the Defendants’ position is not supported by the case authorities they cite. The cases cited in the abovefootnote 18 of J.H. include para. 61 of Wong v Kyriacou, [2009] O.J.

No. 5067, 2009 CarswellOnt 7412, (SCJ) atpara. 61, which reads: 61 The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officerat the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where theinformation relied upon changes at a future date or otherwise turns out to be inaccurate.

The requirement is that the information bereliable at the time the decision was made to arrest the accused. [Emphasis added, footnotes deleted] [55] The above passage from Wong was quoted and adopted by the Ontario Court of Appeal in 495793 Ontario Ltd. (c.o.b.Central Auto Parts) v Barclay, 2016 ONCA 656 at para. 50, being another authority cited at footnote 18 of J.H. [56] Similarly, the case of Wiles v Ontario (Police Complaints Commissioner), [1997] OJ No 6274 (Gen.Div.) at paragraph 48,also cited at footnote 18 of J.H., reads: 48 2.

The determination as to whether reasonable grounds for arrest existed is to be based upon an analysis of the circumstancesapparent to the officer at the time of the arrest, not based upon what the officer or anyone else later learned. [Emphasis added] [57] Further, and in any event, the Defendants submissions omit reference to R v Ha, 2018 ABCA 233, in which the Court ofAppeal definitively rejected the proposition that the Defendants now advance.

Both Schutz J.A. for the majority (at para. 24) and SlatterJ.A. concurring (at para. 72) held that R v Clayton, 2007 SCC 32 at para. 48 establishes that “it is only the point at which the accused’sliberty is actually interfered with that the assessment of the constitutionality of the arrest becomes relevant”.

At paragraph 42, SchutzJ.A., for the majority, went on to quote the following passage from R v Mark, 2017 ONSC 2206 at para. 68 with approval: . . . the reasonable and probable grounds necessary to effect a lawful arrest may be based, in part, upon information obtained by thepolice after a decision has been made to arrest the accused, but before the arrest is actually effected. See E.G. Ewaschuk, CriminalPleadings & Practice in Canada (2nd ed., 2015), vol. 1, sec. 5:0200, at p. 5-22.2. After all, it is the actual arrest that must be lawful andbased upon reasonable grounds.

If the arrest was ultimately based upon such reasonable grounds, it should matter not whether some

earlier police decision to try to effect that arrest was based upon such grounds. Intervening events may well shed light on whether thearrest should, in fact, be carried out. Accordingly, as the Supreme Court of Canada observed in R. v. Biron, (SCC),[1976] 2 S.C.R. 56, 23 C.C.C. (2d) 513, at p. 72, the validity of an arrest “must be determined in relation to the circumstances whichwere apparent to the peace officer at the time the arrest was made.” See also R. v.

Roberge, (SCC), [1983] 1 S.C.R.312, 4 C.C.C. (3d) 304, at pp. 323-325. [58] In his concurring reasons in Ha, Slatter J.A., explained the corollary of this point as follows: The corollary is that even if the police officers had reasonable grounds at an earlier stage, they cannot simply proceed to arrest ifsubsequently obtained information shows that grounds do not actually exist.

As Clayton confirmed at para. 47: “. . . had the policestopped the vehicle and discovered that the occupants did not correspond to the description given by the 911 caller, they would have hadno reasonable grounds for the continued detention of the occupants”. Thus, if the constables in this case had stopped the Acura, anddiscovered that the driver was not an Asian man with a cleft palate scar, they would not have had any basis for an arrest.

Whether theyhad reasonable grounds a moment earlier would become irrelevant. [59] The same approach applies to the assessment of reasonable grounds to arrest in the United States.[4] [60] Based upon the above authorities, and Ha in particular, I respectfully disagree with the Defendants that the legality of thePlaintiff’s arrest is to be assessed solely on the basis of the information known to Det. Meikle at the moment that reasonable andprobable grounds to arrest crystalized in his mind. The critical moment in time, is, rather, February 22, 2018, when the Plaintiff wasarrested.

By that time, the EPS had received the Medical Records from the Bright Futures Clinic and the River Valley Pediatric Clinic. VI. Is information acquired by the EPS after the arrestrelevant and material to the existence of reasonable grounds toarrest? [61] As noted above, many of the Medical Records now at issue were not acquired by Det. Meikle until several weeks after thearrest.

The parties disagree as to the relevance and materiality of those after-acquired records. [62] The Plaintiff submits that all of the information “available to” the police at the time of the arrest must be taken into accountwhen assessing the legality of the arrest, except for that information that may be reasonably disregarded as unreliable. The Plaintiffinterprets the words “available to” as encompassing information that the police could reasonably have obtained before the arrest but didnot.

The Plaintiff also submits that there is no precedent which provides any specific guidance as to the circumstances, if any, underwhich information contained in records not in the actual possession of the police may still be “available to” them.

In support of thisposition, the Plaintiff relies upon the decision of Ritter J. (as he then was) in Dix v Canada (Attorney General), 2002 ABQB 580 atparas. 356-57, which in turn relies upon Dumbell v Roberts, [1944] 1 All ER 326 and the concurring reasons of Moir J.A. in Campbell vEdmonton (City Police Services) (1985), 1985 ABCA 286 , 66 AR 222 (CA). [63] In response, the Defendants argue that the Medical Records are irrelevant to the issues to be determined in the

summarydismissal application since Det. Meikle’s determination as to the existence of reasonable grounds to arrest the Plaintiff is to be assessedsolely on the basis of the information that he knew about at the time that he decided to arrest the Plaintiff. The Defendants submit that,as a matter of law, the decision to arrest cannot be assessed in light of any information that Det. Meikle did not actually gather andconsider.

In support of this position, the Defendants rely upon the decision of Paciocco J., then of the Ontario Court of Justice, now ofthe Court of Appeal of Ontario, in R v Ross, 2015 ONCJ 115. [64] I generally agree with the Defendants’ position on this legal issue.

However, I have not found the Ross case to be of particularassistance since it has been overtaken by several higher authorities. [65] I had occasion to comment upon this area of the law in the following passage of R v Notay, 2021 ABQB 706: Several of the applicable case authorities, such as Golub [(1997), (ON CA), 117 CCC (3d) 193 (ONCA)] at p. 750,state that the reasonable grounds standard must be assessed in light of not only the information actually considered by the arrestingofficer, but also that information “available to them” at the time of the arrest.

It has also been stated that the police are expected to makesuch reasonable inquiries as the circumstances require (Storrey at p. 250 quoting Dumbell v Roberts, [1944] 1 All ER 326 (CA) at p.329). To be clear, these authorities do not hold that the Crown may subsequently justify an arrest by relying upon incriminatinginformation that was not actually considered by the officer at the time of the arrest.

As McFadyen J.A. stated in R v McClelland, 1995ABCA 199 at paras. 20-21: “Evidence which arose or came to light subsequent to the formation of the belief is not relevant indetermining whether the police officer had reasonable and probable grounds for his belief at the time he formed the belief”. What theseauthorities do hold is that an arresting officer may not focus only upon incriminating information while ignoring exculpatoryinformation.

An arresting officer must take into account all information available to him or her, and may only disregard that informationwhich is unreliable (Chartier v Quebec (Attorney General), [1979] 2 S.C.R. 475 at p. 499). [66] The nature and extent of a police officer’s duty to consider information “available to” them was not directly at issue in Notay.Having now conducted a more fulsome review of this subject, I have concluded that the reasonable and probable grounds standard doesnot impose a duty upon an arresting officer to conduct further inquiries or to gather additional evidence before effecting an arrest.Consequently, the contents of the Medical Records acquired by the EPS after the arrest are not relevant and material to the issue of thelegality of the arrest. [67] The Plaintiff’s position on this issue is not entirely unreasonable.

The issue has been considered in the greatest detail by thecourts of the United States, which have generally accepted the proposition that an arresting officer must at least seek out and review that

basic information that is readily “at hand” prior to making an arrest. In the illustrative case of BeVier v. Hucal, 806 F.2d 123 (7th Cir.1986), the plaintiffs had been arrested for child neglect, and later successfully sued the arresting officer. In affirming the damages award,Cummings, Circuit Judge, held that there had been no probable cause for the arrest, since the arresting officer had failed to conduct suchfurther inquiries as were reasonable in the circumstances: A police officer may not close her or his eyes to facts that would help clarify the circumstances of an arrest.

Reasonable avenues ofinvestigation must be pursued especially when, as here, it is unclear whether a crime had even taken place... Although the police must be allowed some margin of error, a police officer evaluating a situation for probable cause must utilize themeans at hand to minimize the risk of error... Because Hucal failed to avail himself of the opportunity to elicit further facts which wouldhave indicated that the arrest should not have been made, the arrest of plaintiffs was without the requisite probable cause... See also: Wayne R.

LaFave, Search And Seizure: A Treatise On The Fourth Amendment (6th ed, October 2022 Update) § 3.2(d); Ross v.City of Jackson, 897 F.3d 916 (8th Cir.2018) (“officer need not conduct a mini-trial before making an arrest,” but no probable causewhere “a minimal further investigation would have exonerated the suspect”); Maresca v. Bernalillo County, 804 F.3d 1301 (10thCir.2015) (“officers are charged with knowledge of any ‘readily available exculpatory evidence’ that they unreasonably fail toascertain”); United States v.

Struckman, 603 F.3d 731 (9th Cir.2010) (“probable cause could easily have been dissipated by minimalinquiry at the outset”); State v.

McCave, 282 Neb. 500, 805 N.W.2d 290 (2011) (“the Fourth Amendment requires [officers] toinvestigate the basic evidence for the suspected offense and reasonably question witnesses readily available at the scene, at least whenexigent circumstances do not exist”). [68] Unfortunately for the Plaintiff, the approach reflected in the American authorities just cited has not been accepted in Canada. [69] As mentioned in Notay, the existence of a duty on the part of an arresting officer to make such further inquiries as isreasonable in the circumstances is supported by R v Storrey, (SCC), [1990] 1 SCR 241 at pp. 249-50, in which Cory J.quoted the decision of Scott L.J. in Dumbell v Roberts, [1944] 1 All ER 326 (CA) at p. 329, who said that “the duty of making suchinquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest onthem; for to shut your eyes to the obvious is not to act reasonably.” Although not quoted in Storrey, Scott L.J. went on to state at p. 329of Dumbell that absent exigent circumstances, arresting officers “should make all presently practicable inquiries from persons present orimmediately accessible who are likely to be able to answer their inquiries forthwith.” [70] Given that the Dumbell case was quoted with approval by the Supreme Court of Canada in Storrey, it has since been cited insupport of the proposition that the police are under a duty to make such further inquiries as may be reasonable in the circumstances.

Inaddition to the passages from Dix and Notay quoted above, Dumbell was cited by Mercer J. in Newfoundland (Royal NewfoundlandConstabulary) v.

Newfoundland (Royal Newfoundland Constabulary Public Complaints Commissioner) (2002), (NL SC), 215 Nfld & PEIR 181 (Nfld SCTD) who recognized at para. 39 a “duty of due inquiry” on the part of arresting police officers.On the basis of this duty, Mercer J. went on to conclude that evidence respecting the investigative steps taken after the arrest wasadmissible for the purposes of assessing the legality of the arrest: ...Evidence respecting post-arrest investigation would, in my opinion, often be relevant in assessing the adequacy of the pre-arrestinvestigation.

Whether the post-arrest investigative steps could have and should have been taken pre-arrest may well be central to thedetermination of whether due inquiry was conducted... [71] Interestingly, Scott L.J.’s decision in Dumbell has received less favourable treatment in the United Kingdom. Dumbell hasbeen revisited in a number of cases, including by the Court of Appeal in Castorina v Chief Constable of Surrey, [1988] NLJR 180, 1988WL 622865 (CA).

In that case, Lord Purchase cited a number of subsequent cases restricting Scott L.J.’s remarks in Dumbell, concludedthat “[t]he remarks of Scott L.J. did not, therefore, form part of the ratio decidendi of the majority of the court,” and declined torecognize any duty on the part of an arresting officer to conduct further inquiries.

The following conclusions of Lord Justice Woolf inCastorina capture the conclusions of all three judges on this subject: The learned judge was of the view that the police could have questioned the plaintiff before they arrested her and could have madefurther enquiries and come back later if they were not satisfied with her answers.

However, while this was a possible course which thepolice could have taken, in my view it was not a course they were required to take; not because the plaintiff might have disappeared butbecause there was already sufficient material to provide reasonable cause for the police’s suspicion. [72] Given the analysis in Castorina and the cases cited therein, it appears that the state of the law in the United Kingdomcontinues to be reflected in the decision of the House of Lords in Lister v Perryman (1870), LR 4 HL 521 at pp. 535-36, where LordChelmsford said: ...The question was not whether the Defendant might have obtained more satisfactory and surer grounds of belief by applying toRobinson for direct information, but whether the facts brought to his knowledge furnished reasonable and probable cause for hisbelieving that the Plaintiff had dishonestly possessed himself of his rifle, and justified him in acting on that belief without fartherinquiry... [73] In addition to Storrey, a Canadian case often cited in support of the proposition that the police are required to make reasonableinquiries prior to effecting an arrest is R v Golub (1997), (ON CA), 117 CCC (3d) 193 (ONCA) at p. 203, whereDoherty J.A. wrote: In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit.

Theofficer must take into account all information available to him and is entitled to disregard only information which he has good reason tobelieve is unreliable: R. v. Storrey, supra, at pp. 250-51 S.C.R., p. 218 C.R.R., pp. 323-24 C.C.C.; Chartier v. Quebec (AttorneyGeneral), (SCC), [1979] 2 S.C.R. 475, 48 C.C.C. (2d) 34 at p. 56; R. v. Hall (1995), (ON CA), 22O.R. (3d) 289 at pp. 296-98, 39 C.R. (4th) 66 at pp. 73-75 (C.A.); R. v. Proulx (1993), (QC CA), 81 C.C.C. (3d) 48 at

p. 51 (Que. C.A.). [74] Given Doherty J.A.’s reference in the above passage to pp. 250-51 of Storrey, he may have intended to refer to the existenceof a duty on the part of an arresting officer to conduct further inquiries as described by Scott L.J. in that passage. But subsequentdecisions of the Supreme Court of Canada and Court of Appeal of Ontario have not interpreted Golub in that manner. [75] Golub was considered by Karakatsanis J. writing for a unanimous Court in R v Chehil, 2013 SCC 49. Chehil did not addressthe legality of an arrest, but the legality of a search using a drug-sniffing dog.

In examining the reasonable suspicion standard applicableto such searches, Karakatsanis J. wrote: 33 Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of thecircumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion. As Doherty J.A. found in R. v.

Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751,“[t]he officer must take into account all information available to him and is entitled to disregard only information which he has goodreason to believe is unreliable”.

This is self-evident. 34 However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation toseek out exculpatory factors or rule out possible innocent explanations... [Emphasis added] [76] Both Golub and Chehil were considered and applied by Juriansz J.A. in Tremblay v Ottawa (City) Police Services Board,2018 ONCA 497, in the context of a claim for false arrest.

Writing for a unanimous Court, Juriansz J.A. interpreted those authorities atpara. 64 as follows: “The words “all information available” [in Golub] refer to the information the officer had in his possession -- notadditional information the officer “could have had upon simple inquiry””. This

interpretation was reiterated and adopted in M.W. vHalton (Regional) Police Services Board, 2020 ONCA 463 at para. 20. [77] Although Chehil dealt with a search rather than an arrest, any remaining doubt as to the existence of a “duty of due inquiry”on the part of an arresting police officer in Canada appears to have been eliminated by R v Beaver, 2022 SCC 54.

In that case, Jamal J.summarized the legal principles governing a warrantless arrest, and cited Chehil in support of the following statement at para. 72 point 6:“The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanationsfor the events before making an arrest”. [78] Given the holdings in Chehil, Beaver, Tremblay, and M.W., I conclude that the law of Canada does not recognize a duty onthe part of an arresting officer to conduct such further investigation as may be reasonable in the circumstances before making an arrest.The issue is not whether more could have been acquired by the police, but whether what they did acquire amounted to reasonablegrounds. [79] In reaching this conclusion, I have excluded from my analysis a number of cases which emphasize the uncontroversial pointthat arresting police officers are not required “to exhaust all possible routes of investigation or inquiry, [or] interview all potentialwitnesses prior to arrest” (e.g. 495793 Ontario Ltd. (c.o.b.

Central Auto Parts) v Barclay (2016), 2016 ONCA 656 , 132 OR(3d) 241 (CA) at para. 52). Statements of this nature do not assist in determining whether a police officer must take those investigativesteps that are reasonable in the circumstances, such as reviewing documents already in their possession in the absence of exigentcircumstances. Similarly, I respectfully disagree with the Defendants’

interpretation of such cases as R v McClelland, 1995 ABCA 199which emphasize that “[e]vidence which arose or came to light subsequent to the formation of the belief is not relevant in determiningwhether the police officer had reasonable and probable grounds for his belief at the time he formed the belief”. These cases, read incontext, merely confirm that a determination of reasonable and probable grounds cannot be bolstered by inculpatory informationdiscovered by the police after the arrest or search.

As stated in R v Kang-Brown, 2008 SCC 18 at para. 92: “The after-the-fact discoveryof illegal drugs does not render constitutional that which at the time was unconstitutional.” These authorities do not directly addresswhether reasonable grounds may be negated by an arresting officer’s failure to obtain and consider any potentially exculpatoryinformation that may be reasonably available prior to making an arrest. [80] Based upon the authorities summarized above, I conclude that the information and other material acquired by the EPS afterthe Plaintiff’s arrest on February 22, 2018, is not relevant and material to the issue of the legality of that arrest.

VII. Is information acquired by the EPS after the arrestrelevant and material to the Plaintiff’s claims of post-arrestnegligence? [81] Given my conclusion that the after-acquired Medical Records are not relevant and material to the issue of the legality of thePlaintiff’s arrest, it becomes necessary to determine whether they are relevant and material to any other live issues in the Defendants’summary dismissal application. [82] The Defendants take a narrow view of the issues that properly arise in this action.

The overarching premise of the Defendants’present submissions is that the existence of reasonable grounds to arrest is fatal to the entirety of the Plaintiff’s claim. Consequently, intheir view, the only live issues to be assessed in the

summary dismissal application are reasonable grounds to arrest and limitations. [83] In contrast, the Plaintiff submits that the Defendants’ duty of care did not terminate at the time of the Plaintiff’s arrest. Rather,the Plaintiff submits that their duty of care continued throughout the prosecution, and that the Defendants breached that duty of care byfailing to conduct any analysis of the exculpatory evidence they obtained after the arrest, and by failing to notify the prosecutors of that

evidence. This, the Plaintiff says, resulted in additional injuries, such as those attributable to the release conditions which restricted her access to her child and her home, as well as the stress and reputational damage caused by the ensuing trial.

The pleadings which reflect those post-arrest aspects of the claim include paragraph 13 of the Amended Statement of Claim. [ 84 ] In support of the Defendants’ position that the existence of reasonable and probable grounds to arrest is fatal to the entirety of the Plaintiff’s claim, the Defendants rely upon the following passage from J.H. v Windsor (City) Police Services Board , 2017 ONSC 6507 at para. 6 : ...In relation to arrests and laying of charges by the police, the standard of care applicable to negligent investigation claims is informed by the requirement of “reasonable and probable grounds”, and does not rise higher than that criminal law standard.

Where reasonable and probable grounds exist for an arrest and/or laying of charges, the applicable duty of care is met and there will be no police negligence in that regard. In cases based on alleged police negligence in making an arrest or laying charges, the plaintiff accordingly must establish an absence of reasonable and probable grounds as an essential element of the tort, and the existence of reasonable and probable grounds will be fatal to the claim . [Footnotes omitted] [Emphasis added by the Defendants] [ 85 ] I agree with the principles summarized in the above passage from J.H.

Where a claim for negligent investigation is based upon negligence in making an arrest or laying charges, the existence of reasonable and probable grounds will be fatal to the claim. But this passage does not address negligent investigation claims that allege the commission of negligence by the police after the arrest and the charges. [ 86 ] The Defendants submit that the post-arrest aspects of the Plaintiff’s claim must be disregarded because they do not state a cause of action. In their

summary dismissal application, the Defendants plead that “[t]he Plaintiff’s plead allegations of post arrest and charge negligent investigation do not, at law, disclose a breach of the standard of care, and lack the essential element of causation.” [ 87 ] The Defendants’ argument in this regard is that once an arrest has occurred and a charge laid, the police’s responsibility for a criminal investigation terminates, and responsibility for the remainder of the prosecution is borne exclusively by the prosecutors.

In support of this proposition, the Defendants rely upon the leading case of Hill v Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , where the tort of negligent investigation was recognized by McLachlin C.J.C. for a six-member majority of the Court. The Defendants’ written submissions on this point read as follows: 84.

Furthermore, Chief Justice McLachlin, as she then was, specified in Hill that once police meet the standard of RPG for arrest, the case is left to others within the criminal justice system, “ namely the Crown prosecutor, the preliminary hearing justice, and the ultimate finder of fact, to delve more deeply into the legal and factual merits of a case .” 120 [Emphasis added by the Defendants] 120 Hill v. Hamilton-Wentworth Regional Police Services Board , ( 2007 SCC 41 ) (“ Hill ”), at paragraph 153. [...] 110.

The Supreme Court of Canada in Hill drew a clear distinction between the conduct of police officers in a criminal investigation, for which a claim of negligent investigation can be made, and participation in the criminal justice system, for which a claim of negligent investigation against police cannot be made. 111. Trial conduct and participation in the criminal justice system is outside of the control of police officers as the matter remains in the hands of Crown prosecutors at that point.

A significant amount of the Plaintiff’s allegations are about participation in the criminal justice system and trial conduct, post arrest and charge, for which an action in negligent investigation must fail. 151 151 Hill at paragraph 182. [ 88 ] The difficulty with the above submissions by the Defendants is that the passages from Hill attributed to the majority reasons of McLachlin C.J.C. are actually contained in the dissenting reasons of Charron J.

The three dissenting justices in Hill (Bastarache, Charron and Rothstein JJ.) dissented on the cross-appeal on the basis of their view that there is no tort of negligent investigation in Canada, either pre-arrest or post-arrest. What McLachlin C.J.C.’s majority reasons actually say on the subject of post-arrest negligence is this: 84 When new information emerges that could be relevant to the suspect’s innocence, reasonable police conduct may require the file to be reopened and the matter reinvestigated.

Depending on the nature of the evidence which later emerges, the requirements imposed by the duty to reinvestigate on the police may vary. In some cases, merely examining the evidence and determining that it is not worth acting on may be enough. In others, it may be reasonable to expect the police to do more in response to newly emerging evidence. Reasonable prudence may require them to re-examine their prior theories of the case, to test the credibility of new evidence and to engage in further investigation provoked by the new evidence.

At the same time, police investigations are not never-ending processes extending indefinitely past the point of arrest. Police officers acting reasonably may at some point close their case against a suspect and move on to other matters.

The question is always what the reasonable officer in like circumstances would have done to fulfil the duty to reinvestigate and to respond to the new evidence that emerged. [ 89 ] McLachlin C.J.C. went on to conclude that the police officers in Hill had not breached the standard of a reasonable police officer similarly placed, since their conduct could not be judged on the basis of society’s subsequent awareness of the danger of wrongful convictions (paras. 85-89). [ 90 ] Given the above statements of McLachlin C.J.C. in Hill , I respectfully disagree with the Defendants that the existence of reasonable grounds to arrest and charge is necessarily fatal to the entirety of the Plaintiff’s claim.

The Plaintiff’s Amended Statement of Claim also pleads that the Defendants acted negligently after the arrest by failing to review new information, notably the Medical

Records. Although the merits of those post-arrest aspects of the Plaintiff’s claim cannot presently be assessed or determined, her pleadings cannot be disregarded on the basis that they do not, at law, state a cause of action. [ 91 ] I therefore conclude that the relevance and materiality of the Medical Records and the associated questioning must be assessed in light of both the pre-arrest and the post-arrest aspects of the Plaintiff’s claim.

Although the legality of the Plaintiff’s arrest is an important issue in this action, it is not the only issue implicated by the Plaintiff’s pleadings. [ 92 ] In my view, the Medical Records received by the EPS after the Plaintiff’s arrest on February 22, 2018, and the associated questioning that the Plaintiff now seeks to conduct are relevant and material to the Plaintiff’s claim of post-arrest negligence. Consequently, they are relevant and material to the Defendants’

summary dismissal application. The Plaintiff is entitled to discover what records the EPS received, when they received them, and what they did with them. Once that evidence is made available to the

summary dismissal court, the merits of the post-arrest aspects of the Plaintiff’s claim can be assessed in light of the principles reflected in para. 84 of Hill . VIII. Is information contained in documents acquired but not reviewed by the EPS before the arrest relevant and material to the legality of the arrest? [ 93 ] Although not specifically addressed by the parties, I note that a lack of clarity appears to exist with respect to whether Det. Meikle had any duty to review and consider the Medical Records that he received before he arrested the Plaintiff on February 22, 2018, but which he did not review.

These records include the 320 pages of records received from the River Valley Pediatrics Clinic on February 16, 2018. [ 94 ] In Ross , Paciocco J. (as he then was) concluded at para. 35 that: “Only facts actually known to the officer at the time the decision has been made can be considered.” [Emphasis added] This approach would appear to exclude information contained in documents that are in an arresting officer’s possession at the time of the arrest, but which have not been reviewed. [ 95 ] In contrast, Jurniasz J.A. concluded in Tremblay that an arresting officer is required to consider “the information the officer had in his possession -- not additional information the officer “could have had upon simple inquiry””. [Emphasis added] This approach would appear to include information contained in documents that are in an arresting officer’s possession at the time of the arrest, but which have not been reviewed. [ 96 ] I have not found it necessary to resolve this issue in the context of the preliminary applications now before me.

Given my conclusion that all of the Medical Records are at least relevant and material to the post-arrest aspects of the Plaintiff’s claim, they must be produced in any event, and their significance may be assessed at a later stage of these proceedings if and when necessary. IX. Timing of the Plaintiff’s limitations applications [ 97 ] As noted above, the Plaintiff submits that her application to strike the Defendants’ limitations defence ought to be heard at the same time as the Defendants’

summary dismissal application, but at an earlier time than her own application to summarily dismiss the Defendants’ limitations defence. [ 98 ] The main reason for the Plaintiff’s request to have her two applications heard separately is that her application to strike can be determined on the basis of the existing pleadings, whereas her application to dismiss would require her to, among other things, obtain and pay for expert evidence in support of the claim that she was a “person under disability” for the purposes of s. 5(1) of the Limitations Act , RSA 2000 c. L-12 .

Such expert evidence would presumably provoke conflicting expert evidence from the Defendants in response. This conflict would be rendered unnecessary if either of the other two applications is successful. [ 99 ] The Defendants submit that the Plaintiff’s striking and

summary dismissal applications ought to be heard at the same time. In support of this position, they argue that the striking application is “bound to fail” since the Defendants’ limitations defence is supported by Hill at paras. 96-97 , since the Plaintiff has “plead over” the limitations defence by filing a Reply to that defence, and since the Plaintiff delayed in bringing her applications.

Further, in the Defendants’ view, having the Plaintiff’s two limitations applications heard together would be the most efficient and inexpensive approach for the parties in accordance with foundational rule 1.2 of the Alberta Rules of Court , AR 124/2010 . [ 100 ] I agree with the Plaintiff on this scheduling issue and I respectfully disagree with the Defendants. Although the Defendants’

interpretation of paras. 96-97 of Hill is at least arguable, it is not so clear that the Plaintiff’s application to strike is bound to fail.

In fact, the Plaintiff has put forward a significant number of cases which interpret Hill in a manner that is generally supportive of her position ( Chimienti v Windsor (City) , 2011 ONCA 16 ; Winmill v Woodstock (Police Services Board) , 2017 ONCA 962 ; MacKinnon v Halton Regional Police Services Board , 2020 ONSC 6908 ) and the Defendants have put forward no cases in response. [ 101 ] Further, the fact that the Plaintiff has “plead over” the Defendants’ limitations defence by filing a Reply to it does not constitute a waiver or acceptance of any legal deficiencies in that defence.

Nor can such a waiver arise from a delay of only 5 months from the filing of the Statement of Defence and 4 months from the filing of the Defendants’

summary dismissal applications. [ 102 ] Applications which involve conflicting expert evidence are expensive and time consuming, especially for privately funded litigants. If either the Defendants’

summary dismissal application or the Plaintiff’s application to strike were to succeed, the Plaintiff’s

summary dismissal application would be rendered moot, and any resources expended upon it would have been wasted. I agree with the

Plaintiff that it would not be in the interests of efficiency to embark upon such an expensive dispute unless and until it becomes necessary to do so. [ 103 ] I therefore conclude that the outstanding applications in this action can be fairly and justly resolved in the most timely and cost- effective way by hearing the Plaintiff’s application to strike the Defendants’ limitations defence at the same time as the Defendants’

summary dismissal application, and to defer the hearing of the Plaintiff’s application to summarily dismiss the Defendants’ limitations defence. X. Conclusions [ 104 ] In conclusion, to the extent that the relief sought in the Defendants’ application of October 18, 2022, and the Plaintiff’s cross- application of November 17, 2022, is now before me me, the Defendants’ application is denied and the Plaintiff’s cross-application is granted.

The Chief of the EPS or his designate shall attend for questioning at a mutually convenient time and place to be arranged between counsel, and shall bring the EPS’s copies of the Medical Records to that questioning. The Plaintiff’s application to strike the Defendants’ limitations defence shall be heard together with the Defendants’

summary dismissal application, and the Plaintiff’s application to summarily dismiss the Defendants’ limitations defence shall be heard at a later time, if necessary. [ 105 ] Given these directions, counsel can presumably agree upon convenient dates and times for the future conduct of this action, as well as any stipulations that may simplify or even negate the need for questioning on the Medical Records. The Defendants’ request for more detailed directions as to the specific procedural steps to be taken is deferred pending such discussions between counsel.

Any requests for further procedural directions may be submitted directly to my attention. Heard on the 13 th day of March, 2023. Dated at Edmonton, Alberta this 27 th day of April, 2023. Justice N.J. Whitling J.C.K.B.A. Appearances: Dale Knisely for the Plaintiff Michele A. Wolowidnyk for the Defendants

_______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Justice N. Whitling _______________________________________________________

Citation line changed to reflect SR v Edmonton(Police Service). Plaintiff name in style of cause changed to reflect SR. Paragraph 1 Plaintiff changed to reflect SR. Paragraph 9 removed words and enter. Paragraph 28 added a period. Paragraph 55 added a period. Paragraph 75 quote underlined (Emphasis added). Paragraph 79 Added [or].