Mallett v. McCaskill, 2012 MBCA 91

Citation: Mallett v. McCaskill, 2012 MBCA 91 Date: 20121012 Docket: AI 12-30-07798 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton BETWEEN : SHARON MALLETT ) ) (Plaintiff) Appellant ) R. I. Histed ) for the Appellant - and - ) ) KEITH McCASKILL ) D. A. M.

Pambrun ) for the Respondents (Defendant) Respondent ) ) AND BETWEEN : ) ) Appeal heard: SHARON MALLETT ) September 17, 2012 ) (Plaintiff) Appellant ) ) Judgment delivered: - and - ) October 12, 2012 ) CARRIE NASH, DALLAS VANNUS, ) NICHOLAS BISSON, BRIGETTE ) FRIEDENBERGER, ERIC WYTINCK, ) CONSTABLE VAN DEN DRIESSCHE, ) and GREGORY KAATZ ) ) (Defendants) Respondents ) SCOTT C.J.M. and MONNIN J.A. 1 This is an appeal from a

summary judgment order dismissing the appellant’s claim for false imprisonment. 2 The appellant initiated two actions for breach of privacy, assault, breach of her rights under the Canadian Charter of Rights and Freedoms , false imprisonment and trespass.

The respondents are the Chief of the Winnipeg Police Service on the one hand, and on the other, a number of police constables who, on two separate occasions in July 2008, responded to 911 emergency calls and attended at the appellant’s residence. 3 The actions were consolidated, after which the respondents moved under Queen’s Bench Rule 20 to have the claims for false imprisonment dismissed summarily on the basis that the appellant had failed to show that there was a genuine issue for trial.

The respondents were successful before both a master and a motion judge. 4 It was clear to this court, and conceded by the respondents’ counsel, that in arriving at his decision, the motion judge erred in the process he followed, which resulted in his according deference to the master’s decision. As evidenced by his reference to the applicable standard of review, the motion judge erroneously conducted his review of the master’s decision as if it was an appeal instead of a fresh hearing. See Queen’s Bench Rule 62.01(13) and also see ABI Biotechnology Inc. v.

Apotex Inc. et al. , 2008 MBCA 146 , 231 Man.R. (2d) 259 . 5 Because of this error in approach, the motion judge’s decision is owed no deference and this court is entitled to decide

this matter as it deems fit according to the applicable law. 6 A

summary of the facts that brought about the appellant’s actions can be gleaned from the master’s reasons (at para.2): The conduct of the defendant police officers which gives rise to the alleged causes of action is set out quite briefly in the pleadings.

Theplaintiff alleges that in the early morning hours of July 1, 2008, five uniformed members of the Winnipeg Police Service forcibly enteredthe plaintiff’s dwelling smashing through both front and rear doors, and, with firearms drawn, ordered the plaintiff to put her hands upand to lie on the floor, totalling depriving the plaintiff of her liberty and causing her to fear that she would be shot at.

The secondincident as described in the statement of claim involves an allegation that in the early morning hours of July 17, 2008, six uniformedmembers of the Winnipeg Police Service forcibly entered the dwelling of the plaintiff, ordered the plaintiff’s family about, and to thefloor, threatened to taser the plaintiff’s son, and forced their way into the bathroom where the plaintiff was taking a shower.

In the 2010claim the plaintiff also adds an allegation that the constables entered the bathroom by kicking in the door, causing damage, then furtheralleging that a constable assaulted and battered the plaintiff by pulling her from the shower, causing the plaintiff to fall against thebathroom sink. 7 The respondents’ response to the allegations, also summarized by the master, is as follows (at paras. 3-4): The defendants have filed statements of defence to both claims.

The defendants maintain that with respect to the first incident there wereonly two members of the Winnipeg Police Service, who entered the plaintiff’s dwelling by way of the rear door only in response to a callreceived by the Winnipeg Police Service which led the officers to believe that a dangerous situation might be occurring at the plaintiff’spremises and that there was a man who may be violent present. The defendants deny that the constables’ firearms were drawn andfurther deny that the plaintiff was ordered to put her hands up and to lie on the floor.

The defendants admit that the constables insistedthat the plaintiff remain where she was until they were able to approach the male in the premises. The defendants deny that theydeprived the plaintiff of her liberty and also assert that if the plaintiff had a fear that she would be shot, that fear was an unreasonableone. With respect to the second incident the defendants admit that officers attended the plaintiff’s residence although they say that this was inthe late evening of July 16, 2008. They deny that the entry to the plaintiff’s dwelling was forcible.

They say that they were attendingthe residence in response to a call that led them to believe that a male armed with a knife was at the residence, that the male had alreadyharmed an individual, and that the purpose of the entry was to keep the peace, secure the scene and ensure the safety of those present atthe premises. The defendants admit that the plaintiff and her son were ordered to stay put in order to secure the scene but deny that theplaintiff’s son was threatened to be tasered. The defendants do admit that one of the officers did have a taser drawn.

The defendants denythat any one forced their way into the bathroom where the plaintiff was taking a shower. The defendants’ version is that when theyarrived it appeared that the plaintiff had already completed taking a shower and that the defendant officers attended to a bedroom in thepremises, located the plaintiff’s common-law husband and arrested that gentleman. 8 With respect to the applicable law, the master accepted (correctly in our view) the definition of false imprisonmentcontained in Allen M.

Linden, Canadian Tort Law, 7th ed. (Markham: Butterworths Canada Ltd., 2001), wherein it is stated (at pp. 49-50): There can be no false imprisonment without a total confinement. …. . . . . . …. If, as a result of the defendant’s intentional conduct, a person reasonably feels totally restrained, however that result is obtained, itamounts to an imprisonment and is actionable unless it is justifiable. [emphasis added] See also Collis v. Toronto Police Services Board et al. (2007), (ON SCDC), 228 O.A.C. 333 at para. 28 (S.C.J.). 9 The test to be applied on a motion for

summary judgment is well established and was restated in Bodnarchuk v. RBCLife Insurance Co. et al., 2011 MBCA 18, 262 Man.R. (2d) 225 (at paras. 12-13):

Returning to Homestead Properties [2007 MBCA 61, 214 Man.R. (2d) 148], with respect to the test for

summary judgment (at para.14): ... The test is to the same effect regardless of whether the moving party is the plaintiff or the defendant. When the defendant moves, ashere, he must prove, on a prima facie basis, that the plaintiff’s action must fail. If he meets that burden, then the plaintiff has the burdento establish that there is a genuine issue for determination. He must show that his claim is “one with a real chance of success” (seeHercules Management Ltd. et al. v.

Ernst & Young et al., (SCC), [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, at para. 15, see also Hydro Electric Board (Man.) v. Inglis (John) Co. et al. (1999), (MB CA), 142 Man.R. (2d) 1; 212 W.A.C. 1 (C.A.)). If he fails to do so,

summary judgment dismissing the claim will follow. Thus, an application for

summary judgment, whether by plaintiff or defendant, is a two-step process. See Homestead Properties; PerthServices Ltd. v. Deloitte Haskins & Sells et al., [2005] Man.R. (2d) Uned. 4; 2005 MBCA 14, and Beavis et al. v.PricewaterhouseCoopers Inc. (2010), 2010 MBCA 69 , 258 Man.R. (2d) 15; 499 W.A.C. 15; 87 C.P.C. (6th) 392; 2010MBCA 69. Firstly, the moving party (in this case, Assante) must demonstrate on a prima facie basis that the claim or defence, as thecase may be, should fail. If this first hurdle is not met by the applicant, that is the end of the matter.

In this instance, the motions courtjudge found, correctly in my view, that Assante had met this burden. Once a prima facie claim or defence has been shown, the onusshifts to the respondent (in this case, Bodnarchuk) to establish that the claim or defence has a real chance of success; in other words, thatthere is a genuine issue for trial. At this stage, the court must take a good hard look at the merits of the claim.

See Blanco et al. v.Canada Trust Co. et al. (2003), 2003 MBCA 64 , 173 Man.R. (2d) 247; 293 W.A.C. 247; 2003 MBCA 64, at para. 24, andHomestead Properties. 10 The appellant argues that both the master and the motion judge erred in overlooking what she describes as clear anduncontroverted evidence of imprisonment in the respondents’ statements of defence and in the answers she provided when examined fordiscovery.

The appellant argues that such evidence was more than sufficient to rebut any prima facie case that the respondents mighthave raised and that, as she in fact established that a triable issue existed, her claim should not have been dismissed. 11 The appellant further argues that the motion judge erred when he found that even if there was a triable issue, her claimwould not succeed on the basis of justification by the respondents.

She alleges, and correctly so, that the issue of justification was neverargued before the motion judge and that whether justification was a defence or not was an issue of fact to be decided by the fact-finderand should not have been dealt with on a motion for

summary judgment. 12 The respondents argue firstly that the question of whether or not there is a factual basis for false imprisonment cannotbe considered in a vacuum and that the factual matrix must be considered contextually. See Burke v. Efstathianos et al. (1961), (MB CA), 27 D.L.R. (2d) 518 (Man. C.A.). They then go on to argue that in the circumstances of this case, the policeofficers were responding to emergency calls and that, although briefly restrained, the appellant was not the target of the action andtherefore she was not imprisoned.

The respondents argue, by analogy, that the appellant is in the same position as patrons who arepresent in a bank in the process of being robbed and are told to stay on the ground by police officers responding to an alarm. 13 In his decision, the master came to the following finding when considering whether there was a triable issue withrespect to the first incident (at para. 14): The pleading which the plaintiff relies on to support her claim to having been falsely imprisoned by members of the Winnipeg PoliceForce on July 1, 2008, consists of the allegations that certain constables ordered the plaintiff to put her hands up and to lie on the floor,totalling depriving the plaintiff of her liberty and causing her to fear that she would be shot at.

The defendants’ evidence does notsupport these allegations and the plaintiff herself has filed no evidence in response which contradicts the defendants’ evidence. Theplaintiff’s 2008 affidavit is of very limited value for purposes of this motion. The plaintiff’s own discovery does not support theallegations in the statement of claim. I am persuaded that the evidence does not support the allegation that the plaintiff was told to puther hands up or to lie on the floor.

The plaintiff specifically in her discovery confirmed that she was never told to lie down or get on theground but rather that it was Travis Forester (referred to in the July affidavit of the plaintiff as Adrian Forster but presumably the sameindividual), her common-law husband, who was told to get down on the ground. If the plaintiff heard the police tell someone to put theirhands up, it is likely this was directed at Mr. Forester and not at the plaintiff.

Under the circumstances I am satisfied that there is notriable issue with respect to the claim of the plaintiff of false imprisonment with respect to the first incident. 14 With respect to the second incident he stated (at paras. 15-16): In the statement of claim the plaintiff alleges that her residence was forcibly entered in the early morning hours of July 17, 2008 by sixuniformed members of the Winnipeg Police Service who ordered the plaintiff’s family about, and to the floor, threatened to taser her sonand forced their way into the bathroom where the plaintiff was taking a shower.

This is the extent of the allegations against thedefendant[s] which could form the basis of a claim for false imprisonment. The allegations are slightly expanded in the second claimwhere the plaintiff alleges in paragraph 11 that “constables entered the bathroom by kicking in the door, causing damage. A constable

assaulted and battered the plaintiff by pulling her from the shower causing the plaintiff to fall against the bathroom sink.” In my view,there is nothing in these pleadings relating to the second incident that could constitute false imprisonment. According to the plaintiff’s affidavit sworn July 19, 2008, the plaintiff was taking a shower when the constables arrived at the premises. She says that she heard kicking at the bathroom door and as she was getting out of the shower the door got kicked open and she waspulled out of the shower and taken into the hallway.

She said that she was told to put her hands above her head and keep them there andthat she tried to see what was happening with her son who was in the living room. She says that she went to her bedroom and got hercamera, went back to the living room and took a picture of the police interrogating her son. She says that one of the police demandedthat she give up her camera but that she refused that demand and that the police subsequently left the premises.

Again, the transcript ofthe discovery is of limited value however in answer to questions posed to the plaintiff she confirmed that she did get her camera and takepictures and that she was never searched by the police. 15 The master then went on to conclude as follows (at para. 17): The

summary judgment remedy should not be used as a steamroller to deprive a litigant of a full hearing where there is a triable issue. Inthe subject consolidated actions the defendants are not attempting to have the entire action dismissed but only the claim for falseimprisonment. The stated reason for pursing [sic] the remedy in this case is that the false imprisonment action is the only cause of actionfor which a civil jury trial is available. If the false imprisonment action is summarily dismissed then the balance of the actions can betried before a judge alone.

The defendants argue that this will save time and expense. The saving of time and expense is not a factor indetermining whether a cause of action should be dismissed summarily. Clearly the test is whether there is credible evidence to justify amatter proceeding to trial. As indicated earlier, a cause of action is framed by the pleadings. The cause of action as framed by thepleadings must be supported by credible evidence to support the claim in order for the court to satisfy itself that there is a genuine issuewhich requires determination at trial.

As indicated by the Manitoba Court of Appeal in Atlas Acceptance Corp. et al. v. LakeviewDevelopment of Canada Ltd. et al., (MB CA), [1992] 4 W.W.R. 481; 78 Man.R. (2d) 161; 16 W.A.C. 161 (C.A.),the onus is on the responding party to set out specific facts and coherent evidence to satisfy the court that there is an issue which requiresdetermination at trial. I am not persuaded that the plaintiff in this case has met that responding onus. I am persuaded that the defendantson the other hand have met the onus to demonstrate that there is not sufficient evidence in this case to support a false imprisonment trial.

The plaintiff’s actions, particularly in connection with the second incident, whereby she at the very least ignored the request of officers,removed herself to a room where she retrieved a camera, returned and took pictures shortly before the police left the premises, cannot inany way meet the requirement of total confinement, whether physical or psychological. Rather than acting as an imprisoned personfearing for their safety, I would characterize the plaintiff’s actions as defiant.

Under the circumstances, with no credible and coherentevidence presented by the plaintiff I am persuaded that the false imprisonment claim should be summarily dismissed. 16 We adopt the findings made by the master, as well as his conclusion that there was no triable issue with respect to bothclaims. The master made no error when he concluded, after giving the matter a “good hard look” and applying the appropriate law, thatthere was no reasonable prospect that the action in false imprisonment would succeed. Accordingly, we would dismiss the appeal withcosts. C.J.M. J.A. I agree: J.A.