2010 ONSC 2632, 2010 ONSC 2632

CITATION : Charette v. Chief Sault Ste. Marie Police Service et al, 2010 ONSC 2632 COURT FILE NO.: 09-1380 DATE: 20100504 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Bradley Charette, Plaintiff AND: The Chief of Sault Ste. Marie Police Service et al, Defendants BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD COUNSEL: P. Daffern, Counsel for the Plaintiff S. Zacharias, Counsel for the Defendants HEARD: April 30, 2010 ENDORSEMENT [ 1 ] The Defendant moves to strike the cause of action against Chief Davies and for transfer of proceeding to Sault Ste.

Marie. [ 2 ] The Plaintiff concedes that the cause of action in clause 12 of the Statement of Claim is deficient. 12. The defendant Robert Davies is the Chief of the Sault Ste. Marie Police Service and as such is responsible for the conduct of members of the Sault Ste. Marie Police Service and for the training and supervision of the service members. Chief Davies is therefore vicariously liable for the unlawful acts and / or negligence of the remaining defendants save for the Sault Ste.

Marie Police Services Board. [1] [ 3 ] In argument the Plaintiff immediately conceded that this assertion contained no cause of action [2] but had served a cross motion to amend. Accepting this concession I articulated that the pleading would be struck but moved on to consider whether amendment should be granted. I find no consequence in the sequence of striking and amending, it all being part of the single proceeding before me. The significant point is whether a new cause of action is being asserted.

If so, subject to discoverability principles, is it out of time? [ 4 ] The Plaintiff did not put forward evidence in relation to discoverability of the assertions put forward in the proposed amendment which reads as follows: 12. The defendant Robert Davies is the Chief of the Sault Ste. Marie Police Service and as such is responsible for the conduct of members of the Sault Ste. Marie Police Service and for the training and supervision of the service members. [ Chief Davies is therefore vicariously liable for the unlawful acts and / or negligence of the remaining defendants save for the Sault Ste.

Marie Police Services Board. ][crossed out] Chief Davies was at all material times a member of the management team of the Sault Ste. Marie Police Service that decided on October 19. 2007 to request that the Registrar of Motor Vehicles in Ontario issue a ninety (90) day driver’s licence suspension of the Plaintiff’s driver’s licence. At the time. Chief Davies knew or ought to have known that the Sault Ste. Marie Police Service did not have legal grounds for this request and the request was therefore unlawful and is a breach of the authoritv the Chief exercised in his position as the Chief. 12A.

Chief Davies subsequently was informed that the ninetv (90) dav licence suspension was unlawful. He then undertook to correct this problem bv asking the Registrar of Motor Vehicles in Ontario to revoke the suspension. However. He fa failed to have the suspension revoked and the Plaintiff’s driver’s licence remained suspended for ninetv (90) days. This prevented the Plaintiff from being able to perform part of his duties as an O.P.P. officer and from operating his hunting and fishing guiding business while his driver’s licence was suspended.

This has resulted in the Plaintiff suffering a substantial loss of income and other damages. [ 5 ] As to proposed amendment paragraph 12, the Plaintiff states that the whole of the Statement of Claim contains allegations of fact brought into that paragraph to include the Defendant Chief of Police, most particularly invoked by the plural in paragraph 34: 33. Members of the Sault Ste. Marie Police Service received the benefit of legal advice provided by the plaintiff’s then lawyer they could not legally suspend the Plaintiff’s license for 90 days.

34. Despite this advice Cst. Hohmeyer under the express order of her supervisor officers requested a 90 day suspension of theplaintiff’s license. [My emphasis added] [6] As to proposed amendment paragraph 12A, no source for this assertion is given, and no indication of when the allegedconduct was discoverable or discovered. [7] The Plaintiff cites the case of Fitzpatrick Estate v. Medtronic Inc. [3] wherein J.H.

Jenkins J. stated: Looking at the totality of the allegations of negligence and the discussions between the defendant doctors and the deceased, I am of theopinion that the new pleas against the defendant doctors are of different legal conclusions drawn from the same set of facts. 45 I would have found had it been necessary that ‘special circumstances’ exist here which warrant the proposed amendment.

Theexisting allegations of negligence against the defendant doctors and the facts that were claimed, is sufficient in my view to put thedefendant doctors on notice of a claim of uninformed consent. 48 Proposed amendments to pleadings, even if they profess to add a new cause of action after the expiration of an applicablelimitation period must be analyzed on the facts of each case. [8] In Andersen v. St. Jude Medical, Inc.

J.L Lax J. stated: 7 Rule 26.01 of the Rules of Civil Procedure is mandatory and requires the court to grant leave to amend a pleading at any stage ofan action unless prejudice would result that cannot be compensated for by costs or an adjournment.

Section 12 of the CPA gives thecourt broad discretion in the conduct of a class action. 11 ... All of the material facts giving rise to waiver of tort have been pleaded with respect to the negligence claim and there has beenfull discovery on this. 12 Even if waiver of tort Is ultimately found to be an independent cause of action rather than a remedy, “have been pleaded as theyhave been here, there is in fact no new cause of action being added:” Fitzpatrick Estate v. Medtronic Inc., (ON SC),[1996] O.J. No. 2439 (Gen.

Div.) at para. 22. [9] The Plaintiff asserts the Chief of Police had enough information before the amendment and when relying on the same factsto base the new theory, it is not a new cause of action. [10] The facts spread throughout the Statement of Claim are insufficiently joined to the Defendant Chief of Police by thepluralizing of “superior officers” as those instructing the conduct of Cst. Hohmeyer. Paragraph 12 is nothing more than the assertion ofvicarious liability that it replaces. [11] Proposed amendment 12a adds facts. New facts. In Parsons v. Deutscher Estate J.L. Lax J.

Divisional Court – [4] The principles that these cases establish are as follows. First, where a plaintiff relies on discoverability of the facts giving rise to theapplication of discoverability in the proposed amended Statement of Claim, and provide some evidence towards its application. Second,as the date on which the cause the plaintiff intends to prove a date other than the date the events occurred. Third, the material facts uponwhich the moving party relies in support of the application of the discoverability doctrine must be pleaded m the first instance and cannotbe pleaded in reply.

If not done, this is fatal to a proposed amended Statement of Claim. [My emphasis added] [12] In Romagnuolo v. York (Regional Municipality) Police[5] Keenan J. stated: 54 In Region Plaza, Rosenberg J. found that it is not sufficient for a plaintiff to simply allege a breach of duty owed to the plaintiff bythe defendant.

The plaintiff must also plead the material facts supporting such allegations, as the defendant must know how and whenthey have breached their duties to the Plaintiff. [13] It is insufficient to avoid a limitations argument by not saying when a fact occurred. [14] On all the evidence before me and upon review of the proposed amendment, read with the assertions otherwise contained inthe Statement of Claim, the amendment discloses no cause of action that is not barred by the expiry of the limitations period. Theamendment is therefore refused and that leaves no cause of action against police Chief Davies.

[ 15 ] The second issue before me was the Defendants’ request for transfer of the proceedings to Sault Ste. Marie. [ 16 ] The amended Rule 13 governs and permits such transfer based on the factors set out where desirable in the interests of justice. [ 17 ] Currently, these factors weigh heavily in favour of the Defendants’ request: (

i) where a substantial part of the events or omissions that gave rise to the claim occurred, Police actions all occurred in Sault Ste. Marie. The Statement of Claim asserts that the cause of action arose in Sault Ste. Marie. [6] (ii) where a substantial part of the damages were sustained, As the Plaintiff lives and works in Sault Ste. Marie any damages or ongoing damages if any are suffered will be in Sault Ste. Marie (iii) where the subject-matter of the proceeding is or was located, The complained of acts of detention and suspension all occurred in Sault Ste.

Marie. (iv) any local community’s interest in the subject-matter of the proceeding. Based on common sense, and apart from the authorities, it seems logical that a case should be heard at a place where the cause of action arose or where all or at least some of the parties are located. The public most affected by a case has a right to observe the hearing. [7] The relevance of an open court is undermined if a hearing occurs in a place completely removed from the community giving rise to the dispute. [8] Interest of a community in the integrity of local police is obvious.

The Plaintiff argues however that a wider provincial interest will be invoked. Through the discovery process in the action now before me, the Plaintiff believes he will obtain information to broaden his allegations to include senior OPP officials. In such case the Simcoe County court would best serve the openness concept since OPP headquarters, and presumably the decision making is in Orillia. None of this has matured into a claim. The Plaintiff argues this motion to transfer is premature, that it should await the process that he hopes will widen the scope of public interest.

I disagree that the decision as to proper forum in the current action should await developments that are not yet and may never be realities. (

v) the convenience of the parties, the witnesses and the court, The current parties, including the Plaintiff, are all local to Sault Ste. Marie. I am not impressed by the assertion that experts not yet chosen, or potential parties not yet joined may be from other locations. The convenience of the court should be a constant but even in this there is a tilt in favour of Sault Ste. Marie. Court proceedings in that community are at issue and experience tells me may be more easily

accessed locally than from another administration. Moreover, Simcoe County Courts are not expected to adjudicate on every matter involving OPP senior officers. Countless Police Act matters are heard elsewhere. (vi) whether there are counterclaims, crossclaims, or third or subsequent party claims, This is not currently applicable. (vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits, The Plaintiff has raised concern that a Trial Judge from Sault Ste. Marie may have conflicts as Sault Ste.

Marie police may have provided security in the courthouse. Indeed, there are many occasions when a local court may have contact with police for security or as witnesses or investigators in criminal matters. This is so common place as to be likely but I find no basis to prejudge bias or conflict. Real relationships which could raise an apprehension of bias or concern for conflict can be addressed by usual processes including scheduling and circuiting.

From a practical point of view this concern was address in analogous circumstances involving a municipality as party rather than police: 10 ...she will not get a fair trial, as the judge who tries this case may be a resident of the Defendant the Corporation of the City of Belleville.” There is no evidence to support this concern and in my view it has no merit whatsoever. It would mean that no actions naming a municipality as defendant could ever be tried in that municipality. [9] That Plaintiff’s counsel is in Barrie is not sufficient to balance against the other factors.

I am not impressed with the argument that Defendants’ counsel is also closer to Barrie than Sault Ste. Marie and that travel to Sault Ste. Marie may be expensive. Sault Ste. Marie is a City in Ontario. I do not discriminate against communities by size or proximity to counsel. The same argument is often brought to transfer Barrie proceedings for the convenience of counsel chosen by parties who are not local. It is their choice. I infer they thought the expense was worth it. Other courts have seen it in similar light: [10] It is therefore somewhat more expeditious to try this action in Toronto.

That aspect of the factor favours Toronto. It would be equally expensive to try the action in either venue, but given that the plaintiffs chose to retain counsel and experts in Toronto, a venue that has no connection with either the events in dispute or any of the parties, that aspect of the factor favours Belleville. (viii) whether judges and court facilities are available at the other county, There is no evidence about that but Sault Ste.

Marie does have courts. (ix) any other relevant matter, The Plaintiff asserts that this transfer is an attempt to make litigation too expensive for the Plaintiff, that the Defendants have “deep pockets” and it is an access to justice issue. The court is indeed wary of the David vs. Goliath situation where litigation is not carried out on an even playing field.

It is impossible for me to accurately assess the litigation tactics at this stage “Starving out” one side may have a balance in the prediction of extravagant claims against individuals higher up in the chain of command that are as yet without evidentiary basis. Better to follow the enumerated factors in Rule 13 than to guess at ulterior motives. [ 18 ] Being unpersuaded by the uncertainties that suggest a venue other than Sault Ste. Marie, I am left with the factors under Rule

13 that so overwhelmingly favour Sault Ste. Marie. [ 19 ] It is desirable in the interests of justice that the matter be transferred to Sault Ste. Marie. I therefore order it so. [ 20 ] Costs may be addressed in writing of no more than 2 pages of argument together with a cost memorandum and any offers, submitted to the judicial secretaries by June 1, 2010. Later submissions with not be received. EBERHARD J. Date: May 4, 2010 [6] Gould V. BMO Nesbitt Burns Inc. et al . para 14