) ) DIONNE FRANCIS Plaintiff/Appellant – v. –, 2017 ONSC 1418

CITATION : Francis v. Peel Police Services Board, 2017 ONSC 1418 DIVISIONAL COURT FILE NO.: 581/15 DATE: 20170228 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) DIONNE FRANCIS Plaintiff/Appellant – and – POLICE CONSTABLE JOEY REGO, PEEL REGIONAL POLICE, REGIONAL MUNICIPALITY OF PEEL SERVICES BOARD, THE REGIONAL MUNICIPALITY OF PEEL, also known as REGION OF PEEL Defendants/Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) ) Andrew R.

Kerr , for the Plaintiff/Appellant Eugene Mazzuca , for the Defendants/Respondents ) ) HEARD at Toronto: February 28, 2017 KITELEY J. ( Orally ) [ 1 ] In August 1999, the plaintiff was involved in an accident at Canadian Tire in which she alleges a box fell on her head causing damages.

The statement of claim was issued in 2000 (the “Canadian Tire Action”). [ 2 ] On November 24, 2000, the plaintiff was involved in an incident with Police Constable Rego in which she alleges, amongst other things, that he wrongfully arrested her and, in paras. 13 – 17 that the “rough handling of the plaintiff” by other unnamed officers constituted an assault.

In May 2001, a Notice of Action was issued and the statement of claim was served in December 2001 (the “Peel Police Action”). [ 3 ] On October 13, 2002, the plaintiff was involved in a motor vehicle accident that led to her claims for accident benefits (the “Accident Benefits Claim”). [ 4 ] On September 2, 2015, Master Dash heard submissions on two motions:

(1) Firstly, by counsel for the defendants in the Peel Police Action to dismiss for delay under Rule 24.01(1)(

c) and for non- compliance with an order of Master McAfee dated April 1, 2011 pursuant to Rules 15.04(9) and 60.12. In reasons for decision dated September 29, 2015 ( 2015 ONSC 5546 ), Master Dash granted the motion and dismissed the action for delay pursuant to Rule 24(1)(

c) but did not dismiss for non-compliance with an order.

(2) The second motion was by counsel for the defendants in the Canadian Tire Action to dismiss for delay under Rule 24.01(1) and for breach of court order under Rule 60.12.

In reasons for decision dated September 29, 2015 ( 2015 ONSC 5507 ), Master Dash dismissed the motion on both grounds but on certain conditions. [ 5 ] The plaintiff has brought this appeal of the order in the Peel Police Action. [ 6 ] In his reasons for decision, the Master described the issues in the Peel Police Action, and pointed out at para. 5 that given the differing versions of the events, liability was very much an issue and dependent on credibility of the plaintiff and of the defendant Rego and others.

He noted that this is a case where the recollection of witnesses is of great importance. [ 7 ] At para. 6, the Master indicated that the plaintiff alleged that the incident in the Peel Police Action exacerbated the injuries she had suffered as a result of the Canadian Tire incident. He noted on page 3 that in 2008, Master Linton had ordered trial together of those two actions. At para. 6, the Master also pointed out that, as a result of the motor vehicle accident on October 13, 2002, the plaintiff alleged further injuries.

With three events such as those, he pointed out that the cause of the alleged ongoing injuries was an

issue in the Peel Police Action. [8] Counsel agree that at paras. 8-12, the Master identified the principles applicable to the motion and that he summarized thetwo types of cases identified in Langenecker v. Sauvé (2011 ONCA 803). [9] At paras. 13-17, the Master concluded that the delay was not intentional. There is no challenge to that finding. [10] At paras. 19-21, the Master concluded that the delay had been inordinate.

There is no challenge to that finding. [11] At paras. 22-32, the Master concluded that the plaintiff’s inordinate delay was inexcusable. [12] At paras. 33-47, the Master dealt with the issue of presumed and actual prejudice. He concluded that the plaintiff had notrebutted the presumption of prejudice. While unnecessary to consider actual prejudice, the Master observed that the basis of actualprejudice on which the defendants relied was really an aspect of presumed prejudice. He did not make a clear finding of actual prejudice. [13] At paras. 48-53, the Master dealt with the “enough is enough” analysis.

It is not an issue in this appeal. [14] As indicated earlier, having heard motions to dismiss two actions on the same day and granting one but not the other, at para.55 the Master noted the potential incongruity and he explained in some detail at para. 56, the significant differences between the conductof the litigation in each action. [15] At paras. 57-61, the Master concluded that he would not have dismissed for non-compliance with the order of Master McAfee. [16] In the factum on behalf of the plaintiff for this appeal, counsel refers to Langenecker v.

Sauvé, and the principles that anaction should not be dismissed for delay unless either (1) the delay was intentional or contumelious; or (2) the delay was inordinate,inexcusable and prevents the fair trial of the action, i.e. prejudiced the defendant. Counsel then lists in his factum the failures on the partof the Master to which I will refer below. [17] In that factum on behalf of the appellant, there are no submissions as to the standard of review on an appeal from an order of aMaster.

In the factum on behalf of the defendants/respondents in the appeal, counsel pointed out that a master’s order is given the samedeference as that of a judge and can be overturned only if the master made an error of law, exercised discretion on the wrong principlesor misapprehended the evidence such that there was a palpable and overriding error. (Zeitoun v. Economical Insurance Group, (2008) (ON SCDC), 91 O.R. (3d) 131). [18] Counsel for the appellant agreed that was the standard of review. He organized his oral submissions in that context.

He tookthe position that the Master exercised his discretion on wrong principles in the following respects: (1) failure to consider the plaintiff’s mental illness as an excuse; (2) failure to consider the numerous proceedings involving the plaintiff as an excuse; (3) failure to consider that both actions had been ordered to be tried together pursuant to the order of Master Linton dated June23, 2008; (4) reasons for not relying on lack of positive evidence from the plaintiff in this case; and (5) counsel for the appellant took the position that the Master erred in law in failing to consider in the motion by the Peel Policeevidence that had been filed in the motion by Canadian Tire. [19] I turn now to a consideration of each of those five grounds.

Failure to consider the plaintiff’s mental illness as an excuse for delay [20] Mr. Kerr concedes that there was no medical evidence before the Master that the plaintiff was mentally ill. He agrees that theplaintiff gave no evidence to that effect although he suggested that it would not be a surprise if a mentally ill person did not acknowledgebeing mentally ill.

He took the position that the Master should have concluded that the plaintiff was mentally ill based on her behaviourand conduct before the court, her ill-advised pursuit of other proceedings and running for Mayor and the fact that the Master dealt withher conduct and behaviour in the Canadian Tire reasons for decision at paras. 37-39 but the reasons in the Peel Police were silent. [21] The fact is that there was no medical evidence before the Master that the plaintiff was mentally ill. On both motions Mr.Kerr made submissions that the plaintiff suffered from mental illness.

But that is not evidence of mental illness. In the reasons fordecision in the Canadian Tire Action, the Master did consider the plaintiff’s behaviour and conduct but did not conclude that she suffereda mental illness. [22] I am not persuaded that the Master exercised his discretion on wrong principles in failing to consider that the plaintiff had amental illness that was an excuse for the delay. Failure to consider the numerous proceedings involving the plaintiff as an excuse fordelay [23] Mr. Kerr took the position that the plaintiff had been occupied with a proliferation of other proceedings.

In the Canadian Tirecase, there had been at least six different attempts to dismiss for delay although the defendants said it was nine attempts; plus the issue of

the gender of the medical assessor had absorbed considerable time and attention and ultimately an order was made by Sanderson J.; and the plaintiff had engaged in 11 proceedings in the context of the Accident Benefits Claim. [ 24 ] Mr. Kerr took the position that the Master exercised his discretion on wrong principles by concluding that the plaintiff made a conscious choice to not deal with the Peel Police Action instead of concluding that all of those were distractions that provided an excuse for delay. [ 25 ] The Master dealt with this issue at paras. 25, 29, 31 and 32.

At para. 19 of her affidavit, the plaintiff effectively said that her priority was not the Peel Police case. It was open to the Master to conclude that that constituted a deliberate choice. [ 26 ] I am not persuaded that the Master exercised his discretion on wrong principles in connection with the proliferation of proceedings.

Failure to consider that both actions had been ordered to be tried together [ 27 ] As indicated earlier, at para. 6 the Master identified the overlap between the two actions, precipitated because she said that the incident with the police in November 2000 exacerbated the injury she sustained in August 1999 in the Canadian Tire incident. Master Linton had made the order for trial together. The Master was well aware of that. He need not have directed his analysis any further. [ 28 ] I am not persuaded that the Master exercised his discretion on wrong principles in connection with the relevance of the Linton order.

Reasons for not relying on the lack of positive evidence from the plaintiff in this case [ 29 ] Mr. Kerr took the position that the Master did not take into consideration positive evidence, namely that the transcript of the examination for discovery of Rego was available. Nor did the Master accept that there were no other witnesses whose evidence was not available. [ 30 ] In his reasons at para. 5, the Master pointed out that credibility was important and that the recollection of witnesses was of great importance.

At para. 46 of his endorsement, he indicated his “understanding” that officer Rego may have access to the transcript. Although it was not available to him, the Master assumed that it would be. Not only is officer Rego named but in paras. 13-17 of the amended statement of claim, others are referred to and it is alleged that they committed an assault.

I am satisfied that the Master properly took that evidence into consideration. [ 31 ] I am not persuaded that the Master exercised his discretion on wrong principles in connection with the evidence affecting his conclusion on the failure to rebut the presumed prejudice. Error of law in failing to consider evidence filed in the Canadian Tire case [ 32 ] Mr. Kerr had filed his client’s affidavit in response to the Peel Police delay motion and another of his client’s affidavits in response to the Canadian Tire delay motion. He had not filed all evidence in both motions.

In addition, evidence of Donnelly and two affidavits of Pollack had been served in the Canadian Tire motion but not served in the Peel Police motion. [ 33 ] In submissions, Mr. Kerr had asked the Master to consider all the evidence on both motions. The Master asked for the position on behalf of the defendants in the Peel Police motion and, although Mr. Mazzuca had received some of that evidence from counsel in the Canadian Tire motion, he had not received all of the extensive exhibits and in the case of the second Pollack affidavit he had received the affidavit just before the hearing of the motion. Mr.

Mazzuca opposed the Master relying on all of that evidence in the Peel Police Action. The Master ruled that he would not rely on evidence in the Peel Police motion that had only been filed in the Canadian Tire motion. [ 34 ] It was appropriate for Mr. Mazzuca to take that position because it is fundamental that a party going into a motion is entitled to know the case to be met. Given that the motion was on account of delay, the Master declined to adjourn and contribute to further delay.

The fact that there was an order for trial together did not mean that all of the evidence filed in relation to separate motions for delay should all be considered. [ 35 ] I am not persuaded that the Master erred in law in his refusal to consider evidence filed in the Canadian Tire motion. Conclusion [ 36 ] The reasons for decision of the Master contain an extensive and detailed review of the history of this action. Those reasons demonstrate that he appreciated and analyzed all of the submissions made on behalf of the plaintiff. Not surprisingly, the plaintiff does not agree with the outcome or the rationale.

But an appeal is not an opportunity for counsel to take another stab at refining or re-arguing earlier submissions. The burden of proof is on the appellant to satisfy this court that the decision should be set aside based on demonstrated errors of law, exercise of discretion on wrong principles; or misapprehension of the evidence such that there was a palpable and overriding error. Mr.

Kerr has made a valiant effort on behalf of his client but the appellant has failed to satisfy the court. [ 37 ] The appeal is dismissed. [ 38 ] I have endorsed the back of the Appeal Book and Compendium as follows: “Appeal by the plaintiff from order of Master Dash dated September 29, 2015. For oral reasons given, appeal is dismissed. Plaintiff shall pay costs in the amount of $7,500.”

___________________________ kiteley J. Date of Reasons for Judgment: February 28, 2017 Date of Release: March 6, 2017 CITATION : Francis v. Peel Police Services Board, 2017 ONSC 1418 DIVISIONAL COURT FILE NO.: 581/15 DATE: 20170228 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: DIONNE FRANCIS Plaintiff/Appellant – and – POLICE CONSTABLE JOEY REGO, PEEL REGIONAL POLICE, REGIONAL MUNICIPALITY OF PEEL SERVICES BOARD, THE REGIONAL MUNICIPALITY OF PEEL, also known as REGION OF PEEL Defendants/Respondents ORAL REASONS FOR JUDGMENT kiteley J . Date of Reasons for Judgment: February 28, 2017 Date of Release: March 6, 2017