2017 ONSC 479, 2017 ONSC 479

CITATION : Brignall v. Lynch, 2017 ONSC 479 COURT FILE NO.: 1526/13 DATE: 2017/01/20 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Robert Brignall (Plaintiff) - and - Matt Lynch, James Crocock, John Doe(s), Jane Doe(s), Woodstock Police Services Board and the Corporation of the City of Woodstock (Defendants) BEFORE: Justice J. N. Morissette COUNSEL: K. Egan, for the Plaintiff D.

Thompson, for the Defendants HEARD: January 11, 2017 ENDORSEMENT Introduction: [ 1 ] The plaintiff brings this motion seeking an order to strike defendants’ jury notice on the grounds that it is impermissible for a jury to preside over a claim against the police. The defendants, Matt Lynch, James Crocock, John and Jane Doe, are police officers with the Woodstock Police Services Board. [ 2 ] The action against the Corporation of the City of Woodstock was dismissed on consent by order dated October 21, 2013.

The Jury Notice was filed on October 25, 2013. [ 3 ] The plaintiff alleges he sustained injuries during his arrest by the defendants on February 10, 2013. The principle allegation is that the officers used excessive force when they arrested him. Issue: [ 4 ] Does relief against the defendant, the Woodstock Police Services Board, constitute relief against a “municipality” under section 108(2) of the Courts of Justice Act , R.S.O. 1990, c. C.43, thereby precluding a trial by jury? Law and Analysis: [ 5 ] In support of his motion, the plaintiff raises two arguments:

(1) Cases involving the OPP cannot be heard by juries. It does not make sense to allow juries for officers in one situation and not another. Therefore, this prohibition should also be applied to cases that involve municipal officers.

(2) The Police Services Act [1] was amended in 1996 placing the authority for funding back onto the municipality, pursuant to s. 39(5) of the Act. Therefore, the defendants’ reliance on the analysis employed by the court in Brown v. Thunder Bay (1986), 11 C.P.C. (2d) 159 (Ont. Dist. Ct.) , is no longer applicable. [ 6 ] Starting with the latter argument, s. 108(2) of the Courts of Justice Act ( CJA ) provides that any action that includes relief against a municipality shall be tried without a jury.

The plaintiff argues that since municipal police forces are funded by the municipality, any lawsuits brought against them are technically seeking relief from the municipality. Therefore, under the CJA , a jury trial is not available. [ 7 ] However, at paras. 18 - 19, the court in Brown rejected this argument: Counsel for the plaintiffs correctly points out that any damage award in this action must be paid by the City of Thunder Bay by virtue of s. 24(4)(a). Therefore he says, this is an action for relief against a municipality which must be tried without a jury.

In my opinion the seeming logic, simplicity and directness of this argument proves to be illusory and misleading when considered in the

context of the respondent’s superior rule in relation to police officers, boards and municipalities. Particularly noteworthy are the awkwardly structured provisions of the Police Act providing for the institution of an action against the chief of police for torts committed by members of the police force under his direction and control, as a condition precedent to mandatory payment of a judgment by a municipality having a board.

If the Legislature had intended to deprive litigants of the substantive right to a jury trial in actions involving the police this could have been accomplished easily and unequivocally by the addition to s. 121(2)12 of the following underlined words: Relief against a municipality, a board of commissioners of police, a chief of police or a police officer .

I am not prepared to adopt the circuitous logic that an action brought pursuant to s. 24 of the Police Act against the chief of police should be equated to relief against a municipality under s. 121(2) 12 the Courts of Justice Act 1984. [ 8 ] The plaintiff seeks to distinguish Brown on the grounds that the Police Services Act has since been reformed, specifically regarding s. 39(5), reversing, they submit, the onus to demonstrate who provides funding to the board. [ 9 ]

Section 39 of the Police Services Act states: 39.

(1) The board shall submit operating and capital estimates to the municipal council that will show, separately, the amounts that will be required, (

a) to maintain the police force and provide it with equipment and facilities; and (

b) to pay the expenses of the board’s operation other than the remuneration of board members. …

(5) If the board is not satisfied that the budget established for it by the council is sufficient to maintain an adequate number of police officers or other employees of the police force or to provide the police force with adequate equipment or facilities, the board may request that the Commission determine the question and the Commission, shall, after a hearing, do so. 1997, c. 8, s. 26. [ 10 ] When Brown was decided, s. 14 of the Police Act , R.S.O., 1980, c. 381, governed.

Section 14 stated: 14.

(1) Subject to subsection (3) and to clause 42 (g), the police force in a municipality having a board shall consist of a chief of police and such other police officers and such constables, assistants and civilian employees as the board considers adequate, and shall be provided with such accommodation, arms, equipment, clothing and other things as the board considers adequate.

(2) Every board shall, on or before the 1st day of March in each year, prepare and submit to the council or each council responsible for maintaining the force, for its consideration and approval its estimates of all moneys required for the year to pay the remuneration of the members of the police force and to provide and pay for the accommodation, arms, equipment and other things for the use and maintenance of the force.

(3) Where the council does not agree with the board on the estimates or on the adequacy of the number of members of the police force or the accommodation, arms, equipment or other things for the use and maintenance of the force, the Commission shall determine the question after a hearing. [ 11 ] The difference between the two sections centres on what happens when the funding or estimates are in dispute. Currently, the board submits its estimates to council, which then establishes the budget.

If the board is not satisfied with the budget, the board may request the Commission to intervene. [ 12 ] Prior to 1997, the board provided an estimate. If council did not agree with the board’s estimate, then the Commission was called upon to intervene. [ 13 ] In my view, this does not reverse the onus but rather mandates more steps be taken. [ 14 ] One interesting distinction between the Police Act at the time of Brown compared to the Police Services Act is the use of the phrase “as it considers adequate”.

At para. 8, the court in Brown placed importance on this phrase, which appeared at s. 14 of the Police Act : However, the Police Amendment Act, 1965, S.O. 1965, c. 99, amended the law from the Newhall case, supra, giving boards wide discretion by inserting the words “as the board considers adequate”. This, within the ambit of its jurisdiction a board is independent of any control by the municipality.

[15] “As it considers adequate” is not present in s. 39 of the Police Services Act. It appears in s. 130(1), which outlines provisionsfor expenditures and designates council now has the power to consider what it deems adequate. The

section reads: 130.

(1) If, when the council is adopting its annual estimate, a notice of desire to bargain has been given but there is not yet anagreement, decision or award, the council shall make such provision for the payment of expenditures that will result from the expectedagreement, decision or award as it considers adequate. [16] Does this change in language render the board any less independent from the municipality than it was during the time ofBrown? [17] Counsel for the defendants says that the wording in section 39 (5) of the Police Services Board Act is the same or similar inmeaning as before and it has been for decades. [18] In the current statutory regime, liability for torts committed by police officers in the course of their duty is imposed on thePolice Services Board, rather than the Chief of Police. [19] In Brown, Kurisko J. reviewed the law and policy principles and dismissed the motion to strike the Jury Notice.

He held thatan action brought against a police chief could not be equated with an action for relief against a municipality. He further pointed out thata constable is not an agent of the municipality or the Crown. [20] Finally Kurisko J. held that had the legislature intended to deprive litigants of the substantive right to a jury trial in actionsinvolving the police, it would have expressly done so. [21] In Franklin v Toronto Police Services Board (2008), 166 A.C.W.S. (3d) 58 (Ont. Sup. Ct.), Spence J. struck the Jury Notice onthe grounds of protecting a confidential informant.

In doing so, at para. 28, he stated that the statutory exceptions to a jury trial did notapply in that case: The right to a trial by jury is a statutory right and a substantial one. In an action in the Superior Court, a party may require that the issuesof fact be tried by a jury, unless otherwise provided. The statutory exceptions to a jury trial, which require a trial by a judge alone, do notapply to the case at hand. [22] As defence counsel noted, there have been a number of recent cases against police where a jury trial was used:

(1) In Oniel v. Metropolitan Toronto (Municipality) Police Force (2001), (ON CA), 141 O.A.C. 201, rev’g (1998),39 W.C.B. (2d) 503 (Ont. Ct. J.), an action was brought for malicious prosecution against the Toronto Police Force using a jury as thetrier of fact. The Jury dismissed the action, and the plaintiff appealed. The ruling was overturned by the Ontario Court of Appeal on thegrounds that the trial judge erred in the instruction to the jury and by excluding evidence. The issue of a jury as the trier of fact was notdiscussed, nor was it advanced as a ground for appeal.

(2) In Jeremiah v. Toronto Police Services Board, 2007 ONCA 671, 255 O.A.C. 198, an action was brought for malicious prosecutionand negligent investigation against the Toronto Police Service Board. The appellant appealed the jury’s decision by citing an error madeby the trial judge in his instructions. The Court of Appeal dismissed the appeal, holding that the trial judge made no error. The issue of ajury as the trier of fact was not discussed, nor was it a ground of appeal.

(3) In Porter v. York Regional Police (2001), 106 A.C.W.S. (3d) 426 (Ont. Sup. Ct.), aff’d (2002), (ON CA), 167O.A.C. 390, an action was brought against the York Regional Police. The trial judge discharged the jury, finding that the case was notappropriate to be tried with a jury due to the complexity of the trial. The decision was affirmed by the Ontario Court of Appeal. Thethreshold issue of a jury as the trier of fact was not discussed at either level of court. [23] Finally, the argument that cases involving the OPP are not to be heard by juries, is unmeritorious. In Perrier v.

Sorgat (1979), (ON SC), 25 O.R. (2d) 645 (Co. Ct.), the court allowed a jury trial to proceed against members of the OntarioProvincial Police force. The court found that a police officer was not an agent of the Crown within the meaning of the Crown Agency Actand therefore, the Proceedings against the Crown Act did not apply to preclude a jury trial. [24] I therefore conclude that the independence of the Police Services Board from the municipality is maintained as set out in s. 31of the Police Services Act: s. 31.

A board is responsible for the provision of adequate and effective police services in the municipality and shall, … (

b) generally determine, after consultation with the chief of police, objectives and priorities with respect to police services in themunicipality. [25] Accordingly, I conclude that relief against the Woodstock Police Services Board does not constitute relief against themunicipality for the purpose of s. 108 of the CJA. The motion to strike the Jury Notice is dismissed. Costs:

[ 26 ] If the parties are unable to agree on the issue of costs, I may review brief written submissions on costs within 30 days hereof. “Justice J. N. Morissette” Justice J. N. Morissette Date: January 20, 2017