Omorogbe v Kovacs, 2022 SKCA 136

Court of Appeal for Saskatchewan Docket: CACV3791 Citation: Omorogbe v Kovacs , 2022 SKCA 136 Date: 2022-11-23 Between: Fredrick Omorogbe Appellant (Plaintiff/Applicant) And Constable Frank Kovacs, Constable Colin Schellhorn, and Sergeant Kyle McFetridge Respondents (Defendants/Respondents) Before: Schwann, Leurer and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr.

Justice Leurer The Honourable Madam Justice McCreary On appeal from: QBG 861 of 2019, Regina Appeal heard: October 4, 2022 Counsel: Fredrick Omorogbe on his own behalf Holli Kuski Bassett and Eric Dulle for the Respondents Schwann J.A. I. INTRODUCTION [ 1 ] Fredrick Omorogbe applied under Rule 5-12 of The Queen’s Bench Rules for the production of documents listed in an affidavit of documents that had been prepared by the respondents in these proceedings and for an order permitting him to cross-examine the respondents prior to their

summary judgment application. A Queen’s Bench Chambers judge dismissed all facets of Mr. Omorogbe’s application: Omorogbe v Kovacs (25 February 2019) Regina, QBG 861 of 2019 (Sask) [ Chambers Decision ]. [ 2 ] Mr. Omorogbe applied to this Court for leave to appeal the whole of the Chambers Decision . His request was denied but for the narrow question of whether the Chambers judge erred in failing to order the respondents to produce the documents in their unredacted form. [ 3 ] For the reasons set out below, I conclude that Mr. Omorogbe’s appeal must be dismissed. II.

BACKGROUND [ 4 ] On September 10, 2015, SaskPower received an anonymous bomb threat. In the police investigation that followed, SaskPower was asked to compile a list of current and former employees who might bear a grudge against that corporation. As it turned out, one SaskPower employee sent an email to another SaskPower employee in which Mr.

Omorogbe was identified as just such a person. [ 5 ] The Regina Police Service [RPS] had also received information from an individual who had observed a male using a public pay phone that was located near the SaskPower building around the same time the bomb threat had been made. That individual provided a written statement describing what they had witnessed. [ 6 ] The RPS investigated Mr. Omorogbe as a person of interest in connection with the bomb threat. However, Mr. Omorogbe was never arrested or charged with any offence arising from that incident. Thereafter, Mr.

Omorogbe has pursued litigation in various forums to obtain documents and records that he believed to be in the hands of the RPS and SaskPower. A brief canvass of what transpired provides a helpful context for this appeal. [ 7 ] Approximately 18 months after the bomb threat was made, Mr. Omorogbe commenced an action against SaskPower for unjust dismissal and for maliciously filing a complaint against him with the RPS. That action is ongoing. Mr.

Omorogbe also commenced a separate action against the RPS, but it was dismissed by Keene J.: Omorogbe v Regina Police Service (28 February 2019) Regina, QBG 2892 of 2018 (Sask). Undeterred, Mr. Omorogbe next commenced an action against Evan Bray, the chief of police for the RPS, which was also dismissed . [ 8 ] In the midst of those proceedings, Mr. Omorogbe made a series of requests for the production of documents, purportedly in the hands of the RPS and in connection with their criminal investigation of him. They included the following: (

a) an access to information request under The Local Authority Freedom of Information and Protection of Privacy Act , SS 1990- 91, c L-27.1 [ LAFOIPA ]; (

b) in the context of the SaskPower action, an application pursuant to Rule 5-15 of the Rules for the production of “investigative files” in relation to himself; and

(

c) a request directed to Camolyn Martin, the access and privacy officer for the RPS, for the same batch of information he had sought in (

a) and (

b) above. Mr. Omorogbe also made a second LAFOIPA request of the RPS in March of 2019. That request was similar in scope to what Mr. Omorogbe had previously requested; but, this time, he also asked for detailed telephone records that the RPS was unable to readily provide. [ 9 ] In an affidavit sworn by Ms. Martin on June 7, 2018, in the context of Mr. Omorogbe’s action against Chief Bray, she summarized the disclosure process that was taken by the RPS in response to Mr. Omorogbe’s many requests in this way: Mr.

Omorogbe has been provided with all of the personal information the Regina Police Service has on IEIS [a data management system] related to him. The complete investigative file of the bomb threat at SaskPower has been provided, subject to statutory redactions that I believed were necessary for us to be in compliance with the provision of the LAFOIP[A] . [ 10 ] In April of 2019, Mr. Omorogbe commenced the within action against Cst. Frank Kovacs, Cst. Colin Schellhorn and Sgt. Kyle McFetridge [collectively, the respondents]. These were the RPS officers who had played a role in the bomb threat investigation.

The essence of Mr. Omorogbe’s claim is that they had engaged in actionable wrongdoing during their investigation. Among other things, he has pleaded police harassment, intimidation, abuse of public office, fabrication of court records, defamation, obstruction of justice and perjury. [ 11 ] In June of 2019, Mr. Omorogbe applied, pursuant to Rule 5-1(2) and Rule 5-12(2)(a), for an order compelling the respondents and their legal counsel to “disclose all documents relevant to the matter in issue in the action”. Mr.

Omorogbe’s application was dismissed by Tochor J., who found it to be premature because the parties had not yet participated in mandatory mediation: “At this point, it is clear Mr. Omorogbe is not entitled to an order requiring the defendants to produce documents” ( Omorogbe v Kovacs (16 July 2019) Regina, QBG 861 of 2019 (Sask) at 1). [ 12 ] Thereafter, the respondents served Mr. Omorogbe with an affidavit of documents [AOD], as required by Rule 5-5 of the Rules . Sergeant McFetridge, who swore the affidavit, averred as follows: “The documents listed in

Schedule 1 and 2 are in our possession, custody, or control”.

Schedule 1 itemizes 39 documents. Nothing in the AOD indicates or suggests in any way that some of those documents are redacted versions of the original document.

Schedule 2 is noteworthy in that, under the description of “Relevant and material documents in [the respondents’] possession, custody, or control for which there is an objection to produce”, no such documents are identified. Neither do the respondents list any documents under

Schedule 3 of the AOD said to be “previously in the possession, custody, or control” of the respondents. Copies of the

Schedule 1 documents were provided to Mr. Omorogbe. [ 13 ] Mr. Omorogbe served the respondents with a notice to produce documents, pursuant to Rule 5-11, in which he sought the production of the unredacted AOD documents and numerous other documents or records, many of which did not exist. The notice to produce was followed by Mr.

Omorogbe’s application under Rule 5-6 and Rule 5-12 for an order compelling the respondents and their legal counsel “to fully disclose all documents relevant to the matter in issue in action that were provided to the Plaintiff and/or provide reasons as to why the Defendants and their legal counsel did not fully disclose the documents” and “[a]n Order mandating the Respondents to fully list the documents objected to on the basis of solicitor–client privilege as set out in Rule 5-12(1)(b)(c)”. [ 14 ] For their part, the respondents brought an application in January of 2020 to strike Mr.

Omorogbe’s statement of claim for disclosing no reasonable cause of action or for being scandalous, frivolous and vexatious. In the alternative, the respondents sought to have his claim dismissed pursuant to the

summary judgment process on the grounds that (

a) the limitation period had expired, and (

b) they had acted in good faith in the lawful execution of their duties and were therefore immune from liability pursuant to s. 10 of The Police Act, 1990 , SS 1990-91, c P-15.01 . In response to that application, Mr. Omorogbe applied under Rule 7-3(2) for an order permitting him to cross-examine the respondents on their

summary judgment affidavits and for an order for further and better disclosure. In this application, Mr. Omorogbe asserted that a “majority of the documents disclosed are heavily redacted, and some records were manipulated by the Defendants”. [ 15 ] The Chambers judge dismissed Mr. Omorogbe’s application in its entirety. She determined that (

a) the cross-examination of any or all the respondents would neither advance Mr. Omorogbe’s position nor assist in resolving the

summary judgment application, and (

b) the respondents did not fail to disclose all of the documents relevant to any matter in issue in the action. More will be said about the Chambers Decision below. [ 16 ] As noted, Mr. Omorogbe applied under s. 8 and s. 10 of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 , for leave to appeal the whole of the Chambers Decision to this Court.

Although he asserted numerous errors of law with how the Chambers judge had assessed and determined the various issues, leave was granted on the following singular ground: “Did the Chambers judge err in law by refusing to order the production of the documents listed in the Prospective Respondents’ affidavit of documents in unredacted form?” ( Omorogbe v Kovacs (6 April 2021) Regina, CACV3791 (Sask CA) at para 32). III. ANALYSIS A.

Preliminary issue: Which documents? [ 17 ] The question posed by this appeal is narrow: whether the Chambers judge erred in her assessment of the respondents’ obligation to produce the documents listed in the AOD in their unredacted form. I pause to observe that this issue was made somewhat difficult for the Chambers judge to address – as it is on appeal – because of the way in which the respondents had described the documents in their AOD. That is to say, the respondents failed to identify which of the 39 documents were redacted and, if they were redacted, why they refused to produce them in an unredacted form.

As such, the AOD leaves one with the impression that the referenced documents and records are complete, unredacted originals or copies of the original documents.

[ 18 ] To assist this Court in understanding which of the 39 documents Mr. Omorogbe sought to have disclosed, each party was asked to provide a list of same by way of supplemental submissions. Mr. Omorogbe’s list identifies 31 of the 39 documents in one way, shape or form as being redacted. Some of the documents he singled out appear to go beyond what was requested; in that, he seeks to have the RPS create several new documents or to answer new questions. To illustrate my point, he now seeks the following: (

a) an explanation of how his name was entered into the IEIS system, which is a data management system used by the RPS; (

b) the date, time and by whom any information was entered; (

c) the source and copies of his photo that were used in the police photo line-up; (

d) the internal protocol for eyewitness recognition; and (

e) the sources and samples of the DNA analysis. [ 19 ] The respondents take a different approach. They say the Chambers judge was bounded by the scope of the documents Mr. Omorogbe had identified in his notice of application, notice to produce and submissions in the court below. Applying those parameters, they submit, limits the redacted documents at issue to three: (

a) the handwritten statement of an eyewitness who had purportedly witnessed the phone call; (

b) emails between D. Sabourin (a SaskPower employee) and Cst. Kovacs, regarding the bomb threat, including the unredacted witness statement; and (

c) the full, unredacted occurrence

summary. Those documents line up with documents numbered 13, 16 and 30, respectively, in the AOD. [ 20 ] Although I find the respondents’ supplementary submission more in keeping with this Court’s request, I do not need to resolve precisely which of the 39 documents were redacted. This is because the appeal turns on the narrow question of whether the respondents had the AOD documents in unredacted form in their possession or control. As I discuss below, they did not. B. The Rules [ 21 ] Each party to an action is required by the Rules to produce an affidavit of documents.

To that end, Rule 5-5(1) obliges every party to “serve an affidavit of documents on each of the other parties” that must, as per Rule 5-6(1)(b), “ disclose all documents relevant to any matter in issue in the action” (emphasis added) and “specify which of the documents are in the possession, custody or control of the party on whose behalf the affidavit is made” (emphasis added, Rule 5-6(2)(a)). [ 22 ] Rule 5-11 supplements the document disclosure process by requiring the disclosing party to produce their documents for inspection on the request of the party opposite.

If a disclosing party fails to comply with a notice to produce, the requesting party can apply under Rule 5-12(1)(

d) for an order compelling that party to provide further and better production in circumstances where the party, having been served with a notice to produce documents under Rule 5-11, “has neglected or refused to produce any document mentioned in that notice”. [ 23 ] The obligation to disclose and the obligation to produce are two distinct matters: “The obligation to disclose is the obligation to make known the existence of a document.

The obligation to produce is the obligation to make that document available to the adverse party unless a proper basis exists for withholding production” ( Spencer v Canada (Attorney General) , 2000 SKCA 96 at para 13 , [2001] 7 WWR 476 [ Spencer ]). C. The respondents do not have possession, custody or control of the unredacted AOD documents [ 24 ] Since a party, on request, is required to produce all relevant records in their possession, custody or control, the central issue in this appeal is whether the documents for which Mr.

Omorogbe sought production – that is, the unredacted AOD documents – fell within that phrase. [ 25 ] Mr. Omorogbe takes the position that, absent a claim of privilege (none was made here), the respondents were obliged to produce the unredacted documents listed in

Schedule 1 of the AOD. He says that since the AOD does not stipulate that the respondents did not possess or control the documents in unredacted form, it must be presumed that the unredacted versions of the documents are in their possession. [ 26 ] The respondents disagree.

While they acknowledge that their AOD could have been drafted more carefully, that was of no consequence because, as they assert, “the Chambers judge could only require [them] to produce unredacted documents if they had possession, custody or control over them ” (emphasis added). [ 27 ] As to whether the respondents had possession of the documents in unredacted form – and, therefore, a corresponding obligation to produce them – they remain steadfast in their position: they could only produce what they physically had in their possession. In some instances, those were the redacted version of a document.

Moreover, the respondents maintain that the documents in their possession consist of the same package of redacted documents that had been provided to Mr. Omorogbe on several previous occasions. Sergeant McFetridge’s July 10, 2019, affidavit, filed in response to Mr. Omorogbe’s application that came before Tochor J., addresses the possession issue as follows:

6. The Plaintiff previously had made a number of requests for documents from the Regina Police Service, which I am advised have beenprovided to him, other than those portions which were appropriately redacted. He has been advised that there are no further relevantdocuments in the possession of the Regina Police Service, or any of the Defendants. All of those documents have been disclosed onceagain in the Affidavit of Documents provided herein. The Plaintiff’s previous action against the “Regina Police Service” was dismissed byFiat of the Honourable Mr. Justice T.

Keene issued February 28, 2019 in QBG No. 2892 of 2018, a copy of which is attached hereto asExhibit “C” to this my Affidavit. [28] When Mr. Omorogbe brought his second application for the production of documents, Sgt. McFetridge summarized therespondents’ position in a January 9, 2020, affidavit in which he averred as follows: 17. Concerning the relief sought by the Plaintiff in the within application, we state:

i) That the Defendants, Cst. Kovacs, former Cst. Schellhorn and myself have disclosed any document relevant to this matter in ourpossession or control; ii) The Defendants have produced all of the electronic information, including e-mails, that are in their possession and control and have noknowledge of any other e-mail records; iii) The Defendants have disclosed all relevant information within their power and control of their investigation of the Plaintiff concerningthe bomb threat; iv) The Defendants have listed the documents in their power and control in an appropriate order; and

v) The Defendants do not have the ability to direct a computer forensic expert to conduct a forensic investigation of the Regina PoliceService. [29] Read together, the evidence shows that the respondents had received the same package of documents from the RPS that hadbeen provided to Mr. Omorogbe previously. Some of those documents were redacted. Put another way, the evidence would suggest thatthe respondents did not receive the unredacted version of the documents from the RPS, and, accordingly, they did not have them in theirpossession. Other than pointing to the plain wording of the AOD, Mr.

Omorogbe has not identified any evidence that suggests otherwise. [30] However, the fact that the unredacted documents are not in the respondents’ possession does not end the matter because Rule 5-6(2)(

a) is broader in scope than the concept of mere possession. It also encompasses documents that are in the custody or control of theparty on whose behalf the affidavit is made. The question to be asked, then, is whether the respondents have custody or control over theunredacted documents in the sense that they can compel their production from the person or entity that does possess them. [31] A party is said to have power over a document when they have the authority to direct a non-party to produce it.

Conversely, if aparty lacks the authority to direct the non-party to produce a document, the document is not in their power. The fact that a third party mayrefuse to produce a document does not relieve the disclosing litigant from the obligation of attempting to retrieve it. These principles wereexpressed in Spencer, where this Court discussed the meaning of “power over the documents”: [18] Rule 212(1) requires disclosure of documents in the “possession” or “power” of the litigant.

The context in which these two wordsare used would lead one to the conclusion that documents which are no longer in the possession of the litigant which relate to any matter inquestion in the action, must be disclosed if they are or were within the power of the litigant. How then does one determine whether thelitigant has “power” over the documents in question. If the litigant has the right to direct the third party to produce the document, it wouldfollow that the document is in his power. This issue was considered in Zerr v. Rahn and Rahn (1987), (SK KB), 63Sask.

R. 74, in the context of s. 16(2) of the Regulations made pursuant to The Hospital Standards Act which provide that any healthrecord may be released upon the written authorization of the patient. Walker J. held that in those circumstances, records in the possessionof the hospital were within the “power” and “control” of the litigant and had to be disclosed. He stated: [10] The modern tendency is toward full and complete disclosure and flexibility in the manner of obtaining it.

In keeping with theprinciple of broad discovery and in all common sense, it is appropriate to order the plaintiff to make a request to all physicians,physiotherapists and chiropractors for the various documents referred to by the defendants as requested. It is within the power of theplaintiffs to cause the professionals and the hospital to produce the documents. The plaintiff must make her best efforts.

Until the medicalpeople and the hospital refuse the plaintiff’s request, the documents are in the plaintiff’s power. (Footnotes omitted) [32] The Court in Spencer went on to observe that, while sufficient control is not synonymous with absolute control, litigants mustat least attempt to retrieve the document “by using his or her best efforts” (at para 19).

This general principal stems from this Court’searlier decision in Popowich v Saskatchewan (1996), (SK CA), 144 Sask R 166 (CA), where Cameron J.A., said asfollows: [17] According to current practice in the Court of Queen’s Bench, a document, if not in the “possession” of a party in the narrow sense,may be taken as being within the “power” of that party in the broad sense if he or she has sufficient control over the situation, bearing inmind the legal duty borne by this party, to obtain the document on request of the person in whose possession it rests: See, for example,Zerr v.

Rahn and Rahn (1987), (SK KB), 63 Sask. R. 74 (Q.B., Walker, J.). See also Stone v Sharp, 2008 NBCA 55, 302 DLR (4th) 524. [33] Likely because of the way in which the parties had framed their argument before the Chambers judge, she appears to haveapproached Mr. Omorogbe’s application as turning on the question of relevance. As she put it, “In this application, I must determinewhether the documents requested by the plaintiff are relevant, or material, to any matter in issue in the various claims he has made againstthe defendants” (emphasis added, Chambers Decision at para 22).

The Chambers judge also seems to have accepted the respondents’submission about the need to protect a witness’s privacy interest. With those observations in mind, and after having assessed

Mr. Omorogbe’s application on a document-by-document basis, the Chambers judge reached this conclusion: [33] The defendants assert that they have provided, on more than one occasion, the complete RPS investigative file of the bomb threat atSaskPower, subject to redactions made to comply with The Local Authority Freedom of Information and Protection of Privacy Act, SS1990-91, c L-27.1. The plaintiff has not persuaded me that the defendants have failed to disclose all documents relevant to any matter inissue in his action against them.

The plaintiff’s application is dismissed. [34] Respectfully, relevance and privacy were not the issues in this case. To be fair, the Chambers judge did not have the benefit ofthis Court’s recent decision in Omorogbe v SaskPower, 2022 SKCA 116, 473 DLR (4th) 712. Speaking for the Court, Leurer J.A. rejectedthe idea that a party who proposes to redact a document that has already been disclosed can justify the redaction on the basis of relevancyalone.

He said, “what is to be tested is the removal of information from an otherwise producible document – not the division of acollection of documents, or even the division of something into constituent parts. The Rules do not contemplate production of only part ofa document. Rather, they contemplate production of a ‘document’ as a whole” (at para 40). A

summary of the new approach for theredaction of a producible document is found in paragraph 55 of that decision: [55] In

summary, a party seeking to justify a redaction from a producible document must show that: (

a) the information removed from thedocument is not relevant to an issue in the action; (

b) there is, in the evidence or record, a compelling reason for the redaction; and (

c) theexisting protections provided for in the Rules, and as may be supplemented by other measures, are insufficient to protect the interest that issaid to justify the redaction. [35] Putting relevance aside, the Chambers judge also made reference to this Court’s decision in Police Commissioners of Regina(City) v Saskatchewan Government Insurance, 2007 SKCA 106, 286 DLR (4th) 755 [Police Commissioners]. In doing so, I take her tohave returned to the issue of the production of documents not in the disclosing party’s possession or control. [36] The facts in Police Commissioners were these.

The plaintiff was terminated from her employment with SaskatchewanGovernment Insurance [SGI] after being charged with various criminal offences. When the charges were eventually withdrawn, shebrought a wrongful dismissal claim against SGI. In defense of the claim, SGI sought to access the police criminal investigation file.

Tothat end, SGI applied under Rule 236 (now Rule 5-15) for the production of the investigative records in the possession of the Board ofPolice Commissioners of the City of Regina [Board], a non-party to the action. [37] A Queen’s Bench Chambers judge ordered the Board to make the plaintiff’s entire criminal file open to inspection by SGI. ThisCourt overturned that decision. In answering the question of whether the Board had possession of or control over the criminal investigationfile within the meaning of Rule 236, this Court concluded it had neither.

In light of the governing legislation and the PoliceCommissioners Handbook (2006), control, it said, rests with the chief of police.

Given that legal and factual state of play, the Court wenton to remark, “In such a circumstance, it is not the policy of courts to grant orders compelling a person to undertake a course of conductthat is beyond his or her ability to comply with, even where that person fails to adequately disclose his or her limitations, juridical orotherwise, to the Court” (at para 13). [38] The same line of analysis was adopted in McAllister v Calgary (City), 2012 ABCA 346, 69 Alta LR (5th) 242, where theAlberta Court of Appeal held that it was not enough to be able to request the record from a non-party; the requesting party must have thecorresponding ability to enforce compliance with the request, failing which “he or she does not have ‘control’ over the record” (at para 7). [39] While the Chambers judge did not go on to explore issues of possession, custody or control in the context of the AOD and theevidence before her, her decision to dismiss Mr.

Omorogbe’s application nonetheless appears to be rooted in a finding that (

a) thecomplete RPS investigative file, subject to redactions, had been provided to him by the respondents, (

b) the respondents only had theredacted version of the documents in their possession, and (

c) as per Police Commissioners, control over the police investigation file (i.e.,the unredacted AOD documents) rests with the chief of police, who is a non-party to Mr. Omorogbe’s action. Although she did not say soexplicitly, the Chambers judge can be understood to have reasoned that the respondents did not have the ability or authority to enforce acourt order directing Chief Bray to produce the unredacted documents.

To put things in more direct terms, the Chambers judge can betaken to have ruled that the respondents could not be ordered to produce documents over which they exercise no power or control becausethey cannot compel Chief Bray to produce them, nor do the respondents possess a power equivalent to that discussed in Zerr v Rahn andRahn (1987), (SK KB), 63 Sask R 74 (QB), referred to in Spencer, which could justify the conclusion that thosedocuments were within their power or control. Mr.

Omorogbe did not point to any other evidence or legal basis in support of his argumentthat the respondents had possession or control over the unredacted AOD documents. [40] To conclude, to the extent the Chambers judge assessed Mr. Omorogbe’s application from the perspective of relevance, sheerred in doing so. However, for the reasons expressed above, and based on the record that was before her, I see no error with the bottom-line result. The respondents could not produce what they did not possess or control. As such, Mr. Omorogbe’s appeal must be dismissed. [41] As a final note, I wish to point out to Mr.

Omorogbe that dismissal of his appeal does not affect his ability to apply under Rule5-15 for the production of the unredacted documents from Chief Bray, who is a non-party to this action. IV. CONCLUSION [42] The appeal is dismissed with one set of costs to the respondents, fixed at $2,000. “Schwann J.A.” Schwann J.A.I concur. “Leurer J.A.” Leurer J.A.I concur. “McCreary J.A.” McCreary J.A.