



COURT OF APPEAL FOR ONTARIO

CITATION: McHale v. Lewis, 2018 ONCA 1048

DATE: 20181219

DOCKET: C63989

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Gary McHale, Randy Fleming, Doug Fleming, Jacob Van
    Halteren

Plaintiffs (Appellants/
Respondents by way of cross-appeal)

and

O.P.P. Commissioner Chris Lewis, Sergeant Ben
    Gutenberg, Inspector Phil Carter, Superintendent John Cain, and Her Majesty the
    Queen in right of Ontario

Defendants (Respondents/
Appellants by way of cross-appeal)

AND BETWEEN

Ted Harlson,
Christian

Christine
McHale,
    Gary McHale, Hetty Van Halteren, Jacob Van Halteren

Plaintiffs (Appellants)

and

O.P.P. Commissioner Chris Lewis,
    Superintendent John Cain, Sergeant Brad Moore, Inspector Phil Carter and

Her Majesty the Queen in
    right of Ontario

Defendant (
Respondent
)

AND BETWEEN

Stuart Laughton, Ted Harlson, Gary McHale, Randy
    Fleming, Jacob Van Halteren, Doug Fleming

Plaintiffs (Appellants/
Respondents by way of cross-appeal)

and

O.P.P. Commissioner Chris Lewis, Sergeant Brad
    Moore, Inspector Phil Carter and
Her Majesty the Queen in right of Ontario

Defendant (
Respondent/

Appellant by way of cross-appeal)

AND BETWEEN

Randy Fleming

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

Ken Decloet, Jeffrey Gray, Steven Lorch, Brad
    Moore, Phil Carter, John Cain, Chris Lewis and
Her Majesty the Queen in
    right of Ontario

Defendants (Respondents/
Appellants by way of cross-appeal)

Gary McHale, on his own behalf and on behalf of the
    plaintiffs

S. Mathai and N. Ghobrial, for the respondents/appellants
    by way of cross-appeal

Heard: November 6, 2018

On appeal from the orders of Justice David A. Broad of
    the Superior Court of Justice, dated February 13, 2017, with reasons reported
    at 2017 ONSC 969.

Pardu J.A.:

A.

BACKGROUND

[1]

The plaintiffs and the defendants in four separate
    actions
[1]
appeal from the decision of a motion judge. The plaintiffs appeal from the
    motion judges decision to strike their pleadings alleging conspiracy on the
    part of the defendants, without granting them leave to amend their statements
    of claim. The defendants appeal from the motion judges refusal to strike the
    claims for false arrest in two of the actions. In both those actions the
    statements of claim were issued after the expiry of the presumptive limitation
    period running from the date of the arrest.

[2]

Each of the four actions has in common an
    allegation that a plaintiff was falsely arrested for walking on a public street
    while engaged in peaceful expressive activity. The plaintiffs allege that these
    arrests were acts in furtherance of a broad, overarching conspiracy amongst
    senior police officers and others to deliberately violate their
Charter
rights, shut down their
    expressive activity and falsely arrest them.

B.

Allegations of conspiracy

(1)

Decision of the motion judge

[3]

The motion judge observed that the pleadings
    failed to claim damages for conspiracy, although it was apparent from the
    statements of claim that the plaintiffs sought a finding that the defendants
    were liable for the tort of conspiracy. He held that allowing the pleading of
    an alleged conspiracy or conspiracies would expand the complexity and expense
    of the litigation while providing little or no probative value and should
    therefore be struck under Rule 25.11 (see
Javitz v. BMO Nesbitt
    Burns Inc.
(2011), 105 O.R. (3d) 279 (S.C.J.)).

(2)

Argument on appeal

[4]

The defendants argue that the statements of
    claim are missing an essential element, a claim that the conspiracy caused
    damage and a claim for those damages, and were therefore properly struck. They
    argue that the motion judge was correct to refuse leave to amend because the
    conspiracy claims are redundant of the claims for false arrest, malicious
    prosecution and related
Charter
violations.

[5]

The plaintiffs argue that even if the statement
    of claim was deficient in failing to include a claim for damages resulting from
    the conspiracy, this could be readily corrected with an amendment for which
    leave should have been granted, especially since all of the other elements of
    conspiracy were pleaded. Further the plaintiffs say that their claims in
    conspiracy allege agreements which go far beyond the false arrest and malicious
    prosecution and are therefore not redundant.

(3)

Analysis

[6]

The motion judge summarized the principles
    governing the decision whether to grant leave to amend a pleading from
Aristocrat Restaurants Ltd. (c.o.b. Tonys East)
v.
    Ontario
, [2003] O.J. No. 5331 (S.C.):

(a)

the approach that amendments should be
    presumptively approved unless they would occasion prejudice that cannot be
    compensated by costs or an adjournment, they are shown to be scandalous,
    frivolous, vexatious, or an abuse of the courts process, or they disclose no
    reasonable cause of action, is relevant to the issue of whether, on a motion to
    strike a pleading, a court should exercise its discretion to grant leave to
    amend;

(b)

leave to amend should properly be given where a
    pleading can be put right or improved by amendment and no injustice is done
    thereby;

(c)

depending on the circumstances of the case,
    striking out a pleading without granting leave to amend often does little to
    advance the ends of justice;

(d)

in disposing of a motion to strike when a
    recognized cause of action has been improperly pleaded, but can be put right
    without non-compensable prejudice to the defendants, the preferred route is to
    afford the plaintiff the opportunity, upon appropriate terms, to plead the
    cause properly within the action before the court; and

(e)

the foregoing approach makes practical sense and
    is in keeping with the objectives set out in rule 1.04, namely that the rules
    shall be liberally construed to secure the just, most expeditious and least
    expensive determination of every civil proceeding on its merits.

[7]

No one takes issue with this articulation of the
    principles on this appeal.

[8]

However, the motion judges reliance on Rule
    25.11 and
Javitz

was misplaced in this case. In
Javitz

customers of an investment dealer sued
    the dealer for damages arising from fraud committed by an employee of the
    dealer. The suing customers pleaded that the employee had perpetrated massive
    frauds in relation to other customers over many years. The suing customers
    wanted to plead and introduce this similar fact evidence to support their
    allegation that the investment dealer had been negligent in its supervision of
    the employee.

[9]

Pepall J. (as she then was) held at para. 25:

In my view, these
    portions of the pleading should be struck on a number of grounds. These
    allegations will greatly expand the breadth, complexity and expense of the
    litigation in circumstances where the corresponding probative value is minimal.

[10]

What is key to the decision in
Javitz
is that the similar facts pleaded
    were collateral to the wrongdoing underlying the customers actions. In these
    circumstances proportionality was properly a factor in the application of Rule
    25.11.

[11]

Here one of the wrongs complained of by the
    plaintiffs is the tort of conspiracy. Pleading the very cause of action
    asserted and the factual underpinnings of that cause of action is not a
    collateral matter and in itself cannot be a pleading that may prejudice or
    delay the fair trial of the action within the meaning of Rule 25.11.

[12]

I also do not accept the argument on appeal that
    leave to amend was properly refused in application of the merger doctrine.

[13]

This principle holds that where two or more
    persons conspire to commit a tort, and the tort is committed, the allegation of
    conspiracy adds nothing to the claim. A plaintiff is not entitled to be
    compensated twice for the same harm where the damages from both the conspiracy
    and the tort are the same:
Jevco Insurance Co. v.
    Pacific Assessment Centre Inc.
, 2015 ONSC 7751,
    128 O.R. (3d) 518 (Div. Ct.).

[14]

Here the claims in conspiracy are not redundant
    of the claims for false arrest but go beyond the actions of the individual
    arresting officers at the time of the arrests, which gave rise to the claims of
    false arrest and associated
Charter
violations.
    The pleadings target a broader group of participants in the alleged conspiracy
    and assert that the facts establishing the existence of this conspiracy arose
    before and after the arrest. The statement of claim in CV-14-50 pleads that after
    the initial arrest on the trespassing charge senior officers repeatedly
    threatened to arrest the plaintiffs if they walked on a public street and
    further pleads that even after the charges arising out of this arrest were
    withdrawn, and even after the OPP learned that the place where the plaintiff
    was arrested for trespassing was a public street, senior officers continued to
    threaten to arrest the plaintiffs if they attempted to use the public road.

[15]

The statement of claim in action CV-14-50 pleads
    that the conspiracy was for the improper and unlawful purpose of limiting or
    curtailing the Plaintiffs
Charter
rights of
    freedom of expression; freedom of peaceful assembly and freedom of association
    as guaranteed by s. 2 of the
Charter
. The plaintiffs allege that one of the purposes of the conspiracy
    was to target non-natives for arrest, in violation of s. 15 of the
Charter
.

[16]

Further, as will be seen below, if the defendant
    is successful at trial in its
Limitations Act, 2002
, S.O. 2002, c. 24, Schedule B
defence on a claim for damages for false arrest in actions CV-16-16
    and CV-14-146, it is not clear that a claim based on a tort of conspiracy would
    also be statute barred. Moreover, if the claims based on false arrest are
    statute barred, the claim in damages for conspiracy may not be redundant.

[17]

The existence of a conspiracy may be a factor
    affecting the assessment of damages for the violation of rights guaranteed by
    the
Charter
. As
    pointed out in
Vancouver (City) v. Ward
, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 47, compensation will
    usually be the most important object of an award for violation of a
Charte
r right, but there may be cases where vindication or deterrence
    play a major and even exclusive role. Where it is proven that government
    actors conspired together to violate
Charter
rights, that conduct may increase the weight given to deterrence in
    the assessment of damages. This may also be a factor in the assessment of
    punitive damages.

[18]

In
Hunt v. Carey
    Canada Inc.
, [1990] 2 S.C.R. 959, the court held
    that there were good reasons to allow a conspiracy claim to go to trial along with
    other related tort actions. At p. 989 Wilson J. observed that a conspiracy may
    give rise to harm of a magnitude that is greater than that of tortfeasors
    acting alone.

[19]

Finally the issue of whether there was any
    redundancy in the claims successfully made should be left to the trial judge.

[20]

In
Hunt
the
    court noted further at pp. 991-92:

It seems to me
    totally inappropriate on a motion to strike out a statement of claim to get
    into the question whether the plaintiff's allegations concerning other nominate
    torts will be successful. This a matter that should be considered at trial
    where evidence with respect to the other torts can be led and where a fully
    informed decision about the applicability of the tort of conspiracy can be made
    in light of that evidence and the submissions of counsel. If the plaintiff is
    successful with respect to the other nominate torts, then the trial judge can
    consider the defendants' arguments about the unavailability of the tort of
    conspiracy. If the plaintiff is unsuccessful with respect to the other nominate
    torts, then the trial judge can consider whether he might still succeed in
    conspiracy. Regardless of the outcome, it seems to me inappropriate at this
    stage in the proceedings to reach a conclusion about the validity of the
    defendants' claims about merger. I believe that this matter is also properly
    left for the consideration of the trial judge.

[21]

I agree with the observations of Molloy J. in
Jevco
:

[52] Accordingly, in
    my view, the law supports permitting the conspiracy claim to be pleaded along
    with other nominate torts and applying the doctrine of merger only at the end
    of the trial when it is known if the plaintiff has been fully successful on the
    nominate torts and whether there is anything added by the conspiracy claim. Further,
    in the interests of paring down out-of-control interlocutory proceedings and
    introducing consistency in the law, as a practical matter it is preferable not
    to resolve these types of claims at the pleadings stage.

[22]

Rule 26.01
of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194
, provides that at any stage of an action
    the court shall grant leave to amend a pleading on such terms as are just,
    unless prejudice would result that could not be compensated for by costs or an
    adjournment. The defendants will suffer no prejudice if, at this stage, before
    a statement of defence has been delivered, the plaintiffs are permitted to
    quantify the damages claimed for conspiracy.

[23]

I would set aside paragraph 4 in the orders
    below in each action, grant leave to the plaintiffs to amend their statements
    of claim to quantify the damages claimed for the tort of conspiracy and
    indicate whether both compensatory and punitive damages are claimed for the
    tort of conspiracy.

C.

Are any of the actions statute barred?

(1)

Decision of the motion judge

[24]

The defendants argued before the motion judge
    that he should dismiss three of the actions for false arrest on the ground that
    the limitation period had expired. The motion judge refused to do so on the
    ground that the defendants had not yet delivered a statement of defence,
    relying on
Tran v. University of Western Ontario
, 2016 ONCA 978, 410 D.L.R. (4th) 527, at para. 20, and
Metropolitan Toronto Condominium Corporation No. 1352 v. Newport
    Beach Development Inc
.
,

2012 ONCA 850, 113 O.R. (3d) 673, at
    para. 116:

The rules call
    for a limitation defence to be pleaded in the statement of defence. A plaintiff
    is entitled to reply to a statement of defence and put before the court further
    facts, for example, on the question of the discoverability of the claim. Only
    in the rarest of cases  and this is not one of them  should this court
    entertain a defendants motion to strike a claim based on the limitation
    defence where the defendant has yet to deliver a statement of defence.

[25]

The motion judge observed that it remained an
    open question whether discoverability could ever be raised in response to a
Limitations Act, 2002
defence to a claim
    for damages for false arrest and concluded that this was not one of those
    rarest of cases justifying departure from the normal rule that a limitation
    defence must be pleaded before a court will entertain a motion to strike an
    action as statute barred.

(2)

Limitation arguments on appeal

[26]

The defendants argue in their cross-appeal that
    the claims for false arrest in actions CV-14-146 and CV-16-16 should have been dismissed
    because they were statute barred and that these are cases where this is
    apparent from the statements of claim, justifying an exception to the general
    rule that actions should not be struck as out of time before a statement of
    defence has been delivered. They argue that in both these actions the claims of
    false arrest and associated
Charter
breaches
    were discoverable on the date of the arrest and, accordingly, the limitation
    period began to run on the date of the arrest.

(3)

Analysis

[27]

In CV-14-146 the plaintiffs plead that on August
    26, 2012 they were arrested to prevent a breach of the peace as they
    attempted to walk on a public street. They say that they were handcuffed,
    searched and had their belongings taken from them, and that they were placed in
    a prisoner wagon and taken to an OPP detachment where they were released a few
    hours later. No charges were laid.

[28]

The plaintiffs plead that they were falsely
    arrested and that numerous
Charter
rights were violated, including rights to freedom of expression,
    freedom of peaceful assembly and freedom of association, as well as the rights
    not to be subjected to arbitrary detention or discrimination on account of
    race. The plaintiffs allege that the defendants conspired to target them for false
    arrest, knowing that the arrest would be unlawful and violate their
Charter
rights.

[29]

The statement of claim was not issued until three
    days past the two-year limitation period stipulated by the
Limitation
s
Act, 2002

with the extension provided by s. 7(2)
    of the
Proceedings Against the Crown Act
, R.S.O.
    1990, c. P.27.

[30]

In CV-16-16 the plaintiff claims that he was
    walking on a public street on September 9, 2012 when police ordered him off the
    road and arrested him for obstruct justice. Again, the plaintiff says that he
    was handcuffed, searched, removed of his belongings and placed in a prisoner
    wagon, taken to the OPP detachment and released a few hours later. The charge
    was dropped on February 3, 2014, the same day the trial court was to hear a
    motion for
Charter
relief in relation to the charges. The plaintiff pleads that the arrest was false,
    and violated his
Charter
rights. He also pleads that officers knowingly conspired to falsely
    arrest him and violate his
Charter
rights. He alleged abuse of process on the part of the Crown
    prosecutor. He also advanced a claim of malicious prosecution which the motion
    judge struck with leave to amend, a decision not challenged on appeal.

[31]

The statement of claim was issued on February 1,
    2016, nearly three and a half years after the arrest.

[32]

The defendants initially appealed from the
    motion judges refusal to strike out the claims for false arrest, false
    imprisonment and associated
Charter
breaches
    in action CV-14-50 as being statute barred, but now acknowledge that as a
    result of this courts decision in
Winmill v. Woodstock (Police
    Services Board)
, 2017 ONCA 962, 138 O.R. (3d) 641, leave
    to appeal refused, [2018] S.C.C.A. No. 39, rendered after the motion judges
    decision, CV-14-50 is not statute barred.

[33]

In
Winmill
, on June 1, 2014, Mr. Winmill was involved in a physical
    confrontation with police officers in his home. The police charged him with
    assaulting an officer and resisting arrest. He was acquitted of those charges on
    February 17, 2016, then in June 2016, two years and one day after the physical confrontation,
    he sued for damages for battery, abuse of authority, negligence, and later
    added allegations of negligent investigation. The defendants moved to strike
    the claim for battery, but not the negligent investigation claim, as statute
    barred. The motion judge granted the motion and struck out the claim for
    battery.

[34]

On appeal, MacPherson J.A., writing for the
    majority of the court, referred to the discoverability principles set forth in
    s. 5(1) of the
Limitations Act, 2002
:

5(1) A claim is discovered on the earlier of,

(a) the day on which
    the person with the claim first knew,

(i) that the injury,
    loss or damage had occurred,

(ii) that the injury,
    loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or
    omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of
    the injury, loss or damage, a proceeding would be an appropriate means to seek
    to remedy it;

[35]

He indicated that there was no issue with
    respect to the first three factors. The plaintiff knew that he had been
    injured on June 1, 2014, that the injury was caused by physical blows to his
    body, and that at least some of the respondents administered those blows. He
    concluded however, applying s. 5(1)(a)(iv), that having regard to the nature
    of the injury, loss or damage the plaintiff did not know that a proceeding
    would be an appropriate means to seek to remedy the alleged battery until he
    was acquitted of the criminal charges.

[36]

The parties acknowledged that the
    discoverability date for the negligent investigation claim was the date of
    acquittal. The negligent investigation claim which was proceeding to trial
    dealt with virtually the same parties and events as the battery claim. As the
    tort claim of battery and the charges of assaulting a police officer and resisting
    arrest were mirror images of each other this court held that it made sense
    for the plaintiff to postpone deciding whether to sue the police until the
    criminal charges were resolved.

[37]

Accordingly, MacPherson J.A. concluded that the
    discoverability date for the battery claim was the same as the discoverability
    date for the negligent investigation claim, the date of the acquittal, and that
    the battery claim was not statute barred.

[38]

Before this court, the defendants argue that
    CV-16-16 can be distinguished from
Winmill
because the obstruct justice charge that was laid is not the
    mirror image of the false arrest claim.

[39]

The defendants submit that there is no basis to
    delay discoverability beyond the date of arrest in CV-14-146 because there was
    no charge laid in that case.

[40]

Here the motion judge was correct to conclude
    that this was not one of those rare cases where the claims should have been
    struck as statute barred before a statement of defence was delivered. In the
    absence of a pleading from the plaintiffs responding to a defence based on the
Limitations Act, 2002
it is not known
    at this stage to what extent the plaintiffs will rely on discoverability beyond
    the date of the arrests to delay the start of the limitation period. The motion
    judge did not have the benefit of pleadings to structure consideration of
Limitations Act, 2002
issues.

[41]

This is a sufficient basis to uphold the motion
    judges decision to reject the defendants motion as premature.

[42]

The defendants submit that
Kolosov v. Lowes Companies Inc.
, 2016

ONCA 973,
34 C.C.L.T. (4th) 177,

makes it clear that the limitation period for false arrest and
    related
Charter
breaches always begins on the date of arrest. In
Kolosov

the plaintiffs were admittedly in
    possession of fraudulently obtained goods; the arresting officer testified that
    he had reasonable and probable grounds to believe the plaintiffs had committed
    an offence and the motion judge found that that belief was objectively
    reasonable. This court held that the plaintiffs offered no authority to support
    the proposition that the limitation period did not run until they had received
    full disclosure of the charge against them. It is difficult to see in the
    circumstances of that case that the contents of disclosure could have had any
    impact on the existence or non-existence of reasonable and probable grounds for
    arrest, given that the plaintiffs admitted they were in possession of
    fraudulently obtained goods. It appears that the plaintiffs did not invoke s.
    5(1)(a)(iv) of the
Limitations Act, 2002
; an analysis of the full impact of that section in relation to
    discoverability of claims for false arrest should in the present case be left for
    a fuller factual record.

[43]

The causes of action for false arrest and
    associated
Charter
violations are inextricably intertwined with the claims for damages for
    conspiracy, which are not alleged to be statute barred. The defendants fairly
    indicate that they are not seeking to strike the conspiracy claims as it is not
    obvious when the plaintiffs learned of the alleged conspiracy. Given that
    claims for damages for conspiracy may be pleaded, it may be that the best place
    to address the limitation defences is at trial, with the benefit of pleadings
    and a full factual record. There may be
Charter
violations established independently of the false arrest, and it is
    not clear how delayed discoverability might affect those claims. Here the
    obstruct justice charges and the false arrest alleged in CV-16-16 arise out of
    the same events, and it may be that a trial will be necessary to determine
    whether discoverability is delayed, as occurred in
Winmill
.

[44]

Even in CV-14-146, little judicial economy would
    be achieved by striking the claims for false arrest after the close of
    pleadings but before trial if the conspiracy claims are going to trial, given
    that these claims are based on overlapping factual allegations.

[45]

Accordingly, I would dismiss the appeal by the
    defendants from the motion judges refusal to strike the claims for false
    arrest, false imprisonment and associated
Charter
breaches in CV-14-146 and CV-16-16 as statute barred, and dismiss
    the appeal from the refusal to strike the action in CV-14-50 as abandoned.

[46]

The parties have agreed to the amount of costs that
    should follow the result in the appeal by the plaintiffs and the cross-appeal
    by the defendants. I would award $2,000.00 to the plaintiff Gary McHale on the
    appeal and $1,000.00 to him on the cross-appeal.

G. Pardu J.A.

I agree P. Lauwers
    J.A.

I agree C.W.
    Hourigan J.A.

Released: December 19, 2018

P.L.




Appendix
    A






Plaintiff(s)

Defendant(s)



CV-14-50

Gary McHale, Randy Fleming, Doug Fleming,
            Jacob Van Halteren

O.P.P. Commissioner Chris Lewis, Sergeant
            Ben Gutenberg, Inspector Phil Carter, Superintendent John Cain, and Her
            Majesty the Queen in right of Ontario



CV-14-145

Ted Harlson,
Christian

Christine
McHale,
            Gary McHale, Hetty Van Halteren, Jacob Van Halteren

O.P.P. Commissioner Chris Lewis, Superintendent
            John Cain, Sergeant Brad Moore, Inspector Phil Carter and

Her Majesty the Queen in right of Ontario



CV-14-146

Stuart Laughton, Ted Harlson, Gary McHale, Randy
            Fleming, Jacob Van Halteren, Doug Fleming

O.P.P. Commissioner Chris Lewis, Sergeant Brad
            Moore, Inspector Phil Carter and
Her Majesty the
            Queen in right of Ontario



CV-16-16

Randy Fleming

Ken Decloet, Jeffrey Gray, Steven Lorch, Brad Moore, Phil
            Carter, John Cain, Chris Lewis and
Her Majesty the Queen in right of
            Ontario








[1]

The styles of cause as expressed in the orders appealed from
    are set out in Appendix A.


