



COURT OF APPEAL FOR ONTARIO

CITATION: Asghar v. Toronto Police Services Board, 2019 ONCA
    479

DATE: 20190611

DOCKET: C65470

Hoy A.C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Sajjad
    Asghar

Plaintiff/Responding Party
(Appellant)

and

Toronto Police
    Services Board
,
Toronto Police Chief
,

Constable Brad
    Verspeeten #9278 41 Division
,

Toronto
    Transit Commission (TTC), Edwin Collins (TTC Driver)

Defendants/
Moving Parties

(Respondents)

Sajjad Asghar, acting in person

John Rosolak, for the respondents Toronto Transit
    Commission (TTC) and Edwin Collins (TTC Driver)

Natalie Salafia, for the respondents Toronto Police
    Services Board, Toronto Police Chief and Constable Brad Verspeeten #9278 41
    Division

Heard: May 10, 2019

On appeal from the
    order of Justice Andra Pollak of the Superior Court of Justice, dated May 10,
    2018, with reasons reported at
2018 ONSC 2354
.

REASONS FOR DECISION

[1]

The appellant owned and operated a motor vehicle that was involved in a
    collision on May 31, 2014. He was charged by the respondent Constable Brad Verspeeten
    with careless driving. The charge was withdrawn on May 16, 2016. The appellant
    was convinced that he had been wrongfully charged and issued a statement of
    claim. See the earlier endorsement of Faieta J. dated July 27, 2016, with
    reasons reported at 2016 ONSC 4844.

[2]

In oral argument, the appellant drew the courts attention to the
    investigating officers sketch of the accident scene and the sketch provided by
    the TTC driver, Edwin Collins. He also referred to several witness statements.
    He pointed out how all of this evidence was belied by the dash cam footage from
    Officer Verspeetens vehicle. It is not surprising that the charge of careless
    driving was withdrawn.

[3]

The appellant was outraged by this situation and started this action. On
    the plausible side of the ledger, he alleges negligent investigation, malicious
    prosecution and conspiracy. He has also drawn several more contentious and
    implausible inferences from the evidence about an international criminal
    conspiracy involving U.S. and Canadian police forces and organized crime.

[4]

The police respondents focused in oral argument on the implausible allegations
    in the statement of claim and assert that these are driving the case. They say
    that the implausible allegations do not form the basis of a cause of action
    and, for that reason, the appeal should be dismissed. Counsel points to para.
    25 of the statement of claim as asserting a claim for relief that is beyond the
    jurisdiction of the court. That paragraph states:

This is high time for the Canadian
    Court System and the Parliament to promulgate law that addresses organized
    crime since Canada runs rife with organized crime and the Crown in Right of
    Canada facilitates organized crime on law abiding citizens.
That discussion
    is beyond the scope of this action.
All defendants owed duty of care to the
    plaintiff which was breached and plaintiff was injured due to the negligence of
    all defendants. [Emphasis added]

[5]

The appellants answer to the critique of the breadth of the implausible
    allegations is in the underlined portion of the quote. He well understands the
    limits of the courts jurisdiction and seeks tort relief (damages) from
    recognized causes of action, in particular, negligent investigation, malicious
    prosecution and conspiracy related to those torts. The other allegations give
    context, he says.

[6]

The appellants factum and his oral submissions bubble with outrage
    about the bums rush he thinks he got from Faieta J. and from the motion judge.

The context before the motion judge

[7]

The police respondents brought a motion for an order striking out the
    statement of claim, without leave to amend, as being frivolous and vexatious
    under r. 21.01(3)(d) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, and for a lack of compliance with the pleadings requirements of r.
    25.06(8), which requires that where allegations of intentional or malicious
    conduct are made, the claim must contain full particulars supporting the causes
    of action that are alleged. The police respondents also invoked r. 21.01(1)(b) to
    argue that the statement of claim discloses no reasonable cause of action.

The governing principles

[8]

In a motion to strike a pleading as disclosing no reasonable cause of
    action under r. 21.01(1)(b), the moving party must show that it is plain,
    obvious and beyond doubt that the claim will not succeed at trial:
MacKinnon
    v. Ontario Municipal Employees Retirement Board
, 2007 ONCA 874, 88 O.R.
    (3d) 269, at para. 19. The court added, at para. 20, that [t]he statement of
    claim must be read generously to allow for drafting deficiencies and [i]f the
    claim has some chance of success, it must be permitted to proceed. The court
    concluded, at para. 21, that the threshold for sustaining a pleading on a Rule
    21 motion is not high. See also
Doe v. Metropolitan Toronto (Municipality)
    Commissioners of Police
(1990), 74 O.R. (2d) 225 (Div. Ct.), leave to
    appeal refused, [1991] O.J. No. 3673 (C.A.).

[9]

The usual result when a pleading is struck is to grant leave to amend.
    The principles are set out in
Spar Roofing & Metal Supplies Ltd. v.
    Glynn
, 2016 ONCA 296, 348 O.A.C. 330, at paras. 35-45, where Weiler J.A. pointed
    out that this approach is consistent with the generous approach to pleadings
    amendment under r. 26. Leave to amend should accordingly be denied only in the
    clearest of cases:
South Holly Holdings Ltd. v. The Toronto-Dominion Bank
,
    2007 ONCA 456, at para. 6; and
Tran v. University of Western Ontario
,
    2015 ONCA 295, at para. 26.

[10]

Read
    generously, with due allowance for the fact that the appellant is
    self-represented and is not a lawyer, the nub of the claim is for negligent
    investigation, and malicious prosecution on the part of the investigating officer,
    together with conspiracy in relation to these torts.

The motion judges reasons

[11]

The
    motion judge accepted the police respondents submissions that much of the
    statement of claim was scandalous and should be struck on that basis. The police
    respondents argued that the claims for racial profiling, improper purpose
    (organized crime), and malicious falsehood are not recognized causes of
    action. They also submitted that the statement of claim did not plead material
    facts that would establish a breach of the
Canadian Charter of Rights and
    Freedoms
. The motion judge agreed. She dismissed claims against the
    Toronto Police Services Board on the basis of s. 31 of the
Police Services
    Act
,

R.S.O. 1990, c. P.15
. She agreed with the
    submission of counsel for the police respondents that the Claim cannot be
    repaired by amendments as it seeks a remedy outside of the Court's jurisdiction;
    discloses no reasonable cause of action and contains irrelevant and
    inflammatory statements that cannot be removed from the pleading. On this
    basis she struck the claim in its entirety with no leave to amend. She accepted
    the submission that if the claim is not struck out, the result will be unfocussed
    discoveries and a lengthy, complex trial.

The principles applied

[12]

As
    to the proper parties, there is no duty of care owed by the Toronto Police
    Chief personally to the appellant. The action against the Toronto Police Chief was
    properly dismissed. Nor do the Toronto Transit Commission and Edwin Collins,
    the TTC driver, owe a duty of care in negligence that is engaged in this case.

[13]

We
    agree with the motion judge that many sections of the statement of claim are
    scandalous in the technical, legal sense of being irrelevant to the plausible causes
    of action advanced by the appellant. We now turn to the causes of action.

[14]

With
    respect to negligent investigation, Pollak J. commented:

[T]here are no allegations of acts
    or omissions to support the allegation that Constable Verspeeten breached the
    standard of care. The claim is the allegation that Constable Verspeeten and fellow
    Police officers maliciously and intentionally conducted false and negligent
    investigation.  The plaintiff has not pleaded facts which demonstrate how
    the defendant officers breached the standard of care required of police
    officers.

[15]

This
    is not correct. The plaintiff did make allegations about the nature of the
    investigation, which might demonstrate how the defendants breached the standard
    of care required of police officers. In oral argument he complained that he
    himself was not interviewed by the investigating officer. Several other
    relevant allegations can be found at paras. 23 and 24 of the statement of claim:

Defendant and fellow police officers changed the final location
    of both vehicles inside the file which was contrary to the material facts,
    circumstantial and video evidence but fit well with the maliciously falsified
    statements of the witnesses.

[P]olice changed the material facts by falsifying information
    and by fixing things that fit the false statements of thug witnesses.  [C]hanging
    of the facts on the file by the police to fit witness statements are confirmed
    by a video evidence.



Defendant constable and fellow
    officers failed to record the material facts correctly and in fact falsified
    facts such as final locations of the vehicles, motion trajectory of plaintiffs
    vehicle before and after the accident, motion trajectory of the other vehicle,
    Police failed to take plaintiffs statement or at least hear what was the
    truth.  The investigating officer acted with indifference to the consequences
    of laying the charge and fell short of even the rudimentary steps which might
    have been taken to establish reasonable and probable grounds for laying a
    charge. In the present case defendant Police constable knew or ought to have
    known that witnesses were lying.

[16]

Each element of the claim of malicious prosecution against the
    investigating officer appears in the statement of claim: see
Curley
    v. Taafe
, 2019 ONCA 368, at para. 19. First, paras. 17,
    24 and 28 indicate that he initiated the prosecution:

Defendant constable was the investigating officer and was
    working with a team of police officers, names  Peter Upton, James Lee,
    Michelle Moorcroft, Glen Pitters apparently all from 41 Division.



The investigating officer acted with indifference to the
    consequences of laying the charge.



The Defendant officer falsely
    charged the Plaintiff.

[17]

Second,
    the proceedings terminated in favour of the appellant. Third, the appellant
    alleges the absence of reasonable and probable cause. This is implicit in the
    negligent investigation allegations. Several other statements, at paras. 24 and
    29, could be construed as speaking to an absence of reasonable and probable
    cause:

The investigating officer acted with indifference to the
    consequences of laying the charge and fell short of even the rudimentary steps
    which might have been taken to establish reasonable and probable grounds for
    laying a charge. In the present case defendant Police constable knew or ought
    to have known that witnesses were lying.



The Plaintiff states and the fact
    is that the Defendant had no reasonable or probable grounds for charging the
    plaintiff. Further, the Plaintiff asserts that his decision to charge the
    Plaintiff was motivated by the subject officers indifference to the guilt innocence
    or correct identity of the Plaintiff.

[18]

Fourth,
    malice is asserted throughout. For example, paras. 21, 24, 33 and 43 state the
    following:

This action is being brought against the malicious design
    crafted by the Police with an assist from the false witnesses.



Defendant Police constable and fellow Police officers
    maliciously and intentionally conducted false and negligent investigation.



The Plaintiff asserts that the conduct of the Defendant officer
    and TTC driver was malicious and was driven by malice and organized motive.



[T]he malicious attempt to lay
    false charges.

[19]

Finally, the appellant asserted
actual
    injury.


[20]

The
    tort of conspiracy exists if either (1) the predominant purpose of the
    defendants conduct is to cause the plaintiff injury, whether or not the
    defendants means were lawful, or (2) the defendants act in combination, that
    is, in concert, by agreement or with a common design; their conduct is unlawful;
    their conduct is directed towards the plaintiff; the defendants should know
    that, in the circumstances, injury to the plaintiff is likely to result; and
    their conduct causes injury to the plaintiff:
Fanshawe College of Applied
    Arts and Technology v. Au Optronics Corporation
, 2016 ONCA 621, 132 O.R.
    (3d) 81, at para. 71; and
Agribrands Purina Canada Inc. v. Kasamekas
,
    2011 ONCA 460, 106 O.R. (3d) 427, at paras. 24-26. The appellant has pleaded
    each element of this tort against the remaining parties, except for the TTC,
    who remain implicated on the basis of possible vicarious liability for the
    actions of the TTC driver, Edwin Collins.

[21]

First, the appellant pleaded, at para. 23, that [t]he predominant
    objective of the defendant Constable and the fellow police officers including
    the false witnesses was to harm the plaintiff.

[22]

Second, the statement of claim contains the following allegations
    at para. 23:

Defendant constable, false
    witnesses and the fellow police officers acted in concert and combination to
    harm the plaintiff.  Defendant Police Officer, fellow officers and defendant
    TTC driver including other witnesses knew or ought to have known that injury to
    the plaintiff was likely to occur due to their unlawful actions.

As described above, the appellant also asserted actual
    injury.

Disposition

[23]

We
    recognize that motion judges are sometimes faced with claims that seem
    incredible and highly implausible, which are asserted by self-represented individuals
    who are often insulting in their manner of presentation and in the material
    they file with the court. Nonetheless, these individuals are entitled to have
    their pleadings assessed on an objective basis, read generously. They are
    entitled to have their claims determined on the merits, however tenuous those
    might seem to be, or might actually be.

[24]

In
    the statement of claim considered by the motion judge, in our view the
    appellant comes very close to properly pleading the main claims of negligent investigation,
    malicious prosecution, and conspiracy. There are also possible claims pursuant
    to s. 24(1) of the
Charter

and s. 46.1 of the
Human Rights
    Code
, R.S.O. 1990, c. H.19, although they have not been properly pleaded.
    Malicious falsehood, which is referred to a number of times in the statement
    of claim, is not a recognized cause of action. However, in some circumstances
    it could be interpreted as an appropriate factual description.

[25]

We
    therefore vary the motion judges order as follows. We agree with the motion judge
    that much of the pleading is scandalous in the technical legal sense of being
    irrelevant to the determination of the causes of action on the merits. Attached
    to these reasons as Appendix A is a copy of the statement of claim, with
    several portions stroked out. These are struck without leave to amend. The
    balance of the pleading is struck with leave to amend.

[26]

The
    appellant was successful in this appeal. We therefore set aside the motion
    judges costs award. If the parties cannot agree on the costs of the appeal,
    then they may make submissions not more than three pages in length on a ten-day
    turnaround starting with the appellant.

Alexandra Hoy
    A.C.J.O.

P. Lauwers J.A.

B. Zarnett J.A.






