




COURT OF APPEAL
    FOR ONTARIO

CITATION: Conklin v. Ontario, 2018 ONCA 726

DATE: 20180831

DOCKET: C64805

Lauwers, Miller and Nordheimer JJ.A.

BETWEEN

Ian Gordon Conklin

Plaintiff (Appellant)

and

Her Majesty the Queen in
    right of Ontario,
Ministry of Community Safety and Correctional Services, Ottawa
    Carleton Detention Centre, Ottawa Police Service, City of Ottawa
, Gaston
    Thibideau,
Maureen Harvey
, Robert J. Taite,
John Doe
and
Jane Doe

Defendants (Respondents)

Joseph Obagi, for the appellant

Jim Smith and Meagan Williams, for the respondents

Heard and released orally: August 30, 2018

On appeal from the judgment of Justice Michelle OBonsawin
    of the Superior Court of Justice, dated December 7, 2017.

REASONS FOR DECISION

[1]

The plaintiff appeals from the order of the motion judge who struck out
    the plaintiffs claim against Maureen Harvey, John Doe and Jane Doe.  The
    plaintiff does not appeal from the same order that struck out the plaintiffs
    claim against Her Majesty the Queen in right of Ontario.

[2]

The plaintiff claims damages for negligent investigation by officers of
    the Ontario Provincial Police (O.P.P.) and for breach of the duty of care
    owed to him by corrections officials while he was held in custody for three
    years at the Ottawa-Carleton Detention Centre (O.C.D.C.).

[3]

The appellant was incarcerated while a number of drug related charges
    were pending against him.  Eventually, at the request of the Crown, all charges
    were stayed in June 2014 on the basis that there was no reasonable prospect of
    conviction.

[4]

The defendant, Maureen Harvey, is identified in the amended statement of
    claim as being, at all material times, the superintendent of the O.C.D.C.  The
    defendants, John Doe and Jane Doe, have dual roles in the amended statement of
    claim.  On the one hand, they are alleged to be officers of the O.P.P. who were
    in charge of the investigation of the appellant and the charges against him. 
    On the other hand, they are alleged to be guards or correctional service
    officers charged with the supervision and care of inmates at the O.C.D.C.

[5]

The defendant, Her Majesty the Queen in right of Ontario, brought a
    motion to strike out that claim as against her and as against the respondents,
    Maureen Harvey, John Doe and Jane Doe.  The motion judge struck the various
    claims, all without leave to amend.

[6]

In granting the order as it related to Ms. Harvey, the motion judge
    found that the amended statement of claim does not provide particulars enough
    to link Ms. Harvey in her personal capacity.  However, the motion judge did
    not provide any reasons for striking the claims against John Doe and Jane Doe. 
    On that point, we note that the respondents do not oppose the appeal being
    allowed as it relates to the striking of the claims against John Doe and Jane
    Doe.

[7]

It is well-established that, on a motion to strike a statement of claim,
    the pleadings are to be read generously allowing for inadequacies due to
    drafting deficiencies:
Nash v. Ontario
(1995), 27 O.R. (3d) 1 (C.A.)
    at para. 11.

[8]

In our view, the motion judge failed to properly apply this test in
    concluding that the claims against Maureen Harvey should be struck out.  While
    not pleaded as precisely as one would hope, the amended statement of claim does
    plead that Ms. Harvey was the superintendent of the O.C.D.C. responsible for
    the hiring and firing of staff.  In a later section of the amended statement
    of claim, the plaintiff pleads that the staff of the O.C.D.C., its management
    and supervisors failed in various respects including hiring staff that lacked
    the necessary skills and staff that were incompetent.  The amended statement of
    claim further pleads that the staff and management of the O.C.D.C. kept the
    appellant in conditions that were inhumane and failed to provide him with the
    necessaries of life.

[9]

Read generously, the amended statement of claim alleges facts that
    amount to negligence on the part of the staff and management of the O.C.D.C. 
    That staff and management would include Ms. Harvey as superintendent.  Indeed,
    as superintendent, she would be presumptively responsible for all of the other
    staff. There was, therefore, a sufficient pleading of negligence with respect
    to the claim against Ms. Harvey.

[10]

In
    reaching her conclusion, the motion judge relied, in part, on the decision in
Persaud
    v. Ontario (Attorney General)
,

[2008] O.J. No. 2953 (S.C.J.).  In
    that case, the plaintiff had commenced three different actions making various
    allegations including abuse to which she was subjected at the Centre East
    Detention Centre.  The defendants brought motions to strike out the claims.  In
    referring to one of the claims that alleged an assault by a corrections guard, Horkins
    J. said, at para. 55:

However, it is not just the lack
    of particulars in the statement of claim that renders the claim against the
    guard defective. If an assault occurred then the plaintiff may have a cause of
    action but it is against Her Majesty the Queen in Right of Ontario, not the
    guard.

[11]

It
    is not clear to us, given the state of the pleadings in
Persaud
, what
    the precise allegation involving the guard was which led to the above
    statement.  However, if the motion judge in
Persaud
intended to hold
    that there was no individual claim against the guard, then that decision is
    wrong in law.  If a person is unlawfully assaulted by a guard while in a
    provincial detention centre, that person has an individual claim against the
    guard that may also lead to a separate claim against Her Majesty the Queen in
    right of Ontario based on vicarious liability.

[12]

The
    claim against Ms. Harvey was not so devoid of allegations of fact that it was
    plain and obvious that it could not succeed.  The claim ought not to have
    been struck, especially without leave to amend.

Conclusion

[13]

The
    appeal from the judgment of the motion judge is allowed and the order striking
    out the claims against Maureen Harvey, John Doe and Jane Doe, is set aside.

[14]

The
    appellant is entitled to his costs of the appeal fixed in the agreed amount of
    $15,000 inclusive of disbursements and HST.  We set aside the costs order below
    and make no order as to costs of the original motion.

P.
    Lauwers J.A.

B.W.
    Miller J.A.

I.V.B.
    Nordheimer J.A.


