



COURT OF APPEAL FOR ONTARIO

CITATION: Scala v. Toronto (Police Services Board), 2021 ONCA
    297

DATE: 20210505

DOCKET: C66893

Feldman, Harvison Young and Thorburn JJ.A.

BETWEEN

Felice Scala
and Catarina Scala

Appellant

and

Toronto Police Services
    Board, Detective Todd Hall, Police Officer(s) John Doe and Police Officer(s) Jane
    Doe

Respondents

Jonathan Shulman, for the
    appellant

Douglas O. Smith and Sarah
    Sweet, for the respondents

Heard and released: April 16, 2021 by videoconference

On appeal
    from the judgment of Justice Andrew A. Sanfilippo of the Superior Court of
    Justice, dated July 18, 2019, with reasons reported at 2019 ONSC 2239 and 2019
    ONSC 4359.

REASONS
    FOR DECISION

Basis for the Appeal

[1]

The appellant, Felice Scala, appeals the judgment in which the trial
    judge denied his claim for damages resulting from the alleged excessive use of force
    by police and the award of costs.

[2]

The key issue was whether the respondents, Toronto Police Services
    Board, Detective Todd Hall, and other unidentified police officers (together the
    Police Respondents) acted on reasonable grounds, [and were therefore]
    justified in doing what [they are] required or authorized to do and in using as
    much force as is necessary for that purpose within the meaning of s. 25(1) of
    the
Criminal Code

and, if so, they are protected from
    liability.

[3]

The appellant claims the trial judge made numerous errors of fact in
    dismissing his claim for damages resulting from alleged excessive police force.
    He claims the police respondents ought to have known of his health conditions, were
    not justified in using force, and should reasonably have known the grounding
    manoeuvre would cause him harm. They further claim that the trial judge erred
    in determining that Mr. Scala did not comply with a demand to surrender, and
    that police therefore used proper procedures and were justified in using force
    to overcome resistance, and that Mr. Scala did not report injuries to police.

The Law of Excessive Use of Force and the Standard of Review

[4]

There is no dispute over the applicable law. In brief, in order to
    obtain protection from civil liability, police must establish that the level of
    force used to arrest was necessary, meaning that it was objectively reasonable
    in the circumstances presented to the police at the time of the arrest:
Wilsdon
    v. Durham Regional Police
, 2011
    ONSC 3419,
at para 85;
R. v. Nasogaluak
,

[2010] 1 S.C.R. 206
,
at paras. 34-35.
    Objectively reasonable has been defined as reasonable given the nature and
    quality of the threat, the force used in response to it, and the
    characteristics of the parties:
R. v. Power
,
2016 SKCA 29, 335
    C.C.C. (3d) 317, at para 35.

[5]

The contested findings that form the basis of the judges conclusion are
    all issues of fact for which the standard of review is palpable and overriding
    error. In addition, a trial judges credibility assessments are entitled to a
    high degree of deference.

The Positions of the Parties

Uncontested Facts

[6]

On July 10, 2008, the appellant Felice Scala and his son, Ralph, were
    arrested while walking their pit-bull terrier. At the time, the appellant was
    sixty-two years old.

[7]

As noted by the trial judge in his reasons, Mr. Scala was arrested on
    charges of breach of recognizance and criminal harassment. He conceded at trial
    that the police had probable cause for his arrest, were required or authorized
    by law to perform the arrest and acted on reasonable grounds in doing so.

The Appellants Position

[8]

Mr. Scala and his wife, Catarina, commenced an action in 2010 alleging
    that police used excessive force during Mr. Scalas arrest, were negligent and
    breached their fiduciary duty to him, and that he suffered damages as a result.
[1]

[9]

Mr. Scala claims the police did not tell him he was being arrested;
    threw him to the ground; and punched, kicked, and beat him while he was facedown
    on the ground for 2-3 minutes. He said he asked the officers to stop and denied
    that he resisted arrest or assaulted officers.

[10]

A
    witness, who was also a friend of Mr. Scala, testified that he saw police kick
    and punch the two men for 2-3 minutes and that Mr. Scala asked the officers to
    stop but they did not.

[11]

Mr.
    Scala claims that after he was taken to the police station, he asked to be
    taken to the hospital, asked repeatedly to use the washroom but was ignored,
    had to urinate on the floor of the detention room, was ordered to wipe it clean
    with his sweater, and was deprived of his medication. Mr. Scala also alleged
    that the police failed to complete required forms and reports.

The Respondents Position

[12]

The
    Police Respondents deny that any officers kicked, punched, or kneed Mr. Scala.
    The officers testified that they told Mr. Scala he was being arrested and he
    was non-compliant. He was therefore taken to the ground in a controlled manner
    by taking hold of one arm, thrusting Mr. Scala forward suddenly so he would
    lose his balance, and then guiding him to the ground in a controlled fall. His
    hands were taken from under his chest so that he could be handcuffed.

[13]

The
    Police Respondents said Mr. Scala did not complain of any injuries and was not
    refused permission to use the washroom. One officer testified he accompanied
    Mr. Scala to the washroom. Another testified that he attended Mr. Scalas
    house and obtained his medication from Ms. Scala.

The Trial Judges Decision

[14]

The
    trial took place some ten-and-a-half years after Mr. Scalas arrest. In
    addition to the testimony of witnesses, the trial judge considered and reviewed
    the booking video and the medical records from the days following the arrest.
    He found many inconsistencies and inaccuracies in Mr. Scalas evidence and
    concluded that Mr. Scalas account of the arrest and detention was neither
    credible nor reliable. He found the evidence of the police officers, on the
    other hand, to be credible and reliable, and he therefore accepted their
    evidence.

[15]

The
    trial judge offered reasons for his rejection of Mr. Scalas evidence, which
    included the following internal inconsistencies:

(i)

In
    examination for discovery, Mr. Scala testified that he was kneed and punched in
    the head, whereas at trial he denied that any of the blows were administered to
    his head. He testified earlier that he had sustained a head injury, but admitted
    at trial that he had not;

(ii)

In discovery,
    he stated that he was beaten by two police officers, whereas at trial he
    testified that the beating was administered by three police officers. In the
    video of his booking, taken within a half-hour of the arrest, Mr. Scala stated:
    They six guys and me; and,

(iii)

Mr. Scala
    testified at discovery that the police officers kneed him on the top of his
    upper body and head and punched him in his shoulders and head. At trial he
    stated that he was struck only on his back and legs.

[16]

The
    trial judge found that [t]hese inconsistencies are incapable of being
    explained as the by-product of the passage of time, or Mr. Scalas qualities as
    an historian. They are fundamental and foundational to the veracity of his
    explanation of what happened on July 10, 2008, so much so that I had to
    question which version of the Plaintiffs account of events I was being asked
    to accept.

[17]

The
    trial judge further held that there were aspects of Mr. Scalas account of
    events that were inherently not plausible, including the following:

(i)

When
    the police officers approached him, they did not utter a single word;

(ii)

He
    was not told that he was being arrested at any time from his apprehension to
    his transportation to the police station;

(iii)

He was not
    handcuffed after being apprehended, and when transported to the police station;
    and,

(iv)

After being
    placed in the police cruiser, he was driven up and down the street, with the
    police stating loudly that Scala is in the car.

[18]

The
    trial judge found these statements were inconsistent with an operation
    conducted in daylight in public view on a residential street.

[19]

The
    trial judge also held that there were elements of Mr. Scalas testimony that
    were simply shown to be inaccurate, including the following:

(i)

His
    testimony that he was bleeding when he was taken to the police station. There was
    no evidence of this on the booking video, or in the examination by the medical
    caregivers;

(ii)

He
    testified that when he was taken to the police station, his pants were torn.
    This was not borne out by the booking video;

(iii)

His
    evidence that he asked the booking officer to be taken to the hospital to
    obtain care for his injuries. The booking video shows that Mr. Scala did not
    make any such request to the booking officer. Indeed, when asked directly by that
    officer whether he had any injuries, he did not mention any;

(iv)

His statement
    that he was forced to clean up a soiled floor in the detention area with his
    sweater, when the booking video shows that he did not have a sweater;

(v)

At
    trial, Mr. Scala stated that he did not drink any alcoholic beverages on the
    day of the arrest and did not have a knife in his possession. The video shows
    that, at the time of booking, Mr. Scala stated that he had a glass of wine with
    his lunch, and a small knife was found in his possession;

(vi)

Mr. Scala
    testified that he did not have any medical issues with his back or leg prior to
    the arrest and denied that he had undergone any medical diagnostic assessments
    in relation to any such issues. The medical records show that Mr. Scala
    complained to his physicians of back pain and left leg pain as much as three
    years before the arrest, and had previously undergone a nerve conduction study
    to assist in the diagnosis of these issues; and,

(vii)

Mr. Scala testified
    that he had never been convicted of a criminal offence. Police records show
    that he was convicted, on June 1, 2009, for failing to comply with a peace bond
    and, on June 3, 2010, for failing to comply with a recognizance.

[20]

Lastly,
    he held that Mr. Scalas evidence was not corroborated by the booking video or
    the photographs, neither of which support the extent of injury that he alleges.

[21]

By
    contrast, the trial judge found the evidence of the several police officers to
    be credible and reliable, corroborated by the testimony of the other police
    officers, internally consistent, plausible and consistent with the recorded
    evidence.

[22]

The
    trial judge therefore found that the officers did not punch, kick, knee, or
    beat Mr. Scala; that they told Mr. Scala he was under arrest and why; that Mr. Scala
    resisted arrest; and that the officers executed a takedown and controlled fall,
    pulled Mr. Scalas hands out to handcuff him, and drove him directly to the
    police station. He found that Mr. Scala was not denied access to a washroom, but
    rather that he was accompanied to the washroom, he was not ordered to clean up
    urine, and he was not deprived of medications. The trial judge accepted that,
    in the course of the arrest, Mr. Scala had suffered some trauma that resulted
    in bruising on his right thigh and calf, which were the only injuries caused by
    the officers during the arrest.

[23]

The
    trial judge also held that the takedown would not have been required but for
    the lack of compliance, handcuffing Mr. Scala was reasonable, and the amount of
    force used was necessary, justified, and not excessive.

[24]

While
    not necessary to the determination, the trial judge would have drawn an adverse
    inference from Mr. Scalas failure to call his wife and son, who witnessed the
    arrest.

[25]

The
    trial judge therefore held that, on the evidence before him, Mr. Scalas claims
    of excessive use of force should be dismissed. He also rejected Mr. Scalas
    submission of breach of fiduciary duty, because it was not pleaded and only
    raised in closing submissions. If Mr. Scala had established liability, the
    trial judge would have awarded general damages of $15,000 for pain and
    suffering.

[26]

The
    trial judge also considered all of the arguments made by the parties on the
    issue of costs and exercised his discretion in awarding costs of the trial to
    the police respondents.

Conclusion

[27]

The
    trial judges conclusion to dismiss the claim for excessive force and damages resulting
    therefrom was based largely on his findings of fact and credibility which are
    reviewed on a standard of palpable and overriding error.

[28]

The
    appellant claims that most of the important aspects of the story as recounted
    by police should not have been accepted and that the trial judge erred in rejecting
    most of his evidence as being neither credible nor reliable.

[29]

We
    disagree.

[30]

The
    trial judge carefully evaluated the evidence led at trial, made determinations
    as to which witnesses he found credible and which witnesses he did not,
    properly instructed himself as to the applicable law and then applied that law
    to the facts as found by him. In so doing, he committed no reviewable error. His
    findings were amply supported by the evidence and there is no basis to overturn
    those conclusions.

[31]

As
    noted at the outset, the appellant also raised the issue of trial costs in his
    notice of appeal and during his oral submissions. He claims this is public interest
    litigation and that the quantum of costs ordered by the trial judge is
    unreasonable and unfair in these circumstances given Mr. Scalas medical
    conditions and the allegation that he did not resist arrest, and that it would
    be inconsistent to hold Ms. Scala jointly and severally liable for the
    costs while also ordering her alone to pay $5,000 in costs.

[32]

We
    note that the trial judge did not in fact hold Ms. Scala jointly and severally
    liable.

[33]

The
    trial judge ordered Mr. Scala pay costs in the amount of $50,000, inclusive of
    HST, and $17,419.40 in disbursements; and Ms. Scala pay costs in the amount of
    $5,000, all inclusive.

[34]

We
    see no basis to interfere with the exercise of the trial judges discretion in making
    this award.

[35]

For
    these reasons the appeal is dismissed.

[36]

Partial
    indemnity costs are payable to the police respondents by the appellant, Felice
    Scala, in the amount of $10,000 inclusive of HST and disbursements.

K. Feldman J.A.

A. Harvison Young
    J.A.

J.A. Thorburn J.A.





[1]

Catarina Scala withdrew her claims at trial and did not
    participate in the trial.


