Canada: The Uncertain Boundary Between Complaints And Lawsuits Against Police

Last Updated: December 14 2011
Article by Stuart Zacharias

Originally published in Lawyers Weekly — Focus on Civil Litigation, May 27, 2011

Under the Ontario Police Services Act, documents prepared as a result of a public complaint against a police officer are inadmissible in a civil action. In two recent decisions, the Divisional Court and the Court of Appeal have reached seemingly irreconcilable conclusions on the use that can be made of such information in the context of a lawsuit. The law is currently in an uncertain state, with potential implications for other areas in which administrative and court proceedings may overlap.

In Penner v. Niagara (Police Services Board), [2010] O.J. No. 4046, the Ontario Court of Appeal considered whether findings made in a police disciplinary proceeding preclude re-litigating those same issues in a civil action. The plaintiff in that case had previously filed a complaint under the Police Services Act alleging that two officers unlawfully arrested him and that they used unnecessary force. Following a hearing which lasted several days and included testimony from a number of witnesses, the complaint was dismissed — based on specific findings that the officers had reasonable and probable grounds to arrest, and that they had not used unnecessary force. Those findings were ultimately upheld by the Divisional Court.

The defendants then brought a successful Rule 21 motion to strike the civil claim, which raised essentially the same allegations, on the ground of estoppel. The decision of the Court of Appeal, which upheld the striking of the claim, makes no reference to the Police Services Act provisions regarding inadmissibility.

Subsequently, in Andrushko v. Ontario, 2011 ONSC 1107, the Divisional Court heard an appeal, with leave, based on conflicting decisions at the Superior Court level interpreting the relevant provisions of the Police Services Act. Andrushko arose out of the refusal, at an examination for discovery, to produce a police officer's personnel file, including any complaints or disciplinary information. After reviewing the applicable Police Services Act provisions, the Divisional Court concluded that "confidentiality extends to both information and documents." In particular, the court held that both are subject to a "statutory privilege" which precludes their admissibility in a lawsuit.

In so holding, the court observed that both it and the Court of Appeal had previously reached the same conclusion regarding a similar provision contained in the Ontario Regulated Health Professions Act — holding that complaints against health professionals, and any related disciplinary information, are inadmissible in a civil action: M.F. v. Sutherland, [2000] O.J. No. 2522 (C.A.); Middleton v. Sun Media Corp., [2006] O.J. No. 1640 (Div. Ct.).

In Andrushko, the refusal to produce the police officer's personnel file was therefore confirmed to have been proper. The decision does not refer to Penner. The Supreme Court of Canada has now granted leave to appeal in Penner.

In the meantime, an element of seeming uncertainty has been introduced into this area of law. Can the doctrine of issue estoppel override "statutory privilege"? Does Penner have implications for other statutory complaint processes which contain similar provisions?

Subject to clarification by the Supreme Court of Canada, there are other rules which apply to civil claimants seeking police complaint and disciplinary information. In Mohamed v. Durham Police, [2011] O.J. No. 1146, as in Andrushko, the plaintiff sought production of "any public complaint or discipline files" at the defendant police officers' examinations for discovery. Nothing was pleaded in this regard, however, and the plaintiff had no evidence suggesting that any complaint or discipline history existed.

The court held that, apart from the effect of the Police Services Act provisions, the questions were properly refused given the lack of a proper foundation in the statement of claim. As well, the court held, allegations of a history of misconduct cannot be pleaded in a "vague and general" manner. Rather, such allegations require "full particularity," "commensurate with their level of seriousness." The decision in Mohamed is currently under appeal.

Disclosure of complaint and disciplinary information is thus by no means automatic, even assuming it is admissible. Until that is clarified, the boundary between complaints and lawsuits against police will no doubt remain a fertile one for issues to arise. n

Stuart Zacharias is a lawyer at Lerners LLP with a civil defence practice, and represented the defendants in Mohamed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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