COURT FILE
NO.: C-286/04
DATE:
20090113
ONTARIO
SUPERIOR COURT OF JUSTICE
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B E T W E E N: |
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Agnieska Wojtanowska and Douglas Weil |
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Adam J. Ezer, Agent for the Plaintiffs |
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Plaintiffs |
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Daniel Mustard, The Estate of Steven Blanchard,
Deceased, Shannon Tobin, Ontario Corporation 1034893 (c.o.b. as Black
Photo Corporation), Heather Ramore, Robert Smith, The Regional
Municipality of Peel Police Services Board, Larry Burns, Edward Gies
and Halton Regional Police Services Board |
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Antonio Di Domenico, for the Defendants,
Daniel Mustard, The Estate of Steven Blanchard,
Deceased, Shannon Tobin and Ontario Corporation 1034893 (c.o.b. as
Black Photo Corporation)
Kathryn Kirkpatrick, for the Defendants, Larry
Burns, Edward Gies and Halton Regional Police Services Board
Maria Kotsopoulos, for the Defendants, Heather
Ramore, Robert Smith and The Regional Municipality of Peel Police
Services Board |
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Defendants |
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HEARD: December 4, 2008 |
The Honourable Mr. Justice P.B. Hambly
Introduction
[1]
I heard a motion
for leave to appeal two orders made by Justice Taylor on June 26, 2008. I
gave oral reasons in which I dismissed the motion. These written reasons
are made supplemental to my oral reasons.
Background
[2]
Agnieska
Wojtanowska (Agnes) resided with Douglas Weil (Douglas) in a house located
in the Regional Municipality of Halton. On June 1, 2001 she delivered
some photographs taken inside their residence to Blacks Photography,
located at the Bramalea City Center in the Regional Municipality of Peel,
to be developed. The photographs showed marijuana plants growing in their
residence. They also included personal photographs. Employees of Blacks
turned copies of the developed photographs over to officers of the Peel
Police Service before they gave the original photos to Agnes. On June 7,
2001 the Peel police turned over the photographs to officers of the Halton
Regional Police Service. On June 14, 2001 the Halton police obtained a
search warrant to the residence of Agnes and Douglas. They executed the
search warrant on the same day. Agnes was at home when the police came.
She was arrested. The police searched the residence. They seized the
marijuana plants which they found there. On the following day Douglas
surrendered to the Halton police. Agnes and Douglas were charged with
possession of marijuana, possession of marijuana for the purpose of
trafficking and the production of marijuana. They were released on bail.
[3]
Douglas and Agnes
brought a motion in Superior Court in Milton to exclude the fruits of the
search from their trial pursuant to section 24(2) of the Charter
based on an allegation that their rights to be secure against unreasonable
search or seizure guaranteed by section 8 of the Charter were
violated. On September 16, 2003 Justice L. Walters granted the motion.
On September 22, 2003, on the representations of the crown that it had no
evidence apart from the evidence that was excluded from the trial by her
ruling, Justice Walters dismissed the charges. She also made an order
that the evidence seized pursuant to the warrant be returned to the
accused. Clearly what was contemplated by this order was the photographs
that Blacks turned over to the police. This order of Justice Walters was
issued and entered on October 8, 2003.
[4]
Douglas and Agnes
retained James W.W. Neeb Q.C. On their behalf, he caused to be issued a
statement of claim in which they named as defendants, Blacks Photography,
the individuals at Blacks who dealt with the photographs, the Regional
Municipality of Peel Police Services Board, the Halton Regional Police
Services Board and the Peel police officers and the Halton police
officers who were involved in the investigation. They alleged against the
defendants the violation of their rights guaranteed by s. 8 of the
Charter and breach of their right to copyright in the photographs.
They claimed a total of $1,375,000 in damages against the various
defendants, special damages in the amount of $85,694, plus GST and costs.
[5]
Examination for
discovery of Agnes took place on March 27 and 28, 2006 and of Douglas on
March 28 and March 29, 2006. Thereafter Agnes and Douglas have
represented themselves and one or the other and sometimes both have been
represented by a lawyer. Mr. A. Ezer represented them on the motion
before me. Douglas brought a motion returnable February 7, 2007 for "an
order excluding excluded evidence, that it cannot be revealed". The
evidence that he sought to exclude was the photographs. After hearing his
submissions, Justice Taylor granted a request of the defendants for an
adjournment to permit them to file material. They also wished to bring
their own motion to compel the plaintiffs to answer undertakings and to
answer questions refused at their examinations for discovery. Douglas
brought a motion in Kitchener which he did not file with the court
returnable on March 8, 2007. This motion sought an order against Blacks
Photography to produce a witness’ surname, to produce documents requesting
an audit and to produce undertakings. On March 7, 2007 he sent a letter
to the lawyer for Blacks Photography in which he stated that he intended
to proceed with the motion. Prior to serving the motion he had not sought
a convenient date from opposing counsel. He did not appear on March 8,
2007. Solicitors for Blacks Photography did appear with material in
response to the motion. The matter came before Justice Sills. He awarded
costs against Douglas of $1,500.
[6]
The plaintiffs
were of the opinion that the police had not complied with the order of
Justice Walters made on September 22, 2003 that they return the
photographs to them. They brought a motion before the Superior Court in
Milton for enforcement of the order of Justice Walters. It came before
Justice Snowie on October 19, 2007. She found that the police still
retained photographs contrary to the order of Justice Walters. She
ordered that these photographs be returned to the plaintiffs immediately.
Justice Snowie stated, “it is understandable that the applicants are
dismayed about the missing photos and the index cards as they contain
personal images of the wife of a sensitive nature”. The plaintiffs
brought another motion in Milton before Justice Coates in which they
argued that they still did not have all the photographs or related
material to which they were entitled, pursuant to the order of Justice
Walters. On November 2, 2007 she found, on the basis of the affidavits
filed before her, that the police had returned to the plaintiffs all the
photographs that had come into their possession. The plaintiffs brought
yet another motion in Milton before Justice Quigley in which they argued
that the police still had photographs to which they were entitled pursuant
to the order of Justice Walters. On March 28, 2008 he confirmed the
finding of Justice Coates that the police had turned all the photographs
in their possession over to the plaintiffs. However it was discovered
that a file related to the preliminary inquiry was with the Ontario Court
of Justice. That file contained photographs belonging to the plaintiffs
which the police had acquired. He ordered that these photographs be
returned to the plaintiffs.
[7]
On June 26, 2008
Justice Taylor heard the motion brought by Douglas which was before him
first on February 7, 2007. He also heard a motion of the defendants that
Douglas and Agnes comply with undertakings and answer questions which they
refused to answer at their examination for discovery. The focus of these
two motions was whether the plaintiffs were required to produce the
photographs that Blacks Photography had developed.
[8]
These photos were
now all in the possession of Douglas and Agnes. The photos were in a file
of the Peel police and then of the Halton police. They were used by the
Halton police to obtain a search warrant. They were used to prosecute
Douglas and Agnes for serious drug offences. Notwithstanding that the
charges were dismissed and that the photographs were now all in the
possession of Douglas and Agnes they argued that Justice Taylor was
obligated to view the photographs and to decide whether or not they were
required to produce them to the defendants. This was a process that was
approved by the Court of Appeal in D. P. v. Wagg
2004 CanLII 39048 (ON C.A.), (2004), 71 O.R. (3d) 229 (OCA). In that
case the defendant had been convicted of sexual assault of the plaintiff.
He was in possession of a file provided to him by the crown as part of the
disclosure process in the criminal proceedings. Of particular interest to
the plaintiff was a statement which the defendant gave to the police. The
statement was ruled inadmissible in the criminal proceedings pursuant to
section 24(2) of the Charter as a result of a finding that the
police violated the defendant's right to counsel guaranteed by section
10(b) of the Charter. Justice Taylor, in relation to Wagg, stated
the following:
It must be kept in mind that it was a defendant (in Wagg) resisting
production of a statement which had been excluded in criminal proceedings
against him. In the present case, the plaintiffs have commenced this
action on the basis of the excluded evidence which they now claim to be
entitled not to produce that evidence in the civil proceeding. In my view
this is a significant difference.
He
held that the principles in Wagg did not apply. He dismissed the
plaintiffs’ motion. He allowed the defendants’ motion. He required that
the plaintiffs produce the photographs and re-attend for examination for
discovery on the photographs. After receiving written submissions on
costs in which the defendants claimed a total of $56,421, he allowed the
defendants costs on a partial indemnity basis in the amount of $6,000,
plus GST, plus disbursements of $127.
[9]
On June 26, 2008
Justice Taylor also heard another motion brought by Douglas to set aside
the costs order of Justice Sills made on March 8, 2007. Douglas argued
that the following rule applied.
37.14
(1) Motion to set aside or vary – A party or other person who,
(a) is affected by an order obtained on motion without
notice;
(b) fails to appear on a motion through accident, mistake or
insufficient notice; or
(c) is affected by an order of a registrar.
[10]
Justice Taylor held
that this rule had no application because the facts did not satisfy the
conditions set out in the rule. The applicable rule was the following:
37.09 (1) A party who makes a motion may abandon it by delivering a
notice of abandonment.
(2) A party who serves a notice of motion and does not file it or
appear at the hearing shall be deemed to have abandoned the motion unless
the court orders otherwise.
(3) Where a motion is abandoned or is deemed to have been
abandoned, a responding party on whom the notice of motion was served is
entitled to the costs of the motion forthwith, unless the court orders
otherwise.
[11]
He held that Justice
Sills was correct in assessing costs against Douglas because he had
brought a motion which he had abandoned. He assessed costs of the motion
at $2,000, inclusive of disbursements and GST.
Analysis and Disposition
[12]
The plaintiffs seek
leave to appeal the decisions of Justice Taylor made on June 26, 2008. In
order to obtain leave to appeal they must meet the tests set out in rule
62.02 (4) which reads as follows:
62.02 (4) Grounds on which leave may be granted – Leave to appeal
shall not be granted unless,
(a) there is a
conflicting decision by another judge or court in Ontario or elsewhere on
the matter involved in the proposed appeal and it is, in the opinion of
the judge hearing the motion, desirable that leave to appeal be granted;
or
(b) there appears to be
the judge hearing the motion good reason to doubt the correctness of the
order in question and the proposed appeal involves matters of such
importance that, in his or her opinion, leave to appeal should be granted.
[13] The argument of
the plaintiffs on the first branch of rule 62.02 (4)(a) is that Justice
Taylor's decision conflicts with Wagg. In Wagg, the
chiefs of police of the Toronto and Halton police services intervened.
They were concerned that the police would be restricted in defending
actions brought against them in their use of original materials which may
have been disclosed to the defence in criminal proceedings. The Court of
Appeal in the judgment of Justice Rosenberg stated the following:
…
[82] The Chiefs of the Toronto and Halton Region Police Services
intervened in this appeal principally to put forward the position that the
screening mechanism should not apply to a police force when it is required
to defend itself against a civil action, such as an action for malicious
prosecution. Apparently, the Attorney General has taken the position that
the police service requires the consent of the Attorney General to use the
contents of the Crown brief.
[83] I agree with the Chiefs that the screening process developed by
the Divisional Court in this case does not apply to the original materials
that ultimately find their way into the Crown brief. This case concerns
the use of materials disclosed to the accused as part of the
constitutionally mandated disclosure process. Those materials will
contain copies of various kinds of documents such as officers’ notes,
witness statements, potential exhibits, and other materials such as copies
of videotapes and photographs. The originals remain with the police,
although some may be entered as exhibits. The Crown brief may also
contain copies of notes or other material produced by Crown counsel.
Again, the originals would remain with Crown counsel, or perhaps would be
left with the police for safekeeping.
[84] I can see nothing in the decision of the Divisional Court that
was intended to circumscribe the use that a police service may make of its
own documents and other materials merely because copies of those materials
found their way into the Crown brief and were disclosed to the defence.
This material is essential to permit the police service to defend itself
against lawsuits arising out of their investigations.
[85] The question of use by a former accused of material in the Crown
brief in an action against the police was not before the court in this
case. Accordingly, I would leave that issue for another day, where the
matter is directly raised.
[86] To conclude, in actions against the police the screening process
discussed in this case does not apply to the original materials prepared
by the police during their investigation. The police would only require
the consent of the Attorney General in respect of the use of materials
created by Crown counsel.
[14]
Paragraph 86 might
well have included at the end "or the police". This would include the
statement given by the defendant in the police investigation which was at
issue in Wagg. The photographs which the plaintiffs do not wish to
produce are original material. They were not created by the police or the
crown.
[15]
There is an important
point that may not have been argued before Justice Taylor and which was
given only passing reference in argument before me. Agnes and Douglas
undertook at their examinations for discovery to produce the photographs.
At the examination for discovery of Agnes on March 27, 2006 the following
dialogue took place:
…
450. MR. MAZZUCA: Q. Just so you
understand, we can’t use them for any purpose other than this lawsuit.
A. Thank you.
451. Q. Okay, and while we were off the
record an undertaking was given to provide laser copies of the fronts and
backs of both the original photographs and the copies that were returned
following the criminal trial.
[UNDERTAKING]
MR. NEEB: All right, the only ---
THE DEPONENT: I’m not sure if we’re going give
you laser copies. I may give you the original, I may actually give you
the pictures, but I’m not going to go and make copies of them for this
proceeding.
MR. NEEB: Well, if production of the photographs
are made, as they will be tomorrow, you’ll undoubtedly have them marked as
an exhibit and then we can take it from there as to who is going to make
the copies.
THE DEPONENT: But why do the photographs need to
be put into evidence?
(emphasis added)
MR. MAZZUCA: Can we go off the record?
Further dialogue took
place at her examination for discovery on March 28, 2006 as follows:
803: MR. SWAN: Q. Good morning Ms. Wojtanowska.
A. Good morning.
804: Q. Did you bring with you the
photographs that we spoke about yesterday?
A. I have brought with me, the factum ---
MR. NEEB: You’re not being asked that. You’re
asked about the photographs.
THE DEPONENT: Yes, the photographs, yes. And on
page 3 in paragraph 8 ---
MR. NEEB: You’re not here to make argument.
THE DEPONENT: ---Constable Gies and Pedano – they
asked me if we were provided with photos and Pedano and Gies were
subsequently provided with a second copy of the photograph in which both
officers identified the female party who attended to pick up the photos as
the same individual observed in ---
MR. NEEB: --- be that as it may ---
THE DEPONENT: --- the series of photographs seen
---
MR. NEEB: ---the question is, did you bring the
photographs with you today?
THE DEPONENT: No.
MR. NEEB: That’s the question.
THE DEPONENT: They, they have a copy ---
MR. NEEB: No, the question is ---
THE DEPONENT: ---of the photographs.
MR. NEEB: ---did you bring your photographs
today?
THE DEPONENT: No.
MR. NEEB: All right. That’s the answer. I
apologize for that. I didn’t realize that Ms. Weil was going to take this
position, which is certainly contrary to my position. She will produce
the photographs, but it’s unfortunate that she did not produce them today.
(emphasis added)
805. MR. SWAN: Q. I’m sorry. I referred to you at the outset
as Ms. Wojtanowska. Do you prefer to be called Ms. Weil wouldn’t you?
A. Yes.
806. Q. Okay. I’m sorry.
A. No problems.
807. Q. All right. So let me just explore with you what you
have said. You were asked yesterday to bring with you the photographs.
Correct?
A. Yes, and the factum.
808. Q. And the factum and some other documents. But right
now I’m interested in the photographs. And you remember being asked that
question yesterday, correct?
A. Yes.
809. Q. And indeed you do have the photographs at home,
correct?
A. In part, yes.
810. Q. In part. Why only in part?
A. There are some missing.
811. Q. Where are they, the ones that are missing?
A. Um, we didn’t get all of our photographs back.
There are some photographs missing in terms of numbers. We didn’t get our
full complete order back.
812. Q. All right. Let’s take this in two pieces because
there are actually two different sets of the same photographs. So we’re
talking about, let’s call the set that you received, you personally
received from the store on June 1, 2001 at set one. Okay. Do you know
what I’m talking about there?
A. Yes.
813. Q. So that’s the set that you went into the store at
Black’s and you received them on the day that you got your hair cut, as
you described yesterday.
A. Yes.
814. Q. We’ll call those sets, set one. And there was a
second set, it’s not in dispute, that the police obtained, and ultimately
you received that second set of photographs back from the Halton Regional
Police. Correct?
A. Yes.
815. Q. And in respect to the first set, the set that you got
from Black’s itself, you received a complete set of photographs. Correct?
A. Yes and there’s also a third set of photographs.
816. Q. Okay. The third set is that you got doubles at the
time that you – is that correct? Where did the third set come from?
A. The third set, the Peel police still have.
MR. SWAN: Okay, I don’t know about that. Do you know
that ---
MR. NEEB: I don’t ---
MR. SWAN: ---Mr. Neeb?
MR. NEEB: I don’t
817. MR. SWAN: Q. What are you talking about Ms. Weil?
A. Gies and Pedano were provided with a second copy
of the sets of photographs.
818. Q. Okay. Your Counsel doesn’t know anything about that.
MR. NEEB: That’s correct.
A. It’s in the evidence.
819. MR. SWAN: Q. Al right. Well let’s ignore that set
because it seems to be a matter of dispute and---
A. It was in the warrant to obtain the information
that Gies and Pedano got, receive a second copy and that they identified
me in the photos.
820. Q. All right. I’m going to ask your Counsel to
undertake to provide me with further information in respect to this so
called third set of photographs.
MR. NEEB: I shall.
[UNDERTAKING]
MR. SWAN: And what your position is in relation to
that, whether they exist and what your position is in relation to those,
that third set.
821. MR. SWAN: Q. Okay. Let’s go back to sets one and two.
The set that you received from Black’s on June 1, 2001, set one.
A. Yes.
822. Q. Do you still have a complete set of those
photographs?
A. It’s not all together but it can be put together,
and as well, we didn’t received my full order. I did not receive my full
order from Black’s.
823. Q. What do you say you didn’t receive?
A. I didn’t receive index cards and I believe there
were a few pictures missing as well.
824. Q. So you say you didn’t get index cards and a few
pictures were missing?
A. Yes.
825. Q. Do you know which ones?
A. No. Like I said, I haven’t looked at the
pictures. I don’t want to look at the pictures.
826. Q. Okay. And the set that you got back, set two, from the
Halton police, you acknowledge getting a set back from the Halton police?
A. Yes.
827. Q. And was that a complete set?
A. I believe that there were some pictures missing
from there as well.
828. Q. The same ones that you say are missing from set one
or different?
A. I’m not sure. I haven’t compared them.
829. Q. Could you advise me which pictures you say are
missing from set one, to the extent that you can identify them, and also,
would you advise me which pictures you say are missing from set two, and
when I say missing, I’m referring to the fact that you say you never
received them either in the first case from Black’s or in the second case
from Halton? Do I have that undertaking?
MR. NEEB: Yes.
[UNDERTAKING]
830. MR. SWAN: Q. Did you ever receive an index card from
either Black’s or the Halton police or some other source for these
photographs?
A. Yes, there are index cards missing. I’m not sure
how many. I believe that with one set – with Halton is – which one are
you calling that?
831. Q. Halton is set two.
A. Set two there were some index cards provided, I’m
not sure if one or two. With set one, there were no index card provided.
832. Q. All right.
A. As well as the courts had an 8 ½ sheet by 11 with
all four index cards on them.
833. Q. Okay but ---
A. ---that we have not received as well.
834. Q. As I understand it those were not prints but
something else, were they not?
A. It was an 8 ½ x 11 sheet that had the index, that
had, I guess, index cards, so it would have been 24 pictures on each of
the index cards on an 8 ½ sheet.
835. Q. Okay. Let’s come back to set one, the set that you
did get back from Black’s. And your evidence is, you think a few pictures
are missing from those.
A. Yes.
836. Q. Are they missing – and you say you didn’t get them
from Black’s in the first place?
A. Yes.
837. Q. And you also say you didn’t get an index card?
A. Yes.
838. Q. Now that’s not, the fact that you didn’t get a couple
of pictures back and didn’t get an index card, that’s not part of your
claim is it, against Black’s?
A. Index cards.
839. Q. Am I correct that that isn’t part of your claim
against Black’s?
MR. NEEB: It’s not.
840. MR. SWAN: Q. All right. And where are those pictures,
set one, those that you did receive from Black’s on June 1, 2001. Where
are they today?
A. They’re at 185/186?
841. Q. You’re home?
A. Yes.
842. Q. And are they together or are they separated in some
fashion?
A. My husband’s been through them so they’re all
over the place.
843. Q. Are they collected in a shoebox are they in a scrap
book, a journal, a photo album?
A. They’re in some binders, they’re in a FedEx box,
they’re in some other place in some other boxes
844. Q. Okay. Are any of them in your husband’s journals
that you refer to?
A. No.
845. Q. Are any of ---
A. I do not believe so.
846. Q. Are any of them in books that have writing or other
material in them?
A. No.
847. Q. Okay. What I would like you to
do, Ms. Weil, is to produce to us, and I was hopeful that you would do it
today, in fact I had understood that you were undertaking to do it today,
to bring with you and produce that complete set of photographs that you
received from Black’s on June 1, 2002 for the defendants to review.
A. I refuse.
848. Q. Why do you refuse?
A. Because they’re my personal pictures and I
do not wish to show them again.
MR. NEEB: This is a complete set of photos ---
THE DEPONENT: There’s a naked picture of me, if
that lady would like to show herself naked, most certainly, but I’m not
showing myself naked. This are personal pictures. I will provide the
backs which have the numbers, which clearly identify each picture as an
individual picture. I will provide that.
MR. NEEB: What you just ---
THE DEPONENT: Halton ---
MR. NEEB: Excuse me. Excuse me. What’s your
position with respect to the naked picture?
MR. SWAN: I don’t know. I’d have to give that
some thought.
MR. NEEB: All right. You’ll have our undertaking
as was given yesterday, to produce the complete set of photos, absent the
naked photo for the time being.
[UNDERTAKING]
849. MR. SWAN: Q. Are you prepared – and
I’m still asking for production of all of the photos because I think it’s
important that we have a complete record. I do understand your concern
about one or two other photos but the parties can deal with that in an
appropriate manner, but let’s leave aside, so I’m still asking for that,
but let’s that aside, are you prepared to produce all of the other photos
in this set aside from the one that is a naked photograph of yourself?
A. I will produce the backs of the photographs
which clearly identify each photo. I will not produce the photographs
themselves which depict my personal life and life choices and lifestyle.
I will not.
850. Q. And you do understand that those
photographs are the gravamen of your claim?
A. Yes.
851. Q. But you’re not prepared to
produce them?
A. I will produce the backs. That proves that
they have the photographs. It proves that the photographs are in
existence.
852. Q. And why will you not produce the
fronts of photographs?
A. Why do you need the fronts of the
photographs?
853. Q. Well you’re asserting that there
is copyright in the photographs and in order for the court to adjudicate
on whether copyright exists and whether there’s been any breach of
copyright, the court will have to see the photographs.
A. But they are in your possession to have.
You have reach and control to get them.
854. Q. How is it that I am able to get
them?
A. Peel police has a copy. Gies and Pedano
will provide it with a second set that were never relinquished to us, as
well there are index cards that clearly show each of the pictures.
855. Q. Mm hmm.
MR. NEEB: Can we go off the record?
MR. SWAN: Mm hmm.
856. MR. SWAN: Q. Ms. Weil, even if it
meant that you couldn’t pursue your claim you’re still not prepared to
produce those photographs?
A. Perhaps.
857. Q. Well I’ve asked for the
undertaking.
MR. NEEB: And you have it.
858. Q. And would you also produce to me
or produce to the defendants, all of the photographs that you received
back from the Halton police, the so called copies?
A. Same, same answer.
859. Q. You’re refusing to ---
A. ---Halton ---
MR. SWAN: ---to produce that.
THE DEPONENT: ---Halton police has a copy on
their computer. They have copies of the pictures. Again, it’s within
their reach and power to have and get.
860. MR. SWAN: Q. You’re refusing to
produce them?
A. Yes.
MR. NEEB: You have the undertaking to produce
them. (emphasis added)
861. MR. SWAN: Q. Yes. Thank you. And let me just explore
with you where that second set is. The Halton pictures that you obtained
back from the Halton police in ---
MR. NEEB: September 3rd ---
MR. SWAN: ---September ---
MR. NEED: ---I’m sorry, September 20.
862. MR. SWAN: Q. September of 2003, is that when you receive
them back from the Halton police approximately?
A. I believe so.
863. Q. Okay. Where are those – and you say a few of those
are missing as well, or do you have a complete set of those?
A. Yes, a few of those are missing as well.
864. Q. Okay. I’d like you to identify which of those are
missing by way of undertaking. And if you say there are index cards
missing, I’d like you to tell me which index cards you say are missing.
Can I have that undertaking?
MR. NEEB: We’ve given an undertaking to advise you
which photographs are missing from set one and set two.
MR. SWAN: Okay. So we have that already.
MR. NEEB: You’ve already got that. Now you’re adding
another.
MR. SWAN: The index cards as well.
At
the examination for discovery of Douglas on March 29, 2006 the following
dialogue took place:
…
565. Q. Okay. So I’d like you to do is
to produce copies of those photographs, just of the plants.
MR. NEEB: Do you still have those photographs
that were returned from the Halton police of the plants?
THE DEPONENT: I’m not sure.
MR. NEEB: We’ll use our best efforts.
(emphasis added)
THE DEPONENT: Yes.
[UNDERTAKING]
566. MR. MAZZUCA: Q. So you’re unable today then to tell us
whether there were more or less than 100 marijuana plants on the day of
the seizure?
A. No.
[16]
Mr. Neeb brought a
motion to be removed from the record as the solicitor for the plaintiffs
on August 17, 2006, which was granted.
[17] On March 8,
2007, Douglas wrote a letter to Elizabeth Jasci, who was on the record as
the solicitor for Agnes, and to the solicitors for the defendants. He
held himself out as representing both Agnes and himself. He stated the
following:
…
3. To
provide copies of the fronts and backs of both the original photographs
and the copies that were returned following the criminal trial.
A) Answer on page
123 Q: 847, March 28, 2006
B) The plaintiffs do
not have the original photographs in their possession;
C) The defendants
Peel regional police, has original set;
D) The defendants
Peel regional police have the index cards;
E) Both police
agencies are in unlawful possession of the plaintiffs’ property;
F) This property
was ordered back by the Superior Court of Ontario;
G) The photos are
Grounds for the statement of claim to the Copyright law violation;
H) The plaintiffs
do not authorize any copies being made or to the viewing of the
photos;
I) The
photographs are excluded from evidence and are protected by the
constitution;
J) No relevance
to claim.
[18]
Question 847 and its
answer is set out above. I reproduce it here for convenience:
847. Q. Okay. What I would like you to do, Ms. Weil, is to
produce to us, and I was hopeful that you would do it today, in fact I had
understood that you were undertaking to do it today, to bring with you and
produce that complete set of photographs that you received from Black’s on
June 1, 2002 for the defendants to review.
A. I refuse.
[19]
In the statement of
claim the plaintiffs seek damages for the violation of their right to be
secure against unreasonable search and seizure guaranteed by section 8 of
the Charter. Justice Walters, in her judgment dated September 16,
2003, held that the police seized the photographss from Blacks Photography
and thereby violated the plaintiffs’ rights under section 8 of the
Charter. The photos were used to obtain a search warrant. The
execution of the search warrant resulted in the discovery of the marijuana
plants. This resulted in the charges against the plaintiffs. Justice
Walters held that the evidence obtained as a result of the execution of a
search warrant was inadmissible pursuant to section 24(2) of the
Charter. The charges were dismissed because the crown had no other
evidence. The plaintiffs seek leave in their statement of claim to refer
to the reasons for judgment of Justice Walters. The plaintiffs claim
copyright in the photographs. They allege breach of their copyright
against Blacks Photography by reason of their giving the photographs to
the Peel police and against the Peel police by reason of their giving the
photographs to the Halton police. The plaintiffs, having sued on the
basis of the use of the photographs by the defendants, cannot now refuse
to produce them to the defendants. The defendants can only properly
assess the case against them by viewing the photographs. Mr. Neeb
recognized this by undertaking to produce the photographs at the
examinations for discovery contrary to the wishes and perhaps instructions
of his clients.
[20]
The plaintiffs are
clearly very sensitive about others viewing the photographs. I can
understand this as did Justice Snowie in the passage quoted above.
However, they cannot both sue on the photos and refuse to produce them.
The plaintiffs’ position has no merit. They have not satisfied the first
branch of either rule 62.02 (4) (a) or (b).
[21]
Regarding the order of
Justice Sills made on March 8, 2007, Douglas did not appear on a motion
which he had served after he had assured counsel in writing that he would
appear. Clearly Justice Sills was correct in awarding costs against him
and Justice Taylor was correct in declining to set aside the order of
Justice Sills. His position in seeking leave to appeal Justice Taylor's
order refusing to set aside the order of Justice Sills has no merit. He
has not satisfied the first branch of either rule 62.02 (4) (a) or (b).
[22]
The Peel police
submitted a bill of costs in the amount of $4,437, including disbursements
but exclusive of GST. The Halton police submitted a bill of costs,
inclusive of GST and disbursements of $5,642. Blacks Photography
submitted a bill of costs, inclusive of GST and disbursements of $7,090.
The total claim of the defendants for costs is $17,079. The defendants
filed a single factum and a single brief of authorities. Counsel for
Blacks Photography argued the motion for all the defendants. I fixed
costs at $12,000. The position of the plaintiffs in declining to produce
the photographs has no merit. Mr. Neeb recognized this. Clearly the
plaintiffs do not wish to produce the photographs. They want to protect
their privacy. I can understand this, as could Justice Snowie. If the
plaintiffs do produce the photographs they cannot be used by the
defendants for any purpose other than the lawsuit. The plaintiffs will
have to choose between production of the photographs or abandoning the
lawsuit. The position of the plaintiffs in seeking leave to appeal the
orders of Justice Taylor has no merit. Although the costs which I fixed
at $12,000 may be on the high side, I decline to change my order. Parties
cannot bring frivolous motions to which opposing parties are required to
respond with impunity. I will make an order deferring payment of $6,000
until after the trial or settlement. The balance of $6,000 is payable
forthwith.
___________________________
P.B. HAMBLY J.
Released: January 13, 2009
