SUPERIOR COURT OF JUSTICE
B E T W E E N:
Agnieska Wojtanowska and Douglas Weil
Adam J. Ezer, Agent for the Plaintiffs
- and -
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
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
HEARD: December 4, 2008
The Honourable Mr. Justice P.B. Hambly
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
(1) Motion to set aside or vary A party or other person who,
(a) is affected by an order obtained on motion without
(b) fails to appear on a motion through accident, mistake or
insufficient notice; or
(c) is affected by an order of a registrar.
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
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
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;
(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.
 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:
 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.
 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.
 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.
 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.
 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.
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
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.
return to Star Index
Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at firstname.lastname@example.org, phone 416-364-9366 or fax 416-364-3818.