BURROWS v WYNNYK

This decision addressed two procedural Applications in a civil Action arising from assault by a police officer during an arrest. Liability for the assault and vicarious liability of the Police Chief had already been resolved by consent, leaving issues such as punitive damages and whether Charter damages were available on the pleadings. The Plaintiff applied to compel production and use of the officer’s Gladue report in civil discovery, and the defendants applied to strike the Claim for Charter damages.

On the Gladue report issue, the Court held the Plaintiff was effectively trying to revisit an earlier interlocutory ruling that found the report was not producible. The Application therefore had to meet Rule 9.15, which includes a 20-day deadline in Rule 9.15(2). Because it was filed late, with no extension request and no basis to waive the timeline, it failed procedurally. Justice Smart also found Rule 9.15(4) was not satisfied because the report was not shown to be newly discovered information on a proper evidentiary record and, in any event, it was available at the earlier hearing, making an appeal the appropriate remedy.

Justice Smart went on to address the substance of the report. Even though a Gladue report used at sentencing was not privileged under the Wigmore criteria once put before the Court, Smart J. concluded it should not be used in this civil proceeding for the purpose proposed. The Court held that allowing collateral use to increase civil exposure would undermine the Gladue regime and risk discouraging Indigenous participation. In any event, the report did not meet the “relevant and material” threshold in Rule 5.2. The report could not reasonably have been expected to significantly determine the outstanding issues.

On the Application to Strike, Smart J. applied Rule 3.68 to the pleadings, using the “plain and obvious” test from R v Imperial Tobacco Canada Ltd., 2011 SCC 42. The Court held that Charter damages are a public law remedy against the state, not individual actors. Justice Smart rejected the argument that Police Act vicarious liability for torts could be used to route Charter damages through the Police Chief, emphasizing the distinction between tort law and Charter remedies. Because the Plaintiff did not use the proper state entity, the Charter damages claim disclosed no reasonable prospect of success and was struck under Rule 3.68.