Tymkin v. Ewatski et al., (2009) 240 Man.R.(2d) 164 (CA)

• Judge: Scott, C.J.M., Monnin, Hamilton, Freedman and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: July 15, 2009
• Jurisdiction: Manitoba
• Citations: (2009), 240 Man.R.(2d) 164 (CA);2009 MBCA 77

Tymkin v. Ewatski (2009), 240 Man.R.(2d) 164 (CA);

      456 W.A.C. 164

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JL.024

Randy Tymkin (plaintiff/appellant) v. Chief Jack Ewatski, Cst. F. McIntosh and Cst. M. Carvalho (defendants/respondents) and The Government of Manitoba (third party)

(AI 08-30-06894; 2009 MBCA 77)

Indexed As: Tymkin v. Ewatski et al.

Manitoba Court of Appeal

Scott, C.J.M., Monnin, Hamilton, Freedman and MacInnes, JJ.A.

July 15, 2009.

Summary:

The plaintiff was arrested at 1:51 a.m. at his residence after police received a complaint from his former wife that he breached a non-molestation order and had assaulted her two months earlier. The plaintiff was held at the police station until 3:38 a.m., when he was released on a promise to appear. Charges against the plaintiff were later stayed by the Crown. The plaintiff sued the police for, inter alia, false imprisonment and malicious prosecution. The police applied under rule 20.03(1) for summary judgment dismissing the claims for want of a genuine issue to be tried.

The Manitoba Court of Queen's Bench, in a judgment reported at (2003), 179 Man.R.(2d) 263, granted summary judgment dismissing the malicious prosecution claim, but ordered that the false imprisonment claim proceed to trial on the ground that there was a genuine issue for trial. The plaintiff appealed.

The Manitoba Court of Appeal, in a judgment reported at (2004), 190 Man.R.(2d) 307; 335 W.A.C. 307, dismissed the appeal. The plaintiff subsequently brought a motion for an order permitting him to have the jury hear both his damages claim for false imprisonment and his damages claim for battery. The police moved to strike out, stay or amend portions of the plaintiff's amended statement of claim.

The Manitoba Court of Queen's Bench, in a judgment reported at (2007), 215 Man.R.(2d) 251, allowed the plaintiff's motion and allowed the police motion in part, striking portions of the statement of claim. The punitive damages claim was struck on the ground that malice was a prerequisite to the claim. The claim for a declaration that the domestic violence policy of the Winnipeg Police Service was unlawful was also struck. The plaintiff appealed.

The Manitoba Court of Appeal allowed the appeal in part. The trial judge was correct to strike the unlawful domestic violence policy claim, but erred in striking the claim for punitive damages, as malice was not a prerequisite to a punitive damages claim.

Damages - Topic 1297

Exemplary or punitive damages - Conditions precedent (or when awarded) - A trial judge struck a punitive damages claim on the ground that the statement of claim did not plead malice nor pleaded facts to support that allegation - The Manitoba Court of Appeal reinstated the punitive damages claim - The court held that malice was not a prerequisite to a punitive damages claim - See paragraph 31.

Police - Topic 6626

Police commission and R.C.M.P. Commissioner - Duties and powers - Directives and standing orders - Domestic abuse policy - A 2007 Court of Appeal decision (Jensen v. Stemmer et al.) determined that the zero tolerance domestic violence policy (DVP) of the Winnipeg Police Service was simply a policy directive that did not have the force of law and, accordingly, could not support a claim for damages or other relief - A plaintiff claimed that Jensen was wrongly decided, because the court was not aware that certain bylaws and regulations were in force which prescribed obedience to directives, policies or orders of the Chief of Police, giving the DVP "the force of law" - The Manitoba Court of Appeal held that the existence of the bylaws and regulations did not change the court's finding that the DVP was simply a policy document which did not have the force of law - The bylaws and regulations were restricted to internal matters pertaining to the governance of the police force - They did not alter external substantive law - See paragraphs 33 to 48.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Following a domestic dispute in which the plaintiff husband was arrested, but charges were dropped, the plaintiff sued the police for, inter alia, false imprisonment and malicious prosecution - The malicious prosecution claim was summarily dismissed - Claims for false imprisonment and battery remained - The police applied to strike portions of the statement of claim - The trial judge held that since the allegation of malicious prosecution was summarily dismissed, not striking that claim would unduly complicate and prejudice the case - Those portions of the statement of claim alleging an improper motive for police conduct, which were blended together with the permitted false imprisonment claim, had to be struck also - The judge struck the claim for a declaration that the zero tolerance domestic violence policy (DVP) of the Winnipeg Police Service was unlawful - Internal policy of the Police Service, which did not have the force of law, could not support a claim for damages or other relief - The judge also struck the claim for punitive damages - Malice was a prerequisite - The punitive damages claim was based on the unlawful DVP claim - Once the DVP claim was struck, there remained no factual foundation to support a claim for punitive damages (i.e., no allegation of malice or facts pleaded to support that allegation) - The Manitoba Court of Appeal reinstated the punitive damages claim - Malice was not a prerequisite - The statement of claim alleged police conduct that was high-handed and callously disregarded his rights - Whether such conduct merited punitive damages was a matter for trial - See paragraphs 16 to 32.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Following a domestic dispute in which the plaintiff husband was arrested, but charges were dropped, the plaintiff sued the police for, inter alia, false imprisonment and malicious prosecution - The malicious prosecution claim was summarily dismissed - Claims for false imprisonment and battery remained - The police applied to strike portions of the statement of claim - The trial judge held that since the allegation of malicious prosecution was summarily dismissed, not striking that claim would unduly complicate and prejudice the case - Those portions of the statement of claim alleging an improper motive for police conduct, which were blended together with the permitted false imprisonment claim, had to be struck also - The judge struck the claim for a declaration that the zero tolerance domestic violence policy (DVP) of the Winnipeg Police Service was unlawful - Internal policy of the Police Service, which did not have the force of law, could not support a claim for damages or other relief - The Manitoba Court of Appeal affirmed the striking of the unlawful DVP claim - See paragraphs 33 to 48.

Cases Noticed:

Jensen v. Stemmer et al. (2007), 214 Man.R.(2d) 64; 395 W.A.C. 64; 2007 MBCA 42, folld. [para. 11].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 18].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 18].

McIntyre v. Grigg et al. (2006), 217 O.A.C. 217; 274 D.L.R.(4th) 28 (C.A.), refd to. [para. 23].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 1; 374 W.A.C. 1; 2006 SCC 30, refd to. [para. 25].

Uni-Jet Industrial Pipe Ltd. et al. v. Canada (Attorney General) et al. (2001), 156 Man.R.(2d) 14; 246 W.A.C. 14; 2001 MBCA 40, refd to. [para. 26].

LeBar v. Canada (1989), 90 N.R. 5; 33 Admin. L.R. 107 (F.C.A.), refd to. [para. 27].

Health Care Developers Inc. v. Newfoundland (1996), 141 Nfld. & P.E.I.R. 34; 443 A.P.R. 34 (Nfld. C.A.), refd to. [para. 28].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 29].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 36].

Stoffman et al. v. Vancouver General Hospital et al., [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 46].

Counsel:

R.I. Histed, for the appellant;

M.T. O'Neill, for the respondents.

This appeal was heard on November 28, 2008, before Scott, C.J.M., Monnin, Hamilton, Freedman and MacInnes, JJ.A., of the Manitoba Court of Appeal.

On July 15, 2009, MacInnes, J.A., delivered the following judgment for the Court of Appeal.