Court File No.

/N° du dossier du greffe: CV-19-00058745-0000

Electronically issued
: 22-Feb-2019
Court File No.
Délivré par voie électronique
St. Catharines

ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:

(Court Seal)
MARVIN MITCHELL

Plaintiff

and

REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD

Defendant

STATEMENT OF CLAIM
TO THE DEFENDANT:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff.

The claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for
you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure,
serve it on the plaintiff's lawyer or, where the plaintiff does not have a lawyer, serve it on the
plaintiff, and file it, with proof of service, in this court office, WITHIN TWENTY DAYS after
this statement of claim is served on you, if you are served in Ontario.

If you are served in another province or territory of Canada or in the United States of
America, the period for serving and filing your statement of defence is forty days. If you are served
outside Canada and the United States of America, the period is sixty days.

Instead of serving and filing a statement of defence, you may serve and file a notice of
intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to
ten more days within which to serve and file your statement of defence.
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IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN

AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF
YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES,
LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID
OFFICE.

Date Issued by
Local Registrar
Address of
court office: 59 Church Street
St. Catharines, Ontario
L2R 7N8

TO: Regional Municipality of Niagara

Police Services Board
5700 Valley Way
Niagara Falls, ON L2E 1X8
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CLAIM

1. The Plaintiff claims as against the Defendant:

(a) General damages for negligence and/or negligent investigation in the amount of

$1,000,000.00;

(b) Special damages for negligence and/or negligent investigation in the amount of

$1,000,000.00;

(c) Damages in the amount of $250,000.00 for constitutional damages under section

24(1) of the Charter on the basis of violation of section 7 of the Canadian Charter

of Rights and Freedoms,

(d) Damages in the amount of $250,000.00 for constitutional damages under section

24(1) of the Charter on the basis of violation of section 8 of the Canadian Charter

of Rights and Freedoms,

(e) Damages in the amount of $250,000.00 for constitutional damages under section

24(1) of the Charter on the basis of violation of section 9 of the Canadian Charter

of Rights and Freedoms,

(f) Damages in the amount of $250,000.00 for constitutional damages under section

24(1) of the Charter on the basis of violation of section 10 (a) and (b) of the

Canadian Charter of Rights and Freedoms,

(g) Damages in the amount of $250,000.00 for constitutional damages under 24(1) of

the Charter on the basis of violation of section 12 of the Canadian Charter of Rights

and Freedoms;
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(h) Damages in the amount of $250,000.00 for constitutional damages under section

24(1) of the Charter on the basis of violation of section 15 of the Canadian Charter

of Rights and Freedoms,

(i) Aggravated damages in the amount of $500,000.00;

(j) Punitive damages in the amount of $1,000,000.00;

(k) Pre-Judgment and Post-judgment interest on these amounts pursuant to the Courts

of Justice Act, R.S.O., c. C43, and

(l) Costs of this action, together with applicable Goods and Services Tax thereon in

accordance with the Excise Tax Act, R.S.C. 1985, c.E.-15, as amended on a

substantial indemnity basis.

(m) Such further and other relief at this Honourable Court may deem just.

PARTIES

2. The Plaintiff, Marvin Mitchell (hereinafter referred to as “Plaintiff”) is an individual

residing in the Town of Beamsville, in the Province of Ontario.

3. The Defendant, the Regional Municipality of Niagara Police Services Board is a Municipal

Police Services Board incorporated pursuant to the provisions of the Police Services Act,

R.S.0 1990, chapter P 15 and was at all material times responsible for the provision of

police services, law-enforcement and crime prevention in the regional municipality of

Niagara, in the Province of Ontario.

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HISTORY

4. On or about the 27th day of November, 2018, during the evening, the Plaintiff had an

argument with his fiancé which resulted in his calling of 911 dispatch for police assistance

to have his fiancé removed from the home.

5. The Plaintiff states that he was not able to speak with a 911 dispatch representative and he

subsequently terminated the call.

6. The Plaintiff states that an operator from 911 dispatch contacted his phone at approximately

7:00 p.m. and requested information including but not limited to his date of birth, phone

number and residential address.

7. The Plaintiff states that the operator from 911 dispatched asked, if anyone in the residential

property was in danger? the Plaintiff responded “no”.

8. The Plaintiff states that the dispatch officer also queried, “ whether there were any weapons

in the home?” The plaintiff informed the operator that he was a licensed registered firearms

holder.

9. The dispatch officer also requested that the Plaintiff move to a private area in the home as

the fiancé had been protesting the call. The Plaintiff’s phone subsequently died.

10. The Plaintiff states that at approximately 8:44 p.m. he received a telephone call from a

number showing a private number on the caller ID.

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11. The Plaintiff states that he answered the telephone and spoke with an officer who identified

himself as Staff Sergeant Dave Sarif.

12. The Staff Sergeant indicated that he was doing a follow up with respect to the phone call

that was placed earlier and wanted to ensure that everyone in the home was safe.

13. The Plaintiff states that he informed the Staff Sergeant everyone was fine and that they no

longer needed police assistance in relation to the matter.

14. The Plaintiff states that the Staff Sergeant informed him that an officer was outside his

home and upon receiving that information, the Plaintiff proceeded to walk out the front

door of his residential address to greet the police officer.

15. The Plaintiff states that as he proceeded to walk outside of his residential address he heard

a command saying, “do not move, put your hands in the air and look up into the sky..!”

16. The Plaintiff states that when he looked to his right he noticed three (3) uniformed officers

in swat gear pointing three (3) high-powered rifles directly towards him.

17. The Plaintiff states that as he proceeded to lower his body position in accordance with the

officers command he noticed many more officers pointing high-powered weapons towards

him from all directions.

18. The Plaintiff states that he was wearing a thin shirt, socks and sweatpants outside in the

cold.
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19. The Plaintiff states that he placed his cell phone on the ground and was immediately placed

in handcuffs.

20. The Plaintiff states that an officer informed him, while in handcuffs, that an officer had

heard 3 to 5 gunshots coming from his residential address earlier in the evening. The

Plaintiff responded that no such thing occurred.

21. The Plaintiff states that while in handcuffs the officer searched his person and that such

search was illegal and without lawful authorization.

22. The Plaintiff states that at no time, while handcuffed, was he cautioned nor read his rights

to counsel, nor was he afforded an opportunity to speak with counsel.

23. The Plaintiff states that the officers entered and searched his residential address without a

warrant and that such search was illegal and a breach of his privacy interests contrary to

the Charter.

Denial of Equality and Racial Profiling

24. The Plaintiff asserts that in the context of this litigation the terms "Denial of Equality/Racial

Profiling" refer to the practice whereby law enforcement personnel like the Defendant

either consciously or unconsciously deny certain segments of society, in this case, African-

Canadians the equal protection and benefit of the law as is guaranteed by Section 15 of the

Charter. In other words this practice is an unwritten and unsanctioned form of

discrimination.
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25. The Plaintiff asserts that the Defendant employs a pattern and practice of denial of equality

and/ or racial profiling in dealing with the African-Canadian segment of the community

which it polices and/or has failed to prevent, address or end the notorious issue of denial of

equality/racial profiling of African-Canadians among its officers.

26. The Plaintiff states that the officers made a number of comments while detained which is

sufficient to raise the inference that racial profiling occurred in the circumstances. The

comments that were made include but are not limited to the following:

• “It is probably a black guy living in that house”;

• “This is a nice neighbourhood, how could you afford to pay for this home.”

27. The Plaintiff states that after searching the residential property for about an hour they

released his handcuffs and advised him that they had made a “mistake in judgment”.

28. The Plaintiff states and the fact is that the Defendant had no reasonable or probable grounds

to detain him.

Denial of Right to Personal Security

29. The Plaintiff asserts that the acts and omissions of the Defendant violated his rights to

security of the person and the right not to be deprived thereof except in accordance with

the principles of fundamental justice as guaranteed by Section 7 of Canadian Charter of

Rights and Freedoms.

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Duty of Care

30. The Plaintiff asserts that the Defendant owed him a duty of care to carry out a fair, thorough

and impartial investigation upon establishing reasonable and probable grounds to carry out

the investigation.

31. The Plaintiff states that at no time did the Defendant have reasonable and probable grounds

to carry out the investigation.

32. The Plaintiff states that based on the facts pleaded above the Defendant breached its duty

of care owed to him and failed to follow their own policies and procedures.

33. The Plaintiff states that the Defendant is liable for the breach of duties owed to the Plaintiff.

34. The Plaintiff pleads and the fact is that he has suffered harm as a direct result of the acts

and omissions of the Defendant set out herein. This harm includes but is not limited to the

following:

(a) Present and future loss of income;

(b) Loss of % of annual salary towards RRSP contribution;

(c) Loss of employment benefits including health and group benefits;

(d) Loss of vacation pay;

(e) Costs of seeking new employment;

(f) Pain and suffering;

(g) Mental distress, psychological trauma and humiliation;

(h) Anxiety and depression;

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(i) Sleep deprivation;

(j) Stress;

(k) Past and future medical and out of pocket expenses;

(l) Such other costs, expenses and losses as counsel for the Plaintiff may advise.

35. The Plaintiff pleads by reason of the facts pleaded above he has suffered general, special

and aggravated damages and that the Defendant is liable for same.

36. The Plaintiff pleads and relies on the Police Services Act, R.S.O 1990 c. P.15.

Breach of Charter Rights

37. The Plaintiff repeats, relies and adopts the facts noted above in support of his claim that

his rights under sections 7, 8, 9, 10, 12 and 15 of the Canadian Charter of Rights and Freedoms

were violated by the Defendant.

38. Further, the Plaintiff asserts that the Defendant’s failure to address the notorious issue of

denial of equality/racial profiling of African-Canadians among its officers has made him and other

African-Canadians second class citizens subject to illegal detention at the hands of officers like

the Defendant contrary to their Charter rights.

Punitive, Aggravated and Exemplary Damages

39. The Plaintiff pleads that the actions occasioned by the Defendant were done in a callous,

abusive and highhanded manner with flagrant and complete disregard for the Plaintiff’s rights as

well as the consequences thereof to the Plaintiff.

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40. The Plaintiff states that such reprehensible and non-professional conduct on the part of the

Defendant should not be permitted without sanction. Accordingly, the Court should direct the

Defendant to pay such amount in punitive, aggravated or exemplary damages in the amount as

claimed above.

41. The Plaintiff proposes that this action be tried in the City of St. Catharines, Province of

Ontario.

JAMES A. BROWN
PROFESSIONAL CORPORATION
Barrister & Solicitor
8 Main Street East, Suite 208
Hamilton, Ontario
L8N 1E8

JAMES A. BROWN (LSUC# 60941Q)

Tel: 905-577-9099
Fax:1-866-281-3274

Lawyer for the Plaintiff,

Marvin Mitchell
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MARVIN MITCHELL -and- REGIONAL MUNICIPALITY OF NIAGARA

POLICE SERVICES BOARD
Plaintiff Defendant
Court File No.

ONTARIO
SUPERIOR COURT OF JUSTICE
PROCEEDING COMMENCED AT
ST. CATHARINES

STATEMENT OF CLAIM

JAMES A. BROWN
PROFESSIONAL CORPORATION
Barrister & Solicitor
8 Main Street East, Suite 208
Hamilton, Ontario
L8N 1E8

James A. Brown (LSUC#60941Q)

Tel : (905) 577-9099

Fax: (866) 281-3274

Lawyer for the Plaintiff,

Marvin Mitchell