Lawsuit against former Sudbury cop, police board can continue, judge rules
After a court registrar dismissed it, an appeals judge has ruled a lawsuit brought by the victim of a former Sudbury cop can continue.
The former cop, a sergeant, was charged with assault and other offences in 2007. He pled guilty in 2011 to assault and obstruction of justice and resigned from policing.
The lawsuit against the former officer and Sudbury's police services board began in 2012. The plaintiff in the case said she was sexually assaulted and harassed by the former cop.
None of the allegations have been proved in court.
The suit was dismissed in 2018 under rules of civil procedure that allow cases to be dismissed if no trial date has been set after five years.
Part of the reason for the delays was a freedom of information (FOI) request the plaintiff filed to the police board "seeking copies of reports, officers’ notes and statements involving (the former officer) and other Sudbury police officers," said a court transcript of the appeal.
In December 2014, the board denied access to the documents. The plaintiff appealed, and the board was ordered to hand over the documents by January 2017.
The parties began settlement negotiations in 2016, but no agreement was reached. The sides eventually agreed to court dates in May 2018, but in February of that year, settlement negotiations resumed. They again failed and court dates were set for July 2018.
However, the case was dismissed in March 2018 because no trial date had been set within the five-year time limit. The lawyer for the plaintiff asked the police board to agree to set aside the dismissal, and initially, it agreed. But a year later, before the hearing to reinstate the lawsuit was held, the board changed its mind and argued the case should be dismissed.
It turns out the plaintiff's lawyer failed to tell her the case had been dismissed, and she only found out when she went to the courthouse to obtain documents and court staff informed her what had happened.
She dropped her lawyer and in January 2020 brought a motion to have the case reinstated. Then the COVID-19 pandemic hit, causing two more years of delays.
The judge ruled that, while the plaintiff was responsible for some of the delays, the defendants were also to blame. They took more than a year to file statements of defence and fought the FOI request that took two years to resolve.
"The evidence clearly demonstrates that it was always the plaintiff’s intention to prosecute this action and that she was entitled to rely on her own lawyer to move the case forward, notwithstanding her lawyer failed to do so in many respects," the judge ruled.
In fact, the judge said the plaintiff had made her case on all four factors that would allow the case to resume under civil law.
"The plaintiff’s motion is therefore granted and the dismissal order is set aside," the judge ruled.
"The parties shall establish a litigation schedule and if they are unable to agree on that schedule they may return before me."
The plaintiff was also awarded legal costs of appealing the motion. Read the full transcript here.