Hamilton

City loses right to defend itself in lawsuit brought by former undercover cop

An Ontario court ruling says the police board failed to respect the legal process, causing unacceptable delays that bring the 'administration of justice into disrepute.'

Court says delays are unacceptable and bring 'administration of justice into disrepute'

An Ontario court has determined the City of Hamilton has lost its right to defend itself in a lawsuit brought by former police officer Paul Manning, shown here in a photo from his days working as an undercover cop. (Paul Manning)

An Ontario court has stripped the Hamilton Police Services Board and former chief Glenn DeCaire of the right to defend themselves in a lawsuit brought by a former undercover police officer.

Ontario Superior Court Master P. Tamara Sugunasiri said her ruling to strike the defence was a "remedy of last resort," in the case brought by Paul Manning that alleges he was sold out by officers from his own service and left unprotected while working undercover.

Sugunasiri's ruling states the city's failure to comply with the rules of civil legal procedures in the lawsuit involving Manning and his wife, Sabian, pushed her to take the "otherwise draconian" step.

"The Hamilton Police Services Board and chief Glenn DeCaire have lost their right to continue defending this action," Sugunasiri wrote.

"The continued failure to respect the process, the rules and opposing counsel's time and efforts is unacceptable and rises to the level of bringing the administration of justice into disrepute," the ruling later adds.

The defendants now have 30 days to bring a motion to reinstate their defence, but the ruling says "at the very least" they'll have to explain the delays that have plagued the suit for years, supply a timetable to respond and an explanation as to why there will be "no prejudice to the parties or to trial fairness since they have now purged some relevant documents."

The City of Hamilton has also been ordered to pay nearly $40,000 in costs, on top of the $20,000 it previously paid out to Manning because of delays and to deter further stalling from happening.

Manning filed a lawsuit in 2016 seeking $6.75 million in damages for what he describes as irreversible damage to his mental health in how he was treated by the service while he worked undercover and afterward.

He alleges that other officers blew his cover, failed to protect him during an attack in 2006 and that he was falsely arrested and his wife detained when DeCaire found out he was planning to sue, according to court documents. The suit also alleges corruption and shady connections within the force.

The allegations in Manning's lawsuit have not been proven in court and the city has previously denied liability.

A city spokesperson Thursday reaffirmed to CBC News the city's intention to defend the lawsuit, and said it would ask the court to reinstate the ability to defend the action.

In earlier filings on the lawsuit the city made, it argued the suit is an "attempt to dress up a defamation claim" and that the details Manning included in his original filing are "scandalous, frivolous or vexatious or are otherwise an abuse of the process of the court."

Its statement of defence argues Manning goes beyond what is appropriate for such a case and much of what is included is irrelevant to the case.

Sugunasiri's order that the defence be struck is dated September 17.

"When a defence is struck it means the plaintiff's claim is presumed to be true by the court … at least in respect to issues of liability," explained Otto Phillips, Manning's lawyer, adding striking a defence is "extremely, extremely, extremely rare."

The defendants have also been ordered to provide answers to all the questions, searches and documents Manning and his lawyers have requested by September 24.

If the defendants don't apply to have their defence reinstated, the order says the plaintiffs can proceed with a default judgment against them.

City has failed to follow 'basic rules,' says lawyer

The order follows roughly four years where Manning's lawsuit has been bogged down by delays ranging from a near year-long wait to get a defence filed and repeated requests for a sworn affidavit of documents from police, according to Phillips.

Those documents were finally handed over back in February, after Manning and his lawyer filed a contempt motion, but the lawyer said during cross examination it became clear there were more documents that needed to be disclosed.

"The City of Hamilton Police Department has simply not complied with the basic rules of civil procedure," said Phillips.

In her ruling Sugunasiri determined the defendant's conduct was "sufficiently egregious" to strike their defence.

A photograph of Paul Manning from his undercover days with Hamilton Police Service. (Paul Manning)

The court also determined that police board and DeCaire pay Manning $13,600 to cover the cost of the cross examination and another $25,862.16 for the costs of the motion, both within 30 days.

It's not the first time the city has been forced to pay Manning because of delays in the case.

Court documents show the city was ordered to pay him $20,000 back in February to cover court costs and deter any further delays.

"The respondents/defendants are cautioned that further delays, without good reason, will not be tolerated," read a hand-written note from Ontario Superior Court Justice Antonio Skarica.

That means the total paid out to Manning so far is nearly $60,000.

"It's $60,000 in costs that are being given to the plaintiffs to do these unnecessary motions because the Hamilton Police, a government agency, are just not complying with the rule of law," said Phillips.