CourtAdmmistrat' 2016 'THE SUPREME COURT OF NOVA SCOTIA Halifax. NS. ANGELA ACORN and GRAHAM LABONTE PLAINTIFFS -and- HALIFAX REGIONAL POLICE, HALIFAX REGIONAL SERGEANT MCGILLIVRAY. DEFENDANTS NOTICE OF ACTION TO: Halifax Regional Municipality, Halifax Regional Police, Sergeant Mcgillivray Action has been started against you The plaintiff takes action against you. The plaintiffs started the action by ?ling this notice with the court on the date certi?ed by the Prothonotary. The plaintiffs claim the relief described in the attached statement of claim. The claim is based on the grounds stated in the statement of claim. Deadline for defending the action To defend the action, you or your counsel must ?le a notice of defence with the court no more than the following number of days after the day this notice of action is delivered to you: 0 15 days if delivery is made in Nova Scotia 0 30 days if delivery is made elsewhere in Canada 0 45 days if delivery is made anywhere else. Judgment against you if you do not defend The court may grant an order for the relief claimed without further notice, unless you ?le the notice of defence before the deadline. You may demand notice of steps in the action If you do not have a defence to the claim or you do not choose to defend it you may, if you wish to have further notice, ?le a demand for notice. If you ?le a demand for notice, the plaintiffs must notify you before obtaining an order for the relief claimed and, unless the court orders otherwise, you will be entitled to notice of each other step in the action. Rule 57 - Action for Damages Under $100,000 Civil Procedure Rule 57 limits pre-trial and trial procedures in a defended action so it will be more economical. The Rule applies if the plaintiffs state the action is within the Rule. Otherwise, the Rule does not apply. except as a possible basis for costs against the plaintiff. This action is not within Rule 57. Filing and delivering documents Any documents you ?le with the court must be ?led at the of?ce of the Prothonotary 1815 Upper Water Street, Halifax, Nova Scotia (telephone 424-4900). When you ?le a document you must immediately deliver a copy of it to each other party entitled to notice, unless the document is part of an ex parte motion, the parties agree delivery is not required, or a judge orders it is not required. Contact information The plaintiffs designate the following address: Bacchus Associates Law Firm 6189 Lady Hammond Road, Halifax, Nova Scotia, B3K 2R9 Telephone: (902) 405-3537 Facsimile: (902) 446-8191 Solicitor for the Plaintiff Documents delivered to this address are considered received by the plaintiffs on delivery. Further contact information is available from the Prothonotary. Proposed place of trial The plaintiffs propose that, if you defend this action, the trial will be held in Halifax, Nova Scotia. Signature Signed September 8, 2016 'ster Solicitor 6189 Lady Hammond Road, Halifax, Nova Scotia, B3K 2R9 Telephone: (902) 405-3537 Facsimile: (902) 446-8191 Solicitor for the Plaintiffs Prothonotary?s certi?cate I certify that this notice of action, including the attached statement of claim, was ?led with the court on September '2 2016. D%uty Prothonotary Promonota?l 10. 11. 12. 13. 14. STATEMENT OF CLAIM The Plaintiff, Angela Acorn. hereina?er called ?Ms. Acorn?. 0f 36113 River, PrOVince 0f Prince Edward Island. The Plaintiff, Graham LaBonte, hereinafter called ?Mr. LaBonte?, of Belle River, Province of Prince Edward Island. The Defendant, Sergeant McGillivray, hereina?er called ?Sgt. McGillivraY?a was at a? material times an on duty Police Officer working for the Halifax Regional Police Service, hereinafter in Halifax, Halifax Regional Municipality, Province of Nova Scotia, residence unknown. The Defendant, the Halifax Regional Police Service (hereinafter was at all material times hereto the employer or defacto employer of Sgt. McGillivray. The Plaintiffs state that on or about September 9, 2015, in a morning, Mr. Labonte was driving a Volkswagen vehicle, hereinafter the ?Plaintiff's vehicle? with his wife, Ms. Acorn for a medical appointment in Halifax. The Plaintiffs state that at approximately 8:30 am. they saw a police vehicle driven by Sgt. McGillivray in front of the Plaintiffs vehicle driving in an erradic manner, to wit swerving between lanes without using the vehicle?s indicators. The Plaintiffs state that at one point in time Sgt. McGillivray almost hit the centre median. Mr. Labonte passed the police vehicle. While the Plaintiffs vehicle was passing the police vehicle, Ms. Acorn gestured to Sgt. McGillivray if he was ok. Sgt. McGillivray did not respond and continued driving. After a short period of time the Plaintiffs state that they observed through the rear view mirror that Sgt. McGillivray turned on police lights and was driving in their direction. Mr. Labonte pulled over the Plaintiff's vehicle on the shoulder of the road to avoid being in the lane of traf?c; the police vehicle pulled behind the Plaintiffs vehicle. The Plaintiffs state that after a short break Sgt. McGillivray left the police vehicle and approached the Plaintiff?s vehicle. Sgt. McGillivray however did not approach the driver?s window; he remained back closer to the rear of the vehicle. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. Mr. Labonte asked Sgt. McGillivray if he would mind to step forward as Mr. Labonte could not clearly hear Sgt. McGillivray and did not see the of?cer; Sgt. McGillivray refused to do so. Then Mr. Labonte asked the of?cer to introduce himself; Sgt. McGillivray refused to do so and became loud, aggressive and started yelling at him. Ms. Acorn, then exited the vehicle to ascertain if the police of?cer was in distress. Ms. Acorn made it as far as the rear license plate of the Plaintiff?s vehicle and was directed to get back in the car or she would be arrested. Ms. Acorn turned to the front passenger side door and started walking back to the Plaintiffs vehicle when suddenly and without warning Sgt. McGillivray grabbed Ms. Acorn, from behind pushed her over the trunk, handcuffed her and advised that she was under arrest. After Ms. Acorn was pushed by Sgt. McGillivray she asked why he was doing this to her. Sgt. McGillivray stated she was resisting arrest. Sgt. McGillivray then put his tight in between her legs and took the Plaintiff?s arm and wretched it backward. After Sgt. McGillivray pushed Ms. Acorn, she was screaming ?will you please stop?. Mr. Labonte then exited the Plaintiff?s vehicle to check on his wife. Mr. Labonte had his phone in one hand and his driver?s license in the another. Sgt. McGillivray then placed the Plaintiff, Ms. Acorn. between him and Mr. Labonte as an obstacle. Mr. Labonte started video recording the incident and asked Sgt. McGillivray to produce his nametag. Sgt. McGillivray then removed his nametag from his uniform and threw it to the ground. Sgt. McGillivray then directed that Mr. Labonte go to the Plaintiff?s vehicle and unhooded his ?rearm. Mr. Labonte stopped recording the incident and was then arrested. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. The Plaintiffs state that within a short period of time approximately seven police officers arrived on scene. Mr. Labonte was handcuffed and put in the back of the police vehicle. At all material times the Plaintiffs state that they were neither aggressive nor to comply With Sgt. McGillivray?s demands. At all material times the Plaintiffs did not resist arrest. The Plaintiffs ?led a police complaint and on January 2016, the decision came against Sgt. McGillivray. Due to the force that was used by Sgt. McGillivray. The Plaintiffs sustained various injuries. As the result of the aforementioned physical force to her body Ms. Acorn states that she has suffered injuries (the full extent will be detailed prior to trial), damages, and losses. Ms. Acorn repeats the proceeding and states that Sgt. McGillivray upon making harmful and offensive contact with her without her consent or legal authority committed tort of battery. Mr. Labonte repeats the preceding and states that Sgt. McGillivray upon making harmful and offensive contact with him without his consent or legal authority committed tort of battery. Mr. Labonte repeats the preceding and states that Sgt. McGillivray upon making harm?il and offensive contact with him without his consent or legal authority committed tort of battery. Mr. Labonte repeats the preceding and states Sgt. McGillivray committed tort of assault when he intentionally attempted and/or threat to in?ict injury to Mr. Labonte by unhooding his ?rearm. The Plaintiffs repeats the proceeding and states that his injuries, damages, and losses are due to the careless and negligence actions of Sgt. McGillivray, the particulars of which are as follows, either jointly or severely: a. Failed to use reasonable force or the force used was not warranted or necessary under the circumstances; b. failed to act in accordance with operational policy and procedure manual; t?s- failed to act in accordance with the principles of the National Use of Force Model: failed to undertake reasonable actions not to endanger the safety of a person being arrested; failed to exercise reasonable duty of care for a person being arrested; failed to operated within the scope of his authority; failed to use the verbal commands prior to the use of physical force; failed to ensure or protect the Plaintiff?s safety; failed to act reasonably; and failed to law?illy arrest the Plaintiff; failed to have reasonable and probable grounds to arrest the Plaintiff; unlawfully violate the Plaintiff?s security of person; . failed to properly apply the hand cuffs on to the Plaintiff including locking the cuffs in place; failed to act on the information she had from the Plaintiff?s family members; failed to give adequate time to allow the Plaintiff to comply with verbal commands before they used physical force; failed to use all other means of controlling the Plaintiff that did not involve physical force; failed to properly escalate the use of force on the Plaintiff; used excessive force in arresting and detaining the Plaintiff under the circumstances; used unlawful force on the Plaintiff; failed to act in an orderly manner, but acted in a manner that is reasonably likely to bring discredit to the reputation of the police department; Failed to be courteous or civil to a member of the public, having regard to all the circumstances: and Such other negligence as may appear. The Plaintiffs state that the actions of Sgt. McGillivray are not protected by 3.25 of the Criminal Code, R.S., c. C-34, s. l. 7' 44. 45. 46. 47. Tpehplaimiffs State that Sgt. McGillivray breached their right to life, liberty and security 0 _t {3 Person and the right not to be deprived thereof except in accordance with the pnnc1ples of fundamental Justice as guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms. ched their right not to be arbitrarily The Plaintiffs state that Sgt. McGillivray brea er qf Rights and detained or imprisoned as guaranteed by Section 9 of the Canadian Chart reedoms. The Plaintiffs further state that HRM is vicariously liable for the actions of Sgt. McGillivray. The Plaintiffs repeat the proceeding and state that their injuries, damages, and losses are due to the careless and negligent actions of HRM as follows either jomtly or severely: was properly trained and familiar with the 3. Failed to ensure that Sgt. McGillivra horize to exercise those powers by statutes or powers of arrest when either was aut common law; b. Failed to ensure that Sgt. McGillivray was properly trained and familiar with the proper use of force; c. Failed to test Sgt. McGillivray in relation to his knowledge of what constitutes proper use of force his d. Failed to test Sgt. McGillivray in relation to his knowledge of the scope of authority under the appropriate statutes on a timely basis; Failed to establish any policy or an adequate policy to check the current quali?cation of its employees. f. Failed to properly supervise Sgt. McGillivray; Failed to continue to educate Sgt. McGillivray regarding his powers of arrest within the scope of their authority and in light of changing common law; Failed to properly train Sgt. McGillivray in the proper use of his powers of arrest; Failed to properly train or test Sgt. McGillivray in relation to the use of force; Failed to establish police policies and/or properly train Sgt. McGillivray regarding when it is appropriate to unhood a ?rearm; and k. Such other negligence as may appear. 48. The Plaintiff therefore claims both jointly and severely against the Defendants: a. Special damages, particulars of which will be provided prior to trial; b. General damages; c. Pre-judgment interest; d. Punitive Damages; e. Costs; and f. Such other relief as this Honourable Court deems just. . 471; the Criminal 49. The Plaintiff pleads and relies upon the Tort?easors Act, R.S.N.S. 1989, 0 Police Regulations Code, R.S., c. 034, s. 1; the Canadian Charter of Rights and reedoms; made under subsection 97(1) of the Police Act S.N.S. 2004, c. 31 50. In the event the Plaintiffs do not succeed against all of the Defendants, any costs awarded to any such successful Defendant(s) are hereby claimed against the unsuccessful Defendant(s). Signature Signed September 8, 2016 Counsel for Angela Acorn and Graham Labonte