Federal Court Decisions

Date: 20020313

Docket:T-1092-95

Neutral citation: 2002 FCT 277

BETWEEN:

                                                          KIRK MICHAEL MacNEIL

                                                                                                                                                          Plaintiff

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                        REASONS FOR JUDGMENT

SIMPSON J.

Introduction

[1]                 The plaintiff alleges that members of the Royal Canadian Mounted Police (the "RCMP") defamed him and breached his privacy when, following his resignation, they gave him a poor employment reference and placed documents in his personnel file that disclosed that he had been charged with assault.

[2]                 The amended Statement of Claim of May 26, 1999 (the "Claim"), which is the plaintiff's most recent pleading, names Blake Tidsbury, Martin Sarich and Phil Murray as defendants together with Her Majesty the Queen. However, plaintiff's counsel acknowledged at trial that the action had previously been dismissed against the individual defendants. Accordingly, I have amended the style of cause to show that the Crown is the only defendant. Since it is the RCMP that employed the plaintiff and since the plaintiff has sued the Crown because he takes issue with the conduct of members of the RCMP, the defendant will be described as the RCMP.

The Evidence

[3]                 In 1988, at age 23, Kirk Michael MacNeil (the "Plaintiff") applied to the Metropolitan Toronto Police ("Metro"), the Ontario Provincial Police (the "OPP") and the RCMP. In the spring of 1989, he was offered positions with all three forces and he chose to join the RCMP.

[4]                 The RCMP formally hired the Plaintiff on September 11, 1989. At that time, he signed an employment contract that included a separate signed undertaking. It read:

I Kirk Michael MacNeil do hereby understand and agree that anytime after engagement I may be required to serve anywhere in Canada.

[5]                 After completing the necessary paperwork, the Plaintiff attended nine months of French language training in Montréal. That assignment was followed by six months of basic training at the RCMP Academy in Regina. During that period, while he was home in Ontario on leave, the Plaintiff met a woman named Wendy and they began a relationship.

[6]                 While at the Academy, the Plaintiff met with Sergeant Dionne to discuss his progress and his first assignment. Despite the RCMP's policy that discouraged recruits from beginning their careers in their home provinces, the Plaintiff said that he wanted to serve in: O Division (Ontario), A Division (Ottawa) and K Division (Nova Scotia). In his Examination for Discovery, the Plaintiff stated that, at his meeting with Sergeant Dionne, he "was strongly persuaded to choose out west"and he therefore provided fourth and fifth choices. One was the Okanagan Valley in British Columbia. Shortly before he left the Academy, the Plaintiff was told that he was to be a general duty officer and that he had been assigned to the Sicamous Detachment (the "Detachment") in the Okanagan Valley. He began his recruit field training ("RFT") at the Detachment on February 13, 1991.

[7]                 Sicamous, B.C. is a small town near the Trans-Canada Highway in the Shuswap Lakes. Since it is a holiday community, it is very quiet outside the summer tourist season. The Detachment was housed in a converted home on Shuswap Avenue. It included a private office for the Commander, a common area with mail baskets for all of the members and some training and fitness facilities. Nine members worked at the Detachment. The Officer-in-Charge was Sergeant Blake Tidsbury ("Tidsbury"), and Corporal Robert Lechky ("Lechky") was the second-in-command. In addition to the Plaintiff, there were five other RCMP constables and one civilian member, who was the Detachment's secretary. The police members were divided into two groups: general duty officers and highway patrol officers.

[8]                 When the Plaintiff arrived in Sicamous, Constable Paul Driscoll ("Driscoll") was chosen to be his trainer. Unfortunately, Driscoll required foot surgery. The Plaintiff testified that, when it became clear that Driscoll would not be able to continue as his trainer, he had hoped to be placed with Constable Mike Cain ("Cain") because he had general duty experience. However, since Cain had just worked with two recruits in succession, Tidsbury chose Lechky to train the Plaintiff. The Plaintiff was disappointed with this choice because Lechky had spent most of his 23 years with the RCMP as a highway patrol officer rather than as a general duty officer.

[9]                 In the Plaintiff's first months at the Detachment, proper records were not kept of the progress of his training. For this reason, on March 24, 1991, Tidsbury sent a memorandum to all members of the Detachment, and Lechky in particular, urging that better records be kept. The Plaintiff testified that he complained to Tidsbury about Lechky on several occasions, to no avail. He also complained about the lack of training materials at the Detachment and about delays in scheduling his RFT examinations. Tidsbury testified that the Plaintiff was lonely because he was far away from home and from Wendy. He said that the Plaintiff was very unhappy when he was told that there was no realistic prospect of transferring back to Ontario in the near future. He also said that the Plaintiff often cried during their meetings.

[10]            At trial, Lechky acknowledged that his long-term memory had recently been adversely affected by chemotherapy. However, in 1992 he gave a statement about the Plaintiff's experience at the Detachment (the "Statement") to RCMP Staff Sergeant Martin Sarich ("Sarich"). The Statement was marked as an exhibit at trial and, because of Lechky's memory impairment, where his current evidence is inconsistent with that contained in his earlier Statement, I have preferred the earlier evidence.

[11]            Lechky testified that Sicamous was a very quiet detachment, especially in the winter months. Lechky recalled that he and the Plaintiff would spend entire shifts on highway patrol without seeing another car. Reports completed by Lechky between March and June of 1991 included numerous entries indicating that it was a "quiet shift" or a "very quiet shift". In addition to highway patrol work, the Plaintiff's experience was largely limited to liquor seizures and bar fights.

[12]            Tidsbury testified that it was his policy to have members sign out and leave a phone number where they could be reached when they were not at work. This information was recorded in an off-duty log book. Lechky testified that Tidsbury had criticized the Plaintiff for failing to complete the log and said that Tidsbury had told him that he was going to "trim Kirk's wings". When asked what his impression was of the meaning of that statement, Lechky replied that he thought that Tidsbury meant to ensure that the Plaintiff "would do what he was told or other actions would be taken". Tidsbury denied that this comment was ever made.

[13]            On March 19, 1991, the Plaintiff missed a radar training course. Two days later, Tidsbury called the Plaintiff into his office and asked him to explain his absence (the "Radar Course Incident"). The Plaintiff stated that he had not received a memorandum informing him of the date and time of the course. When Tidsbury replied that he had personally placed a copy of such a memorandum in the Plaintiff's mail basket, the Plaintiff again denied that he had received it and challenged Tidsbury to "prove it". At trial, Tidsbury and Lechky both testified that the Plaintiff did receive a copy of the memorandum and Lechky said that the Plaintiff had been "at fault". Tidsbury indicated that, in addition to sending him the memorandum, he had confirmed the course's date and time with the Plaintiff during an office conversation.

[14]            On March 26, 1991, five days after the Radar Course Incident, Tidsbury noticed that the Plaintiff was wearing heavy white socks, rather than the required navy blue socks (the "White Socks Incident"). When confronted, the Plaintiff said that Driscoll had given him permission to wear white socks. However, Driscoll subsequently told Tidsbury that he had not given any such permission. Rather, he had offered to lend the Plaintiff a pair of regulation socks. Although Lechky was not directly involved in the incident, he did comment on it at trial. He said that he was proud of the RCMP uniform and that a deviation from regulation dress was a serious matter.

[15]            At trial, Lechky said that Tidsbury had, in an arrogant and satisfied tone, indicated that "[h]e'd have Kirk out of the force by September". If made, this would have been a significant statement because it would have shown that Tidsbury was trying to force the Plaintiff out of the RCMP. The difficulty is that this evidence was not put into context and did not appear in Lechky's Statement. I am not persuaded that Lechky would have overlooked a nasty comment of this sort when he gave his Statement to Sarich. Accordingly, I am not persuaded that Tidsbury ever made such a comment. However, Lechky's Statement and his trial evidence made it clear that both he and Tidsbury believed that, because he was so unhappy, the Plaintiff would not complete his RFT and would decide to leave Sicamous by September of 1991.

[16]            On April 29, 1991, while still serving with the RCMP, the Plaintiff applied to the OPP. On the application form, he explained that he was leaving the RCMP because he wanted to live in Southern Ontario. In mid-May of 1991, the Plaintiff took a two-week leave from the Detachment and returned to Ontario to attempt to resolve some problems with his girlfriend, Wendy.

[17]            On May 27, 1991, Tidsbury sent Lechky a second memorandum about his inadequate record-keeping. In particular, Tidsbury focussed on the fact that the Plaintiff's two-month assessment was overdue. When Lechky eventually completed it on June 7, 1991, he was critical of the Plaintiff's work habits and indicated that he was not making the effort required to complete his RFT. As well, he mentioned the Plaintiff's unhappiness. The assessment read in part:

...ADAPTABILITY TO CHANGE: Cst. MACNEIL was expecting to be transferred to southern Ontario from Regina to do "Federal police work (sic). He is upset that he was transferred so far away from home and is finding it difficult to cope. Because his girlfriend is in Ontario, he has basically no social life.

[18]            The Plaintiff also testified about his housing arrangement in Sicamous (the "Housing Incident"). When he arrived in February, he lived alone in a house next to the Detachment. He alleged that Tidsbury wanted the house and forced him to move out in May of 1991. In contrast, Tidsbury testified that, by April of 1991, it was clear that the Plaintiff was unhappy and, in an effort to boost his spirits and improve his social life, Tidsbury suggested that he move in with a local family. Tidsbury testified that, after spending some time with the family in April, the Plaintiff accepted his suggestion and planned to move into their home. The Plaintiff denied this. However, it is undisputed that, during the Plaintiff's leave in May, Tidsbury gave two weeks' notice to the Plaintiff's landlord and, after the Plaintiff moved out of the house upon his return, Tidsbury moved in. Tidsbury testified that he had the Plaintiff's permission to give the notice, whereas the Plaintiff said at trial that, before he left for Ontario, he had told Tidsbury that he would finally decide where he would live when he returned from his leave.

[19]            On or about July 7, 1991 (the "Decision Day"), the Plaintiff was working with Lechky. They received a call requiring them to take out a boat and Lechky suggested that they stop at the Plaintiff's house to pick up his boat shoes. When he reached his home, the Plaintiff found that Wendy, who had been visiting, had unexpectedly packed and was about to return to Ontario. Although he asked her to stay, she refused. Later in the day, the Plaintiff learned that she had left a "Dear John" letter at the Detachment that ended their relationship. The remainder of his shift with Lechky was busy and included several calls about overturned canoes and houseboats. Lechky testified that, while the two men were out on the water, the Plaintiff criticized his competence as a trainer.

[20]            When he arrived at the Detachment at the end of his shift, the Plaintiff insisted on a meeting with Tidsbury, despite the fact that Tidsbury was leaving for the day. The substance of their conversation is in dispute. According to the Plaintiff's testimony, he informed Tidsbury of his intention to resign from the RCMP at the conclusion of his RFT in the fall. He said that, in response, Tidsbury encouraged him to resolve his unhappiness by resigning immediately and promised to give him a good reference. In contrast, Tidsbury testified that the Plaintiff wanted to resign immediately and he had tried to persuade him to complete his RFT. When asked at trial if he had promised the Plaintiff a positive reference, Tidsbury denied doing so and added that he could not have given such a reference because the Plaintiff had not performed well at the Detachment. The meeting with Tidsbury ended when the Plaintiff left the Detachment and sought privacy in the nearby woods. In his Statement, Lechky said that the Plaintiff ran down the street and into the woods and evaded his colleagues for more than two hours. During this time, Tidsbury sent several members of the Detachment to look for him. Eventually the Plaintiff reappeared and was driven home by Lechky. The Plaintiff acknowledged that he wanted privacy and that he hid from his colleagues. However, he denied that he had run down the street.

[21]            While some members of the Detachment were searching the woods for the Plaintiff, Tidsbury and others broke into his locker and confiscated his gun because they were concerned that he might do himself harm. Tidsbury testified that, if the Plaintiff had not resigned, he would not have returned his gun until he had successfully completed a RCMP counselling program.

[22]            The next day, which was probably July 8th, the Plaintiff met again with Tidsbury and signed his resignation. It was dated ahead to July 12, 1991 to take account of four days of accumulated leave. According to the Plaintiff, Tidsbury cautioned him that he might regret his decision to resign and asked him which police departments he was planning to contact about employment. When the Plaintiff mentioned three or four different forces, Tidsbury allegedly took notes. However, Tidsbury denied writing anything down, and only recalled that the Plaintiff had mentioned the OPP.

[23]            In the ordinary course, an exit interview is held when a member resigns from the RCMP. In this case, because the Plaintiff had already returned to Ontario, the interview was conducted by telephone by RCMP Sergeant J. P. Tremblay ("Tremblay") on August 9, 1991. Tremblay recommended that the Plaintiff not be re-engaged in part because he had not been totally honest with the RCMP about his willingness to serve anywhere in Canada. The report of the interview read in part:

... MACNEIL was reminded of the very significant monetary cost (Recuiting procedure, full time language training, BRT, etc) which could have been avoided had he been totally honest with regard to his willingness to serve anywhere in Canada.

...

Although Ex-Cst. MACNEIL was fairly well rated during his basic Recruit Training, he realizes that under the circumstances he would not likely be considered for re-engagement with the Force, should he re-apply in the future. ...

RECOMMENDATION:

That Ex-Cst. MACNEIL not be considered for re-engagement should he re-apply to the Force in the future.

[24]            After his return to Ontario, the Plaintiff applied for employment insurance. He testified that he had a conversation (the "EIC Conversation") with a woman at Employment and Immigration Canada ("EIC") who had previously spoken with Tidsbury. The EIC Conversation left the Plaintiff with the understanding that Tidsbury would not be giving him a positive reference. At trial, Tidsbury admitted that he had told an EIC employee that the Plaintiff would be good at pumping gas or getting a job outside the police. Tidsbury acknowledged that the comment about pumping gas was derogatory.

[25]            The Plaintiff applied to six different forces after he left the RCMP. They were the Port Hope Police Service ("Port Hope"), the Peterborough Community Police Service ("Peterborough"), the Durham Regional Police Service ("Durham"), Metro, the Canadian Security Intelligence Service ("CSIS") and the RCMP (for re-engagement). He applied twice to both Durham and CSIS. As noted above, his application to the OPP was submitted before he left the Detachment. All of these applications were unsuccessful.

The OPP Application

[26]            The Plaintiff applied to the OPP on April 29, 1991. After a series of written tests, he was interviewed by Sergeant Wendy Wilson ("Wilson") on September 4, 1991. During the interview, the Plaintiff complained at length about Tidsbury and Lechky and his experiences at the Detachment.

[27]            At trial, Wilson identified two principal reasons for the OPP's decision not to hire the Plaintiff in 1991. Firstly, a pending hiring freeze made the interview process very competitive. The OPP was seeking candidates with experience, whom Wilson described as "direct hires". A direct hire was either a candidate who was hired while serving on another police force or a candidate with considerable recent police experience. Since the Plaintiff had spent less than a year at the Detachment and because he was no longer employed by the RCMP at the time of his interview, he was not considered to be a direct hire.

[28]            The second reason for the OPP's decision not to hire the Plaintiff was the fact that, after he had been offered an OPP position in 1989, he had failed to inform the OPP that he had decided to join the RCMP. Following her interview with the Plaintiff, Wilson had a conversation with Sergeant Chris Newton ("Newton"). He was the officer who had originally recruited the Plaintiff. He was a witness at trial and testified that, in 1989, he told the Plaintiff that he had been successfully recruited by the OPP and that he would start as soon as a troop formed. Newton further testified that the Plaintiff never advised him that he had decided to join another force. It was only when he tried to contact the Plaintiff to inform him of his start date that Newton learned from the Plaintiff's father that the Plaintiff had joined the RCMP. The Plaintiff claimed that he phoned Newton twice and left messages. However, Newton testified that they were never received.

[29]            Wilson also telephoned Tidsbury (the "OPP Conversation"). While the Plaintiff had authorized the OPP to call the RCMP on his OPP application form, the motivation for Wilson's call is unclear. The Plaintiff claimed that the call proved that he had passed the interview phase and that his application had advanced to the point where his background was being checked. However, both Wilson and Tidsbury testified that Wilson had decided not to hire the Plaintiff prior to the OPP Conversation. Rather, Wilson testified that she "wanted to be fair" to the Plaintiff, that she was curious about him, and that it was an informal conversation. She further testified that she did not recall the substance of the conversation, and that she took no notes of Tidsbury's comments.

[30]            Tidsbury, on the other hand, did take notes during the OPP Conversation. He testified that Wilson told him at the outset that she had rejected the Plaintiff's application. When he asked why, she said it was because of the Plaintiff's failure to contact Newton in 1989 to tell him he was joining the RCMP and because she got "weird vibes" from him. Wilson then asked Tidsbury for his opinion of her decision. At trial, Tidsbury admitted that he told Wilson that it "would have been suicidal for the OPP to have accepted [the Plaintiff]".

[31]            Explaining this statement, Tidsbury testified that, based on the Plaintiff's emotional condition when he left Sicamous, he felt that the Plaintiff "should not be doing enforcement with a gun". Tidsbury acknowledged that he did not know what the Plaintiff's emotional state was two months after he left the Detachment and admitted that his comment assumed that it had not changed. Tidsbury acknowledged at trial that much of the conversation with the OPP was against RCMP policy. However, he was not asked to identify or describe the policy to which he referred, and the policy was not otherwise introduced into evidence.

[32]            Lechky testified that, on one occasion after Tidsbury hung up the telephone at the Detachment, he said "after what I told them, Kirk will never get a job with any police department". When asked what he thought that statement meant, Lechky stated that his impression was that Tidsbury had given the Plaintiff a bad reference, and that the Plaintiff was "screwed". Although Lechky recalled that Tidsbury's tone had seemed somewhat triumphant, he was unable to be precise about when the statement was made and admitted that he had no idea with whom Tidsbury had been speaking. All that he could say was that, based on the comment he had overheard, he understood that Tidsbury was not giving the Plaintiff a good reference.

[33]            At trial, Tidsbury denied making this statement to anyone. He did admit that he might have said, in passing, that the Plaintiff was "screwed", but only in reference to the fact that the Plaintiff was unemployed.

[34]            It should be noted that, like Tidsbury, Lechky would not have given the Plaintiff a good reference. In his Statement, he said:

             RL:         I was disappointed in Kirk. I thought that he would eventually come around to, to to (sic) making it but it, it (sic) was, he was one of the most difficult recruits that I have ever worked with as far as his enthusiasm, you know I said he did have his faults, there's no doubt about it.

             MS:        Do you feel he chose the wrong career and if somebody were to ask you for a reference, would you give him a favourable reference for police work?

RL:         No. I would not.

He then qualified this evidence by saying that the Plaintiff might have performed well if he had been with his girlfriend, Wendy, in Ontario or in a busier detachment with a different Commanding Officer. However, given that these were hypothetical facts, the qualification was not meaningful.

[35]            At trial, Lechky changed his testimony somewhat and said that, while he would hesitate to say that the Plaintiff was a "good person" and felt that he had not worked the way a recruit should work, he would recommend him for police work if he had a settled personal life. Given this inconsistency, I prefer the evidence Lechky gave in his Statement since it was closer in time to the relevant events.

[36]            The Plaintiff was advised, by letter dated September 5, 1991, that his OPP application had been rejected, and on May 26, 1992, he received an explanatory letter. It emphasized that the hiring process had been very competitive and outlined three factors that had detracted from the Plaintiff's competitiveness: (i) below average scholastic achievement during his formal education, (ii) the fact that during his interview the Plaintiff had berated the RCMP and Tidsbury, thus "demonstrating questionable loyalty to a police department that employed [the Plaintiff] for almost two (2) years", and (iii) no demonstrated leadership skills.

[37]            The Plaintiff submitted an access to information request to the OPP. He sought a copy of his application file and received it on July 27, 1992. The Plaintiff was angered by Wilson's assessment of his application. His anger was graphically illustrated by the comments he wrote by hand on the OPP's evaluation sheets. Among other comments, the Plaintiff described the points he was allotted as "Bullshit!" and referred to Wilson as an "asshole!". Regarding Newton, who had administered the Plaintiff's exams in 1991, the Plaintiff noted: "Sgt. Newton O.P.P. also screwed me!"

[38]            As these facts are relevant to the Plaintiff's claims, the conversation between Wilson and Tidsbury will be reviewed in the discussion section below.

The Port Hope Application

[39]            The Plaintiff testified that he applied to Port Hope sometime in August 1991. No documentation was provided, and in cross-examination, the Plaintiff stated that he did not know why his application had been rejected. He also said that he had no evidence to show that Port Hope had ever contacted the RCMP. For this reason, the Plaintiff's application to Port Hope is not relevant to the claims in this action and will not be given further consideration.

The Durham Applications

[40]            The Plaintiff testified that he applied to Durham in November 1991, and again in 1996 or 1997. As no evidence was offered to document his second application, and since the Plaintiff had no evidence that it was even acknowledged by Durham, I will deal only with the 1991 application.

[41]            The 1991 application does not appear to have been either accepted or rejected by Durham. Sergeant Joe Bennett ("Bennett") of Durham testified that his force's policy was to keep applications on file for one year after receipt unless an applicant asked for an extension. According to the Plaintiff, he did not hear anything about his 1991 application until the spring of 1992, when he received a form that he was to return if he wanted his application maintained on file. He returned the form but, when he followed up on the status of his application in the summer or fall of 1992, he was informed that it was no longer on file.

[42]            When he completed his 1991 application, the Plaintiff signed a document dated November 19, 1991 titled "Authorization to Collect Personal Information" (the "Durham Authorization"). It read as follows:

I, Kirk Michael MacNeil authorize the DURHAM REGIONAL POLICE to collect personal information concerning myself including academic, employment history including disciplinary records, medical, physical, financial, character and Police Contact information from sources other than myself. This personal information is to be used in a pre-employment investigation for the purpose of assessing my suitability for employment with the DURHAM REGIONAL POLICE. I further authorize the release of this personal information to the DURHAM REGIONAL POLICE, by the person(s) or institutions who possess it.

[43]            Despite the broad language of the Durham Authorization, the Plaintiff testified that he thought that RCMP policy limited the information it could release to "the bare bones". In his view, the RCMP could only give Durham the location of his assignment and his dates of employment.

[44]            By the time that the Plaintiff signed the Durham Authorization, he had filed a complaint against Tidsbury (the "Tidsbury Complaint"), which consisted of a one-page letter received by the RCMP Complaints and Internal Investigation Service. Sarich was assigned to investigate the Tidsbury Complaint and, on November 13, 1991, he received a second, seven-page letter from the Plaintiff that described the complaint in greater detail.

[45]            On November 20, 1991, the Plaintiff phoned Sarich to ask whether, in light of the Tidsbury Complaint, it was necessary for him to mention Tidsbury and the Detachment on his application to Durham. Sarich advised that, if the Plaintiff was asked, he was required to include this information, but suggested that he also list Lechky as a superior officer.

[46]            Durham sent a Previous Employment Inquiry Form to the Detachment. It asked for a reference for the Plaintiff (the "Durham Reference"). Before completing the Durham Reference, Tidsbury called Sarich on January 9, 1992 to ask what information he could release to Durham. Sarich informed himself and made notes on a transit slip directed to N.T.F (Note to File) (the "Note") dated January 16, 1992. It read in part:

(2) In addition to researching AM.II.11 I was in contact with Sgt Coolen - "F" Directorate who advises that once a consent from is signed the information can be released. However info should be based on fact not opinion. S/Sgt Anderson of our HQ Retrieval unit advises he replies to many of these requests and will paraphrase what the file reflects.

The Note also shows that Tidsbury was "advised of above" on the same day. Tidsbury completed the Durham Reference on January 20, 1992 and faxed a completed copy to Sarich.

[47]            The Plaintiff took issue with Tidsbury's answers to certain questions on the Durham Reference. Tidsbury answered "no" when asked whether the Plaintiff was honest, dependable, punctual and loyal and he did not answer the questions about the Plaintiff's intelligence and grooming. Tidsbury was also asked whether he would re-employ the Plaintiff and he answered in the negative.

[48]            Tidsbury did not answer the question that read: "Would you recommend the Plaintiff for the position?" Nor did he complete the "Comments" section. Tidsbury testified that he did not provide answers if they required subjective opinions. He said that he answered only when his opinions were based on facts. He added that the answers he did provide were justified by the fact that the Plaintiff had lied to him during the Radar Course and White Socks Incidents. He also relied on his recollection that the Plaintiff was frequently late for his shift and on the fact that, during his RFT, the Plaintiff had regularly complained to members of the public about the RCMP and his RCMP colleagues.

[49]            Although Bennett did not recall whether he was the officer who reviewed the Plaintiff's application, he testified that, if he had received the Durham Reference, it would have "raised flags" about the Plaintiff. However, while he would have given considerable weight to a document completed by the RCMP, he would nevertheless have followed up to see what an applicant's other employers had to say. Bennett had no recollection of speaking to the RCMP about the Plaintiff's application.

[50]            Although there was no direct evidence that the Durham Reference actually had a negative impact on the Plaintiff's employment prospects with Durham, it is reasonable to assume that it would have made a poor impression. Accordingly, it will be given further consideration below.

The Metro Application

[51]            The Plaintiff testified that he applied to Metro in December 1991. Two police officers, PC Costello and PC Pipe, interviewed the Plaintiff on February 13, 1992, and both testified at trial. Their interview notes were introduced into evidence by the Plaintiff, who had obtained them on April 15, 1992 through an access to information request.

[52]            Detective Costello ("Costello") testified that the main factor in his decision to reject the Plaintiff was that he left the RCMP at a time when he had no other job. This point is made on Costello's "Interviewer's Assessment Guide" under the headings "Common Sense/Good Judgement", "Dependability/Reliability" and "Self-Control". Under the headings "Common Sense/Good Judgement", "Adherence to Authority", "Dominance/Leadership" and "Flexibility", Costello noted that the Plaintiff left his job with the RCMP because he did not like his posting. Under the heading "Integrity/Honesty" he commented that the Plaintiff was "evasive when asked about leaving the RCMP". Costello testified that he did not speak to anyone at the RCMP prior to recommending the rejection of the Plaintiff's application.

[53]            Detective Pipe ("Pipe") independently interviewed the Plaintiff on the same day. He testified that, rather than seeing the Plaintiff's past employment in law enforcement as a plus, he drew negative inferences from the Plaintiff's experience with the RCMP. Pipe, like Costello, observed that the Plaintiff left his job with the RCMP because he did not like his posting, and mentioned this under the headings "Common Sense/Good Judgement", "Flexibility" and "Motivation/Initiative". He also noted under the heading "Integrity/Honesty" that the Plaintiff was reluctant to discuss the details of his resignation from the RCMP. Pipe also recommended that the Plaintiff's application be rejected and testified that he had no contact with the RCMP. He noted that former employers would not be contacted until the background investigation stage of the hiring process and, because the Plaintiff's application had failed at the interview stage, no such contacts would have been made. Based on this evidence, it is clear that the Plaintiff's Metro application has no relevance to his claims in this action.

The CSIS Applications

[54]            The Plaintiff testified that he applied to CSIS on an unsolicited basis on two occasions. This was confirmed by the testimony of Francesca Paladino ("Paladino"), who was a Human Resources Officer at CSIS from 1994 to 1998. She testified about two letters dated April 29, 1994 and March 26, 1997 that rejected the Plaintiff's applications. Paladino testified that CSIS does not contact former employers when it receives unsolicited applications. Nevertheless, the Plaintiff suspected that his 1997 application had been adversely affected by some sort of RCMP intervention. He was suspicious because his application was rejected even though one submitted by a co-worker at Corrections Canada, whom the Plaintiff felt was less qualified, did proceed beyond an initial rejection. However, since there is no evidence that CSIS ever communicated with the RCMP regarding the Plaintiff's applications, they can have no bearing on the Plaintiff's claims and I will not give them further consideration.

The RCMP Application for Re-Engagement

[55]            The Plaintiff applied for re-engagement with the RCMP on April 19, 1994. His application was rejected by letter dated August 29, 1994. At trial, RCMP Corporal Daniel Lortie ("Lortie") testified that he had reviewed the Plaintiff's file and had recommended against his re-engagement. In coming to that decision, Lortie reviewed the Plaintiff's service and personnel files from K Division and Headquarters. He relied particularly on the exit interview conducted by Tremblay, who had recommended against future re-engagement. He also considered Lechky's two-month assessment of the Plaintiff at the Detachment, which was not particularly positive. As Lortie clearly considered the opinions of members of the RCMP, this application will be given further consideration in the discussion below.

The Peterborough Application

[56]            The Plaintiff testified that he applied to Peterborough, but did not provide an application date. No documentation about this application was provided and, during his cross-examination, the Plaintiff said that he did not know why Peterborough had rejected his application. Further, he had no evidence that Peterborough had ever contacted the RCMP, or vice-versa. Accordingly, this application is not relevant to the Plaintiff's claim.

The Disposition of the RCMP Complaints

[57]            Before he started this action, the Plaintiff filed a total of three complaints with the RCMP Public Complaints Commission ("PCC"). The first was the Tidsbury Complaint. It was followed by a complaint against Sarich (the "Sarich Complaint"). The third complaint dealt with delays in the processing of the first two complaints.

[58]            Typically, a complaint to the PCC is considered in three stages. Initially, an internal investigation is conducted by the RCMP and a report is written. If a complainant is not satisfied with the report, the PCC may itself investigate and report. At the third and final stage, the PCC's Report is reviewed and commented on by the Chairman of the PCC before the release of a Final Report.

          a)        The Tidsbury Complaint

[59]            In the Tidsbury Complaint, the Plaintiff alleged that Tidsbury had released personal information about him to the OPP, Durham and Metro. Sarich's investigation of this complaint began in October of 1991, and concluded in mid-June of 1992. On April 6, 1992, Sarich travelled to Sicamous to interview members of the Detachment. Transcripts of the statements taken from Tidsbury and Lechky were marked as exhibits at trial.

[60]            As a result of Sarich's investigation, the RCMP concluded that Tidsbury was in error when he provided information to the OPP and Durham without the Plaintiff's consent. The letter, signed by Inspector Canning of the RCMP and dated October 21, 1992, included an apology to the Plaintiff. However, the Plaintiff was not satisfied with Inspector Canning's letter and, on May 13, 1992, he asked the PCC to conduct a further investigation.

[61]            The PCC concluded that Tidsbury "breached force policy when he released information about Mr. MacNeil to the Ontario Provincial Police and Durham Regional Police forces, because he did not obtain Mr. MacNeil's consent prior to releasing the information." However, the Commission found no evidence to support the Plaintiff's allegation that Tidsbury had released information to Metro. The PCC also concluded that Inspector Canning's letter had provided the Plaintiff with an adequate response.

[62]            In his Final Report of February 23, 1994, the Chairman said:

I find that Sergeant Tidsbury breached Force policy by improperly releasing personal information about Mr. MacNeil to the Durham Regional Police Force and Ontario Provincial Police, but he did not release information to the Toronto Metropolitan Police Force. I note that the Force has indicated that appropriate measures have been taken with respect to Sergeant Tidsbury's improper release of information.

...

After a thorough review of the Plaintiff's complaint and pursuant to subsection 45.42(2) of the RCMP Act, I wish to report that I am satisfied with the Force's disposition of this complaint.

          b)        The Sarich Complaint

[63]            In the Sarich Complaint, the Plaintiff alleged that Sarich had deliberately placed information on the Plaintiff's personnel file for the purpose of trying to prevent him from ever being re-engaged by the RCMP. The documents at issue were a transit slip dated June 12, 1992 and an attached Canadian Police Information Centre ("CPIC") printout. The transit slip was an innocuous cover document. It read:

"Attached assessment & documents to be held on members (sic) file in support of character references given out & for consideration should subject re-apply for the Force."

The attached documents were numerous and voluminous but the Plaintiff was only concerned about one document. It was the printout of a response to a query to CPIC that had been received on June 4, 1992 (the "CPIC Information").

[64]            CPIC is a service that allows police forces and other accredited agencies to electronically check individuals' police records. On June 4, 1992, the CPIC Information revealed a violence warning and indicated that four charges were pending against the Plaintiff, including assault, threatening and mischief. According to the Plaintiff, these charges were laid by Wendy and were subsequently withdrawn in return for a peace bond.

[65]            Sarich testified that the CPIC Information would have been available to any police force. However, the evidence showed that CPIC has a policy of deleting records if charges are withdrawn. Thus, once the charges against the Plaintiff were withdrawn, a CPIC query would have produced a blank response. This means that there would have been a time when the CPIC Information, as it appeared in print on the Plaintiff's personnel file, would have mentioned the charges, but the charges would no longer have appeared on a response to a fresh CPIC search against the Plaintiff.

[66]            When asked why he sent the transit slip and attached documents for inclusion on the Plaintiff's personnel file, Sarich stated that he felt that the personnel file was incomplete due to the fact that Tidsbury had never completed a one-year appraisal of the Plaintiff. Sarich did, however, admit that placing the documents on the Plaintiff's personnel file was not part of his responsibility as the officer investigating the Tidsbury Complaint. He said that he felt that he had a general obligation as a member of the RCMP to keep the Plaintiff's file in proper order. He denied that he had sent the CPIC Information to the Plaintiff's personnel file to prevent his re-engagement.

[67]            The first stage of the RCMP's investigation of the Sarich Complaint ended with a letter dated January 24, 1994. It said that there was insufficient evidence to establish that Sarich intentionally placed the CPIC Information on the Plaintiff's personnel file for the sole purpose of preventing his re-engagement. Further, the author of the letter, Chief Superintendent Clegg, was satisfied that the CPIC Information had, in fact, been kept confidential. He assured the Plaintiff that the "contentious correspondence" had been destroyed and apologized "for any inconvenience this incident may have caused [the Plaintiff]". An internal RCMP memorandum dated January 11, 1994 indicated that the impugned documents were removed from the Plaintiff's personnel file and sent to headquarters "for whatever action you feel necessary". The documents were then placed on the Plaintiff's internal affairs file.

[68]            At the PCC stage, two distinct allegations were considered: (i) that Sarich had arranged to have a copy of the CPIC printout placed on the Plaintiff's personnel file to prevent him from ever being re-employed by the RCMP and (ii) that Sarich had violated the Plaintiff's right to privacy. With regard to the first allegation, the PCC found that it had not been necessary to place the information on the Plaintiff's personnel file, and that "the only consequence of entering this information would be to diminish Mr. MacNeil's chances of being re-engaged by the RCMP." Regarding the second allegation, the PCC found that the CPIC Information was personal information under the Privacy Act, R.S.C. 1985, c. P-21 (the "Act"). While it recognized that the Act permits a government institution to use personal information for a purpose that is consistent with the purpose for which it was collected, it found that the transfer of the CPIC information to the Plaintiff's personnel file was not such a purpose, and that Sarich's action had therefore contravened the Act.

[69]            The Chairman, in his Final Report dated November 28, 1994, stated the following:

(a)           it was improper for Sergeant Sarich to place the CPIC information on Mr. MacNeil's personnel file; and

(b)          the effect of entering the information in the personnel file would be to diminish the chances that Mr. MacNeil would be re-engaged by the RCMP.

[70]            In relation to the allegation that Sarich violated the Plaintiff's privacy, the Chairman determined that:

(a)           the CPIC information relating to Mr. MacNeil was personal information under the Privacy Act;

(b)          entering the information in the personnel file of Mr. MacNeil was a contravention of the Privacy Act; and

(c)           Sergeant Sarich's action was a violation of Mr. MacNeil's right to privacy.

[71]            Since Chief Superintendent Clegg's letter to the Plaintiff had included an apology, no further apology was deemed necessary. However, the Chairman did recommend that "E" Division members review the RCMP's policy about the use of personal information collected during complaint investigations.

The Plaintiff's Claims

[72]            The Plaintiff believed that, because the undertaking that he signed to serve with the RCMP anywhere in Canada did not include a commitment about its duration, he honoured it when he completed 5 months of recruit field training in Sicamous, B.C. He also believed that, after he left the RCMP, he was a more attractive candidate for police positions than he had been in the past, having added language training, recruit training at the RCMP Academy and law enforcement experience to his curriculum vitae.

[73]            Because he held these beliefs, the Plaintiff could not understand why police forces such as Metro, the OPP and the RCMP, which had offered him employment in 1989, were no longer interested in him after his resignation from the RCMP. The only explanation that the Plaintiff found satisfactory was that the RCMP was so angered by his resignation, after his admittedly expensive training, that Tidsbury and Sarich and their respective superiors maliciously conspired to "blackball" him so that he would never be re-engaged by the RCMP or hired by any other police force. According to the Plaintiff, this "blackballing" conspiracy theory was reasonable because Tidsbury had shown a dislike for him during his time in Sicamous.

[74]            The alleged "blackballing" took two forms. Firstly, the Claim alleges that Sarich breached the Plaintiff's right to privacy and defamed him when he released the CPIC Information by sending the June 12, 1992 transit slip and attached documents to Ottawa to be placed on the Plaintiff's personnel file. It also alleges that Tidsbury breached the Plaintiff's privacy when he disclosed confidential information to the OPP in the form of his opinion about the Plaintiff.

[75]            The Claim does not refer to Tidsbury in the allegations found under the heading "Defamation", and the defendant took the position at trial that the Plaintiff had not alleged that Tidsbury's statements were defamatory. The Plaintiff disagreed and asked me to conclude that the section of the Claim titled "Unlawful Interference with Economic Interest" constitutes a pleading of defamation against Tidsbury. The Plaintiff explained that, as the first element of the tort of unlawful interference with economic interest is an unlawful act, the Plaintiff can argue that Tidsbury's defamation was the requisite unlawful act. Moreover, I took the Plaintiff to imply that, since it was clearly discernible from his pleadings that he found Tidsbury's behaviour objectionable, the particulars of the unlawful defamatory act should have been anticipated by the defendant. The Plaintiff's argument also assumed that "economic interest" could refer to the interests of an individual as well as those of a business, or in the alternative, that the Plaintiff's police career is his "business". Finally, it was argued that all aspects of the Claim, including the "Defamation" pleading, should be applied to all of the "defendants" and that, since Tidsbury was listed in the style of cause, defamation had been properly pleaded against him. It was admitted, however, that the action against Tidsbury had been dismissed and that he was not a defendant when the Claim was served and filed.

[76]            I have decided that no reasonable person reading paragraphs 24 and 25 of the Claim would understand that relief was being sought for defamatory statements made by Tidsbury. In my view, these paragraphs are now so characterized in an effort to circumvent the two-year limitation period on actions for defamation imposed by the relevant British Columbia and Ontario limitations legislation^[1]. If the Plaintiff had intended to claim that the RCMP was responsible for defamatory statements made by Tidsbury, it is my view that he was obliged to plead such a claim in clear terms. As this was not done, the claim against the RCMP for Tidsbury's defamation will not be considered. I should note that counsel for the Plaintiff recognized that he could have sought an amendment to the Claim at trial but instead he elected to rely on the pleading as it stood.

The Issues

[77]                         1)        Was there a conspiracy to "blackball" the Plaintiff?

                       2)        Did Sarich defame the Plaintiff by sending the Note dated January 16, 1992?

                       3)        Did Tidsbury breach the Plaintiff's privacy when he spoke to Wilson of the OPP or when he provided the Durham Reference?^[2]

                       4)        Did Sarich breach the Plaintiff's privacy by placing the CPIC Information on the Plaintiff's personnel file?

Discussion

          1.        Was there a conspiracy to "blackball" the Plaintiff?

[78]            The Plaintiff relied on a number of incidents and statements to show that Tidsbury disliked him intensely and wanted him to fail as an RCMP recruit and as a career police officer. However, as the evidence given by the Plaintiff and Tidsbury was often inconsistent, a credibility finding is required and I have concluded that the Plaintiff was not always a truthful witness. This conclusion has meant that, in situations in which the Plaintiff's version of events differed from that given by other witnesses, I have not accepted the Plaintiff's evidence.

[79]            I have reached this conclusion based on a number of instances in which the Plaintiff's evidence on important topics changed. The following are but some illustrations:

          (a)       The Plaintiff applied to the OPP on May 26, 1991 while serving with the RCMP in Sicamous. He gave his parents' address on the application and, when asked on cross-examination at trial why he did so, he answered clearly that it was because he had decided to leave Sicamous. He then qualified his answer and suggested that Wendy might bring him correspondence when she visited or that his parents could forward it to Sicamous. In my view, it was clear that the first response was truthful and that he altered it because he recalled that he had earlier said that his intention was to stay in Sicamous until he completed his RFT. This qualification of a clear answer was not an isolated event. The Plaintiff frequently modified his answers when, on reflection, he realized that they might not help his case.

          (b)       The Plaintiff's evidence about his understanding of his relationship with Tidsbury was highly inconsistent. In his examination-in-chief, the Plaintiff said that he had no problem with Tidsbury initially and that their first "run in" was the Radar Course Incident. However, in cross-examination, he said that he was suspicious of Tidsbury from the outset due to warnings from other members and finally lost trust in him after the Radar Course Incident. Yet, he also testified that he gave Tidsbury the benefit of the doubt on Decision Day and felt that Tidsbury was acting in his best interest when he offered him a positive reference. The Plaintiff further claimed to have been induced by the promise of a reference to leave Sicamous without finishing his RFT. He then rationalized this inconsistency by saying that Tidsbury had "befriended him to betray him".

          (c)       On his examination for discovery, the Plaintiff testified that he had discussed with Wendy his option of moving in with a local family. However, at trial he flatly denied that he spoke with Wendy about such a possibility.

          (d)       At trial the Plaintiff testified that, before he left for Ontario on leave in May, he did not tell Tidsbury that he was moving out of the house next to the Detachment. Rather, he told him that it was an option but that his final decision would be made on his return to Sicamous. However, on his examination for discovery he initially said that he had agreed that Tidsbury could have the house before he took his leave of absence. Then he changed his discovery evidence and said that Tidsbury was going to have his decision after his return. Thereafter, he changed his discovery evidence a third time and made a statement that was internally inconsistent. He said at question 467 of his transcript: "I told him initially in (sic) several times that I would make that decision upon my return. But I hesitantly agreed [to move out] not whole-heartedly, but because of knowing Sergeant Tidsbury's character and his personality, I did not want to upset him any further. And I left it that I would give him my absolute decision when I returned from Ontario, which I did." In my view, the Plaintiff's evidence at trial was not truthful. I have concluded that he did tell Tidsbury that he would be moving out of his house and moving in with the local family before he left on leave. I think that, while he may have had some reservations about his decision to move, they were not expressed to Tidsbury.

          (e)       In his evidence-in-chief at trial, the Plaintiff said that, on the day following Decision Day, he told Tidsbury that he planned to apply to Metro, Durham and the OPP. This was also his clear evidence on three occasions during his examination for discovery. Yet, during his cross-examination at trial, he suggested for the first time that he might also have told Tidsbury that he intended to apply to Port Hope.

          (f)        The Plaintiff changed his discovery evidence as it related to the timing of the EIC Conversation. This timing was critical, because the Plaintiff alleges that it was during this discussion that he first learned that Tidsbury was not giving him a good reference. During his examination for discovery, he said that the EIC Conversation took place 5 or 6 weeks after he resigned and, in any case, after his exit interview of August 8 with Tremblay. However at trial, he said that the EIC Conversation occurred in the first week after he returned home, which would have been before the end of July and before his exit interview. He explained that he thought his answer on discovery was wrong and that his memory at trial was better than it had been earlier. This explanation was not plausible.

          (g)       The Plaintiff initially testified in cross-examination that he could not recall telephoning Sarich to ask whether he could avoid mentioning Tidsbury and Sicamous on his application to Durham. Shortly thereafter, he acknowledged that he had contacted Sarich for this purpose. Given the importance of the Plaintiff's question and the fact that he had placed the call to Sarich, I did not find the Plaintiff's initial response to be credible.

          (h)       Sometime in the second half of 1993, the Plaintiff wrote a 12-page handwritten letter to the Chairman of the PCC to complain about delays in the processing of his two previous complaints. In that letter he said: "I have inquired about Civil Litigation in these matters with a Toronto law firm and they inform me that I have several courses of action available to me." He repeated this statement in his examination for discovery and specifically mentioned contacting the firm of Lerner and Associates ("Lerners"). However in cross-examination at trial, he was asked if he actually spoke with Lerners in the second half of 1993 and he acknowledged that it was "possible" that the letter contained an "idle threat" and it was "possible" that, because he was upset, he said he had spoken to lawyers when he had not done so. In my view, this disavowal of his letter and his discovery evidence on an important issue that was relevant to limitations severely damaged his credibility.

[80]            In addition to these findings about the Plaintiff's credibility, I have reached the following factual conclusions that bear on whether members of the RCMP acted with malice:

          (a)       The Plaintiff acknowledged that both during his recruitment and his training at the RCMP Academy he was told that he was likely to be sent out west. He also said that, during his recruitment, mention was made of the possibility of working at the new Terminal 3 at Pearson Airport in Toronto. However, I have concluded that this airport assignment was a remote possibility given the RCMP's stated preference for placing its recruits in detachments outside their home provinces. Nevertheless, the Plaintiff expected to be an exception and expected to be assigned to southern Ontario to work that involved the enforcement of federal statutes. In my view, this expectation was wholly unrealistic. It is my conclusion that the Plaintiff was angry and bitter from the moment he was told by Tidsbury that his chances for a transfer back to southern Ontario in the short term were non-existent. After this exchange, the Plaintiff believed that Tidsbury was not supportive and became predisposed to see malice in Tidsbury's actions.

          (b)       In my opinion, Tidsbury had reason to believe that the Plaintiff had lied to him during the Radar Course and White Socks Incidents. For this reason, I have concluded that Tidsbury's reaction to these incidents cannot fairly be described as malicious.

          (c)       Tidsbury also had reason to believe that, before he left on leave in May 1991, the Plaintiff had decided to live with the local family on his return and would therefore not continue to occupy the house next to the Detachment. I have concluded that Tidsbury did not force the Plaintiff out of the house next to the Detachment so that he could occupy it himself.

          (d)       Tidsbury did make a comment about "trimming [the Plaintiff's] wings" in response to the Plaintiff's failure to sign out in the Detachment's off-duty log book.    However, it is my conclusion that this statement did not indicate a malicious desire to destroy the Plaintiff's career with the RCMP.

          (e)       Tidsbury also said that he expected that the Plaintiff would be gone by summer's end. The Plaintiff suggested that this meant that Tidsbury planned to force him out of the RCMP. However, given the Plaintiff's unhappiness in Sicamous, this statement cannot reasonably be interpreted in this manner. Rather, the statement showed that Tidsbury recognized that the Plaintiff wanted to return to Ontario.

          (f)        I have not accepted the Plaintiff's evidence that he demanded a meeting with Tidsbury on Decision Day only to tell Tidsbury that he would be leaving after he completed his RFT in the fall. In my view, the rational explanation for the Plaintiff's insistence on meeting with Tidsbury immediately was that he had decided to resign on that day. I have also concluded that the Plaintiff ran, rather than walked, down the street in uniform after the meeting, that he was very distressed by Wendy's letter and her departure and that he ignored Tidsbury's calls and hid in the woods for privacy for at least an hour. In my view, in all the circumstances, it was not unreasonable for Tidsbury to have confiscated the Plaintiff's gun.

          (g)       I have also concluded that it would be absurd to believe that Tidsbury offered the Plaintiff a positive reference.

          (h)       In my view, the Plaintiff's suggestion that Tidsbury was trying to wreck his career because he had made Tidsbury "look bad" by resigning from the Detachment during the busy summer season is not realistic. There was no evidence that the Plaintiff's resignation had any negative effect on Tidsbury's career.

          (i)        I am not able to reach a conclusion about whether Tidsbury in fact ever made a remark in which he indicated that the Plaintiff would be unlikely to obtain another police position. Tidsbury denies making the statement but Lechky says that he overheard it. If it was made, I am not prepared to assume that it displayed malice in the absence of any evidence about its timing or context.

          (j)        Finally, it is my conclusion that portions of the Plaintiff's personnel file in Sicamous were destroyed by accident and not as part of a conspiracy against the Plaintiff.

[81]            To conclude on this topic, I have found no basis for believing that either Tidsbury or other members of the RCMP were involved in a malicious conspiracy to ruin the Plaintiff's prospects for a police career after he resigned from the RCMP. In my view, the Plaintiff has failed to appreciate that other police forces found him an unattractive candidate because (i) he criticized the RCMP and its personnel during his job interviews; (ii) he had not fulfilled his commitment to the RCMP to serve anywhere in Canada and (iii) he had not even completed his recruit field training.

          2.        Did Sarich defame the Plaintiff in his Note of January 16, 1992?

[82]            Durham sent Tidsbury a form asking him to provide a reference for the Plaintiff. It was accompanied by a consent form that the Plaintiff had signed. Tidsbury contacted Sarich for advice about how to fill in the Durham Reference form and, in the Note of January 16, 1992, Sarich recorded the advice that he gave to Tidsbury. In addition, he made the following comment in point four, which the Plaintiff says is defamatory:

There is always great reluctance to say anything derogatory however there are times when certain things must be said or we infact (sic) may be liable if we do not reveal facts which we considered were problems. We cannot take our gun out of someones (sic) hand & let another agency issue the person with their gun (authorities)^[3] if we feel the person can't handle it.

[83]            Although the Note was created for Sarich's personal reference, it appears that it was included on the Plaintiff's personnel file in "E" Division Headquarters.    However, Sarich could not say whether anyone else had ever read it or whether it was supplied to anyone outside the RCMP. The Plaintiff offered no evidence to show that anyone but Sarich had ever seen the Note.

[84]            Lortie testified, and the evidence confirms, that the Note had been removed from the Plaintiff's personnel file before he considered the Plaintiff's application for re-engagement. Lortie further testified that he did not see the Plaintiff's internal affairs file, which still contained the Note, because he initialled every file that he consulted and the internal affairs file did not exhibit his initials. Accordingly, I have found no evidence that the Note was ever seen by anyone but Sarich. Although Lortie admitted on cross-examination that he might have spoken to Tidsbury or Sarich about the Plaintiff, there was no evidence that the contents of the Note were ever discussed.

[85]            The next consideration is whether the Note was defamatory. Sarich testified that the statement in point four was general in nature and did not refer specifically to the Plaintiff. I accept this explanation. He also said that, in police work, a "gun" is jargon to describe police powers such as the powers to arrest and bear arms. This, he said, is corroborated by his insertion of the word "authorities" in brackets. I also accept this interpretation. However, even if I am wrong and point four in the Note did refer to the Plaintiff and whether he could safely handle an actual gun, it is a truthful statement made without malice. If the Note referred to the Plaintiff, it reflected Tidsbury's concern, as expressed to Sarich, that the Plaintiff had displayed a degree of emotional instability on Decision Day that justified divesting him of his gun.

[86]            Finally, even if the Note was defamatory, the Plaintiff's case for defamation is statute-barred under both the British Columbia and Ontario limitations legislation. They each provide a two-year limitation period for defamation. Since the Plaintiff admitted in his testimony that he had received the Note by April of 1993 at the latest in response to an access to information request, and since he did not commence this action until May 26, 1995, his action was out of time.

           3.        Did Tidsbury Breach the Plaintiff's Privacy?

[87]            The Plaintiff alleged that Tidsbury breached his privacy. While no particulars of the breach were pleaded, it became clear at trial that the Plaintiff took issue with Tidsbury's statements to the OPP and to Durham.

[88]            The Plaintiff alleged that Tidsbury violated his right to privacy when he gave the Durham Reference and when he spoke to Wilson of the OPP. While the Plaintiff gave both Durham and the OPP written consent to contact his former employers, he maintained that those consents were insufficient to enable the RCMP to release more than "bare bones" information. He said that RCMP policy stated that he had to sign a RCMP consent form before a reference could be given. However, no such policy was put in evidence.

[89]            In the absence of the RCMP policy, it is my conclusion that the Durham Authorization, which was a detailed consent form signed by the Plaintiff and sent by the authority requesting the information, was legally sufficient to allow Tidsbury to give the requested reference. Further, in Section C in his application to the OPP of April 29, 1991, which dealt with his employment history, the Plaintiff marked "yes" beside a statement that read: "Please indicate whether present employer may be contacted for further information." At that time the Plaintiff was employed by the RCMP. Accordingly, I am also satisfied that Tidsbury had the Plaintiff's consent to speak to Wilson of the OPP. For these reasons, I am not prepared to adopt the PCC's conclusion that Tidsbury breached the Act.

[90]            If I am incorrect and if Tidsbury did commit an actionable wrong, I can find no basis for a damage award. The evidence from Tidsbury and Wilson showed that the OPP had decided to reject the Plaintiff's application before Wilson spoke to Tidsbury. It did so for its own independent reasons that included the Plaintiff's inexperience, his poor interview, his poor test results and his failure to contact Newton in 1989.

[91]               I have also concluded that the Durham Reference provided an honest appraisal of the Plaintiff and that Tidsbury's derogatory comment about the Plaintiff to the EIC employee did not have any negative impact on his prospects of a police career outside the RCMP.

          4.        Did Sarich Breach the Plaintiff's Privacy?

[92]            In my view, contrary to the Plaintiff's allegation, Sarich did not send the CPIC Information to the Plaintiff's personnel file for the purpose of scuttling the Plaintiff's prospects for re-engagement. It is my conclusion that Sarich would not have imagined that the Plaintiff had any such prospects. As well, Sarich would know that, if the Plaintiff were to reapply, he would be asked questions about criminal matters whether or not the charges appeared on CPIC and whether or not the CPIC Information was in the file. In this regard, the Plaintiff acknowledged that, prior to his application to the RCMP, he had received a pardon for an assault conviction. Yet, despite the pardon, he had been asked questions that drew out this information during his RCMP recruitment.

[93]            In his Claim, the Plaintiff relied on the fact that the PCC had concluded that Sarich's placement of the CPIC Information on the Plaintiff's personnel file constituted a breach of the Act and characterized the PCC's conclusion as an "admission" by the RCMP.

[94]            The PCC concluded that Sarich obtained the CPIC Information for the purpose of his investigation of the Tidsbury Complaint. In the PCC's view, it was inconsistent with this purpose to include the CPIC Information in the bundle of material placed on the Plaintiff's personnel file and, on that basis, it concluded, at page 6 of the Chairman's Final Report dated November 28, 1994, that the Act had been breached:

...The CPIC information received by Sergeant Sarich was personal information as meant by the Privacy Act. The Privacy Act permits a government institution to use personal information for a purpose that is consistent with the purpose for which the information was collected. The Committee finds that Sergeant Sarich obtained the CPIC information while carrying out duties related solely to the RCMP's response to Mr. MacNeil's earlier complaint about the conduct of Sergeant Tidsbury. The transfer of the CPIC information - personal information - to the RCMP personnel file on ex-Constable MacNeil was not consistent with the purpose for which Sergeant Sarich received this information. The Committee finds that this action was in contravention of the Privacy Act.

[95]            Plaintiff's counsel completed his final argument without once mentioning the Act. I therefore asked him whether he intended to address it and he replied that he had not planned to do so and intended instead to rely on the PCC's conclusions and the RCMP's admission that the Act had been breached. I indicated that I understood his position but that I would not automatically accept the PCC's conclusions on legal matters . He said that he would need an adjournment to prepare further argument on this issue. I indicated that an adjournment would not be available to deal with a subject that should have been an obvious part of his case.

[96]            I have found no basis for concluding that the RCMP (as opposed to the PCC) ever admitted that Sarich breached the Act. Chief Superintendent Clegg's letter to the Plaintiff of January 24, 1994 made no reference to the Act. While the PCC, which did not hold a hearing and did not receive any legal argument on Sarich's behalf, did conclude that there had been a contravention of the Act, there was no evidence to suggest that the PCC finding should be treated as an admission by the RCMP. In any case, for the reasons given below, I do not agree with the PCC's conclusion.

[97]            The Act deals with the use of an individual's personal information by government institutions including the RCMP. "Personal Information" is defined to include a criminal history and accordingly, the CPIC Information is clearly personal information under the Act. That being the case, subsections 7(a) and 8(1) of the Act come into play. They provide as follows:

[98]            Section 7 raises two issues. The first is whether the CPIC Information is under the control of the RCMP. I asked questions of Sarich about the operation of CPIC and he testified that the information it contains is nationally available to police officers, who can access it on a computer with a password. Once they have access, they can readily obtain printouts which show the particulars of a person's criminal history.

[99]            In these circumstances, I am not persuaded that the CPIC Information was in fact in the control of the RCMP as required by the Act and, therefore, I am not persuaded that Sarich could have breached the Act.

[100]        However, even if there was a breach of the Act, I have been given no authorities to indicate that damages are recoverable for such a breach. Further, even if I were to assume that damages are available, I am satisfied that the Plaintiff was not injured by Sarich's action. The relevant sequence of events is as follows:

          April 1991                      Durham police officers charged the Plaintiff with assault, threatening and mischief in relation to a confrontation with Wendy

          June 1992                      A computer search was conducted and Sarich obtained the CPIC Information and sent it to the Plaintiff's personnel file

          April 1993                      The Plaintiff learned from the response to his Access to Information request that the CPIC Information was in his personnel file in Ottawa

          By January 1994           The CPIC Information had been removed from the Plaintiff's personnel file in Ottawa.

[101]        There is no evidence that Metro, Port Hope, Peterborough or CSIS ever contacted the RCMP. Tidsbury was asked for the Durham Reference in January 1992 and the Plaintiff's application to Durham was, at least "in theory", still pending in June of 1992 when Sarich sent the CPIC information to Ottawa. I say "in theory" because it is my conclusion that, after Durham received the Tidsbury Reference, it is unlikely that it would have further considered hiring the Plaintiff. During his cross-examination the Plaintiff acknowledged that he thought that his application to Durham was "dead" because of Tidsbury's negative reference in January of 1992.

[102]        If I assume that the Plaintiff's Durham application was still being evaluated after June of 1992 and if I also assume (although there is no such evidence) that Durham contacted the RCMP after June of 1992 and was given the CPIC Information that was in the Plaintiff's personnel file, I cannot conclude that this information caused any damage. The Plaintiff acknowledged that, because Durham officers had laid the charges, Durham already had the CPIC Information. In the alternative, the CPIC Information was information that Durham would likely have obtained in a background check or by questioning the Plaintiff if it had continued to process his application.

[103]        The Plaintiff's application to the OPP was rejected in September of 1991, long before Sarich obtained the CPIC Information, and certainly long before it was placed in the Plaintiff's file.

[104]        Finally, I have accepted the evidence of Lortie to the effect that, when he considered the Plaintiff's application for re-engagement with the RCMP in 1994, he looked only at the Plaintiff's personnel file. By then, the CPIC Information had been removed from that file. It is therefore clear that the CPIC Information could have had no bearing on Lortie's decision. I also accept his evidence that he refused the Plaintiff's application because he relied on the report from the exit interview in which Tremblay had recommended against re-engagement.

[105]        The Plaintiff's Claim also alleged breach of confidence, abuse of public office and breach of trust in respect of Sarich's conduct. However, I was not provided with any submissions about these allegations and can see nothing in the evidence which would justify an award under any of these headings.

Conclusion

[106]        For all of these reasons, the Plaintiff's action will be dismissed with costs on a party and party scale. I should add that the Plaintiff asked the Court to split the video conference costs between the parties for the evidence taken from Lechky and Tidsbury. This request is denied on the basis that they were the Plaintiff's witnesses and, in Tidsbury's case, on the further basis that he could have appeared in person if the Plaintiff had contacted him in a timely way.

             "Sandra J. Simpson"            

JUDGE

Ottawa, Ontario

March 13, 2002

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-1092-95

STYLE OF CAUSE:

                                       Kirk Michael MacNeil

-and-

Her Majesty The Queen

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     September 24, 2001

REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE SIMPSON

DATED:                      March 13, 2002

APPEARANCES:

Mr. Joel P. Rochon                                              FOR PLAINTIFF

Mr. Douglas Lennox

Mr. Bryan MacPhadden                                                   FOR DEFENDANT

SOLICITORS OF RECORD:

Rochon, Genova                                                   FOR PLAINTIFF

Toronto, Ontario

McPhadden, Samac, Merner, Darling                 FOR DEFENDANT

Toronto, Ontario

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