COURT OF APPEAL FOR ONTARIO

CITATION: Sheridan v. Ontario, 2015 ONCA 303

DATE: 20150505

DOCKET: C59420

Juriansz, MacFarland and Lauwers JJ.A.

BETWEEN

William John Sheridan

Plaintiff/Appellant

and

Her Majesty the Queen in Right of Ontario, Matt Hanes, Leslie Raymond, Rose DiMarco, Wilfred Hurren, Alana Moore, Sandy Cain, Jacques Bois, Nicole Lewis, Sarah Marie Todd Sheridan, Scott Hearnden and

One unknown Ontario Provincial Police Officer

Defendants/Respondents

Morris Manning, Q.C., and Theresa R. Simone, for the appellant

William Manuel and Kristin Smith, for the respondents

Norman Groot, for the respondent, Nicole Lewis

Heard: April 20, 2015

On appeal from the order of Justice Graeme Mew of the Superior Court of Justice, dated August 27, 2014.

ENDORSEMENT

[1] This is an appeal from the order of Mew J. dated August 27, 2014 wherein he ordered that all claims against the OPP defendants were struck from the statement of claim without leave to amend save for the claim of abuse of process against the respondent, Leslie Raymond and that all claims against the respondent Nicole Lewis were dismissed save those of conspiracy and deceit, also without leave to amend. The motion judge also ordered the corresponding derivative claims against Her Majesty the Queen in Right of Ontario be struck and the action dismissed as against those defendants.

[2] The respondents, Leslie Raymond and HMQ cross-appeal the decision of the motion judge that permitted the continuation of the claim of abuse of process against her.

[3] All of the individual parties are employed by the Ontario Provincial Police (OPP). All, with the exception of Nicole Lewis and Sarah Marie Todd Sheridan are police officers. Nicole Lewis and Sarah Sheridan, are civilian employees of the OPP.

[4] The appellant was married to the respondent Sarah Sheridan from 2002 until 2010. In late 2010, in the midst of their marital strife Sarah Sheridan complained to the OPP about certain conduct on her husband’s part. As the result of her complaint, the appellant was charged with two counts of assault and one count of threatening death.

[5] In the course of the investigation into these charges, the respondent Leslie Raymond who was the officer in charge of the investigation, took a statement from Sarah Sheridan in late December, 2010. The statement was video-recorded and was on oath. As part of that statement Sarah Sheridan said that she had been vacationing with friends in Mexico earlier that year in November when she happened to run into her old, dear friend Scott Hearnden who, coincidentally happened to be vacationing in Mexico at the same time. That part of her statement was a lie.

[6] About three weeks after giving her statement, Sarah Sheridan called Leslie Raymond and told her that part of her statement was untrue. The truth was that she had been vacationing with Scott Hearnden and that they were romantically involved. Leslie Raymond did not disclose the fact that Sarah Sheridan had changed her statement to anyone.

[7] At the appellant's criminal trial, the facts in relation to the statement came out during the cross-examination of Sarah Sheridan, the complainant - that she had lied in her original statement to police, that she had told the investigating officer that she had lied in her statement and that neither of these facts were disclosed to either the prosecutor or to the defence.

[8] On the opening of the second day of the appellant's trial, the prosecutor advised the court that there was no reasonable prospect of conviction and he asked that the charges against the appellant be dismissed. He also asked that a peace bond be imposed. Over the objections of the appellant, who was represented by counsel, a common law peace bond was imposed on the appellant for a period of one year.

[9] It is on the basis of these facts that the appellant commenced a civil action against the respondents by way of a statement of claim some thirty-eight pages in length consisting of one hundred and twenty-four paragraphs wherein he asserts various causes of action including deceit, conspiracy, negligence, negligent investigation, false arrest, malicious prosecution, breach of privacy, abuse of process and intentional infliction of mental suffering. He also seeks related declaratory relief for the alleged infringement of his rights under sections 7, 9, 10(a), 10(b) and 11(a) of the Canadian Charter of Rights and Freedoms.

[10] All of the respondent police officers, save Scott Hearnden moved to strike out the statement of claim and to dismiss the action for failing to disclose a reasonable cause of action and in the alternative, to dismiss the action as an abuse of process. The motion was brought under rules 21.01(1)(a) and (b), 21.01(3)(d), 25.06(8) and 25.11.

[11] The respondent Nicole Lewis also moved to strike the statement of claim, in whole or in part, and relied on rule 21.01(1)(b).

[12] The motion judge concluded that none of the causes of action asserted against the moving OPP respondents had any chance of success save for the claim of abuse of process against Leslie Raymond and the claims of deceit and conspiracy against Nicole Lewis.

[13] The appellant and the respondent, Leslie Raymond, by way of cross-appeal, appeal these findings.

[14] The appellant takes the position and submits that the criminal proceedings were resolved completely in his favour and the motion judge erred in not so finding. The order striking out his claims should be set aside and his action permitted to continue in all respects.

[15] The cross-appellant and remaining moving respondents submit that the criminal proceedings were not resolved in the appellant's favour and that the motion judge's decision should be upheld. Further, the cross-appellant argues that the action against her should also be dismissed. That she failed to disclose the fact that Sarah Sheridan had told her she had lied about a peripheral detail in her statement was of no consequence. The fact remained that the prosecution continued and the charges were not resolved in the appellant's favour. Accordingly the action for abuse of process against her cannot succeed.

Analysis

[16] The admissibility of the transcript of the reasons given by the trial judge at the time the peace bond was imposed was an issue before the motion judge. He concluded that the criminal court's reasons and disposition were matters of material fact that "bears upon the question of whether the proceedings were terminated in the plaintiff's favour. They are not extraneous, but formed an integral part of the plaintiff's claim." We agree with his conclusion.

[17] The motion judge was clearly aware of the differences in terms of the admissibility of evidence under sub-rules (a) and (b) of rule 21.01(1) and of this court's decision in Beardsley v. Ontario Provincial Police 2001 CanLII 8621 (ON CA), [2001] O.J. No. 4574 at paragraph 24 where the court noted:

...we agree that the peace bond transcript was inadmissible on a rule 21.01(b) motion, however, the motion was made pursuant to rule 21.01(1)(a). Again, it would defeat the interests of justice not to admit the transcript for the purpose of a motion under that rule. The transcript provides an essential factual context, which was omitted from the statement of claim, concerning the withdrawal of the criminal charges.

[18] We see no error in the motion judge's decision to admit the reasons and disposition of the judge who determined the criminal proceedings.

[19] The motions judge concluded that the criminal proceedings had not ended in the appellant's favour. The appellant argues that in order to determine whether criminal proceedings have been terminated in favour of the appellant, all of the circumstances must be carefully reviewed and that such an exercise would fall beyond the ambit of a Rule 21 motion.

[20] This same argument was rejected by the motions judge and we agree, that in the circumstances of this case it was not necessary to go beyond the allegations in the statement of claim and the reasons of Chester J. to determine whether or not the outcome of the proceedings against the appellant was favourable. Unlike the cases relied on by the appellant, this was not a situation where there was any negotiation back and forth in relation to the dismissal of the charges against the appellant. Here the peace bond was imposed despite the appellant's strenuous objection. We agree with the motion judge's observation at paragraph 38 of his reasons:

The fact that in the present case the peace bond was imposed not by agreement but, rather, by a decision of the court after opposition from the plaintiff, makes the outcome if anything less favourable to the plaintiff than would have been the case if he had agreed to a peace bond as part of a compromise arrangement.

and we agree that the outcome was unfavourable to the appellant.

[21] The result of our conclusion is that the appellant cannot, as a matter of law, make out his claims for malicious prosecution and negligent investigation. It follows that his claims that the proceedings against him were instituted without reasonable cause and his corresponding claims for breach of charter rights must also fail.

[22] The appellant's claims of malice and intentional conduct against the OPP respondents are baldly pleaded and lack the necessary particulars required by rule 25.06(8) as found by the motions judge.

[23] None of the OPP respondents, other than Leslie Raymond either initiated or continued the prosecution of the appellant.

[24] The motions judge carefully reviewed all of the claims pleaded against the OPP respondents and concluded, with the exception of Leslie Raymond, that none of the claims could be made out. We see no error in his conclusion.

[25] As for the respondent Nicole Lewis who was separately represented, the motions judge concluded that the claims made against her in relation to any role she may have had in relation to the laying of charges and the prosecution of those charges must fail for the same reason. However, there were other claims made against Lewis that went "beyond the effect of her actions on the criminal proceedings". Those other claims of deceit and conspiracy were permitted to continue. We see no error in these conclusions.

Cross-Appeal

[26] The motions judge dismissed the claims against Raymond except for the claim for abuse of process. He reasoned:

[66] However I would allow the allegation that Leslie Raymond knowingly failed to disclose that part of Ms. Sheridan's statement was false to proceed on the basis of abuse of process.

[67] ...Although, for reasons already given, the legal process which was initiated against the plaintiff cannot now be said to be without foundation, it would be open to the court to conclude that the legitimate purpose of the proceedings against the plaintiff was diverted when DS Raymond failed to disclose Ms. Sheridan's false statements.

[27] We do not agree. We accept the Crown's submission set out at paragraph 69 of its factum:

All of the allegations against officer Raymond as they pertain to her failure to disclose that part of the complainant's statement was false are "inextricably wrapped up with the claim for malicious prosecution" because the allegation is that this occurred as part of the investigation and prosecution of the appellant. Accordingly the motion judge was not correct in finding that this allegation could form the basis of a separate cause of action when he had concluded that the claims of malicious prosecution and negligent investigation could not succeed against all of the OPP defendants.

[28] While it was quite improper and wrong for Raymond not to disclose that Sarah Sheridan had told her she had lied in her statement to the police, it is of no moment in the appellant's civil claims that all hinge on his malicious prosecution and negligent investigation claims. The fact of her non-disclosure does nothing to enhance these claims.

Leave to Amend

[29] The motion judge refused the appellant leave to amend those parts of the pleading he struck out. He reasoned as follows:

First, the OPP defendants delivered their motion materials at the end of February. There has been more than ample opportunity for amendments to be made. Second, if a 38 page pleading is as bereft of substantive material facts supporting the causes of action pleaded as this one is, it is, I find it unrealistic to expect that there are facts which could be pleaded which would cure the present deficiencies.

[30] We note that although the motion materials were delivered in February, the motion was not argued until June 24. We see no error in the motion judge's exercise of his discretion on these facts to refuse leave to amend.

Costs

[31] The appellant seeks leave to appeal the costs orders made against him by the motion judge. In order for this court to interfere with a costs order it must either be "plainly wrong' or the appellant must demonstrate that the judge below made an error in principle. Neither factor can be sustained here.

[32] This motion was argued over the course of two days. It was complex and the statement of claim that was the subject of the motion was prolix. The motion judge considered the appellant's submission that the peace bond issue was novel on the particular facts of this case where it was imposed rather than agreed to. He also considered that many of the claims pleaded were redundant and others without foundation. He found that the prolixity of the statement of claim where many of the allegations were only "baldly pleaded" was an aggravating factor.

[33] He considered the amounts claimed by the parties, $20,172 by the OPP and $9,907.62 by Lewis and awarded them $10,000 and $5,000 respectively, both amounts inclusive of disbursements and applicable taxes. In our view, the amounts awarded were reasonable and we would not interfere.

Conclusion

[34] The appeal is dismissed and the cross-appeal of the respondent, Raymond is allowed.

[35] Costs of the appeal and cross-appeal to the OPP respondents fixed in the sum of $8500 and to the respondent Lewis fixed in the sum of $4000, both inclusive of disbursements and applicable taxes.

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”

“P. Lauwers J.A.”