COURT FILE NO.: 303/00

DATE: 20030218

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, BENOTTO S.J. AND GREER JJ.

B E T W E E N:

KEVIN JAHANGIR

Appellant

• and -

THE MUNICIPALITY OF METROPOLITAN TORONTO, TORONTO POLICE SERVICES BOARD, WILLIAM McCORMICK, CHIEF OF POLICE AND DETECTIVE NAGY

Respondent

B. Edward Southcott, for the Appellant

Naomi Brown, for the Respondent

HEARD: February 18, 2003

THEN J.: (Orally)

1The appellant raises two points:

(i) that the trial judge erred in not dealing with this action on the basis of negligence;

(ii) that the trial judge erred in holding that there were reasonable and probable grounds justifying the arrest and imprisonment in view of the alleged inadequacy of the investigation.

2With respect to the first issue, it is clear in the statement of claim which was drafted by a lawyer that negligence was not pleaded in terms. It is also clear that at discovery the appellant's lawyer stated unequivocally that the claim was for false arrest and false imprisonment. Neither the appellant or his legal representatives sought to amend the statement of claim and the concession of the appellant's counsel on discovery was read into the record at trial.

3In the circumstances, even though the appellant was unrepresented at trial, it was not incumbent upon the trial judge, who was required to remain impartial to advise the appellant to amend his statement of claim to allege negligence and then to decide the case on that basis.

4As to the second issue, there is no error alleged in either the articulation or the application by Justice Somers of the subjective and objective task for reasonable and probable grounds. Rather, the appellant submits that given the information he conveyed to the police with respect to harassment of him by Gheisar and Ghobadpoor a further investigation by the police was required before his arrest and subsequent detention.

5In our view, the trial Judge committed no palpable or overriding error in relying on the evidence of the officers to find that they genuinely believed the stories of the complainants and thus had reasonable and probable grounds to arrest the appellant. The trial Judge was entitled to hold that there was nothing in the two stories given to the police by the complainants to compel the officers to further investigate.

6While the appellant made certain statements respecting his harassment at the hands of Gheisar and Ghobadpoor, we can discern on this record no evidence of a conspiracy (prior to the arrest) between Gheisar and Ghobadpoor and the complainants that would have required the police to conduct further investigation. We are accordingly not entitled to interfere; the appeal is dismissed.

7We endorse the amended appeal book as follows: "The appeal is dismissed for oral reasons by the Court delivered this day. Costs to the respondent fixed in the amount of $2,500 all inclusive."

THEN J.

BENOTTO S. J.

GREER J.

Date of Reasons for Judgment: February 18, 2003

Date of Release: March 4, 2003

COURT FILE NO.: 303/00

DATE: 20030218

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT