COURT FILE NO.: 399/07
DATE: 20080307
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT MOTIONS
B E T W E E N:
ROGER ST. JACQUES
Appellant
David Milosevic for the appellant
- and -
GRANT DOYLE, THE CITY OF TORONTO, TORONTO AMBULANCE SERVICE
Belinda A. Bain for the respondents
Respondents
Heard: February 26, 2008
FERRIER J.:
[1] The appellant appeals the decision of Master Birnbaum released July 24, 2007, dismissing the plaintiff's action upon the defendants' Rule 20 motion for summary judgment.
[2] For the reasons following, the appeal is dismissed.
[3] The relevant facts are set out concisely and accurately in the Master's reasons.
[4] The Master held that the plaintiff was unable to establish a triable issue in reference to two of the required elements needed for a successful presentation:
(a) that the proceedings were initiated by the defendants, and
(b) that the proceedings were initiated out of malice, or a primary purpose other than that of carrying the law into effect.
See Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170 (S.C.C.) at 192-93.
[5] Dealing first with the question of "malice or other purpose."
[6] The appellant argues that the defendant Doyle made the report of his version of the events, including the death threat, in order to protect his job. But there is no evidence to that effect, nor is there any evidence from which it could reasonably be inferred that such was his motive. The appellant was asked what evidence he had that might support the allegation, but no evidence was proffered.
[7] Nevertheless, the appellant argues that malice can be imputed to the defendant Doyle because of the very nature of the "fracas" and the road event. That is to say, it can be imputed from the personal animosity of the defendant Doyle.
[8] Malice is established by showing that the actual motive was improper, or the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the defendant. The burden is on the plaintiff to show malice.
Lloyd v. Toronto (City) Police Services Board, O.J. No. 83 (S.C.J.) at paras.142 and 143.
[9] With respect to allegations of malice, a suit for malicious prosecution must be based on more than recklessness or gross negligence. The test for malicious prosecution requires that the plaintiff show that the actual motive was improper, or demonstrate that the prosecution can only be explained by imputing a wrong motive. Neither bald allegations of malice, nor inferences in the face of other explanations, nor assumption and innuendo will satisfy the elements of the test.
[10] Here, the prosecution can readily be explained by a reason other than Doyle's alleged malice – namely, the police independently assessed the situation after speaking to the witnesses and decided to charge Mr. St. Jacques. Hancock's evidence would support such a conclusion. The Crown then decided to proceed with the charges through the trial even though Doyle was not present to give evidence and did not even know the trial was proceeding. Furthermore, the appellant conceded that his own lack of cooperation with the police was a likely factor leading to charges being laid against him.
[11] The Master was correct in her determination that the appellant could not establish malice or other improper purpose.
[12] That is sufficient to dispose of the appeal, but I shall deal with the question of the initiation of the proceedings.
[13] In order to meet the first branch of the legal test for malicious prosecution, the plaintiff must satisfy the Court that the defendant initiated the prosecution, or set the prosecution in motion.
Kefeli v. Centennial College of Applied Arts and Technology, [2002] O.J. No. 3023 (C.A.) at para.24.
[14] The plaintiff must satisfy the Court on a balance of probabilities, that "the defendants actually procured the use of the power of the state to hurt the plaintiff by initiating the … proceeding."
Mirra v. Toronto Dominion Bank, [2004] O.J. No. 1804 (S.C.J.) at paras.23 and 24.
[15] To incur liability, the defendant must play an active role in the conduct of the proceedings, as by "instigating" or setting them in motion. The defendant must have been "actively instrumental" in setting the law in motion. Merely supplying information, however incriminating, to the police, on which they eventually decide to prosecute, is not the equivalent of launching a prosecution; the critical decision not being his"[the stone set rolling] is simply a stone of suspicion."
Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 676, as cited in Katzman v. Patterson Dental Canada Inc., [2003] O.J. No. 5316 at para.34.
[16] Only in exceptional circumstances will a private citizen or complainant be found to have initiated a prosecution for purposes of an action in malicious prosecution. The Ontario Court of Appeal has identified the following as indicia of such exceptional circumstances:
(a) the complainant desired and intended that the plaintiff be prosecuted;
(b) the facts were so peculiarly within the complainant's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment; and
(c) the complainant procured the institution of proceedings by the professional prosecutor, either by furnishing information that he knew to be false, or by withholding information that he knew to be true, or both.
Kefeli, supra, at para.24.
[17] The appellant cannot establish any of the indicia referred to in Kefeli. In particular, even if he had lied to the police and it was so found at trial, that is not sufficient. The appellant would have to show that he lied to procure a prosecution against the appellant. On the evidence, the appellant cannot do so.
[18] The appellant relies heavily on Wood v. Kennedy, 1998 14927 (ON SC), [1998] 165 D.L.R. 542 at para.51, where Sharpe J. adopts the test in Martin v. Watson, [1995] 3 All E.R. 559 (U.K.H.L.):
Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.
[19] However, Wood was a considerably different case – that of an allegation of sexual assault on a 13 year old girl by her uncle. She was the only witness to the alleged assault. Furthermore, counsel for the defendants, including the girl"did not take serious issue" with the contention that the girl's actions, in making a "disclosure" to her friends, and repeating the allegations to a teacher, a C.A.S. worker and the police, could amount to instituting the proceedings. It was held she knew that when she was speaking to the police that criminal charges were likely to be laid. It was also held that the nature of the allegations were such that it was difficult, if not impossible, for the police to exercise any independent discretion or judgment. The police had little choice but to charge the uncle.
[20] The circumstances in Wood are far from those in this case.
[21] The Master was correct in reference to the issue of the initiation of the proceeding against Mr. St. Jacques.
[22] Accordingly, the appeal is dismissed, with costs of the action, the motion before Master Birnbaum and this appeal, fixed at the total sum of $25,000, including disbursements and GST.
Ferrier J.
Released: March 7, 2008
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COURT FILE NO.: 399/07
DATE: 20080307
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT MOTION
B E T W E E N:
ROGER ST. JACQUES
Appellant
- and -
GRANT DOYLE, THE CITY OF TORONTO, TORONTO AMBULANCE SERVICE
Respondents
REASONS FOR JUDGMENT
FERRIER J.
Released: March 7, 2008
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