CITATION: Su v. Chowdhury, 2014 ONSC 5730

DIVISIONAL COURT FILE NO.: 232/13

DATE: 20141001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N :

YI JING SU

Defendant

(Appellant)

– and –

ABUL NOWSHAR CHOWDHURY, also known as BABEL ABUL NOWSHAR CHOWDHURY

Plaintiff

(Respondent)

Michael N. Freeman

for the Defendant (Appellant)

Michael Tweedie and

Marco Drudi

for the Plaintiff (Respondent)

HEARD: MAY 27, 2014

THEN J.:

[1] The appellant, Yi Jing Su, appeals from the judgment of deputy judge Seevaratnam of the Ontario Small Claims Court dated April 23, 2013. The deputy judge found the appellant liable to Abul Nowshar Chowdhury for malicious prosecution and defamation awarding him damages in the amount of $25,000 with costs in the amount of $9,076.

overview

[2] Briefly stated the appellant and the respondent who are employees of the Hilton Hotel in Toronto engaged in a dispute on September 9, 2009, which the appellant alleged culminated in an assault by the respondent by pushing her in the doorway of the kitchen where he worked.

[3] The appellant reported the incident to the police who conducted an investigation and subsequently charged the respondent with assault. The respondent was tried and acquitted by Madam Justice Hogan on March 15, 2010.

[4] The respondent commenced an action for malicious prosecution and defamation in Ontario Small Claims Court. The deputy judge awarded damages and costs to the successful respondent.

the facts

[5] On September 2009, both appellant and respondent were employed at Hilton Hotel. The appellant was a manager and the respondent was a cook. The appellant had no supervisory authority over the respondent.

[6] The respondent attended at the appellant’s office and requested she send a fax on his behalf. When she refused he alleges that he swore at her and left her office. She followed him to the kitchen area, requested an apology and a heated argument developed culminating in the respondent pushing the appellant out of the doorway. The respondent denies pushing her.

[7] The incident was reported by the appellant to the respondent’s superior and also to the Security Department of the hotel. After an investigation the respondent was suspended for five days without pay.

[8] Shortly after the incident the appellant attended at 52 Division where she spoke with and provided a written statement to Police Constable Bass (Bass).

[9] Bass testified that he observed the appellant to be “sincere, truthful, but upset”. He found her story to be believable and consistent. He testified that he had been taking reports for a long time and that the appellant’s report seemed quite natural and not scripted. He related he had no doubt she was believable. In his report he noted that the appellant wanted the respondent to be charged. He testified that the appellant complained about pain in her left arm. The appellant also provided the names of three witnesses to the incident. He provided a copy of his notes and as well as the occurrence report to the Criminal Investigation Bureau of 52 division for further investigation.

[10] Detective Constable MacDonald (MacDonald) was assigned to investigate the appellant’s complaint. He reviewed Constable Bass’s notes and the occurrence report. He contacted the three people who Bass noted were witnesses in his report.

[11] MacDonald retrieved a fax statement from Wesley Dunbrook and he took statements from David Beckett and Man Kee Lui. All three witnesses were hotel employees who were present at the time of the incident.

[12] Detective MacDonald testified that the statements which he received from the witnesses “dovetailed” with the information in the occurrence report.

[13] MacDonald testified that at trial Man Kee Lui recanted his statement that he saw the assault but claimed that he didn’t see anything because he was too far away.

[14] MacDonald testified that on the basis of his independent investigation he found “the reasonable grounds to believe an assault had taken place” and accordingly arrested the accused who turned himself in at the police station.

[15] In cross-examination, MacDonald indicated that he believed he had reasonable and probable grounds to arrest the respondent. In his words “Simply put, I firmly believed the information that I received was strong, truthful honest, forthright. I honestly believed that the victim at the time, was assaulted by the accused. If I did not believe that, then I could not go to sleep at night. I would not have laid the charge. I would not have arrested the accused.”

[16] Police Constable Ge testified that at the time of the incident he was married to the appellant but that they are since divorced. He pointed out her options but did not advise her as to what to say in the event she went to the police. He testified he only inquired if she had been hurt but otherwise kept totally out of this matter.

issues

[17] The appellant raises the following issues which can be reduced to questions:

(i) Did the learned deputy judge err in fact and/or in law in finding that the appellant initiated the prosecution of Chowdhury?

(ii) Did the learned deputy judge err in fact and/or in law in determining that the prosecution proceeded in the absence of reasonable and probable grounds?

(iii) Did the Learned deputy judge err in fact and/or in law in finding that the prosecution of Chowdhury was actuated by malice?

(iv) Did the learned deputy judge err in fact and/or in law in determining that the appellant defamed Chowdhury?

analysis

[18] I agree with the appellant that the decision of the Supreme Court in Nelles v. Ontario, [1989] 2 C.C.R. 170 has set down the four part test required to succeed on a claim for malicious prosecution. The plaintiff must establish on a balance of probabilities each of the following elements:

i. The proceeding must have been initiated by the defendant.

ii. The proceeding must have been terminated in favour of the plaintiff.

iii. An absence of reasonable and probable cause.

iv. Malice or other primary purpose other than of carrying the law into effect.

[19] In my view, the deputy judge erred in law in dealing with elements (i) and (iii) and further erred in law in including a fifth element, i.e., identified by the deputy judge as “unequal relationship”.

[20] It will be convenient at this point to set out the findings of the deputy judge with respect to the first element as follows:

The defendant has failed to establish, on a balance of probabilities, that her statements were truthful and accurate regarding the plaintiff’s behaviour. In her report to security at the Hilton Hotel and the police officer, she alleged assault and insisted several times on the plaintiff being charged. The Court questions the integrity of the defendant’s statement that her intention was to make a report to the police, but not lay any charges. Police Officer, Lorne Bass’ notes clearly indicate that the defendant had every intent to lay criminal charges of assault against the plaintiff.

She further states that she was unaware of the consequences of a charge being laid. The defendant, at the time of the incident, was married to Police Officer Ge. He testified under oath that he discussed with her by telephone the options that she had available to her. The Court finds the statement by the defendant that she was unaware of the consequences of laying a criminal charge untrustworthy and not credible. She was married to a police officer, she is intelligent, she was part of the management team at the Hilton Hotel Toronto and she wants to mislead this Court by stating that she was ignorant of the consequences of a criminal charge being laid.

As stated in my earlier decision on the motion, the first two elements of malicious prosecution have been established. First, the criminal proceedings were initiated by the defendant, Ms. Su, …

… The Court finds the police did not act unreasonably because Constable Lorne Bass, stated under oath, that as a police officer, they are obliged to take reports unless the complainant is visibly intoxicated or the statement is clearly inconsistent.

[21] In her ruling with respect to the first element on the summary judgment motion the deputy judge stated the following:

… For the claim of malicious prosecution to succeed, it must be established that first, the proceeding must have been initiated by the defendants. Constable MacDonald from Division 52 testified under oath that the defendant, on her volition, came to Division 52, waited until an officer became available and provided a statement to Police Officer Lorne Bass. The first component of the test for malicious prosecution has been met.

[22] In Kefeli v. Centennial College of Applied Arts and Technology (2002), O.J. No. 3023 (Ont. C.A.) [In chambers]. Simmons J.A. identified some of the indicia of exceptional circumstances where a private citizen may be found to have initiated a prosecution for the purposes of an action in malicious prosecution. At paragraph 24 she stated:

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 proceeding by the professional prosecutor, either by furnishing information he knew to be false or by withholding information that he knew to be true or both.

[23] With respect to the first indicia the reasons of the deputy judge illustrate that she made a specific finding of fact that the appellant intended that the respondent be prosecuted notwithstanding the appellant’s denial in her evidence that she intended to have the respondent prosecuted. However, that finding is not determinative of the issue as the reasons of the deputy judge as well as her ruling on the motion for summary judgment appear to indicate.

[24] I adopt the analysis of Wilton-Siegel J. in Mirra v. Toronto Dominion Bank, [2004] CarswellOnt. 1716 where at pp.92-95 he stated the following:

… “The applicable law with respect to the first element of malicious prosecution, the initiation of criminal proceedings, can be summarized briefly. To succeed in the action, the Plaintiff must satisfy the court on a balance of probabilities that the TD Defendants actually procured the use of the power of the State to hurt the Plaintiff by initiating the criminal proceeding. On the other hand, it is clear that no responsibility is incurred by a private citizen who confines his conduct to bringing before some proper authority information which he or she does not disbelieve even though in so doing, he or she hopes that a prosecution will be initiated if the prosecution is actually instituted as a result of independent discretion on the part of that authority”.

… “While I have considerable sympathy for the position of the Plaintiffs, I have concluded that the Plaintiffs have not established that the TD Defendants initiated the criminal proceedings in this case. The police were capable of conducting an independent investigation and clearly exercised independent discretion with respect to the commencement of legal proceedings. As to the exercise of discretion with respect to the laying of charges, the facts are clear that the TD Defendants took no part in the decision to charge Adolfo and were not consulted prior to the laying the charges”.

[25] In my view, it was incumbent on the deputy judge not only to consider whether the complainant desired or intended a prosecution to occur but also, in that context, to consider whether the respondent established that the police were either incapable of conducting an independent investigation or did not exercise independent discretion with respect to the commencement of legal proceedings. As will be seen, the deputy judge gave no consideration to this factor whatsoever.

[26] With respect to the second indicia Police Constable Bass testified inter alia that the complainant seemed truthful, consistent and sincere on recounting her version of events. She expressed a desire that a prosecution be commenced. She also supplied the names of three witnesses to the incident. Bass prepared an occurrence report and provided the report and his notes to Detective Constable MacDonald for investigation. Constable MacDonald assessed the occurrence report, the notes provided and obtained statements from the three witnesses whose names had been provided by the appellant. He testified that he conducted an independent investigation. He had no further contact with the appellant. He formed an independent view that the statements from the witnesses “dovetailed” with Bass’ notes and the report. He testified that he concluded that he had reasonable and probable ground to charge the respondent with assault.

[27] In Pate v. Galloway, Cavendish and Harvey (Township), [2011] CarswellOnt. 7802 (Ont. C.A.) Simmons J.A. stated at pp.47-49:

… “The Trial Judge’s third error relates to the first step in the test for malicious prosecution – namely, the Plaintiff must prove that the prosecution was initiated by the Defendant. It is well-established that a Defendant may be found to have initiated a prosecution even though the Defendant did not actually lay the information that commenced the prosecution. Although this court has not determined all the factors that could in any particular case satisfy the element of initiation, it has held that a Defendant can be found to have initiated a prosecution where the Defendant knowingly withheld exculpatory information from the police that the police could not have been expected to find and did not find and where the Plaintiff would not have been charged but for the withhold”.

[28] In Pate, the trial judge made the following finding: “in the end, the decision to prosecute Mr. Pate was a decision of the investigating police officers ... the police in this instance had the ability to undertake a meaningful investigation and exercise their discretion to prosecute or not.”

[29] Simmons J.A. observed that this finding “If unimpeachable, is fatal to the claim for malicious prosecution”.

[30] In my view, there was abundant evidence upon which the trier of fact could form the view that the police had conducted an independent investigation and had exercised an unfettered discretion in laying the assault charge. Apart from stating that the police acted reasonably in taking the appellant’s report the deputy judge gave no consideration to this crucial factor. In my view she erred in law in not doing so. It was incumbent upon the deputy judge to consider whether an independent investigation was undertaken and whether the police had exercised an unfettered discretion in laying the assault charge. The failure to do so constitutes reversible error on the crucial issue of who initiated the prosecution warranting a new trial.

[31] With respect to the third indicia the deputy judge was required to consider whether the respondent had established on a balance of probabilities that the appellant had procured the institution of the prosecution by furnishing information that he knew to be false.

[32] On this issue, in her reasons for judgment the deputy judge stated the following:

The defendant has failed to establish on a balance of probabilities, that her statements were truthful and accurate regarding the plaintiff’s behaviour.

[33] There are two initial difficulties with this statement. First, the deputy judge has reversed the onus of proof and second there is no specific finding that she gave a false statement with respect to the alleged assault. The third and most important difficulty is that the deputy judge must consider whether the prosecution was procured because of the false statement in circumstances where an independent investigation by the police was unavailable and where the police did not exercise an unfettered discretion in laying the charge.

[34] In Roger St. Jacques v. Doyle, [2008] CarswellOnt. 1270 Ferrier J. stated:

The Appellant cannot establish any of the indicia referred to in Kefeli. In particular, even if he had lied to the police to procure a prosecution against the Appellant. On the evidence the appellant cannot do.

[35] The evidence to which Ferrier J. referred is found at para. 10:

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.

[36] Once again the veracity of the appellant’s statements as a factor in processing the prosecution must be considered in the context of whether an independent investigation was conducted and whether the discretion of the police in laying the charge was in any way fettered. Unfortunately, the deputy judge did not do so.

[37] I conclude that the deputy judge erred in law in considering the threshold issue of whether the prosecution was initiated by the appellant and that according there must be a new trial.

[38] As there must be a new trial I wish only to briefly comment on the second issue raised by the appellant, namely, reasonable and probable ground and also with respect to the introduction by the deputy judge into her consideration of the tort of malicious prosecution of a fifth element, namely “unequal relationship” in order to provide some guidance to the deputy judge who will conduct the new trial.

[39] With respect to the so called fifth element I am not aware of any authority that has added a fifth element to the tort of malicious prosecution since the decision of the Supreme Court in Nelles, supra.

[40] With respect to the issue of reasonable and probable grounds the deputy judge found that the appellant did not have reasonable and probable grounds. This finding is premised on the appellant having initiated the prosecution. As I have determined that the deputy judge erred in law in determining the first element it follows that the deputy judge could not have properly determined the issue of reasonable and probable grounds as both issues must be considered either with respect to the appellant or the police.

[41] For the reasons outlined above the appeal is allowed and I order a new trial before another deputy judge of the small claims court. If the parties cannot agree as to costs brief written submission may be made through the Divisional Court Office within 21 days of the release of this decision.

THEN J.

RELEASED: October 1, 2014

CITATION: Su v. Chowdhury, 2014 ONSC 5730

DIVISIONAL COURT FILE NO.: 232/13

DATE: 20141001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N :

YI JING SU

Defendant

(Appellant)

– and –

ABUL NOWSHAR CHOWDHURY, also known as BABEL ABUL NOWSHAR CHOWDHURY

Plaintiff

(Respondent)

REASONS FOR JUDGMENT

THEN J.

RELEASED: October 1, 2014