Court of Appeal for Ontario

Date: October 3, 2017 Docket: C61827

Justices: Sharpe, Blair and Epstein JJ.A.

Between

Frank Roda Plaintiff (Appellant)

and

Toronto Police Services Board, Detective Timothy Kavanagh (Major Crime Unit), P.C. Bronagh Fynes, Ronald Hitti and Brian Rowsell Defendants (Respondents)

Counsel

Frank Roda, acting in person

Richard Oliver and Penelope Ma, for the respondents, Toronto Police Services Board and P.C. Bronagh Fynes

Heard and released orally: October 2, 2017

On appeal from: the judgment of Justice S.F. Dunphy of the Superior Court of Justice, dated January 29, 2016.

Reasons for Decision

[1] The appellant was arrested in 2006 and charged with a number of offences. He was committed for trial after a preliminary hearing in which the preliminary hearing judge concluded that the Crown had made out a prima facie case. He was found not guilty of all charges after a jury trial. The appellant then launched this civil claim against the Toronto Police Services Board, two police officers involved in the investigation, as well as his alleged victims. His claim was based on a number of torts including negligent investigation against the Police Services Board and the police officers. His claims against two of the defendants were dismissed or discontinued prior to the motion that is the subject of this appeal. The remaining defendants, the Toronto Police Services Board and one of the officers involved in the investigation brought this motion for summary judgment.

[2] The motion judge gave careful and detailed reasons concluding that several of the claims were statute barred and that the appellant had adduced no evidence capable of supporting the remaining claims for negligent investigation and perjury.

[3] The appellant has advanced nothing before us to question the motion judge's determination that several of the claims were statute barred. As for the claims for negligent investigation and perjury, we agree with para. 80 of the motion judge's reasons where he stated:

While termination of proceedings in favour of the plaintiff is a necessary condition to a negligent investigation claim it is not a sufficient one. Not every acquittal warrants a claim. There must also be a breach of the standard of care of a reasonable police officer in similar circumstances determined subject to all of the uncertainties and frailties of foresight and not resorting to the harsh perfection of hindsight.

[4] The appellant has adduced no evidence capable of satisfying that standard. We are not persuaded that the proposed fresh evidence should be admitted. It was available at the time of the summary judgment motion and in any event, it does not fill the void identified by the motion judge, namely, that the appellant has failed to adduce any evidence capable of supporting his allegations.

[5] Accordingly, the appeal is dismissed. Costs to the respondents fixed at $10,000 inclusive of taxes and disbursements.

"Robert J. Sharpe J.A."

"R.A. Blair J.A."

"Gloria Epstein J.A."