Court of Appeal for Ontario
Date: July 10, 2018 Docket: C63346
Judges: Strathy C.J.O., Feldman and Brown JJ.A.
Between
Gloria Payne, Hilary Payne and Laura Munro (personally and as Litigation Guardian for Tara Munro and Shane Munro), minors
Plaintiffs (Appellants)
and
Christine Mak, Mike Owens, Eerik Randsalu, The Office of the Fire Marshal, Richard Cote, Windsor Police Services Board, Richard Marr, Windsor Fire and Rescue Services Department, Mario Sonego, The Corporation of the City of Windsor
Defendants (Respondents)
Counsel
Raymond G. Colautti and Anita Landry, for the appellants
Sheila C. Handler and Paul Shand, for the respondents, Richard Cote, Windsor Police Services Board, Richard Marr, Windsor Fire and Rescue Services Department, Mario Sonego and The Corporation of the City of Windsor
Jeremy Glick and Heather Burnett, for the respondents, Christine Mak and Mike Owens
Heard: June 15, 2018
On appeal from: the judgment of Justice Thomas A. Heeney of the Superior Court of Justice dated January 16, 2017, with reasons reported at 2017 ONSC 243.
Reasons for Decision
Strathy C.J.O.:
[1] Introduction
[1] The appellants appeal the dismissal of their action alleging negligent investigation, malicious prosecution, abuse of process and Charter damages, arising out of the respondents' investigation of a fire at a house in Windsor, Ontario, which the appellants rented to university students.
[2-6] Background Facts
[2] The appellants purchased a house on Mill Street, near the University of Windsor, in 1996 (the "Mill Street house" or the "house"). It was a two-storey building with a basement and a loft above the second floor. There were seven bedrooms, which the appellants rented to students on an individual basis.
[3] The Mill Street house was classified by the City as a "duplex", although it was clearly not one. Following a previous fire at the house in 1999, a Fire Prevention Officer identified several violations of the provisions applying to duplexes in Ontario Regulation 388/97, passed under the Fire Protection and Prevention Act, 1999, S.O. 1999, c. 4 (the "Fire Code"). The officer prepared a report noting the violations and requiring compliance by the owners. The appellants never received the report. The City did not follow up with the appellants to confirm the status of the Mill Street house.
[4] After the 1999 fire, the appellants continued to rent the seven bedrooms to individual occupants. By early 2006, there were five individuals living in the house. On the night of January 25, 2006, one resident intentionally started a fire. There were five people in the house at the time of the fire: four residents and one guest.
[5] The fire spread quickly throughout the main floor and up an open staircase to the second floor, and then to the loft. The evidence indicated that the fire separations protecting the main floor bedroom were not up to the standards prescribed by the Fire Code. The guest, who was trapped in the main floor bedroom, suffered critical injuries as a result.
[6] The evidence also indicated that the fire spread rapidly up to the second floor and the loft, because the stairway was open and unprotected. The occupants of one second floor bedroom and the loft were unable to escape the fire by means of the stairway. Since no other fire escape was accessible, they were forced to jump from the roof to the ground and were injured. Two other residents escaped without injury.
[7-13] Investigation and Charges
[7] The respondent, Detective Richard Cote ("Cote"), an employee of the Windsor Police Services Board, led a police investigation into the fire. Cote was assisted by the respondents Mike Owens and Christine Mak of the Office of the Fire Marshal (the "OFM"), and the respondent Richard Marr of the Windsor Fire and Rescue Services Department. The respondent Mario Sonego was the Chief Building Official for the City of Windsor (the "City") at the time of the fire.
[8] The investigation revealed that the Mill Street house was being used as a boarding, lodging and rooming house despite its classification in City records as a duplex, and that the house breached a number of requirements in s. 9.3 of the Fire Code applicable to boarding, lodging and rooming houses. These included the absence of a fire separation between the first and second floors, allowing the rapid spread of fire, inadequate fire separations between the rooms, and insufficient protection in stairways.
[9] Given the breaches of the Fire Code, the extensive damage and the severity of the resulting injuries, Owens directed Cote's attention to s. 436 of the Criminal Code. That section, which is described in the marginal note as "arson by negligence", provides:
(1) Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.
(2) Where a person is charged with an offence under subsection (1), the fact that the person has failed to comply with any law respecting the prevention or control of fires or explosions in the property is a fact from which a marked departure from the standard of care referred to in that subsection may be inferred by the court.
[10] Cote undertook a criminal investigation in relation to the appellants regarding possible charges of arson by negligence. He swore in the Information to Obtain a search warrant that he had reasonable and probable grounds to believe that they were guilty of an indictable offence. Following his investigation, Cote charged the appellants with arson by negligence contrary to s. 436.
[11] The charge against Gloria Payne was subsequently withdrawn when it became clear that she was not involved in the operation of the Mill Street house and her husband Hilary Payne admitted that he had control of the premises. The charges against Mr. Payne proceeded to a preliminary inquiry.
[12] The preliminary inquiry judge found that there was insufficient evidence to make out the essential elements of the offence of arson by negligence. He found that there was no causal link between the spread of the fire and the resulting bodily harm. Further, the judge was not satisfied that Mr. Payne possessed the requisite mens rea. The confusion over the classification of the Mill Street house as a duplex or a boarding, lodging and rooming house, and the failure of City employees to notify the appellants that the Mill Street house was operating contrary to the Fire Code, meant that Mr. Payne was not morally blameworthy. The preliminary inquiry judge discharged him.
[13] The appellants subsequently brought this action alleging negligent investigation, malicious prosecution and abuse of process against the individual respondents and seeking to hold their employers (the OFM, the Windsor Police Services Board, the Windsor Fire and Rescue Services Department, and the City) vicariously liable. The appellants also sought s. 24 damages for violations of their s. 7 Charter rights.
A. The Trial Judge's Reasons
[14] The trial judge considered as a threshold issue whether he was bound by the factual findings of the preliminary inquiry judge. He concluded that he was not. Cote, Owens and Mak were simply witnesses at the preliminary inquiry. The other respondents did not participate in the preliminary inquiry at all. Moreover, the evidentiary record at the preliminary inquiry was considerably different than at trial.
[15] The trial judge proceeded to consider whether the elements of the torts of malicious prosecution and abuse of process had been proven. The appellants argued that the City and the OFM pressured Cote to lay criminal charges against them for the improper purposes of discouraging landlords from renting houses to students and "cracking down" on illegal student housing.
[16] The trial judge found that Cote acted independently in charging the appellants. There was no evidence that anyone pressured him to lay the charges. The respondents had acted in good faith, without malice or negligence. He found as a fact, at para. 70, that Cote laid the charges "because he honestly concluded that he had reasonable and probable grounds to believe that an offence had been committed, and not for any ulterior or improper purpose, nor as a result of any malice towards the plaintiffs."
[17] He came to similar conclusions with respect to Owens and Mak, finding that there was no evidence that they desired or intended that the plaintiffs be charged, nor that they subverted the investigation, and indeed that they acted in good faith in the execution of their duties. He found that this was a complete defence to all personal claims against them and dismissed the action against them in its entirety.
[18] Given the trial judge's finding that no malice had been proven, he dismissed the appellants' claims based on malicious prosecution and abuse of process. No appeal is taken from that disposition.
[19] The trial judge then turned to the appellants' Charter claim. The appellants argued that the police were liable for a breach of their s. 7 rights for proceeding with charges without reasonable and probable grounds, even in the absence of malice.
[20] The trial judge noted that the fatal flaw in the appellants' Charter claim was that they had brought it against individual defendants and not against the state. Further, he found that the appellants were "attempting to advance a malicious prosecution claim in the guise of a s. 24 Charter claim, in an effort to get around the clear requirement that malice be proven." Finally, the appellants' Charter claim rested on the argument that the laying of the charges was arbitrary state action because the Fire Code definition of a boarding, lodging and rooming house was vague. The judge disagreed. He found that the definition is "capable of being understood by an ordinary person based on the plain language used and the application of common sense." He dismissed the appellants' Charter claim.
[21] With respect to the appellants' claim of negligent investigation, the trial judge noted the general rule that expert evidence is required to determine professional negligence. There was no evidence before him as to the prevailing standard of care, nor any evidence that Cote had breached that standard. However, the trial judge noted that "[t]he requirement of reasonable and probable grounds for arrest and prosecution informs the standard of care applicable to some aspects of police work, such as arrest and prosecution": Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 55. Since the issue of whether Cote had reasonable and probable grounds to believe that the appellants were guilty of arson by negligence was a nontechnical matter within the knowledge and experience of the ordinary person, it fell within the exception to the rule requiring expert evidence.
[22] The trial judge considered whether Cote had reasonable and probable grounds to believe that the appellants had committed arson by negligence contrary to s. 436 of the Criminal Code.
[23] The judge was satisfied, on all the evidence, and found as a fact that the Mill Street house was a "boarding, lodging and rooming house" within the meaning of s. 9.3 of the Fire Code, which applied to the house. Cote had reasonable and probable grounds to believe: (a) that the appellants owned the Mill Street house at all material times; (b) that s. 9.3 of the Fire Code applied to the house because it was being operated as a boarding, lodging and rooming house; (c) that a marked departure from the standard of care could be inferred from the appellants' failure to comply with s. 9.3 of the Fire Code; and (d) that this marked departure was a cause of the spread of the fire, which in turn caused the damage or injury.
[24] The trial judge concluded that Cote's belief that he had reasonable and probable grounds to lay charges against the appellants under s. 436 was both subjectively and objectively justifiable in the circumstances of the case. This was not negated by the absence of evidence of the appellants' "moral blameworthiness". Cote had reasonable grounds to believe the elements of the offence existed. He did not need to go beyond that assessment. The trial judge noted that Cote was not required to establish a prima facie case for conviction before laying the charges: R. v. Storrey, [1990] 1 S.C.R. 241, at p. 251.
[25] The trial judge held that the failure to prove that charges were laid absent reasonable and probable grounds was fatal to the appellants' claim for negligent investigation. Accordingly, he dismissed the claim against the individual respondents for negligent investigation. It followed that the vicarious liability claims against their employers were also dismissed.
[26] In the result, the trial judge dismissed the appellants' action in its entirety.
B. The Parties' Submissions
[27] Against this background of findings of fact firmly grounded in the evidence, the appellants acknowledge that the issue in this appeal boils down to whether Cote had reasonable and probable grounds to charge them with arson by negligence.
[28] The appellants assert that reasonable and probable grounds did not exist, because Cote had no evidence of mens rea or moral culpability. They clearly had nothing to do with the origin of the fire. They reasonably believed that they had observed all applicable laws and reasonably relied on prior inspections and the City's classification of the Mill Street house as a duplex. Cote, they say, knew or ought to have known that they believed that the house complied with the Fire Code. They received no notice that it had been "re-classified" as a boarding, lodging and rooming house, to which more stringent provisions of the Fire Code applied. This was particularly the case for Mrs. Payne, who was simply an owner of the house.
[29] The respondents submit that the appellants conflate what is required in order to obtain a conviction with what is required to charge an accused in a case such as this. They say the appellants fail to consider the appropriate mens rea for a penal negligence case. They rely on R. v. Beatty, 2008 SCC 5, [2008] 1 SCR 49, for the proposition that a modified objective test applies. If there is a finding of a marked departure from the standard of care that a reasonable person would use, the trier of fact may draw the necessary inference of mens rea, subject to any evidence that may be introduced as to the accused's actual state of mind or capacity to appreciate the risk.
C. Analysis
[30] The trial judge's factual findings are reviewable on a palpable and overriding error standard and are entitled to deference. Whether those facts are sufficient in law to constitute reasonable and probable grounds is reviewable on a correctness standard: see Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, at paras. 43-45, referring to R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Anang, 2016 ONCA 825, at para. 13.
[31] It is well-settled that a police officer's personal belief that there are reasonable and probable grounds is not sufficient to arrest and charge an individual. It must be objectively established that a reasonable person standing in the shoes of the officer would have believed that reasonable and probable grounds existed to make the arrest: see R. v. Storrey, above, at p. 250.
[32] The trial judge set out the elements of the offence of arson by negligence at paras. 113-116 of his reasons. To establish the actus reus of the offence, the Crown must prove beyond a reasonable doubt that:
(a) the accused owned or controlled the property in question;
(b) the accused's behaviour represented a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions; and
(c) that the culpable behaviour was a cause of a fire, or of its spread, or of an explosion causing damage.
[33] The trial judge noted that it was not necessary for the Crown to prove that the marked departure from the standard of care actually caused the fire. It was sufficient that the Crown prove beyond a reasonable doubt that the marked departure of the owners was either a cause of the fire, or a cause of the spread of the fire, which in turn caused damage or injury.
[34] Moreover, the trial judge noted that subsection (2) provides that a marked departure from the standard of care may be inferred by the court where the owner fails to comply with any law respecting the prevention or control of fires – in this case, the Fire Code.
[35] The leading case on s. 436 is the decision of this court in R. v. Harricharan (1995), 23 O.R. (3d) 233 (C.A.), which was considered by the trial judge. The majority, Morden A.C.J.O. and Catzman J.A., agreed that the section imposes a duty to control the spread of a fire that, in turn, causes bodily harm or damage to property, even if the fire was originally caused by some agency other than that of the accused. The actus reus of the offence is an act or omission that is a breach of the duty to prevent or control the spread of fires. Morden A.C.J.O. noted, at para. 40, that "[t]he accused, as a result of a breach of the duty, may be 'a cause' of the spread of a fire that, in turn, causes bodily harm or damage. He is, therefore, 'a cause' of a fire that causes injury or damage." All three members of the court, Morden A.C.J.O., Catzman and Abella JJ.A., agreed that the Crown must prove a causal connection between the accused's breach of duty, the resulting spread of the fire and the bodily injury or damage to property.
[36] The appellants say that Cote did not have actual or objectively reasonable grounds to charge them with the offence, because he knew or ought to have known that they did not have the requisite mens rea. Cote, they say, failed to consider whether they knew or ought to have known that the house violated the Fire Code.
[37] This raises the issue of the requisite mens rea in negligence-based criminal cases such as this.
[38] In R. v. Beatty, above, a case dealing with the offence of dangerous operation of a motor vehicle (s. 249(4)), the Supreme Court of Canada confirmed that the modified objective test remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. Charron J., who gave the majority judgment, summarized the test in terms of both the actus reus and the mens rea of the offence.
[39] Charron J. defined the actus reus by the words of the statute. The trier of fact was required to be satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was "dangerous to the public, having regard to all the circumstances…": see Beatty, at para. 43.
[40] With respect to the mens rea, Charron J. stated that in making the objective assessment, the trier had to be satisfied on the basis of all the evidence, including any evidence about the accused's actual state of mind, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. If an explanation is offered by the accused, then in order to convict the trier must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused: Beatty, at para. 43.
[41] She noted, however, that the requisite mens rea can be satisfied by applying the modified objective test. Unlike offences that can only be committed if the accused has a subjective mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind such as intent, recklessness or willful blindness. Charron J. noted, at para. 48:
[W]hile proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a "marked departure" from that norm, the offence will be made out.
[42] McLachlin C.J. who, with Binnie and LeBel JJ., concurred in the result, made the following important observation about the elements of the offence, at para. 58:
The jurisprudence of this Court offers assistance on what constitutes the actus reus and mens rea of dangerous driving and how the two elements of the offence should be described. R. v. Hundal, [1993] 1 S.C.R. 867, confirmed in R. v. Creighton, [1993] 3 S.C.R. 3, indicates that the characterization of "marked departure" from the norm applies to the actus reus of the offence, and that the mens rea of the offence flows by inference from that finding, absent an excuse casting a reasonable doubt on the accused's capacity. [Emphasis added.]
[43] McLachlin C.J. referred again, at para. 62, to her majority decision in R. v. Creighton. In that case, at pp. 73-74, McLachlin C.J. set out a line of inquiry for cases of penal negligence. The first question is whether the actus reus is established. The actus reus will be established where the negligence constitutes a marked departure from the standards of the reasonable person in all the circumstances of the case. She continued:
The next question is whether the mens rea is established. As is the case with crimes of subjective mens rea, the mens rea for objective foresight of risking harm is normally inferred from the facts. The standard is that of the reasonable person in the circumstances of the accused. If a person has committed a manifestly dangerous act, it is reasonable, absent indications to the contrary, to infer that he or she failed to direct his or her mind to the risk and the need to take care. However, the normal inference may be negated by evidence raising a reasonable doubt as to lack of capacity to appreciate the risk. Thus, if a prima facie case for actus reus and mens rea are made out, it is necessary to ask a further question: did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? If this further question is answered in the affirmative, the necessary moral fault is established, and the accused is properly convicted. If not, the accused must be acquitted. [Emphasis added.]
[44] Turning to the offence of arson by negligence, the actus reus is defined in s. 436(1) as a "marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions". And subsection (2) contains a statutory inference that the failure to comply with any law respecting the prevention or control of fires or explosions in the property is a fact from which a marked departure from the standard of care may be inferred. If the requisite marked departure, aided by the statutory inference, is present, it is reasonable for the trier to infer that the accused failed to direct his or her mind to the risk and to the need to take care. It remains open, of course, to point to other evidence or an explanation of the accused's conduct, to raise a reasonable doubt as to whether a reasonable person in similar circumstances would have been aware of the risk. I agree with the respondents' submission that the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the position of the accused would have been aware of the risk created by the accused's conduct. And, if there is no such evidence, to convict.
[45] Faced with the appellants' ownership of the house, and in the case of Mr. Payne, his control of the house, the terms of the Fire Code, the evidence of their breach and the statutory inference of a marked departure from the standard of care, Cote had reasonable and probable grounds with respect to all of the elements of the offence, including both actus reus and the mens rea. The marked departure from the norm flowing from the statutory inference demonstrates sufficient blameworthiness to support penal liability: see Beatty, at para. 36.
[46] As it happened, Mr. Payne was discharged at the preliminary hearing, apparently on the basis that there was no evidence that he had the necessary mens rea because there was no evidence that he had ever been informed that the house was classified as a boarding, lodging and rooming house or was otherwise operating contrary to the Fire Code. Whether that determination was correct, in light of the statutory inference, is not before us. What it does illustrate is that notwithstanding the objectively dangerous conduct and the inferences, statutory or otherwise, flowing from it, it remains open to an accused to point to evidence raising a reasonable doubt about whether a reasonable person in his or her position would have been aware of the risk created by that conduct.
[47] Based on the evidence before him and the statutory inference, Cote had reasonable and probable grounds to believe that the appellants had committed an offence under s. 436. He had no obligation to determine whether the charge would succeed at trial. He was not required to evaluate the evidence to a legal standard or to make legal judgments. Nor was he required to exhaust all possible investigations, to interview all potential witnesses prior to arrest, to obtain the accused's version of events or determine that the accused had no valid defence to the charge, before being able to establish reasonable and probable grounds: Tremblay v. Ottawa (Police Services Board), above, at para. 60, referring to 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241 (C.A.).
[48] In sum, the trial judge gave comprehensive and cogent reasons for his conclusion that Cote had reasonable and probable grounds to charge both Hilary and Gloria Payne under s. 436 of the Criminal Code. The appellants have demonstrated no palpable and overriding error in his findings of fact, which fully support the existence of reasonable and probable grounds to arrest. This conclusion applies to both Mr. and Mrs. Payne, who were statutorily liable as joint owners of the house. Once Hilary Payne admitted that he had control of the premises, the charges against his wife, Gloria Payne, were withdrawn. This was reasonable in the circumstances.
D. Costs
[49] The appellants seek leave to appeal the trial judge's costs awards of $260,000 in favour of the Windsor defendants and $231,100 to the OFM defendants. They submit that the costs were disproportionate, having regard to the trial judge's assessment of damages at approximately $150,000.
[50] It is well-settled that an appellate court should not interfere with a trial judge's costs award unless the judge has made an error in principle or the award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
[51] There are no such circumstances here. While the costs were substantial, a high degree of deference should be given to the trial judge who identified the relevant principles, observed the conduct of the trial, considered offers of settlement and counter-offers made by the parties at various times and was well-positioned to determine the scale and quantum of costs.
[52] He noted that at the outset of trial, the plaintiffs claimed damages of $4.7 million, although this was reduced to approximately $500,000 by the time of closing addresses. The respondents had to defend the action based on what was claimed, not on what ultimately might be awarded. Moreover, the plaintiffs had made unfounded allegations of misconduct and bad faith against the defendants, who were public servants.
[53] The reasonable expectations of the parties are always significant in the award of costs. Here, at the outset of the trial, the trial judge asked the parties for their estimate of their costs of a three-week trial. He received a response of $200,000 from both. These expectations reasonably informed his costs award.
[54] While I would grant leave to appeal costs, I would dismiss the appeal of costs.
E. Order
[55] For these reasons, I would dismiss the appeal, with costs fixed at $20,000, inclusive of disbursements and all applicable taxes, to the respondents Mak and Owens and $30,000, inclusive of disbursements and all applicable taxes, to the respondents the City of Windsor et al.
Released: July 10, 2018
"G.R. Strathy C.J.O."
"I agree. K. Feldman J.A."
"I agree. David Brown J.A."
Footnote
[1] Before trial, the claims against the Office of the Fire Marshal were dismissed on consent. The claim against Eerik Randsalu was dismissed on summary judgment, as were claims under ss. 8, 11(d) and 11(g) of the Charter, leaving only the s. 7 claim under the Charter. At trial, the claim for negligence was limited to negligent investigation and the claim for malfeasance in office was not pursued.
