Court File and Parties
COURT FILE NO.: CV-16-298-00 DATE: 20190617 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SUSAN ELIZABETH EKS Plaintiff – and – KERRI LYNN TADEU Defendant
Counsel: David M. Adams and Matthew Taft, for the plaintiff Carlin McGoogan, for the defendant
HEARD: 27 and 28 February, 2019 at Kingston.
MEW J.
Reasons for Judgment
[1] An incident that occurred 25 September 2011 on Apollo Terrace, a residential street in Kingston, has dramatically changed the lives of two families.
[2] That afternoon, there had been an unpleasant, but seemingly concluded, neighbourhood incident involving Susan Eks and Kerri Tadeu. The police had been called and Susan Eks had been warned about her aggressive behaviour towards Ms. Tadeu.
[3] That night, someone attempted to set a fire by igniting gasoline that had been poured around the foundation of the Tadeu family home while Ms. Tadeu, her husband and three young children, were asleep inside. Fortunately, the fire did not take. Although there was some damage, it could have been much worse. No one was hurt. Vehicles belonging to the Tadeus were also vandalised.
[4] The perpetrator of these acts was Susan Eks. She was soon arrested and, although she initially denied responsibility, she ultimately pleaded guilty to two counts of mischief and one count of attempted arson endangering life. She received a suspended sentence and three years’ probation, the terms of which prohibited her from having any contact with Ms. Tadeu or her family and to not be within 200 metres of their persons, their place of residence, their place of employment or their place of education (the court was told that Ms. Eks and her husband had sold their house on Apollo Terrace and would be moving on 15 December 2012). As the sentencing judge put it, this term of the order “means you are not go on that street again after you have moved”.
[5] Ms. Eks and her husband did, indeed, leave Apollo Terrace. They moved to a new neighbourhood in another part of Kingston. Ms. Eks completed her sentence without further incident.
[6] It would seem, though, that the punishment meted out to Ms. Eks and her moving away were not enough from Ms. Tadeu’s standpoint.
[7] Indeed, Ms. Tadeu has subsequently described the suspended sentence as “basically a back door deal” and has said that “Eks made a back door deal with the judge”.
[8] And after the conclusion of the criminal proceedings, Ms. Tadeu sued Ms. Eks and her husband for damages arising out of the September 2011 incident (the action ultimately settled). Part of the relief claimed sought a certificate of pending litigation on the Eks residence on Apollo Terrace which, if granted, could have impeded its then pending sale (the CPL was subsequently transferred to the Eks’ new home so that the sale of the Apollo Terrace residence could proceed).
[9] Coinciding with the Eks’ move, individuals living in their new neighbourhood received copies of a newspaper article about Ms. Eks’ conviction marked “THIS IS YOUR NEW NEIGHBOUR”. Ms. Tadeu acknowledges responsibility for distribution of this newspaper article.
[10] Eleanor Redlich, and her husband, Ed, had been neighbours of Ms. Eks and her husband Uldis. The Redlichs still live on Apollo Terrace. Despite what happened in 2011, Ms. Redlich and Ms. Eks remained friends. After Ms. Eks had moved out of the neighbourhood, she and Ms. Redlich stayed in contact. They would talk frequently and Ms. Redlich and her husband would visit at the Eks’ new home. On a regular basis, the two women would go for walks. When the weather was not cooperative, they would meet at, and walk around, the Cataraqui Mall.
[11] Sometime during the months immediately following the completion of her sentence, Ms. Eks and her husband had dinner with Ed and Eleanor Redlich at their home on Apollo Terrace. This event, too, passed without incident.
[12] On 20 January 2016, Ms. Eks drove to Ms. Redlich’s house to pick her up to go for a walk at the mall. Ms. Tadeu was home at the time. Her attention was drawn to the Eks vehicle. Although there was no contact – direct or indirect – between Ms. Eks and Ms. Tadeu, Ms. Tadeu was very upset that Ms. Eks was back on the street. She contacted the police.
[13] After the police had investigated and determined that no offence had been committed and, accordingly, that no further action was required, Ms. Tadeu laid an information against Ms. Eks pursuant to s. 810 of the Criminal Code, R.S.C., 1985, c. C-46, alleging that Ms. Eks had engaged in “watching and besetting the household of Kerri Lynn Tadeu and she fears for her safety”, and seeking a peace bond.
[14] On 18 May 2016, the application for a peace bond was dismissed when Ms. Tadeu failed to show up in court.
[15] From the perspective of Ms. Eks, the attempt by Ms. Tadeu to obtain a peace bond was the last straw. She decided to sue.
[16] Ms. Eks commenced this action on 29 July 2016 alleging the following causes of action:
a. Malicious prosecution; b. Harassment; c. Intentional infliction of mental suffering; and d. Negligent infliction of psychiatric damage.
[17] Ms. Eks seeks the following by way of damages:
a. $100,000 for harassment; b. $50,000 for malicious prosecution; c. legal fees in the amount of $10,000 for legal fees spent defending the malicious prosecution; d. $150,000 for intentional infliction of mental suffering (or in the alternative, negligent infliction of psychiatric damage); and, e. unspecified amounts of punitive, aggravated and/or exemplary damages.
The statement of claim was subsequently amended to limit the total claim for damages to the $100,000 limit applicable to actions commenced under the simplified procedure as provided for in rule 76 of the Rules of Civil Procedure.
[18] Ms. Tadeu counterclaimed, alleging:
a. Intentional infliction of mental distress; b. Negligence; c. Nuisance; d. Intimidation; and e. Interference with enjoyment of property.
[19] In addition to general, punitive and exemplary damages, Ms. Tadeu seeks a permanent mandatory injunction requiring Ms. Eks to stay at least 500 metres away from the Tadeu home.
[20] Subsequent amendments to the pleadings reflect further incidents relied upon by the plaintiff which are alleged to have occurred after the action was commenced.
Issues
[21] Broadly stated, the issues that fall to be determined are as follows:
- Are the causes of action asserted by the parties recognised in law;
- To the extent that valid causes of action have been asserted, has liability been established; and
- If liability has been established, what are the appropriate remedies?
[22] As will be seen, there are some sub-issues which will be addressed during the course of my analysis.
Process
[23] The parties each submitted affidavits and testified in court in accordance with the summary trial procedure set out in rule 76.12 of the Rules of Civil Procedure.
[24] In addition, Ms. Tadeu was permitted to file an affidavit from, and call as a witness, Dr. Judith Pilowsky, who was qualified by the court to provide opinion evidence as a clinical psychologist.
Facts
[25] Before providing further details of the underlying facts, a brief description of the parties’ backgrounds may assist with placing what has happened between them in context.
Kerri Tadeu
[26] Kerri Tadeu is the married mother of four children. She is a registered nurse and is currently 40 years old.
[27] In 1990, when Ms. Tadeu was eleven years old, she was abducted and sexually assaulted by a now convicted serial child kidnapper, rapist and murderer. She kept what had happened to her a secret from everyone for over 20 years. However, in 2011, she saw a newspaper article about a convicted murderer who had been arrested for having committed similar crimes against other children in the same time period. She recognised him as her own abductor. She came forward and testified in court against this man.
[28] Ms. Tadeu wrote a book and has spoken publicly about her experience. She has worked in various aspects of victims of crime awareness.
[29] Up until 2015, Ms. Tadeu worked as a registered nurse at Providence Care Centre. However, she went on long term disability in 2015, and has not worked since then. She asserts that this was because of prior traumatic events in her life as well as the September 2011 incident involving Ms. Eks.
Susan Eks
[30] Ms. Eks is presently 69 years old (61 at the time of the September 2011 incident). She had no criminal record prior to her conviction in September 2012.
[31] The evidence at her sentencing hearing found that she had until then lived her life in a pro-social manner.
September 2011 Incident
[32] The confrontation that occurred on 25 September 2011 was instigated by Ms. Eks. She was apparently upset about the inclusion of her name on a Neighbourhood Watch list that she had received. Ms. Tadeau was the “block leader” for the local neighbourhood watch. By all accounts, Ms. Eks was intoxicated and aggressive. She verbally attacked Ms. Tadeu who was standing on her driveway, holding her young child. According to Ms. Tadeu, at the end of this confrontation, Ms. Eks warned her that “you put my name on a list again, and I’m going to fucking kill you”. Ms. Eks then left.
[33] After consulting a friend, Ms. Tadeu called the police. An officer soon arrived. After Ms. Tadeu told her what had occurred, the officer left her house and went to speak to Ms. Eks. The officer returned a short while later and told Ms. Tadeu that Ms. Eks had admitted to drinking and to the death threat but, as she claimed to be remorseful and had agreed to keep the peace, she had received a warning. Ms. Tadeu was invited to contact the police again if Ms. Eks caused any further trouble.
[34] When Ms. Tadeu woke up the next morning, she discovered that her family’s two vehicles had both been scratched. The police were called.
[35] During the course of their investigation, the police also discovered that there were black singe marks around the foundation of the Tadeu residence.
[36] Ms. Eks was arrested for uttering threats the previous evening. During a subsequent interview, after an initial denial, she admitted setting a fire at the Tadeu residence and causing damage to their vehicles. The police synopsis records that sometime following her verbal altercation with Ms. Tadeu, Ms. Eks:
… who had drank more alcohol, went to the residences of Kerri Tadeu and her family … At this location she scratched the two family vehicles causing extensive damage to the exterior of these vehicles. … [She] also took a can of gasoline from her own home and poured it along the north foundation of the Tadeu residence. She then set it on fire. The flames caused scorching to the side of the cement wall and blocks but didn’t cause any damage to the exterior of the home. The accused continued pouring gas on the lawn around the house and setting it on fire. Fortunately, the fires did not spread to any other areas.
[37] As reflected in the sentencing remarks of Justice J.C. Beaman on 28 September 2012, following the offence, Ms. Eks accepted that she had a number of psychiatric or psychological issues and an alcohol problem.
[38] Ms. Eks, in her evidence at this trial, stated that in 2011 she was very ill. She was in the midst of a very significant depression which was worsened by her unwise use of alcohol. She said that she does not seek to minimise the fact that her acts were reckless and dangerous.
[39] In her sentencing remarks, which turned out to be prophetic, Justice Beaman noted that the impact of Ms. Eks’ offences on her victims had been “enormous”. She stated:
Your actions have stripped away the complainants’ confidence and their sense of security, and have left them anxious and full of dread. They have been left to contend with the aftermath. It is legacy of hyper-vigilantism which will, no doubt, circumscribe their lives, but also the lives of their children.
[40] As already noted, Ms. Eks received a suspended sentence and a three year term of probation. In addition to a condition of non-association with Ms. Tadeu or her family, Ms. Eks was required to undergo an assessment, treatment and counselling, was banned from all alcohol use and required to perform significant community service. Ms. Eks also paid restitution of $18,000 for the property damage she had caused.
The Tadeu Action
[41] On 29 October 2012, Ms. Tadeu commenced civil proceedings against Susan and Uldis Eks. She sought general damages of $500,000, unspecified special damages, punitive and exemplary damages of $500,000 and aggravated damages in the amount of $500,000. She also sought an order attaching a certificate of pending litigation against the title to the Eks’ home on Apollo Terrace.
[42] In her statement of claim, Ms. Tadeu alleged that she had suffered post-traumatic stress disorder, severe anxiety and stress, relationship damage and dysfunction and loss, depression, aggravation, frustration, anger and inconvenience, particularly in participating in the criminal justice process as against Ms. Eks, sleeplessness and nightmares, tearfulness and irritability and general pain and suffering.
[43] Ms. Eks recalls being served with the civil claim as “devastating”. Her immediate reaction was to intentionally overdose on pills in an apparent attempted suicide. She thereafter spent two and a half weeks in a psychiatric ward. Uldis Eks believes that his wife blamed herself for everything and was overwhelmed.
[44] The 2012 action was resolved in 2014 by way of a financial settlement in favour of Ms. Tadeu. Ms. Tadeu executed a full and final release in favour of Susan and Uldis Eks.
New Neighbours are Warned
[45] Raymond Hubert is one of Ms. Eks’ new neighbours. His evidence is that within a few days of the Eks’ arrival into the neighbourhood, he responded to his doorbell one evening. When he opened the door, no one was there, but a copy of the newspaper article describing the criminal convictions of Susan Eks had been left. As previously indicated, written in marker at the top of the article was the phrase “THIS IS YOUR NEW NEIGHBOUR”. Mr. Hubert says that the article had been circulated in the neighbourhood as he and his wife had discussions with several of their neighbours about it.
The January 2016 Incident
[46] There are some differences in the accounts of what occurred on Apollo Terrace on 20 January 2016.
[47] Ms. Eks drove to Apollo Terrace on the morning of 20 January 2016. She had arranged to pick up Eleanor Redlich.
[48] Ms. Eks testified that she did not give consideration to the possible effect that her return to Apollo Terrace might have on Ms. Tadeu. Specifically, she did not consider whether her return might make Ms. Tadeu feel unsafe. Ms. Eks acknowledges that she was aware that Ms. Tadeu had made a victim impact statement at the time Ms. Eks was sentenced in which she said, amongst other things, that Ms. Tadeu had said that she remained fearful of Ms. Eks and that she felt Ms. Eks was a constant threat to her family. However, Ms. Eks had completed her probation in 2015 and, accordingly, that after that, there was no prohibition on her visiting Ms. Redlich.
[49] Both Ms. Eks and Ms. Redlich testified that, by prior arrangement, Ms. Eks stopped her vehicle at the end of Ms. Redlich’s driveway. Ms. Eks waited there for Ms. Redlich to come out of her house.
[50] The evidence of Ms. Eks is that while she was waiting for Ms. Redlich, she noticed one of the neighbours who lived across the street to the Tadeu house had left their residence and walked across the street to the Tadeu house.
[51] According to Ms. Eks, she then saw Ms. Tadeu emerge from her house, get into her vehicle and drive up the street towards where Ms. Eks was parked. She says that Ms. Tadeu drove past her, turned in the cul-de-sac, then passed her again on her way back into her driveway. She says that Ms. Tadeu was staring at her. There was no interaction between them and Ms. Eks claims that she made no attempt to engage with Ms. Tadeu in any way.
[52] After this, Ms. Redlich came out of her house and got in the passenger door of the Eks vehicle. Ms. Eks says that she remarked that she wondered what Ms. Tadeu had wanted. Ms. Redlich, however, says that Ms. Eks did not relate to her anything that may have occurred before Ms. Redlich got into the car.
[53] Ms. Tadeu’s version of events is different. She says that on the morning of 20 January 2016, she was in her house getting ready to go out. Collin Fitzgerald, a friend who had been staying at the Tadeu residence, had been outside warming up his vehicle. When Ms. Tadeu came outside, she noticed that there was a woman sitting in a vehicle parked across the street two houses down. In her affidavit, Ms. Tadeu describes the woman in the vehicle as being “in clear line of sight of my driveway, staring directly at me”. At or around this time, one of Ms. Tadeu’s neighbours, Trevor Blais, came across the street from his house and spoke with Ms. Tadeu (Mr. Blais was not called as a witness at trial). As a result of her conversation with Mr. Blais, Ms. Tadeu said that she looked back at the parked vehicle and “now saw that it was Susan Eks…she was still staring intently at me”. In cross-examination, Ms. Tadeu said that she did not stare back at the woman in the car. Indeed, she conceded that she could not identify Ms. Eks.
[54] Collin Fitzgerald was called as a witness. He is a retired Master Corporal who served in the Canadian Armed Forces for fifteen years. Whereas Ms. Tadeu, at various points in time, had located the car occupied by Ms. Eks as “two houses down”, “four houses down” or “80 feet away”, Mr. Fitzgerald’s affidavit placed the Eks vehicle 20 feet away. However, at trial, he said this was mistaken and that in fact, the Eks vehicle was 25-30 metres away from him.
[55] While still in the armed forces, Mr. Fitzgerald was diagnosed with post-traumatic stress disorder. He received an honourable discharge in 2012. Since then, he has encountered a number of mental health and legal difficulties. The Tadeu family have helped him with these personal issues. He was living with the Tadeu family at the time of the January 2016 incident.
[56] Evidence presented by the plaintiff at trial suggested that Mr. Fitzgerald is significantly indebted to Ms. Tadeu and her family, both financially and emotionally. Ms. Tadeu confirmed that she was a surety for Mr. Fitzgerald at the time of the January 2016 incident in relation to charges which he was facing at that time.
[57] Mr. Fitzgerald described how he locked eyes with Ms. Eks. He said that he was very aware of his surroundings and that the individual in the car had been staring at him quite intently. He said this made him uneasy. He maintained eye contact with her. He thought it might be a private investigator.
[58] Mr. Fitzgerald described how, once Ms. Tadeu had come out and realized that the occupant of the vehicle might be Ms. Eks, Ms. Tadeu was very upset.
[59] Neither Ms. Tadeu nor Mr. Fitzgerald corroborate Ms. Eks’ description of Ms. Tadeu getting into her vehicle and driving up to the end of the cul-de-sac, past Ms. Eks’ vehicle, and back.
[60] Although Mr. Fitzgerald described the woman he now believes to be Ms. Eks as staring intently at him, he offered no evidence that the woman stared intently at Ms. Tadeu.
Ms. Tadeu Calls the Police
[61] Shortly after seeing Ms. Eks in her vehicle on the street, Ms. Tadeu called the Chief of the Kingston Police Force. She was then referred, initially, to Police Constable Chris Gobeil. He recorded that Ms. Tadeu told him that earlier that morning, she had seen Ms. Eks sitting in her grey Kia “across the street from her house”. She said that Ms. Eks was staring at her. She told PC Gobeil that she (Ms. Tadeu) had been told by a neighbour that this was the third time recently that Ms. Eks had been on the street (this was not corroborated by the evidence at trial). PC Gobeil noted that Ms. Tadeu was very upset on the phone and difficult to understand. He told her he would make a report. His note records:
I further advised her that if she felt it was necessary, she could seek a S. 810 on [Ms. Eks] independent of any police action.
[62] The police undertook further investigation and satisfied themselves that Ms. Eks was no longer bound by any of the conditions of her probation. The following day, Constable Blair Watt spoke to Ms. Tadeu who was very upset and worried about the circumstances. He recorded:
Tadeu said she thought [Ms. Eks] was briefly staring at her yesterday morning to intimidate her, but couldn’t be certain of this. Tadeu said she feared for her family and is listing her house for sale. I calmed her the best I could and told her I would investigate further and advise her the outcome. I also explained that she could apply for Peace Bond, although that wouldn’t prohibit [Ms. Eks] from visiting her friend across the road.
[63] PC Watt also telephoned Ms. Eks. Portions of his report of that conversation are redacted. The unredacted portions disclose that PC Watt explained to Ms. Eks that her presence on Apollo Terrace made the neighbours feel afraid due what had happened in the past. He recommended to her that she make other arrangements to meet with her friend and strongly cautioned her not to look or gesture toward anyone’s house, especially Kerri Tadeu.
[64] Shortly after her outing with Ms. Redlich, Susan Eks was informed by her doctor that she was afflicted with Stage 4 lung cancer and that her prognosis was not positive. The same day, while she was waiting for her husband to return home to give him this devastating news, a police officer called (presumably this is the call described by PC Watt) and asked her whether she had been on Apollo Terrace the day before. Ms. Eks responded tersely that she had been there and that she was allowed on the street. It was a very brief conversation. She hung up on the officer. She disputes that there was a more extensive conversation.
Peace Bond Application
[65] On 22 January 2016, Kerri Tadeu attended before a justice of the peace in Kingston and swore an information attesting to the existence of reasonable grounds to fear that Ms. Eks would cause her personal injury or damage her property on account of a threat made on 20 January 2016 arising from “watch and besetting the household of Kerri Lynn Tadeu and she fears for her safety”.
[66] Later on 22 January 2016, Ms. Eks was served with a summons to appear. Ms. Eks was, to use her words, “shocked and devastated”. She felt nausea and disorientated. She retained a lawyer (the same lawyer who had represented her on the criminal charges).
[67] During the course of disclosure prior to the substantive hearing of Ms. Tadeu’s application, a short statement from her neighbour, Trevor Blais, was provided. There was, however, no mention at all of Mr. Fitzpatrick.
[68] After a number of adjournments (at the request of Ms. Eks), a hearing date was set for 18 May 2018. Ms. Tadeu did not appear. Her application was dismissed. As Justice of the Peace Coulas put it:
… this being the fourth appearance, still outstanding disclosure issue, the complainant is not present, this has been ongoing since February, it is now becoming a waste and an abuse of the court's time …
[69] Ms. Eks incurred legal fees of $3,220.50 defending the application.
[70] The following day, Ms. Tadeu attended at court, mistakenly believing that the hearing was to be held that day. She was informed that the application had been dismissed the previous day. Ms. Tadeu was very upset. She said that she fully intended to prosecute the peace bond proceeding and the sole reasons she did not attend on the hearing date was due to an inadvertent error which she had made recording the date.
[71] The evidence of Ms. Eks is that although she was relieved at the news of the dismissal of the peace bond application, she could not shake the belief that Ms. Tadeu would continue to pursue her, and that she would repeat the process or somehow see that Ms. Eks was charged again. She was entering what she described as “a very significant phase” of her cancer treatment, but was constantly distracted by her concerns about Ms. Tadeu.
[72] Ultimately, Ms. Eks determined that she had “no choice” but to take proceedings against Ms. Tadeu “to ensure that she couldn’t continue to hound me in this manner”.
[73] As previously noted, this action was commenced on 29 July 2016.
Further Developments
[74] Ms. Tadeu testified that after the dismissal of the peace bond application, she remained fearful that Ms. Eks would reattend at her property and attempt to cause harm to her. She provided as the basis for this fear not only the previous history of Ms. Eks’ criminal actions but, also, what Ms. Tadeu described as Ms. Eks’ ongoing “serious and possibly untreated mental health problems and her documented ongoing substance abuse problems”. She knew about some of these health issues because of disclosure that had been made during the course of this action.
[75] In the summer of 2017 – after this action had been commenced – Mr. Hubert saw several young people canvassing in the neighbourhood (it will be recalled that Mr. Hubert is a current neighbour of Ms. Eks). They were ringing doorbells and identifying themselves as private investigators. They were asking people in the neighbourhood if they wanted to speak about an incident involving Susan Eks and mentioning a fire having been set. A pocket folder was produced at trial containing a copy of The Whig Standard article about Ms. Eks’ conviction and sentencing, a brochure for the private investigation firm and a “To whom it may concern” letter indicating that the investigators would like to ask a few questions about “one of your neighbours” and continuing:
Attached you will find the article of interest to our discussion titled “ Arson attempt earns three years’ probation” which was published about Miss Susan Eks in October 2012.
[76] Ms. Tadeu acknowledges that she had retained the private investigation firm to do this.
[77] At around the same time, Mr. Eks began to notice that their garbage was no longer curbside, despite the fact that he had taken it out for pick up. He was confused about this until he observed a man attending and placing his household garbage in his vehicle. Ms. Eks also saw this. Mr. Eks confronted the man and found out that he was acting on instructions from Ms. Tadeu.
Effect of Events on Susan Eks
[78] Ms. Eks testified that since what she believes to be the baseless accusations brought against her by virtue of the peace bond application, she has been unable to achieve clarity in her mind. She says that she constantly worries about Ms. Tadeu and what she is trying to do to her. She says that she is moody, irritable, and anxious. The circumstances have put a strain on her relationship with her husband. She says that she simply cannot focus on anything but her anxiety and trepidation about “these issues”. This is despite the fact that she has beaten cancer.
Effect of Events on Kerri Tadeu
[79] Ms. Tadeu acknowledges that prior to what she describes as the “reattendance”, she had long been suffering from post-traumatic stress disorder. By 2015, this illness had made it impossible for her to continue to work. She was assessed by Dr. Judith Pilowsky, a registered psychologist with a focus on assessments and psychotherapy and trauma related to work, illness/disability, post-traumatic stress disorder, anxiety, phobias, stress and chronic pain.
[80] Dr. Pilowsky testified at trial. Her opinion was substantially based on what had been reported to her by Ms. Tadeu. Specifically, Dr. Pilowsky acknowledged that she had not reviewed Ms. Tadeu’s clinical notes and records prior to preparing her written report.
[81] Dr. Pilowsky concluded that Ms. Tadeu was in a highly vulnerable psychological state precipitated by the reattendance of Ms. Eks, which had stripped from Ms. Tadeu the sense of security that she had been able to regain post-arson. She concluded:
This highly resilient woman’s coping capacities have been exhausted and overwhelmed, constituting significant and ongoing emotional distress and hardship from which she will likely never fully recover.
[82] Although Dr. Pilowsky was not able to say, without looking at Ms. Tadeu’s records, whether Ms. Tadeu was already off work prior to the January 2016 incident (she was), she said that it would make no difference to her opinion when Ms. Tadeu went off work. She described what happened in 2016 as the “last straw”.
Analysis
[83] Both the plaintiff and the defendant feel deeply aggrieved about the other’s actions and the effect of those actions.
[84] Ms. Eks has gone from being an acknowledged perpetrator who, by her own admission, acted in a reckless and dangerous way towards Ms. Tadeu and her family, to seeing herself as a victim.
[85] I would observe, and Ms. Eks might, with the benefit of hindsight, now agree, that it was unwise for her to return to Apollo Terrace. Even just to pick up Ms. Redlich. By that point, Ms. Eks would already have known about the steps taken by Ms. Tadeu to “warn” Ms. Eks’ new neighbours about her.
[86] It is also understandable that Ms. Tadeu would have found it upsetting to see Ms. Eks on her street again. As Justice Beaman observed, the legacy left by Ms. Eks was one of hyper-vigilantism.
[87] Yet, by any standard, even taking into account Ms. Tadeu’s vulnerabilities, some of the steps taken by her have been extraordinary. Leafleting Ms. Eks’ new neighbourhood. Hiring private investigators to speak to neighbours. Hiring someone to pick up Ms. Eks’ garage (Ms. Tadeu acknowledged that she gave these instructions and that the garage was searched).
[88] Whether or not Ms. Tadeu’s behaviour is actionable, in responding to the threat she perceived, she has gone far beyond what a reasonable person would regard as appropriate or proportionate in the circumstances.
[89] The other observation that I would make at this juncture is that both of the parties to this litigation have faced challenges because of either their personal histories and their mental health challenges. Ms. Tadeu asserts that Ms. Eks would have been aware of her history as a result of having heard her extensive victim impact statement and having had disclosure of medical information through the discovery process. Similarly, Ms. Eks says that Ms. Tadeu would have been aware of the suicide attempt by Ms. Eks and of her own mental health challenges. Each accuses the other of knowing what the effect of their actions would be on the other party.
[90] While there are discrepancies in the evidence about what happened on Apollo Terrace on 20 January 2016, most of them are of little consequence for the purpose of resolving the legal issues raised. Suffice it to say at this juncture that I accept that Ms. Eks parked outside Ms. Redlich’s house and not closer to the Tadeu residence than that. And I find the evidence of Mr. Fitzgerald to be contrived and, thus unreliable.
Malicious Prosecution
[91] To establish the tort of malicious prosecution, a plaintiff must prove:
a. That the defendant initiated proceedings against the plaintiff; b. The proceedings were terminated in favour of the plaintiff; c. There was no reasonable and probable cause for the proceeding; and d. The defendant was actuated by malice, or a primary purpose other than the carrying of the law into effect.
See, generally, Nelles v. Ontario, [1989] 2 SCR 170 at par. 24.
[92] Laying an information against the plaintiff is sufficient to prove the first step of the test: Philip H. Osborne, The Law of Torts, 5ed (Toronto: Irwin Law, 2015, at p. 274). The laying of an information by Ms. Tadeu against Ms. Eks pursuant to s. 810 of the Criminal Code satisfies this branch of the test.
[93] The second branch of the test, namely termination of the proceedings in the plaintiff’s favour, is also satisfied. The plaintiff does not have to establish a judicial determination of innocence, but only the absence of a judicial determination of guilt. An acquittal, a discharge at a preliminary hearing, a withdrawal or a stay will all suffice: Miazga v. Kvello Estate, [2009] 3 SCR 339, 2009 SCC 51, at para. 54. It follows that a termination of the proceedings because of an irregularity of procedure will also be sufficient: Osborne at p. 274. In my view, this would include a dismissal of Ms. Tadeu’s application for a peace bond due to her non-appearance.
[94] The third branch – the establishment of a lack of reasonable and probable cause for the proceeding – has both a subjective and objective element. There must be an actual belief on the part of the prosecutor, of the existence of a state of circumstances that the person charged was probably guilty of the crime imputed: Nelles at p. 193 citing Hicks v. Faulkner (1878), 8 Q.B.D. 167, at p. 171.
[95] The plaintiff argues that Ms. Tadeu’s application for a peace bond was not the conduct of an ordinarily prudent and cautious person in her position. Not only could the circumstances not support the relief sought by her, but Ms. Eks had a valid purpose to be on Apollo Terrace on 20 January. Ms. Eks is adamant that she did nothing to intimidate or threaten Ms. Tadeu.
[96] While I accept that Ms. Eks had an innocent purpose when she came to Apollo Terrace on the day in question, I do not agree that Ms. Tadeu had a lack of objectively reasonable grounds to fear for her safety.
[97] Ms. Eks was the person who had set fire to Ms. Tadeu’s house and threatened her life. Ms. Tadeu’s subjective fear for her safety due to her history with Ms. Eks was objectively reasonable. Furthermore, the suggestion that she seek a peace bond was made by the police officer she spoke to. This renders her subsequent decision to seek one more objectively reasonable, a conclusion which is consistent with the decision in McKenna v. Boland, at para. 14, where the court held that a defendant was justified in starting a proceeding for a peace bond where her motivation was consistent with a desire for whatever protection a peace bond could offer due to her fear of the plaintiff.
[98] Accordingly, I find that the plaintiff has not established the third step of the test for bringing a successful claim for malicious prosecution.
[99] Even if I am wrong in my conclusion that Ms. Tadeu lacked a reasonable and probable cause, the plaintiff must still establish malice – the fourth step. Malice is a question of fact, requiring evidence that the prosecutor was impelled by an “improper purpose”: Nelles, at pp. 193-94; Miazga, at paras. 78-79.
[100] The proper purpose of a prosecution is to bring an offender to justice and to enforce the criminal law. An honest, albeit mistaken, belief of the existence of reasonable and probable grounds for obtaining a peace bond will negative any imputation of malice on the part of Ms. Tadeu.
[101] I find that Ms. Tadeu was motivated by her fear of Ms. Eks and a genuine concern for her safety and the safety of her family. Furthermore, Ms. Tadeu got the impression that she was justified in seeking a peace bond from the police officer she spoke with. While one could question her judgment and form the view (as I have) that she overreacted, her actions were at worse misguided, rather than motivated by an improper purpose.
[102] Accordingly, the plaintiff’s claim for malicious prosecution fails.
Harassment
[103] Relying on the trial decision in Merrifield v. Canada, 2017 ONSC 133, the plaintiff asserted a remedy based on the existence of a civil tort of harassment.
[104] Following the conclusion of the trial, the trial decision in Merrifield was overruled by the Court of Appeal: 2019 ONCA 205.
[105] The trial judge in Merrifield had recognised elements of an emerging tort of harassment which were similar to, but less onerous than, the elements of the established tort of intentional infliction of mental suffering. Whereas the tort of intentional infliction of mental suffering is an intentional tort, harassment would operate as a negligence based tort. The Court of Appeal concluded that while it did not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, the plaintiff in Merrifield had presented no compelling reason to do so: Merrifield, ONCA, at para. 53.
[106] Counsel were given the opportunity to make written submissions based on the Merrifield decision. Both counsel agreed that the effect of the Court of Appeal’s decision is to preclude Ms. Eks’ claim of harassment.
[107] The claim based on harassment therefore fails.
Intentional Infliction of Mental Suffering
[108] Both of the parties assert claims against each other for intentional infliction of mental suffering.
[109] There are three elements of the tort of intentional infliction of mental suffering:
a. Outrageous conduct by the defendant; b. An intention by the defendant to cause, or reckless disregard of causing, emotional distress; and c. Actual and proximate causation of a visible and provable illness resulting from the defendant’s outrageous conduct.
See, generally, Boucher v. Wal-Mart Canada Corp. (2014), 120 O.R. (3d) 481, 2014 ONCA 419, at para. 41; Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474.
(a) The plaintiff’s claim
[110] The plaintiff points to a number of actions by the defendant which, she argues, both individually and cumulatively, were intended to cause her mental suffering:
a. Going to Ms. Eks’ new neighbourhood, knocking on doors and “warning” them about Ms. Eks; b. Instituting criminal proceedings which were then dismissed for want of prosecution; c. Sending people into Ms. Eks’ new neighbourhood to canvass residents for information about Ms. Eks and to hand out flyers related to the 2011 arson; and d. Hiring a private investigator to remove and search through Ms. Eks’s household garbage.
[111] As I will now explain, Ms. Eks’ claim for intentional infliction of mental suffering should not succeed.
[112] When questioned about whether she knew that knocking on doors and leafleting Ms. Eks’ new neighbourhood would cause harm to her, Ms. Tadeu said that she had not looked at it from that perspective. Rather, she explained that she wanted to warn others about Ms. Eks’ crimes:
I would have felt guilty if Eks had committed similar crimes against her neighbours and I had not notified them. No family should have to go through what I did. I felt that one way, among others, to guard against Eks reoffending is for those who live near her, especially young families…to be informed and to be ever vigilant, as I have felt obliged to be.
[113] The first step of establishing intentional infliction of mental suffering requires a determination that the conduct complained of was outrageous.
[114] Given my findings on the malicious prosecution claim, it follows that the conduct of Ms. Tadeu seeking a peace bond cannot be regarded as “outrageous”.
[115] The initial communications with Ms. Eks’ new neighbours took place around the time that Ms. Eks was moving away from Apollo Terrace and into the new neighbourhood. This behaviour also occurred not long after Ms. Eks had been sentenced
[116] I take with a grain of salt Ms. Tadeu’s assertion of her altruistic purpose in “informing” the new neighbours about Ms. Eks. Rather, her actions have overtones of a form of vigilante justice. That said, though, the determination of whether conduct is “flagrant and outrageous” is an objective one, assessed from the standpoint of a reasonable bystander, aware of all the facts: Colistro v. Tbaytel, 2019 ONCA 197, at paras. 15 and 55.
[117] The Merriam-Webster Dictionary defines the adjective “flagrant” as “conspicuously offensive” and “so obviously inconsistent with what is right or proper as to appear to be a flouting of law or morality” and “outrageous” as “ exceeding the limits of what is usual” and “going beyond all standards of what is right or decent”. The Concise Oxford English Dictionary defines “flagrant” as “conspicuous” and “blatant” and defines “outrageous” as “ shockingly bad or excessive” and “very bold and unusual”. And in the context of breaches of an individual’s rights under the Charter of Rights and Freedoms, the term “flagrant” has been used in the sense of “glaring, scandalous, or conspicuously wrongful”: R. v. Harris (1987), 57 C.R. (3d) 356 at pp.25-26; R. v. Jones (1988), 24 BCLR (2d) 180 at para. 13.
[118] Assessed against this standard, while the hiring of private investigators to leaflet and canvas Ms. Eks’ new neighbourhood was an unwise and misguided action on the part of Ms. Tadeu, a reasonable person knowing the history might, objectively viewing what happened, and in all of the circumstances, determine that Ms. Tadeu’s response was excessive, ill-advised, disproportionate and even anti-social. But, in my view, a reasonable person would not conclude that her conduct was “flagrant and outrageous”.
[119] The removal and searching of garbage from Ms. Eks’ home is, however, in a different category. When it was put to Ms. Tadeu in cross-examination that she had hired someone to pick up the Eks’ garbage so that Ms. Tadeu could go through it, she made no attempt to justify her conduct. When pressed, she conceded that it might be upsetting to Ms. Eks.
[120] In my view, by the yardstick of any reasonable observer, even armed with all of the history, such behaviour was beyond the pale; it went beyond all standards of what is right or decent. It was both flagrant and outrageous. This is particularly so because it happened after this action had been commenced (albeit before the statement of claim was amended to expand the causes of action pleaded and the relief sought).
[121] The next step of the test for intentional infliction of mental suffering is to consider whether Ms. Tadeu’s conduct was calculated to harm Ms. Eks.
[122] It is not sufficient that Ms. Tadeu could, or should, have foreseen the possibility that Ms. Eks would suffer harm. In Boucher v. Wal-Mart Canada Corp., at para. 44, Laskin J.A., citing Piresferreira v. Ayotte (2010), 319 D.L.R. (4th) 665, 2010 ONCA 384 stated:
The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur.
[123] It has been held that it is not necessary for the defendant to have intended to produce a particular recognised psychiatric illness or to have known that it was substantially certain to follow. It is sufficient for the defendant to have known that psychological injury would have occurred or was almost certain to occur: Colistro at para. 23. The test is a subjective one, requiring evidence not only of foreseeability, but also reckless disregard. To quote Hoy A.C.J.O. in Colistro at para. 26, “The bar is necessarily high where a defendant is to be liable for all of the consequences of an intentional wrongful act”.
[124] In my view, Ms. Tadeu was not really considering the impact of her actions on Ms. Eks. She was motivated by fear and by a misplaced notion that it was right and proper for her to tell others about the dangers presented by Ms. Eks. Even had she known that her actions would inflict injury on Ms. Eks, her disregard of the effect was, in my view, misguided – she felt that her actions were justified by the need to protect the public from her – rather than reckless.
[125] I am prepared to accept the evidence of Ms. Tadeu that the leafleting and canvassing was not intended to cause Ms. Eks psychological injury.
[126] With respect to the removal and searching of Ms. Eks’ garbage, Ms. Tadeu did not offer any justification for her actions. Perhaps she was hoping to find something incriminating. She never stated what her intention was. But it appears to have been by chance that Mr. Eks saw an individual taking away his garbage.
[127] It is not known exactly how many times garbage was removed from the Eks residence on Ms. Tadeu’s instructions. Uldis Eks said in his January 2019 affidavit that approximately eighteen months ago, he had begun to notice that their garbage was no longer curbside, despite the fact that he had taken it out for pickup. While he could see that the neighbourhood pickup had not occurred, their garbage was gone. He continued:
I was confused until I observed a man attending our address and placing our garbage into his vehicle. My wife saw this as well. I confronted this man, whom I do not know, and he advised that he was acting on instruction from Kerri Tadeu and that he was going through it on her instruction. I protested but he advised there was nothing I could do to prevent this. This activity ceased after my confrontation.
[128] There is no evidence that the removal and sifting through of her household garbage was intended to harm Ms. Eks. Indeed, it seems likely that Ms. Tadeu’s intention was that the Eks would not find out that she had made arrangements to have their garbage removed and searched.
[129] Distasteful as I find this conduct to have been, it does not, in my view, meet the requirement of being calculated to harm Ms. Eks.
[130] Given my conclusion on the second element of the test for intentional infliction of mental suffering, it is not necessary for me to make a finding on whether Ms. Tadeu’s conduct has, in fact, caused the plaintiff to suffer a viable and provable illness. Suffice it to say that while Ms. Tadeu was aware of Ms. Eks’ psychiatric illnesses, as well as her suicide attempt, and that she would also have become aware, following the commencement of this action, of Ms. Eks’ struggle with cancer, the record does not provide sufficient evidence, viewed from an objective standpoint, that Ms. Tadeu knew that her conduct would result in visible and provable serious emotional distress on the part of Ms. Eks.
[131] As a result, although I find that certain aspects of Ms. Tadeau’s conduct have been flagrant and outrageous, Ms. Eks has not established the necessary elements of intentional infliction of mental suffering to establish a viable claim.
(b) Ms. Tadeu’s Counterclaim
[132] Ms. Tadeu’s claim for intentional infliction of mental suffering cannot succeed either.
[133] While it was, with the benefit of hindsight, unwise for Ms. Eks to have returned to Apollo Terrace, even for the seemingly innocent purpose of picking up her friend, her conduct does not rise to the level of being “flagrant and outrageous”. Nor was it calculated to harm the defendant.
[134] I accept the evidence of Ms. Eks that her sole purpose in going to Apollo Terrace on 20 January 2016 was to pick up Ms. Redlich so that the two of them could go for a walk at the Cataraqui Mall. Indeed, Ms. Eks and her husband had already visited the Redlichs for dinner on at least one occasion before the January 2016 incident.
[135] There is no evidence that Ms. Eks gave any thought at all to how Ms. Tadeu would react if she saw Ms. Eks back on her old street. Even if she had turned her mind to it, and even knowing (as she did) that Ms. Tadeu was emotionally fragile, it cannot be said that an objective observer would conclude that psychological injury was substantially certain to follow.
[136] Furthermore, even if I am in error on the second branch of the test for intentional infliction of mental suffering, Ms. Tadeu has not proved, on a balance of probabilities, that she has suffered psychological injury as a result of Ms. Eks coming onto Apollo Terrace on that one occasion. While, clearly, Ms. Tadeu was very upset, she was already at the time on long-term disability for post-traumatic stress disorder and had a long and well documented medical history of psychological illness.
[137] Dr. Pilowsky stated that she had been retained by Ms. Tadeu to provide an opinion on “how Ms. Tadeu’s psychological functioning has been impacted by being the victim of harassment and endangerment at the hands of her neighbour, Susan Eks, as the result of an incident when this individual re-attended on her street after being convicted of arson and being sentenced to probation”. She concluded that Ms. Tadeu suffered “a personality disintegration” as a response to Ms. Eks’ action. However, Dr. Pilowsky came to this conclusion without having the benefit of reviewing Ms. Tadeu’s medical records and she was seemingly unaware that Ms. Tadeu had already been on long-term disability for some period of time as a result of post-traumatic stress disorder.
[138] I am unable to conclude, based on the evidentiary record, that Ms. Tadeu suffered any new illness as a result of this actions of Ms. Eks.
Negligence and Nuisance
[139] Ms. Tadeu advances generic claims for “negligence, nuisance, intimidation, and interference with enjoyment of property”. Her counterclaim does not attempt to articulate what duty of care Ms. Eks owed to Ms. Tadeu and how that duty was breached.
[140] It is not sufficient to throw the words “negligence”, “nuisance”, “intimidation” and “interference with enjoyment of property” into a prayer for relief, but then not articulate what duty was owed. Instead, the pleading jumps straight to the actions of Ms. Eks, essentially, that she returned to the scene of her past crime and “behaved in a manner which she knew or ought to have known would be regarded as a form of intimidation”.
[141] I would add that the tort of intimidation, while recognised in law, is essentially a business tort (see Kelleher v. Langille-Westhaver, 2016 NSSC 200 at para. 33) and consists of (a) a threat by one person to use unlawful means – such as violence, or a tort or a breach of contract – so as to compel another to obey his or her wishes; and (b) the person so threatened must comply with the demand rather than risk the threat being carried into execution: Roth v. Roth (1991), 4 O.R. (3d) 740 at para. 22.
[142] In short, the claims under these headings are not made out. Nor were they seriously pursued in argument.
Injunctive Relief
[143] A summary of the approach governing claims for permanent injunctions is provided by the Newfoundland Court of Appeal in Nalcor Energy v. NunatuKavut Community Council Inc. (2014), 358 Nfld. & P.E.I.R. 123, 2014 NLCA 46 at para. 72. While seven steps were identified in that case, I need only deal with the first two, namely: (i) has the claimant proven that all the elements of a cause of action have been established or threatened (if not, the claimant’s suit should be dismissed)?; and, (ii) has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or re-occur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction (if no, the injunction claim should be dismissed)?
[144] I have not found that the defendant (plaintiff by counter-claim) has established the elements of any cause of action that would entitle her to relief. Nor has there been any threat, actual or implied, of an actionable wrong.
[145] Furthermore, even if I had found that an actionable wrong occurred on 20 January 2016 when Ms. Eks came back to Apollo Terrace, there is no evidence, beyond the fears borne out of Ms. Tadeu’s hyper-vigilantism, to establish, to a sufficient degree, that such an incident is likely to occur or re-occur in the future, such that it would be appropriate for the court to exercise its jurisdiction to grant an injunction.
[146] Accordingly, no injunction shall issue.
Damages
[147] Given my findings on liability, and given the challenges of distilling such damages as might flow from the events complained of in these actions (as opposed to from the significant and pre-existing medical challenges faced by both the plaintiff and the defendant), I am unable to assess damages in the event that I am found to have been in error in my analysis of liability.
Disposition
[148] Neither of the parties has made out a viable claim.
[149] While every citizen is entitled to recourse in the civil courts to remedy legal wrongs, the parties will, I hope, reflect on whether their resort to court to air their grievances against each other was a responsible use of a publicly funded but limited resource.
[150] The action and counterclaim are both dismissed.
Costs
[151] Neither party has enjoyed success. Both parties have, no doubt, incurred significant legal fees getting to this point.
[152] Unless there were offers to settle which have costs consequences pursuant to rule 49 of the Rules of Civil Procedure, my inclination is to order each side to bear its own costs. However, if there are offers, or if either party wishes to argue that a different disposition of costs is appropriate, I would encourage the parties to resolve the issue of costs, failing which, costs submissions should be filed with the trial coordinator at Kingston as follows:
a. By a party seeking costs within 21 days of the release of these reasons; and b. Responding submissions within 14 days thereafter.
Submissions should not exceed four pages in length and should be accompanied by the party’s bill of costs (whether the party is claiming costs or responding to a claim for costs). Copies of any offers to settle should also be provided.
Mew J.