Court File and Parties

Court File No.: CV-16-545614 Date: 2022-01-11 Ontario Superior Court of Justice

Between: Anthony Okafor, Plaintiff And: Attorney General of Ontario and Regional Municipality of Waterloo Police Services Board, Defendants

Counsel: Andrew Ostrom for the Plaintiff Jeffrey Claydon for the Defendant Attorney General for Ontario Christopher Clemmer for the Defendant, Regional Municipality of Waterloo Police Services Board

Heard: December 17, 2021

Perell, J.

Reasons for Decision

A. Introduction

[1] In 2016, after almost 17 years in the criminal justice system for alleged criminal misconduct that was 34 years old, Anthony Okafor went on the offensive. He brought a civil action for negligent investigation and malicious prosecution.

[2] Mr. Okafor’s civil action is against the Attorney General of Ontario, who is vicariously liable for the tortious conduct of Crown prosecutors. In the immediate case, the Crown prosecutors are Michael Murdoch and André Rajna. Mr. Okafor’s civil action is also against the Regional Municipality of Waterloo Police Services Board (the “Waterloo Police”).

[3] In 2021, 40 years into this saga, the Attorney General brought a summary judgment motion to have the malicious prosecution action dismissed as against him. The Attorney General advances four arguments that there are no genuine issues for trial. The thrust of all four arguments is that Mr. Okafor has not and cannot prove two constituent elements of the cause of action for malicious prosecution.

[4] First, the Attorney General argues (the Preliminary Inquiry Argument) from the fact that there were two preliminary inquiries after which Mr. Okafor was committed to trial. The Attorney General argues that this proves that the two Crown Attorneys continued the prosecution with reasonable and probable cause.

[5] Second, the Attorney General argues (the Trial Determination Argument) from the fact that Mr. Okafor was convicted at his first of two trials of one charge of fraud. The Attorney General argues that notwithstanding that the Court of Appeal set aside the conviction, this proves that the two Crown Attorneys continued the prosecution with reasonable and probable cause.

[6] Third, the Attorney General argues (the Evidentiary Record Argument) that the evidence gathered from the investigation and presented at the two preliminary inquiries and the two trials proves that the Crown Attorneys had reasonable and probable cause to continue the prosecution.

[7] Fourth, and in any event, the Attorney General argues (No Malice Argument) that there is no evidence that the Crown Attorneys were pursuing an improper purpose, and, therefore, Mr. Okafor has not proven malice, which is a constituent element of the tort of malicious prosecution.

[8] Mr. Okafor resists the summary judgment motion. He advances three arguments. First, Mr. Okafor argues that the case is not appropriate for a summary judgment. Second, he argues that the case is not appropriate for a partial summary judgment because dismissing the action against the Attorney General runs the risk of inconsistent findings of fact in the action against the Waterloo Police. Third, Mr. Okafor argues that there are genuine issues requiring a trial.

[9] For the reasons that follow, the Attorney General’s motion is granted and Mr. Okafor’s action against the Attorney General is dismissed.

[10] In the immediate case, a trial is not required to decide the issues. Messrs. Murdoch and Rajna as professional Crown Attorneys subjectively believed there was reasonable and probable cause to prosecute Mr. Okafor. The evidence gathered from the police investigation and presented at two preliminary inquiries and two trials confirms that objectively there were reasonable and probable grounds for the prosecution. As against the Crown Attorneys, there is no evidence of a malicious improper purpose. There are no genuine issues requiring a trial. Mr. Okafor cannot succeed in establishing liability against the Attorney General.

B. Procedural and Evidentiary Background

[11] On February 1, 2016, Mr. Okafor issued a Notice of Action suing the Attorney General for malicious prosecution and the Waterloo Police for negligent investigation and for malicious prosecution.

[12] On April 26, 2016, the Attorney General served a Demand for Particulars.

[13] On May 13, 2016, the Waterloo Police delivered its Statement of Defence.

[14] On June 1, 2016, Mr. Okafor delivered his Amended Statement of Claim.

[15] On June 9, 2016, Mr. Okafor delivered his Response to the Demand for Particulars.

[16] On November 3, 2016, the Attorney General delivered his Statement of Defence.

[17] On January 31, 2017, Mr. Okafor delivered an Amended Fresh as Amended Statement of Claim.

[18] On August 10, 2020, the Attorney General brought a motion for summary judgment.

[19] The Attorney General’s motion was supported by the affidavits dated August 6, 2020 and September 2, 2021 of Michael Murdoch and by the affidavits dated August 10, 2020 and October 21, 2021 of André Rajna.

[20] Mr. Okafor responded to the summary judgment motion with his affidavit dated August 5, 2021.

[21] Mr. Okafor alleges that the prosecution was continued for the improper purpose of furthering the Waterloo Police Chief’s animus towards Mr. Okafor. Mr. Okafor says that the Police Chief’s animus began because Mr. Okafor had intentionally blocked the Chief of Police’s daughter’s vehicle, which was parked on a mutual driveway shared with the Okafors’ neighbours, David and Nancy Gee, with whom Mr. Okafor was feuding. Mr. Okafor’s blockade action prevented the Chief’s daughter from leaving the Gees’ home where she was visiting one of the Gees’ sons. In paragraph 34 of the Amended Fresh as Amended Statement of Claim, Mr. Okafor pleads:

34. The Plaintiff pleads that the Defendants were actuated by malice and/or a collateral primary purpose other than carrying the law into effect in commencing and/or continuing the Proceedings. The Plaintiff pleads that such malice arose from Mr. Okafor’s confrontation with the police in relation to the Parked Vehicle and/or animus against the Okafors arising from the Gee Action and influenced by the friendship between the children of the Gees and the daughter of the Chief of the [Waterloo Police].

[22] On September 7, 2021, Mr. Rajna and Mr. Murdoch were cross-examined. They were not cross-examined about why they continued the prosecution. Their evidence was that they prosecuted Mr. Okafor because they objectively believed guilt could be established on the evidence. They testified that they did not learn of the incident involving the Police Chief’s daughter until the last day of the first trial and the incident had no influence on their decision to prosecute.

[23] On September 9, 2021, Mr. Okafor was cross-examined. During his cross-examination, Mr. Okafor acknowledged that he had no evidence to refute Mr. Rajna’s and Mr. Murdoch’s testimony as to when they learned about the incident involving the Chief of Police’s daughter.

[24] During his cross-examination, Mr. Okafor confirmed that he had no further evidence to support his allegation that the police had broken into his residence more than 24 times, stolen his children’s birth certificates, his offers of admissions to universities like Harvard University, and his disclosure from the criminal case, or his allegation that Mr. Murdoch delayed him in court while these break-ins were happening.

[25] The Attorney General’s Motion Record comprised approximately 2,100 pages.

[26] Mr. Okafor’s motion record comprised approximately 850 pages.

[27] The summary judgment motion was argued on December 17, 2021.

C. Factual Background

[28] The factual background involves the Workers’ Compensation Board, which subsequently changed its name to the Workplace Safety and Insurance Board (“WSIB”). For convenience I shall use just the original name.

[29] Pursuant to s. 9 of the Proceedings Against the Crown Act, and s. 8 of the Ministry of the Attorney General Act, the Attorney General of Ontario is responsible for the actions and omissions of the employees of the Ministry of the Attorney General, Criminal Law Office, including the Crown Attorneys that prosecute criminal cases.

[30] At the start of the long history of Mr. Okafor’s trials and tribulations, he was married to June Okafor (née Convey). (They subsequently divorced.) Mr. Okafor owned a construction company known as Grand River Home Improvements Building Products, Supplies & Services Ltd. (“Grand River Home Improvements”), which installed aluminum siding. He also had an ownership interest in a corporation known as Ogbu and Blius Engineering that he sold during the long history.

[31] In December 1981, while performing a labourer’s work, lifting materials, Mr. Okafor injured his shoulder while working on a project for Grand River Home Improvements. He received medical treatment and he returned to work. He made no claim for workers’ compensation. On January 26, 1982, Mr. Okafor reinjured his shoulder, and this time he was unable to return to work.

[32] As a result of his work-related injuries, Mr. Okafor wound down the operations of Grand River Home Improvements, and he submitted a claim for workers’ compensation to the Workers’ Compensation Board. The place where the workplace accident occurred may have been mistakenly submitted or recorded with the Workers’ Compensation Board.

[33] Mr. Okafor’s application for benefits was approved. On and off for the next sixteen years, he received benefits. During this time, he successfully appealed several decisions for the Workers’ Compensation Board to reduce or terminate those benefits. He underwent numerous medical examinations with respect to the prognosis of recovery from the work-related injuries.

[34] In 1986, the Okafors purchased the residential property known as 35 Park Hill Road West in the City of Cambridge. Their next door neighbours were David and Nancy Gee. The Okafors and the Gees shared a mutual driveway. The Okafors and the Gees feuded about the use of the mutual driveway and about other matters. In 1989, the Okafors sued the Gees for trespass and nuisance with respect to water drainage issues allegedly caused by the Gees changing the grading of their property which was on a higher elevation than the Okafor home.

[35] In 1996, Mr. Okafor arrived home and found, once again, that the driveway that ran between his home and the Gees’ property was blocked by a vehicle. This had been a frequent occurrence. Mr. Okafor lost his temper. He parked his truck behind the obstructing vehicle, which had been driven to the Gees by the Chief of Police’s daughter, who had been visiting the Gees. The police were called, and Mr. Okafor was ordered to move his truck, which he did.

[36] Two years after the driveway incident, the Waterloo Police began investigating Mr. Okafor and his wife June Okafor. Mr. Okafor believes that the dispute over the parked vehicle was the cause, or at least one of the causes of the criminal prosecutions that followed.

[37] In 1998, the Workers’ Compensation Board and the Waterloo Police conducted an investigation of Mr. Okafor and June Okafor. The lead investigator was Detective Robert Brown.

[38] Pausing in the narrative, here it may be noted that Mr. Okafor believes that Detective Brown had a relationship with the couple that purchased the Gees’ property. After the driveway incident, the Gees moved. The Okafors unsuccessfully opposed the new owners’ plans to establish a bed and breakfast, and another acrimonious relationship between neighbours developed. Mr. Okafor saw Detective Brown (and he thought Mr. Murdoch) at the neighbour’s bed and breakfast. Mr. Okafor believes that this is evidence of a personal friendship between Detective Brown (and/or Mr. Murdoch) with his neighbours, the owners of the bed and breakfast.

[39] Returning to the narrative, in 1998, the investigation of the Okafors began after the Regional Municipality of Waterloo Social Assistance Office contacted the Waterloo Police. The Social Assistance Office alleged that June Okafor had fraudulently obtained social assistance. Staff of the Social Assistance Office told Detective Brown that Mr. Okafor had told them that he had not received any benefits from the Workers’ Compensation Board, but Detective Brown’s inquiries of the Workers’ Compensation Board confirmed that work injury benefits had been provided to Mr. Okafor since 1982.

[40] Detective Brown’s inquiry prompted the Special Investigations Branch of the Workers’ Compensation Board to review Mr. Okafor’s file. In turn, the Special Investigations Branch advised Mr. Okafor that it was conducting an investigation. Mr. Okafor’s benefits were suspended. On October 26, 1998, Tracy Halabiski, who was a senior adjustor with the Special Investigations Branch of the Workers’ Compensation Board, wrote to Mr. Okafor to advise that the benefits had been reconsidered and denied.

[41] Based on information the Workers’ Compensation Board provided to police from the investigation, the Waterloo Police laid charges. Neither Mr. Murdoch nor Mr. Rajna were involved in the prosecution at the pre-charge stage.

[42] On December 10, 1998, Mr. Okafor and June Okafor were arrested on charges pertaining to the receipt of social assistance. Mr. Okafor was also charged with: (a) having uttered a forged document; and (b) fraud over $5,000 with respect to the benefits he had received from the Workers’ Compensation Board between January 1, 1981 and September 1, 1998.

[43] The charges with respect to social assistance benefits did not proceed against Mr. Okafor. June Okafor, however, was convicted of fraud on February 6, 2004 in a judge-alone trial.

[44] Only the charge with respect to the Workers’ Compensation Board was prosecuted against Mr. Okafor. The Crown Attorneys who prosecuted the case were Mr. Murdoch and Mr. Rajna. Mr. Rajna did not join the prosecution team until after he joined the Crown's Office in November 2000.

[45] The theory of the Crown Attorneys’ case was as follows:

a. Mr. Okafor never suffered a workplace injury on January 26, 1982, as he had represented to the Workers’ Compensation Board.

b. Alternatively, if he did suffer a workplace injury, then he made five misrepresentations that were relied on by the Workers’ Compensation Board in conferring benefits and services to Mr. Okafor. The five misrepresentations were:

i. He falsely exaggerated his earnings.

ii. He malingered, i.e., he reported that he couldn’t work, when in fact he could.

iii. He misrepresented his qualifications and employment history.

iv. He failed to make legitimate efforts to find employment.

v. He misrepresented his life circumstances.

[46] On May 9, 2000, there was a preliminary inquiry hearing before Justice Westman of the Ontario Court of Justice. At the hearing, Mr. Okafor was represented by Charles Roach and Mr. Murdoch represented the Crown.

[47] To understand the subsequent events between 2000 and 2009, it is necessary to foreshadow that the financial aspects of Mr. Roach’s retainer were to create difficulties and problems for Mr. Okafor, for the Crown, and for the administration of justice.

a. Mr. Roach, fairly enough, expected to be paid for his legal services in representing his client. Mr. Okafor personally, however, had limited resources.

b. Mr. Okafor sought legal aid, which sometimes was extended to him, but sometimes it was not extended or it was terminated.

c. Mr. Okafor made efforts to have the Crown pay by resorting to Rowbotham Applications, an aspect of the criminal justice system where an action is stayed unless the Crown pays for the accused being represented by a lawyer. Rowbotham Applications are derived from sections 7 and 11 (d) of the Canadian Charter of Rights and Freedoms and an accused person’s right to a fair trial. During Mr. Roach’s involvement, however, the Crown Attorneys (Mr. Murdoch and Mr. Rajna) opposed Mr. Roach removing himself from the record and they also opposed the Rowbotham Applications that would provide funds to pay Mr. Roach and keep him on the record.

d. There was a very cantankerous relationship between Crown Counsel and Defence Counsel.

e. Mr. Okafor and Mr. Roach were compelled to budget Mr. Roach’s legal assistance, and thus, as revealed below, the result was that Mr. Okafor had intermittent legal representation and from time to time was either an under-represented or a self-represented accused.

[48] Returning momentarily to the narrative, at the preliminary inquiry hearing in 2000, Mr. Roach advised Justice Westman that Mr. Okafor conceded that there was a prima facie case and that Mr. Okafor had instructed Mr. Roach to waive the right to a preliminary hearing. Mr. Roach asked and was granted permission to withdraw for the rest of the hearing, which continued with Mr. Okafor cross-examining Mr. Halabiski.

[49] Pausing again, this time to foreshadow a topic in the analysis later in this decision, the Attorney General submits that Mr. Roach’s comments made to Justice Westman on instructions from Mr. Okafor are proof that the Crown Attorneys had reasonable cause to continue the prosecution. The Attorney General submits that this disproves that the two Crown Attorneys continued the prosecution of Mr. Okafor without reasonable or probable cause, which is a prerequisite element of the tort of malicious prosecution.

[50] Mr. Okafor, however, submits that all that Mr. Roach’s comments prove is that he and Mr. Roach were making pragmatic decisions about how to allocate scarce legal resources for the defence of the criminal charges.

[51] Returning to the narrative, at the end of the half-day preliminary inquiry hearing, Justice Westman committed Mr. Okafor to trial.

[52] Mr. Okafor moved to have the committal quashed. Almost two years later, on April 3, 2002 Justice Wallace of the Superior Court quashed the committal. Justice Wallace ruled that since Mr. Okafor had not been asked at the preliminary inquiry if he intended to call his own witnesses, which was required by section 541.4 of the Criminal Code, the committal must be quashed. Justice Wallace remitted the prosecution for a resumption of the preliminary inquiry so that Mr. Okafor could call any witnesses he wished.

[53] Seeking a full stay of the proceedings, Mr. Okafor appealed Justice Wallace’s decision. The Court of Appeal, however, quashed the appeal, and the preliminary inquiry continued on April 30, 2002, June 12, 2002, October 17, 2002, October 25, 2002, and November 5, 2002. Mr. Okafor called one witness, June Okafor, whom he asked be withdrawn during her cross-examination.

[54] In 2003, Mr. Okafor re-retained Mr. Roach. On April 3, 2003, Mr. Roach wrote to Mr. Murdoch to advise that he had recommended that Mr. Okafor waive the remainder of the preliminary inquiry, based on comprehensive and considerable productions and disclosure. On April 29, 2003, Mr. Roach confirmed Mr. Okafor’s consent to committal and waiver of the preliminary inquiry. Mr. Okafor was committed to trial, on consent, on May 5, 2003.

[55] Pausing yet again in the narrative, this time for a déjà vu, the consent culmination of the preliminary inquiry is relied on by the Attorney General, again, as proof that the continuation of the criminal prosecution was with reasonable and probable cause. Mr. Okafor, however, again, submits that it can be explained as a pragmatic and necessary decision about how to best use Mr. Roach’s legal services as defence counsel.

[56] The matter of financing the defence of the criminal proceedings persisted into the trial phase of the criminal proceedings. Mr. Okafor brought a Rowbotham Application on March 7, 2002. Justice Glithero dismissed the Rowbotham Application.

[57] In August 2004, the trial commenced before Justice Hambly. The trial continued with frequent interruptions for a barrage of motions, until 2007. The prosecution was primarily handled by Mr. Murdoch and Mr. Rajna. During the trial, Mr. Okafor was intermittently represented by Mr. Roach, and other times, he was without legal counsel.

[58] In September 2005, Mr. Okafor alleged that Mr. Murdoch and Mr. Rajna breached a Court Order sealing certain documents in the Court files in the civil action between Mr. Okafor and the Gees. Mr. Okafor brought a motion for: (a) an order requiring Mr. Murdoch and Mr. Rajna to show cause as to why they should not be held in contempt; (b) removal of Crown Counsel; (c) a stay of proceedings; or alternatively (d) an order excluding evidence subject to the sealing Order at issue. Justice Hambly reserved judgment on the motion for eight months.

[59] During the course of the trial, Mr. Okafor’s funding for legal representation was exhausted and Mr. Roach moved for removal from the record. On February 15, 2006, Mr. Roach’s motion to be removed was denied, without prejudice to Mr. Okafor bringing a Rowbotham Application.

[60] The contempt motion against the Crown Attorneys was dismissed on May 2, 2006. R. v. Okafor, [2006] O.J. No. 2716 (S.C.J.).

[61] In June 2006, Mr. Okafor stated his intention to bring another Rowbotham Application.

[62] As a self-represented litigant, Mr. Okafor brought a Rowbotham Application, which was heard by Justice Ramsay on May 14, 2007. Justice Hambly had recused himself from hearing the Rowbotham Application, because the issue of Mr. Okafor’s financial circumstances was an implicated factor of the fraud charges.

[63] On the Rowbotham Application, Mr. Roach appeared at the hearing as a witness only. Mr. Roach was accompanied by his own counsel who advised the Court that she was representing Mr. Roach and not Mr. Okafor. Justice Ramsay dismissed the Rowbotham Application. However, she also made an Order removing Mr. Roach from the record in the criminal proceeding before Justice Hambly, notwithstanding that no motion for that relief had been brought.

[64] On June 4, 2009, the trial resumed before Justice Hambly and Mr. Okafor appeared without legal counsel. At the outset of the proceedings on June 4, 2009, Mr. Okafor filed an affidavit dated May 16, 2007, sworn by Mr. Roach, which addressed Mr. Okafor's ability to represent himself without counsel, and Mr. Okafor brought his third Rowbotham Application, which was heard by Justice Hambly. The Crown requested an adjournment to consider the implications of Mr. Roach's affidavit filed in support of the application. The application was denied by Justice Hambly and the trial proceeded.

[65] As a result, Mr. Okafor was not represented for the last day of evidence or for the closing submissions for the prosecution and the defence.

[66] During her testimony on June 4, 2007, Mrs. Gee was questioned by Justice Hambly about her relationship with Mr. Okafor, and she discussed the blocked vehicle incident when Mr. Okafor blocked the mutual driveway and prevented the Police Chief’s daughter from driving her car away after a visit to the Gees’ home.

[67] The Crown's case concluded on June 11, 2007. Mr. Okafor elected not to call witnesses, and he did not testify.

[68] Written submissions were filed later that month.

[69] The trial was vigorously contested. Justice Hambly was critical of the courtroom conduct of both defence counsel and the Crown Attorneys. On two occasions, Mr. Okafor brought unsuccessful motions for contempt and the removal of Crown Counsel.

[70] Justice Hambly’s Reasons for Decision reveal that he instructed himself that what the Crown must prove beyond a reasonable doubt to obtain a conviction was that Mr. Okafor made a misrepresentation of his circumstances to the Workers’ Compensation Board, that the misrepresentation was dishonest, and that as a result of that misrepresentation the Board was deprived or was put at risk of deprivation. R. v. Okafor, [2006] O.J. No. 2716 at para. 5 (S.C.J.). Justice Hambly’s Reasons for Decision reveal that during the course of the trial:

a. The witnesses who gave relevant evidence on the issues of liability were: (a) Tracy Halabiski; (b) Susan Snow, a fraud investigator at the Workers’ Compensation Board; (c) Paul Bernas, who was a social worker at the Workers’ Compensation Board; (d) Barbara Schulz, who provided vocational rehabilitation services for Mr. Okafor; (e) Dan Graham, who provided vocational rehabilitation services for Mr. Okafor; (f) Nancy Gee; (g) Solomon Nwagbugbo who was a friend of Mr. Okafor; and (h) Valerie Gibault, who was a Director of Economic Development for the City of Kitchener.

b. There was undisputed evidence that Mr. Okafor had received $312,000 in benefits from the Workers’ Compensation Board between 1982 and 1998 (16 years).

c. There was undisputed evidence that the benefits had been received on account of a shoulder injury that Mr. Okafor claimed was work-related.

d. The Workers’ Compensation Board made payments to replace income Mr. Okafor would otherwise have been able to earn.

e. There were no witnesses corroborating the workplace accident. The one alleged witness, a former employee, was deceased at the time of the trial. However, the evidence established that there were inconsistencies in how Workers’ Compensation Board personnel treated the accident reports. At the commencement of the trial, Mr. Roach revealed that the investigators had investigated whether work had been performed on 12 4 0 King Street East, Cambridge, when the actual work site was 12 3 0 King Street East, Cambridge. Justice Hambly held that the Crown had fallen far short of proving that there was no workplace accident.

f. Nancy Gee testified that between 1988 and 1990, she observed Mr. Okafor renovating his house, including digging out his basement, building a stone wall (piling rocks up and back filling it with dirt), re-shingling the roof, yard work, and re-pointing the exterior walls.

g. There was evidence that doctors and Workers’ Compensation Board adjudicators had been satisfied that Mr. Okafor’s injury was genuine. Justice Hambly held that given the medical reports and the decision of the Board that it would be presumptuous to conclude that Mr. Okafor did not suffer disabling pain that prevented him from doing heavy repetitive construction labour.

h. Mr. Okafor conceded that some of his educational qualifications and work experience reported to the board was false, but his position was that the false information did not influence the Board’s decisions about benefit payments.

i. There was evidence that in 1989, Mr. Okafor told Mr. Bernas that his life circumstances were dismal and that he was in abject poverty. Mr. Bernas reported that Mr. Okafor was suffering from a marked life disruption in a functioning family relationship, social and recreational activities and vocational functioning.

j. There was evidence that in 1991, the Workers’ Compensation Appeal Tribunal based on Mr. Okafor’s representations and Mr. Bernas’ report increased Mr. Okafor’s chronic pain pension.

k. There was evidence that in 1989, in addition to his ownership of Grand River Home Improvements, Mr. Okafor had another corporation and that he and his corporations owned five properties.

[71] On August 22, 2007, Justice Hambly dismissed a motion by Mr. Okafor for a stay of proceedings based on pre-charge delay and racial profiling.

[72] On August 22, 2007 Justice Hambly dismissed almost all of the charges against Mr. Okafor. R. v. Okafor, [2007] O.J. No. 3337 (S.C.J.) However, Mr. Okafor was convicted on one charge on the grounds that he had falsely presented a picture of abject poverty and so misrepresented his life circumstances to the WSIB. In his Reasons for Decision at paragraphs 163-169, and 172, Justice Hambly stated:

Did the board pay benefits to Mr. Okafor as a result of his representing to the board falsely his life circumstances?

163. No witness was called from the operational section of the board who made a decision to pay Mr. Okafor benefits. To what extent did the persons at the operational level who made the initial decisions to pay benefits to Mr. Okafor rely on the medical reports, the reports of the VRS [vocational rehabilitation service] workers, the oral statements of Mr. Okafor, and any interviews that they may have conducted with Mr. Okafor? What weight did they give to these different factors? I have no answer to these questions.

164. Would their decisions have been different if they had known that Mr. Okafor's claims to have advanced education and sophisticated work experience were false? Would their decisions have been different if they had known that Mr. Okafor was engaged in a scheme that was doomed to inevitable failure to build and operate a factory on an industrial lot which he had purchased in the city of Kitchener? Would their decisions have been different if they had heard the evidence of Nancy Gee that Mr. Okafor was capable of doing chores about his house that were physically demanding only to a limited degree? Would their decisions have been different if they had known that Mr. Okafor interacted with Solomon Nwagbugbo and Valerie Gibaut in a non-physically demanding setting where he appeared not to be limited physically? Would the decisions at the review and appellate levels of the board of W.A. Molyeux, S. Rudderham, the WCAT or L. Humphries have been different if they had had this evidence before them tested by cross-examination?

165. The crown called no witness from the appellate or review levels of the Board. The crown called no witness knowledgeable of the adjudicative process in the board. Such a witness would have been easily available from a panel of lawyers and workers representatives who regularly appear before review and appellate tribunals of the board.

166. Not without some anxious consideration after listening to the persuasive argument of Mr. Murdoch my answer to these questions is yes. The WCAT decision drew a distinction as a basis for awarding a pension for chronic pain between the effects of the pain on a worker’s life which is compensable and the financial consequences which flowed from his inability to work which is not compensable. The WCAT decision clearly relied upon the report of Mr. Bernas dated September 29, 1989 to conclude that the pain which Mr. Okafor reported to him that he was suffering had pervaded all aspects of his life. In its decision the board stated the following:

The social worker concluded that the worker was suffering from a marked life disruption in a functioning family relationship, social and recreational activities and vocational functioning. (quoted in para. 63 above)

167. The picture of his life which Mr. Okafor provided to Mr. Bernas when Mr. Bernas interviewed him on September 6, 1989 and which he undoubtedly presented to the board when he testified before the WCAT on November 7, 1991 was a false one. He presented a picture of abject poverty to Mr. Bernas. In fact he had an ownership interest in five houses. He also owned through Grand River an industrial lot at 94 Howard Place. He was involved in a lawsuit with the City of Kitchener to resist the city's application to have the lot on Howard Place conveyed to it pursuant to the agreement that Grand River had entered into with the city. He was involved in renovating the premises at Parkhill. He was living there with his wife and children. They were not living with his in-laws. He was not living at Lynden Drive. The pain which he claimed to be suffering which was so apparent to Mr. Bernas in a non physically demanding setting was not at all apparent to Mr. Nwagbugbo, Nancy Gee or Valerie Gibault in a similar setting. Mr. Okafor caused the board to pay out benefits to him based on a false presentation of his true life circumstances.

VII. Conclusion

168. On the evidence before me, I cannot find beyond a reasonable doubt that Mr. Okafor did not suffer a workplace injury to his left shoulder which disabled him from doing heavy construction work. I cannot find beyond a reasonable doubt that benefits were paid to him based on a misrepresentation of his pre-accident earnings. I cannot find beyond a reasonable doubt that benefits were provided to him based on a misrepresentation of his educational qualifications and his work experience. I also cannot find beyond a reasonable doubt that benefits were paid to him as a result of a false claim that he could not do heavy repetitive labor.

169. I do find, however, that benefits were paid to him based on a misrepresentation of his total life circumstances. I find that the difference between what he presented to the board and his true life circumstances is so great that if the board had known the true facts that benefits were paid to him which would not otherwise have been paid to him.

170. It may well be that Mr. Okafor suffered an injury to his left shoulder that prevented him from doing the only kind of work which would permit him to generate income that would be available to him in our society. If he had presented his claim honestly, he may well have received substantial benefits. However, he presented his claim dishonestly. He received over 16 years $318,000 based largely on dishonest representations. The amount of benefits that he received as a result of his dishonest representations as compared to what he would have received if he had presented his claim honestly is impossible to say. I find, however, beyond a reasonable doubt that as a result of his dishonest representations the Board paid benefits to him for many years that amounted to well over $5,000.

[73] On November 5, 2007 Mr. Okafor was sentenced to nine months in prison and ordered to make restitution to the WSIB in the amount of $109,699.79.

[74] Mr. Okafor appealed and was incarcerated for three weeks until he was released pending his appeal. Mr. Okafor appealed the conviction, sentence, and Justice Ramsay's May 14, 2007 Order dismissing the Rowbotham Application.

[75] On September 23, 2009, the Court of Appeal set aside the conviction on the grounds that Mr. Okafor’s constitutional right to legal counsel had been violated. R. v. Okafor, 2009 ONCA 672. The Court ordered a retrial. In its Reasons for Decision, the Court stated at paragraphs 12-14:

12. Having determined that the appellant's right to be represented by counsel was violated, the appellant need not demonstrate actual prejudice to obtain a new trial. […]

13. That said, it appears that there may have been prejudice here. The Crown’s case against the appellant was not the strongest and the appellant’s conviction was by no means a foregone conclusion. Indeed, in his lengthy and comprehensive reasons, the trial judge rejected all but one of the bases upon which the Crown sought to establish fraud. On the one he did accept – that the appellant obtained benefits from the Workplace Safety and Insurance Board by “representing to the board falsely his life circumstances” – the trial judge considered the many gaps and unanswered questions in the Crown’s case and stated that it was “not without some anxious consideration after listening to the persuasive argument of Mr. Murdoch [Crown counsel]” that he became satisfied of the appellant’s guilt.

14. Given that the appellant was unrepresented in the final stages of the trial, it is impossible to know whether the trial judge would have come to the same conclusion had he received “persuasive argument” from defence counsel.

[76] The prosecution returned to the Superior Court. Mr. Roach was no longer acting for Mr. Okafor and a series of lawyers acted for Mr. Okafor. Mr. Okafor was able to obtain Legal Aid funding, but his Legal Aid certificate was then cancelled, and he brought another Rowbotham application.

[77] In April 2013, Mr. Okafor brought his fourth Rowbotham Application and on April 10, 2013, Justice Broad granted the application, holding that Mr. Okafor was indigent and not capable of paying for his own counsel. R. v. Okafor, 2013 ONSC 2134. Unlike the earlier three Rowbotham Applications, Mr. Murdoch and Mr. Rajna were not involved in arguing the application. The Crown was represented by lawyers from the civil office, Crown Law Office Civil.

[78] Justice Broad conditionally stayed the charges against Mr. Okafor to provide the Attorney General with an opportunity to arrange for funding for legal counsel. When no funding was provided, on January 30, 2015, on the Crown’s motion, Justice Taylor permanently stayed the charges against Mr. Okafor. After seventeen years, the criminal proceedings against Mr. Okafor were at an end.

[79] One year later, on February 1, 2016, Mr. Okafor commenced the civil action now before the court.

[80] In 2021, the Attorney General brought the summary judgment motion now before the court.

[81] The workplace accident occurred in December 1981. These Reasons for Decision are being released in January 2022. The action against the Waterloo Police will continue.

D. Discussion and Analysis

1. Legal Background: Crown Prosecutors and the Tort of Malicious Prosecution

[82] Before the Supreme Court of Canada’s decision in Nelles v. Ontario, [1989] S.C.R. 170, Crown Attorneys and the Attorney General enjoyed absolute immunity from civil liability for any acts done in respect of a prosecution. The Court in Nelles, however, recognized that the intentional tort of malicious prosecution, which was available against complainants and police officers, should be extended and was an exception to the Attorney General’s and Crown Attorneys’ absolute immunity from civil liability for acts done in respect of a prosecution.

[83] The extended tort of malicious prosecution is not about the prosecutor’s tactical decisions or his or her conduct in the course of a prosecution, which are non-core elements of prosecutorial discretion. The extended tort was not concerned about the prosecutor’s decisions that go to his or her tactics or conduct before the court. Miazga v. Kvello Estate 2009 SCC 51 at paras. 45-46. Those matters were already regulated by the public law associated with abuse of process and those matters are not private law matters of civil liability for tortious conduct. Nelles v. Ontario did not change the court’s ability to control Crown Attorneys for the acts done in respect of a prosecution as an aspect of the court’s jurisdiction to control its own processes and to sanction abuses of process. In so far as Crown Attorneys are concerned, the tort of malicious prosecution is about civil liability for acts done in respect of the core elements of prosecutorial discretion.

[84] The tort of malicious prosecution is a remedy for the misuse of the Crown’s core prosecutorial discretionary authority, which like judicial independence and the independence of the bar is regarded as fundamental to the rule of law and the administration of justice and a constitutionally protected value. Miazga v. Kvello Estate, 2009 SCC 51 at para. 46. The tort of malicious prosecution focuses on the core elements of prosecutorial discretion that concern decisions on whether a prosecution for a particular offence should be started, continued, or stopped. An allegation of malicious prosecution against a Crown Attorney impugns the propriety of the prosecutor's core discretionary decision to initiate or continue criminal proceedings against an accused, the plaintiff in the subsequent civil action. Miazga v. Kvello Estate, 2009 SCC 51; Krieger v. Law Society of Alberta, 2002 SCC 65.

[85] To succeed in a claim for malicious prosecution, a plaintiff must have suffered damages and prove the four constituent elements of the tort; namely: (1) the defendant initiated or continued the prosecution; (2) the prosecution ended favourably for the plaintiff; (3) the prosecution was undertaken or continued without reasonable and probable cause, which is a question of law; and (4) the defendant was motivated by malice or a primary purpose other than that of carrying the law into effect. Miazga v. Kvello Estate, 2009 SCC 51 at para. 3; Proulx v. Quebec (Attorney General), 2001 SCC 66; Nelles v. Ontario, [1989] S.C.R. 170.

[86] For the plaintiff to satisfy the first element, the defendant must have been instrumental in setting the prosecution in motion or in continuing the prosecution of the criminal charges. Miazga v. Kvello Estate, 2009 SCC 51 at para. 53. (In the immediate case, for the purposes of the summary judgment motion, the Attorney General does not dispute that this constituent element of the tort is satisfied.)

[87] For the plaintiff to satisfy the second element, the prosecution must have terminated in the plaintiff's favour. This requirement may be satisfied in a variety of ways including acquittal, a discharge at a preliminary hearing, a withdrawal, a stay, and sometimes by a settlement or a plea bargain. Miazga v. Kvello Estate, 2009 SCC 51 at para. 54. (In the immediate case, for the purposes of the summary judgment motion, the Attorney General does not dispute that this constituent element of the tort is satisfied.)

[88] For the plaintiff to satisfy the third element, the plaintiff must prove that there was an absence of reasonable and probable cause for the prosecution.

[89] The reasonable and probable cause inquiry has a subjective and an objective component such that the prosecutors must have an actual belief that is objectively reasonable in the circumstances. P.Y v. Ontario (Attorney General) 2021 ONCA 761 at para. 29, aff’g 2019 ONSC 6077; Miazga v. Kvello Estate, 2009 SCC 51 at para. 58.

[90] The subjective component of the inquiry focuses on the Crown Attorney’s professional opinion; the reasonable and probable cause inquiry is not concerned with a prosecutor's personal views as to the accused's guilt, but with his or her professional assessment of the legal strength of the case. Miazga v. Kvello Estate, 2009 SCC 51 at para. 63; Proulx v. Quebec (Attorney General), 2001 SCC 66.

[91] The objective component of the inquiry focuses on the evidence marshalled for the prosecution. For there to be reasonable and probable cause for a prosecution, there must exist sufficient evidence, which assuming it to be true, could reasonably lead any ordinarily prudent and cautious man, placed in the position of the prosecutor to conclude that the plaintiff was guilty of the crime. The reasonableness of a prosecution is a matter of the prosecutor’s professional assessment of the legal strength of the case and whether, based on the existing evidence, proof beyond a reasonable doubt could be made out in a court of law. Miazga v. Kvello Estate, 2009 SCC 51 at paras. 58-77; Proulx v. Quebec (Attorney General), 2001 SCC 66 at para. 31.

[92] If the court concludes, on the basis of the circumstances known to the prosecutor at the relevant time, that reasonable and probable cause existed to commence or continue a criminal prosecution from an objective standpoint, the criminal process was properly employed, a claim for malicious prosecution will fail. Miazga v. Kvello Estate, 2009 SCC 51 at para. 75; Al's Steak House & Tavern Inc. v. Deloitte & Touche, [1999] O.J. No. 427 at paras. 11-13 (Gen. Div.).

[93] Recalling that malicious prosecution is an intentional tort, for the plaintiff to satisfy the fourth element, which considers a defendant prosecutor’s mental state, as a matter of fact, the plaintiff must have evidence that the prosecutor was pursuing an improper purpose. Miazga v. Kvello Estate, 2009 SCC 51 at paras. 78-89.

[94] In Nelles v. Ontario, [1989] S.C.R. 170 at pp. 193-94, Justice Lamer, as he then was, explained the meaning of improper purpose as follows:

To succeed in an action for malicious prosecution against the Attorney General or Crown Attorney, the plaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, and malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of "minister of justice". In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice.

[95] In Miazga v. Kvello Estate, 2009 SCC 51 at para. 89, Justice Charron summarized the fourth constituent element of malicious prosecution as follows:

89. In summary, the malice element of the test for malicious prosecution will be made out when a court is satisfied on a balance of probabilities, that the defendant Crown prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a "minister of justice". The plaintiff must demonstrate on the totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice such that he or she exceeded the boundaries of the office of the Attorney General. While the absence of a subjective belief in reasonable and probable cause is relevant to the malice inquiry, it does not dispense with the requirement of proof of an improper purpose.

[96] The constituent element of proving malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice for ends that are improper and inconsistent with the prosecutorial function. Miazga v. Kvello Estate, 2009 SCC 51 at paras. 80-81. Malicious prosecution is an intentional tort that requires proof that the defendant's conduct in setting the criminal process in motion was fuelled by malice. Watton v. Home Depot of Canada Inc., 2018 ONSC 2094 at para. 25; Farley v. Ottawa Police Services Board, 2016 ONSC 7818 at para. 36, aff’d 2017 ONCA 689; Miazga v. Kvello Estate, 2009 SCC 51 at para. 56; Nelles v. Ontario, [1989] S.C.R. 170 at p. 194.

[97] That a prosecutor did not subjectively believe that there were reasonable and probable grounds for commencing or continuing a prosecution, while relevant to proving malice, is not sufficient to prove malice because the prosecutor's failure to fulfill his or her proper role may be the result of inexperience, incompetence, negligence, or even gross negligence, none of which is actionable. Proulx v. Quebec (Attorney General), 2001 SCC 66 at para. 35; Nelles v. Ontario, [1989] S.C.R. 170 at p. 199.

[98] There is an extraordinarily high standard to find malicious prosecution, and many cases have commented that the tort of malicious prosecution, which involves the plaintiff proving the affirmative proposition that the person commencing or continuing the prosecution was motivated by malicious purposes and the negative proposition that there were no reasonable or probable cause for doing so presents a Herculean challenge so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances. P.Y v. Ontario (Attorney General), 2021 ONCA 761 at para. 29, aff’g 2019 ONSC 6077; A.B. v. Rogers, 2021 SKCA 96; Watton v. Home Depot of Canada Inc., 2018 ONSC 2094 at para. 28; Hinse v. Canada (Attorney General), 2015 SCC 35; Miazga v. Kvello Estate, 2009 SCC 51 at para. 50; Proulx v. Quebec (Attorney General), 2001 SCC 66 at para. 4; Nelles v. Ontario, [1989] S.C.R. 170 at p. 194. As understated by Justice Dambrot in Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 at para. 60 (S.C.J.), aff’d. , the requirement that the prosecutor perpetrated a fraud on the process of criminal justice and perverted or abused his or her office and the process of criminal justice is no easy threshold for a plaintiff to meet.

2. Is the Case Appropriate for a Summary Judgment?

[99] The first issue to determine is whether the case at bar is an appropriate one for a summary judgment.

[100] Rule 20.04(2) (a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[101] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial. Canada (Attorney General) v. Lameman, 2008 SCC 14 at para. 11; Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 (C.A.). Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment. Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798.

[102] In Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[103] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case. Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.

[104] If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment process: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result. Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 50. The motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination. Hryniak v. Mauldin, 2014 SCC 7 at paras. 51-55; Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275 at paras. 320-336; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2016 ONSC 5784 at paras. 122-131.

[105] The analytic framework from Hryniak v. Mauldin requires the motions judge, after determining whether the case is appropriate for a summary judgment, to first determine if there is a genuine issue requiring a trial based only on the evidence without using the enhanced fact-finding powers under rule 20.04 (2.1). Second, if there appears to be a genuine issue requiring a trial, the motion judge should determine whether a trial could be avoided by: (a) by using the enhanced powers under rule 20.04 (2.1), which permits weighing the evidence, evaluating the credibility of deponents, and drawing any reasonable inference from the evidence; or (b) by using the power under rule 20.04 (2.2) to order that oral evidence be presented by one or more parties. Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98; Hryniak v. Mauldin, 2014 SCC 7 at para. 66.

[106] Before applying this analytical approach to the immediate case, it should be observed that summary determinations of malicious prosecution claims are quite common either on a pleadings motion or on a summary judgment motion because the third constituent element of the tort is an issue of law that may be determinable without the necessity of a trial. This circumstance was recognized by Justice Charron in Miazga v. Kvello Estate, 2009 SCC 51 at para. 74, where she stated:

74 As noted in Nelles (at p. 197), the fact that the absence of reasonable and probable cause is a question of law means "that an action for malicious prosecution can be struck before trial as a matter of substantive inadequacy", or on a motion for summary judgment. These mechanisms are important "to ensure that frivolous claims are not brought" (Nelles, at p. 197). […] Nonetheless, in the absence of any express provision to the contrary, the question whether there is - a sufficient case to be put to the jury will remain a matter to be determined by the judge as a matter of law, in accordance with the respective roles of the judge and the jury. Therefore, factual inadequacy in a motion to strike a pleading or on a motion for summary judgment can still form a basis for the pre-trial striking of the pleading or the dismissal of the action, even where the ultimate determination of the issue may be expressly reserved by statute to the jury. See, e.g., Wilson, per Dambrot J.

[107] In the immediate case, there is more than sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable, and proportionate procedure.

[108] Mr. Okafor, however, argues that the immediate case as such is not appropriate for a summary judgment because of the necessity to review what is an almost forty-year legal saga. In particular, he argues that the case is not appropriate for a partial summary judgment because dismissing the action against the Attorney General runs the risk of inconsistent findings in the action against the Waterloo Police.

[109] I disagree with these arguments. While the history of Mr. Okafor’s tribulations and trials is protracted, the factual and legal analysis focuses on whether Mr. Okafor has met the onus of proving that Mr. Murdoch and Mr. Rajna did not have reasonable and probable cause to continue the prosecution and on whether they had a malicious purpose in continuing the prosecution. Resolving those issues by a summary judgement is manageable, proportionate, and procedurally just and fair.

[110] There is no partial summary judgment and there is no risk of inconsistent findings of fact or law. The malicious prosecution case against Mr. Murdoch and Mr. Rajna is independent and separate from Mr. Okafor’s case against the Waterloo Police and concerns events before Mr. Murdoch and Mr. Rajna continued the prosecution. It will be for a trial judge to determine whether the Waterloo Police initiated the criminal proceedings based on a negligent investigation, without reasonable and probable cause and with a malicious improper purpose.

[111] As the discussion below will elucidate, insofar as the Crown Attorneys are concerned based only on the evidence without using the enhanced fact-finding powers under rule 20.04 (2.1), there are no genuine issues requiring a trial about two of the four constituent elements of the tort of malicious prosecution.

[112] The summary judgment motion can be decided at the first stage of the analysis. Based on the evidence as a matter of law, Mr. Okafor cannot establish a lack of reasonable and probable cause in Mr. Murdoch and Mr. Rajna continuing the prosecution commenced by the Waterloo Police. Based on the evidence without using the enhanced fact-finding powers of rule 20.04 (2.1), I conclude that Mr. Okafor cannot establish that the prosecution was continued by the Crown Attorneys for an improper purpose.

3. Should the Claim for Malicious Prosecution be Dismissed?

(a) The Preliminary Inquiry Argument

[113] As noted in the introduction to these Reasons for Decision, the Attorney General makes four arguments that there are no genuine issues for trial. The thrust of all four arguments is that Mr. Okafor has not and cannot prove two constituent elements of the cause of action for malicious prosecution. In my opinion, for the reasons that follow, all four arguments are successful.

[114] The Attorney General argues from the fact that there were two preliminary inquiries after which Mr. Okafor was committed to trial disproves that the two Crown Attorneys continued the prosecution without reasonable and probable cause. Stated positively, the Attorney General argues that the outcome of the two preliminary inquiries proves that the Crown Attorneys had reasonable and probable cause to continue the prosecution.

[115] Before looking at the authorities, this argument is intuitively attractive, particularly in the circumstances of the immediate case, where twice Mr. Okafor’s counsel indicated that Mr. Okafor was prepared to waive the preliminary inquiry, precisely because Mr. Okafor was satisfied that the Crown had reasonable and probable cause to prosecute the charges. Mr. Okafor’s current explanation that Mr. Roach’s comments to the court were driven by pragmatic concerns, however, does not negate that what Mr. Roach said about waiving the preliminary hearing was true.

[116] The case law supports the proposition that absent the identification of a fundamental flaw in the criminal proceedings antecedent to the malicious prosecution civil proceedings, the antecedent judicial determinations may support a finding by a civil court that there existed reasonable and probable grounds for the criminal prosecution. Farley v. Ottawa (City) Police Services Board, 2017 ONCA 689 at para. 11, aff’g 2016 ONSC 7817; leave to appeal to the S.C.C. ref’d [2017] S.C.C.A. No. 484; Wong v. Toronto Police Services Board, [2009] O.J. No. 5067 (S.C.J.); Miazga v. Kvello Estate, 2009 SCC 51 at para. 97.

[117] In Wong v. Toronto Police Services Board, [2009] O.J. No. 5067 at para. 60 (S.C.J.), Justice Thorburn stated at paragraph 60:

A committal for trial after a preliminary hearing is strong evidence supporting the existence of reasonable grounds. The withdrawal of charges or the absence of a criminal conviction does not lead to the conclusion that reasonable grounds did not exist for an accused's arrest.

[118] Once again, this legal proposition is intuitively attractive and commonsensical. What happened in the antecedent preliminary inquiry is relevant to the determination of whether the Crown Attorney was continuing the prosecution because the test of whether the Crown has shown a prima facie case for the prosecution corresponds with the test of whether there were reasonable and probable grounds to continue the prosecution.

[119] However, a committal after a preliminary inquiry is not categorically dispositive. If it were, then the tort of malicious prosecution would cease to exist in any case in which there was a preliminary testing of the Crown’s case. That reductio ad absurdum proposition brings the analysis to the sensible legal proposition that absent the identification of a fundamental flaw in in the antecedent criminal proceedings, the antecedent judicial determinations supports a finding by a civil court that there existed reasonable and probable grounds for the criminal prosecution.

[120] Applying this analysis to the immediate case, there was no fundamental flaw in the two preliminary inquiries that diminish or depreciate Justice Westman’s and Justice Wallace’s committal orders. The committals demonstrate that the Crown had a prima facie case and that the Crown Attorneys had reasonable cause to continue the prosecution. Granted that Justice Westman’s order was quashed, but that was because Mr. Okafor was not asked whether he wished to use the preliminary inquiry for his own evidence gathering and trial preparation purposes.

[121] I, therefore, conclude that the Attorney General’s first argument succeeds. There is no genuine issue for a trial here.

[122] The parties are taken to have and in truth it appears that they have put forward their respective best cases about what the significance is of the two preliminary inquiries to Mr. Okafor’s malicious prosecution claim. The significance is that the Crown Attorneys had reasonable and probable cause to continue the prosecution and for this reason Mr. Okafor’s action should be dismissed because he cannot prove one of the constituent elements of the tort of malicious prosecution.

(b) The Trial Determination Argument

[123] The Trial Determination Argument is a reprise of the argument about the significance of the outcome of an antecedent criminal proceeding to the subsequent civil proceeding for malicious prosecution.

[124] Albeit the Crown failed on the overwhelming number of charges, it did succeed on one charge and when the Court of Appeal granted Mr. Okafor’s appeal, they ordered a retrial based on the fairness of the trial having been compromised by Mr. Okafor being without legal assistance. In other words, there is nothing in the Court of Appeal’s decision that diminishes the reasonableness of the Crown Attorneys continuing the prosecution after the preliminary inquiry or continuing to pursue the case at a retrial.

[125] I, therefore, conclude that the Attorney General’s trial determination argument succeeds. There is no genuine issue for a trial here.

[126] The parties are taken to have and in truth it appears that they have put forward their respective best cases about what the significance is of the trial outcome and its reversal by the Court of Appeal. The significance is that these circumstances demonstrate that the Crown Attorneys had reasonable cause to continue the prosecution and for this reason Mr. Okafor’s action should be dismissed because he cannot prove one of the constituent elements of the tort of malicious prosecution.

(c) The Evidentiary Record Argument

[127] If one ignores the circumstance that the reasonableness of the Crown Attorneys continuing the prosecution was tested by two preliminary inquiries leading to a committal to trial and by the first trial ending with a conviction that was reversed on procedural (trial fairness) grounds, there is the Attorney General’s third and mutually exclusive argument based on the evidence gathered for and by the Crown Attorneys.

[128] The Attorney General’s argument is that the evidence that had been gathered for the preliminary inquiries and for the two trials shows that the Crown Attorneys had reasonable cause to continue to prosecute Mr. Okafor.

[129] I agree with this argument. In my view, the evidence supports a finding of reasonable and probable grounds for continuing the prosecution. A reading of Justice Hambly’s decision demonstrates that the Crown Attorneys had marshalled a strong case with a major weakness in that they failed to call a witness from the operational section of the board who made a decision to pay Mr. Okafor benefits to explain the influence of Mr. Okafor’s statements alleged to be misrepresentations.

[130] But in any event, the ultimate strength or weakness of the Crown Attorneys’ case begs the issue of whether the case was strong enough to demonstrate that Mr. Murdoch and Mr. Rajna subjectively and objectively had reasonable and probable cause to continue the prosecution. The evidence on this summary judgment motion demonstrates that there is no genuine issue that they continued the prosecution with reasonable and probable cause to do so. Mr. Okafor cannot prove one of the constituent elements of the tort of malicious prosecution.

[131] To be clear, nothing I have concluded answers the questions to be determined in the malicious prosecution action and negligent investigation action against the Waterloo Police.

(d) The No Malice Argument

[132] My several findings that Mr. Murdoch and Mr. Rajna had reasonable cause to continue the prosecution are dispositive that the malicious prosecution action against the Attorney General should be dismissed.

[133] Assuming, however, that there are genuine issues requiring a trial about those findings, there is a mutually exclusive argument that justifies summarily dismissing Mr. Okafor’s malicious prosecution action as against the Attorney General.

[134] For him to succeed, Mr. Okafor must prove that there is a genuine issue for trial about his allegations that Mr. Murdoch and Mr. Rajna continued the prosecution animated by a malicious purpose.

[135] Mr. Okafor’s principal allegation of malice to support his malicious prosecution action is that Mr. Murdoch and Mr. Rajna continued the prosecution for the improper purpose of furthering the Waterloo Police Chief’s animus towards Mr. Okafor because of the driveway incident involving the Waterloo Police Chief’s daughter.

[136] This allegation of malice is unproven. Without making any determination of whether this animus existed, there is no genuine issue for trial that this animus was not shared by Mr. Murdoch and Mr. Rajna, and there is no other basis upon which a finding of a malicious purpose could be made.

[137] The uncontroverted evidence on this summary judgment motion is that there was animosity and that the criminal proceedings were hot-tempered, ill-tempered, and aggressive on both sides. It is not surprising that the combatants did not like one another, but dislike and antipathy for one’s foe is not the same thing as having a malicious purpose. The evidence is that Mr. Murdoch and Mr. Rajna continued the prosecution because as professionals in their role as Crown prosecutors, they subjectively believed that the Crown’s case had merit and a reasonable chance of success. This is not a case in which the absence of subjective and objective reasonable cause supports an inference of malice.

[138] There was nothing malicious in Mr. Murdoch’s and Mr. Rajna’s inquiries about the three Rowbotham applications in which they were involved or in their inquiries about the availability of legal aid for Mr. Okafor or about civil proceedings involving Mr. Okafor.

[139] The Crown Attorneys’ departures from the better and best practices of prosecutors were addressed by Justice Hambly and Justice Ramsay throughout the course of the criminal proceedings, which it may be recalled involved several unsuccessful contempt motions and motions to disqualify Mr. Murdoch and Mr. Rajna from representing the Crown.

[140] The contempt and disqualification motions were unsuccessful, but more to the point their factual underpinning has nothing to do with facilitating the Waterloo Chief of Police’s animus towards Mr. Okafor because of the driveway incident, which incident Messrs. Murdoch and Mr. Rajna were not even aware of until the very end of the trial. Also, more to the point, the incidents of intemperate and inappropriate conduct do not support the conclusion that Mr. Murdoch and Mr. Rajna had an improper purpose in continuing the prosecution against Mr. Okafor.

[141] Based on the evidence on this summary judgment motion, there is no genuine issue for trial. To borrow the language of Justice Lamer in Nelles v. Ontario, the direct or circumstantial evidence does not support a finding that Mr. Murdoch and Mr. Rajna were animated by an improper purpose or that they perpetrated a fraud on the process of criminal justice and in doing so perverted or abused the process of criminal justice. The evidence on this summary judgment motion demonstrates that there is no genuine issue that they continued the prosecution with a malicious improper purpose. Mr. Okafor cannot prove one of the constituent elements of the tort of malicious prosecution.

E. Conclusion

[142] For the above reasons, the Attorney General’s motion is granted. Mr. Okafor’s action against the Attorney General is dismissed.

[143] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Attorney General’s submissions within twenty days of the release of these Reasons for Decision followed by Mr. Okafor’s submissions within a further twenty days.

Released: January 11, 2022 Perell, J.