- DATE: 20020425 DOCKET:C36850
COURT OF APPEAL FOR ONTARIO
RE:
JAMES DONALD TOWNSEND (Appellant) – and – SAULT STE. MARIE POLICE SERVICE, BRADLEY CLARIDA, MARTIN ROWE, JEFFREY D. BROADBENT and TRACY-LYNN BROADBENT (Respondents)
BEFORE:
FELDMAN, SHARPE JJ.A. and GILLESE J. (Ad hoc)
COUNSEL:
Matthew Wilton for James D. Townsend
Peter A. Feifel for Jeffrey D. and Tracy-Lynn Broadbent
Michael S. O’Neill for Sault Ste. Marie Police Service, Bradley Clarida and Martin Rowe
HEARD:
February 28, 2002
On appeal from the judgment of Justice R.G.S. Del Frate dated July 11, 2001.
E N D O R S E M E N T
[1] Pursuant to a motion for summary judgment, by order dated July 11, 2000, the appellant’s action was dismissed as against all of the respondents. The appellant seeks to have the order set aside.
[2] To resist a motion for summary judgment, the responding party must present coherent evidence to show that there is a genuine issue for trial. The appellant did not adduce any evidence in support of his allegations against the respondents.
[3] The motions judge made no error in determining there was no genuine issue for trial in respect of the appellant’s claim for malicious prosecution. Inconsistencies in evidence do not necessarily give rise to issues of credibility that must be determined at trial. The inconsistencies must be cogent and relate to material issues. The alleged conflicts and inconsistencies in the evidence were thoroughly addressed by the motions judge. He did not find them to amount to issues of credibility or to raise a genuine issue for trial.
[4] At a minimum, there was no evidence to support an absence of reasonable and probable cause or malice.
[5] The motions judge was fully justified in coming to the conclusion that:
… There is no evidence, at this stage, to suggest that any of the defendants have, and I quote from that decision [[Nelles v. Ontario 1989 77 (SCC), [1989] 2 S.C. R. 170]](https://www.minicounsel.ca/scc/1989/77)
‘perpetrated a fraud on the process of criminal justice and in doing so have perverted or abused his or their office and process of criminal justice.”
Accordingly, I am satisfied that the applicants have demonstrated that there is no genuine issue of material fact necessitating a trial on this action. And, I am further satisfied that the plaintiff has not established that his claim is one that has a real chance of success.
[6] The appellant asks that the appeal be granted by virtue of the failure of the motions judge to address the appellant’s claim for damages for false arrest and false imprisonment. It is correct to say that this matter is not directly addressed in the reasons of the motions judge. However, it is important to point out that the appellant did not raise or argue the claim for false imprisonment at the hearing of the motion. He raises it for the first time on appeal. Because false arrest and imprisonment is claimed in the appellant’s statement of claim and in light of the fact that he was self-represented at the motion, we will address the matter.
[7] Two aspects of the false arrest and imprisonment claim warrant consideration. The first is whether there was reasonable and probable cause at the time of the arrest. There were lawful grounds for the appellant’s arrest based on the evidence of his conduct and the evident threat that he posed. Moreover, the appellant provided no evidence to suggest that there was not reasonable and probable cause. There was legal justification under the Criminal Code to arrest the appellant without a warrant.
[8] As the motions judge dealt with the issue of reasonable and probable grounds in the context of deciding the malicious prosecution claim, it is implicit in his reasons that the claim for false arrest and imprisonment was without merit on this ground.
[9] The second consideration relates to where the arrest took place. While it is not clear whether the arrest took place at the entryway to the dwelling or within it, we are prepared to proceed on the basis of the appellant’s submissions that it took place inside the dwelling. The police had authorisation to enter the dwelling by virtue of a search warrant dated December 28, 1996. As a result, we reject the argument based on Hudson v. Brantford Services Board 2001 8594 (ON CA), [2001] O.J. No. 3779 (C.A.) that the police officers were trespassing at the time that they executed the search warrant and made the arrest.
[10] The appeal is, therefore, dismissed. In view of the positions taken by the parties before us, no order as to costs.
“K. Feldman J.A.”
“Robert J. Sharpe J.A.”
“E.E. Gillese J.A.”