- DATE:20020801 DOCKET: M28040
COURT OF APPEAL FOR ONTARIO
RE:
OMER KEFELI (Moving Party) and CENTENNIAL COLLEGE OF APPLIED ARTS AND TECHNOLOGY, RONALD WHITE, JOSE CASTELLO and SEBASTIAN CACHCETTO (Responding Parties)
BEFORE:
SIMMONS J.A. (IN CHAMBERS)
COUNSEL:
E. J. Guiste
For the moving party
T. P. Liznick
For the responding parties
HEARD:
February 19, 2002
E N D O R S E M E N T
[1] The central issue on this motion is whether there is sufficient merit in the moving party’s proposed appeal to justify an order extending the time for him to file a notice of appeal.
[2] For the reasons that follow I find that there is not. I would accordingly dismiss the motion, subject to one caveat. I would also dismiss the request in the cross-motion to strike out parts of the moving party’s affidavit. In light of the conclusions I have reached, it is unnecessary that I deal with the responding party’s request for security for costs of the appeal.
Background
[3] In June and July 1998, the moving party was a part-time mathematics teacher at Centennial College; Ronald White was the manager for safety and security at Centennial College; and the two other individual defendants (“the other defendants”) were students in the moving party’s class. As a result of a complaint made by the other defendants, Centennial College officials contacted the police. The moving party was subsequently arrested and charged with offering to accept a secret commission contrary to s. 426 of the Criminal Code, R.S.C. 1985, c. C-46.
[4] The charges were tried in the Superior Court of Justice in January 2000. In reasons for judgment given in April 2000, the trial judge rejected the testimony of the other defendants and acquitted the moving party.
[5] In October 2000, the moving party commenced an action claiming damages for malicious prosecution, slander, intentional infliction of harm, and conspiracy against all of the defendants; for breach of contract and negligence against Centennial College and Mr. White; for inducing breach of contract against Mr. White and the other defendants; and claiming punitive damages against all of the defendants.
[6] In particular, the moving party alleged that the students in his class had received poor grades in the same class the year before, and that when he refused to provide the other defendants with examination answers in advance, they falsely informed Centennial College officials that he attempted to bribe them. He alleged that the other defendants made this allegation with the intention of having him suspended or dismissed, and that Centennial College suspended him and contacted the police without giving him an opportunity to answer their accusations.
[7] The moving party also claimed that, despite the fact that Mr. White learned that there were no similar allegations against him at any of his other employers, Seneca College suspended him from a teaching position there. The moving party alleged that Mr. White failed to speak to him about the allegations and acted either maliciously or negligently in accepting them.
[8] The moving party claimed that he suffered anxiety and humiliation as the result of the charges, that he has been unable to obtain employment subsequent to being acquitted, and that his career as a teacher is ruined. He claimed that Mr. White and Centennial College wilfully and maliciously brought about the prosecution against him, that they breached his contract by wrongfully suspending him and failing to renew his contract, and that they intentionally inflicted harm, or, in the alternative, conspired with the other defendants to commit the various torts and breach the contract. In the further alternative, the moving party claimed that Mr. White was liable for inducing breach of contract, and that Mr. White and Centennial College are liable in negligence for bringing about the harm that he suffered.
[9] On April 30, 2001, the motions judge granted the responding parties’ motion to strike out the statement of claim as against them on the basis that it disclosed no reasonable cause of action and ordered the moving party to pay $6,000 in costs. However, the motions judge reserved the moving party’s right to “commence a fresh action against Centennial College alleging breach of contract and negligence in the manner in which the employment was terminated by Centennial College”.
[10] The motions judge gave the following reasons for decision:
Facts
The Plaintiff was a teacher at Centennial. Student Castelo told White, the Manager for Safety and Security at Centennial, that the Plaintiff asked him for a camera in exchange for an A+ mark. Student Caschetto told White that the Plaintiff asked for cash in return for a passing mark or higher. Centennial, without interviewing the Plaintiff, contacted the police who interviewed the students. As a result of those interviews the police charged the plaintiff with offering to accept secret commissions. The Plaintiff was subsequently acquitted of the charges by a Judge of this Court. Centennial suspended the Plaintiff’s employment.
Decision
In my view White was simply doing his job by taking the student’s allegations at face value and reporting the incident to the police who used their discretion in laying charges.
With respect to the heads of damages [for malicious prosecution, slander, intentional infliction of harm, inducing breach of contract against White and punitive damages], Centennial and White have shown that it is plain, obvious and beyond doubt that the Plaintiff could not succeed.
With respect to the claims of breach of contract and negligence against Centennial the Plaintiff may have a reasonable cause of action.
The Plaintiff had some type of fixed term written contract as a part time teacher with Centennial. The Statement of Claim does not plead the particulars of the contract. There are also no particulars of the plaintiff’s suspension whether with or without pay.
Since the Statement of Claim with respect to breach of contract and negligence is so poorly drafted, it is best that the whole Statement of Claim be struck and I so order.
If the Plaintiff chooses he can commence a fresh action against Centennial alleging breach of contract and negligence in the manner in which his employment was terminated by Centennial.
[11] The moving party requests an extension of time for appealing the order dated April 30, 2001. He claims that “[he] immediately told [his former counsel] that [he] wished to appeal this order” on May 4, 2001 but that “[his former counsel] disagreed with [him] and essentially tried to convince [him] that it was best to leave the appeal alone…” He says that he next heard from his former counsel when he received a letter dated July 3, 2001 in which his former counsel indicated he was incapacitated as a result of a motor vehicle accident and could no longer practice law.
[12] As for the merits of the appeal, the moving party claims that the motions judge erred in finding that “White was simply doing his job by taking the student’s allegations at face value and reporting the incident to the police”, and that that issue, as well as the issue of whether White and Centennial were responsible for setting the prosecution in motion, should have been left for trial.
[13] In the alternative, he claims that the motions judge erred by failing to grant leave to amend with respect to his claim for malicious prosecution, as well as with respect to his claims for slander and intentional infliction of harm. Finally, the moving party claims that certain additional information contained in his affidavit demonstrates the strength of his case and also justifies an order on appeal permitting him to file a fresh statement of claim against the responding parties with respect to all of the originally pleaded causes of action except conspiracy.
Analysis
[14] In determining whether to extend the time for filing a notice of appeal the court will generally consider whether the appellant formed an intention to appeal within the relevant time period, the length of the delay, any prejudice to the respondent, and the merits of the appeal. The general rule that the appellant must have formed an intention to appeal within the relevant time period and must provide a reasonable explanation for any subsequent delay is subject to a broader principle that an extension should be granted if the justice of the case requires it: Frey v. MacDonald[^1].
[15] For the reasons set out below, I find that the moving party has not established that he formed a firm intention to appeal within the appeal period and that the merits of the appeal do not justify granting an extension based on the “justice of the case”.
Has the Moving Party Established that He Formed a Firm Intention to Appeal Within the Appeal Period?
[16] The moving party deposes that he told his former counsel that he wished to appeal the order when counsel informed him of the outcome of the motion. However, he also says that counsel “disagreed with [him] and … tried to convince [him] that it was best to leave the appeal alone”. Significantly, the moving party does not specify the outcome of this discussion nor does he claim that he actually instructed his former counsel to appeal. The moving party says that he next heard from his counsel on a date that was more than a month after the appeal period expired. However, he does not indicate whether he was aware that the appeal period had expired.
[17] The onus of demonstrating that he formed a firm intention to appeal within the appeal period is on the moving party. Given the matters I have noted, I am not satisfied that he has met that onus.
[18] Nevertheless, given the requirement that the moving party retain new counsel soon after the expiry of the time limit for filing a notice of appeal, I am satisfied that the subsequent delay in bringing this motion was not beyond the range of reasonableness, and that the steps taken by the appellant demonstrate a serious interest in appealing, albeit somewhat after the fact. I have considered the responding parties’ submissions that the steps taken to commence an appeal were taken only as a response to their demands for costs. On balance, I find that the subsequent delay in launching this motion was not unreasonable.
Do the Merits of the Appeal Justify Granting an Order Extending the Time for Appealing?
[19] As for the merits of the appeal, I consider it necessary to analyze this issue in two stages; first, by considering whether there is any merit in the appeal on the basis of the material that was before the motions judge; and second, by considering whether the moving party has established any basis for filing additional material and, if he has, whether such material adds any force to his position.
i) Is there any merit in the appeal on the basis of the material that was before the motions judge?
[20] I find no merit in the appeal on the basis of the material that was before the motions judge except with respect to any issue that may exist concerning the moving party’s entitlement to claim punitive damages with respect to the causes of action that the motions judge allowed to proceed.
[21] First, I am not persuaded that there is any merit in the moving party’s assertion that the motions judge erred in striking out the statement of claim in its entirety.
[22] I agree with the moving party’s submission that the finding that “White was simply doing his job by taking the student’s allegations at face value and reporting the incident to the police” was not open to the motions judge. The moving party did not allege in the statement of claim that it was Mr. White who called the police. More significantly however, on a rule 21 motion, the motions judge is required to treat the facts as stated in the statement of claim as being true and to determine whether, on the basis of those facts, it is “plain and obvious” that the pleading discloses no reasonable cause of action: Hunt v. Carey Canada Inc.[^2]. Given this test, it was not open to the motions judge to assess the facts set out in the statement of claim and to draw inferences concerning the motivations of the party who called the police. Rather, the motions judge’s review ought to have been limited to determining whether the facts as pleaded disclosed a reasonable cause of action.
[23] However, I am not persuaded that the conclusion that the trial judge erred in making that finding advances the moving party’s position that the trial judge erred in striking out the whole of the statement of claim. Reading the statement of claim generously, I see no basis for concluding that the moving party pleaded sufficient facts to support any of the causes of action that were permanently struck.
[24] I specifically reject the moving party’s submission that the issue of whether Mr. White and Centennial were responsible for setting the prosecution in motion should have been left for trial. The moving party acknowledges that a claim for malicious prosecution requires that the defendant must have initiated the prosecution or set it in motion, and that, ordinarily, the court will view the police officer who laid the charge as being the person who set the prosecution in motion. However, he also submits, correctly, that the complainant may be treated as the prosecutor in exceptional circumstances, including the following:
▪ the complainant desired and intended that the plaintiff be prosecuted;
▪ the facts were so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment; and
▪ the complainant procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both.[^3]
[25] In addition, the moving party submits that the courts will consider other circumstances in determining whether a particular defendant set a prosecution in motion, and that the core issue is whether there is any evidence to show that “the defendant was actively instrumental in putting the law in force”.[^4] Put another way, the issue is whether the defendant “had caused everything to be done which could be done wrongfully to set the law in motion against the [plaintiff] on a criminal charge”[^5]. [emphasis added]
[26] In my view, there were no allegations in the statement of claim that even approached the threshold that the moving party articulates. The moving party specifically pleaded that the police interviewed the other defendants and charged him with criminal offences as a result of those interviews. Put at its highest, the allegation in the statement of claim that Centennial College set the prosecution in motion is that college officials contacted the police without giving the moving party a chance to respond to the other defendants’ accusations. I am not aware of any basis for concluding that allegation could support a finding that Centennial College set the prosecution in motion.
[27] As for Mr. White, there is no specific allegation in the statement of claim that he was even involved in contacting the police. However, assuming that the allegation in the statement of claim that he accepted the other defendants’ accusations maliciously without interviewing the moving party was related to the circumstances of contacting the police, in my view, the moving party’s claim that Mr. White acted maliciously was a bald allegation that could not form the basis of a claim for malicious prosecution.
[28] Prior to a 1996 amendment, rule 25.06(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provided that “malice … may be alleged as a fact without pleading the circumstances from which it was to be inferred”. Rule 25.06(8) now requires that “[w]here … malice … is alleged, the pleading shall contain full particulars”.
[29] Here, the moving party failed to plead particulars from which malice could be inferred. The claim that the other defendants had done poorly in the same course the year does not support a claim that Mr. White acted maliciously. Standing alone, the allegation that Mr. White contacted police to report a complaint of criminal conduct against the moving party without interviewing him is equivocal. Absent additional context, it does not, of itself, give rise to an inference of malice.
[30] The allegation of wrongful conduct against Mr. White was accordingly no higher than the allegation against Centennial College, i.e. he contacted the police without giving the moving party a chance to respond to the other defendants’ accusations.
[31] Second, I am not persuaded that there is any merit in the moving party’s assertion that the trial judge erred by failing to grant leave to amend with respect to the moving party’s claims for malicious prosecution, slander, and intentional infliction of harm.
[32] I reject the moving party’s submission that the trial judge ought to have granted leave to amend with respect to the moving party’s claim for malicious prosecution on essentially the same basis as I reject his claim that that issue ought to have been left for trial. This is not a case involving technical deficiencies in pleading or failing to plead an obvious fact. The moving party failed to plead any facts that indicated that either Mr. White or Centennial College acted in a way that would satisfy the element of setting the prosecution in motion.
[33] As for the moving party’s claim that Mr. White and Centennial College slandered him, it was not obvious from a review of the statement of claim to what facts the claim for slander related. Moreover, the moving party failed to allege any specific statements capable of amounting to slander.
[34] As for the moving party’s claim that Mr. White and Centennial College committed the tort of intentionally inflicting harm, again, in my view, it was not obvious from a review of the statement of claim to what facts the claim of intentional infliction of harm related. In any event, I find that the moving party failed to plead facts capable of giving rise to that cause of action.
[35] There are three elements of the tort of intentional infliction of harm:
▪ an overt act for which there is no legal justification;
▪ intention to harm the plaintiff; and
▪ harm resulting directly thereby[^6].
[36] Assuming that the moving party’s claim of intentional infliction of harm related to the allegation that Mr. White accepted the allegations of the students maliciously, I am sceptical that that could amount to an “overt act”. Moreover, I have already noted that the moving party failed to plead particulars from which malice could be inferred.
[37] If the claim for intentional infliction of harm related to calling the police without interviewing the moving party, I am not aware of any basis on which it is alleged that that action, i.e. calling the police without interviewing the moving party, was without legal justification.
[38] I conclude that there is no merit in the appeal on the basis of the material that was before the trial judge.
[39] However, I am not aware of whether there is any issue concerning the moving party’s entitlement to claim punitive damages in its fresh statement of claim if such a claim is warranted based on the further pleadings authorized by the motions judge. In my view, the propriety of such a remedy for the causes of action that the motions judge allowed to proceed cannot be pre-judged. If the responding parties take issue with that entitlement, I would extend the time for filing a notice of appeal concerning that issue only and I would not order security for costs of that appeal.
ii) Has the moving party established any basis for filing additional material and, if he has, does it add any force to the merits of the appeal?
[40] I am not persuaded that the moving party has established a basis for filing additional material on the appeal that was not before the motions judge.
[41] I specifically reject the moving party’s claim that because the additional material demonstrates the strength of his case, it is relevant to the issue of whether he should be granted an extension of time to appeal. The relevant inquiry on a motion to extend the time for filing a notice of appeal concerns the merits of the appeal. Rule 21.01(2)(b) provides that no evidence is admissible on a motion to strike a statement of claim as disclosing no reasonable cause of action under rule 21.01(1)(b). Absent special circumstances, material that was not admissible before the motions judge is not admissible on appeal. In my view, a fresh evidence application would be required to establish special circumstances justifying the admission of material on appeal that was not admissible before the motions judge: s. 134(4) Courts of Justice Act, R.S.O. 1990, c. 43.
[42] The moving party’s material does not address all of the elements of the test for fresh evidence set out in Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 309 (C.A.). Although counsel for the moving party argued that the statement of claim was badly drafted, a formal allegation of incompetence of counsel has not been made. However, assuming that the merits of the appeal as demonstrated by the additional material could overcome shortcomings in meeting other elements of the test for adducing fresh evidence, the material filed does not meet that threshold.
[43] The additional material filed by the moving party appears to be directed to his claims for malicious prosecution, slander, and intentional infliction of harm. It includes the following:
▪ a document prepared by Mr. White entitled “Centennial College – Security Occurrence Report” that reveals the following:
• at the request of the police, the college did not proceed with its own internal investigation after receiving the complaint; • the college conducted joint interviews of complainants with the police and, in turn, received information from the police. In particular, the Security Report indicates the following:
o July 14/98…1:30 p.m. Joint Security/Police interview…[the interviewee] failed previous courses, had hard time understanding teacher, several students complained they were offered a complementary retake course to resolve previous issue. o July 15/16/20/23/98 - Joint Sec./Police interview[s] …
o July 28/98 – Det Chantler advises he has scheduled to meet [the moving party] to get a statement and they intend to arrest him on Thursday July 30/98 – Gary Marr and Paul Foy updated on case and arrest information. Paul to request John Muto to inform Faculty union and Mary Preace (Mary acting V.P. Academic, as Bill Summers on vacation.)
o July 31/98 – Det Chantler advises [the moving party] did not show for interview and warrant is to be issued for his arrest by the end of the week.
o Aug. 4/98 - Det Chantler advises warrant has been issued and requests us to follow up with Senica (sic) to see if he is still teaching … Seneca advises [the moving party] was teaching … but finished last week and was returning to Turkey;
o Aug. 27/98 – Det Chantler advises he has received a letter from [the moving party] stating he will be returning to Toronto on Sept. 8 or 9/98;
o Sept. 10/98 – Det Chantler advises [the moving party] did not show for Sept. 8 meeting was rescheduled for Sept. 15/98. He will advise of condition of release after arrest and court appearance.
• following his arrest, Centennial College planned a media statement that would include the following elements:
o the College received a complaint from students. We conducted an internal investigation and reported it to Toronto Police Services. Police completed an independent investigation and were informed they were proceeding with charges.
• on Aug 6/98 the Centennial College Human Rights Adviser called for an update and undertook advise Centennial College officials to flag the moving party’s file to prevent him from being re-hired.
▪ an assertion that, during the preceding year when the other defendants first took the course taught by the moving party, Centennial College posted security guards outside of the classroom;
▪ a letter from Centennial College advising him that the college would be investigating complaints against him in accordance with its dispute resolution policy, a subsequent letter from Mr. White informing him that Centennial was investigating the other defendants’ complaint “in consultation with Toronto Police Services”, and correspondence between Mr. White and the police indicating that Mr. White obtained and supplied a variety of information to the police at their request; and
▪ an article that appeared in The Toronto Star on September 17, 1998 in which The Star quoted a college official as saying:
Back in the summer the college received a complaint from the students. We conducted an internal investigation and then reported it to the Toronto police.
[44] In my view, rather than setting out a concise statement of the material facts on which he relies as required by rule 25.06(1), the moving party has simply filed evidence without making it clear what factual allegations the evidence is intended to support.
[45] Dealing with the malicious prosecution claim, I am unable to determine the basis on which the moving party claims that Mr. White and Centennial College were “actively instrumental in putting the law in force”. Put another way, in my view, the moving party has failed to set out the nature of any cause and effect relationship he claims exists between the actions of the responding parties and the initiation of the prosecution.
[46] The moving party relies on the following comments of Lederman J. in Hinde v. Skibinski[^7] to support the proposition that participating in the investigation and co-operating with police may be sufficient to establish the first element of the tort of malicious prosecution:
The law is not clear in this country that this element is to be restrictively interpreted to include only those situations where the defendant has actually laid the charge. There is some indication that this factor may be expansive enough to include conduct such as interfering or participating in the investigation and prosecution or, indeed, in failing to give a frank and candid account of the events to the police. The plaintiff relies on evidence to the effect that, inter alia, the defendants participated in the decision of whether the charge should be withdrawn and re-laid as one of common assault before a Provincial Court judge and participated in the decision whether the charge should be withdrawn on the basis of entering into a peace bond. I believe, accordingly, that there is a genuine issue for trial with respect to this element.
[47] I acknowledge that the moving party has filed evidence that Centennial College and Mr. White participated in joint interviews of various students with the police, that they assisted the police by obtaining and supplying information requested by the police, and that they received regular updates from the police. However, absent additional context, in my view, this conduct is equivocal and falls short of the threshold established by all of the authorities to which I have referred. The moving party has not specified, for example, that the conduct of the responding parties in some way encouraged the laying of the charges nor that the responding parties somehow mislead the police. Absent an allegation of this kind, to the effect that the responding parties were in some way “actively instrumental in putting the law in force”, I fail to see how the additional material meets the necessary threshold.
[48] The moving party also relies on the notation in the Security Report indicating an intention not to rehire him as demonstrating malice, and asserts that the conflicting statements from Centennial College about conducting an internal investigation and the evidence that the students from the previous year were offered “a complementary re-take course to resolve [the] previous issue” are significant to his claim. In my view, this information does nothing to remedy the deficiency I have noted.
[49] As for the moving party’s claims that he was slandered, counsel argued that Centennial College, and Mr. White in particular, communicated with other institutions and inquired whether they had any records of the moving party engaging in similar activity and that the statements he made in doing so amounted to slander. However, I see no evidence or allegation to that effect in the additional material that was filed. Although the statement of claim referred to Mr. White learning that there were “no complaints or similar allegations against [the moving party] at any other of his employers”, there is no allegation in the statement of claim of a defamatory statement. In particular, there is no allegation that the nature of his inquiry involved revealing the complaints made to Centennial College.
[50] As for the claim that the quotation in the September 17, 1998 Toronto Star article amounts to slander, the moving party did not particularize the alleged defamatory meaning of the quoted words or explain why this allegation was not alluded to in the statement of claim in the first instance. In the absence of that information, I am not satisfied that the moving party has demonstrated sufficient force to this proposed fresh evidence issue to justify extending the time for raising it by way of appeal.
[51] As for the claim of intentional infliction of harm, I am not persuaded that the additional material adds anything to the moving party’s claim as it was originally pleaded.
Disposition
[52] For the reasons given, the moving party’s motion is dismissed subject to the caveat that if the responding parties take issue with the moving party’s entitlement to claim punitive damages as a remedy for the causes of action the motions judge allowed to continue, I would extend the time for filing a notice of appeal concerning that issue only and I would not order security for costs of the appeal. As it was necessary to examine the evidence contained in the impugned portions of the moving party’s affidavit and exhibits to determine the motion, the first request for relief in the cross-motion is dismissed.
[53] The responding parties may make submissions concerning costs within 7 days. The moving party may respond within 7 days thereafter.
_____ “Janet Simmons J.A.”
[^1]: (1989), 33 C.P.C. (2d) 13 (Ont. C.A.). [^2]: 1990 90 (SCC), [1990] 2 S.C.R. 959 at 980. [^3]: Mahon v. Rahn No. 2, [2000] 4 All E.R. 41 (C.A.). [^4]: Danby v. Beardsley (1880), 43 L.T.R. 603 at 604. [^5]: Casey v. Automobiles Renault Canada Ltd., 1965 72 (SCC), [1965] S.C.R. 607 at 623. [^6]: Blumas v. Institute of Chartered Accountants of Ontario [2000] O.J. No. 3108 (S.C.J.) at para.16. [^7]: (1994), 21 C.C.L.T. (2d) 314 (O.C.J.G.D.)