DATE: 20020205 DOCKET: C36712

COURT OF APPEAL FOR ONTARIO

RE:

RANDY WILSON (Appellant/Plaintiff) v. TORONTO POLICE SERVICE, CHIEF OF POLICE (DAVID BOOTHBY), ATTORNEY GENERAL OF ONTARIO, CALVIN BARRY (PROSECUTOR FOR THE ATTORNEY GENERAL OF ONTARIO), DETECTIVE MARK MENDELSON (TORONTO POLICE SERVICE) and DETECTIVE SERGEANT RONALD WHITEFIELD (TORONTO POLICE SERVICE)

BEFORE:

LABROSSE, DOHERTY and LASKIN JJ.A.

COUNSEL:

Louis C. Sokolov

for the appellant

William Manuel

for the respondents

HEARD:

January 18, 2002

On appeal from the judgment of Justice Dambrot dated June 20, 2001.

E N D O R S E M E N T

[1] Dambrot J. concluded that the appellant’s statement of claim contained only a “bald allegation of malice” against the respondent, a Crown Attorney. We agree. Paragraph 25 of the statement of claim alleges in part:

… Barry [the respondent] caused the charge to be … prosecuted against the Plaintiff … with the malicious intention of securing a conviction against the Plaintiff, notwithstanding that there was an absence of any reasonable and probable grounds, for laying, prosecuting or continuing with the prosecution of the charge.

[2] In the statement of claim the appellant does allege, although imperfectly, that the respondent proceeded with the prosecution of the appellant in the absence of any reasonable prospect of conviction [ paragraphs 17 and 18]. In some cases, depending on the entirety of the evidence, the trier of fact may infer malice from the absence of any reasonable prospect of conviction. The potential availability of that inference at the end of a trial cannot, however, relieve a plaintiff of his or her obligation to properly plead the “full particulars” of an allegation of malice: Rule 25.06(8).

[3] We also agree with Dambrot J.’s refusal to grant the appellant leave to amend his statement of claim. The appellant had 9 months advance notice of the respondent’s motion to strike the claim. If any grounds existed on which the appellant could properly allege malice against the respondent, he had ample time to place those before Dambrot J. in support of his motion for leave to amend. Specifically, if the appellant had any basis upon which to allege that the respondent had the knowledge relied on to demonstrate malice as against the police, the appellant could easily have put that basis before Dambrot J. Instead, he took the position that he had no particulars to offer in respect of the allegation of malice against the respondent, but that:

“Something went wrong” in this case and he [the appellant] should have an opportunity to find out what.

[4] In this court, counsel for the appellant suggested that a letter sent by the appellant’s criminal counsel to the respondent a few days before the respondent withdrew the charges provided a basis upon which to allege that the respondent proceeded with the prosecution knowing that someone other than the appellant was probably guilty. Aside from the fact that the letter was sent within days of the withdrawal of the charges by the respondent, we see nothing in the contents of the letter which could possibly fix the respondent with knowledge that someone else was probably guilty of the crime with which the appellant was charged.

[5] The appeal is dismissed with costs.

“Doherty J.A.”

“J.M. Laborsse J.A.”

“John Laskin J.A..”