Gabadon v. Toronto Police Services Board
Gabadon v. Toronto Police Services Board [2003 21936 (ON SC), 64 O.R. (3d) 726]
68 O.R. (3d) 480
[2003] O.J. No. 4456
Docket No. C40342
Court of Appeal for Ontario
Rosenberg, MacPherson and Sharpe JJ.A.
November 25, 2003
Catchlines
Torts -- Malicious prosecution -- Plaintiff bringing action for damages for malicious prosecution following acquittal on motion for nonsuit -- Defendant Crown Attorney having assumed carriage of prosecution after plaintiff was committed for trial at preliminary inquiry -- No direct evidence contradicting defendant's stated belief that she believed there was reasonable prospect of conviction -- Difference of opinion between counsel as to whether there was reasonable prospect of conviction not sufficient to find liability for malicious prosecution -- No genuine issue for trial existing -- Defendant's motion for summary judgment dismissing action against her granted.
NOTE: The catchlines above relate to a decision of the Superior Court of Justice. An appeal of this judgment to the Court of Appeal for Ontario (Rosenberg, MacPherson and Sharpe JJ.A.) was dismissed on November 25, 2003. The endorsement of the court was as follows:
Kikelola Roach, for appellant. Kim Twohig and Tamara Barclay, for respondent.
Endorsement
[1] BY THE COURT -- We agree with the reasons of the motions judge. In Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609 and in Proulx v. Quebec, 2001 SCC 66, [2001] 3 S.C.R. 9, 206 D.L.R. (4th) 1, the Supreme Court of Canada emphasized that the court cannot merely second-guess the prosecutor; there must be evidence of malice. Not only did the appellant not adduce evidence of malice, but the record demonstrates an absence of malice. The respondent chose not to call an unsavoury witness to prevent a wrongful conviction. In those circumstances, there was no basis for inferring malice from the possible absence of reasonable and probable grounds.
[2] Appeal is dismissed.
[3] Leave to appeal costs is refused.
[4] The respondent is entitled to costs fixed at $2,500.