Pispidikis v. Scroggie et al. [Indexed as: Pispidikis v. Scroggie]

68 O.R. (3d) 665

[2003] O.J. No. 4830

Docket No. C39417

Court of Appeal for Ontario

Goudge, MacPherson and Cronk JJ.A.

December 11, 2003

Torts -- False arrest and imprisonment -- Motions judge properly striking claims of wrongful arrest and wrongful imprisonment where plaintiff failed to meet his obligation under Rules of Civil Procedure to plead malice or bad faith with particularity -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

The plaintiff pleaded guilty to a Highway Traffic Act, R.S.O. 1990, c. H.8 offence and was fined $1,000 with one year to pay. The sentence recorded on the information placed the words "1 year" next to the typed words "sentenced to imprisonment for", and the same justice of the peace who recorded the guilty plea signed a committal warrant which repeated the error that the plaintiff had been sentenced to a one-year term of imprisonment. The plaintiff was arrested and taken to jail, where he was allegedly beaten by other prisoners. He brought an action, essentially for wrongful arrest and imprisonment, against the justice of the peace, three police officers, a police chief, three correctional officers and the Crown. On a series of Rule 21 motions, the motions judge struck out the claims against the justice of the peace, two of the correctional officers, the Crown in relation to potential vicarious liability for the actions of the justice of the peace and the two correctional officers, and certain of the claims against the police chief. The plaintiff appealed the decision with respect to the justice of the peace and the correctional officers.

Held, the appeal should be dismissed.

In connection with the justice of the peace, the plaintiff did not meet his obligation under the Rules of Civil Procedure to plead malice or bad faith with particularity, but simply made bald allegations. The pleading of the signing by the justice of the peace of the committal warrant and of his writing on the sentence report did not constitute evidence of malice or bad faith. Similarly, on the plaintiff's pleading, there was no basis on which to interfere with the motions judge's decision concerning the two correctional officers.

APPEAL by the plaintiff from a decision of Rouleau J. (2002), 2002 ONSC 23209, 62 O.R. (3d) 596, [2002] O.J. No. 5081 (S.C.J.) striking out certain claims. [page666]

Statutes referred to Canadian Charter of Rights and Freedoms Highway Traffic Act, R.S.O. 1990, c. H.8, s. 53(1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21

Michael G. McQuade, for appellant. Paul D. Stern, for respondent G. Donald Scroggie. William J. Manuel, for respondent Her Majesty the Queen in Right of Ontario. Robert J. Baldwin, for respondents Stuart Parsons, Scott Baptist and David Boothby.

Reasons for Decision

[1] BY THE COURT: -- The appellant, John Pispidikis, appeals from the judgment of Rouleau J., dated December 18, 2002, striking out the claims against various defendants in an action, including a justice of the peace, two correctional officers and the Crown.

[2] The appeal, and the action, arise out of an unfortunate error in recording the sentence imposed on the appellant after he pleaded guilty to the office of driving with a suspended licence in violation of s. 53(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. The justice of the peace, the respondent G. Donald Scroggie, recorded the guilty plea and orally imposed the minimum fine of $1,000 plus court costs of $5, with one year to pay. Unfortunately, the sentence recorded on the information placed the words "1 year" next to the typed words "sentenced to imprisonment for" rather than next to the typed words "Time to pay". Eight days later, the same justice of the peace signed a committal warrant for the appellant's committal which repeated the error that the appellant had been sentenced to a one-year term of imprisonment. The appellant was arrested and taken to jail where he alleges that he was beaten by other prisoners. A week later, an emergency appeal was heard, the Crown asked that the charges be withdrawn, and Judge Paris allowed the appeal and dismissed the charges.

[3] The appellant commenced an action, essentially for wrongful arrest and imprisonment, against the justice of the peace, three police officers, a police chief, three correctional officers and the Crown. On a series of Rule 21 motions, the motions judge struck out the claims against the justice of the peace, two of the correctional officers, the Crown in relation to potential vicarious liability for the actions of the justice of the peace and the two correctional officers, and certain of the claims against the police chief. The appellant appeals these components of the motions judge's decision.

[4] At the outset of oral argument, the appellant abandoned his appeal from the motions judge's order striking the claims of vicarious liability as against the Crown and the police chief.

[5] In our view, the appeal can be disposed of readily. We agree with the motions judge that in connection with the justice of the peace, the appellant did not meet his obligation under the Rules of Civil Procedure to plead malice or bad faith with particularity. [page667] Both are simply left, on the appellant's pleading, as bald allegations. The pleading of the signing by the justice of the peace of the committal warrant and of his writing on the sentence report can serve as no support for, or evidence of, malice or bad faith.

[6] The appellant can point to nothing else. Thus, even if the immunity accorded to a judicial official in the conduct of his duties could be displaced by a properly pleaded claim based on malice or bad faith, it is plain and obvious that this is not such a case.

[7] Similarly, on the appellant's pleading, we see no basis on which to interfere with the motions judge's decision concerning the two correctional officers against whom the appellant's claims were struck.

[8] We also see no reason to interfere with the motions judge's refusal to permit the appellant to further amend his pleading to allege, on the same asserted facts, breaches of the appellant's rights under the Canadian Charter of Rights and Freedoms as against the defendants in respect of whom the appellant's claims have been struck. For clarity, this does not prevent the appellant, if so advised, from seeking to amend his pleading to advance Charter claims against the remaining defendants.

[9] The appeal is dismissed, with costs to the respondent G. Donald Scroggie and the Crown fixed at $2,500 and $2,500 respectively, both inclusive of disbursements and GST. The enforcement of these costs awards is suspended until the final disposition of the action against the remaining defendants.

Appeal dismissed.