DATE: 20031127
DOCKET: C38818
COURT OF APPEAL FOR ONTARIO
WEILER, ABELLA and ARMSTRONG JJ.A.
B E T W E E N:
ORIENA CURRIE
Peter K. McWilliams, Q.C.
for the appellant
Plaintiff (Appellant)
- and -
HALTON REGIONAL POLICE SERVICES BOARD, OWEN GRAY, KIM DUNCAN, and MICHAEL JAEGER
Graydon Sheppard for the respondent Michael Jaeger
Defendants (Respondent)
Heard: April 14, 2003
On appeal from the order of Justice E. R. Kruzick of the Superior Court of Justice dated August 20, 2002.
ARMSTRONG J.A.:
[1] The appellant was arrested on July 5, 2001 on a charge of fraud over $5,000. She was in custody until released on bail on July 9, 2001. On December 31, 2001, she commenced this action against the respondent and others for damages for false arrest, false imprisonment, and abuse of process. On a motion by the respondent before Justice E. R. Kruzick of the Superior Court of Justice the action was dismissed. The appellant appeals from the order dismissing her action.
Background
[2] The criminal charge, which is central to this action, relates allegedly to an unsuccessful business deal which the appellant had entered into with one Petre Caragioiu. The respondent was the lawyer for Caragioiu and had acted against the appellant in at least two other civil actions.
[3] The appellant, as part of a plea bargain, entered a plea of guilty to charges other than the fraud charge, which was stayed at the request of the Crown attorney.
[4] The appellant commenced this action against the Halton Regional Police Services Board, two individual police officers and the respondent. The statement of claim contains the following allegation against the respondent: “[The respondent] repeatedly and unlawfully urged and requested the defendant Owen Gray [a detective with the Halton Regional Police Services Board] to arrest the [appellant].”
[5] The respondent moved inter alia for the following relief:
a. An Order for security for costs as against the plaintiff in the amount of $25,000.00 or such other amount as this Court may deem necessary;
b. Alternatively, an Order striking out the statement of claim as against the defendant as frivolous, vexatious and an abuse of process of the Court;
c. Alternatively, an Order dismissing the action against the defendant as failing to disclose a reasonable cause of action; and granting leave to introduce affidavit evidence, if necessary;
d. Alternatively, an Order for summary judgment dismissing the plaintiff’s action against the defendant;
e. An Order declaring the plaintiff to be a vexatious litigant within the meaning of s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
[6] On the proceedings before the motions judge, each of the parties filed affidavit evidence. The transcript of some of the evidence of the appellant’s bail proceedings was also before the court. The motions judge accepted the evidence of Detective Gray of the Halton Regional Police at the bail hearing that it was he who instructed Constable Duncan to arrest the appellant and that the urging of the respondent that the appellant be arrested had no effect on his decision to do so.
[7] In dismissing the action, the motions judge stated:
Counsel for Mr. Jaeger referred me to Mishra v. Ottawa, [1997] O.J. No. 4352 a decision of this court where Sedgwick J. enumerated some seven characteristics of what constitutes a vexatious proceeding (relying upon and quoting Lang Michener and Fabian (1987), 1987 172 (ON SC), 59 O.R. (2d) 353 (H.C.J.).
Essentially I came to the conclusion that the plaintiff’s action, on the material before me has no chance of success and fits under the rubric of [rule] 21.01 (3)(d) as being an action that is frivolous, vexatious and generally an abuse of the process of the court.
The Appeal
[8] Counsel for the appellant submits that the motions judge had, in effect, dismissed the action on the basis that the statement of claim disclosed no reasonable cause of action pursuant to rule 21.01 (1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Counsel for the appellant further submitted that the motions judge erred in relying upon the affidavit evidence. Rule 21.01 (2)(b) makes it clear that no evidence is admissible on a motion brought pursuant to rule 21.01 (1)(b).
[9] It is perhaps not entirely clear from the above language of the motions judge whether he based his decision, in part, on a failure to plead a reasonable cause of action pursuant to rule 21.01 (1)(b). If he did, I agree that he was not entitled to consider any extrinsic evidence.
[10] I think the better view of the motions judge’s decision is that it was based entirely upon the application of rule 21.01 (3)(d) that the action was frivolous, vexatious and an abuse of the process of the court. Under that rule, extrinsic evidence is admissible.
[11] In reaching his decision, one of the factors the motions judge considered was whether it is obvious that the action cannot succeed. In this respect, he relied upon Mishra, supra at paragraph 39 where Sedgwick J. stated:
In Lang Michener et al. and Fabian et al., (1987) 1987 172 (ON SC), 59 O.R. (2d) 353, Henry J., summarized the characteristics of vexatious proceedings in the following passage:
(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious pro-ceedings;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supple-mented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
(g) the respondent’s conduct in persistently taking un-successful appeals from judicial decisions can be considered vexatious conduct of legal proceedings. (358-9)
[12] The motions judge did not expressly relate the circumstances of this case to the factors set out by Henry J. in Lang Michener. I take from his endorsement that he accepted the evidence of Detective Gray as determinative of the main factual issue, i.e. that the conduct of the respondent had nothing to do with the arrest and incarceration of the appellant. It is also apparent that he relied upon factor (b) referred to by Henry J. in Lang Michener.
[13] I turn to a consideration of whether there is a basis on the record before the court upon which the motions judge could conclude that the action is frivolous, vexatious or an abuse of process. A review of the case law under rule 21.01 (3)(d) does not provide precise definitions of the terms frivolous, vexatious or abuse of process. The majority of the cases cited by the editors of Ontario Annual Practice and Ontario Civil Practice either refer to abuse of process alone or to all three terms together.[^1]
[14] Black’s Law Dictionary defines “frivolous” as: “Lacking a legal basis or legal merit; not serious; not reasonably purposeful”.[^2]
[15] In Foy v. Foy (No. 2) (1979), 1979 1631 (ON CA), 26 O.R. (2d) 220 at 226, Howland, C.J.O. considered the meaning of “vexatious” under the Vexatious Proceedings Act, R.S.O. 1970, c. 481:
The word “vexatious” has not been clearly defined. Under the Act, the legal proceedings must be vexatious and must also have been instituted without reasonable ground. In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground. As a result the proceedings were found to constitute an abuse of the process of the Court. An example of such proceedings is the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction: Stevenson v. Garnett, [1898] 1 Q.B. 677 at pp. 680-1; Re Langton, [1966] 3 All. E.R. 576.
[16] In discussing the inherent power of the court to invoke the doctrine of abuse of process, apart from rule 21.01 (3)(d), Finlayson J.A. for the majority in Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d on other grounds (2002), 2002 SCC 63, 220 D.L.R. (4th) 466, [2002] S.C.C. 63 at para. 31 stated:
The court can still utilize the broader doctrine of abuse of process. Abuse of process is a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.
Goudge J.A. for the minority in the same case, stated at paras. 55 and 56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine un-encumbered by the specific requirement of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All. E.R. 990 (C.A.).
One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined.
It is obvious that Finlayson and Goudge JJ.A. were ad idem in respect to the nature of the doctrine of abuse of process. The majority judgment was reversed in the Supreme Court of Canada but not in respect to the discretionary nature of the doctrine.
[17] It is apparent that there is a degree of overlap in the meaning of the terms frivolous, vexatious and abuse of process. What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction.
[18] I am mindful that when the court invokes its authority under rule 21.01 (3)(d) or pursuant to its inherent jurisdiction to dismiss or stay an action, it does so only in the clearest of cases. See Sussman v. Ottawa Sun, [1997] O.J. No. 181 (Gen. Div.) at paragraph 21.
[19] In my view, the motions judge did not err in his application of rule 21.01 (3)(d) on the record that was before him.
[20] The statement of claim contained the following allegations against the respondent:
The defendant Michael Jaeger repeatedly and unlawfully urged and requested the defendant Owen Gray to arrest the plaintiff Currie.
The defendant Michael Jaeger had a conflict of interest in that he was the solicitor of record in three civil actions involving the plaintiff.
The defendant Michael Jaeger had oblique motives in requesting the defendant Owen Gray to have the plaintiff arrested.
Furthermore, the conduct of the defendants as aforesaid, was malicious, high handed and deliberate and calculated to cause the plaintiff damage. Accordingly, an award of punitive or exemplary damage is warranted.
[21] The evidence relevant to the issues of false arrest, false imprisonment and abuse of process before the motions judge came from the appellant, the respondent and Detective Gray.
[22] The appellant filed an affidavit in which she stated that the respondent “initiated pressure on Detective Gray to lay criminal charges against me.” She also swore that the respondent sent a false document to Detective Gray but did not specify the document or its content.
[23] The appellant also testified that during the course of a recess in a judgment debtor examination that the respondent said, “after I put you behind bars lady, you’ll have lots of time to study law.” On the record before us there does not appear to be a denial by the respondent of this statement.
[24] The respondent testified by way of affidavit that he had not arrested the appellant and referred to the evidence of Detective Gray at the appellant’s bail hearing.
[25] Neither the appellant nor the respondent were cross-examined on their affidavits.
[26] Both the appellant and the respondent filed portions of the transcript of the evidence of Detective Gray at the bail hearing. Counsel for the appellant before the motions judge and in this appeal, Mr. McWilliams, was also counsel for the appellant on the bail hearing. He cross-examined Detective Gray on the circumstances of the arrest of his client and the communications which had taken place between Detective Gray and the respondent.
[27] The cross-examination of Detective Gray revealed that the police carried out their own investigation. However, he conceded that he was contacted by the respondent and urged by him to arrest the appellant. The following excerpt from the cross-examination by Mr. McWilliams is informative:
Q. And have you discussed the case with him [the respondent], any of these cases?
A. I don’t discuss it with him. I just listen to what he has to tell me.
Q. Oh you listen?
A. That’s correct.
Q. So you have met him?
A. Yes, I have.
Q. And when did you last speak to him?
A. I’d have to make – if I may check my notes for a quick second. I think I’ve made – I do my best to make notations every time.
Q. Well, I’m sure. What I want to know is whether you spoke to him prior to the arrest of Oriena Currie last Thursday? I put it to you that he approached you and urged you to have her arrested and that he’s behind her arrest, even though he’s the solicitor for these people, the Gosses and Caragioiu, who are involved in civil litigation against her.
A. Actually I can answer your question. You’ve got three in there.
Q. Yes.
A. The first part of your question is yes he has asked me to arrest her and this started way back I think prior to Peter Caragioiu getting involved because he represents the Williamsons.
Q. Oh you know that too?
A. I’m very familiar with that.
Q. Now, that’s another lawsuit where he is the solicitor for the plaintiff suing Oriena Currie and Sheri Duff, who was their own daughter…
A. That’s right.
Q. …and the various companies. So you know he’s behind that lawsuit too?
A. Yes, I do.
Q. And did it not concern you that he might have a private axe to wield, that he might have a conflict of interest and he might be prepared to go to any lengths to have my client arrested in order to pursue his designs in these various lawsuits?
A. The merits of this investigation are on my investigation and my investigation only and the decisions made are based on my findings through my investigation.
Q. Were you not at all concerned that you or the police were being used for the private purposes of this solicitor from Hamilton…
A. No.
Q. …to pursue these various vendettas against my client?
A. Not in the least. Not in the least.
Q. Not in the least.
A. Not at all.
Q. Did you not even acknowledge that there was a conflict of interest on his part?
A. You’ll have to explain that to me because he was always coming at me from the civil side. I mean, if he mentions anything to me he’s telling me from his civil standpoint which is basically no use to me.
Q. Oh. Well, it was obvious that he wanted to pursue these civil actions, the one by the Williamsons against Oriena Currie?
A. That’s correct.
Q. And he wanted to pursue the civil action by Caragioiu against her?
A. Well, he is pursuing all those.
Q. Yes.
A. Yes.
Q. And he wanted additional assistance to the point of having her arrested so as to make life difficult for her to defend herself in these civil actions?
A. That’s correct.
Q. And you saw no conflict of interest in all that?
A. Well no, because I didn’t arrest her on his terms. I arrested Mrs. Currie and Charlie and Sheri on my terms. It has nothing to do with Michael Jaeger or his civil action whatsoever.
[28] Both the appellant and the respondent relied upon the above portion of the cross-examination by Mr. McWilliams. Not surprisingly, their submissions as to the legal conclusion to be drawn from Detective Gray’s evidence were markedly different.
[29] Simpliciter, the appellant argued that the conduct of the respondent attracted liability for false arrest and false imprisonment. The respondent, on the other hand, submitted that his conduct did not attract liability for the torts of false arrest and false imprisonment.
[30] Counsel for the appellant submitted that in an action for false arrest, the plaintiff need not prove the defendant actually made the arrest. It is sufficient that the defendant simply use his power or influence in urging the police to do so. He relied upon the following authorities: Vanderhaug v. Libin 1954 447 (AB SCAD), [1954], 13 W.W.R. 383 (Alta. C.A.); Pike v. Waldrum, [1952] 1 Lloyd’s Rep. 431 (Q.B.D.); Dendekker v. F.W. Woolworth Co. Limited, 1975 233 (AB SCTD), [1975] 3 W.W.R. 429 (Alta. S.C.); Mann v. Rasmussen (1928), 1928 694 (AB SCAD), 3 D.L.R. 319 (Alta. S.C. (A.D.)); and Hinde v. Skibinski (1994), 21 C.C.L.T. (2d) 314 (Ont. Gen. Div.). None of these authorities is binding upon the court. All of them are distinguishable from the case at bar. The one Ontario case, Hinde, is a malicious prosecution case which left open the question whether the plaintiff could succeed where the defendant had not actually laid a criminal charge.
[31] It is unnecessary, in the circumstances of this case, to decide whether a person who does no more than urges the police to arrest another can ever be liable for false arrest or false imprisonment. In the case at bar, the detective testified at the bail hearing that the respondent had called him more than once to urge him to arrest the appellant. However, the detective conducted his own investigation, made his own decision to arrest the plaintiff, and instructed the constable to execute the arrest. In my view, in these circumstances, the motions judge had before him sufficient evidence upon which to conclude that the action had no chance of success.
[32] While I might have been inclined to dispose of this matter as a summary judgment motion pursuant to Rule 20 on the basis that no genuine issue for trial was raised, the motions judge chose not to do so. However, his conclusion does appear to be tantamount
to a finding that there was no genuine issue for trial. Nevertheless, counsel before us did not argue the applicability of Rule 20.
[33] Counsel for the appellant also raised the issue of the respondent’s failure to comply with rule 2.02(4) of the Rules of Professional Conduct of the Law Society of Upper Canada which provides:
A lawyer shall not advise, threaten, or bring a criminal or quasi-criminal prosecution in order to secure a civil advantage for the client.
While the respondent’s conduct as a member of the Law Society, may deserve review by his professional body that issue is not before us. I cannot discern, on this record, that such conduct establishes a basis for civil liability.
Disposition
[34] In the result, I would dismiss the appeal with costs to the respondent on a partial indemnity basis in the amount of $6,000 including interest and Goods and Services Tax.
RELEASED:
“NOV 27 2003”
“KMW” “Robert P. Armstrong J.A.”
“I agree K.M. Weiler J.A.”
“I agree R.S. Abella J.A.”
[^1]: J.J. Carthy, W.A.D. Millar & J.G. Cowan, Ontario Annual Practice 2003 – 2004 (Aurora: Canada Law Book, 2003) at RULE-222 to RULE-224; G.D. Watson & M. McGowan, Ontario Civil Practice 2004 (Toronto: Thomson Canada, 2003) at 535 to 538.
[^2]: B.A. Garner, ed., Black’s Law Dictionary, 7th ed., (St. Paul: West Publishing, 1999) at 677.