DATE: 20061116

DOCKET: C44910

COURT OF APPEAL FOR ONTARIO

RE:

BMG CANADA INC. (Plaintiff/Defendant by Counterclaim (Respondents)) – and – ANTEK MADISON PLASTICS RECYCLING CORP., JAMES ANGELOPOULOS, 1288161 ONTARIO LIMITED c.o.b. PLANET EARTH RECYCLING, GEORGE SKRBA and DIANE TREVISAN (Defendants/Plaintiffs by Counterclaim (Appellants))

BEFORE:

GOUDGE, BORINS JJ.A AND CUNNINGHAM A.C.J. (Ad Hoc)

COUNSEL:

Brenda Hollingsworth

for the appellant

Matthew P. Gottlieb

for the respondent

HEARD & ENDORSED:

November 14, 2006

On appeal from the order of Justice Harriet E. Sachs of the Superior Court of Justice dated January 13, 2006.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant claims that the respondent’s negligent investigation caused him to be wrongly arrested by the police, then detained, charged and proceeded against.

[2] For the police to arrest someone, they are, as a matter of law, required to determine for themselves that reasonable and probable grounds exist to do so.

[3] In our view it cannot be said to be reasonably foreseeable that the police would take the information supplied to them by the respondent, however false or sloppily prepared, and proceed to charge the appellant without doing the job required of them by law.

[4] On this basis alone we agree with the conclusion of the motion judge that it is plain and obvious that no duty exists on these facts and that the claim will fail.

[5] The appeal is therefore dismissed.

[6] As to the cross-appeal, this is essentially only about particulars, in particular, the overt act or acts said to constitute the conspiracy. Neither party took real issue with our suggestion that the cross appeal be allowed, the conspiracy claim be dismissed with leave to amend to plead better particulars, in particular the overt act or acts referred to above. The appellant is to have 30 days from receipt of the Crown’s file in this matter to do so.

[7] In all the circumstances, costs of both appeal and cross appeal to the respondent fixed at a total of $5000 inclusive of disbursements and G.S.T.