Hawley v. Bapoo, 2007 ONCA 503

CITATION: Hawley v. Bapoo, 2007 ONCA 503

DATE: 20070711

DOCKET: C44428

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., ARMSTRONG and BLAIR JJ.A.

BETWEEN:

AUTRY AUSTIN RICKY HAWLEY and WILLIAM GREGOR McNAB Plaintiffs/Defendants by Counterclaim (Appellants)

and

ABDUL-KARIM BAPOO Defendant/Plaintiff by Counterclaim (Respondent)

and

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE ATTORNEY GENERAL FOR ONTARIO, LOUIS A. RICHER, MARY-ANNE MARS (née MACKETT) Defendants (Respondents)

Counsel: Kenneth E. Jull for the appellants Ian R. Smith and Brian G. Shiller for the respondent, Abdul-Karim Bapoo Michael Fleishman and Amy Leamen for the respondents, Her Majesty the Queen in Right of Ontario, the Attorney General for Ontario, Louis A. Richer and Mary-Anne Mars

Heard: June 26, 2007

On appeal from the judgment of Justice Todd Ducharme of the Superior Court of Justice dated October 11, 2005 and July 18, 2006, with reasons reported at (2005), 2005 36451 (ON SC), 76 O.R. (3d) 649 and (2006), 2006 24333 (ON SC), 82 O.R. (3d) 382.

ENDORSEMENT

[1] This saga began when the appellant police officer used a small amount of force, later found to be unauthorized, to escort the respondent, Mr. Bapoo, into a courthouse. Initially, Mr. Bapoo swore a private information charging the officers with assault and public mischief. The Crown took carriage of those proceedings but subsequently withdrew the public mischief charges. Ultimately the charges of assault were stayed for delay pursuant to the Charter.

[2] The appellants then brought a claim for damages for, inter alia, malicious prosecution against Mr. Bapoo, the Ontario Crown, the Attorney General and two individual Crown attorneys. Mr. Bapoo counterclaimed against the appellants for assault and breach of his Charter rights under s. 7.

[3] The trial judge dismissed the appellants’ malicious prosecution action. He allowed Mr. Bapoo’s counterclaim for breach of his Charter rights and awarded damages. The appellants appeal both the dismissal of their claims and the awards of damages in favour of Mr. Bapoo to this court.

Malicious Prosecution

[4] The appeal against the trial judge’s dismissal of the appellants’ claims for malicious prosecution is dismissed.

[5] To succeed in a claim for malicious prosecution, a plaintiff must establish that the defendant acted with malice: Nelles v. Ontario, [1989] 2 S.C.R. 170. The trial judge reviewed the evidence carefully and found that none of the defendants were actuated by malice. There was substantial evidence to support those findings. None of the errors that the appellants submit the trial judge made relate to his finding that there was no malice.

Section 24(1) Damages

[6] Next, we turn to the appeal against the trial judge’s awards of damages in favour of Mr. Bapoo under s. 24(1) of the Charter. That appeal is allowed and the awards of damages are set aside.

[7] The trial judge found that Mr. Bapoo had been assaulted, but that his claim based on common law assault was time-barred under s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38. As to the Charter claim, the trial judge found that the appellants did not have the authority to apply force to Mr. Bapoo when they brought him into the courthouse and, as such, they breached his s. 7 right to security of the person. The trial judge ordered that each appellant pay Mr. Bapoo $2,500 in damages pursuant to s. 24(1) of the Charter. While the trial judge concluded that the appellants believed that they had authority to use force to escort Mr. Bapoo, he found that they did not have that authority. Thus, on the trial judge’s findings, the appellants did not act with mala fides nor did they wilfully breach Mr. Bapoo’s Charter rights.

[8] The trial judge went on to hold that mala fides or wilfulness to breach the Charter were not essential prerequisites to awarding damages as a remedy under s. 24(1). Subsequent to the release of the trial judge’s reasons, this court delivered judgment in Ferri v. Ontario (Attorney General), 2007 ONCA 79, [2007] O.J. No. 397. At para. 108, LaForme J.A., writing for the majority, held that liability for a constitutional tort under s. 7 of the Charter requires proof of wilfulness or mala fides. He said the following:

Liability for a constitutional tort, such as under ss. 6 and 7 of the Charter as claimed here by Ferri and Mammoliti, requires wilfulness or mala fides in the creation of a risk or course of conduct that leads to damages. Proof of simple negligence is not sufficient for an award of damages in an action under the Charter: McGillivary v. New Brunswick (1994), 116 D.L.R. (4th) 104 at 108 (N.B.C.A.), leave to appeal refused, [1994] S.C.C.A. No. 408.

[9] Juriansz J.A., who dissented on other points, concurred with the majority on the need for mala fides or wilfulness as a prerequisite for an award of damages for a constitutional tort under the Charter (para. 167).

[10] On the basis of this court’s decision in Ferri, we conclude that the trial judge erred in awarding damages to Mr. Bapoo for his Charter claim. We therefore allow the appeal against the counterclaim and quash the awards of damages made below.

Notice of Constitutional Claim

[11] Given our conclusion in the preceding paragraph, it is not necessary to deal with the appellants’ other arguments attacking the awards of damages except for one.

[12] The appellants submit that Mr. Bapoo’s counterclaim should have been dismissed because he failed to give notice to the Attorney General for Ontario of a constitutional claim as required by s. 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. They argue that had the Attorney General been given notice, that would have fundamentally altered the way the Attorney General conducted the litigation both with respect to the counterclaim and the main proceeding relating to malicious prosecution. Thus, they say that the failure to give notice under s. 109(1) must result in a new trial on both the counterclaim and the malicious prosecution claim.

[13] We do not accept this argument. The Attorney General was present throughout the trial and had effective notice of the Charter claim and the counterclaim. On this appeal, the Attorney General accepts that he received adequate notice of the Charter claim. Assuming, however, for the sake of the argument that the Attorney General did not receive notice as required by s. 109(1), we see no merit to the appellants’ argument that there must be a new trial. The submission that the course of the trial may have been altered is premised on the notion that the Attorney General would have taken a different position at trial with respect to the alleged assault upon Mr. Bapoo. This notion is entirely speculative. Indeed, as counsel for the Attorney General points out, the Attorney General’s position at trial was based on the evidence as counsel assessed it. There is no reason to think that the same position would not have been advanced even if Mr. Bapoo had given a s. 109(1) notice.

Costs

[14] Finally, we deal with the issue of the trial judge’s award of costs. The trial judge awarded costs to all of the defendants at trial on the malicious prosecution claim on a substantial indemnity basis. In addition, he awarded costs in favour of Mr. Bapoo on the counterclaim on a substantial indemnity basis.

[15] The appellants challenge the award in favour of Mr. Bapoo arguing that it was based primarily on an unfair and inappropriate finding by the trial judge that they had perjured themselves when giving evidence at trial. They argue that they should have only been required to pay Mr. Bapoo’s costs on a partial indemnity scale.

[16] We agree with the appellants’ submission that the trial judge’s characterization of the appellants’ testimony as perjury was too strong. The trial judge found that the appellants committed perjury in his reasons for judgment. However, the parties had not clearly raised the issue of perjury either during the course of evidence or in closing submissions. When cross-examined, the appellants were not challenged on the basis that they were perjuring themselves. In closing submissions, counsel for Mr. Bapoo submitted that the trial judge should reject or disbelieve the evidence of the appellants but he did not go so far as to ask the trial judge to make a finding of perjury.

[17] In his reasons, the trial judge set out his basis for rejecting the appellants’ evidence and for preferring the evidence of others in several instances. We think, however, that in the circumstances, it was not appropriate for the trial judge to go further and to affix the criminal label “perjury” to the appellants’ testimony.

[18] That said, we are not satisfied that the trial judge’s award of substantial indemnity costs in favour of Mr. Bapoo in relation to the malicious prosecution claim should be set aside. The finding of perjury was one of the factors that led the trial judge to award costs on the higher scale. Our reading of the trial judge’s reasons indicates that even without the finding of perjury, he would have made the same order. A trial judge has a broad discretion as to the scale of costs to be applied. We see no basis to interfere with the trial judge’s award in this regard.

[19] Given that the appellants have succeeded on the counterclaim in this court, it is necessary to address the award of costs at trial in favour of Mr. Bapoo. A reasonable estimate is that the counterclaim consumed approximately 25 per cent of the trial time. The appellants should receive their costs at trial on the counterclaim on a partial indemnity scale. Accordingly, we reduce the costs award in favour of Mr. Bapoo at trial by 40 per cent.

[20] As to costs of the appeal, we deal first with Mr. Bapoo’s unsuccessful motion to quash the appeal. We direct that Mr. Bapoo pay the appellants costs fixed in the amount of $3,000, inclusive of disbursements and GST. As to the appeal proper, we have now considered the written material filed by the parties in a sealed envelope, which included the appellants’ offers to settle the appeal.

[21] The Attorney General was entirely successful on the appeal. The appellants are directed to pay the Attorney General’s costs on a partial indemnity scale fixed in the amount of $10,000, inclusive of disbursements and GST.

[22] As between the appellants and Mr. Bapoo, there has been divided success. Accordingly, we make no order as to costs with respect to the appeal.

“D. O’Connor A.C.J.O.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”