CITATION: Miguna v. Toronto Police Services Board, 2008 ONCA 799
DATE: 20081128
DOCKET: C46761
COURT OF APPEAL FOR ONTARIO
Rosenberg, Gillese and Blair JJ.A.
BETWEEN:
Miguna Miguna
Plaintiff (Appellant)
and
Toronto Police Services Board, Toronto Police Chief Julian Fantino, Roger Shallow, Fred Braley, L.Murarotto, Allessandro “Alex” Pandolfi, Audrey Chen, Wendy Leaver, Hugo Couto and Pasquale Alberga
Defendants (Respondents)
Waikwa Wanyoike, agent for the appellant, Miguna Migun
Kathryn Kirkpatrick, for the respondents Toronto Police Services Board, Toronto Police Chief Julian Fantino, L. Murarotto, Allessandro “Alex” Pandolfi, Audrey Chen, Wendy Leaver, Hugo Couto and Pasquale Alberga
James Kendik and John Zarudny, for the respondents Roger Shallow and Fred Braley
Heard: August 15, 2008
On appeal from the order of Justice James M. Spence of the Superior Court of Justice dated February 14, 2007.
R.A. Blair J.A.:
INTRODUCTION AND OVERVIEW OF THE CASE
[1] For the second time in three years Miguna Miguna’s statement of claim has come to this Court entirely – or, in this case, almost entirely – struck down. In the action he claims damages against the prosecution and police defendants for conduct arising out of his arrest, trial and acquittal on three charges of sexual assault. Although the action was commenced in July, 2004, no statements of defence have yet been delivered. I have concluded that it is time they were.
[2] The facts are summarized in Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 262 D.L.R. (4th) 222 (“Miguna No. 1”). I repeat them here.
[3] Miguna Miguna is a barrister and solicitor, practising in the areas of human rights law and immigration and refugee law, amongst others. He was born in Kenya, subsequently immigrated to Canada and became a Canadian citizen. He was called to the Ontario Bar in 1995.
[4] On November 4, 2002, he was arrested at his law offices and charged with sexual assault following a complaint from one of his immigration clients. On July 14, 2003, when he appeared in court for the commencement of his trial on that charge, he was arrested again and charged with three further counts of sexual assault arising out of the complaints of another immigration client. Both arrests took place in front of colleagues and the public. He alleges that he was arrested, searched, handcuffed and detained in full public view at the court house on July 14 notwithstanding that he had, four days earlier, attended voluntarily at the police station, with his lawyer, in response to a police query to his staff about his whereabouts during an absence from his office while he was in Kenya.
[5] On June 23, 2004, he was acquitted of all charges by Moore J. of the Ontario Court of Justice. The trial judge accepted his evidence, found that there were contradictions in the testimony of the two complainants and was suspicious that they had a common motive to implicate Mr. Miguna. Moore J. concluded that the police investigation of the case was wanting in some respects.
[6] Mr. Miguna commenced two proceedings against the Crown, the police, Her Majesty the Queen in right of Ontario, the Attorney General for Ontario and Legal Aid Ontario, alleging malicious prosecution (including a serious allegation of racial profiling), breach of his Charter rights, negligent investigation and assault on the part of the police, and a galaxy of other “causes of action”, some of which existed in law and some of which do not. The defendants moved to strike the claims and succeeded before Paisley J.
[7] This Court set aside the order of Paisley J. on December 14, 2005 – except for the portion of the order dismissing the action against the Attorney General for Ontario and Legal Aid Ontario – and permitted Mr. Miguna to deliver an amended statement of claim. The Court observed that the claim as then drafted was unfocused, overextended (in the sense of the 16-25 causes of action it purported to raise), replete with pejorative adverbs and adjectives superimposed one on the other as a substitute for pleading facts, and lacking in material facts to support the sweeping allegations made. Nevertheless, it should not have been struck since, at its core, it pleaded facts that could support a number of causes of action against the defendants.
[8] Mr. Miguna responded by delivering a fresh statement of claim on January 11, 2006 and – following a further demand for particulars by the defendants – an 88-page, 215-paragraph amended fresh statement of claim. In the new claim, he has limited his causes of action to malicious prosecution, Charter breaches (ss. 7, 8, 9, 11, 12, and 15), misfeasance and malfeasance in public office (abuse of process power in public office), negligent investigation (against the Police Defendants[^1] only), assault and battery, false arrest, false imprisonment, gross negligence or negligence as against Chief Fantino only, intentional infliction of emotional and physical distress, excessive use of force and loss of income.
[9] The fresh amended statement of claim was in turn attacked by the Police Defendants, the Crown Defendants[^2], Chief Fantino and the Toronto Police Services Board. Justice Spence struck most of the pleading in his order of February 14, 2007. Mr. Miguna now appeals from that order.
[10] For the reasons that follow, I would again allow his appeal and – with some exceptions outlined below – permit his action to proceed.
ANALYSIS
[11] The defendants sought to have the fresh amended statement of claim struck and the action dismissed against them pursuant to rule 21.01, on the basis that the claim discloses no cause of action or, alternatively, is frivolous and vexatious. In the further alternative, they asked to have numerous portions of the claim struck under rule 25.11, which empowers the court to strike all or part of a pleading that (a) may prejudice or delay the fair trial of the action, (b) is scandalous, frivolous or vexatious, or (c) is an abuse of the process of the court.
[12] The Crown Defendants contended that paras. 7, 15-17, 23, 27, 104-106, 109-143, 145-147, 149-154, 156-168, 192-198, 201-203 and 205 of the claim continue to constitute the improper pleading of bald allegations as against them; that paras. 16, 27, 104, 110-111, 118, 161, 165, and 195 constituted an impermissible pleading of negligence against the Crown; that paras. 28-34 were vexatious, scandalous, frivolous allegations and allegations inserted for colour or argument; and that paras. 23-24 misrepresented court proceedings and were therefore an abuse of process.
[13] For their part, the Police Defendants distilled their attack on the adequacy of the pleading into the following submission:
The fourth Statement of Claim still fails to comply with the Rules respecting pleadings, fails to plead sufficient facts and particulars to support the allegations made, does not clarify which cause(s) of action the facts pleaded are related to, pleads vague, speculative and inflammatory allegations, pleads allegations that are irrelevant, improper and embarrassing, includes argument and is replete with repetition.
[14] Not to be outdone, Mr. Miguna had responded to earlier correspondence from the defendants more or less setting out the foregoing complaints in a letter dated 16 February 2006 (an exhibit to the defendants’ materials) with his own volley:
Let us also agree that this is my statement of claim, not your respective clients’. There is absolutely no way that I can prepare a claim that the defendants approve of. To expect such a thing is not just unreasonable; it is also naïve. …
I would also like to state here categorically that I will not reorganize the Claim by grouping the causes of actions and listing the facts below each and every different cause of action as you are suggesting. First, you cannot purport to be drafting the claim for me. Second, the facts in support of all the causes of action are interwoven and intertwined. It would be virtually impossible for me to do what you are asking for. What you have, and will have in the Amended Fresh Statement of claim, are more than adequate facts in support of the claim. You may choose to characterize it in any negative manner you wish. However, this mischaracterization will not change those facts. Frankly, I have never pleaded more facts in my eleven years of practice than in this claim. ..
It is quite frustrating to see that all the defendants are more interested in pursuing a fight rather than in trying to move this matter along. I can assure everyone involved that I am not going to be legally bludgeoned to death in this case. I shall persist until the whole truth comes out and justice is done.
Errors in Principle
[15] In this cross-fire of assertions, I am persuaded that Mr. Miguna has the better of the argument. I do not consider the fresh amended statement of claim – far from perfect as it remains – to be as flawed as the defendants contend or the motion judge concluded.
[16] The motion judge committed three errors in principle in his approach to the analysis of the problem before him, in my respectful view. First, he struck out claims that this Court had already ruled the plaintiff was entitled to pursue. Secondly, and most significantly, he arrived at his decision by, in effect, trying the case – or, at least, dealing with the motion as if it were a motion for summary judgment – based on a meticulous analysis and weighing of the allegations in the pleading amongst themselves and compared with certain external evidence that he had.[^3] This is not the function of a judge when dealing with a pleadings motion such as this. Thirdly, he applied a test that was too narrow in relation to the central issue of malice. These errors permeate the motion judge’s reasoning.
Miguna No. 1: Claims Miguna is Entitled to Pursue
[17] The fresh amended statement of claim continues to contain the core allegations that were outlined in this Court’s earlier decision. The Court has already ruled that those allegations, if proved, could support the causes of action still being asserted. In Miguna No. 1, at paras. 16-17, the Court stated:
[16] Having said that, however, the statement of claim does contain some basis for alleging the core causes of action that are asserted, and in my view, Mr. Miguna should be given an opportunity to amend to make out his case properly on a pleading basis. For instance, he alleges that:
a) he was arrested without reasonable cause and without the police having conducted a proper investigation on both November 4, 2002 (at his law office) and July 14, 2003 (at the courthouse);
b) both arrests were made publicly with a view to embarrassing and humiliating him in front of staff, professional colleagues, the judiciary, members of courts administration and the public;
c) the July 14 arrest was carried out in full public view, and on the instructions of the Crown, notwithstanding that Mr. Miguna and his lawyer had only four days previously attended at the police station in response to an indication that the police had been looking for him;
d) Crown Attorney Shallow directed the police officers to have Mr. Miguna arrested;
e) the trial judge acquitted him because, amongst other things, (i) the police failed to conduct a full investigation and to interview important witnesses, (ii) he was suspicious the complainants had a common motive to implicate Mr. Miguna, and (iii) he found Mr. Miguna to be a credible witness; in addition, the trial judge also alluded to the fact that Mr. Miguna was arrested on July 14, 2003, “despite offers by Mr. Miguna and his counsel to present himself to the police prior to that date”;
f) Crown Attorney Shallow, alone or with the other defendants, sent fake clients to Mr. Miguna with the aim of entrapping him;
g) Crown Attorney Shallow continued to prosecute him when he (Shallow) knew or ought to have known that the complainants had falsely accused Mr. Miguna, misrepresented facts and evidence to the Ontario Court of Justice, interfered with witnesses, concealed evidence from the defence and the Court and counselled witnesses to commit perjury;
h) Crown Attorney Braley engaged in activities similar to those outlined in (g) above;
i) both Shallow and Braley participated in causing the venue of Mr. Miguna’s trial to be changed from the Ontario Court of Justice at 1000 Finch Ave. to the Court located at College Park in downtown Toronto with the intention of further injuring his professional reputation;
j) all individual defendants participated in racial profiling against him;
k) the Police defendants failed to investigate the complainants’ allegations against him prudently and to follow up where required, continued with the prosecution when they knew or ought to have known there was no reasonable basis for it, participated in the presentation of false evidence, failed to make full disclosure, and withheld evidence; and
l) he was assaulted by the police and subject to an illegal strip search during his detentions.
[17] These are very serious allegations, and are, of course, only allegations at this stage of the proceedings. Mr. Miguna fails to establish them at his peril in terms of costs and, possibly, his reputation. For the most part, the allegations are pleaded in an unacceptably bald fashion. However, if appropriately supported by material facts, and proven, they – and other facts pleaded – could support claims for malicious prosecution, breach of the Charter and misfeasance in public office as against the Crown Attorney and Police defendants, and as against the Police defendants alone claims for negligent investigation, unlawful arrest, false imprisonment, and assault and battery. In my view, the plaintiff should be entitled to one more chance to attempt to plead these claims properly.
[18] The foregoing allegations remain the centrepiece of Mr. Miguna’s claim. What he has done in his amended pleading, however, is to endeavour to provide the particulars of those allegations that he was previously criticized for omitting and that the defendants continued to demand. As the motion judge noted, “the Plaintiff has pleaded a very considerable amount of additional material.” It seems ironic that the causes of action which this Court had already ruled could be supported by the core facts initially pleaded should be struck completely when the pleading has been amended to provide further particulars.
A Pleading Motion is not a Trial or a Motion for Summary Judgment
[19] In any event, the motion judge erred in the approach he took to the disposition of the proceeding.
[20] The principles to be applied on a motion of this nature were summarized in Miguna No. 1, at para. 9:
On a motion to strike a pleading pursuant to Rule 21 of the Rules of Civil Procedure the facts as pleaded in the statement of claim must be taken to be true, although allegations of assumptions and speculation need not be accepted as such: see Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at 455. Where malice is alleged, full particulars must be provided : Rule 25.06(8). For a claim to be struck, it must be “plain and obvious” that no cause of action is disclosed: Hunt v. Carey, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.
[21] When it is sought to strike out a claim on the basis that it is frivolous or vexatious or an abuse of the process of the court, the court will only do so in the clearest of cases where it is plain and obvious that the case cannot succeed: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170 at para 3; Temilini v. Ontario Provincial Police Commissioner (1990), 1990 CanLII 7000 (ON CA), 73 O.R. (2d) 664 (C.A.). In Temilini, Grange J.A. put it this way at p. 668:
The plaintiff has pleaded all the essentials to establish his case. It is true that he is woefully short of evidence to prove his case but that is not, and in my view should not be, the test. The test, which has been articulated time and time again, and recently in Nelles v. Ontario [citations omitted], is that the rule should be exercised only in the clearest cases. Where a case cannot succeed because the law forbids it, the rule brings a salutary end to the proceedings. In cases depending on the facts, however, the court should be very loath to determine those issues in a summary fashion. When the case appears only to lack evidence, so long as the gaps may be filled, either by discovery or the revelation of evidence at trial, the case should be allowed to proceed. Trials are notoriously unpredictable. Many a case apparently hopeless on the facts has been transformed into a winner by an unexpected turn of events in the form of either a surprise witness or a witness giving surprising evidence. [Emphasis added.]
[22] The motion judge recognized these principles. At para. 11 of his reasons he said:
It is not disputed that on a motion to strike the test is whether it is plain and obvious on the facts pleaded that the claim of the plaintiff cannot succeed. The facts relied on by the Plaintiff must be properly pleaded. In applying the test, the Court is to assume that properly pleaded facts are true.
[23] Respectfully, however, he did not apply those principles. The error into which the motion judge fell is captured in the following observations of Carthy J.A. (McKinlay J.A., concurring) in Prete v. Ontario (1993), 1993 CanLII 3386 (ON CA), 16 O.R. (3d) 161 (C.A.),[^4] at pp. 168-169:
It is now necessary to deal with the alternative argument of the respondents that the statement of claim should be struck under Rule 21 or Rule 25 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194… [I]n my view, at this stage of the proceedings, the facts alleged in the statement of claim should be taken as true for the purpose of determining whether the claim discloses a reasonable cause of action. To do otherwise is to effectively conduct a summary judgment proceeding under Rule 20 without having the sworn evidence of the parties to this litigation as a basis for determining whether there is a genuine issue for trial.
In Nelles Lamer J. … put aside concerns expressed by other courts that such actions have an intimidating effect upon those who administer justice, observing that there are safe-guards in the rules for the early disposition of spurious claims. It is easy to infer from these comments that the court should, at the earliest stage of an action of this type, assess the reality of success and eliminate those cases that lack promise of success. In the present case, I have no hesitation in concluding that, on the basis of the entire record presented to us, the action is not likely to succeed. In fact, there is nothing to indicate that it will succeed, except the allegations in the pleading. But that is a very significant exception, and we should not depart from the rule that the pleadings must be taken as factually true simply because the allegations are serious and the case appears hopeless. [Emphasis added]
[24] The same error is reflected in the reasons of the motion judge. At para. 19, he said:
The Court should, at the earliest stage of a malicious prosecution action, assess the reality of success and eliminate those cases that lack any chance of success. … The Court [in Nelles] articulated the view that actions for malicious prosecution should receive special judicial scrutiny at an early stage and that the “rules of civil procedure should not act as obstacles to a just and expeditious resolution of a case.” [Emphasis added]
[25] He then cited the oft-quoted passage from the reasons of Lamer J. in Nelles:
In his conclusion, Lamer J., at paragraph 56, underlined the importance of being able to strike meritless actions for malicious prosecution at an early stage:
In my view the inherent difficulty in proving a case of malicious prosecution combined with the mechanisms available within the system of civil procedure to weed out meritless claims is sufficient to ensure that the Attorney General and Crown Attorneys will not be hindered in the proper execution of their important public duties.
[26] Courts need to scrutinize claims of this nature carefully. Like Carthy J.A. in Prete, however, I do not read Lamer J.’s comments as mandating an aggressive attempt by judges to weed out malicious prosecution actions at the early pleading stage by effectively turning motions to strike under Rules 21 and 25 into motions for summary judgment or a trial. I read them as pointing out, simply, that the concerns about a possible chilling effect on the administration of justice if such actions are permitted to proceed are at least partly met by the fact that a procedure for striking out meritless claims exists. Lamer J. was only reminding the profession of the existence of the procedure; he was not advocating that it be transformed into something else.
The Motion Judge Applied Too Narrow a Test With Respect to Malice
[27] The existence of malice is a central component of a number of the causes of action asserted by Mr. Miguna in this action. These include malicious prosecution, abuse of process (misfeasance or malfeasance in public office) and Charter breaches. Lack of reasonable and probable cause – an element of malice – is also an element of the torts of negligent investigation, false arrest and false imprisonment, which are asserted against the Police Defendants. Thus malice, and the pleading of facts designed to show malice on the part of the defendants – including lack of reasonable and probable cause – are important building blocks for Mr. Miguna’s claim and occupy large portions of the fresh amended statement of claim. The claim must be read as a whole in this regard.
[28] The motion judge’s analysis of malice is instructive, therefore, in understanding the error in his approach to the disposition of the motion. He concluded first that, in deciding whether the allegations made by the plaintiff assert facts that would support a finding of malice,
a) a court is not to infer malice, in the absence of direct evidence of malice, unless that is the only reasonable inference to be drawn from the facts;
b) the question for the judge should be: is it plain and obvious that a trier of fact could not conclude that malice is the only reasonable inference to be drawn from those facts?
[29] The motions judge then noted that the two elements of the tort of malicious prosecution at issue here are (a) whether the prosecution was commenced or continued without reasonable and probable cause, and (b) whether the prosecution was activated by malice. He followed this observation with a thorough analysis of the law relating to the concepts of “reasonable and probable cause” and “malice”. In relation to reasonable and probable cause, he determined that a plaintiff must demonstrate there is not even an arguable case to be presented by the prosecution to the Court for determination: Scott v. Ontario, [2002] O.J. No. 4111 (S.C.J.); aff’d [2003] O.J. No. 4407 (C.A.). In relation to malice, he accepted (i) that malice, for these purposes, consists of the “deliberate and improper use of the office” in which the wrongdoer “perpetrate[s] a fraud on the process of criminal justice and in doing so pervert[s] or abuse[s] his office and the process of criminal justice”; (ii) that recklessness alone is not enough to establish malice; and (iii) that a plaintiff must show the actual motive was improper, or demonstrate that the prosecution can only be explained by imputing a wrong and indirect motive: see Nelles; Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, at para. 35.
[30] The motion judge’s overview of the law with respect to malice is unobjectionable. However, he fell into error in two ways in applying it.
[31] First, his recognition of the high threshold that a plaintiff in such cases must meet led him to take an overly critical approach to the fresh amended statement of claim, as outlined above. Pleadings are to be given a generous interpretation at this stage, even allowing for the careful scrutiny that a case of this nature calls for.
[32] Secondly, his formulation of the test to be applied on the crucial question of malice was too narrow, in my opinion. In asking whether it was plain and obvious that a trier of fact could not conclude that malice was the only reasonable inference to be drawn from those facts, the motion judge failed to apply the law as he had articulated it. The principle is that, in the absence of direct evidence of malice, a court will not infer malice unless that is the only reasonable inference to be drawn from the facts. The motion judge only applied the second branch of the principle, however. Whether the evidence supporting the material facts pleaded in the claim is direct or circumstantial cannot be determined at this stage of the proceedings. Indeed, whether malice is the only reasonable inference that can be drawn from the facts pleaded is not something that is readily determined at the pleading stage. So much depends upon the testimony of the witnesses and the inferences and nuances to be drawn from that evidence. The proper test to be applied is whether it is plain and obvious that the material facts as pleaded could not lead to a finding of malice.
[33] This error compounded the mistake embedded in the process of analysis in which the motion judge engaged to determine the overall issue before him. Although acknowledging that he was required to accept the truth of the facts as pleaded for purposes of the request to strike the claims, he did not do so. Instead, he embarked on a process of assessing and weighing the allegations in the claim one against the other and then against the external evidence he took into account – in the fashion of a motion for summary judgment or trial. But even in doing that, he measured the allegations against a standard that was too restrictive. This only fuelled the motion judge’s view that Mr. Miguna was unlikely to succeed at trial and, therefore, that his claims should be dismissed at this stage.
[34] Evidence is admissible in relation to a rule 25.11 motion or in relation to the “frivolous and vexatious” aspect of a motion under rule 21.01(3)(d). It does not follow, however, that such a motion may be turned into an evidentiary disposition. The test remains: is it plain and obvious that the claim cannot succeed? The test is not whether it is unlikely the claim will succeed. Nor is the process one of weighing and assessing the evidence against the allegations as if the motion were a trial or a request for summary judgment.
The Fresh Amended Statement of Claim
[35] I do not propose to conduct a paragraph-by-paragraph analysis of the fresh amended statement of claim, as the motion judge necessarily did, or of the motion judge’s analysis of the allegations of malice. Although the motion judge accepted that the allegations respecting the attempted strip search could support a claim for malice, he rejected and struck – erroneously, in my view – most of the other facts pleaded that could support the claim. He did so, generally, because he thought they were either (a) insufficiently supported by particulars, (b) incapable of founding a claim for malice or (c) inconsistent with the transcript of the bail proceedings before Omatsu J. or with the reasons for judgment of Moore J. I do not agree.
[36] Four examples will illustrate the problem with respect to the malice claim.
Allegations that Mr. Miguna was Arrested on a Warrant and that he Made Threats to the Complainants
[37] First, I turn to one of Mr. Miguna’s principal allegations. It is that he was improperly subjected to an arrest procedure and a bail hearing as a result of misinformation provided to him and to the court by the Police Defendants and the Crown Defendants to the effect that he had been arrested on a warrant (which was not the case) and therefore could not be released on a Promise to Appear without the police conducting their normal in-station processing and without a bail hearing. Further, the impact of the bail hearing on him – in the form of more stringent bail conditions – was exacerbated by the misrepresentation by Mr. Shallow to the court that one of the complainants had made allegations of indirect threats from Mr. Miguna.
[38] These allegations are repeated at various points in the fresh as amended statement of claim, but are most directly set out a para. 23, which reads:
Mr. Miguna states as well that both the police and Crown defendants deliberately, maliciously and capriciously subjected him to a bail hearing (by lying to the Court and to him that he was arrested on a warrant and therefore could not be released on “A Promise to Appear” without a bail hearing). Defendants Shallow, Pandolfi and Chen lied to the court and to Mr. Miguna on 14 July 2003 both at the court and at the police station that one of the complainants, Amuiri, had informed Shallow that Mr. Miguna had communicated to Amuiri’s sister Kathuure Kebaara and sought to assert threats through Kebaara to Amuiri, and as such that Mr. Miguna would interfere with witnesses if released on bail. Mr. Miguna states and the fact is that both the court and he relied on that misrepresentation and lie to his detriment since he went through the bail hearing that day believing that there existed a warrant and that Amuiri had advised the defendants of the alleged threats (which were false). Mr. Miguna relied on these lies and misrepresentation when he proceeded to participate in the bail hearing and was compelled to demonstrate the reasons why he should be released on bail and ended up being forced to abide by oppressive, restrictive and extremely inhumane conditions up to his acquittal. Mr. Miguna states that these bail conditions are contained in the document issued to him containing the terms as well as in the transcripts of the bail hearing before The Honourable Madam Justice Omatsu dated 14 July 2003. Mr. Miguna states that he only became aware that the defendants had arrested him without a warrant and that Amuiri had never advised the defendants of the alleged threat during the trial when Amuiri took the stand and denounced the statement she was supposed to have made about the threats.[^5]
[39] The motion judge deals with this allegation at paras. 76 and 267 of his reasons. In the latter paragraph the pleading is simply struck as one of a series of paragraphs from paragraph 15 to 27 – outlining facts founding a claim for malicious conduct – that cannot stand. At para. 76 the motion judge states:
With respect to the allegations in paragraph 23, the paragraph asserts that Mr. Shallow told the Court that Mr. Miguna had sought to assert threats against Amuiri through another person, Ms. Kebaara. The transcript of the hearing contradicts this allegation, so it is frivolous and scandalous. This allegation permeates the entire paragraph so it must be struck. [Emphasis added]
[40] As I read the July 14 transcript, however, I can find nothing that contradicts the allegation that Mr. Shallow told the court of the threat allegations. Indeed, in my view, the transcript confirms that he did. Nonetheless, whether the motion judge is correct in his reading of the transcript is not the point. The point is that a trial – or at least a motion for summary judgment with evidence from the parties – is required to resolve the issue. It should not be determined at the pleading stage.
Reverse Onus at the Bail Hearing
[41] A second example involves the allegation that Mr. Shallow told the court the bail proceeding was a reverse onus situation. This allegation is also repeated in several places in the claim. It is relied on to show malice. One of the places where the allegation is repeated is at para. 95, in the portion of the pleading where Mr. Miguna deals with his claim under the heading “Second Arrest, Assault, Battery, Detention, Excessive use of Force, Malicious Prosecution and Charter Breaches”. Paragraph 95 states:
Mr. Miguna states that defendant Shallow claimed in court and defendants Pandolfi, Chen, Couto and Alberga falsely claimed at the police station on 14 July 2003 that he had been arrested on a warrant and that because of the warrant he [Mr. Miguna] was not just required to be subjected to a strip search, which defendants Chen, Pandolfi, Couto, Alberga and Murarotto threatened, but that he was also to [be] detained subject to a reverse onus bail hearing wherein he had to satisfy the court that he could be released on conditions. Mr. Miguna states that he relied on the defendants’ statements regarding the warrant and reverse onus bail hearing and participated in the bail hearing proceedings in which he was compelled to convince the court that he could be released on bail conditions. Mr. Miguna states that the defendants’ deliberate misrepresentations to him and to the court described here were motivated by malice and they constituted an abuse of power, an abuse of public office, a misfeasance and malfeasance in public office against Shallow and an improper conduct on the part of all the defendants herein. Mr. Miguna states that the defendants herein deliberately lied in order to have Mr. Miguna unlawfully detained and not released on bail and as such their actions constituted misfeasance and malfeasance in public office and improper conduct.
[42] The motion judge’s treatment of this allegation is a good example of his approach to the disposition of the motion. At para. 103 of the reasons he says:
Paragraph 95 alleges Mr. Shallow claimed (by implication, falsely) in court on July 14, 2003 that the Plaintiff had been arrested on a warrant and was therefore subject to a strip search and a reverse onus. The transcript of the hearing that day does not record any statement about whether there was a warrant, but the allegation is not specific as to whether the alleged statement was made during the Court hearing to the Court. The transcript records that Mr. Shallow told the Court that the onus was a Crown onus because the Crown had elected to proceed summarily, This record is not clearly inconsistent with the allegation of the Plaintiff at the beginning of the paragraph but later in the paragraph the Plaintiff pleads that he relied on the Defendants’ statements regarding the warrant and the reverse onus and participated in the bail hearings effectively on that basis. In view of the court record that Mr. Shallow said the onus was a Crown onus, this statement of the plaintiff must be considered vexatious and scandalous. The statement affects the entire paragraph, so all of it should be struck.[^6] [Emphasis added]
[43] In short, the motion judge conducted his own assessment of the facts in the pleading, weighed them against each other and against the external evidence of the bail hearing transcript, and decided that because one allegation was inconsistent with another piece of evidence the whole of that part of the pleading could not stand – again, because he felt “the statement [affected] the entire paragraph, so all of it should be struck.”
[44] The technique of concluding that a particular impugned allegation “affect[ed]” or “permeate[d]” the entire paragraph (reasons, paras. 76 and 103, for example) was resorted to frequently by the motion judge throughout his reasons. It does not necessarily follow, however, that simply because one portion of a pleading may not stand – for whatever reason – the remainder of that portion should be struck.
[45] The transcript does show that Mr. Shallow told Omatsu J. that the bail hearing was a Crown onus situation. To the extent that Mr. Miguna’s allegations in paras. 95, 24 and elsewhere, are intended to plead that Mr. Shallow misrepresented to the judge (“the court”) directly that the bail hearing involved a reverse onus, the pleading contradicts the record and cannot stand, subject to any allegation that the transcript is erroneous (which is not made). However, the allegation is that Mr. Shallow “claimed in court” and, as the motion judge observed, “the allegation is not specific as to whether the alleged statement was made during the Court hearing to the Court” or whether it was made during discussions “in court” but prior to the bail hearing. Thus, there may be – or there may not be – more to the evidence on this point as the case evolves. Moreover, the motion judge conceded that the allegations in the pleading were not inconsistent with the bail hearing record regarding the arrest under warrant issue. One wonders why the paragraph had to be struck in its entirety, therefore. The point is, though, that the determination ought not to have been made in this fashion at this stage of the proceedings.
Commission of Crimes after the First Arrest
[46] A third example of the same type of reasoning on the part of the motion judge may be found in his treatment of the allegations at para. 96 – under the same heading in the pleading. Paragraph 96 pleads:
Mr. Miguna states that the defendants Pandolfi, Chen and Shallow knew that Amuiri[^7] was Mr. Miguna’s client before he ever met Nderitu.[^8] They also knew that even though they had claimed that Amuiri came forward with her allegations after the first arrest involving Nderitu, all the dates Amuiri purportedly gave when the alleged sexual assaults took place predated the single date when Nderitu claimed she was assaulted. Mr. Miguna states that there was no allegation arising from any incident after Nderitu’s allegation. Notwithstanding the foregoing, Mr. Miguna states that the defendants deliberately lied to Mr. Miguna, to his lawyer and to the court that Amuiri’s allegations preceded Nderitu’s and as such, Mr. Miguna had purportedly “continued to commit crimes after the first arrest and therefore there is a need to curve (sic) out stringent bail terms in order to keep a tab on Mr. Miguna’s activities and movements.” Mr. Miguna states that the defendants’ actions constituted misfeasance and malfeasance in public office.
[47] The motion judge struck out this paragraph on the following grounds:
[106] Paragraph 96 alleges that the Defendants “lied to Mr. Miguna, to his lawyer and to the Court that Amuiri’s allegations preceded Nderitu’s and as such, Mr. Miguna had purportedly ‘contrived to commit crimes after the first arrest and therefore there is a need to curve (sic) out stringent bail terms in order to keep a tab on Mr. Miguna’s activities and movements’”. The allegation is confusing by itself and also when read in the context of the paragraph in which it appears. Earlier, the paragraph alleges that the Amuiri allegations related to sexual assaults allegedly made before the sexual assault alleged by Nderitu but the Police Defendants claimed the Amuiri allegations were made to them after the arrest of the Plaintiff in connection with the allegation made by Ms. Nderitu.
[107] According to the Reasons of Justice Moore dated June 23, 2004, the allegations pertaining to Ms. Amuiri relate to sexual assaults alleged to have occurred on September 9 and 24, 2002 and the allegation pertaining to Ms. Nderitu relates to a sexual assault alleged to have occurred on October 2, 2002. The Plaintiff was charged in respect of the Nderitu allegation on November 3, 2002. From Moore J.’s review of the evidence the allegations about Ms. Amuiri were first made to the police on November 13, 2002. This chronology is consistent with that which the Plaintiff alleges in the first part of paragraph 96.
[108] According to the transcript of the bail hearing, Mr. Shallow told the Court that the Amuiri allegation had an offence date of September 9, 2002 and he told the court that the (then new) charges relating to Amuiri allegedly predated the ones for Ms. Nderitu. In context, his reference to charges would have to be taken to mean the alleged offences which were the subject of the charges.
[109] The Plaintiff’s counsel was present throughout the bail hearing and made no objection to the advice Mr. Shallow gave to the Court about the chronology of events. The Plaintiff did not seek any review of the bail decision.
[110] For the above reasons, paragraph 96 is vexatious and should be struck.
[48] In effect the motion judge determined that, while the allegations in the pleading were consistent with the decision of the trial judge in the criminal case, they may be open to a different interpretation having regard to the transcript of the bail hearing; therefore, the plea respecting malice in this regard would not likely succeed and should be struck. Respectfully, this is not reasoning for a pleadings motion.
Instructions to Arrest
[49] A final example of this type of analysis may be found in the motion judge’s treatment of para. 90 of the claim, which states:
Mr. Miguna states that defendant Shallow ordered defendants Chen and Pandolfi to arrest him in court and insisted on his arrest and public humiliation in court when he had the choice of proceeding with the scheduled trial and asking the police to execute an arrest after or in a more humane and lawful manner. Mr. Miguna states that defendant’s Shallow, Chen and Pandolfi’s actions in either arresting or having him arrested in court in the presence of judicial officers, court workers, professional colleagues and members of the public scandalised him, injured his reputation and professional life by depicting him as a common criminal, caused him economic loss and caused him serious anguish and trauma. He states that the defendants Shallow’s Chen’s and Pandolfi’s actions constituted intentional infliction of emotional stress, psychological anguish and trauma.
[50] The motion judge struck this paragraph after a lengthy analysis of the transcript of the bail hearing pertaining to whether and why Mr. Miguna was to be arrested and to the fact that Mr. Miguna’s counsel had consented at the time to the Crown proceeding by way of summary conviction with respect to the second charges. He concluded that the allegation against Mr. Shallow in the first part of para. 90 “is materially inconsistent with the record and materially misrepresents what happened in court.” He therefore struck it out as vexatious and scandalous.
[51] It remains to be seen whether Mr. Miguna can establish this allegation at trial. However, he does not plead that Mr. Shallow gave the instructions to arrest while he (Mr. Shallow) was in court. He pleads that Mr. Shallow gave instructions to arrest Mr. Miguna while Mr. Miguna was in court. Therefore, the fact that the transcript may not reflect Mr. Shallow giving the instructions in court is not determinative. The question is not whether Mr. Miguna will succeed at trial. The question is whether the material facts as pleaded, and if proved, could support the claim alleged – in this instance, the claim for emotional stress. In my view, they could.
Conclusion on Errors in Principle
[52] The foregoing examples serve to illustrate the motion judge’s treatment of the core allegations of malice. They also contain the thrust of the complaints asserted by Mr. Miguna against the defendants and repeat the core allegations outlined earlier in these reasons and recited in Miguna No. 1. These allegations are repeated and elaborated upon – and legal conclusions are sought to be drawn from them – elsewhere throughout the fresh amended statement of claim.
[53] The defendants complain, on the one hand, that the allegations in the pleading are “bald and conclusory”, and, on the other hand, that they are verbose and “repetitive”. They are, to some extent, the authors of this dichotomy. Mr. Miguna was attempting to respond to their repeated demands that he provide further particulars and that he compartmentalize his allegations in accordance with his asserted causes of action. As noted above, he declined to do the latter, pointing out that the allegations were “interwoven and intertwined.”
[54] However, the effect is that allegations are repeated throughout the claim as Mr. Miguna moves from subject to subject and from targeted defendants to targeted defendants, sometimes with more particularity and sometimes with less. Occasionally – for example in paras 121 through 143 – he pleads legal conclusions, without repeating much in the way of particulars. When the claim is read as a whole, however, the defendants are provided with sufficient particulars of the various allegations, and of the legal conclusions flowing from them, to enable them to plead to the allegations. The discovery phase of the action will enable them to pinpoint the allegations – and the evidence supporting them – further. That is one of the functions of the discovery phase. To repeat the observations of Justice Grange, in Temilini (at p. 668):
When the case appears only to lack evidence, so long as the gaps may be filled, either by discovery or the revelation of evidence at trial, the case should be allowed to proceed. Trials are notoriously unpredictable.
Other Parts of the Claim
[55] The motion judge also struck pleadings for making claims not grounded in any cause of action known to law. I agree with the motion judge that “excessive use of force” and “loss of income” do not constitute separate and recognized causes of action. To the extent the allegations relating to those claims are intended to do so, they cannot stand. However, allegations relating to excessive use of force may be relevant to the other causes of action asserted and to the claims for damages arising out of them. “Loss of income” is a damage claim arising from the other causes of action as well. I would not interfere with the pleading on the basis of this attack.
[56] I will not attempt to deal with all of the remaining portions of the fresh amended statement of claim struck by the motions judge. Suffice it to mention the following.
Paragraph 16
[57] Paragraph 16 sets out the essential particulars underpinning the “no reasonable and probable cause” allegations with respect to the claims against Crown Defendants Shallow and Braley. It does so in 34 subparagraphs – (a) through (oo). Messrs. Shallow and Braley are said to have initiated and continued the prosecutions when they knew or ought to have known a lengthy litany of facts that showed the charges were without merit. With very little analysis these allegations were struck, apparently on the basis that they could not establish lack of reasonable and probable cause or malice generally.
[58] I disagree.
[59] This Court has held that continuing a prosecution in the absence of reasonable and probable grounds is capable of giving rise to an inference of malice: see Oniel v. Metropolitan Toronto (Municipality) Police Force, 2001 CanLII 24091 (ON CA), [2001] O.J. No. 90 (C.A.); Folland v. Ontario (2003), 2003 CanLII 52139 (ON CA), 64 O.R. (3d) 89 (C.A.). In Oniel, at paras. 54-55, Borins J.A. said:
Although the prosecutor may have reasonable and probable cause to commence a prosecution, if the prosecutor obtains information which suggests that the person probably did not commit the offence, or recklessly disregards advice that such information could be obtained through routine investigative steps, the prosecutor lacks reasonable and probable cause to continue the prosecution, and malice may be inferred.
… Continuing the prosecution in the absence of an honest belief in the appellant’s guilt would be incompatible with securing the ends of justice, and malice could be inferred if the respondents continued the prosecution with reckless indifference to the truth. Continuing a prosecution in these circumstances would not be using the criminal justice system for the purpose for which it was intended. [Emphasis in original]
[60] That is the nub of the allegations in para. 16 of the claim: the defendants Shallow and Braley initiated or continued the prosecutions against Mr. Miguna when they knew, or ought to have known – based upon the thirty-nine specific facts pleaded – that he had probably not committed the offences in question. Some of these particulars may seem remote and far-reaching. However, taken cumulatively – and assuming they can be proved – I do not see how it can be said that they could not form the components of a finding of lack of reasonable and probable cause and, flowing from that, of malice. While the “ought to have known” plea is not a specific plea of recklessness, it nonetheless bears on the defendants’ state of mind, which is an important component of both reasonable and probable grounds and of malice.
Paragraph 18
[61] Paragraph 18 of the claim outlines the plaintiff’s factual complaints in support of the assertion that the Police Defendants committed assault and battery against him. The motion judge appears to have concluded that because the allegation with respect to the threatened strip search did not involve any physical contact, no facts supporting the claim for battery were pleaded. Again, that is not the case. The particulars of the alleged assault and battery include:
a) that the Police Defendants physically touched the plaintiff and physically searched his pockets and body without his consent or reasonable cause;
b) that they physically took hold of his hands, roughly twisted them behind his back and placed a pair of handcuffs on them without his consent or reasonable cause;
c) that they placed the handcuffs too tightly on his wrists and caused pain and discomfort to him without his consent and reasonable cause;
d) that they physically pushed and shoved him into a tiny space behind the police cruiser even though they know that the space was too short and tight for his size and height without his consent or reasonable cause; and
e) that they refused to remove the handcuffs, or relax them, or place them with his hand facing the front after his request that they do so.
[62] There may well be defences to these allegations. On their face, if proved, however, the facts as pleaded could give rise to liability for both assault and battery. The threatened strip search is not the only material fact relied upon in this connection.
Paragraphs 107-144
[63] In paras. 107-144 of the claim Mr. Miguna makes “additional specific allegations against Roger Shallow”. For the most part, they repeat – sometimes in a more general summary manner – allegations made earlier in the pleading. With the exception of para. 107 (which merely pleads that Mr. Shallow is an employee of the Crown and was the person who prosecuted Mr. Miguna), the motion judge struck these paragraphs in their entirety. He did so for a variety of reasons, including that the allegations were “conclusory”, “bald”, “frivolous and vexatious”, and that they consisted of “assumptions and speculations”, and were assisted by the reasons of Justice Moore. In my view he erred in this regard.
[64] To repeat, the pleading must be read as whole. When that is done it is apparent – with a few inconsequential exceptions – what is being alleged and what the particulars of those allegations are. The motion judge concluded that some of the allegations were nothing but assumption and speculation because the particulars provided were not, themselves, supported by further particulars. Parties are not required to plead the evidence by which material facts will be proved. The fact that material facts, supported by particulars, are not further supported by additional particulars does not mean that the allegations are merely assumptions or speculation. Finally, in weighing portions of the pleading against the reasons of Moore J., the motion judge repeated the error – already discussed above – of effectively transforming the pleadings motion into a motion for summary judgment or a trial.
Paragraph 118
[65] Paragraph 118 – amongst the specific allegations against Mr. Shallow – received separate treatment from the motion judge. Its allegations are particularly stark. Mr. Miguna asserts that Mr. Shallow “persistently, recklessly and fraudulently misrepresented facts and evidence to the Ontario Court of Justice … purporting them to be true and accurate in his desperate attempts to have Mr. Miguna falsely prosecuted and/or convicted when he either knew or ought to have known that the assertions he was making in Court were clearly false, fabricated, concocted and baseless.” Over the course of 29 subparagraphs and six pages of his pleading, Mr. Miguna then set out the particulars of Mr. Shallow’s alleged “conspiracies, false, contrived, concocted, reckless, fabricated assertions and fraudulent misrepresentations.” It bears repeating again that none of these allegations is proven; they are mere allegations. However, they are detailed allegations.
[66] These included the assertions that Mr. Shallow:
(i) ordered and was complicit in the arrest of Mr. Miguna following the complaint of Ms. Amuiri after having improperly attended the police interview with her, thereby transforming himself into a witness rather than an objective and professional prosecutor;
(ii) ordered or was complicit in the arrest at the College Park Court – Mr. Miguna alleges the case was improperly moved from 1000 Finch Ave. West to College Park – for the sole purpose of humiliating, degrading, intimidating, harassing and threatening him;
(iii) ordered or was complicit in the decision to transport him to the police station and to attempt to forcefully strip search him at the station – falsely claiming that Mr. Miguna had been arrested on a warrant and therefore could not be released without having first been strip searched;
(iv) misinformed the court with respect to the threat allegations referred to earlier in these reasons;
(v) misinformed the court with respect to the relationship between the two complainants (Amuiri and Nderitu) and two other persons (Kathuure Kebaara and Anne Marie Mundia);
(vi) misinformed the court with respect to a long series of facts concerning Ms. Amuiri and Ms. Nderitu when he knew or should have know from other evidence they were not correct;
(vii) was complicit with the complainants and the defendants Pandolfi and Chen in having the complainants make false complaints against him;
(viii) acted in concert with the Police Defendants in sending fake clients to Mr. Miguna to entrap him and in conducting unwarranted surveillance at his office and home premises.
[67] At the conclusion of para. 118, Mr. Miguna pleads that all of the listed particulars demonstrate the type of activities incompatible with Mr. Shallow’s status as “minister of justice” and indicative of a deliberate and improper use of the office of Attorney General or Crown Attorney.
[68] These allegations are very serious. I reiterate: Mr. Miguna has not proved them yet, and, as previously noted, he fails to prove them at his peril in terms of costs and perhaps his reputation: Miguna No. 1, para. 17. “Proof” is not the issue at this stage, however. I have no hesitation in concluding that, taken as a whole, if they are proved, the facts alleged could form the basis of a finding of liability against Mr. Shallow.
[69] In striking the allegations in para. 118, the motion judge first took issue with the “ought to have known” portion of the plea that Mr. Shallow “knew or ought to have known” that his assertions in court were false. For reasons that I have previously indicated, I would not strike out the “ought to have known” allegation against Mr. Shallow in the circumstances of this case. While there is no claim against the Crown Attorneys for negligent investigation, their state of mind is very much in play in the action. Proof – if it can be established – that they ought to have known various facts, in combination with other facts, may constitute a building block towards proof of malice, although clearly insufficient to do so on its own.
[70] The motion judge dealt with the other allegations in para. 118 in various ways. He dismissed a number of them because he found that they were inconsistent with what appeared in the transcript of the bail hearing or the reasons for judgment of Moore J. For reasons that I have explained, this was an erroneous approach. Others he dismissed because – although he could not find inconsistencies – he found the allegations to amount to “assumptions and speculation”, relying upon the statement of Dickson J. in Operation Dismantle 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at p. 455 that “allegations based on assumptions and speculation” need not be taken as true. I do not think it can be said, upon a reading of the pleading as a whole, that the impugned allegations fall into that category. It may well be that Mr. Miguna is not able to prove them in the end. That, however, is a different matter.
Paragraphs 144-168
[71] In paras. 144 through 168, Mr. Miguna pleads “specific allegations against Mr. Braley”. As with the specific allegations against Mr. Shallow, these claims were struck too (except for the initial paragraph stating that Mr. Braley was the chief Crown Attorney at the 1000 Finch Avenue West courthouse and a prosecutor of Mr. Miguna). They were struck on the basis that they were “almost entirely bald and conclusory.” Again, however, the allegations must be read as part of the pleading as a whole, and when that is done it is readily apparent what the particulars of the various allegations against Mr. Braley are.
Paragraphs 169-207
[72] In a similar fashion, Mr. Miguna sets out what he calls “additional particulars on [the Police Defendants]” in paras. 169-207 of the claim. Because the motion judge permitted the action to proceed against all of the Police Defendants except for the defendant Leaver, on the claims of Charter breach (ss. 7, 8 and 15 only), abuse of power and assault, all of these portions of the pleading were not struck. However, the parts relating to malicious prosecution, racial profiling, negligent investigation, false arrest and false imprisonment, and battery were.
[73] The racial profiling allegations are particularly important to Mr. Miguna’s claim because, if established, they would tend to show malice, abuse of power and possibly a lack of reasonable and probable cause. At paras. 175 and 176 he pleads:
[175] Chen, Pandolfi and Murarotto deliberately detained Mr. Miguna at the 32 Division station rather than issuing a promise to appear at his offices or elsewhere due to their tendency at racial profiling and anti-black racism.
[176] Defendants Chen, Pandolfi, Leaver, Murarotto, Couto and Alberga racially profiled Mr. Miguna and believed that he had committed the alleged crimes due to their racism and discriminatory tendencies and not because of any credible evidence or any reasonable or probable grounds.
[74] The motion judge disposed of these allegations with the following cryptic comment at para. 294 of his reasons:
Paragraph 175 alleges “a tendency at racial profiling and anti-black racism”. The paragraph alleges no facts in support, unlike the allegations which the Court of Appeal found acceptable in Gnanasegaram v. Allianz Insurance Co. of Canada, 2005 CanLII 7883 (ON CA), [2005] O.J. No. 1076 so it should be struck. Paragraph 176 is speculative and cannot stand.
[75] Again, taking the paragraphs in isolation, the critique may be justified. However, the racial profiling allegations had already been outlined earlier in the pleading and racial profiling is listed in para. 182 as one of the ways in which the Police Defendants abused their powers. In paras. 11-14 Mr. Miguna pleads:
[11] Mr. Miguna states that the police defendants, Pandolfi, Chen, Couto and Alberga had no justification for arresting him in the manner described above, particularly because they had not obtained a warrant for his arrest, he had no criminal record, he had not violated a condition of his release or “undertakings”, the alleged complainants lacked credibility and the police defendants had not confirmed, verified, cross-checked or corroborated any of the complaints or “stories”, and the police defendants were not observing or had not observed him commit a crime. Mr. Miguna states further that the police defendants had no justification for taking him to the police station and detaining him there for an unreasonably long period of time. Mr. Miguna states that the manner of his arrest was unreasonably oppressive and it was consistent with the practice of racial profiling.
[12] Mr. Miguna states that the police officers refused or failed to simply issue him with “A Promise to Appear Form”, like they ended up doing at the police station on 4 November 2002, without the warrantless public arrest, detention and transportation to the police station. In the alternative, Mr. Miguna states that the police could have invited him to the police station for the arrest to be effected, but chose not to do so due to their malicious intent.
[13] Mr. Miguna states that, at all material times, the police defendants routinely charged white professionals or lawyers without arresting, handcuffing, detaining them in public or humiliating them in the manner they did to him. Mr. Miguna states that the police defendants treated him in the manner pleaded because he was an African and they unreasonably believed that he must have committed the crimes alleged merely because of who he was and not because of any reasonable and probable cause. As well, Mr. Miguna states that the defendant police officers unreasonably believed that they were justified to treat him in a cruel, oppressive and discriminatory manner because he was African and Black.
[14] The police defendants chose to arrest Mr. Miguna in full public view in both his law offices as well as at the College Park Courthouse due to their malicious intent, deliberate decision to abuse their powers, public office and in order to use excessive force against him.
[76] With the exception of the words “and it was consistent with the practice of racial profiling” at the end of para. 11, the motion judge permitted paras. 11-14 to stand. When paras. 175 and 176 are read in this context, it is apparent that the pleading does, indeed contain facts in support of them and – assuming the pleaded facts are true – that para. 176 is not speculative.
[77] With respect to the other allegations asserting “additional particulars on [the Police Defendants]” in support of the claims for malicious prosecution, abuse of power, negligent investigation, false arrest and false imprisonment, and battery, the motion judge’s reasoning is subject to the same criticism as that made earlier with respect to his treatment of the “additional specific allegations” against Crown Attorneys Shallow and Braley. The “additional particulars” are really a specific summary of the nature of the allegations being raised against the Police Defendants in the action. Read in the context of the entire pleading, the allegations are sufficiently clear to enable the defendants to plead to them.
[78] At the end of the day – subject to what follows – I am satisfied that the fresh amended statement of claim contains allegations of fact which, if proved, could form the basis for liability against the Crown Defendants and the Police Defendants as alleged (Mr. Miguna advances no claim for negligent investigation as against the Crown Defendants). While the pleading is not a model, and may even offend the rules respecting pleading in various isolated instances, it is apparent when it is read as a whole what the substance of the allegations made against the defendants is and what the particulars supporting those allegations are. A pleading need not be perfect. The defendants are able to know what the allegations against them, and the particulars of those allegations, are, and they are able to plead to them. It is time for them to do so.
The Claim against Detective Leaver
[79] The motion judge dealt with Detective Leaver separately and dismissed the action against her in its entirety. She is not alleged to have participated in the strip search incident.
[80] Detective Leaver testified at the criminal trial. She was the officer who took the call from a worker at Covenant House about a complaint by Ms. Nderitu, and who first spoke to Ms. Nderitu. Mr. Miguna alleges, amongst other things, that Detective Leaver:
a) told Ms. Nderitu that there were three other clients who were making sexual assault complaints against him and that her complaint would be strengthened as a result of that (Detective Leaver denied this assertion before Moore J.);
b) swore an information against him when she had not conducted a proper investigation and therefore could not have formed a reasonable belief about his culpability;
c) participated with the other Police Defendants and with Ms. Amuiri in concocting Ms. Amuiri’s claim against him;
d) participated with the other Police Defendants in posting Mr. Miguna’s name, the charges against him and the false allegations against him on the Internet and in the media; and
e) participated with the other Police Defendants in racially profiling him.
[81] The motion judge appears to have dismissed the claim against Detective Leaver on the basis that the allegations lacked particularity, that Moore J. had not found that she had lied in her testimony, and that the allegations in (d) above constituted a collateral attack on the disposition in a companion defamation action that Mr. Miguna had commenced. Again, I respectfully disagree. The allegations in (d) above do not constitute a collateral attack on another proceeding in these circumstances; if proved, they are another group of facts in a series of facts relied upon to show malice and use of public office for an improper purpose. With respect to the other allegations – for the reasons relating to the other Police Defendants – I am satisfied that the pleading adequately sets out the claim against Detective Leaver in a fashion that enables her to know the allegations she has to meet and to plead a defence to them. As with the other defendants, the allegations are, of course, nothing but allegations at this point.
The Claims Against Chief Fantino
[82] The potential liability of Chief Fantino and the Toronto Police Services Board is dictated in some respects by legislation not applicable to the other defendants. While I agree with the motion judge’s review of the relevant law pertaining to the claim asserted against Chief Fantino, I respectfully disagree with his conclusion that the claim should be struck at this stage.
[83] As the motion judge noted, a chief of police is not vicariously liable for the acts of his or her police officers during the course of their employment: Pringle v. London (City) Police Force, [1997] O.J. No. 1834 (C.A.), at para. 2. Nor is the chief responsible for policy matters relating to police operations, which are within the purview of the Police Services Board: Police Services Act R.S.O. 1990 c. P. 15, s. 31. However, a chief of police is responsible for the day-to-day operation of the police force. Subparagraphs 41(1) (a) and (b) of the Police Services Act state:
41(1) The duties of a chief of police include,
(a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31 (1);
(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;
[84] Therefore a claim could lie against Chief Fantino in negligence, if properly framed and pleaded.
[85] In paras. 40-45 of the fresh amended statement of claim the Chief is alleged, essentially, to have been negligent, reckless or wilfully blind in fulfilling his statutory responsibilities for the day-to-day operations of his police force (Police Services Act, s. 41). The factual basis for this claim is said to be that he failed to exercise his supervisory and managerial authority over the Police Defendants by failing to ensure that the Police Defendants were adequately trained and did not engage in the improper conduct attributed to them in the pleading – and particularized in para. 41, subparagraphs (a) through (kk). Chief Fantino is alleged to have been grossly negligent or negligent in failing to order a comprehensive review of this conduct, to have encouraged and condoned the creation of an environment that fostered such conduct, and to have acted “capriciously, recklessly, negligently, incompetently or he was wilfully blind regarding the negligence, negligent investigations, recklessness, racial profiling and racism of the defendant police officers”. He is alleged to have been motivated, in effect, by a desire to retaliate against Mr. Miguna because the latter “had acted against Fantino in previous litigation (both on behalf [of himself] or on behalf of his clients)”.
[86] The motion judge acknowledged that the failure of the Chief to take the steps he allegedly should have taken “could be negligent if he knew or had reason to know that the alleged misconduct was occurring and did not act against it”, but he concluded that there were no allegations in the claim to that effect (Reasons, para. 306). Similarly, the failure to take such steps might be negligent if the Chief failed to ensure that procedures were in place to identify and report instances of misconduct of the sort put against the Police Defendants, but again the motion judge found no such allegations in the pleading. Finally, the motion judge concluded that the allegation regarding the failure to conduct a comprehensive review could not stand because there was no suggestion that such a review had been requested or that the Chief had a duty to conduct one.
[87] Keeping in mind that pleadings are to be read generously at this stage and that the facts, as alleged, are to be taken as true, I arrive at a different conclusion. The assertion is that the Chief was reckless or wilfully blind in his approach to what is said to have been going on and, indeed, that he was motivated by extraneous considerations in not taking steps to intervene or to correct the alleged misconduct. Of course these serious allegations are merely allegations at this stage, and nothing has been proved. If they are established, however, they could give rise to personal liability on the part of Chief Fantino, as opposed to a vicarious liability claim based on the conduct of the Police Defendants. This is not one of those clear cases where it can be said to be plain and obvious that the claim cannot succeed.
The Claim against the Toronto Police Services Board
[88] At the same time, I agree with the decision of the motion judge to dismiss the claim against the Toronto Police Services Board (“the Board”) except to the extent the Board may be vicariously liable for the acts of the Police Defendants and the Chief of Police.
[89] The motion judge correctly accepted that a Police Services Board cannot perform or be held responsible for operational functions of a police force. Such matters are the responsibility of the Chief of Police: see Odhavji Estate v. Woodhouse (2000), 2000 CanLII 17007 (ON CA), 52 O.R. (3d) 181 (C.A.), at paras. 51-54; aff’d 2003 SCC 69, [2003] 3 S.C.R. 263; Police Services Act, ss. 31 and 41. The Board has no authority to supervise the Police Defendants, although it does direct the Chief of Police and monitor his or her performance. It is precluded from giving directions to the Chief with respect to specific operational decisions or with respect to the day-to-day operation of the police force: s. 31(4).
[90] The thrust of Mr. Miguna’s allegations against the Board is that the Board – acting on ulterior motives flowing from Mr. Miguna’s previous clashes with it and the Chief of Police personally – failed to prevent the very conduct Chief Fantino is alleged to have failed to prevent. The conduct asserted, however, is conduct that falls with the operational scope of the force’s activity, an area over which the Board has no power or control. The allegations that the Board failed to supervise the Chief of Police and ensure that he fulfilled his statutory obligations under the Police Services Act add nothing to the claim that is not encompassed in the Board’s potential vicarious liability.
[91] The action against the Toronto Police Services Board in all respects except for the vicarious liability claims cannot succeed, therefore, regardless of motivation, and was properly dismissed. I would permit para. 36 of the fresh amended statement of claim to remain in its entirety, but strike paras. 37- 39.
Allegations that are to Remain Struck
[92] I do agree with the motion judge that paras. 28 through 33 and para. 74 of the fresh amended statement of claim cannot stand. The allegations in those paragraphs are based on Mr. Miguna’s assertion that “he has reason to believe” in the facts set out. As this Court noted in Miguna No. 1, at para. 18, “Mr. Miguna must have knowledge of the facts supporting his claims and not merely plead allegations that he believes may or may not be true.”
Other Issue:
Collateral Attack on the Bail Hearing
[93] The Crown Defendants argued that Mr. Miguna’s allegations of prosecutorial misconduct were not raised during the criminal proceedings, but should have been, and that to permit him to raise them now in a subsequent civil proceeding would amount to permitting a collateral attack on the criminal proceedings and an abuse of process. They rely on this Court’s decision in Gilbert v. Gilkinson, 2005 CanLII 46386 (ON CA), [2005] O.J. No. 5347 (C.A.).
[94] In Gilbert, this Court upheld a decision by Spence J. dismissing a claim against three Crown Attorneys and a lawyer for alleged misconduct arising out of the plaintiff’s prosecution for breach of bail conditions and domestic assault. He was convicted on both matters. One of his allegations was that one of the Crown Attorneys had lied to the court in describing a certain document during the bail hearing. The Court held, amongst other things, that to allow him to pursue such an allegation would amount to an impermissible collateral attack on the bail order and the allegation was struck on abuse of process grounds.
[95] There are significant difference between this case and that of Mr. Gilbert, however. For one thing, Mr. Gilbert was convicted in the criminal proceedings whereas Mr. Miguna was acquitted. For another, Mr. Gilbert asserted no claim for malicious prosecution. In addition, the Court in that case was satisfied that there were no allegations in the pleading which, taken separately or read cumulatively as a whole, could support any allegation of maliciously improper conduct on the part of the defendants. That is not the case here.
[96] Accordingly, while I would not preclude the defendants from raising the Gilbert v. Gilkerson ground as a defence – if so advised – I would not strike out the claims, or any portions of them, on that basis, at this stage of the proceedings.
CROSS-APPEAL WITH RESPECT TO COSTS
[97] The motion judge made no order as to costs. The Police Defendants, Chief Fantino and the Toronto Police Services Board seek leave to appeal, and if leave is granted, appeal from that decision. In view of the foregoing disposition it is unnecessary to deal with this cross-appeal. Mr. Miguna has been substantially successful.
[98] I would grant leave to appeal but dismiss the cross-appeal.
DISPOSITION
[99] For all of the foregoing reasons, the appeal is allowed, with the exceptions noted, and the cross-appeal is dismissed. Specifically, the order of Spence J. dated February 14, 2007 is set aside and in its place an order made;
a) dismissing the motion to strike out the fresh amended statement of claim and the claims against all defendants (except the Toronto Police Services Board);
b) striking out the claims against the Toronto Police Services Board, with the exception of the claim for vicarious liability on account of the claims against the individual defendants, Alessandro Pandolfi, Audrey Chen, L. Murarotto, Hugo Couto, Pasquale Alberga and Wendy Leaver;
c) striking out paras. 28 – 33 and 74 of the fresh amended statement of claim; and
d) granting the Police Defendants, Chief Fantino and the Toronto Police Services Board leave to appeal from the motion judge’s order as to costs made April 30, 2007, but dismissing their cross-appeal in that regard.
[100] The defendants are to file their statements of defence within 90 days of the date of this order.
[101] Mr. Miguna is entitled to his costs here and below, fixed in total for both proceedings at $10,000.00 all inclusive.
“R.A. Blair J.A.”
“I agree M. Rosenberg J.A.”
“I agree E.E. Gillese J.A.”
RELEASED: November 28, 2008
[^1]: “The Police Defendants” are the defendants Murarotto, Pandolfi, Chen, Couto, Leaver and Alberga. [^2]: “The Crown Defendants are the defendants Shallow and Braley. [^3]: The external evidence consisted primarily of the transcript of Mr. Miguna’s bail hearing before Justice Omatsu in the criminal proceedings and the transcript of the reasons of Justice Moore for dismissing the criminal charges. [^4]: Leave to appeal to the Supreme Court of Canada refused: (1994), 17 O.R. (3d) xvii (note). [^5]: The underlined portions of this quotation, and others in these reasons, from the fresh amended statement of claim represent amendments made by Mr. Miguna following the decision in Miguna No. 1. [^6]: Paragraph 24 of the claim – dealing with similar allegations against all Crown defendants – was struck on the same basis, notwithstanding that it asserts claims against the Police Defendants as well (reasons, paragraph 104). [^7]: The second complainant. [^8]: The first complainant.