COURT OF APPEAL FOR ONTARIO
CITATION: Hinds v. Group 4 Security, 2012 ONCA 207
DATE: 20120329
DOCKET: C54529
MacPherson, LaForme JJ.A. and Pattillo J. (ad hoc)
BETWEEN
Michael Hinds
Plaintiff (Appellant)
and
Group 4 Security, Group 4 Falck (Canada) Ltd., Ian Morison and Her Majesty the Queen in the Right of Ontario, Peel Regional Police, The Regional Municipality of Peel, The Regional Municipality of Peel Police Services Board and Rick Anthony
Defendants (Respondents
Benjamin Salsberg, for the appellant
John S. McNeil, for the respondent Ian Morison
Heard: March 23, 2012
On appeal from the judgment of Justice Beth A. Allen of the Superior Court of Justice, dated September 22, 2011.
ENDORSEMENT
[1] This is an appeal from the decision of the motion judge dated September 22, 2011 wherein she granted the respondents’ summary judgment motion and dismissed the appellant’s action against them.
Brief background
[2] The appellant commenced an action against police and other parties because of his arrest on criminal charges that were later withdrawn. The respondent, Ian Morison was a security guard at the condominium complex where the events giving rise to the charges against the appellant were originally alleged to have occurred. Because of this, Morison and Group 4 were included in the appellant’s action on claims of negligence or malicious prosecution in Morison’s identification of the appellant to the police, which was alleged to have led to the appellant’s arrest.
[3] In her reasons for decision, the motion judge held that the respondents had satisfied their obligation to show that there was no genuine issue for a trial. She found that the appellant, on the other hand, simply made allegations in his statement of claim for which he provided no factual support.
[4] The motion judge also found that the arrest of the appellant was a decision of the police, which they made before they spoke to Morison. She notes also that his incarceration and bail conditions were decided by the court and the decision to withdraw the charges was made by the prosecutor. In her view, the appellant did not establish a causal connection between his alleged damages and Morison.
The issues
[5] On appeal, the appellant submits that: (i) the motion judge erred in her application of the test for malicious prosecution; (ii) there is a genuine issue for trial as to whether the respondent deliberately or negligently gave the police false or slanted information; (iii) as a security guard, Morison owed a duty to the public at large to act honestly with integrity; and (iv) the motion judge did not apply the correct test for summary judgment.
[6] We disagree with the appellant’s submissions and the appeal must be dismissed.
Standard of Review
[7] Under Rule 20 the determination of whether there is a “genuine issue requiring a trial” is a legal determination and the standard of review is correctness. This is also the case on a question of mixed fact and law where it is said that the motion judge applied an incorrect standard, failed to consider a required element of a legal test, or any similar error in principle. And finally, if the motion judge correctly applied the legal test, any factual determinations made by the motion judge will be reviewed on the deferential standard of palpable and overriding error: Combined Air Mechanical Services Inc v Flesch, 2011 ONCA 764, at paras. 69-71.
Discussion
[8] In this case, the motion for summary judgment was essentially a question about whether the appellant pleaded the necessary basic facts to support his claims of negligence and malicious prosecution against the respondents. The motion judge found, after a review of the pleadings as supplemented by affidavit evidence, that the pleadings did not.
[9] The motion judge in her reasons correctly recited the elements necessary for a plaintiff to establish malicious prosecution and went on to apply that test to the case before her. She held that the pleadings did not make out an allegation of malicious prosecution since the facts necessary to make such a claim were not pleaded. We agree with that conclusion.
[10] Further, the motion judge goes on to correctly note that while there is a civil claim in malicious prosecution, the law does not recognise a discrete action for malice. In his claims of negligence or malicious prosecution the appellant had to show a causal link between the damage allegedly suffered and the respondents: Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, paras. 21-23. The motion judge held that the appellant had not established such causal connection. This too was a correct result.
[11] In our view, the motion judge set out the correct law related to the claims made by the appellant. She thereafter properly exercised her powers under Rule 20 and applied the correct test for summary judgment. She made a decision based on the evidence, or lack of evidence, that was before her. We see no error with the motion judge’s approach.
[12] On our reading of the appellant’s appeal, he appears to be essentially quarrelling with the motion judge’s analysis of the evidence. This is not a proper basis upon which this court should interfere with the decision of the motion judge. As this court has repeatedly reaffirmed – and as noted earlier - appellate intervention will only be warranted where the impugned finding of the motion judge amounts to palpable and overriding error. On this appeal the appellant has failed to demonstrate that the motion judge committed any such error.
[13] Finally, we note that the decision in this case was released just prior to this court’s decision in Combined Air, which deals with summary judgment motions. After a review of the record, including the motion judge’s reasons, it is clear to us that she was in compliance with the principles established in Combined Air.
DISPOSITION
[14] The appeal is dismissed. Costs of the appeal are awarded to the respondents fixed in the amount of $2,500 inclusive of disbursements and H.S.T.
“J.C. MacPherson J.A.”
“H.S. LaForme J.A.”
“L.A. Pattillo J. (ad hoc)”