COURT OF APPEAL FOR ONTARIO

CITATION: Romanic v. Johnson, 2013 ONCA 23

DATE: 20130118

DOCKET: C55651

MacPherson, Cronk and Lauwers JJ.A.

BETWEEN

Michael Romanic

Plaintiff (Appellant)

and

Michael Johnson, Dan Nywening, Larry Chartier, George McCabe, Joe Matthews, Wendy Southall, and Niagara Regional Police Services Board

Defendants (Respondents)

Margaret A. Hoy, for the appellant

C. Kirk Boggs, for the respondents other than Michael Johnson

Heard: January 11, 2013

On appeal from the judgment of Justice K. L. Campbell of the Superior Court of Justice, dated June 12, 2012 with reasons reported at 2012 ONSC 3449, [2012] OJ No. 2642.

ENDORSEMENT

[1] In this action the appellant claims damages of over $1.1 million for the torts of malicious prosecution and negligent investigation. The appellant appeals from the summary judgment dismissing the action granted by K. L. Campbell J. of the Superior Court of Justice on June 12, 2012.

[2] The appellant and the individual respondents other than Michael Johnson were all employees with the Niagara Regional Police Services Board. The appellant also ran a business known as “Ace Mobile Locksmith”. A former employee of his business, Michael Johnson, made complaints about the appellant’s conduct of his business that resulted in a police investigation.

[3] On October 28, 2005, the appellant was charged with four criminal offences alleged to have been committed in connection with his duties as a police officer, being theft of some police equipment for his personal use, “unauthorized use of a computer” in improperly taking and misusing a police computer program, “breach of trust” in using his position as a police officer to promote his locksmith business, and obstructing justice in trying to discredit the reputation of a third party.

[4] The appellant and the Crown entered into a negotiated resolution agreement under which the Crown agreed to withdraw the criminal charges if the appellant resigned from his employment as a police officer. He did so on February 1, 2008, and the Crown withdrew the charges in open court on February 6, 2008.

[5] The appellant started this action in 2009. The respondents other than Johnson brought this motion for summary judgment.

[6] The motion judge identified the common element in the torts of malicious prosecution and negligent investigation as the requirement that the criminal proceedings on which the torts are based must have terminated in favour of the plaintiff, relying on Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at pp. 192-93, in respect of malicious prosecution, and Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at paras. 92 and 97, in respect of negligent investigation.

[7] The appellant argues that the motion judge did not properly apply the decision of this court in Ferri v. Ontario (2007) ONCA 79, 2007 ONCA 79, [2007] OJ No. 397 per LaForme J.A., at paras. 50-58. We disagree. The motion judge instructed himself in the following terms:

As a result of the decision in Ferri v. Root, it is clear that in cases where the criminal proceedings have ended in some type of negotiated resolution agreement, and the accused has subsequent[ly] launched a civil action against the police and/or the Crown, the court must examine the circumstances surrounding the agreement to try to understand the underlying reasons for the settlement. It is only after such an examination that the court may properly determine whether or not the termination of the criminal proceedings was truly in favour of the accused turned plaintiff.

[8] The appellant argues that he was recovering from cancer and was arrested and charged three days after he returned to work; he was too ill to fight the charges and he faced serious potential consequences if he were convicted. Counsel submits that the resolution agreement offered the appellant a reasonable way out in which he “faced no real sanction as part of the agreement.” This argument effectively asserts that the Crown was proceeding from a position of strength and raises the spectre of the abuse of Crown power in effecting the resolution agreement. In that light and context, the appellant argues that the termination of the criminal proceedings was in his favour.

[9] Again, we disagree. There is no evidence that the appellant was too ill to fight the charges, nor is it correct to say that he “faced no real sanction as part of the agreement.” As part of the agreed resolution, he was obliged to resign his position as a police officer. Moreover, although he retained his pension, at his examination for discovery he maintained that he lost part of his pension, had lost income from the locksmith business and had lost access to his benefits package.

[10] Taking the route prescribed by Ferri, and after analyzing the evidence, including the transcript of the criminal proceeding in which the Crown withdrew the charges, the motion judge found:

The evidence overwhelmingly and uniformly demonstrates that the only reason the Crown withdrew the charges was because the parties had reached a resolution agreement wherein, in exchange for the plaintiff's resignation from his job with the NRPS, the charges would be withdrawn, as the proceedings would no longer be in the "public interest." This was a bona fide, good faith resolution agreement between the parties that required the plaintiff to take an important remedial step, or quid pro quo, in order to secure the Crown's withdrawal of the charges. There is no suggestion that the Crown abandoned the prosecution as it had no reasonable prospect of conviction or only agreed to resolve the case to try to place the investigation or the prosecution beyond court scrutiny or avoid a civil action by the plaintiff. In the negotiation process, both parties were represented by skilled, experienced counsel and there is no suggestion that the Crown abused its position of power (e.g. fraud, duress) in order to secure the plaintiff's agreement.

[11] The motion judge found there to be no evidence suggesting that the resolution agreement was reached in order to avoid court scrutiny of a police investigation or a civil action for malicious prosecution arising from the abuse of any position of strength or any type of fraud, perjury, dishonesty or duress on the part of the police or the Crown. He pointed out that: “The affidavit of the plaintiff makes no such suggestion, and there is simply no affidavit by defence counsel for the plaintiff in the criminal proceedings.”

[12] The motion judge found that the appellant did not prove that the criminal proceedings against him ended in his favour. This finding of fact attracts deference from this court, absent palpable and overriding error. We see no such error. It follows that, as a matter of law, the appellant cannot make out the torts of malicious prosecution and negligent investigation on the facts. The motion judge did not err in concluding that no genuine issue requiring a trial arises in this case.

[13] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $9,000 as agreed by the parties inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“P. Lauwers J.A.”