COURT OF APPEAL FOR ONTARIO

CITATION: Fitzpatrick v. Orwin, 2014 ONCA 124

DATE: 20140214

DOCKET: C55718

Gillese, Rouleau and Tulloch JJ.A.

BETWEEN

David Fitzpatrick

Plaintiff (Appellant)

and

Shelley Orwin, Bill Squires and Anne Squires

Defendants (Respondents)

J. Morton, for the appellant

H. Rosenberg, for the respondents

Heard: February 13, 2014

On appeal from the judgment of Justice David G. Stinson of the Superior Court of Justice, dated June 18, 2012, with reasons reported at 2012 ONSC 3492.

ENDORSEMENT

[1] The appellant unsuccessfully sued the respondents for nuisance, malicious prosecution and conspiracy. The respondents succeeded on their counterclaim for intentional infliction of mental distress, trespass and wrongful registration of a certificate of pending litigation.

[2] On appeal, the appellant contends that the trial judge erred in drawing an inference in the absence of any direct or sufficient evidence on a material matter in issue.

FACTS

[3] The parties were neighbours whose relationship deteriorated following the death of the appellant’s mother.

[4] On November 11, 2007, the respondents contacted police regarding a verbal altercation between the appellant and Mr. O’Carroll, an individual hired by the respondents to build a fence on the boundary line of the parties’ properties. An audio recording of the incident captured the appellant threatening Mr. O’Carroll and using profane language.

[5] The following morning, the respondent Bill Squires went outside to his car. To his horror, he discovered a large dead coyote on the hood of his pickup truck, with blood dripping out of its mouth.

[6] The respondents’ video surveillance showed that during the evening of November 11, a figure approached the camera. Shortly afterward, the picture went dark. A subsequent inspection revealed that a cable had been detached from the camera.

[7] On November 13, the appellant was arrested and charged with criminal harassment. He denied placing the coyote carcass on the respondents’ car. The appellant remained in custody until released on bail on November 20, 2007. The Crown eventually concluded that there was no reasonable prospect of conviction and withdrew the charge.

[8] The respondents decided to sell their home and move elsewhere, at which point they discovered the appellant’s action against them for damages for nuisance, malicious prosecution and conspiracy. The appellant then obtained a certificate of pending litigation against the respondents’ home.

[9] At trial, the appellant abandoned his claims for nuisance and conspiracy, proceeding only with the claim for malicious prosecution.

THE TRIAL DECISION

[10] The trial judge did not find the appellant to be credible. He described the appellant’s account of the encounter with Mr. O’Carroll as “patently untruthful”. Other than in relation to matters corroborated by the documentary record, the trial judge did not rely on his testimony.

[11] The trial judge had concerns with some aspects of the respondents’ testimony. However, in relation to the material events, he found their testimony “firm and specific” and corroborated by other evidence. He concluded that the respondents’ testimony about the core events was both credible and reliable.

[12] Wherever there was a conflict between the appellant’s and the respondents’ evidence as to what transpired on November 11 and 12, 2007, the trial judge expressly rejected the appellant’s testimony and accepted that of the respondents, Mr. O’Carroll and the investigating police officer.

[13] The trial judge made the following pertinent findings of fact:

• The appellant acted in an increasingly hostile and abusive fashion toward the respondents after his mother’s death. His hostility was manifested in insults, abusive language and failure to respect the property line between their driveways.

• On repeated occasions, the appellant shouted at the respondents using profane and abusive language;

• The respondents attempted to assert their property rights by having a surveyor stake the property line, but the appellant removed the stakes and knowingly trespassed on the respondents’ property;

• With respect to the altercation on November 11, the appellant engaged in an unprovoked and verbally abusive confrontation with Mr. O’Carroll, during which he became enraged, shouted profanities and made threats;

• When the respondents listened to the tape of the incident, they felt genuinely threatened by the appellant and their decision to contact the police that day was made in good faith, based on genuine and well-founded concerns about their personal safety;

• The respondents believed that there were reasonable and probable grounds that the appellant had committed criminal harassment, and there were in fact reasonable and probable grounds to reach this conclusion.

[14] Of most significance to this appeal is the further finding by the trial judge that the appellant, or someone acting on his behalf, disabled the respondents’ video camera and placed the coyote carcass on the hood of their truck. In reaching this inference, the trial judge referred to, among other things: the ongoing, persistent, and increasing level of hostility the appellant had displayed to the respondents; the persistent dispute over the property line; the encounter between Mr. O’Carroll and the appellant on November 11; and the respondents’ evidence that on the morning of November 12, 2007, when Mr. Squires emerged from his home at his usual departure time, the appellant had stationed himself in his own driveway so that he could observe Mr. Squires’ reaction when he discovered the dead coyote.

[15] The trial judge dismissed the appellant’s claim for malicious prosecution. The respondents had not initiated the criminal proceeding. In any event, there were reasonable and probable grounds to believe that the appellant had committed criminal harassment and there was no malice on the respondents’ part.

[16] The trial judge held that the respondents had made out their claims for intentional infliction of mental distress, trespass and wrongful registration of the certificate of pending litigation. He awarded them damages of $201,533.29, including pre-judgment interest and $20,000 in punitive damages.

ANALYSIS

[17] This appeal is based on the appellant’s assertion that it was not open to the trial judge to draw the inference that he was responsible for the coyote carcass incident in the absence of any direct or sufficient evidence on that matter.

[18] We do not accept this submission.

[19] We begin by noting that the trial judge gave a carefully reasoned judgment based on the legally correct principles. His findings of fact are careful, thorough and detailed. His findings on credibility are similarly meticulous.

[20] Against that backdrop, we reiterate the well-known principle that a trial judge’s factual findings are not to be overturned absent palpable and overriding error. This standard applies to all factual findings, including the drawing of inferences from factual findings.

[21] Here, the trial judge’s inferences flowed from a logical review of the evidence. On the record, it was fully open to the trial judge to draw the inference that the appellant or someone acting on his behalf had placed the coyote carcass on the respondents’ car.

[22] The inference drawn by the trial judge did not result from speculation. Rather, it was based on his findings of fact and the factual circumstances of the case, including: the ongoing dispute between the parties; the incident that occurred on November 11, the day before the coyote carcass incident; the absence of any motive on the part of anyone else; and the direct evidence of the respondents that, on the morning of November 12, the appellant was waiting for Mr. Squires to leave his home and discover the coyote carcass.

[23] In regard to the last finding, contrary to the appellant’s assertion, the trial judge did acknowledge that Mrs. Squires had not mentioned this when she gave her statement to the police. However, as the trial judge explained at paras. 78-81 of his reasons, they were shocked and upset about the events of November 11-12, 2007, and any discrepancies arose from that.

[24] We do not accept that the present case is similar to 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279, 115 O.R. (3d) 653, the case relied on by the appellant. In Pet Valu, this court found that the trial judge had drawn an inference for which there was no valid evidentiary basis. On the contrary, in the present case, the inference that the trial judge drew was solidly grounded in the evidence. In our view, based on the trial judge’s findings, that inference was virtually inescapable.

DISPOSITION

[25] Accordingly, the appeal is dismissed with costs to the respondents fixed in the amount of $11,000, all inclusive.

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”

“M. Tulloch J.A.”