COURT OF APPEAL FOR ONTARIO

CITATION: Karatopis v. Antoniou, 2014 ONCA 299

DATE: 20140417

DOCKET: C57060

Feldman, Rouleau and Hourigan JJ.A.

BETWEEN

Stefanos Karatopis

Plaintiff (Appellant)

and

Paul Antoniou, My Hanh Tran, Pitsa Panagiota Pett Antoniou, and Alexandra Hewitt

Defendants (Respondents)

Carlin McGoogan, for the appellant

W. Bruce Drake, for the respondents

Heard and released orally: April 3, 2014

On appeal from the judgment of Justice Linda M. Walters of the Superior Court of Justice, dated April 23, 2013.

ENDORSEMENT

[1] The appellant appeals the decision of Justice Walters, dated April 23, 2013, dismissing his claim for malicious prosecution against My Hanh Tran and Paul Antoniou.

[2] The appellant submits that the trial judge erred in law in her consideration of the claim for malicious prosecution and misapprehended the evidence in this regard. We disagree.

[3] The trial judge provided detailed reasons for dismissing the appellant’s claim. It is evident from those reasons that the trial judge found much of the testimony of the parties to be not credible and that she found that the appellant had exaggerated the alleged inappropriate conduct engaged in by the respondents.

[4] The trial judge concluded, as she was entitled to do, that the lack of credible evidence meant that the appellant had not met his onus of establishing his claim for malicious prosecution on a balance of probabilities. We see no basis to interfere with those factual conclusions.

[5] The trial judge correctly identified the elements of a claim for malicious prosecution. She found that the evidence did not establish that it was the respondents, rather than the Crown that made the decision to prosecute. At p. 13 of her reasons, she found:

In considering those three circumstances, I am satisfied that with respect to the first circumstance, I’m not satisfied that the defendants desired or intended that the plaintiff be prosecuted. Instead, after being the subject themselves of a number of unfound police attendances, complaints to the fire department, complaints to the Humane Society and appeals to OMB, the defendants just wanted the behaviour of the plaintiff to stop.

[6] That finding is entitled to deference in this court. We do not accept the submission that the trial judge misapprehended the evidence in reaching this conclusion.

[7] Accordingly, the appellant did not establish the first element of the claim for malicious prosecution and the trial judge did not err in dismissing the claim. Given this conclusion, it is not necessary to consider the trial judge’s findings on the other requisite elements of the tort.

[8] The appeal is dismissed.

[9] Costs fixed at $7500, inclusive of HST and disbursements.

“K. Feldman J.A.”

“Paul Rouleau J.A.”

“C.W. Hourigan J.A.”