COURT OF APPEAL FOR ONTARIO

CITATION: 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656

DATE: 20160902

DOCKET: C59053

Juriansz, Epstein and Pepall JJ.A.

BETWEEN

495793 Ontario Ltd. c.o.b. as Central Auto Parts and Ricardo P. Mercuri

Plaintiffs (Respondents)

and

Frank Barclay and City of Thunder Bay Police Services Board

Defendants (Appellants)

C. Kirk Boggs, Jasmine T. Akbarali, and David Litwin, for the appellants

Paul J. Pape, and Joanna L. Nairn, for the respondents

Heard: March 1, 2016

On appeal from the judgment of Regional Senior Justice Helen M. Pierce of the Superior Court of Justice, dated June 10, 2014, with reasons reported at 2014 ONSC 3517.

Juriansz J.A.:

[1] This appeal is from a judgment finding the appellants, a police officer and the City of Thunder Bay Police Services Board, were negligent in investigating the individual and corporate respondents. The trial judge awarded substantial damages. For the reasons that follow, I would allow the appeal.

A. BACKGROUND

[2] Mr. Ricardo (“Rick”) Mercuri, along with his father and other family members, ran an auto recycling company, the respondent, 495793 Ontario Ltd c.o.b. as Central Auto Parts (“Central”), in Thunder Bay, Ontario. In 1997, the Thunder Bay Police Service began an investigation into stolen vehicles and auto parts in their community. On April 22, 1999, a search warrant was executed on Mr. Mercuri’s business premises. He was subsequently charged with eleven counts of possession of stolen property. Officer Frank Barclay was the lead investigator for the Thunder Bay Police Service. His team had the assistance of an officer from the Ontario Provincial Police (“OPP”) Provincial Auto Theft Team (“PATT”).

[3] In November 2001, after a preliminary inquiry, Mr. Mercuri was committed for trial on all eleven counts. Six charges were withdrawn after the Crown was required to disclose information on the confidential vehicle identification number (“CVIN”) after an unsuccessful application under s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5. An amended indictment of five charges was presented at trial, but the Crown withdrew two more charges. There were acquittals, after directed verdicts, on two of the remaining three charges that proceeded to trial before Wright J. of the Superior Court of Justice. On June 8, 2005, Wright J. found Mr. Mercuri not guilty on the remaining charge, without calling on the defence for submissions.

[4] In December 2005, Mr. Mercuri and Central sued Frank Barclay and the City of Thunder Bay Police Service in tort for negligent police investigation.

B. THE TRIAL DECISION

[5] On June 10, 2014, Pierce R.S.J., as she then was, issued judgment in favour of Mr. Mercuri and Central.

[6] The trial judge found that the police did not meet the standard of care in four respects: (a) they failed to familiarize themselves with the auto recycling industry practice; (b) they failed to understand the purpose or the scope of the Criminal Code or the case law relevant to their investigation; (c) they failed to consider, document, investigate and disclose innocent explanations or indicia of innocence; and (d) they failed to secure and preserve the plaintiffs’ property.

[7] For numerous reasons, the trial judge rejected the expert opinion evidence on the standard of care, which was provided by an auto theft investigation police expert. Though called by the respondents, he testified that the police had reasonable and probable grounds to arrest Mr. Mercuri for possession of stolen auto parts prior to the execution of the search warrant. The appellants did not call their own expert and relied on this testimony of the respondents’ expert.

[8] The trial judge observed that the courts have ruled on the reasonableness of the conduct of the police for centuries. She said although that oversight is often exercised in the context of criminal law, expert evidence is not necessarily required to reach conclusions about whether an investigation was negligent. In her view, this was one such case. She found that the police conduct was egregious “[i]n certain instances”, such as the failure to document and investigate innocent explanations and the wanton destruction of the plaintiffs’ property without legal authority. Moreover, she concluded that the lead investigator had conceded that the investigation was deficient and had apologized to the individual respondent during the course of the trial for errors in the investigation.

[9] The trial judge noted that there had been no real issue at trial that the defendants had a duty to secure and preserve the property they seized and that they failed to do so. The parties agreed there was a loss of $70,000 from the diminishment in value of vehicles and other auto parts the police had stored in an open police compound and exposed to the elements, and the destruction of airbags during a search for secondary identifiers inside them. The parties also agreed that Mr. Mercuri had paid $268,937.62 in legal fees to defend the criminal charges against him. The trial judge held that this amount should not be reduced to reflect the refusal of the criminal court to quash the search warrant.

[10] The trial judge awarded non-pecuniary damages of $200,000 for the humiliation and worry suffered by Mr. Mercuri while the charges remained outstanding for six years. In awarding damages for loss of business income, the trial judge considered the evidence of the experts tendered by each party on the quantum of business loss to Central as a result of the prosecution of Mr. Mercuri. The experts did not differ, for the most part, as to how damages should be quantified, but disagreed as to the length of time that income loss was suffered. The trial judge rejected the appellants’ expert’s opinion that the economic losses should be limited to 18 months, and awarded damages of $1,042,179.00 for the period from May 1, 1999 to September 30, 2008.

C. ISSUES

[11] The main question for this court is whether the trial judge erred by determining the content of the standard of care without expert evidence in the particular circumstances of this case.

[12] Second, the appellants allege that the trial judge, in formulating the content of the standard of care, erred by considering whether the police could prove Mr. Mercuri had knowledge that the auto parts were stolen rather than whether the officers had reasonable and probable grounds to believe that an offence had been committed.

[13] Third, the appellants also allege the trial judge ignored or misapprehended relevant considerations, including the committal of Mr. Mercuri to trial, the legislation at issue, Mr. Mercuri’s admissions, the evidence regarding the altered vehicle identification numbers (“VINs”), and Mr. Mercuri’s possession of stolen property.

[14] Finally, the appellants take issue with the assessment of non-pecuniary damages and damages for loss of profits.

[15] The respondents submit that the trial judge did not make any legal errors and that her factual findings are supported by the evidence, are reasonable and are entitled to deference. The respondents submit that the appellants conceded at trial that the trial judge could determine the standard of care without expert evidence, and should not be allowed to resile from that position on appeal. This submission was not borne out on my reading of the transcripts. While the appellants did not call an expert and did concede that it was for the trial judge to decide whether the standard of care had been breached, they never conceded that expert evidence on the content of the standard of care was unnecessary.

[16] Before addressing the issues raised by the appellants, it is necessary to briefly review the course of the police investigation of Mr. Mercuri.

D. OVERVIEW OF THE INVESTIGATION

(1) The Investigation Commenced in 1997

[17] The Thunder Bay Police Service began an investigation into stolen auto parts in 1997. Officer Frank Barclay, was an experienced officer. He had worked in the identification branch and the intelligence unit and had training in informant development. At the time of this investigation, he worked in major case management. Officer Barclay’s involvement in the investigation began in February 1997 when an officer referred an informant to him. A second informant was referred to him by a different police officer in May 1997. One of the two informants was a former employee of Central. Officer Barclay met with the first informant, who advised that vehicles stolen in Quebec were coming into Thunder Bay. The informant specifically identified Rick Mercuri of Central as a member of the group receiving stolen auto parts. The informant also identified a Quebec man, Gilles Joly, as a primary mover of the stolen property. Officer Barclay took steps to verify this information and, although Mr. Joly did not have a criminal record, there were prior notations about Mr. Joly in police reports concerning motor vehicles or motor vehicle parts.

[18] The second informant told Officer Barclay that the informant and Mr. Joly had made a trip from Thunder Bay to Winnipeg to transfer a car. That vehicle later became a part of the police investigation. Officer Barclay received information from a police officer in another province that was consistent with that informant’s information.

(2) The Nature of Auto Theft Investigations

[19] I accept that auto theft investigations are complicated and technical.

[20] Police officers must receive special training to conduct auto theft investigations, including learning how vehicles are marked with vehicle identification numbers, or VINs. Each vehicle has a VIN and each character of the VIN conveys information, such as the make and year of the vehicle and where it was built. Public VINs are found on dashboards, but labels on other parts, such as doors and glove boxes, also disclose the vehicle identification information. In addition, vehicles have confidential VINs, or CVINs, which are located in places not known to the public but disclosed by manufacturers to police officers under an agreement of confidentiality. Police are trained to look for inconsistencies between the VINs on different vehicle parts, and missing or altered VINs. VIN plates are often attached with rosette rivets, so police are also trained to look for VIN plates that have been glued on, indicating they may have been removed and reattached.

[21] Since only one officer in Thunder Bay involved in the investigation had auto theft training, and additional staff was required, Officer Barclay requested assistance from the OPP’s PATT. In February 1999, Officer George Kleinsteiber, an auto theft investigator with 18 years’ experience, was assigned to assist. In addition to his investigatory experience, Officer Kleinsteiber had created a province-wide course to train officers in auto theft investigation.

[22] Another matter affecting auto theft investigations is that this court struck down a presumption in the Criminal Code relating to this offence as unconstitutional, in Boyle and the Queen (1983), 1983 CanLII 1804 (ON CA), 41 O.R. (2d) 713 (C.A.). The offence of possession of property obtained by crime is set out in s. 354 of the Criminal Code. Section 354(1) provides that everyone commits an offence “who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from” the commission of an indictable offence. Subsection (2) explicitly addresses wholly or partially removed or obliterated vehicle identification numbers and provides that:

[E]vidence that a person has in his possession a motor vehicle the vehicle identification number of which has been wholly or partially removed or obliterated or a part of a motor vehicle being a part bearing a vehicle identification number that has been wholly or partially removed or obliterated is, in the absence of any evidence to the contrary, proof that the motor vehicle or part, as the case may be, was obtained, and that such person had the motor vehicle or part, as the case may be, in his possession knowing that it was obtained,

(a) by the commission in Canada of an offence punishable by indictment; or

(b) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

[23] Subsection 354(3) defines “vehicle identification number” as “any number or other mark placed on a motor vehicle for the purpose of distinguishing the motor vehicle from other similar motor vehicles”. Section 2 of the Criminal Code defines “motor vehicle” as “a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.”

[24] In 1983, this court in Boyle and the Queen considered the presumption of guilty knowledge from possession of a vehicle with an altered or obliterated VIN. The court declared the presumption of guilty knowledge in s. 312(2) (now s. 354(2)) constitutionally invalid but left intact the doctrine of recent possession in relation to possession of stolen goods as giving rise to an inference of guilty knowledge. Martin J.A., writing for the court, explained, at pp. 737-738:

Since, as I have held, the presumption is valid that a motor vehicle, the vehicle identification number of which has been removed or obliterated, has been obtained by an indictable offence, that presumption together with other evidence that shows that the indictable offence by which the vehicle was obtained was "recently" committed, e.g., that the vehicle or part had been "recently" manufactured, may give rise to the doctrine of recent possession and the inference of guilty knowledge arising therefrom. Guilty knowledge, apart altogether from any inference arising from possession of goods "recently stolen", may, of course, be proved by inferences from other circumstances, such as the giving of inconsistent accounts by the accused as to how he came by the property, the purchase of the property at an unreasonably low price, or the surreptitious manner in which the transaction by which the accused acquired the property took place, and an infinite variety of other circumstances. For example, the possession of several motor vehicles the vehicle identification numbers of which were obliterated might very well support an inference of guilty knowledge on the basis of the improbability of a person innocently acquiring a number of motor vehicles, the vehicle identification numbers of which had been obliterated. [Emphasis added.]

[25] As a result of Boyle, the Crown in Ontario prosecuting an accused for auto theft cannot rely on the presumption of guilty knowledge provided by s. 354(2).

[26] Officer Barclay acknowledged at trial that he did not know of the court’s decision in Boyle at the beginning of the investigation. However, he subsequently became aware that he could not rely upon s. 354(2)’s presumption of guilty knowledge and that the investigation had to establish a suspect’s knowledge. He was certainly aware of this by the time of Officer Kleinsteiber’s involvement in February 1999. Officer Barclay testified that he continued to be aware of that requirement as the investigation progressed and had always investigated with the need to prove knowledge in mind. Officer Kleinsteiber also testified that he spoke to the Thunder Bay Police about not relying on the presumption and the necessity of proving knowledge. Officer Fuhrman, one of the Thunder Bay Police officers involved in the investigation, had taken Officer Kleinsteiber’s two-week auto course. Officer Kleinsteiber testified that, during the course, a Crown had spoken at length about knowledge and the inability to rely on the presumption.

(3) Review of Documentation and Examination of Vehicles

[27] In addition to assessing the veracity of the information provided by the informants, the police began their investigation by researching vehicle and company registration information. Ownership history could be traced through registration files maintained by the Ministry of Transportation (“MTO”). Vehicles with a suspect history were found to have the common denominator of going through several Thunder Bay businesses, including Central. The police researched all vehicles registered under the registrant identification number of the business to identify suspect vehicles, and then conducted physical vehicle inspections.

[28] The police also conducted surveillance on Mr. Joly when he came to Thunder Bay. They observed Mr. Joly attending at Central. The police ran the plate of his vehicle and found that it was registered to a numbered company they had identified as being of interest in their investigation. The police obtained the VIN from Mr. Joly’s vehicle and found it was connected to an Ontario company at an address in Toronto. Officer Barclay was told by a Toronto auto theft investigator that they had an ongoing investigation into that address.

[29] This early investigation led police to believe that Mr. Mercuri and Central were associated with a number of vehicles whose identity had been disguised. The police identified vehicles that had been sold as salvage by insurance companies and registered to Central. They found that Central had purchased parts that appeared to be from stolen vehicles because the VIN plates and labels had been removed. The labels and VINs from the salvage vehicles were affixed to the suspected stolen parts. The police identified at least three such vehicles. These vehicles had their public VIN numbers glued, rather than riveted, in place.

[30] Police asked Mr. Mercuri to provide invoices to verify the origin of some of the suspected stolen parts. Some of the invoices were linked to companies that the police determined were non-existent or had phony addresses. For instance, a police officer examined a vehicle that Central had asked to be re-vinned. The cab, engine and transmission were identified as being from a vehicle that was stolen December 17, 1997. An invoice from December 20, 1997 for parts from Automobile Procarte to Central and a cancelled cheque were forwarded by Officer Barclay to the Sureté du Québec. An officer attended at the address on the invoice, found it to be a vacant lot, and advised that the address on the invoice represented a fictitious company. The officer spoke to a proprietor of the business next door, which had been there for a number of years, and was advised that there had never been an auto parts dealer at that location. The phone number on the invoice could only be linked to a pager. The police believed that invoice was fake since it was from a non-existent company. The police obtained a warrant for Central’s phone records and compared the numbers with other investigators. They found that some numbers were linked to individuals they believed were involved with the movement of stolen vehicles and parts.

[31] The police also learned that a number of truck cabs that Mr. Mercuri had obtained from another Quebec company, which were shipped to Winnipeg, were seized there and determined to be stolen. The police only learned later that on learning that the cabs were stolen, Central had reimbursed the Manitoba recycler for its costs and legal fees and had brought a civil action against the Quebec company. In his police interview, Mr. Mercuri had made some vague reference to a civil action. The police misunderstood his acknowledgement of these transactions to be an admission that he was knowingly dealing in stolen auto parts.

[32] In 1998 there were some changes in the auto industry. The MTO introduced a branding program for rebuilt vehicles which altered the process for re-vinning vehicles. The program was not mandatory until 2003. In 1999, Officer Barclay spoke to an MTO enforcement officer who advised that he was uncertain about the requirements for VINs being switched himself.

(4) A Search Warrant of Central’s Business Premises is Authorized

[33] Officer Barclay met with a Crown attorney on April 17, 1999, to advise him of the investigation. The Crown had no objection to proceeding with an information to obtain a search warrant and provided input into the possible charges. Officer Barclay testified that he believed there were grounds to obtain the warrant at that time and that he still maintained that belief at trial.

[34] The police obtained judicial authorization for a search of the Central premises, and the search was executed on April 22, 1999.

(5) Mr. Mercuri’s Voluntary Interview and the Search of Central

[35] Mr. Mercuri voluntarily attended at the police station for an interview just after he had been served with the search warrant and the search at the Central premises had commenced. At the outset of the interview, Staff Sergeant Hobbs cautioned him that, although he was not charged presently, he could be charged with possession of stolen property exceeding $5,000 contrary to ss. 354 and 355 of the Criminal Code.

[36] During the interview, Mr. Mercuri made several apparent admissions, which the trial judge found to be understandable miscommunication. Here is an example of the “miscommunication”:

Hobbs: Let’s cut the crap here you know that some of this is stolen property okay

Mercuri: Definitely

Hobbs: You do know that some of this is

Mercuri: Well now I know yeah

Hobbs: Okay

Mercuri: I knew before

[37] Towards the end of the interview, they continued:

Hobbs: Um now would you be willing to to [sic] come back with us to Central

Mercuri: Yeah

Hobbs: Um and point out all the stolen property now listen to me okay

Mercuri: Yeah

Hobbs: I want this to be very clear to you okay

Mercuri: Yep

Hobbs: The minute you do that

Mercuri: Yep

Hobbs: You’re probably going to be charged with possession of stolen property okay

Mercuri: Yep

[38] After cautioning Mr. Mercuri again of the potential jeopardy:

Hobbs: Okay would you be prepared to come back with us right now

Mercuri: Yeah

Hobbs: And point out the stolen property that’s on your property

Mercuri: Yeah I can that I’m aware of

Hobbs: Oh we’ll find other stuff okay

Mercuri: Yeah

Hobbs: So what I’m saying to you is the stuff that you obviously know is stolen okay I’d like you to point out stuff that you’re iffy about hey that’s fine everybody you know I mean you can’t know possibly known every single piece of inventory that you have right

Mercuri: Yeah yeah

Hobbs: Would you be prepared to do that

Mercuri: Yeah

[39] Mr. Mercuri also talked about having received stolen cabs from a Quebec company. As mentioned above, he only made a vague reference to his civil action against the Quebec company and did not mention he refunded his customers’ money.

[40] Following the interview, Mr. Mercuri returned to the Central premises and walked around with various officers. He identified a number of items which later formed the basis of some of the charges, including: pointing out a Sea-Doo that had its VIN removed and engine number removed, an Evinrude Motor with a partially obliterated serial number tag, and a stolen Ford Econoline van from New York. Mr. Mercuri also assisted the police in identifying doors and glove boxes missing their labels and cabs without VIN plates.

[41] Subsequent to the search, an employee of Central attended at the police station for an interview. He advised that he had removed VIN plates from salvaged truck cabs and glued them to cabs that had no VIN plates at Mr. Mercuri’s direction. Mr. Mercuri had also acknowledged this practice during his own interview. After charges were laid, Mr. Mercuri declined to speak any further with the police.

(6) Relevant and Related Judicial Proceedings

(i) Committal to Trial on All Charges After Preliminary Inquiry

[42] After a multiple day preliminary inquiry in the fall of 2000 and into 2001 before Walneck J. of the Ontario Court of Justice, Mr. Mercuri was committed to trial on eleven counts of possession of stolen property.

(ii) Application to Quash the Search Warrant

[43] Mr. Mercuri challenged the search warrant under s. 8 of the Charter of Rights and Freedoms at his criminal trial. The challenge focused primarily on the alleged deficiencies in the information to obtain, including the failure to provide the authorizing Justice of the Peace with material facts such as the trade practice in the local auto recycling trade, and the allegedly unreasonable manner of search, including the testing and destruction of airbags. After an eleven-day hearing, Wright J. dismissed the motion. He concluded that, even excising all of the facts shown to be incorrect or unfair in the information to obtain, there was still sufficient reliable information to support the authorization: R. v. Mercuri, 2004 CanLII 7053, [2004] O.J. No. 3415 (S.C.)

(iii) Crown Application under s. 37 of the Canada Evidence Act

[44] After the application to exclude the search warrant evidence was dismissed, the defence demanded disclosure of the secret locations of CVIN numbers. The Crown brought an application for non-disclosure before Wright J., pursuant to s. 37 of the Canada Evidence Act, which allows the Crown to object to the disclosure of information on the basis of a specified public interest. The application was unsuccessful and the Crown was ordered to disclose the location of the CVINs. Rather than making the ordered disclosure, the Crown withdrew six charges and presented an amended indictment of the remaining five counts. After argument on the new indictment, the Crown withdrew two more charges, and the trial continued.

E. ANALYSIS

[45] For the reasons that follow, I conclude that the trial judge erred by deciding the content of the standard of care without expert evidence. There are two exceptions to the general rule that expert evidence is required. Neither exception applies here. Without such evidence, there was no basis for determining the appropriate content of the standard of care of a reasonable Thunder Bay police officer conducting a specialized investigation into stolen auto parts, and consequently no basis upon which the trial judge could find that the standard had been breached.

[46] Moreover, as she proceeded, the trial judge committed the additional errors discussed below. With the exception of the parties’ agreement as to damages for loss of and damage to seized property, the trial judge should have dismissed the respondents’ action.

(1) The Lack of Expert Evidence on Standard of Care

(a) The Standard of Care

[47] The appropriate standard of care for the tort of negligent investigation was established by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. The “flexible overarching standard” is that of “a reasonable police officer in similar circumstances”: Hill, at para. 68. As explained by the Chief Justice, at para. 73:

The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information.

[48] The conduct of a reasonable police officer may vary depending on the stage of the investigation and the legal considerations. In laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty: Hill, at para. 55.

[49] The Supreme Court of Canada in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251, defined the concept of reasonable and probable grounds as requiring an arresting officer to subjectively have reasonable and probable grounds on which to base the arrest. It must also be justifiable from an objective point of view but need not demonstrate anything more. See also: R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 24. In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make an arrest: R. v. Storrey, at p. 251.

[50] The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, at p. 251; Wong v. Toronto Police Services Board, 2009 CanLII 66385, 2009 CarswellOnt 7412 (S.C.), at para. 54; Gioris v. Toronto Police Services Board, 2012 ONSC 6396, 2012 CarswellOnt 15071, at paras. 68-70. As explained by Thorburn J. in Wong, at para. 61:

The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused.

[51] The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill, at para. 50.

[52] Nor is a police officer required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds: Kellman v. Iverson, 2012 ONSC 3244, [2012] O.J. No. 2529, at para. 16; Wong, at para. 59.

(b) The General Rule is that Expert Evidence is required

[53] The general rule is that the content of the standard of care of a professional, such as a police officer, will require expert evidence: Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 O.A.C. 173, at paras. 34-35; Krawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 598, at para. 130, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319; Bergen v. Guliker, 2015 BCCA 283, 75 B.C.L.R. (5th) 351, at paras. 114-131; Camaso Estate v. Saanich (District), 2013 BCCA 6, at paras. 71-72, leave to appeal to S.C.C. refused, [2013] S.C.C.A. No. 92.

[54] As Smith J.A. explained on behalf of the Court of Appeal for British Colombia in Bergen v. Guliker, at para. 131:

While there are cases in which the breach of the standard of care will be apparent without expert evidence, typically when a suit is brought for professional negligence it is customary (and generally necessary), for there to be expert evidence on the standard of care. As the analysis in Hill makes clear, police officers are professionals and their conduct should be assessed in the same way that other professional negligence claims are evaluated. [Citations omitted.]

[55] Strathy C.J.O. in Meady explained that that general rule is subject to the exception for “nontechnical matters or those of which an ordinary person may be expected to have knowledge”. See also Krawchuk, at para. 133.

[56] Whether expert evidence as to the standard of care of a police officer is required turns on the nature of the issues and the facts of each case, with particular regard to the specialized or technical nature of the circumstances, and whether a trier of fact can rely on its own knowledge and experience to determine the appropriate standard of care and whether it is met.

[57] Epstein J.A., on behalf of this court in Krawchuk, identified two exceptions to the general rule that it is not possible to determine professional negligence without the benefit of expert evidence. The first, as mentioned above, is in nontechnical matters within the knowledge and experience of the ordinary person. The second is where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care. Epstein J.A. explained, at para. 135, that “this second exception involves circumstances where negligence can be determined without first identifying the parameters of the standard of care rather than identifying a standard of care without the assistance of expert evidence.”

[58] Several appellate cases have considered the application of the general rule and its exceptions.

[59] In Meady, this court deferred to the trial judge’s decision that he did not require expert evidence to determine the professional standard of care and dismissed the appeal. Meady was an action in negligence against two OPP officers and their employer by a number of passengers and the driver of a Greyhound bus. The bus crashed after a man, with whom the police had contact before boarding, grabbed the steering wheel. The trial judge held that the proposed police expert was not properly qualified and that, in any event, expert police evidence was unnecessary. The issue of appropriate police training, policies, investigation techniques and interaction with the public fell within the understanding of the trier of fact. The only live issue was whether crisis management should have been employed, and the training document to which the proposed expert referred was before the trial judge. The Chief Justice observed, at para. 47, that “[t]he exercise of police powers of investigation, arrest and detention and police interactions with the public falling short of coercion, are part of the daily diet of judges of the Superior Court.” Expert evidence was not required to understand or apply the standards set out in those materials or to assess whether the officers had properly applied their training.

[60] The Court of Appeal for British Columbia in Bergen allowed an appeal by the province from a judgment finding it 20% liable for a collision following a police pursuit. The court found that the determination of whether the standard of care was breached, following commencement of the police pursuit in question, required expert evidence on how a reasonable police officer would have gone about apprehending a mentally unstable and suicidal individual in the circumstances without causing harm to others. The court held that the proffered expert evidence was properly ruled inadmissible by the trial judge, but as a result, there was no basis for determining the appropriate standard of care and no basis upon which the judge could make key findings of fact related to whether a breach of the standard of care occurred. The court concluded that the trial judge had erred. In the absence of expert evidence, the judge could not have determined the content of the standard of care and could not adjudicate the claim.

[61] In Camaso Estate, the trial judge had found that expert evidence was required in a police negligence case in which the officer fatally shot the respondent’s husband. The Court of Appeal for British Columbia allowed the appeal because the trial judge did not refer to the expert evidence but rather imposed his own standard of care without any evidentiary basis.

[62] In Roy v. British Columbia (Attorney General), 2005 BCCA 88, 251 D.L.R. (4th) 233, leave to appeal to S.C.C. refused, [2005] S.C.C.A. 188, the death of an individual from extreme intoxication while in custody was at issue. On appeal, the majority of the court concluded that the trial judge erred by finding that the officers did not perform any adequate assessment or investigation into Mr. Roy’s state of consciousness or consider whether his significantly reduced level of awareness might require medical examination, in the absence of evidence of what a competent police officer would do in the circumstances. The issue related to matters beyond common experience and it was not a matter of a “non-technical nature or of which an ordinary person may be expected to have knowledge” and as such, expert evidence on the standard of care was necessary.

[63] In those police negligence cases in which the judge has proceeded without expert evidence, the case has been straight forward in nature: see Russell v. York Police Services Board, 2011 ONSC 4619; Lawrence v. Peel Regional Police Force, 2009 CanLII 19934 (ON SC); Wong.

[64] In this case the trial judge erred in departing from the general rule. She made no specific reference to the general rule, but her reasons suggest she considered she could rely on both exceptions. In my view, neither exception applied, as I explain below.

(a) This was a technical, complicated investigation

[65] This was a technical, complicated investigation, and the reasons the trial judge gave for considering the police conduct to be clearly egregious are flawed.

[66] The trial judge took the position she could determine the content of the standard of care, saying, at para. 46:

For centuries the courts have ruled on the reasonableness of the conduct of the police. Some examples of negligence are detailed in the jurisprudence concerning negligent police investigation. While the court's oversight is often exercised in the context of criminal law, I am of the view that the court may not necessarily need expert evidence to reach conclusions about whether an investigation was negligent. In my view, this is such a case.

[67] I do not read the trial judge’s reasons to suggest that the case was one involving nontechnical matters or within the knowledge and experience of the ordinary person. In fact, the trial judge rejected the testimony of Mr. Jeffrey Davis, a consultant and experienced former police officer (with the Commercial Auto Crime Bureau of the Peel Regional Police from 1994 until his retirement in 2010) whom she had qualified as an expert in auto theft investigations, partly because he “made no comment on police conduct as it related to industry practice” and “nothing in his background suggests that he is familiar with the auto recycling industry.”

[68] The trial judge listed the failure of the police to familiarize themselves with auto recycling practices as a significant reason for her conclusion that the police did not meet the standard of care. This was a failing she also found of Mr. Davis whom she qualified “to give expert evidence on auto theft investigation issues” and whom she said “was clearly knowledgeable about auto theft policing”.

[69] Though called by the respondents, Mr. Davis testified that the police already had evidence of possession of stolen property prior to the search warrant. He said he would have arrested Mr. Mercuri and would not have waited until afterwards. The appellants did not call expert evidence. They took the position Mr. Davis’ opinion established the standard of care.

[70] The trial judge did not accept the opinion of Mr. Davis. She explained, at paras. 40-45 of her reasons, why the evidence of Mr. Davis was, in her view, of limited use. It is not necessary to review her reasons for rejecting Mr. Davis’ testimony here. This court must defer to her weighing of his testimony.

[71] However, having rejected the available expert evidence, the question is whether the trial judge erred by departing from the general rule and deciding the case without any expert opinion as to the applicable standard of care in the particular circumstances.

[72] The case was replete with technical aspects of both legal and factual issues, such as what is a VIN; what parts of a vehicle constitute a “motor vehicle” under the Code; what parts contain a VIN; and the legitimate reasons in the auto recycling industry for transferring a VIN. The evidence disclosed a fundamental difference of opinion between automotive recyclers and the police about these matters. As well, the MTO introduced and implemented a “branding program” for rebuilt vehicles between 1998 and 2003. The trial judge noted, at para. 154, that “the police and the Ministry of Transportation were at odds about the process for re-vinning vehicles and that there was certainly confusion about what steps to take”

[73] In proceeding to determine the case, the trial judge placed a great deal of weight on the police’s lack of understanding of what she found to be standard practices in the auto recycling industry. The standard practices in the local auto recycling industry, as described by several witnesses at the civil trial, may have established that individuals in the local industry could offer innocent explanations for the removal or reattachment of VIN and certificate information, but was not sufficient to conclude that the police investigators were negligent. All this evidence had been called before Wright J. who noted in his ruling on the search warrant, at para. 58: “Much evidence and argument was put forward that this practice is a normal one in the trade. Perhaps it is. But the practice is one equally followed by those who are attempting to disguise stolen property.” I agree with Wright J.’s observation. The local practice that the trial judge found provided an innocent explanation for removal and reattachment of VINs could also be used by an auto recycler to camouflage dealing in stolen vehicles and parts. The trial judge failed to consider this.

[74] The trial judge made factual findings in relation to the police misunderstanding of auto recycling practices, and the investigators’ failure to recognize evidence to the contrary in terms of: (i) the use of original VINs and the practice of removing them, (ii) the ability to determine if a truck cab was “sanitized” absent knowledge of CVINs, (iii) the use of rosette rivets and glue; and (iv) the re-use of certification labels on doors and glove box labels. However, much of her analysis involved hindsight and the re-analysis of the issues which led to charges being withdrawn or to the acquittal.

[75] It is my view that the trial judge so erred. This case involved a technical police investigation that did not fall within the standard knowledge and experience of a Superior Court judge. I do not accept the respondents’ submission that by not calling their own expert on the standard of care the appellants consented to the trial judge’s proceeding without expert evidence.

(b) This was not an egregious case

[76] The trial judge offered three reasons why she considered the police conduct in this case to be egregious. She said, at para. 46:

In certain instances, police conduct was egregious: for example, the failure to document and investigate innocent explanations and the wanton destruction of the plaintiffs' property without legal authority. Repeatedly, the lead investigator, Officer Barclay, conceded that the investigation was deficient. He even apologized to Mr. Mercuri during the course of the trial for errors in the investigation.

[77] I discuss each of these in reverse order.

(i) Officer Barclay’s Apologies

[78] First, as a general observation, the acknowledgement of omissions and mistakes in hindsight does not establish the standard of care was breached in the context of the information known at the time. Second, Officer Barclay’s apologies must be understood in context. Officer Barclay, while acknowledging some mistakes, maintained steadfastly throughout his testimony that he had reasonable and probable grounds to lay charges based on the evidence known at the time. In fact, at trial he still believed the evidence demonstrated both knowledge and possession of stolen auto parts on the part of Mr. Mercuri. The trial judge noted his testimony in this regard at para. 160 of her reasons. However, while Officer Barclay acknowledged various deficiencies in the investigation, neither Officer Barclay nor the Thunder Bay Police Services Board conceded that the investigation had been negligent.

[79] For instance, Officer Barclay did apologize at the application to quash the search warrant and at the negligence trial in relation to having incorrectly put in the wrong, lower amount in relation to a key invoice (the actual invoice however being appended to the ITO). The concern was that the lower amount could have given the authorizing judge an inaccurate view of the value of the vehicle, an under-market value price more strongly supporting the inference that the vehicle was stolen. Despite Officer Barclay’s acknowledgment of this error, the search warrant was found, despite this and other problems, to be sufficiently reliable to support an authorization: R. v. Mercuri.

[80] Officer’s Barclay’s narrow and limited apologies provide insufficient support for the trial judge’s conclusion the police conduct in this case was egregious.

(ii) The Wanton Destruction of the Respondents’ Property

[81] As has been noted above, there was no issue at trial that the police had failed to properly secure and preserve the respondents’ property after it was seized. The trial judge’s reference to wanton destruction of property refers to the police having blown up airbags in an attempt to retrieve numbers from them, and to storing other auto parts outdoors with the result that they rusted and lost value over time. More importantly, it was not an issue that addressed the question of whether the police had reasonable and probable grounds to arrest and charge Mr. Mercuri. At most, it was some circumstantial post-charge evidence in terms of the overall conscientiousness demonstrated by the police.

(iii) The Police failed to Consider, Document, Investigate and Disclose Innocent Explanations or Indicia of Innocence

[82] It is useful to remember that the exception for egregious conduct applies when the police conduct is “so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care”. Dictionary definitions of “egregious” include synonyms such as shocking, appalling, terrible, awful, horrendous, frightful, atrocious, abominable, abhorrent, and outrageous.

[83] The trial judge had no evidence of the note taking, and disclosure practices expected of a police service in 1999. She had no proper framework to conclude the failures in this case were egregious.

[84] Moreover, the trial judge’s criticism of the police for failing to follow-up on, or take steps to become aware of, possible innocent explanations ignores the established jurisprudence that police are not required to exhaust all avenues of investigation, establish that an accused has no defence, or even obtain an accused’s version of events: Wong, at paras. 57, 59, 68; Roda, at para. 73; Lawrence, at para. 48; Grann v. Thunder Bay Police Services Board, 2015 ONSC 438, at paras. 24-25; Wiles v. Ontario (Police Complaints Commissioner), [1997] O.J. No. 6274, 1997 CarswellOnt 6039.

[85] In an exercise of hindsight, the trial judge fixated on whether there were innocent explanations and found those explanations in the practices of the auto recycling industry and Mr. Mercuri’s trial testimony

[86] With respect, the police failures identified by the trial judge in this case were simply insufficient to support a finding their conduct was egregious.

(c) Conclusion on the Lack of Expert Evidence Issue

[87] The trial judge erred in determining the content of the standard of care without expert evidence in the particular circumstances of this case. This was a technical, complicated investigation outside the knowledge of an ordinary person and there was no basis for finding the police conduct was egregious.

[88] This conclusion provides a sufficient basis to allow the appeal. However it is useful to discuss the other issues.

(2) Whether the Trial Judge Erred in Formulating the Content of the Standard of Care by Considering Whether Police Could Prove Mr. Mercuri Had Knowledge that the Auto Parts Were Stolen

[89] Even if the trial judge could have determined the standard of care without relying on expert evidence, she erred in formulating the content of the standard of care. As mentioned above, the standard of care is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty: Hill, at para. 55.

[90] The trial judge repeatedly used language that suggested that the police obligation was to prove Mr. Mercuri’s guilt in order to be acting reasonably.

[91] Whether police had reasonable and probable grounds to charge is what should have informed the standard of care. And it seems clear that police did so. During the investigation, there was a progression in the accumulation of a body of circumstantial evidence of knowledge that supported reasonable and probable grounds for the charges. This was so at least until the post-committal stage, when the credibility of Mr. Mercuri’s apparent admissions would come into play and the potentially exculpatory evidence required ongoing assessment as to whether there was still sufficient evidence of knowledge. But at that point, the ball was already in the hands of the Crown and the judiciary.

[92] Further, the trial judge relied upon the alleged failure of the police to understand the purpose or scope of the Criminal Code or the case law relevant to their investigation. The trial judge commented that Officer Barclay did not know that the knowledge presumption in the Criminal Code had been struck down when he commenced the investigation in 1997 and that one of the other officers involved was aware of it at the time of the search warrant. The trial judge acknowledged that Officer Barclay testified that he was aware the presumption had been struck down after discussing it with the OPP officer early in the investigation and that he believed and insisted that knowledge could be proven by the totality of the evidence without relying on the presumption.

[93] Despite this recognition, the trial judge concluded that the police did not conduct the investigation as though they were aware of that change in the law. She stated:

In this case, the police paid lip service to the requirement to prove Mr. Mercuri knew that vehicles or parts in his possession were stolen. They did not evaluate the evidence they collected with proof of his knowledge in mind. They did not appear to turn their minds to the provision in s. 354(2) of the Code that “evidence to the contrary” provides a defence to possession of a motor vehicle with a VIN that is wholly or partially removed or obliterated. The failure to understand the law relevant to their investigation does not meet the standard of care for a police officer in the circumstances.

[94] Officer Barclay’s testimony was clear that he did conduct the investigation on the basis of the need to prove and not just presume knowledge. The course of the investigation is consistent with this. The trial judge’s finding to the contrary is not supported by the evidence.

[95] Guilty knowledge can be established a number of ways, as Martin J.A explained on behalf of the court in Boyle, at para. 61. The possession of several motor vehicles with obliterated VIN numbers which “might very well support an inference of guilty knowledge” on the basis of the improbability of a person innocently acquiring such a number of motor vehicles, or “the giving of inconsistent accounts by the accused as to how he came by the property, the purchase of the property at an unreasonably low price, or the surreptitious manner in which the transaction by which the accused acquired the property took place, and an infinite variety of other circumstances.”

[96] As defence counsel for Mr. Mercuri at the criminal trial acknowledged during Mr. Mercuri’s testimony at the civil trial, the statement made by Mr. Mercuri was probably enough to deal with the knowledge issue for a preliminary hearing, and could only be explained away at trial.

(a) Conclusion on the Content of the Standard of Care Issue

[97] I would conclude that the trial judge, in formulating the content of the standard of care, erred by considering whether the police could prove Mr. Mercuri had knowledge that the auto parts were stolen rather than whether the officers had reasonable and probable grounds to believe that an offence had been committed.

(3) Whether the Trial Judge Ignored or Misapprehended Relevant Considerations, including the Committal of Mr. Mercuri to Trial and Other Judicial Proceedings

[98] The trial judge’s errors were compounded by her failure to accord proper weight to the fact that there had been a committal to trial on all charges after a preliminary hearing, or to the role of the Crown and the criminal justice system as the prosecution proceeded.

[99] The trial judge said “[i]n my view, the police cannot hide behind a committal for trial to suggest that their investigation was not negligent.” The trial judge failed to consider the substantial body of jurisprudence holding that the fact that a preliminary hearing specifically concluded that there were reasonable and probable grounds for the charges laid is strong evidence that the investigation, to that point at least, did not violate the standard of care: Thompson v. R. (1998), 113 O.A.C. 82, 1998 CanLII 7180 (C.A.), at para. 39; Roda v. Toronto (City) Police Services Board, 2016 ONSC 743, [2016] O.J. No. 513at para. 75; Fragomeni v. Greater Sudbury (Police Service), 2015 ONSC 3937, at para. 103; Wong, at para. 60; and Chmielewski v. Regional Municipality of Niagara Police Services Board, 2007 CanLII 31778, 2007 CarswellOnt 7086 (S.C.), at para. 38, aff’d 2009 ONCA 51.

[100] At paras. 150-151, the trial judge expressed amazement that the police charged Mr. Mercuri with possession of stolen goods that they knew were delivered to Central under contract to crush them, but persisted with the prosecution of the charge until it was dismissed in 2005. She did not consider the fact that the police theory of that aspect of the case was that keeping the goods that were supposed to be crushed was theft by conversion. This is a sound theory in law. Mr. Mercuri was committed for trial on this charge.

[101] The trial judge also found, at paras. 32-33, that the police could not shift the onus onto the Crown once charges were laid, noting that the Crown’s ability to evaluate the merits of the charges had been limited by the information the police gave him and that “Crown counsel assigned to the case became more dubious about the merits of the charges the more he learned about the case.”

[102] However, as Wilson J. stated in Solomonvici v. Toronto (City) Police Services Board, 2009 CanLII 39060, 2009 CarswellOnt 4418 (S.C.), aff’d 2010 ONCA 85, in dismissing an action for negligent investigation, at para. 12:

It is important to note that it is up to Crown Counsel to make the determination of whether or not there are sufficient grounds upon which to proceed to trial in any particular case. The mere fact that the counsel was of the view that the chance of a conviction on the sexual assault charge was not strong does not mean that there were not reasonable and probable grounds upon which to lay the charge.

[103] The Chief Justice emphasized in Hill, at para. 50, that while the standard of care of a reasonable police officer requires police to weigh evidence to some extent during the course of an investigation, “they are not required to evaluate evidence according to legal standards or to make legal judgments”, that being the task of prosecutors, defence counsel and judges.

[104] The trial judge failed to place any weight on the committal for trial. She also failed to fully assess the role that the Crown played in providing oversight of the prosecution despite the inadequacies in what was provided, and to give sufficient consideration to the fact that there were several relevant determinations in the criminal proceedings. These failures further undermine the trial judge’s conclusions that the standard of care in this case could be evaluated based on the knowledge and experience of a Superior Court judge and that the conduct was clearly egregious.

[105] Next, the trial judge did not give proper consideration to the fact that the deficiencies in the information to obtain the search warrant had been considered in the course of the criminal proceedings and that the criminal trial judge had concluded that the deficiencies did not warrant exclusion of the evidence. Nor did the trial judge adequately consider the connection between the withdrawal of charges and the s. 37 ruling requiring the Crown to disclose the location of CVIN numbers. Those charges were not withdrawn because the Crown perceived some deficiency in the reasonable and probable grounds to charge Mr. Mercuri. The Crown could have decided to reveal the CVINs and continue with the prosecution. The trial judge leapt from the withdrawal of those charges to a finding of negligence premised on the failure of the police. She failed to adequately focus on whether the police had reasonable and probable grounds at the time they laid these charges.

[106] I conclude that the trial judge erred in failing to properly consider Mr. Mercuri’s committal for trial, the role of the Crown, and the ruling on the search warrant.

(4) Damages

[107] In light of my proposed disposition of the appeal, it is not necessary to address the issue of damages. Nevertheless, it is worth making certain observations.

[108] First, the trial judge did not distinguish between Mr. Mercuri and Central in awarding damages. She awarded all categories of damages “to the plaintiffs” jointly. Central was not entitled to the non-pecuniary damages predicated on Mr. Mercuri’s personal experience, nor reimbursement of legal fees that Mr. Mercuri incurred personally for his defence of the criminal charges. Mr. Mercuri was not entitled to a joint award of Central’s business loss, let alone to the full amount. Mr. Mercuri as one of several shareholders was not entitled to an independent share of the business loss.

[109] Second, the evidence did not support the trial judge’s substantial non-pecuniary award of $200,000. The trial judge observed that there had been a “human cost to Mr. Mercuri in terms of his loss of reputation and emotional upset”. She made no finding that Mr. Mercuri’s “emotional upset” rose to the level of personal injury. There was nothing in the evidentiary record that would support such a finding.

[110] The distinction between psychological or emotional upset and a disturbance that rises to the level of personal injury must be kept in mind, as the Chief Justice explained in Mustapha v. Culligan of Canada Ltd, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9. She said that “[p]ersonal injury at law connotes serious trauma or illness” and added that “[t]he law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.”

[111] Iacobucci J. in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 41, said: “it is well established that compensation for psychiatric damages is available in instances in which the plaintiff suffers from a “visible and provable illness” or “recognizable physical or psychopathological harm”. He also said that “as the law currently stands, that the appellant has suffered grief or emotional distress is insufficient.”

[112] Here, the trial judge found Mr. Mercuri suffered “emotional upset” and summarized the basis for that conclusion. The charges had hung over his head for six years. He testified he was drawn away from his business pursuits and had to sell his vehicle. He felt humiliated and felt that no one would trust him again. He remarked, “it takes a toll on you”. He was concerned about his aging father’s health and worried about his family, his business, his employees and their families. He felt his parents suffered the brunt of it, but his children were also affected at school. He felt that every question from a customer about whether they would have a problem with a part or whether a cop would seize it was like a “punch in the face”. Even the acquittal did not produce vindication from the cloud he lived under, in a small city, until the charges were dismissed, as doubt in the community still lingers.

[113] As frustrated and upset as Mr. Mercuri may have been as a result of the charges against him, his unsupported testimony of emotional upset was insufficient to ground the substantial award of non-pecuniary damages the trial judge made.

[114] In making the award the trial judge relied on the Supreme Court’s decision in Young v. Bella, 2006 SCC 3, [2006] 1 S.C.R. 108, and on Lahaie v. Canada (Attorney General), 2008 CanLII 68124, [2008] O.J. No. 5276, a decision of the Superior Court. In Young, the Supreme Court upheld a substantial award of non-pecuniary damages. However, there was expert evidence of actual psychological damage and suffering in that case: See the Court of Appeal decision, Bella v. Young, 2004 NLCA 60, 241 Nfld & PEIR 35, at paras. 129-130. Lahaie was not a negligence case but a claim for Charter damages. Furthermore, Lahaie was reversed by this court on the merits and did not address the award of damages: see 2010 ONCA 516, 101 O.R. (3d) 241.

[115] In awarding substantial loss of income damages, the trial judge seems to have relied heavily upon what she viewed as the police’s breach of the standard of care in communicating with the media. The tenor of the trial judge’s reasoning seems to be that police were liable for damages due to all press coverage after they had issued a press release or communicated with the media about charges that were laid. She said: “It does not now lie in the mouth of the police to blame the press for damage to Central's business when the police provided the story.” She even took into account the headlines that accompanied the announcement of Mr. Mercuri's acquittal, noting they had a sting implying that Mr. Mercuri was operating a "chop shop" and was guilty even though the charges had not been proven.

[116] Without expert evidence of what normal police practices in communicating with the media are or should be, the trial judge was not in a position to evaluate whether the action of the police chief in calling a press conference fell below the standard of care in this case. As in Webb v. Waterloo Regional Police Services Board (2002), 161 O.A.C. 86, 2002 CanLII 41983 (C.A.), standard police media policies and practices and the public’s right to know have to be considered.

[117] The newspaper articles about Mercuri’s charges were entered as exhibits in this case to show that they were published, not for the truth of their contents. They were used by the accounting experts in their assessment as to whether the articles were related to the business losses. Putting aside that the trial judge appeared to rely upon them as substantive evidence of the police conduct, both experts acknowledged that, although the timing of the first articles coincided with the timing of loss of business profits subsequent to charges, there was no similar correlation with the later newspaper articles.

F. CONCLUSION

[118] I would allow the appeal and set aside the trial judge’s judgment, save for the award of $70,000 for the loss of property improperly stored by the police. That award should be in favour of Central alone as it was the owner of the property.

[119] The parties are encouraged to reach agreement on costs of the appeal and trial. If they are unable to do so they may make written submissions, not exceeding seven pages submitted to the Senior Legal Officer of the Court.

Released: September 2, 2016 (DW)

“R.G. Juriansz J.A.”

“I agree G.J. Epstein J.A.”

“I agree S.E. Pepall J.A.”