Court of Appeal for Ontario

Citation: Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973 Date: 2016-12-29 Docket: C62000

Before: Gillese, MacFarland and Pepall JJ.A.

Between

Mikhail Kolosov, Andrei Kolosov also known as Andrei Kolosau, and Alena Kolasava Plaintiffs (Appellants)

and

Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle, Casey Findlay, Windsor Police Services Board, Gary Smith, Former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury, Staff Sgt. Alan Brown, Belleville Police Service Board, Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo, Constable Jeff Ling, Detective Constable Paul Josefik and Her Majesty the Queen in Right of the Province of Ontario as Represented by the Attorney General of Ontario Defendants (Respondents)

Counsel: Raymond G. Colautti, for the appellants Wilfrid Menninga and Melissa Seal, for Belleville Police Service Board Kristen Dearlove, for Windsor Police Services Board Thomas D. Galligan, for Lowe’s Companies Inc. and Lowe’s Companies Canada

Heard: December 12, 2016

On appeal from the judgment of Justice Gregory J. Verbeem of the Superior Court of Justice, dated March 24, 2016.

Endorsement

[1] The appellants summarize their grounds of appeal into four points.

i. The motion judge erred in granting summary judgment dismissing the action against the Belleville Police respondents. They argue that the facts and evidence disclose that the police, in the very early stages of the investigation, determined unreasonably that a charge – possession of stolen property knowing the same had been obtained by the commission of an indictable offence – should be laid against the appellants. The argument is essentially that the police did not have reasonable and probable grounds of the knowledge element of the offence when they arrested them.

ii. The motion judge erred in concluding that the claims for the intentional torts of false arrest and false imprisonment were statute-barred.

iii. Granting summary judgment was inappropriate in this case, in which there were multiple defendants, involving interlocking investigations and credibility findings. Such issues should only be determined at a trial.

iv. The appellants seek leave to appeal the motion judge’s costs disposition. They do so, in this court, on the same basis argued before the motion judge – that an award of costs against them impedes their access to justice as they are parties of modest means; their case should be considered as one in the nature of public interest litigation; and finally that, at the least, the payment of any costs award should be deferred until the conclusion of the litigation to permit consideration of a Bullock or Sanderson order.

[2] It is unnecessary to recite the facts for the purpose of this endorsement. The motion judge has set them out in detail in paras. 42-74 of his reasons.

First Ground – No Reasonable and Probable Grounds to Arrest

[3] This ground is largely in relation to the factual determinations made by the motion judge and his assessment of the evidence before him.

[4] In his careful and detailed reasons, the motion judge considered the voluminous materials that had been filed on the motion.

[5] The key issue that separates the parties is whether there were reasonable and probable grounds for the Belleville police to arrest the appellants. There is no dispute about the law – the arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. In addition, those grounds must also be justifiable from an objective point of view – but the police need not demonstrate anything more: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251. No dispute is taken with the motion judge’s articulation of the law.

[6] Detective Constable Josefik testified that he had reasonable and probable grounds and he was not cross-examined on his belief. The motion judge, as he was entitled to do, accepted his evidence. The issue then fell to be determined whether his belief was objectively reasonable – the motion judge concluded that it was. The evidence on which he relied in coming to that conclusion is reviewed by him in detail in paras. 137-161 of his reasons and fully supports his conclusion.

[7] The real essence of the appellants’ complaint relates to the evidence – or from their perspective, lack of evidence – of the necessary mens rea for the offence charged – namely, the possession of property knowing it was obtained by an indictable offence.

[8] The appellants admit they were in possession of fraudulently obtained goods – their explanation is that they were merely the dupes of the criminals who defrauded Lowe’s of merchandise, of significant value, by the use of stolen credit cards. They argue that the police never asked them for their explanation and laid the charge in the absence of that information.

[9] In paras. 151-161 of his reasons, the motion judge specifically deals with the “innocent explanation” evidence and concludes:

[160] While DC Josefik fulfilled his duty to document and consider information about the plaintiffs’ explanation for their possession of the Lowe’s property, he was not obliged to unequivocally accept that explanation as true. Whether the explanation given by Mikhail and Andrei, if provided in evidence at trial, would be accepted as one which “might reasonably be true”, and if not, whether an inference of knowledge ought to be drawn on proof of “recent possession”, were issues for the trier of fact. DC Josefik was not required to determine those legal issues as part of his duty.

[161] As a result of the foregoing, I find that on the evidence available to him, DC Josefik’s belief that there were sufficient grounds to charge the plaintiffs was reasonable and that he exercised his discretion as a police officer in a reasonable manner when charging Mikhail and Andrei with the offences set out in the information.

[10] The appellants’ argument suggests that the police were obliged to accept their innocent explanation. That is simply not the law. As this court recently stated in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, at paras. 50-52:

[50] The police are not required to establish a prima facie case for conviction before making an arrest. [Citations omitted.]

[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,[^1] at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill,[^2] 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.

Second Ground – The Claims were Statute-Barred

[11] The law in relation to the commencement of the limitation period for the intentional torts of false arrest and false imprisonment, and associated Charter breaches, is well settled. As Chiappetta J. noted in Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581, at para. 16:

A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising there-from crystallizes on the date of arrest (see, Nicely v. Waterloo Regional Police Force, 1991 CanLII 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14; Fern v. Root, 2007 ONCA 79, [2007] O.J. No. 397 (Ont. C.A.), para. 102).

[12] The appellants offer no authority for their submission that their causes of action did not arise, and the limitation period did not begin to run, until they had received full police disclosure. Not having commenced this action until after the two-year period from the time of arrest had expired, their claims in this respect are statute-barred.

Third Ground – Summary Judgment was Inappropriate

[13] The motion judge began his analysis with a consideration of the law as it relates to summary judgment motions and was guided by the judgment of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7; [2014] 1 S.C.R. 87. He concluded, at para. 34 of his reasons, that “summary judgment is a fair and just process to determine the issues related to the Belleville defendants’ liability”. He further concluded that the issues relating to the liability of the Belleville respondents were discrete and severable from the issues involving the liability of the other respondents.

[14] He was alive to the appellants’ argument to the effect that the liability of the Belleville respondents was “inextricably bound up” with that of the other respondents – and he rejected that argument. He concluded, on the evidence before him, that it was reasonable for the Belleville respondents to rely on the information given to them, by the Lowe’s respondents and the Windsor police, as credible and accurate, in accordance with the subjective evidence given by DC Josefik and PC Kanyo – which was neither challenged nor contradicted by other evidence before him. He concluded, accordingly, that it was unnecessary to determine the liability of the others before deciding that of the Belleville respondents. The motion judge then summarized at paras. 36-41 why, on the evidentiary record before him, a fair and just determination of the liability of the Belleville respondents could be made without the necessity of a full trial.

[15] His conclusion in this respect is entitled to deference in this court and, in the language of Hryniak, at para. 81, it “should not be overturned absent palpable and overriding error”. In our view, there is no error in the motion judge’s conclusion, let alone a palpable and overriding one.

Fourth Ground (if leave be granted) – Costs

[16] The appellants seek leave to appeal the motion judge’s decision on costs. The law is well-settled that the disposition of costs is a matter of discretion and, absent an error in principle or a decision that is clearly wrong, this court will not intervene. In seeking leave, the appellants advance the same arguments as were made before the motion judge: that they are persons of modest means and any significant costs disposition will preclude them from continuing the litigation against the remaining respondents; that they should be considered public interest litigants analogous to pro bono litigants advancing a “pressing and important public interest”, in holding police services and operations accountable for misconduct; and finally that any costs order should be stayed until the litigation is finally completed in order that the appellants (in the event they are successful) might seek a Sanderson or Bullock order.

[17] The motion judge considered each of these arguments and rejected them. He concluded that the appellants were not pro bono litigants, they were represented pursuant to a contingency fee arrangement. They were not public interest litigants because they do not seek any broad public law remedy – they seek damages in excess of $2 million in relation to causes of action, all of which are personal to them.

[18] Before the motion judge, the appellants did not meet the onus they bear to establish impecuniosity. Nor were they able to demonstrate why their action could not proceed against the remaining respondents, in the event of an adverse costs award – in view of: the nature of the contingency fee arrangement with their lawyer; the undertaking given by the Windsor respondents to not rely on any non-payment of costs to prevent the prosecution of this action; and the apparent agreement of the Lowe’s respondents with that position, although no undertaking was specifically given.

[19] Finally, in paras. 30-37 of his reasons on costs, the motion judge explains, in detail, why he would not stay his costs order and we agree with those reasons. And as the motion judge noted, in view of the position taken by the remaining defendants on the quantum of costs, there was nothing to “circumvent the discretion of the court determining the liability issues related to the remaining defendants to make a Bullock order with respect to the costs ordered herein”.

[20] As to the quantum, the motion judge’s award of costs was significantly less than that sought by the Belleville respondents. The costs award of $47,801.47 was a modest one, on a partial indemnity scale, inclusive of disbursements, which covered the costs of the action, as well as the motion for summary judgment. That is apparent when one considers: the nature of the litigation; the voluminous record that was assembled for this motion; the motions to strike parts of the appellants’ supporting affidavits; the production of documents; the lengthy examinations for discovery; as well as the two days required for the hearing of this motion. We have not been pointed to any error in principle and the motion judge’s reasons are well-supported on the record before him. We would not grant leave to appeal.

Disposition

[21] In the result, both the appeal and the motion for leave to appeal are dismissed.

[22] Costs of the appeal to the Belleville respondents fixed in the sum of $17,500; to the Lowe’s respondents in the sum of $2,000. The Windsor police respondents do not seek costs. All costs awarded are inclusive of disbursements and HST.

“E.E. Gillese J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”

[^1]: Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. No. 5067 (S.C.). [^2]: Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129.