Court of Appeal for Ontario

Date: 2017-09-06 Docket: C63292

Judges: Watt, Huscroft and Trotter JJ.A.

Between

George Farley Plaintiff (Appellant)

and

Ottawa Police Services Board Defendant (Respondent)

Counsel

Diane Condo, for the appellant

Stuart Zacharias, for the respondent

Heard and released orally: August 28, 2017

On appeal from: the judgment of Justice Calum U.C. MacLeod of the Superior Court of Justice dated December 22, 2016.

Reasons for Decision

[1] George Farley appeals from a decision granting the Ottawa Police Services Board summary judgment and dismissing his action claiming damages for malicious prosecution, negligent investigation and constitutional infringement.

[2] Farley's claims arise out of an investigation conducted by members of the Ottawa Police Service which resulted in the arrest of Farley and another, Chenier, on charges of first degree murder, conspiracy to commit murder and possession of explosives with the intent to cause bodily harm or death.

[3] At the conclusion of a joint preliminary inquiry, both Farley and Chenier, through their counsel, consented to their committal for trial.

[4] A jury found Farley guilty as charged. He appealed. This court allowed the appeal on the basis of misdirection and misreception of hearsay evidence, and ordered a new trial.

[5] On the new trial held several years later, two key prosecution witnesses were unavailable. The trial judge, sitting without a jury, characterized the Crown's evidentiary problems as "simply overwhelming" and acquitted Farley.

[6] Farley started an action against the Ottawa Police Services Board alleging, as I have said, malicious prosecution, negligent investigation and breach of Charter rights by members of the Ottawa Police Service for whom the Ottawa Police Services Board is legally responsible.

[7] On the motion for summary judgment brought by the Ottawa Police Services Board, the motion judge found that:

i. there was no evidence to support a claim of malicious prosecution;

ii. there was no evidence to support a claim that the investigation fell below a standard of reasonable care and, thus, no evidence that it was negligent; and

iii. there was no evidence to support a claim of Charter infringement.

In the result, the motion judge was satisfied that there was no genuine issue requiring a trial, granted the motion for summary judgment and dismissed the action.

[8] In this court, the appellant's essential complaint is that, in respect of several issues, the motion judge erred by weighing evidence and drawing inferences that were beyond his authority on the motion.

[9] Critical to success of the plaintiff's causes of action as framed – malicious prosecution, negligent investigation and Charter infringement – as the motion judge pointed out, is the absence of reasonable and probable grounds to believe that the appellant committed the offences with which he was charged.

[10] In this case, counsel for the appellant conceded committal for trial at the conclusion of the preliminary inquiry. This court ordered a new trial after convictions had been entered at a trial that was flawed by incorrect jury instructions and the admission of inadmissible hearsay evidence. The Crown continued the prosecution only to fail due to evidentiary difficulties.

[11] In the absence of a fundamental flaw in the criminal proceedings, in this case in the committal for trial and the order for a new trial, rather than an entry of a verdict of acquittal, these antecedent judicial determinations may support a finding by a civil court that there existed reasonable and probable grounds for the criminal prosecution: see Miazga v. Kvello Estate, 2009 SCC 51, at para. 97.

[12] In our view, in these circumstances, that is a sufficient basis upon which to dispose of this appeal. In the absence of reasonable and probable grounds, the appellant could not succeed at trial. The motion for summary judgment was properly granted, and the action dismissed.

[13] The appeal is dismissed with costs payable to the respondent in the amount of $5,000, inclusive of disbursements and all applicable taxes.

"David Watt J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."