Court of Appeal for Ontario

Date: 2017-09-11 Docket: C63242

Judges: Strathy C.J.O., van Rensburg and Trotter JJ.A.

Between

Alexander Patinios Plaintiff (Appellant)

and

Rosario Cammalleri Defendant (Respondent)

Counsel

Michael Simaan, for the appellant

Rosario Cammalleri, acting in person

Hearing

Heard: September 7, 2017

On appeal from: the judgment of Justice Mario D. Faieta of the Superior Court of Justice, dated November 8, 2016, with reasons reported at 2016 ONSC 6743.

Reasons for Decision

[1] The appellant appeals the dismissal of his action for malicious prosecution. After hearing the submissions of counsel for the appellant, we dismissed the appeal with reasons to follow. These are our reasons.

[2] The appellant acknowledges that the trial judge applied the correct test for malicious prosecution, set out in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339. The plaintiff must prove that: (1) the prosecution was initiated by the defendant; (2) it was terminated in the plaintiff's favour; (3) there was an absence of reasonable and probable cause to commence the prosecution; and (4) the defendant's conduct in setting the criminal process in motion was fueled by malice.

[3] The first element was not in dispute. The appellant says that the trial judge erred in finding that he had not established the other three elements. On the second element, he points out that the proceedings were stayed at the request of the Crown and claims that there was no evidence to support the trial judge's conclusion that there was a negotiated resolution, making it necessary to examine whether there were any sanctions imposed as a result of the stay.

[4] On the third and fourth elements, the appellant says that in view of the respondent's failure to attend at trial, and his own unchallenged evidence that the incidents leading to the charges did not occur, the trial judge should have found that the charges were groundless and motivated by malice.

[5] While we acknowledge that the appellant's complaint regarding the second element may have some merit, we do not accept his submissions on the third and fourth elements. The onus was on the appellant to establish these elements. It was for the trial judge to determine whether they had been established. Indeed, s. 108(10) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that it is for the trier of fact to determine whether there was reasonable and probable cause for instituting the prosecution.

[6] Here, the trial judge found that the appellant had failed to discharge his evidentiary burden to establish these facts on the balance of probabilities.

[7] In our view, his conclusions were supported by the evidence before him, including the proceedings in the criminal trial and the proceedings before the Justice of the Peace on the swearing of the information. The appellant has failed to demonstrate that the trial judge's findings were unreasonable or the product of a palpable and overriding error in his assessment of the evidence.

[8] We therefore dismiss the appeal. As the respondent did not file materials in response to the appeal, we make no order as to costs.

"G.R. Strathy C.J.O."

"K. van Rensburg J.A."

"G.T. Trotter J.A."