COURT OF APPEAL FOR ONTARIO
CITATION: M.W. v. Halton (Police Services Board), 2020 ONCA 463
DATE: 20200716
DOCKET: C67115
Rouleau, van Rensburg and Roberts JJ.A.
BETWEEN
M.W.
Plaintiff (Appellant)
and
Halton Regional Police Services Board and Constable Ross Amore
Defendants (Respondents)
Davin Charney, for the appellant
Robin A.F. Squires and Natalie T. Salafia, for the respondents
Heard: May 22, 2020 by videoconference
On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, dated May 24, 2019, reported at 2019 ONSC 3176.
REASONS FOR DECISION
I. INTRODUCTION
[1] This is an appeal from a partial summary judgment dismissing certain claims in an action commenced by the appellant, M.W., against the respondents, the Halton Regional Police Services Board and Detective Constable Ross Amore.
[2] The action arises out of two interactions between M.W., the Halton Regional Police Service (the “HRPS”) and D.C. Amore. The first interaction took place on February 18, 2015 when M.W. was questioned at the police station about an alleged assault against one of his sons “Co.” (no charges were laid). The second interaction took place on March 23, 2016 when M.W. was arrested and charged with assaulting his daughter “Ca.” (the charge was subsequently withdrawn by the Crown).
[3] M.W. sued for damages for false arrest, false imprisonment, negligent investigation, malicious breach of public duty, malicious prosecution, misfeasance in public office and for violation of his rights under ss. 7, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. He claimed that, on February 18, 2015, he was detained and investigated by the HRPS for allegedly assaulting his son Co. without being given his right to counsel and without a proper caution, that the allegations of assault were found to be unsupported, and that he was released unconditionally from the police station. M.W. further claimed that, on March 23, 2016, he was again investigated for allegedly assaulting Co. (these allegations were found to be unsupported), that in the course of the investigation his children were manipulated into making broad incriminating statements against him, and that he was arrested that day for assaulting his daughter Ca. without reasonable and probable grounds.
[4] In their statement of defence, the respondents pleaded the facts leading to the investigation of M.W. for assault on Co. in February 2015 and March 2016. They confirmed that no criminal charges were laid against M.W. in February 2015 and denied that M.W.’s rights under the Charter had been infringed. The respondents pleaded that there were reasonable and probable grounds to arrest and charge M.W. with assault on March 23, 2016, after Ca. disclosed, during her conversation with D.C. Amore that day, details of an assault by M.W. in July 2015, and that once charges were laid, any decision as to whether the charges would proceed through prosecution rested in the hands of the Crown.
[5] The respondents moved for summary judgment dismissing the action on the basis that there was no genuine issue requiring a trial as: (1) D.C. Amore had reasonable and probable grounds to arrest and charge M.W. with assault; and (2) M.W. was not detained on February 18, 2015.
[6] The evidence on the motion included the affidavits of D.C. Amore, Detective Constable Wendy Clayton (D.C. Amore’s partner at the time, who was also involved in the investigation of M.W.) and M.W., the transcripts of their cross-examinations, and various exhibits. These consisted of the transcript from the court proceeding respecting the withdrawal of charges against M.W., the video-taped interviews of M.W., his wife and children on February 18, 2015 and March 23, 2016, file notes from the Halton Children’s Aid Society (the “HCAS”), and email exchanges between the HRPS and the Crown.
[7] After considering the evidence on the motion and the arguments of counsel, the motion judge dismissed all of M.W.’s claims, except for the claim that his Charter rights had been violated in the context of what happened at the police station on February 18, 2015.
II. THE REASONS OF THE MOTION JUDGE
[8] In his endorsement, the motion judge referred to what he characterized as a concession by M.W.’s counsel that “all causes of action pleaded, except for the Charter claims, ought to be dismissed if [the] Court sides with the Defendants and holds that there is no genuine issue for trial on whether the Police had reasonable and probable grounds for the arrest of M.W. on March 23, 2016”: at para. 19. Citing R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51, the motion judge set out the test for reasonable and probable grounds for an arrest: the arresting officer must have had subjectively reasonable and probable grounds on which to base the arrest and these grounds must be justifiable from an objective point of view. The motion judge noted that the only issue was whether D.C. Amore’s subjective grounds were objectively reasonable in the circumstances. He concluded that they were.
[9] The motion judge rejected M.W.’s submission that the HRPS ought to have investigated further before arresting him, and for example, questioned the HCAS worker who was present when Ca. was interviewed on March 23, 2016. It was submitted that if the HRPS had done so, they would have discovered that at the time the allegation was disclosed, the HCAS did not verify the incident. In rejecting this submission, the motion judge noted that there was nothing improper about arresting someone based on the uncorroborated allegation of one witness, as “child abuse is rarely witnessed by others and is often not brought to the attention of the Police right away”: at para. 23. Acknowledging that the objective component of the test set out in Storrey must be looked at contextually, he referred to the fact that Ca. made the allegation spontaneously, that she provided detail, and that her allegation was not isolated from two prior complaints received by the HRPS that M.W. had assaulted another one of his children.
[10] After concluding that D.C. Amore had reasonable and probable grounds to arrest M.W., the motion judge dismissed the following causes of action on a final basis: false arrest, false imprisonment, negligent investigation, malicious breach of public duty, malicious prosecution, and misfeasance in public office.
[11] The motion judge then turned to the issue of M.W.’s Charter claims. He concluded that there was a genuine issue for trial, namely whether M.W. was detained when he was questioned by the HRPS on February 18, 2015. After setting out the legal test for detention, he noted that the evidence was conflictual and required an assessment of the credibility of the HRPS, D.C. Amore and M.W., and that a trial was thus clearly required. He observed that, if pressed to make a determination of the issue, not only would he find that a genuine issue remained, he would also likely find that the preponderance of the evidence filed to date suggested that there had been a detention. The Charter claims were therefore permitted to proceed.
III. ISSUES
[12] For convenience, we have grouped M.W.’s arguments into three issues, which we will address in turn:
Did the motion judge make a reversible error in concluding that there were reasonable and probable grounds for M.W.’s arrest on March 23, 2016?
Did the motion judge err in dismissing all of the tort claims?
Did the motion judge err in granting partial summary judgment?
IV. ANALYSIS
(1) Standard of review
[13] For this court to interfere with the motion judge’s partial summary judgment, M.W. must demonstrate an error of law or a palpable and overriding error of fact or of mixed fact and law: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 81-84. The parties agree that the motion judge’s findings of fact are entitled to deference absent a palpable and overriding error but that his ruling as to whether the facts are sufficient at law to constitute reasonable and probable grounds is reviewable on a correctness standard: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at paras. 43-45.
(2) Did the motion judge make a reversible error in concluding that there were reasonable and probable grounds for M.W.’s arrest on March 23, 2016?
[14] M.W.’s main argument on appeal is that D.C. Amore did not have reasonable and probable grounds for his arrest on March 23, 2016.
[15] Although, as we discuss below, the concession of M.W.’s counsel was not as broad as the motion judge noted, the focus on the motion was on whether there were reasonable and probable grounds for M.W.’s arrest. The presence or absence of reasonable and probable grounds was characterized as the “lynchpin” of M.W.’s tort claims, at least in respect of the March 23, 2016 incident. Because there was no dispute that the arresting officer had subjective grounds for the arrest, the question was whether those subjective grounds were objectively reasonable. Objectively reasonable grounds exist when “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”: Storrey, at p. 250.
[16] M.W. asserts that there were no objectively reasonable grounds because the HRPS failed to conduct a reasonable investigation before arresting him. M.W. contends that the investigation in this case was insufficient. Ca. disclosed the alleged assault by her father in the span of two minutes during an interview concerning an alleged assault on Co. When asked whether she told anyone, she replied “Igor” (the name of the HCAS worker that was at her side during the interview). The HRPS did not ask for further details, interview Ca.’s siblings about the incident, or question the HCAS worker, except to ask him to confirm that Ca. had disclosed the complaint to him.
[17] M.W. does not argue that a “two-minute investigation” is insufficient in all cases. Rather, he contends that, in the context of this case, where the alleged incident occurred some eight months earlier, and where it would have been convenient to interview Ca.’s siblings and the HCAS worker, these additional steps should have been taken before he was arrested. M.W. contends that the motion judge, in concluding that there were objectively reasonable grounds for his arrest, failed to consider these shortcomings in the investigation. He asserts that the HRPS ought to have explored the reliability of the information Ca. provided and ought to have taken into consideration all of the information that was available: see Dix v. Canada (A.G.), 2002 ABQB 580, 7 Alta. L.R. (4th) 205, at paras. 355-57. In support of his argument, M.W. points to the following passage in R. v. Golub (1997), 1997 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 21, leave to appeal refused, [1997] S.C.C.A. No. 571: “In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. Here, according to M.W., the motion judge ignored the context of the very limited investigation conducted by the HRPS when he concluded that D.C. Amore had objectively reasonable grounds for his arrest.
[18] We disagree. Contrary to M.W.’s submission, the motion judge did not ignore the alleged shortcomings in the investigation or the context when considering whether there were objectively reasonable grounds for the arrest. The motion judge correctly concluded that there were reasonable and probable grounds for the arrest based on Ca.’s spontaneous allegation that she had been pushed down and then choked by her father. He referred to the need to look at the objective component contextually, noting that Ca. made the allegation spontaneously in the context of an investigation of an alleged assault against her brother, that she provided detail, and that her allegation was not isolated from two prior complaints received by the HRPS that M.W. had assaulted another one of his children.
[19] In challenging the thoroughness of the police investigation in this case, M.W. does not suggest that Ca.’s allegation was unreliable or false. Rather, he contends that the HRPS should have taken further investigative steps, namely by asking Ca. substantive questions about her allegation and by conducting interviews with other possible witnesses who could have provided potentially exculpatory evidence. For example, he submits that if the HCAS worker had been interviewed, the HRPS would have learned that the agency had concluded that Ca.’s allegation that she had been assaulted in July 2015 was “unverified”, and for that reason had not been reported to the police. We agree with the motion judge that the fact that Ca.’s complaint was “not verified” by the HCAS would not have changed the assessment of whether there were reasonable and probable grounds for the arrest.
[20] D.C. Amore was reasonably entitled to make his decision to arrest M.W., based on the reliable information he had at the time of the arrest, and not based upon what he or anyone else learned later: 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 50, citing Wong v. Toronto Police Services Board, [2009] O.J. No. 5097 (S.C.), at para. 61. D.C. Amore was not 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 that there is no valid defence before being able to establish reasonable and probable grounds”: Tremblay, at para. 60. See also Payne v. Mak, 2018 ONCA 622, 78 M.P.L.R. (5th) 179, at para. 47. As Juriansz J.A. noted in Tremblay, at para. 64, the words “all information available” in the passage in Golub cited by M.W. refers to the information the officer had in his or her possession, not additional information that the officer could have had upon a simple inquiry.
[21] In our view, the evidentiary record on the summary judgment motion, which included the video recording of Ca.’s interview, the history of the prior interactions between the HRPS and M.W. in connection with complaints from Co.’s school, and the confirmed fact that Ca. had disclosed the assault to the HCAS worker, fully supports the motion judge’s conclusion that D.C. Amore had objective grounds for M.W.’s arrest.
[22] M.W.’s second argument on this ground of appeal is that the motion judge wrongly relied on a finding that the facts of J.H. v. Windsor Police Services Board et al., 2017 ONSC 6507, 44 C.C.L.T. (4th) 257 were similar to the facts of this case in support of his finding of reasonable and probable grounds. There is no merit to that assertion. The motion judge referred to this case only for a convenient summary of the applicable legal principles in the context of motions for summary judgment. While he described the case as dealing with a “similar motion to dismiss a similar claim”, he did not rely on any findings in that case to support his analysis. He did not use the case as a precedent in finding that there were reasonable and probable grounds in the present case. Indeed, the motion judge’s analysis was focused on whether – on the evidence before him – objectively reasonable and probable grounds for M.W.’s arrest had been made out.
[23] As his third argument on this issue, M.W. argues that the motion judge erred in failing to draw an adverse inference from the respondents’ failure to produce affidavit evidence from the HCAS worker to whom Ca. disclosed the assault and the Crown counsel who negotiated the resolution of the charge against him.
[24] Under r. 20.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the hearing of a summary judgment motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. An adverse inference can be drawn against a party who, in the absence of an explanation, does not testify or fails to provide the evidence of a material witness over whom he or she has exclusive control. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case or at least would not support it: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada Inc., 2018), at para. 6.471.
[25] This argument, which was not made at first instance, cannot succeed. The respondents placed before the court all the evidence they considered necessary on the motion for summary judgment. While the respondents bore the evidentiary burden of demonstrating that there was no genuine issue for trial, they were not obliged to put the evidence of every possible witness before the court. If M.W. had considered the evidence of these witnesses, who were not witnesses over whom the respondents had exclusive control, to be important in his response to the summary judgment motion, he could have required their attendance for examination under r. 39.03.
[26] For these reasons, we do not give effect to M.W.’s argument that the motion judge erred in concluding that there were reasonable and probable grounds for his arrest on March 23, 2016.
(3) Did the motion judge err in dismissing all of the tort claims?
[27] We would, however, give effect to M.W.’s submission that the motion judge erred in dismissing the non-Charter claims in relation to the February 2015 incident without making findings with respect to those claims. M.W. asserts that the motion judge referred to a concession that was not made, that “all causes of action pleaded, except for the Charter claims, ought to be dismissed if [the] court … holds that there is no genuine issue for trial on whether the Police had reasonable and probable grounds for the arrest of M.W. on March 23, 2016.”
[28] The transcript of the hearing discloses that M.W.’s counsel stated that whether there were reasonable and probable grounds for the arrest was the “lynchpin” for the tort claims. However, later in his submissions he said the following:
We would submit that as reasonable and probable grounds remain in question with respect to the arrest and charge in March of 2016, the false arrest and negligence claims should survive. The false imprisonment in 2015 should also survive. If they do, I submit we’ve been largely successful and we would oppose partial summary judgment on this matter.
[29] M.W. did not concede that only the Charter claims would survive in relation to the February 2015 incident. Rather, his position was that he had Charter claims, as well as tort claims, in relation to that incident. In his statement of claim, M.W. pleaded negligent investigation in respect of the February 2015 interaction and broadly pleaded misfeasance in public office. These claims do not hinge on whether D.C. Amore had reasonable and probable grounds to arrest M.W. Indeed, for the purposes of a claim for negligent investigation, the conduct of a reasonable police officer may vary depending on the stage of the investigation and the legal considerations: Barclay, at para. 48. Moreover, a claim for misfeasance in public office centres on the deliberate unlawful conduct of a public official: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, 369 D.L.R. (4th) 90, at para. 38. These claims could not be dismissed on the basis that D.C. Amore had reasonable and probable grounds for M.W.’s arrest on March 23, 2016. As such, the motion judge ought not to have dismissed all claims other than the Charter claims in relation to the February 2015 incident. M.W. is entitled to pursue these claims.
(4) Did the motion judge err in granting partial summary judgment?
[30] M.W. submits that the motion judge erred in granting partial summary judgment without considering whether it was appropriate in the context of the litigation as a whole. Essentially, his argument is that the determination of whether he was unlawfully detained in February 2015 is also relevant to his tort claims in respect of the March 2016 arrest, and that for this reason, all of the claims should have been allowed to continue.
[31] We disagree. This was an appropriate case for partial summary judgment. The March 2016 claims, which were decided on the basis of reasonable and probable grounds for arrest, could be determined separately from the February 2015 claims. This is not a case where intertwined claims could lead to inconsistent results, as was the case in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at paras. 37-38 and Butera v. Chown, Cairns LLP, 2017 ONCA 783, 418 D.L.R. (4th) 657, at para. 38.
[32] There were two distinct issues before the motion judge: the first was whether D.C. Amore had reasonable and probable grounds for M.W.’s arrest in March 2016, and the second was whether M.W. was unlawfully detained in February 2015. While it is correct to say that the evidence about M.W.’s treatment in February 2015 would have been relevant to M.W.’s claims based on the investigation and arrest that took place in March 2016 had these claims continued, the March 2016 claims were disposed of on the basis that there were reasonable and probable grounds for M.W.’s arrest. The motion judge was able to determine the question of reasonable and probable grounds for M.W.’s arrest in March 2016, something that everyone agreed was determinative of the claims asserted in respect of the events that took place on that date. The finding that there were reasonable and probable grounds for M.W.’s arrest in March 2016 meant that his claims in respect of that date could not succeed, and it was accordingly appropriate that this part of the litigation be determined by summary judgment.
[33] Although the events of February 2015 provided some background and context for what occurred in March 2016, the tort and Charter claims alleged in relation to the events of February 2015 involve separate issues that do not depend on a finding of reasonable and probable grounds for arrest. It is therefore appropriate that the claims related to the February 2015 incident be allowed to proceed independently.
[34] Accordingly, we see no error in the motion judge’s decision to grant partial summary judgment in this case.
V. CONCLUSION AND DISPOSITION
[35] For these reasons, we allow the appeal but only to the extent of permitting M.W.’s tort claims to proceed, together with his Charter claims, in relation to the February 2015 incident. Costs of the appeal are to the respondents fixed at $5,000, inclusive of taxes and disbursements, which amount reflects the divided success on the appeal.
“Paul Rouleau J.A.”
“K. van Rensburg J.A.”
“L.B. Roberts J.A.”