Hawley et al. v. Bapoo et al. [Indexed as: Hawley v. Bapoo]

48 O.R. (3d) 598

[2000] O.J. No. 1577

Court File No. 369/99

Ontario Superior Court of Justice

Divisional Court

O'Driscoll, Marchand and Aitken JJ.

May 5, 2000

Crown -- Crown Attorneys -- Crown Attorneys immune from suit for negligence.

Crown -- Immunity -- Plaintiffs bringing action against Crown in right of Ontario alleging that Crown responsible in law for actions of defendant Crown Attorneys -- Crown immune from claims under s. 5(6) of Proceedings Against the Crown Act -- Action dismissed as against Crown except with respect to plaintiff's claim for relief under s. 24 of Charter -- Canadian Charter of Rights and Freedoms, s. 24 -- Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 5(6).

The plaintiffs were Ontario Provincial Police officers. As a result of actions taken by the plaintiffs against the defendants AB and SB, the latter were charged with obstructing justice. SB pleaded guilty to that charge and the charge was withdrawn against AB. AB then swore out a private information charging the plaintiffs with assault. The information was laid outside the six-month limitation period. One of the defendants, an Assistant Crown Attorney, purported to elect trial by indictment on the assault charges. The proceedings were stayed against each plaintiff under s. 7 and s. 11(b) of the Canadian Charter of Rights and Freedoms. The plaintiffs brought an action alleging, as against the two defendant Assistant Crown Attorneys, negligence; malicious prosecution; abuse of public office; breach of statutory duty; infringement of the plaintiffs' rights under s. 7 and s. 11(b) of the Charter; intentional infliction of mental suffering; and injury to reputation. As against the Crown, the plaintiffs alleged vicarious liability for the actions of the Assistant Crown Attorneys. The Crown and the Crown Attorneys brought a motion for an order striking out the statement of claim and dismissing the action as against the Crown regarding the allegation that the Crown was responsible in law for the actions of the Crown Attorneys except with respect to the Charter allegations; and striking out all negligence claims against the Crown Attorneys. The motion was dismissed. The Crown and the Crown Attorneys appealed.

Held, the appeal should be allowed.

In Ontario, although a Crown Attorney may be sued for malicious prosecution, he/she is immune from a suit for negligence. Accordingly, the plaintiffs had no cause of action in negligence against the Crown Attorneys, and the relevant paragraphs of the statement of claim should be struck out.

The Crown was immune from the claims of this lawsuit because of s. 5(6) of the Proceedings Against the Crown Act, which renders the Crown immune from liability for the actions of Crown Attorneys in their capacity as Crown Attorneys. The action should be dismissed as against the Crown except for any allegations claiming relief under s. 24 of the Canadian Charter of Rights and Freedoms.

APPEAL from a decision dismissing a motion to strike out parts of a statement of claim and to dismiss an action against the Crown in part.

Munro v. Canada (1993), 1993 8453 (ON SC), 16 O.R. (3d) 564, 110 D.L.R. (4th) 580 (Div. Ct.); Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, 69 O.R. (2d) 448n, 35 O.A.C. 161, 60 D.L.R. (4th) 609, 98 N.R. 321, 49 C.C.L.T. 217, 37 C.P.C. (2d) 1, 71 C.R. (3d) 358 (sub nom. Nelles v. Ontario); Thompson v. Ontario (1998), 1998 7180 (ON CA), 113 O.A.C. 82, 56 C.R.R. (2d) 112 (Ont. C.A.), consd Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 11(b), 24 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b) Criminal Code, R.S.C. 1985, c. C-46, ss. 140, 265 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 5(1), (6) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 21, 25, 62.02(4)

Elaine M. Atkinson, for appellants, Her Majesty the Queen in Right of Ontario, Louis Richer and Mary-Anne Mackett. Antonin I. Pribetic, for respondents.

The judgment of the court was delivered by

O'DRISCOLL J.: --

I. Nature of the Proceedings

[1] The appellants, Her Majesty the Queen in Right of Ontario, Louis Richer and Mary-Anne Mackett appeal to this court from the order of Lissaman J., dated May 27, 1999, pursuant to leave granted by Matlow J. on June 18, 1999 under the provisions of s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The appellants sought an order under Rule 21 and Rule 25:

1. striking out the statement of claim and dismissing the action as against Her Majesty the Queen in Right of Ontario ("Crown") regarding all allegations that the Crown is responsible in law for the actions of Assistant Crown Attorneys Richer and Mackett ("the Assistant Crown Attorneys") save and except any allegations regarding s. 24 Charter relief, and

2. striking out all negligence claims against the Assistant Crown Attorneys including paras. 23(C) (a), (b), (c), (d), (e), (f), (g) and 27 of the statement of claim.

Lissaman J. dismissed the appellants' motion under Rule 21 and Rule 25.

II. The Background

[3] The plaintiffs/respondents (hereafter "plaintiffs") are Ontario Provincial Police officers. Police Constable McNab had laid provincial offence charges against the defendant, Mr. Bapoo.

[4] On June 10, 1994, P.C. McNab was present at the Provincial Offences Court, 2265 Keele St., Downsview, Ontario. The defendant, Mrs. Bapoo, appeared and advised the court that her husband, the defendant, Mr. Bapoo, was at home ill and requested an adjournment on his behalf. An adjournment was granted.

[5] The plaintiff, P.C. Hawley, followed Mrs. Bapoo to her vehicle and found the defendant, Mr. Bapoo, in the vehicle. On being advised of the situation, it is pleaded that the provincial prosecutor directed P.C. McNab to bring Mr. Bapoo to the courtroom.

[6] The plaintiffs returned to the vehicle. They found Mr. Bapoo in the back seat; they advised him he was required to attend before court and escorted him before the justice of the peace. After being admonished by the justice of the peace, Mr. and Mrs. Bapoo were escorted back to their vehicle by the plaintiffs.

[7] Charges of "obstruct justice" were laid against both Mr. and Mrs. Bapoo. As part of a plea bargain, Mrs. Bapoo pleaded guilty to "obstruct justice" and the "obstruct justice" charge was withdrawn against Mr. Bapoo.

[8] On March 3, 1995, the defendant Mr. Bapoo swore out a private information charging each of the plaintiffs with:

(i) assault (s. 265 of the Criminal Code of Canada, R.S.C. 1985, c. C-46); and

(ii) public mischief (s. 140 of the Criminal Code of Canada).

While under oath before the justice of the peace at the time of laying the information against the plaintiffs, Mr. Bapoo is recorded as saying:

Now I am going to turn the tables on them and see, you know, how it feels; how those months went with my wife and me . . . I want them to be in the same position that they put my family in.

[9] Early on, the charges of public mischief were withdrawn against the plaintiffs.

[10] Assistant Crown Attorney Mackett purported to elect trial by indictment on each assault charge. The statement of claim pleads, in part:

16. With respect to the Assault charge, the Crown Attorney, Mackett, made an election to proceed by indictment, based upon the fact that the information was laid outside the 6 month limitation period, notwithstanding that the election was a procedural nullity.

[11] On November 1, 1996, Judge Belobradic stayed the proceedings against each plaintiff under s. 7 and s. 11(b) of the Canadian Charter of Rights and Freedoms. In the interim, the office of the Police Complaints Commissioner proceeded with its investigation of complaints lodged by Mr. Bapoo against the plaintiffs alleging:

1. misconduct;

2. assault;

3. public mischief; and

4. harassment.

The statement of claim pleads:

18. . . . the Office of the Police Complaints Commissioner proceeded with its investigation of the complaints of misconduct, assault, public mischief and harassment lodged by the defendant Bapoo, notwithstanding the expiry of the 6 month limitation deadline.

[12] On June 2, 1997, the statement of claim was issued by the plaintiffs and was served on the appellants on July 2, 1997.

[13] The statement of claim alleges:

(a) as against the Assistant Crown Attorneys:

(i) negligence (paras. 23(c)(a) to (g) inclusive),

(ii) malicious prosecution,

(iii) abuse of public office,

(iv) breach of statutory duty,

(v) infringement of s. 7 and s. 11(b) Charter rights,

(vi) intentional affliction of mental suffering,

(vii) injury to reputation;

(b) as against the Crown: vicarious liability for the actions of the Assistant Crown Attorneys.

[14] The appellants delivered their statement of defence on October 29, 1997.

[15] On February 17, 1999, these appellants launched the motion heard by Lissaman J. on March 15, 1999 and May 21, 1999. That is, the motion was launched some 16 months after these appellants/defendants pleaded to the statement of claim.

III. The Reasons (in part) of the Motions Judge

Absent malice or bad faith, there exists no cause of action in negligence against the Crown Attorneys: Nelles v. The Queen, 1989 77 (SCC), [1989] 2 S.C.R. 170 at p. 199; Munro v. Canada (1994), 1993 8453 (ON SC), 16 O.R. (3d) 564 at p. 566 (C.A.). Counsel for the Attorney General submits that the negligence pleadings should be struck out leaving the malicious prosecution and constitutional tort pleadings to proceed.

The difficulty with this position is that the requirement of "absent malice" can only be met after the case at bar has gone to trial. Malice is pleaded and could be established.

The allegations of malice and the allegations of negligence are so intertwined that it cannot be said that the condition precedent "absent malice" has been established: Temilini v. Commission of the Ontario Provincial Police (1990), 73 O.R. (2d) 664 (Ont. C.A.). It follows, therefore, that negligence pleadings cannot be struck out.

The negligence pleadings attacked by the defendants represented by Mr. Ashman will stand. Vicarious responsibility claims will also remain.

IV. Submissions of the Appellants

A. Counsel for the appellants submits that the motions court judge erred by failing to strike out the negligence claims as against the defendants, the Assistant Crown Attorneys. It is submitted that the Assistant Crown Attorneys enjoy absolute immunity with respect to actions in negligence. It is submitted that this has always been the law in the Province of Ontario and was reiterated and confirmed by the decision of the Supreme Court of Canada in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609.

Counsel for the appellants submits that since 1989, the courts in Ontario have reiterated what was said in Nelles, supra:

1. Munro v. Canada (1993), 1993 8453 (ON SC), 16 O.R. (3d) 564, 110 D.L.R. (4th) 580 (Div. Ct.);

2. Thompson v. Ontario (1998), 1998 7180 (ON CA), 113 O.A.C. 82, 56 C.R.R. (2d) 112 (C.A.), at paras. 55 and 56.

B. Counsel for the appellants further submits that the motions court judge erred in failing to hold that the Crown enjoys immunity with respect to the conduct of Crown Attorneys while they are discharging or purporting to discharge responsibilities of a judicial nature in connection with the execution of judicial process. Counsel for the appellant relies on:

Proceedings Against the Crown Act, R.S.O. 1990, c. P.27

5(1) Except as otherwise provided in this Act, and despite section 11 of the Interpretation Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject . . .

(6) No proceeding lies against the Crown under this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in the person or responsibilities that the person has in connection with the execution of judicial process.

V. The Cases Cited Above

(a) Nelles, supra

In that case, although nine justices heard the appeal, Beetz, Estey and LeDain JJ. did not take any part in the judgment.

Lamer J. gave reasons with which Dickson C.J.C. and Wilson J. agreed.

La Forest J. agreed with Lamer J. except that he would rely solely on the common law position and leave Charter considerations to another day.

The question before the Supreme Court of Canada in Nelles was whether the Attorney General for Ontario and Crown Attorneys were immune from suits for malicious prosecution.

In his reasons, Lamer J. said at p. 197: ". . . errors in the exercise of discretion and judgment are not actionable." At p. 199:

A review of the authorities on the issue of prosecutorial immunity reveals that the matter ultimately boils down to a question of policy. For the reasons I have stated above I am of the view that absolute immunity for the Attorney General and his agents, the Crown Attorneys, is not justified in the interests of public policy. We must be mindful that an absolute immunity has the effect of negating a private right of action and in some cases may bar a remedy under the Charter. As such, the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted. Further, it is important to note that what we are dealing with here is an immunity from suit for malicious prosecution; we are not dealing with errors in judgment or discretion or even professional negligence. By contrast the tort of malicious prosecution requires proof of an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve and as such incorporates an abuse of the office of the Attorney General and his agents the Crown Attorneys.

There is no doubt that the policy considerations in favour of absolute immunity have some merit. But in my view those considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim. In my view the inherent difficulty in proving a case of malicious prosecution combined with the mechanisms available within the system of civil procedure to weed out meritless claims is sufficient to ensure that the Attorney General and Crown Attorneys will not be hindered in the proper execution of their important public duties.

(b) Munro, supra

At p. 565-66:

At common law in Ontario before the decision of the Supreme Court of Canada in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609, the immunity of the Attorney General and Crown Attorneys from suits for malicious prosecution has been held to be absolute.

It is quite clear, however, that the qualification of the immunity in Nelles v. Ontario did not affect the immunity of the Attorney General and Crown Attorneys from suits alleging negligent conduct in the performance of their duties. Lamer J. said in Nelles v. Ontario, at p. 199:

Further, it is important to note that what we are dealing with here is an immunity from suit for malicious prosecution; we are not dealing with errors in judgment or discretion or even professional negligence.

We are satisfied that the plaintiff does not have a reasonable cause of action for negligence.

(c) Thompson, supra

At para. 56:

With respect to the claims against the three Crown attorneys for negligent prosecution, negligent investigation and false imprisonment, I think the motions judge was correct in concluding that those claims disclose no reasonable cause of action. Nelles qualified the Crown's common law immunity from suit only to the extent of permitting actions for malicious prosecution, but not for negligence. Thus, the appellant's claims against the Crown attorneys generally based on negligence in the performance of their duties disclose no reasonable cause of action. See Munro v. Canada (1993), 1993 8453 (ON SC), 16 O.R. (3d) 564 (Div. Ct.).

It seems clear that in Ontario, although a Crown Attorney may be sued for malicious prosecution, he/she is immune from a suit for negligence.

VI. Conclusions

[16] The plaintiffs have no cause of action in negligence against the appellant Assistant Crown Attorneys and, therefore, paras. 23(C)(a) to (g) inclusive and 27 of the statement of claim are struck out.

[17] In this action, the Attorney General for Ontario is not a named party.

[18] In Nelles, supra, Lamer J. said at pp. 177-78:

In terms of whether the Crown enjoys absolute immunity from a suit for malicious prosecution, McIntyre J. concludes that s. 5(6) of the Proceedings Against the Crown Act, R.S.O. 1980, c. 393, exempts the Crown from any proceedings in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature or responsibilities that he has in connection with the execution of judicial process. I am of the opinion that McIntyre J. was correct in holding that the Crown is rendered immune from liability by the express terms of s. 5(6) of the Act, for the action by the Crown Attorney and the Attorney General in deciding to prosecute the appellant. I would like to point out, however, that for the reasons set out below, I am of the view that a functional approach to prosecutorial immunity at common law is inadequate. In this case the applicable legislation requires the Court to draw a distinction between prosecutorial functions in so far as Crown immunity under s. 5(6) is not available unless the function is "judicial" in nature. Therefore, although I agree with McIntyre J. that in this case the decision to prosecute is a "judicial" function for the purposes of s. 5(6), I hasten to add that in dealing with the policy considerations governing the availability of absolute immunity at common law for the Attorney General and Crown Attorneys the functional approach is not the proper test. In addition it should be noted that the constitutionality of the section was not an issue and was not addressed by counsel in this appeal. As such this issue is not before this Court, and therefore the constitutionality of s. 5(6) of the Act is still an open question.

[18a] As far as I know, the constitutional integrity of s. 5(6) of the Proceedings Against the Crown Act, supra, is still intact.

[18b] In my view, it follows that the Crown is immune from the claims of this lawsuit because of s. 5(6) of that Act. It further follows that an order will go striking out the statement of claim and dismissing the action as against the Crown except for any allegations claiming relief under s. 24 of the Charter.

VII. Result

[19] The appeal is allowed.

[20] The order in appeal is set aside and in its place:

(i) An order will go dismissing the action as against Her Majesty the Queen in Right of Ontario -- the Crown -- in so far as it alleges that the Crown is responsible in law for the actions of the Assistant Crown Attorneys except for any allegations claiming relief under s. 24 of the Charter.

(ii) An order will go striking out paras. 23(C)(a) to (g) inclusive and para. 27 of the statement of claim, which paragraphs purport to allege negligence against the Assistant Crown Attorneys.

(iii) The plaintiffs have leave, if so advised, to file an amended statement of claim in accordance with these reasons.

VIII. Costs

[21] In view of all of the circumstances, there will be no order as to costs either on the appeal or on the application for leave to appeal.

Appeal allowed.