Paul Shand

The Defendant brought a summary judgment motion which was subsequently abandoned after the Plaintiff's expert report was produced.

The court was asked to determine whether to award immediate costs to the Plaintiff for the abandoned motion or to order costs payable in the cause.

The Defendant argued that the motion was reasonable at the time it was brought and that the work done by the Plaintiff would have been necessary for trial anyway.

The Plaintiff contended that the Defendant's abandonment of the motion warranted immediate cost consequences.

The court found that while costs typically follow an event, the timing and motivation for bringing the motion weighed against an immediate costs award.

Costs were fixed at $7,000, payable in the cause.

Appellants appealed the dismissal of their action alleging negligent investigation, malicious prosecution, abuse of process, and Charter damages arising from the respondents' investigation of a fire at a rental house.

The fire was intentionally set by a resident, but spread rapidly due to Fire Code violations.

The appellants were charged with arson by negligence under s. 436 of the Criminal Code.

The charge against one appellant was withdrawn; the other was discharged at preliminary inquiry.

The trial judge dismissed all claims, finding the investigating officer had reasonable and probable grounds to lay charges and acted in good faith without malice.

The appellants appealed, arguing the officer lacked reasonable and probable grounds because they lacked the requisite mens rea.

The Court of Appeal upheld the dismissal, holding that under the modified objective test for negligence-based offences, the officer had reasonable and probable grounds based on the marked departure from the standard of care inferred from Fire Code violations.