ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-373023
DATE : 20120612
B E T W E E N:
Michael Romanic - and - Michael Johnson, Dan Nywening, Larry Chartier, George McCabe, Joe Matthews, Wendy Southall, and the Niagara Regional Police Services Board
Margaret A. Hoy , for the Plaintiff, Michael Romanic
C. Kirk Boggs , for the Defendants, Dan Nywening, Larry Chartier, George McCabe, Joe Matthews, Wendy Southall, and the Niagara Regional Police Services Board
HEARD: May 30, 2012
Mr. Justice Kenneth L. Campbell:
I
Introduction
[ 1 ] The plaintiff, Michael Romanic, was a Constable with the Niagara Regional Police Service (NRPS). He also ran a business known as “Ace Mobile Locksmith.” On October 28, 2005, he was arrested and charged with four criminal offences that were alleged to have been committed in connection with his duties as a police officer. Michael Johnson had been the plaintiff’s employee in his locksmith business. It was a complaint by Mr. Johnson that initiated the investigation that ultimately led to the arrest of the plaintiff. The other individual defendants in this case were the police officers that were, in one way or another, involved in the investigation and arrest of the plaintiff. Following his arrest, the plaintiff was briefly detained in custody for some 30 minutes and then released. Search warrants were then executed in relation to his truck and residence, and certain evidence was gathered in the result.
[ 2 ] The criminal proceedings against the plaintiff ended on February 6, 2008 when the Crown withdrew the charges against the plaintiff as part of the resolution agreement that had been reached between the parties. The agreement was that if the plaintiff resigned from his position with the NRPS, the Crown would withdraw the criminal charges. Shortly after the resignation of the plaintiff, the parties appeared in court and the Crown withdrew the charges observing that, given the resignation of the plaintiff from the NRPS, the prosecution was no longer in the “public interest.”
[ 3 ] On February 24, 2009, the plaintiff commenced an action against Mr. Johnson, the five individual police officers and the NRPS. As against the individual police defendants and the Police Services Board, the plaintiff claimed damages of over $1.1 million for the torts of “malicious prosecution” and “negligent investigation.”
[ 4 ] The defendants (with the exception of Michael Johnson) have brought a motion for summary judgment under rule 20 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. The moving defendants contend that the action against them is meritless and cannot hope to succeed and, thus, they are entitled to summary judgment. After hearing argument on one key aspect of the summary judgment motion, namely, whether the criminal proceedings had been terminated in favour of the plaintiff (an element of both of the torts alleged by the plaintiff), I advised the parties that I would grant the defendant’s motion for reasons that I would prepare. These are those reasons.
[ 5 ] In my view, the summary judgment must be granted as the plaintiff’s action is, indeed, meritless and has no possibility of success. The plaintiff simply cannot prove that the criminal proceedings against him ended in his favor.
[ 6 ] The evidence overwhelmingly and uniformly demonstrates that the only reason the Crown withdrew the charges was because the parties had reached a resolution agreement wherein, in exchange for the plaintiff’s resignation from his job with the NRPS, the charges would be withdrawn, as the proceedings would no longer be in the “public interest.” This was a bona fide , good faith resolution agreement between the parties that required the plaintiff to take an important remedial step, or quid pro quo , in order to secure the Crown’s withdrawal of the charges. There is no suggestion that the Crown abandoned the prosecution as it had no reasonable prospect of conviction or only agreed to the resolve the case to try to place the investigation or the prosecution beyond court scrutiny or avoid a civil action by the plaintiff. In the negotiation process, both parties were represented by skilled, experienced counsel and there is no suggestion that that the Crown abused its position of power (e.g. fraud, duress) in order to secure the plaintiff’s agreement.
[ 7 ] The governing judicial authorities hold that, in such circumstances, the termination of the criminal proceedings cannot properly be viewed as having been concluded in favour of the accused. Being unable to establish this necessary element of the two alleged torts renders the plaintiff’s action destined to fail. Accordingly, the summary judgment motion by the individual police defendants and the NRPS must be granted, and the plaintiff’s action against them dismissed.
II
The Torts Alleged by the Plaintiff
A. Malicious Prosecution
[ 8 ] According to the Supreme Court of Canada decision in Nelles v. Ontario , [1989] 2 S.C.R. 170, at pp. 192-193, a plaintiff must prove four elements to succeed in an action for malicious prosecution, namely: (a) the proceedings must have been initiated by the defendant; (b) the proceedings must have terminated in favour of the plaintiff; (c) the proceedings must have been undertaken in the absence of reasonable and probable cause; and (d) in launching the proceedings the defendant must have been motivated by malice or a primary purpose other than that of carrying the law into effect. This four-part legal standard was confirmed more recently by the Supreme Court in Miazga v. Kvello Estate , 2009 SCC 51 , [2009] 3 S.C.R. 339, at para. 3 . See also: Proulx v. Quebec (Attorney General) , 2001 SCC 66 , [2001] 3 S.C.R. 9. Therefore, the law is clear that with respect to any allegation of malicious prosecution the plaintiff must establish, among other things, that the criminal proceedings against the plaintiff were terminated in his or her “favour.”
B. Negligent Investigation
[ 9 ] The judicial authorities establish that the tort of negligent investigation is very similar to the tort of malicious prosecution, with some overlapping components. More particularly, the jurisprudence dictates that, in order to establish the tort of negligent investigation (at least in cases where the investigation has resulted in criminal charges) the plaintiff must establish four necessary elements, namely: (a) the proceedings must have been initiated by the defendant; (b) the proceedings must have been terminated in favour of the plaintiff; (c) there must have been an absence of reasonable and probable grounds to commence the proceedings against the plaintiff; and (d) in conducting the investigation the defendant owed a duty of care to the plaintiff, and did not meet the objective standard of a reasonable police officer in similar circumstances. See: Hill v. Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , [2007] 3 S.C.R. 129, at para. 92 , 97; Franklin v. Toronto Police Services Board , [2008] O.J. No. 5237 (S.C.J.) at para. 36 ; Solomonvici v. Toronto (City) Police Services Board , [2009] O.J. No. 3144 (S.C.J.) at para. 9 ; Affirmed : [2010] O.J. No. 408 (C.A.) ; Leclair v. Ontario (Attorney General) , [2009] O.J. No. 4632 (S.C.J.) at para. 26-35 ; Magiskan v. Thunder Bay (City) Police Services Board , 2011 ONSC 7334 , [2011] O.J. No. 5920 (S.C.J.) at para. 10 ; Neumann v. Canada (Attorney General) (2011), 2011 BCCA 313 , 338 D.L.R. (4th) 348 (B.C.C.A.) at para. 33-38 ; Beuthling v. Hayes , 2011 ONSC 1203 , [2011] O.J. No. 858 (S.C.J.) at para. 44-55 ; Baltrusaitis v. Ontario , [2011] O.J. No. 351 (S.C.J.) at para. 48-50 . Again, the law is clear that with respect to any allegation of negligent investigation in a case where charges were pursued the plaintiff must establish, among other things, that the criminal proceedings were terminated in his or her “favour.”
(Decision continues exactly as in the source…)
Kenneth L. Campbell J.
DATE: June 12, 2012
COURT FILE NO.: CV-09-373023
DATE : 20120612
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Romanic
- and -
Michael Johnson, Dan Nywening, Larry Chartier, George McCabe, Joe Matthews, Wendy Southall, and the Niagara Regional Police Services Board
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: June 12, 2012