ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-CV-000356544-000
DATE: 2012-09-13

BETWEEN:

ANDRE GRAVELLE
Plaintiff/Responding Party

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ONTARIO PROVINCIAL POLICE, THE CROWN IN RIGHT OF ONTARIO ON BEHALF OF THE ONTARIO PROVINCIAL POLICE, DAVE ROSSER, PATTY SMITH, STEVE STONE, SERGEANT MOORE, THE HAMILTON POLICE SERVICES BOARD, KENNETH D. ROBERTSON AND BRIAN MULLAN
Defendants

Andrew Stein and William Waldman, for the Plaintiff/Responding Party

William J. Manuel and Emtiaz Bala, for the Defendants/Moving Parties, Her Majesty the Queen in Right of Ontario, Ontario Provincial Police, Dave Rosser and Patty Smith

HEARD: May 4 and 25, 2012 at Toronto

REASONS FOR DECISION

MICHAEL G. QUIGLEY J.

[1] The plaintiff, Andre Gravelle, claims to have been grievously wronged by Her Majesty in Right of Ontario, the Ontario Provincial Police (OPP) and two of its officers, Dave Rosser and Patty Smith, as well as the Hamilton Police Services Board, several of its officers and its former Chief, Kenneth D. Robertson.

[2] That alleged wrong and this lawsuit arise out of the 2005 murder charges that were laid against him and an alleged colleague, Johnny “K-9” Croitoru. Mr. Gravelle is alleged to be the head or a senior member of an organized crime family that is involved in the illegal drug business in the Hamilton area. He and Mr. Croitoru were charged with the murder of two residents of Hamilton, a criminal defence lawyer, Lynn Gilbank, and her husband Fred Gilbank, who was in the computer business.

[3] Ultimately, the prosecution of Andre Gravelle (and Johnny Croitoru) for the murder of the Gilbank’s failed. A very lengthy bail hearing was conducted by Justice Donald Gordon relating to Mr. Gravelle and Mr. Croitoru. [1] It was scheduled to commence on May 24, 2005 for four days, but after eight weeks of evidence, motions and submissions, concluded on August 11, 2005. In his reasons given on the bail review, he called the strength of the Crown’s case into question. Then, on the eve of the preliminary inquiry, the Crown withdrew the charges against Mr. Gravelle because it concluded that there was no reasonable prospect of conviction, the relevant test at that time.

[4] Mr. Gravelle claims he has been damaged by the wrongful murder charges. He claims that both he and his family have suffered. As a result, he commenced a first action against the Crown and certain named persons seeking damages in recompense for the wrong committed against him and his family.

[5] Then he commenced this second action. In this action, he has again sued the Crown in right of Ontario on its own and on behalf of the OPP and several of the same persons as in the original action, but in addition has added the two (OPP) officers, Dave Rosser and Patty Smith.

[6] The basis of this suit is that those officers did not disclose that the informant in the drug transporting charge against the plaintiff’s brother, Denis Gravelle, was Angela, Denis’ wife, and not Bill Smith, a former client of Lynn Gilbank.

[7] That failure to disclose is alleged to have been the key to the ability of the Crown to prosecute the plaintiff and advance the theory it did for the Gilbank murders. As Gordon J. put it at the show cause hearing in paragraphs 36-37 of his lengthy reasons:

36 The theory of the Crown is that Lynn Gilbank was the primary target. The allegation is that Mr. Gravelle put out a contract for her death and Mr. Croitoru was involved in arranging it.

37 The Crown theory goes on to suggest Lynn Gilbank was murdered as she represented William Smith, said to be an informant against the defendants and other persons involved in what Crown counsel describes as the Gravelle family criminal organization. Her murder was to be a message to informants (and their lawyers) not to "rat" on the Gravelles.

[8] When that information was disclosed, it is claimed to have undermined the Crown’s theory of the case, because it removed Bill Smith as the connector between the Gravelle’s and Lynn Gilbank’s murder.

[9] As a result, Andre Gravelle alleges that the conduct of the defendant public authorities and the officers is actionable. He claims their conduct resulted in the commission of numerous torts against him including malicious prosecution, negligent investigation, abuse of power, misfeasance in public office, conspiracy to injure, and intentional infliction of harm by unlawful means, among other claims. Mr. Gravelle also claims against the OPP and the Crown for vicarious liability for the actions of these officers.

[10] On this motion, the Crown seeks to strike Mr. Gravelle’s entire claim under Rule 21.01(1)(b) of the Rules of Civil Procedure. The Crown says that it discloses no reasonable cause of action. In the alternative, the Crown asks that the action be permanently stayed under Rule 21.01(3)(d) as an abuse of process. The Crown makes these requests on its own behalf and on behalf of the OPP, and Officers Dave Rosser and Patty Smith (sometimes collectively called the “Crown defendants”).

[11] For the reasons that follow, the Crown defendants’ motion will succeed. The action of the plaintiff against the Crown defendants is struck as disclosing no reasonable cause of action. Leave to amend the plaintiff’s pleadings is denied in the particular circumstances of this case. In the alternative, I would stay this second action by the plaintiff as an abuse of process. There is no reasonable foundation on which this action can succeed, and it is an abuse. It should be brought to an end.

Summary of Facts

[12] The plaintiff’s claim of malicious prosecution, and the related torts claimed to have been committed, arise out of the 2005 charges laid against him for the 1998 murders of Fred and Lynn Gilbank which were later withdrawn. The Crown’s unsubstantiated theory of the case was that Mr. Gravelle and a criminal associate, Johnny Croitoru, committed the murders in 2005 to obtain revenge against those who assisted in a 1996 criminal proceeding against his brother, Denis Gravelle, for transporting illegal drugs.

[13] The 1996 proceeding against Denis came about as follows. In May 1996, Denis’ wife, Angela, called Officers Rosser and Smith to say that Denis assaulted her and that he transported drugs. Officers Rosser and Smith connected Angela with the Hamilton Police. She gave the Hamilton Police the same information. Denis was then arrested on drug charges. In December 1997, Officer Rosser testified at Denis’ preliminary hearing on the drug charges. Officer Rosser stated at that time that the informant was Bill Smith, but that he was not sure whether Bill Smith provided information before or after Denis’ arrest.

[14] Almost a year later, in the early morning hours of November 16, 1998, Lynn Gilbank and her husband Fred were murdered. They were shot execution style in the bedroom of their home in Ancaster, Ontario, just outside of Hamilton. Their bodies were discovered by their son, Mark. He and his sister are alleged to have told police immediately after that their mother had been concerned for her safety because of one of her clients.

[15] About five and a half years later, on March 31, 2005, the Hamilton police arrested and charged the plaintiff, Andre Gravelle, in connection with these murders. They also charged Johnny Croitoru.

[16] There was no eyewitness or forensic evidence linking Andre Gravelle or Johnny Croitoru to the murders. The prosecution’s theory was that Lynn Gilbank’s client, Bill Smith, had been an informant against Denis Gravelle. The murders were intended to send a message to defence lawyers that they should not provide support to informants against the Gravelles. As noted, this motive was introduced to the Hamilton police by the children of the murdered couple.

[17] Officers Rosser and Smith did not investigate or participate in any way in the actual investigation of the murders. However, they did provide statements to the Hamilton Police and they provided their notes from the prior investigation into drug charges relating to Denis Gravelle. They did not state that Angela, or another person, was the source of the information against Denis.

[18] On August 19, 2005, Andre Gravelle was released on bail. In Justice Gordon’s reasons, he referred to Bill Smith as having been the informant in the 1996 proceedings against Denis. Justice Gordon held that Smith “provided information regarding drug trafficking in Hamilton pertaining to Paul [the plaintiff’s father] and Denis Gravelle.” [2]

[19] On June 12, 2006, on the eve of the preliminary inquiry, the Crown withdrew the murder charges against Andre Gravelle and his co-accused, Mr. Croitoru, apparently on the basis of a decision reached within the Crown Attorney’s office that there was no reasonable prospect of conviction.

[20] Six months later the plaintiff served a notice of claim to the Crown on December 19, 2006, as required under section 7 of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. Included in that notice at that time were a long list of names, including Officer Rosser and “such further and other persons, officers, agents, servants and employees of the Crown, the Hamilton Police Services Board and the Ontario Provincial Police.” Importantly, the list did not include Officer Smith’s name.

[21] In 2007, Mr. Gravelle commenced an action against members of the Hamilton Police Services responsible for investigating the 2005 murder of Fred and Lynn Gilbank and the Crown Attorneys responsible for its prosecution.

[22] Officers Rosser and Smith were not named as defendants to that first action. However, the statement of claim did mention that Officer Rosser stated at the preliminary hearing held relative to the drug charges against Denis Gravelle, that his informant was Bill Smith. The plaintiff has pleaded that Officer Rosser suggested this to protect the identity of the real informant against Denis, his own wife, Angela, or in the alternative, for the ulterior motive of inducing Bill Smith to become an informant against Gravelle.

[23] The Crown defendants brought a Rule 21 motion in these proceedings to strike that action. It was heard by Justice Aston on September 24, 2008, but the motion was adjourned. A return date before Justice Aston was scheduled to make further submissions in the original action having regard to developments in the law relating to malicious prosecution claims that emerged from the December 12, 2008 hearing by the Supreme Court of the appeal in Miazga v. Kvello Estate. [3] That was a malicious prosecution case that arose in Saskatchewan, and the Supreme Court finally released its decision almost a year later on November 6, 2009. The adjournment of the Rule 21 motion heard by Aston J. thus ended up lasting for 17 months.

[24] Then in late 2008, with the first action hanging in abeyance but with no new notice of claim, and purporting to rely instead on the notice served to the Crown in 2006 in connection with the first action, the plaintiff launched this second present action. Upon receipt of the new statement of claim in November 2008, the Crown advised that it would await the decision from Justice Aston in the first action before scheduling any motions with respect to this claim in this action.

[25] On November 12, 2009, after the Supreme Court had released its decision in Miazga, James Kendik, counsel for the Crown wrote to the plaintiff's counsel to schedule return dates for the motion, but in addition, in light of the Supreme Court's findings in Miazga relative to claims for malicious prosecution, advised that the Crown was willing to allow the plaintiff to withdraw the claim in the first action on a without costs basis. On November 18, 2009, Mister Stein, counsel for the plaintiff, wrote to advise that his client would "accept your clients offer to settle to withdraw the claim as against the Crown Defendants only on a without costs basis.” Mr. Stein specifically reiterated that Mr. Gravelle's claims against the Hamilton Police Defendants would proceed based upon his agreement with their counsel.

[26] Thus, before the return date for the initial motion in the first action, the parties had agreed to dismiss the 2007 action, but only against the Crown defendants. Crown counsel wrote to Justice Aston advising that the motion would no longer need to be argued and that the plaintiff had agreed to a consent dismissal. Consent to dismissal of the first action was signed in December and January of 2010, and the consent order was taken out on February 9, 2010 dismissing the first action as against "the defendants, Her Majesty the Queen in right of Ontario, The Attorney General of Ontario, Katherine Livingston, Janet Booy, and Stephane Marinier, without costs."

[27] On March 8, 2010, 17 months after the initial motion was argued before Aston J., he wrote as follows in paragraph 3 of an endorsement:

3 Since the motion was first heard more than 17 months ago, sporadic attempts have been made to reschedule the Police defendants motion without success. In addition, at least two potentially significant cases have been reported that invite further submissions from counsel on the motion by the Crown defendants. Miguna (#2) v. Toronto Police Services Board et al. (2008) ONCA 799 is a decision of the Court of Appeal that seems, on its face, quite germane to the issues that I heard argued before its release. Miazga v. Kvello Estate (2009) S.C.C. 51 is a decision of the Supreme Court of Canada that cannot be ignored in the disposition of the motion already argued.

[28] However, he ordered that that first motion should not continue, because of the passage of time, and declared himself no longer seized of the matter. Thus, the first action does remain ongoing, but only against the Hamilton Police defendants. The plaintiff did not sign a full and final release. Further, the Crown did not seek to include this, the 2008 action, in the dismissal order for the first action.

(continued exactly as in the original decision through paragraph [195] and the footnotes)

Michael G. Quigley, J.
Released: September 13, 2012