ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09 CV 376725
DATE: 2012/11/16

B E T W E E N:

COSMAS GIORIS PLAINTIFF - and - TORONTO POLICE SERVICES BOARD, WILLIAM BLAIR, DANIEL HAYES, LISA GRISOLIA, KATHERINE KINNEAR, CHRISTOPHER WHALEN, VASLIKI GIORIS, CHRISTOS GIORIS and GEORGE GIORIS DEFENDANTS

In P erson
Edward A. Ayers, Q.C. and Robin Squires , counsel for the Defendants, Toronto Police Services Board, William Blair, Daniel Hayes, Lisa Grisolia, Katherine Kinnear and Christopher Whalen
Vusumzi Msi , counsel for the Defendant, Vasiliki Gioris
Christos Gioris , In Person

HEARD: 1, 2, 3, 4, 5, 9, 10 and 11 October 2012

MOORE J.:

[ 1 ] On 30 December 2005, Cosmas Gioris (“Mr. Gioris”) was arrested by Toronto police officers and charged with criminal harassment and failure to comply with terms of his probation. Following a trial, he was found not guilty of either charge; he now seeks damages in this action.

[ 2 ] Mr. Gioris asserts that the Toronto Police Services Board, William Blair, Daniel Hayes, Lisa Grisolia, Katherine Kinnear and Christopher Whalen (“the Police Defendants”) were negligent in their investigation of the circumstances leading to his arrest and did not have reasonable and probable grounds to charge him.

[ 3 ] Mr. Gioris asserts that Vasiliki Gioris, Christos Gioris (“Christos”) and George Gioris (“George”) commenced criminal proceedings by knowingly providing false information to police. He further asserts that they were motivated by malice in making the allegations they did about him.

[ 4 ] Mr. Gioris insists that the conduct of the defendants led to his arrest, detention, continued probation and criminal trial with the result that his pre-existing medical conditions were exacerbated and that he suffered mental distress, including nervous anxiety, stress and depression, and he incurred economic losses.

[ 5 ] The Defendants responded to Mr. Gioris’ claims. The Police Defendants and Vasiliki Gioris retained counsel, Christos and George did not. Christos attended at trial but did not actively participate. George did not attend.

[ 6 ] At the commencement of the trial, I explained trial procedure and the rules of evidence to Mr. Gioris in considerable detail and provided him with a copy of my speaking notes for his reference. For his part, he agreed to present his case according to the directions I had given him; regrettably however, his enthusiasm for his cause overwhelmed his best intentions at many times during the trial.

[ 7 ] Perhaps the definition of stubbornness is saying the same thing over and over again and expecting a different result. Mr. Gioris proved himself to be stubborn in this trial by insisting repeatedly that his case should include every word and document that he wished to adduce, without regard to the rules of evidence. He insisted repeatedly as well that the trial process and procedures were unwieldy and unfair. At times he declined to participate in the trial at all.

[ 8 ] Clearly it was his right to conduct his case without legal representation but he could gain no advantage by so doing. This trial was conducted according to the rules of law and evidence, as I explained to Mr. Gioris at the outset and throughout the trial that it would be.

Background

[ 9 ] Cosmas and Vasiliki Gioris were married in 1976. Christos and George are children of that marriage. Another child of the marriage, Anna, was not a party in this action. The three children are now adults but they have always lived with their mother. The marriage was marked by strife over the years and in 2002 they separated. They have lived apart since.

[ 10 ] Both before and after their separation, conflict within the family led to police involvement. Numerous occurrence reports in evidence from the decade before his arrest in December 2005 attest to that conflict.

[ 11 ] Following an incident of domestic violence in 2002, Mr. Gioris was charged with assaulting his wife. He pled guilty and was placed on probation. As will be discussed later in these reasons, that probation order continued in force, unaltered from its original terms, until the time of his arrest and charges in December of 2005.

Mr. Gioris’ Position

[ 12 ] Mr. Gioris offered a rambling, animated and at times tearful rendition of the circumstances that, in his view, brought him to launch and continue this lawsuit.

[ 13 ] He insisted that he did not follow his family and move on to property on Edgecliff Golfway in a building adjacent to the building into which they moved in 2004.

[ 14 ] He explained that the couple separated in 2002. He insisted that he initiated the separation. She complained of his conduct to the police and he was sent to jail for 11 days which, in turn, caused serious problems for his health, he said.

[ 15 ] He argued that the police disclosure in this case was a mess from top to bottom. He said that certain records that the police were required to retain have been lost. He added that his wife had assaulted him and threatened murder. He said that jail authorities threatened to kill him when he requested medication while in jail awaiting a bail hearing.

[ 16 ] He insisted that his wife knows how the system works and that the police favour women over men in investigating cases such as this. He said he filed a complaint to the police but they never looked at it seriously.

[ 17 ] He insisted that the Reasons for Judgment following his criminal trial in 2007 vindicate his position and establish that Vasiliki Gioris and the children lied in court.

[ 18 ] In this civil trial, he declined to make oral or written submissions following the close of the evidence portion of the case. By that time, he had decided to disengage himself from active participation in the trial. Further, he insisted that his health and his incomplete command of the English language made it impossible for him to focus upon the task and to complete and file written submissions.

[ 19 ] He referred to an affidavit that he had prepared on 16 July 2012, a document contained within one of the three briefs of documents that he filed during the trial. Some of the contents of those briefs became exhibits at the trial; others were referred to during questioning of witnesses. The affidavit in question was neither. Nevertheless, he insisted that it contained an overview of the evidence and arguments that he would include in closing submissions, if he was able to make such submissions.

[ 20 ] Clearly the affidavit was prepared before trial and some of the assertions in it did not correspond with the evidence that was developed at trial. Leaving aside the factual assertions, however, the portions of the affidavit that can be considered as position statements or arguments are helpful to an understanding of his position. They include the following:

• He has brought this claim arising out of a false complaint made to police by his ex-wife and their two sons. He alleges that his ex-wife intentionally made a false complaint against him, knowing that he would be arrested as a result.

• He states that the Police Defendants were negligent in their conduct of the investigation leading to his arrest.

• Following his discovery that his ex-wife had moved in close proximity to him, he advised his parole officer, Nadine Brown (“Brown”) and detective Christopher Whalen (“Whalen”), at 54 Division that he was concerned that his ex-wife would make a false accusation of stalking or harassment against him as a result of his residing in the area.

• Lisa Grisolia (“Grisolia”) was in contact with his parole officer, Brown, and knew of his concerns.

• Acting solely on the word of his ex-wife and children, Grisolia directed officers to arrest him on December 30, 2005.

• He was held in custody for 11 days following his arrest, during which time he was without adequate medications and subjected to harsh conditions.

• His criminal trial on charges of criminal harassment and failure to comply with his probation terms was held in the Ontario Court of Justice before the Hon. Mdm. Justice Shamai on November 26 to 29, 2007, with reasons for decision given on December 19, 2007.

• The court dismissed both counts.

• As a result of false allegations and negligent investigation, the matter was handed to Crown counsel who prosecuted him.

• He further submits that his ex-wife and the Police Defendants commenced criminal proceedings against him by knowingly providing false information to the court to mislead and fool the court, to convict an innocent and disabled man.

• He asserts that Grisolia created, without any investigation, a shameful and misleading police disclosure which he asserts is a complete mess from top to bottom, just to convict him.

• He argues that the Police Defendants knew that he was for years the victim of ongoing verbal abuse, harassment, terror, assault, cruelty and threats. He asserts that these constitute threats and attempt to murder by the Gioris defendants.

• He argues that Grisolia waited and charged him shortly before his probation order was to expire and that that led to him having to continue through a further two years of probation, until after the conclusion of his trial.

• He argues that the Police Defendants owed a duty of care to him to conduct their investigation in a reasonably competent manner. He argues that the Police Defendants, individually and/or collectively, breached this duty.

• He further argues that the Police Defendants failed to share information with each other that could have exculpated him.

• Further, he submits that the Police Defendants failed to question Brown regarding allegations made against him by members of his family and failed to take into account the exculpatory information that he had provided to Brown.

• He submits that the charges laid against him on 30 December 2005 evidenced a well-planned conspiracy to murder an innocent, disabled person by attacking his disability, by attacking his health and by pushing him toward suicide.

• By way of concise statement of legal issues, he submits that:

Members of his family made false accusations against him leading to his arrest;

The Police Defendants were negligent in their investigation of the allegations made against him by members of his family; and

He is entitled to punitive or aggravated damages in the circumstances.

• In addition to his claims for damages, he requests a written apology from each defendant and he insists that:

His criminal prosecution constitutes malicious prosecution by the defendants;

Vasiliki Gioris and Grisolia committed perjury; and

Grisolia provided false information to the Crown to mislead and fool the court.

The Evidence

[ 21 ] The probation order directs, and Mr. Gioris testified that he understood this, that he could apply for a variation of his probation terms. Although his family moved into the Edgecliff condo and although he saw his family in the neighborhood for about a year before his arrest in 2005, he confirmed that he took no formal steps to have the probation order varied at any time.

[ 22 ] He recalled having discussions with his probation officer, Brown, about the term in the order requiring him to stay away from his ex-wife and family. Brown told him how to comply with the probation order by avoiding being in the same place as his wife and by going in the other direction if he saw her and by getting off any bus he and she were on.

[ 23 ] He recalled that he and Brown discussed the concept of writing a letter to request a variation of the probation order. Brown told him to write such a letter and send it to her attention. She would then add her own comments and pass both along to the sentencing judge and a crown attorney. In this case, the process did not move beyond preliminary discussions. Mr. Gioris did not write a letter requesting a change in his probation terms and he initiated no formal application directly to the sentencing judge.

[ 24 ] Brown later followed up with him to discuss the procedure for varying the probation order but he refused to discuss the matter with her, saying it was a matter between him and his lawyer.

[ 25 ] Christopher Morris (“Morris”) has been a member of the Toronto Police Service since August of 2004. He was assigned to 54 Division and on 23 December 2005, he became involved with the Gioris family when he and his partner, PC Heroux, were dispatched to 20 Edgecliff where they interviewed Vasiliki and George Gioris; Heroux interviewed Vasiliki and he interviewed George.

[ 26 ] Morris asked George what has been happening with his father. George answered that when he had been going to school he would walk to the bus stop and when he arrived there he would see his father already waiting. His father would wait until he got on a bus and then he would leave.

[ 27 ] He asked George whether he would attend at the bus stop every day. George answered yes, at about 9:40 in the morning in front of 10 Edgecliff. He saw his father there at least 15 to 20 times since school started in September.

[ 28 ] Morris asked George if this appeared to be a coincidence. George answered that it would have to be one heck of a coincidence. It seems like he is waiting for me at the stop, George added.

[ 29 ] Morris asked George if he felt threatened. George answered that he did not necessarily feel threatened but intimidated.

[ 30 ] The officer asked if George was afraid for his mother. George responded that Mr. Gioris happened to be near her in particular and this seemed to have been the biggest issue for his mother. His father put a lot of effort into seeing what she was doing.

[ 31 ] Morris took a statement from George and submitted it along with his notes for processing upon returning to 54 Division. It was not Morris’ decision to arrest in this matter. As a police officer, he was aware that reasonable grounds are required in order to arrest and charge a person. In his opinion, there were reasonable and probable grounds to arrest in this case.

[ 32 ] Stephane Heroux (“Heroux”) has been a member of the Toronto Police Service since May of 2000. In December of 2005, he was a uniform police constable assigned to the Primary Response Unit at 54 Division

[ 33 ] He testified that he and Whalen received a radio call on 23 December 2005 along with information provided for them through the computer in their police vehicle. They attended therefore at 20 Edgecliff and he personally met with and interviewed Vasiliki Gioris. He noted her condition as "shaking".

[ 34 ] In addition to her statement, she gave him a log containing notations of some thirty five sightings of Mr. Gioris that she and her children had made.

[ 35 ] Heroux wrote up an occurrence report. He understood that his occurrence report, the sightings log and his memo book notes and those of Whalen were sent to the Criminal Investigation Bureau. He understood that Grisolia was assigned to review all of these documents and to take whatever steps were appropriate. It was she who eventually instructed officers to arrest Mr. Gioris and it was she who charged him.

[ 36 ] Heroux also testified that he knows that reasonable grounds are needed before any charge can be laid. He testified that he believed that reasonable grounds existed for the charges that were ultimately laid in this matter.

[ 37 ] He was not asked or directed by Vasiliki Gioris to take any particular action against Mr. Gioris. Specifically, she did not ask that he be arrested or charged.

[ 38 ] In December of 2005, Grisolia was a Detective Constable assigned to the Domestic Violence Unit in 54 Division. On 28 December 2005, she received the occurrence report and its attachments as described above.

[ 39 ] She reviewed the officers’ notes, the statements of George and Vasiliki Gioris, the sightings log and the probation order terms as well as eleven prior occurrence reports and two records of arrest on file relating to Mr. Gioris and his family and she decided that she had reasonable grounds to arrest. On her instructions, uniform officers made the arrest and brought him to 54 Division for booking.

[ 40 ] Grisolia first met Mr. Gioris in an interview room after his processing. She told him why he was under arrest and gave him an opportunity to tell his side of the story. At this point he had not yet been charged. He refused to speak to her. She had no information available then, or ever, suggesting that he felt that he was innocent or had an alibi.

[ 41 ] Grisolia offered an opportunity to consult with duty counsel; indeed, she contacted duty counsel by phone and put the phone to Mr. Gioris’ ear but he refused to speak to counsel.

[ 42 ] She then decided that he would be charged and detained, the latter because he was on probation for a similar charge at the time.

[ 43 ] Grisolia testified that she did not act in bad faith in connection with her investigation and charging of Mr. Gioris. She added that she had no reason to. She was asked to agree that she did not conduct any independent investigation to verify the accuracy of the information provided to the police by Vasiliki. She stated that the police take as a fact what the victim tells them. She stated that she had enough reasonable grounds to arrest him and she did not need to interview more witnesses.

[ 44 ] In the course of cross examination, Grisolia insisted repeatedly that the decision to lay the charges in this case was based upon reasonable grounds. She added that Mr. Gioris was afforded the opportunity to advise the police at the time of his arrest, at the time of his booking and at the time that she met with him before the charge was laid about any information that he thought was relevant but he chose not to provide any. He also chose not to accept her invitation to speak with counsel and/or duty counsel before he was charged.

[ 45 ] Vasiliki Gioris was born in 1960 in Greece where she grew up in a small village. She was schooled to grade 6 and introduced to Cosmas Gioris when she was 15 years of age. She was 16 when she married in 1976. He was then age 24.

[ 46 ] Eventually, she returned to school as an adult in Canada. She acquired a high school diploma as well as computer, writing and reading skills. In her testimony at this trial, her English was flawless, although she spoke very quickly and softly. She was responsive but emotional and teary at times.

[ 47 ] She explained that the family had lived in a condominium at number 10 Edgecliff before she and her husband separated in 2002. In 2004, the court directed that the matrimonial home be sold and that the profits of sale be awarded to her.

[ 48 ] She testified that she felt shocked and trapped upon learning that Mr. Gioris had moved back to live at 10 Edgecliff, because she had just bought and paid for her condominium at 20 Edgecliff. Thereafter she saw him in the neighborhood; she was concerned for her safety and called the support officer at LINK, the Victim Services Office, who recommended that she call the police and she did so. She spoke with an officer whose name she does not recall but who told her to stay calm and try to stay civil with him. She said she was very scared but she did try to follow the advice she had been given.

[ 49 ] On 23 December 2005, Vasiliki saw Cosmas. She testified that she felt frightened because she had seen him twice that day with a very angry look on his face both times, a look she said she had seen on him before when they had lived together.

[ 50 ] She called police that day. She testified that when the officer attended upon her home at 20 Edgecliff on 23 December 2005, she told him that she wanted to file a report. She did not tell him what to do about it.

[ 51 ] Up until the criminal trial in November of 2007, almost 2 years later, she did not say anything more to the police about what she wanted done. She relied on the police to do what was appropriate.

[ 52 ] In his Statement of Claim, Mr. Gioris alleges that Vasiliki knowingly provided false information to the police regarding his conduct. Other than her statement to the police and the log of her sightings, she testified that she did not provide any other information to the police.

[ 53 ] She testified that she had no motivation in providing her statement to the police other than to give them the information that she was concerned and frightened about.

[ 54 ] The evidence portion of this case came to an unexpected close. Mr. Gioris was positioned to conduct a cross examination of Vasiliki but he began the day by announcing that unless she apologized to him, he would not participate further in the trial and specifically, he would not conduct her cross-examination. Vasliki’s evidence therefore stands unchallenged.

The Police Defendants’ Position

[ 55 ] The Police Defendants submit that Mr. Gioris has failed to establish that the investigating officers did not have reasonable and probable grounds for his arrest or that they did anything other than follow proper police procedures, which were reasonable and justifiable in the circumstances of the complaint. He has also failed to adduce any evidence of malice or improper purpose.

[ 56 ] The Police Defendants submit that the investigating officers performed their duty as required by the law, to the standard that the law requires, and for no purpose other than to fulfill their legal duties. The investigating officers did their job.

[ 57 ] Mr. Gioris was the author of his own misfortune. The Police Defendants submit that although he may be disappointed in the outcome of the investigation, the investigation was as thorough as his cooperation would allow. The investigating officers acted reasonably and professionally at all times.

The Gioris Defendants

[ 58 ] The claims against the Gioris defendants and, in particular, against Vasiliki Gioris are that they maliciously initiated a criminal prosecution.

[ 59 ] On the facts adduced in this case, and the applicable law, it is submitted that the Plaintiff’s case must fail. Mr. Gioris has not demonstrated that as a matter of law, the Gioris defendants can be said to have initiated or continued a prosecution against him.

[ 60 ] It is submitted that there is no evidence whatsoever which could lead to the conclusion that Vasiliki Gioris provided the police (or, later on, the Crown) with false information. Similarly, Mr. Gioris called no evidence which could give rise to a reasonable inference that Vasiliki acted for an improper purpose in doing as she did.

[ 61 ] On the contrary, it is submitted that the evidence is compelling, that Vasiliki Gioris had reason to be fearful of her husband in the past; that when she discovered where her husband lived (in 2004) she did as suggested by the police and tried to simply go about her business; She did not call the police for trivial encounters with her ex-husband. She was frightened on December 23, 2005 by Mr. Gioris’ actions in approaching her and in glaring at her. As a result she called the police seeking protection and advice. She played no other role in the decisions made by the police or any other authorities. These factors support the conclusion that Vasiliki Gioris did not act out of actual malice, spite or ill-will or from any motive meant to improperly influence the course of justice.

Analysis

[ 62 ] A recurring theme for Mr. Gioris in this trial has been the contention that the Decision and Reasons for Decision in the criminal trial in 2007 entitle him, without more, to judgment against all defendants in this action. That contention fails for several reasons. First, the criminal trial involved different parties, issues, evidence and a very different burden of proof.

[ 63 ] A civil suit seeking relief for malicious prosecution and/or one brought alleging negligence on the part of police authorities in the investigation leading up to the laying of criminal charges requires that the underlying criminal proceedings have been terminated in favour of the plaintiff. This said, however, the dismissal of underlying criminal charges alone is not a sufficient ground upon which to succeed in a civil suit, such as this one.

[ 64 ] Further, the learned trial judge, in deciding the criminal charges, considered a body of evidence, all tendered by the Crown and subject to cross examination by Mr. Gioris and by counsel appointed as cross examination counsel for him and found some discrepancies in the testimony of the crown witnesses. In all of the circumstances, she came to the view that the Crown had not proven beyond a reasonable doubt that he had committed the crimes with which he had been charged.

[ 65 ] She made no finding or comment regarding the adequacy of the police investigation leading to his arrest and to the charges laid. She made no finding that the police or any members of his family acted in any inappropriate or malicious fashion in their roles within the criminal justice process.

[ 66 ] In his negligence claim against the Police Defendants, Mr. Gioris must prove that they owed him a duty of care (a point which they do not contest), and he must prove that by their actions and/or failures to act, they fell below the level of professional competence expected of police officers in a matter such as this and that their negligence caused the damages that he submits that he has suffered.

[ 67 ] In his claims against all defendants grounded in allegations of malicious prosecution, he must demonstrate that:

• The criminal proceedings have been initiated by the defendant(s);
• The criminal proceedings were terminated in his favour;
• The proceedings were brought without reasonable and probable cause; and,
• Malice or a primary purpose other than that of carrying the law into effect. [1]

[ 68 ] I begin with the negligence claims. Although he has been very critical in this trial of the extent of the police investigation, Mr. Gioris has adduced no expert or other evidence to suggest, let alone demonstrate on a balance of probabilities, that the Police Defendants fell below the standard of professional practice applicable to this investigation or that further investigations would have demonstrated that reasonable and probable grounds did not exist to support the charges laid against him on 30 December 2005.

[ 69 ] It is neither reasonable nor necessary for the police to engage every conceivable effort or resource in investigating a crime before a charge can be laid. [2] Investigations can continue after the laying of a charge, if circumstances warrant it. Mr. Gioris exercised his right to silence in his dealings with the police but had he suggested then, as he did in this trial, that his roommate or cameras installed on his apartment building could provide a useful source of relevant evidence, the police may have followed up.

[ 70 ] But the issue is not what more, with the benefit of hindsight, the police might have done but rather whether the actual investigation was adequately and professionally conducted. Having called no evidence to establish the standard of care against which the police investigation in this matter should be compared and judged he has failed to establish a breach of duty to appropriately investigate and his negligence action therefore fails.

[ 71 ] Furthermore, and most importantly, I am satisfied that the Police Defendants responded to Vasiliki’s call for help in a manner in keeping with their investigation protocols and practices at the time. They dispatched two officers to her home where independent statements were taken from Vasiliki and George Gioris. The information gathered there, including the log of sightings that she turned over for review and future reference and the two statements were then provided to Grisolia. At the time of her interview, Vasiliki Gioris was observed to be shaking and she stated that she was very concerned for her safety and that of her children.

[ 72 ] The officers attended upon Mr. Gioris’ apartment in order to obtain information about his side of the matter; they knocked but received no response.

[ 73 ] As noted above, Grisolia considered all of this and the documentation available to her at 54 Division and exercised her professional judgment in concluding that reasonable and probable grounds existed to arrest Mr. Gioris and bring him to the station for questioning. I entirely agree with her assessment. She had before her ample evidence to establish reasonable and probable grounds to arrest and charge him.

[ 74 ] The police are tasked with a duty to investigate a call for help and any circumstances suggesting that a crime has been committed. In responding to Vasiliki’s call, the Police Defendants learned that Mr. Gioris had been in the presence of his family on thirty six occasions and that he had repeatedly breached his probation order. They also learned that he had a long history of stormy relations with his family and that Vasiliki Gioris was very much afraid that he may bring harm to her or her children. His conduct in the months preceding his arrest in December of 2005 was very similar to the conduct that had led to the probation order issuing in 2003.

[ 75 ] Turning now to the allegations of malicious prosecution on the part of the Police Defendants, I find that the evidence cannot support a judgment in Mr. Gioris’ favour. Quite apart from the fact that such claims have not been properly pleaded in his Statement of Claim and that I have found that the Police Defendants acted on reasonable and probable grounds, there simply is no factual foundation for assertions of malice.

[ 76 ] More specifically, there is no proof that the Police Defendants’ conduct was fuelled by 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. [3]

[ 77 ] While I understand that a plaintiff bringing a claim for malicious prosecution has no easy task and faces a notoriously difficult task of establishing a negative, that is the absence of reasonable and probable cause, [4] Mr. Gioris was afforded and took the opportunity in this trial to cross examine the officers who investigated and charged him, Morris, Heroux and Grisolia. They each answered his many questions of them respectfully and responsively. They were impressive witnesses with very good recollections of their involvement in this matter. I am satisfied that they each fulfilled their roles leading to Mr. Gioris’ charges professionally and without any malice or improper purpose.

[ 78 ] I accept the evidence of Vasiliki Gioris without hesitation. I found her recall of events leading to her call to the police in December of 2005 to have been excellent and substantially consistent with her log of sightings. Where she was incorrect in marrying up days and dates in her sightings log, she readily acknowledged her errors. She testified in a composed and responsive fashion and demonstrated no anger or malice toward Mr. Gioris. I prefer her evidence where it contrasts with his.

[ 79 ] He has asserted that she and her sons commenced criminal proceedings against him by knowingly providing false information to police regarding his conduct between March and December 2005. [5]

[ 80 ] There is authority in decisions of this court [6] for the proposition that a person can be considered to have commenced criminal proceedings where the person provided false information to the police which led them to lay charges.

[ 81 ] In this case, however, there is no evidence that Vasiliki Gioris or her sons provided false information to the police. In my view, she provided the police with reasonably accurate and detailed information and expressed her concerns reasonably and rationally. She did not urge the police to arrest or charge Mr. Gioris. She did not ask for any particular relief at all; she just asked for protection and an opportunity to express her concerns about Mr. Gioris’ conduct. She played no role in deciding what charges should be laid. Thereafter the Police Defendants exercised independent discretion and professional judgment in deciding to arrest and charge.

[ 82 ] Vasiliki Gioris feared for her safety but she did not act out of malice, spite or ill will in contacting police. She did not follow up with police or the Crown to influence or control the criminal proceedings after December of 2005.

[ 83 ] Mr. Gioris’ claims against Vasiliki, Christos and George Gioris are unproven and must be dismissed.

[ 84 ] Having decided that the defendants are not liable in any respect, there can be no award of punitive damages in this matter.

[ 85 ] If I am wrong in my conclusion that no liability rests with the defendants in this matter, it would be appropriate to consider whether damages have been proven upon the evidence in this trial.

[ 86 ] Mr. Gioris clearly and firmly believes that the defendants are responsible for adversely affecting his health and well being and for causing him to suffer substantial damages. He is not an objective observer of his own condition however; he is not a doctor and has had no training in any health care discipline. His subjective beliefs cannot be accepted by this court as proof of damages.

[ 87 ] When the trial began, he announced an intention to call a doctor to explain his medical conditions, which were said to be many and serious. As the trial continued, however, he decided not to call medical evidence. In the result, I cannot divine what impact, if any, the investigation and charges laid in this case had upon his physical and emotional well being.

[ 88 ] Mr. Gioris bears the onus of proving on a balance of probabilities that the defendants have caused or contributed to the damages claimed. He has not met that burden. Having no evidentiary basis upon which to assess damages, no damages can be assessed.

Disposition

[ 89 ] In the result, Mr. Gioris’ claims against each and every defendant shall be dismissed.

[ 90 ] The Police Defendants and Vasiliki Gioris are entitled to costs, if demanded. If the parties cannot agree on costs issues, these defendants may, within 30 days, file written submissions of no more than three pages in support of their demands. Mr. Gioris shall have 30 days thereafter within which to file written responses of up to three pages to each of the defence submissions.

[ 91 ] No costs are awarded in favour of Christos or George Gioris as they did not actively defend the action after the close of pleadings and have not been represented by counsel.

MOORE J.

Released: 16 November 2012

COURT FILE NO.: 09 CV 376725
DATE: 2012/11/16

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:

COSMAS GIORIS PLAINTIFF - and - TORONTO POLICE SERVICES BOARD, WILLIAM BLAIR, DANIEL HAYES, LISA GRISOLIA, KATHERINE KINNEAR, CHRISTOPHER WHALEN, VASLIKI GIORIS, CHRISTOS GIORIS and GEORGE GIORIS DEFENDANTS

REASONS FOR JUDGMENT
MOORE J.

Released: 16 November 2012

[^1]: Nelles v. Ontario, 1989 77 (SCC), [1989] 2 SCR 170 at para 42
[^2]: MacPhee v. Ottawa Police Services Board, [2003] OJ No 3786 (SCJ) at para 37
[^3]: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 SCR 339 at para 7
[^4]: Nelles v. Ontario, 1989 77 (SCC), [1989] 2 SCR 170 at para 47
[^5]: Statement of Claim at para 40.
[^6]: Wood v. Kennedy 1998 14927 ; 165 DLR (4 th ) 542 at para 51 and 52.