Payne v. Mak, 2012 ONSC 6541

COURT FILE NO.: CV-09-13295

DATE: 20121221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gloria Payne, Hilary Payne and Laura Munro personally and as Litigation Guardian for Tara Munro and Shane Munro, minors

Plaintiffs

– and –

Christine Mak, Mike Owens, Eerik Randsalu, Richard Cote, Windsor Police Services Board, Richard Marr, Windsor Fire and Rescue Services Department, Mario Sonego, The Corporation of the City of Windsor

Defendants

Raymond G. Colautti, for the Plaintiffs (Responding Parties)

James Kendik and Kevin Hille, for the Defendants (Moving Parties), Christine Mak, Mike Owens and Eerik Randsalu

Sheila Handler, for the Defendants (Moving Parties), Richard Cote, Windsor Police Services Board, Richard Marr, Windsor Fire and Rescue Services Department, Mario Sonego and the Corporation of the City of Windsor

HEARD: January 16, 2012, August 1, 2012 and August 2, 2012

Nolan J.:

[1] There were two motions for summary judgment. Each of the two groups of defendants brought a motion seeking to dismiss the plaintiffs’ claims against each of the defendants.

SUMMARY OF EVENTS LEADING UP TO THESE MOTIONS

[2] Gloria Payne and Hilary Payne own a number of income properties. One was a home they rented out to students at 614 Mill Street in the City of Windsor. That home was destroyed by fire in the early morning hours of January 25, 2006.

[3] At the time of the fire, there were five tenants living in the building, each renting separate rooms. Anne Culligan, who was an overnight guest of one of the tenants, was seriously injured in the fire and was air-lifted with life-threatening injuries to Sunnybrook Hospital in Toronto. John DeAngelis, a tenant who had a room in the attic of the house, jumped off a porch roof and fractured his ankle. Sheila Butcher, another tenant, also jumped off the roof and suffered minor injuries.

[4] Because of the nature of the fire and the injuries, the Office of the Fire Marshall (“OFM”) was notified immediately. Officers from the Windsor Police Services took statements from tenants and witnesses. Mike Owens, the investigator assigned by the OFM to conduct the investigation, attended the scene on January 25, 2006. When he arrived, he spoke with fire and police personnel and conducted a preliminary investigation. The Arson Unit of the Windsor Police Services was called in. Richard Cote was a detective with the Arson Unit who was assigned to lead the criminal investigation.

[5] After the police conducted interviews with the tenants who were in the home at the time of the fire, Norman Fraser, one of the tenants, was arrested by the Windsor Police and charged with arson endangering life, contrary to s. 433 of the Criminal Code, R.S.C. 1985, c. C-46. He was held in custody. At that time, Ms. Culligan was determined to be in critical condition and not expected to survive.

[6] Mr. Owens and Detective Cote decided to suspend the investigation until they could proceed under the authority of a search warrant. The application for the warrant was granted and further examination of the fire scene took place on January 27, 28 and 29, 2006, with the focus being the origin and cause of the fire. The investigators from the OFM were assisted by the Windsor Police Service forensic identification officers and Windsor Fire Prevention Officer, Richard Marr. The investigation led to the conclusion that it was an incendiary fire. The residence was boarded up, pending further inquiries as to the actual use of the residence.

[7] On the morning of the fire, January 25, 2006, Police Constable John McDougall took a statement from Mr. Payne. He acknowledged that he and his wife owned the property and that he rented out each room separately. At the time of the fire he had five tenants and two vacant rooms. Mr. Payne said that he thought all the tenants had been living there since the beginning of 2005. Mr. Payne also said that the tenants had all arrived at slightly different times. There were no written leases but there were verbal agreements with each tenant dealing with the monthly rent and the “house rules” which were “no smoking and no pets”. There was no requirement that any tenant stay for any specific amount of time and tenants were free to move out without incurring any penalty. Mr. Payne also told the police that he attended at the residence at least once per week, although usually two to three times, to clean the common areas. The tenants took care of their own rooms.

[8] On January 30, 2006, the Windsor police commenced a negligent arson investigation with the Paynes as the subject of that investigation. Witnesses were interviewed, information was gathered and legal advice was eventually sought from the Crown Attorney’s Office. During the course of the investigation, Mario Sonego, at that time the chief building officer for the City of Windsor (“the City”), and his deputy were consulted. It was their opinion that although the Mill Street property was identified on the tax rolls as a single family dwelling, the use to which it was being put at the time of the fire suggested it was more properly classified as a rooming, boarding or lodging house.

[9] The investigators also learned that there had been a fire in the same residence in 1999 started accidentally by a tenant using a candle. At that time, fire code violations requiring a retrofit were identified if the house was being used as a duplex. The violations were not communicated to the Paynes and for reasons that are not clear at this time, the order for retrofitting was vacated by the City. The Paynes obtained a building permit for the repairs to the property which were inspected and approved by the City upon completion.

[10] On February 15, 2006, the Office of the Crown Attorney for Essex County was asked for an opinion about whether charges of negligent arson should be laid against the Paynes.

[11] In October 2006, Assistant Crown Attorney Nikota recommended that charges be laid against both owners. The charges proceeded against Mr. Payne only. A preliminary hearing was held before Campbell J. in the Ontario Court of Justice on August 2 and 3, and December 18, 19 and 20, 2007. On February 8, 2008, Mr. Payne was discharged.

[12] On June 18, 2009, the plaintiffs commenced an action against all the participants in the fire investigation which includes those from the OFM as well as the lead detective from the Windsor Police Services, the fire prevention officer for Windsor Fire Services, the then chief building inspector from the City of Windsor, the Windsor Fire and Rescue Services and the Corporation of the City of Windsor. The claims included damages for negligent investigation, malfeasance in public office and violation of the Paynes’ Canadian Charter of Rights and Freedoms rights arising from the charges brought against Mr. Payne for arson by negligence which were dismissed following the preliminary hearing. At the hearing of the motion, counsel for the Paynes also asserted a claim for abuse of process.

THE DEFENDANTS

[13] The defendants in the proceeding commenced by Hilary and Gloria Payne and various members of their family are divided into two groups. The first group consists of Christine Mak, Mike Owens and Eerik Randsalu, all employees of the OFM. The claims against the Office of the Fire Marshall itself were dismissed on consent by Quinn J. in 2010. I will be referring in my judgment to these defendants collectively as “the Ontario defendants”.

[14] The second group of defendants consists of Richard Cote, the Windsor Police Services Board, Richard Marr, the Windsor Fire and Rescue Services Department, Mario Sonego, and the Corporation of the City of Windsor to whom I will refer collectively as “the Windsor defendants”.

[15] In order to explain my ultimate determination on whether summary judgment should be granted in relation to each or any of the parties, a brief description of the role each of the individuals played in the events leading up to the laying of the charges against the Paynes is set out.

THE “ONTARIO DEFENDANTS”

Christine Mak

[16] Christine Mak is an experienced fire protection engineer employed by the OFM. She was assigned to conduct a building audit of the fire scene on February 7, 2006, under the authority of a warrant obtained by the Windsor Police Services. In her affidavit, Ms. Mak describes an audit as a process “which involves examining buildings to determine how they will perform or otherwise performed in a fire”. She was accompanied on the audit by Mr. Owens and Eerik Randsalu who was, at that time, an engineer-in-training with the OFM and attended as part of his training. She classified the property as a rooming house and conducted the audit on that basis, completing a draft report on February 9, 2006, and a final report dated July 31, 2006. The report identified the deficiencies in the building that violated various provisions of the Ontario Fire Code based on her determination that the residence fell under the provisions of s. 9.3 of the Code, that being the Boarding, Lodging and Rooming Houses section. Ms. Mak testified at the preliminary hearing and swore an affidavit on September 3, 2010 in support of the motion for summary judgment brought by the Ontario defendants. She was cross-examined on her affidavit on October 26, 2011.

Mike Owens

[17] Mike Owens was the fire investigator from the OFM assigned by his supervisor to investigate the origin, cause and circumstances of the Mill Street Fire. He attended at the fire scene on January 25, 2006, cooperated with Detective Cote’s investigation, reviewed the statements and reports of the firefighters who attended at the fire, and responded to a phone call from Mr. Payne. Mr. Payne gave Mr. Owens the same information he had provided to Constable McDougall on the day of the fire. Mr. Payne also told Mr. Owens about the previous fire in 1999 and the reconstruction that followed.

[18] On January 27, 28 and 29, 2006, under the authority of a search warrant, Mr. Owens examined the fire scene for the purpose of determining the origin and cause of the fire.

[19] On January 30, 2006, Mr. Owen conferred with his supervisor who had also conducted a survey of the residence. He also consulted with his manager about the residence being used as a “lodging house” and advised him that laying a charge of negligent arson against Mr. Payne was being considered. He spoke with Detective Cote about what Mr. Payne had said about the use of the residence. He and Detective Cote attended the Fire Department and reviewed the file involving the 1999 fire and the lack of follow-up by the Windsor Fire Services and the Building Department.

[20] On January 31, 2006, he was part of a meeting with Detective Cote and other police officials to discuss the status of the investigation, the rooming house issue as it related to negligent arson charges against Mr. Payne, the elements of that offence, and what matters required follow-up. He also conferred with Mr. Marr, the Windsor Fire Services Prevention Officer who advised him that the residence was not in compliance with ten aspects of the Ontario Fire Code if it were being operated as a rooming house. Mr. Owens was part of the meeting with the chief building inspector, Mario Sonego, and his deputy when they expressed the opinion that the residence was operating as a rooming house.

[21] On February 1, 2006, Mr. Owens learned from the insurance adjustor for the residence that insurance records classified the residence as a rooming or lodging house, based on information allegedly provided by Mr. Payne. On the same day he consulted with a number of managers and supervisors at the OFM about the investigation. That consultation was for the purpose of Mr. Owens providing the managers and supervisors with an update on the status of the investigation and determining future directions. The result of that consultation was that Mr. Owens would “convince” the Windsor Police Services to make application for another Criminal Code search warrant to allow for an audit of the residence by an OFM engineer to determine if the residence was in compliance with s. 9.3 of the Ontario Fire Code regarding rooming houses. If done under the authority of a warrant, the matter could be reviewed by the Windsor Police Services and a decision could be made whether charges should be laid under the Criminal Code, or the Ontario Fire Code, or no charges would be laid.

[22] At that same conference, it was also decided that in consideration of due diligence, the Windsor Fire Services Prevention Officer should conduct an inspection of the other rental properties owned by the Paynes. These inspections were authorized pursuant to the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4. Thus, a warrant was unnecessary.

[23] From February 2 through February 5, 2006, Mr. Owens met with and was in contact with Detective Cote and Sergeant Kowal regarding the drafting of the affidavit in support of obtaining a search warrant to authorize the audit to be conducted by the OFM.

[24] On February 6, 2006, Mr. Owens met with Fire Prevention Officer Marr and another fire officer who were going to conduct the Fire Protection and Prevention Act, 1997 inspection of the other Payne income properties the next day.

[25] On February 7, 2006, Mr. Owens executed the warrant at the Mill Street residence where he accompanied Ms. Mak, who conducted the audit, and the engineer-in-training. Ms. Mak determined that the residence was operating as a rooming house and, based on that opinion, the residence was not in compliance with the Ontario Fire Code. The same day, Mr. Owens spoke with Mr. Payne and the fire scene was released by the police to a contractor retained by the insurance company.

[26] On February 9, 2006, Mr. Owens received the draft report of Ms. Mak and after talking with an Ontario Fire Marshall manager, authorized the release of the draft report to Detective Cote. Mr. Owens and the manager also discussed the failure of the City and the Windsor Fire Services to follow up with the Paynes after the 1999 fire.

[27] On October 3, 2006, Mr. Owens attended a meeting with Assistant Crown Attorney Nikota and Detective Cote to provide information in regard to whether the laying of charges would be recommended. Mr. Owens’ next involvement was as a witness at the preliminary hearing.

Eerik Randsalu

[28] Eerik Randsalu was an engineer-in-training with the OFM and was assigned to accompany Ms. Mak on the audit/inspection of the Mill Street property on February 7, 2006, as part of his training. He assisted Ms. Mak by taking pictures at the scene. He was not part of the investigation in any other way, neither expressing opinions nor playing any role in the preparation of the draft report.

THE “WINDSOR DEFENDANTS”

Richard Cote

[29] Richard Cote was a detective with the Arson Unit in 2006. He was responsible for investigating the fire and was the person who laid the charges against Norman Fraser who allegedly set the fire. He was also responsible for investigating and later charging Hilary and Gloria Payne with arson by negligence, contrary to s. 436(1) of the Criminal Code, an indictable offence.

[30] Detective Cote’s involvement began on the morning of the fire when he was called by Windsor Fire Investigator Richard Marr to come to the scene. As a member of the arson unit, he investigated fires that were of suspicious origin. In that capacity, he also relied on information from the OFM as well as the Windsor Fire Department to advise him with respect to the laying of criminal charges.

[31] Although other officers had taken statements from tenants and witnesses before he arrived at the scene, it was Detective Cote who arrested Norman Fraser on January 25, 2006. Both the police and the OFM were still investigating and taking statements. He was also involved in obtaining a warrant for the first inspection of the home on January 26, 2006.

[32] On January 30, 2006, Detective Cote was advised by Mr. Owens and Mr. Marr, the Windsor Fire Services Prevention Officer, that the residence appeared to be operating as a rooming house and that the Ontario Fire Code imposed strict duties on owners to install adequate fire separations, provide fire rated doors and other devices. That was the point at which he began to investigate the charges that were eventually laid against the Paynes for arson by negligence.

[33] On January 31, 2006, Detective Cote received information from Mario Sonego, the chief building officer for the City of Windsor at a meeting he held with him and the deputy building inspector. Although Detective Cote did not make notes of the meeting, he was advised that the property had originally been registered as being a duplex but later that was crossed out by a City official and “family dwelling” was inserted. Detective Cote said that he had no further contact with Mr. Sonego and did not take a formal statement from him.

[34] On February 6, 2006, Detective Cote applied for a warrant to investigate breaches of the Fire Code by engineers from the Office of the Fire Marshall. The warrant was granted on February 7, 2006 and executed that same day.

[35] On February 9, 2006, Detective Cote received a copy of the preliminary Fire Code Violations Report that had been completed by Ms. Mak.

[36] On February 15, 2006, Detective Cote submitted a report on the investigation to the Office of the Crown Attorney for review and advice. The investigation did not end there. Detective Cote took further steps to determine whether the Mill Street property was being operated as a boarding, lodging or rooming house.

[37] On March 2, 2006, Detective Cote received a copy of Good v. Waterloo (City) (2003), 2003 CanLII 14229 (ON SC), 67 O.R. (3d) 89, which set out some of the complications that arise in determining whether a home is a lodging home. During the month of June 2006, he interviewed a number of tenants and former tenants who had lived in the Mill Street property. The information received from them furthered his view that the building was being operated as a rooming house.

[38] On October 3, 2006, Detective Cote and others met with the Assistant Crown Attorney who asked him to re-interview Sheila Butcher, the tenant who had moved into the building just a week before the fire. On October 4, 2006, he had a further recorded interview with Ms. Butcher and gave the report of that interview to the Crown.

[39] On October 30, 2006, Detective Cote was advised by Assistant Crown Attorney Nikota to proceed with the charges against the Paynes under s. 436(1) of the Criminal Code.

[40] On November 17, 2006, Detective Cote completed the charge summary and the necessary documents were served on a lawyer who was representing both Mr. and Mrs. Payne. It does not appear that Detective Cote testified at the preliminary hearing.

The Windsor Police Services Board

[41] The Windsor Police Services Board was named as a defendant because the Board employs Detective Cote and as such is vicariously liable for any actionable acts or omissions of its employees.

Richard Marr

[42] Richard Marr was the Windsor Fire Service Fire Prevention Officer, Arson Investigator and Fire Code Officer. In that capacity, Mr. Marr was involved in investigating the fire in 1999 at the Mill Street residence as well as the fire on January 25, 2006. After the fire, the fire department had been called upon to inspect the property for Fire Code compliance during the reconstruction of the building. Prior to the fire, the residence had been classified as a duplex with the building department.

[43] The fire department records showed that in 1999, the fire inspector, Mr. Al Martin, was going to write a retrofit order to permit the property to operate as a duplex but needed clarification from the City building department of that designation. The inspection of the building at that time did not reveal that it was being used as a duplex but rather as a single family dwelling. From the perspective of the fire department, if it was going to be a duplex, it required retrofit improvements. If not, no retrofitting was required. There was no record of any follow-up at that time by either the City or the fire department to determine how the property was actually being used.

[44] In 1999, the fire department did not open an investigation as to whether Mill Street was being operated as a boarding, lodging or rooming house prior to the fire in 1999.

[45] On January 25, 2006, Mr. Marr notified the OFM of the Mill Street fire. The OFM assigned Mr. Owens who asked for Mr. Marr’s help regarding the retrofit issue.

[46] On January 29, 2006, at the request of the OFM, Mr. Marr did a survey of the property under the Ontario Fire Code. Mr. Marr said that he did not recall advising Detective Cote that it was a boarding, lodging or rooming house although that was his opinion because of the number of people living in the home, the locks on the individual doors and his discussions with Mr. Payne and the tenants.

[47] Mr. Marr gave his report to Mr. Owens on January 31, 2006. The report said that the Mill Street property did not have adequate fire protection to be operating as a boarding, lodging or rooming house under the Fire Code and required retrofitting. It was Mr. Marr’s memory that the report he gave to Mr. Owens was never given to Detective Cote.

[48] On February 7, 2006, when the search warrant was executed at the Mill Street property by the OFM, Mr. Marr conducted the inspection of the other Payne rental properties. He did not assist with the audit on February 7, 2006 and had no discussions with either Mario Sonego or the Crown Attorney’s Office, and he was not a witness at the preliminary hearing.

The Windsor Fire and Rescue Department

[49] The Windsor Fire and Rescue Department was named as a defendant because, in the plaintiffs’ view, that department is responsible for fire protection in the City of Windsor and is vicariously liable for the actionable acts or omissions of its agents, servants and employees, which includes Mr. Marr. There was no evidence presented that the Department was a separate entity from the City and capable of being sued.

Mario Sonego

[50] Mario Sonego was the Chief Building Inspector for the City in January 2006. He was consulted along with the deputy building inspector, Mr. Bill Jean, by Detective Cote on January 31, 2006, when Detective Cote attended at Mr. Sonego’s offices to obtain information and responses to questions regarding the classification of the Mill Street residence. He had little independent recall of the meeting and had made no notes of it.

[51] The building department records indicated that the Mill Street property had been registered as a duplex. Although Mr. Sonego said in his affidavit that he did not remember reading Mr. Payne’s statement or saying that he thought the residence was a boarding, lodging or rooming house, it could have been an opinion he expressed based on the information provided to him. It was not an opinion based on the records but rather based on his understanding of how the property was being operated by the Paynes at the time of the fire. Mr. Sonego took the position that without the Paynes approaching the City and advising the City on how the property was being used, the City had no way of knowing about its use and would have had no opportunity to classify the building as a boarding, lodging or rooming house.

[52] Because of the fire in 2006, Mr. Sonego said he became concerned again about the safety of students living in a single family dwelling being operated as a boarding, lodging or rooming house. He subsequently proposed a plan to City Council, signed off by both administration and the fire department in late spring or early summer 2006 to bring such homes into compliance with the Fire Code. He proposed to City Council that such properties be brought into conformation with the Fire Code by using the enforcement provisions of that Code and proceeding against owners of single family homes that were actually operating as boarding, lodging or rooming houses. His written plan did not involve use of the Criminal Code and prosecution under it.

The Corporation of the City of Windsor

[53] The City was joined as a defendant as it is a municipal body and is vicariously liable for the actionable acts or omissions of its agents, servants and employees, including Mr. Sonego.

POSITIONS OF THE MOVING PARTIES

[54] It was the position of all the moving parties that on the evidence that has been presented to the court, which includes affidavits and transcripts of cross-examinations, a full appreciation of the evidence can be achieved and, therefore, this is an appropriate case in which to use the court’s powers to grant summary judgment as there is no genuine issue requiring a trial “in the interests of justice”.

[55] The Ontario defendants assert that they were fire investigators assisting the police in a fire investigation, identifying the origin and cause of the fire and determining whether the residence was in compliance with the Ontario Fire Code. Ms. Mak and Mr. Owens provided evidence and analysis to the police during the investigation. The Ontario defendants argue that Campbell J., the preliminary hearing justice, accepted Ms. Mak’s evidence that the property was a rooming house. It was the Crown who recommended that the charges be laid against the plaintiffs and it was the police who laid the charges.

The Ontario defendants argue that they did not play any part in the laying of the charges. Any opinions that the Ontario defendants formed with respect to the nature and use of the residence came from others, including Mr. Payne except for the contents of Ms. Mak’s audit.

[56] The Ontario defendants also deny that they engaged in any alleged “conspiracy” with the Windsor authorities to use the fire on Mill Street to further highlight and address a provincial concern about the safety of student rooming houses. They assert that they carried out their investigations competently, in good faith, and in a reasonable manner based on recognized standards. Even if as fire investigators they have a duty of care to persons being investigated and were held to the same standard as police officers, they carried out their duties in accordance with those standards. They exercised their duties to investigate reasonably.

[57] The Ontario defendants also argue that based on the information they had, it was not unreasonable to consider that the residence was operating as a rooming/lodging house. Like the Windsor defendants, they said they based their determination partly on Mr. Payne’s own statement and the insurance information which all of the defendants argued came from Mr. Payne himself.

[58] The Ontario defendants also pointed to the fact that in his decision, Campbell J. said that there was some evidence on which it could be determined that the residence was being used as a rooming house.

[59] The Ontario defendants assert that the nature of this case is such that the motions judge can have a full appreciation of the evidence on the written record, that the motions judge can have a “full appreciation” of the evidence and issues on the motion “without the forensic machinery of a trial” (Factum of the Ontario defendants, p. 30, para. 82).

[60] The Ontario defendants argue that the main issue in the case is whether it was reasonable for them to conclude the residence was a rooming house, not whether it actually was. In any event, the Ontario defendants argue that they are protected by the statutory immunity provisions of s. 74(1) of the Fire Protection and Prevention Act, 1997.

[61] The Ontario defendants argue that the written record is sufficient to permit the motions judge to dismiss the claim. In spite of the opportunity to do so, they assert that the plaintiffs have not provided any evidence to support their claims and that they had an obligation to do so.

[62] The Windsor defendants make many of the same arguments with regard to the appropriateness of dismissing the plaintiffs’ claims on the written record. They argue that the record establishes that Detective Cote did not conduct a negligent investigation because he had reasonable grounds on which to base his determination that the Mill Street property was operating as a rooming house. There is no evidence to support any Charter breaches. Also, it was not Detective Cote’s decision to lay the criminal charges. That direction came from the Crown Attorney.

[63] With respect to Mario Sonego, the Windsor defendants argue that he had no role in either the investigation of the Paynes or the decision to lay charges. He provided information about the Mill Street property. His report to City Council with recommendations as to how to approach the problem of ensuring that student housing was safe was not directly connected with the fire at Mill Street and was not any part of a “conspiracy” to use the fire as an opportunity to enforce provisions of the Fire Code that had traditionally been hard to enforce. His comment that he thought the residence was being operated as a rooming house was based only on the information he was provided by Detective Cote and Mr. Owen. The Windsor defendants also argue that Mr. Sonego is protected from an action for damages by the provisions of s. 448 of the Municipal Act, 2001, S.O. 2001, c. 25.

[64] As for Richard Marr, the Windsor defendants argue that once he reported the fire to the OFM, his role was only to assist that office. He provided a report to the OFM on January 31, 2006, but not to anyone else. The opinion he expressed that the property was being operated as a boarding, lodging and rooming house was supported by the information he received from others in the investigation. Furthermore, the Windsor defendants assert that Mr. Marr is protected by both the common law principles of witness immunity as well as by s. 74(1) of the Fire Protection and Prevention Act, 1997.

[65] As for the Police Services Board and the City of Windsor, those bodies are only named as the employer of Detective Cote and Mario Sonego respectively. Windsor Fire and Rescue Services Department is not a separate entity. The claims should be dismissed against all the Windsor defendants in the view of their counsel.

THE LAW

[66] The Ontario Court of Appeal’s ruling in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, is the leading decision on summary judgment motions. In Combined Air, the Court of Appeal heard five appeals collectively to attempt to clarify the test for granting summary judgment, the scope and purpose of the new powers available to judges hearing Rule 20 motions, and types of cases that are amenable to summary judgment: see para. 6.

[67] In 2010, significant changes were made to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 that were intended to make these motions more accessible and cost-efficient to litigants, which advance the principle of proportionality pursuant to rule 1.04(1.1).

[68] The pertinent provisions of Rule 20 state:

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[69] The test for summary judgment as outlined in rule 20.04(2) was changed from “no genuine issue for trial” to “no genuine issue requiring a trial”: see para. 30. The change reflects the motion judge’s authority to weigh evidence, evaluate credibility, and draw reasonable inferences, to dispose of cases on the merits where a trial is not necessary in the interests of justice: see para. 36.

[70] Despite these new powers, the Court cautions, at para 38., that the purpose of the amendments is to “eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court”.

[71] The phrase “in the interest of justice” in rule 20.04(2) reinforce the need for a motion judge to ensure that summary judgment can secure a fair and just resolution of a dispute before the motion judge exercises the new powers. As such, the Court of Appeal acknowledges that while summary judgment, utilized properly, can achieve cost savings and resolve disputes efficiently, it may not be appropriate in some circumstances: see para. 45.

Full Appreciation Test

[72] The Court, at paras. 40-44, provides guidance as to what types of cases are amenable to summary judgment.

1. Where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment;

2. Claims or defences that have no chance of success at trial;

3. Where the trial process is not required in the “interest of justice”.

[73] A motion judge had authority to decide the first two types of cases by way of summary judgment prior to the amendments. It is with respect to this third type of case amenable to summary judgment (where the trial process is not required in the “interest of justice”) that the Court of Appeal developed the “full appreciation” test: see Combined Air, paras. 44-45; McHardy (Litigation guardian of) v. Ball, 2012 ONSC 1095, [2012] O.J. No. 730 at para. 33.

[74] Therefore, before the motion judge exercises the new powers to weigh evidence, evaluate credibility, and draw inferences to dispose of unmeritorious actions or to resolve a claim either completely or partially, the court must ask this question: [C]an the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?: see para. 50. The Court of Appeal states that this test will enable motions judges to determine whether a trial is required in the “interests of justice”: see para. 51.

[75] The Court of Appeal expands on what constitutes “full appreciation” of the evidence and issues in a particular case, at paras. 53-55:

We wish to emphasize the very important distinction between "full appreciation" in the sense we intend here, and achieving familiarity with the total body of evidence in the motion record. Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of the evidence that has been put before them.

The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.

Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record - as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) - the judge cannot be "satisfied" that the issues are appropriately resolved on a motion for summary judgment.

[76] At para. 51, the Court, speaking in general terms, provides some guidance on the types of cases in which a motion judge cannot achieve a “full appreciation” of the evidence and issues that is required to make dispositive findings: cases that call for multiple findings of fact, on the basis of conflicting evidence, emanating from a number of witnesses, found in a voluminous record.

[77] Consequently, in these types of cases, the “interests of justice” demand a trial. At para. 47, the Court emphasizes the distinct advantages afforded to a trial judge:

As these passages reflect, the trial judge is a trier of fact who participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses. As expressed by the majority in Housen, at para. 25, the trial judge is in a "privileged position". The trial judge's role as a participant in the unfolding of the evidence at trial provides a greater assurance of fairness in the process for resolving the dispute. The nature of the process is such that it is unlikely that the judge will overlook evidence as it is adduced into the record in his or her presence.

[78] On the other hand, the Court, at para. 52, identifies the types of cases in which the “full appreciation” test may be met: document-driven cases with limited testimonial evidence, cases with limited contentious factual issues, and cases where the record can be supplemented by the hearing of oral evidence on discrete issues.

Genuine Issue Requiring a Trial

[79] The moving party bears the legal burden to demonstrate that there is no genuine issue requiring a trial. Conversely, the responding party to the motion for summary judgment bears an evidentiary burden to respond with evidence setting out specific facts showing there is a genuine issue requiring a trial: see para. 100.

[80] Therefore, a motion judge can summarily decide an action if he or she is satisfied that by exercising the powers of weighing evidence, evaluating credibility, and drawing inferences, there remain no factual or legal issues that require a trial.

Evidentiary Obligation

[81] In Combined Air, the Court affirmed the evidentiary obligations on a summary judgment motion at para. 56:

By adopting the full appreciation test, we continue to recognize the established principles regarding the evidentiary obligations on a summary judgment motion. The Supreme Court of Canada addressed this point in Lameman, at para. 11, where the court cited Sharpe J.'s reasons in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, in support of the proposition that "[e]ach side must 'put its best foot forward' with respect to the existence or non-existence of material issues to be tried." This obligation continues to apply under the amended Rule 20. On a motion for summary judgment, a party is not "entitled to sit back and rely on the possibility that more favourable facts may develop at trial": Transamerica, at p. 434.

[82] The Court went on, however, to caution the danger of strictly adhering to these obligations at paras. 57-58:

However, we add an important caveat to the "best foot forward" principle in cases where a motion for summary judgment is brought early in the litigation process. It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.

[83] In Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), the court held at para. 13 that: “[t]he essential purpose of summary judgment is to isolate, and then terminate, claims and defences that are factually unsupported.” The Ontario Court of Appeal in that case further specified the extent of the evidentiary onus on the responding party, at para. 17:

[T]here is an evidentiary burden on the responding party who may not rest on the allegations or denials in the party’s pleadings, but must present by way of affidavit, or other evidence, specific facts showing that there is a genuine issue for trial. The motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.

[84] Applying those principles to the facts of this case, I will analyse each of the issues identified in the claim and in the argument of counsel.

ANALYSIS OF CAUSES OF ACTIONS AND DEFENCES

Alleged Charter Breaches

[85] Section 11(g) provides that a person charged with an offence has the right “not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations”. Mr. Payne was not found guilty of any offence. The prosecution against Mr. Payne terminated following the preliminary inquiry. Both the Criminal Code pursuant to which Mr. Payne was charged, and the Fire Code provisions the prosecution relied on were in force at the time Mr. Payne was charged.

[86] Section 11(d) provides that any person charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. There are no facts identified by the plaintiffs to suggest that Mr. Payne was not presumed innocent. On the contrary, he had a preliminary inquiry and was not committed to trial.

[87] Section 8 provides that “Everyone has the right to be secure against unreasonable search or seizure”. It protects an individual’s reasonable expectations of privacy. The facts do not support the plaintiffs having a reasonable expectation of privacy in the property: See R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128. In Edwards, Justice Cory quotes Finlay J.A. in Pugliese:

When an accused, such as the appellant, asserts at his trial that there has been a breach of his s. 8 Charter right to be secure from unreasonable search or seizure, he is asserting a particular right to privacy which may, on occasion, be unrelated to any recognized proprietary or possessory right. Section 8 of the Charter is directed to the protection of the security of the person, not the protection of his property, and it is the appellant's personal exposure to the consequences of the search and seizure that gives him the right to challenge, not the search warrant itself, but the admission into evidence at his trial of the fact of the search and the account of what was seized.

[88] Furthermore, Justice Cory notes factors relevant to a s. 8 analysis:

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256.

[89] While the Paynes owned the property, the tenants occupied the property, regulated access, and had both a subjective and objective expectation of privacy of the property. This expectation is supported by the presence of locks on all the bedroom doors. The property was where the tenants resided. The Paynes did not live in that property, and Mr. Payne only cleaned the common areas. Therefore, the Paynes did not have a reasonable expectation of privacy in the property, and his s. 8 rights could not have been breached by the execution of the search warrant.

[90] Section 7 provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The Paynes argue that their s. 7 rights were breached as a result of the defendants’ negligent investigation and abuse of process. In the event that the plaintiffs can prove either one of the torts, that might be able to support a s. 7 Charter breach. However, the Divisional Court recently clarified the necessary element to prove a Charter breach in Forrest v. Ontario (Provincial Police), 2012 ONSC 429, [2012] O.J. No. 518 at para. 62:

In our opinion, the liability for a breach under s. 7 of the Charter requires wilfulness or mala fides in the creation of a risk or course of conduct that leads to damages. Proof of simple negligence is not sufficient for an award of damages in an action under the Charter. Bad faith is essential to establish the Charter breach: McGillivray v. New Brunswick (1994), 1994 CanLII 4465 (NB CA), 116 D.L.R. (4th) 104 and Ferri v. Ontario (Attorney General) 2007 ONCA 79, [2007] O.J. No. 397.

[91] Having said that the plaintiffs may have a Charter claim, it is also possible that the alleged Charter breaches can be dismissed on the basis of the established principle that the responding party to a motion for summary judgment bears an evidentiary burden to respond with evidence setting out specific facts on which they rely to establish the claim being asserted as well as that there is a genuine issue requiring a trial. The plaintiffs’ statement of claim, at paras. 34 and 35, says the following about the alleged Charter breaches.

The conduct of the individual defendants as described herein was negligent and/or grossly negligent and in wilful disregard of Gloria and Hilary’s rights. Their conduct breached their constitutional rights to fundamental justice, their right to make full answer and defence under section 7 of the Charter, and their right to a fair trial under section 11(d) of the Charter.

As a result of the Charter breaches, Gloria and Hilary are entitled to damages as a remedy under section 24 of the Charter.

In addition, the plaintiffs state the following in their factum at para. 118:

It is a fundamental right that everyone has the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” under s. 7 of the Charter. It is also a fundamental right to be secure against unreasonable search and seizure under s. 8, and the right not to be found guilty on account of any act or omission, unless at the time of the act or omission, it constituted an offence under the law or was criminal according to general principles of law under s. 11 (g) of the Charter. It is also a fundamental Charter right to be presumed innocent under s. 11(d) of the Charter.

[92] The plaintiffs do allege specific facts in relation to possible s. 7 Charter breach in their s. 24(1) analysis at para. 127 of their factum: “[t]he Paynes’ ‘right to life, liberty and security of a person and right not to be deprived thereof’ was unreasonably infringed upon, as they were prosecuted on baseless charges, based on a retroactive attempt to change the classification on their building. This was unreasonable state action by state actors.” In addition, the plaintiffs analyzed and applied the principles in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 to the facts of this case to demonstrate that damages should be awarded pursuant to s. 24(1) for the Charter breaches.

Duty of Care

[93] Pursuant to the Supreme Court’s decision in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, which is a seminal decision on the tort of negligent investigation, to be successful in this claim, plaintiffs must establish that the defendant owed them a duty of care. There are particular categories of relationships that have been held to give rise to a duty of care, including: the motorist to other users of the highway; doctor to his/her patient; and solicitor to his/her client.

[94] However, in the event that there are questions concerning whether certain novel relationships give rise to a duty of care and, thus, attract potential liability, the applicable test is set out in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), which has been affirmed in subsequent cases, including the Supreme Court of Canada’s decision in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.

[95] In order to establish a prima facie duty of care in novel relationships, a plaintiff must show that “it was reasonably foreseeable that the actions of the alleged wrongdoer would cause harm to the victim”: Hill at para. 22. In addition, the plaintiff must demonstrate that the relationship is sufficiently close to warrant imposing legal liability on the alleged wrongdoer, by establishing “whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed”: Hill at para. 29. The factors considered in this proximity analysis include “expectations, representations, reliance and property or other interests”: Hill, citing Cooper at para. 24. However, different considerations apply depending on the nature of the relationship. Finally, even if a plaintiff establishes a prima facie duty of care, a court must determine whether there are policy reasons to negate the duty: Hill, citing Anns at para. 46.

[96] For the purposes of this summary judgment motion, whether the defendants owe a duty of care to the plaintiffs is relevant. In Kawartha Lakes (City) v. Gendron, 2012 ONSC 2035, 66 C.E.L.R. (3d) 144, MacDougall J. at para. 98 held that the proper approach to applying the Anns test in the context of a motion for summary judgment is to engage in a two-stage analysis to determine first, whether it is plain and obvious that no duty of care can be recognized. After engaging in the first stage of the analysis dealing with reasonable foreseeability and proximity, MacDougall J. concluded that it was not plain and obvious in that case that no duty of care can be established. With respect to whether any prima facie duty of care should be negated for policy reasons, MacDougall J. at para. 107 stated that it would be premature to decide this issue on a motion for summary judgment on the basis of the material before the court. Moreover MacDougall J., citing the Supreme Court in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R., noted that foreseeability normally should be characterized as a triable issue. As a result, MacDougall J. determined that he did not have a full appreciation of the evidence and issues to make dispositive findings in relation to the negligence claim with respect to whether the defendants owed a duty of care to the plaintiff.

[97] In Laiken v. Carey, 2011 ONSC 7629, [2011] O.J. No. 6116 (Div. Ct.), Jennings J. dismissed the motion for leave to appeal from an unsuccessful motion for summary judgment. In his reasons, Jennings J. restated and affirmed the correctness of the motion judge’s decision to dismiss the motion at para 14:

In my view, whether or not Mr. Carey owes Ms. Laiken a duty of care in the particular circumstances of this case gives rise to a potentially novel cause of action. Novel causes of action, particularly ones involving public policy concerns, are best determined on a fully developed record at trial, rather than on a summary judgment motion (Laiken, citing 2011 ONSC 5892, [2011] O.J. No. 5376 at para. 68).

[98] Blair J.A. expressed a similar sentiment regarding novel claims in Baglow v. Smith, 2012 ONCA 407, 110 O.R. (3d) 481, an appeal from a dismissal of a defamation claim on a summary judgment motion. On the basis that the issues of Internet defamation in the political blogosphere were novel, Blair J.A. concluded that only a trial on these issues as supplemented with examination, cross-examination, and possibly expert evidence would enable courts to determine the issues. In support, Blair J.A. at para. 30 cited R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 CanLII 2731 (ON CA), 5 O.R. (3d) 778 (C.A.) for the proposition that “matters of law which have not been settled fully in our jurisprudence should not be disposed of at this [interlocutory] stage in the proceedings” because they involve a “type of interpretative analysis [that] should only be done in the context of a full factual record, possibly including appropriate expert evidence”.

[99] The jurisprudence does not settle the issue of whether the Ontario defendants and the Windsor defendants, other than Detective Cote owe a duty of care to the plaintiffs. Counsel for the plaintiffs argued that the other defendants are investigators like police officers and, therefore, a duty of care exists. Whether those relationships are analogous to that of an investigating police officer and a particularized suspect, or whether a meaningful and thorough application of the Anns test should be undertaken, can best be determined at a trial. In Hill, the Supreme Court engaged in a thorough analysis of whether policy considerations exist that negate the prima facie duty of care. This analysis was specific to that of an investigating police officer and a particularized suspect. The Supreme Court considered the judicial or quasi-judicial role of police officers, police discretion, standard of care for arrest, and the potential chilling effect of recognizing a duty of care and flood of litigation. These considerations were all examined in a specific relationship that may or may not be applicable to the relationships at issue.

Standard of Care

[100] Certain questions are raised by a consideration of the proper standard of care that applies to the defendants. Is the standard of care for the remaining defendants identical to the standard of care that applies to police officers and particularized suspects? Is expert testimony (from Dr. Becker and/or others) necessary to establish that standard of care, much like medical professional cases?

[101] The alleged breach of the standard of care arises from the investigators’ conclusion that the Payne’s property was an “illegal” student rooming house. In Mr. Payne’s affidavit, he deposes that the Fire Code violations do not apply to him because the Mill Street property complied with the Building Code. At the time of the 2006 fire there were no outstanding work orders or other notices that the property required any upcoding or retrofit work; no outstanding work orders existed at the time of purchase of the property in 1996, when the property was openly listed as having been used for student rental; the use of the property as student housing was known by the building department and the fire department at the time of the 1999 fire; the post-fire repairs were completed pursuant to a building permit issued by the City of Windsor Building Department on January 13, 2000. Those repairs were inspected and the work was marked completed in accordance with the building permit on May 12, 2000; and, after the 1999 fire, there were no outstanding Building Code or Fire Code violations; Captain Martin of Windsor Fire and Rescue Service did not indicate the property was being used as a boarding, lodging, or rooming house in a report dated January 5, 2000 following the 1999 fire; the use of this property for housing by university students was never a secret to either the building officials or the fire officials of the City since at least the 1999 fire at the same property. Both the building department and the Fire Department offices inspected the property after the 1999 fire and neither the fire officials nor the building officials classified 614 Mill Street as a boarding, lodging, or rooming house; on January 17, 2000 Captain Martin voided his earlier Fire Safety Inspection Report.

[102] Mr. Payne alleges that based on the facts, the defendants were negligent in their investigation in concluding that the property was being operated as a rooming house. Although the Crown Attorney ultimately exercised his discretion to recommend the laying of criminal charges, that decision and the subsequent prosecution was based on the information provided to the Crown that the property was a student rooming house.

[103] Questions and answers 107-109 of Christine Mak’s cross-examination are helpful in support of this position:

Q: Right, and did you look at any records from the City of Windsor Fire Department concerning any fire reports from that December – stemming from that December 1999 fire?

A: I didn’t look at them but I spoke with them—with not the records, the fire department.

Q: All right. And were you aware that the City of Windsor Building Department after the fire inspected the house and the repairs that were done to the house for compliance with any retrofit upcoding required by the Ontario Building Code after that fire?

A: I know they inspected it in respect to whatever they were using. I’m not entirely sure what they were using to inspect it.

Q: Right. And that a building permit was issued and the records of the City of Windsor indicate that the building permit was complied with?

A: Yes.

[104] It is noteworthy that Ms. Mak admitted in cross-examination that nowhere in her report did she explain the fact that the classification of a boarding, lodging, rooming home pursuant to the Fire Code was controversial or difficult (Q. 74). As well, Ms. Mak acknowledged that she did not personally interview any tenants, and did not look at any of their witness statements prior to writing her report (Q. 68-69).

Causation

[105] Although the defendants allege that the Crown ultimately prosecuted the charges, and cases indicate that reasonable and probable grounds to charge are reinforced by the Crown’s determination that there is a reasonable prospect of conviction (see Franklin v. Toronto Police Services Board [2008] O.J. No. 5237 (S.C.) at para. 40 and Wong v. Toronto Police Services Board, 2009 CanLII 66385 (S.C.) at para. 70), that is not determinative of causation. As McLachlin C.J. stated in Hill at para. 94:

Cases of negligent investigation often will involve multiple causes. Where the injury would not have been suffered "but for" the negligent police investigation the causation requirement will be met even if other causes contributed to the injury as well. On the other hand, if the contributions of others to the injury are so significant that the same damage would have been sustained even if the police had investigated responsibly, causation will not be established. It follows that the police will not necessarily be absolved of responsibility just because another person, such as a prosecutor, lawyer or judge, may have contributed to a wrongful conviction causing compensable damage.

Expert Opinion

[106] The arguments related to the value of Dr. Becker’s “expert” opinion also raises issues relevant to these motions for summary judgment.

[107] In Reid v. Livingstone, [2004] O.J. No. 1477 (S.C.), Cameron J. at para. 12, affirmed a number of court decisions on the significance of expert evidence:

In order to establish whether the conduct of a person engaged in a technical occupation not within the expertise of the ordinary person, such as a doctor or nurse, met the standard of care required of them, or those for whom they are responsible, the plaintiff must provide evidence of a person qualified and experienced in the field of the conduct at issue that the defendants' conduct in the circumstances failed to meet the standard of care the defendant owed to the plaintiff.

[108] Cameron J. went on to state, at para. 19, that “Dr. Richman did not give an affidavit confirming his opinion and whether it remains the same. Accordingly, his report was not admissible in evidence on this motion” (citations omitted).

[109] This same position was adopted by the court in Hibert v. Lennox Canada Inc. (c.o.b. Boehmers Home Services), [2007] O.J. No. 3079 (S.C.); Beland v. Kiefer, [2002] O.J. No. 709 (S.C.); Pinarreta v. Abreu Refrigeration Ltd., [2009] O.J. No. 4728 (S.C.); and in Chancore Property Inc. v. ING Insurance Co. of Canada, 2010 ONSC 4152, [2010] O.J. No. 3880. In Deslauriers v. Bowen, [1994] O.J. No. 2198, Macdonald J. at para. 17, illustrates the significance of a properly submitted expert report in the context of a defendant moving for summary judgment: “[t]he ‘experts’ reports are before the court as exhibits to an affidavit. The hearsay quality of this evidence is something that the court must be very concerned about on a motion for summary judgment.”

[110] In Beatty v. Waterloo (Regional Municipality), 2011 ONSC 3599, 94 C.L.R. (3d) 223, MacPherson J. agreed it is good law that “[o]n a motion for summary judgment the court is entitled to insist on sworn evidence and, in the case of experts, that the evidence be given by the expert and not filtered through the hearsay evidence of the party”: see Beatty, citing Toronto-Dominion Bank v. Shrage, 2009 CanLII 45444 (ON SC), [2009] O.J. No. 3636 (S.C.) at para 29.

[111] However, at paras. 32-34 MacPherson J. noted that:

While the new Rule does expand the court's power to weigh evidence, this would not go so far as to permit hearsay evidence to be admitted. Hearsay evidence is defined as out of court statements without the opportunity for cross-examination which are admitted for the truth of their contents.

However, in the circumstances of this motion, I find that it is appropriate to consider the report not for the truth of its contents but to demonstrate that the report exists and that there is evidence on the issue of causation that would form part of the Municipal Defendants' case at trial and for the limited purpose of establishing whether there is a genuine issue for trial.

Otherwise, if I were to simply ignore the existence of the report entirely, this would overlook the reality of the situation - two accidents occurred in snowy conditions on a road adjacent to the Mattamy subdivision and as between the remaining Defendants/Third Parties some or all of them are liable to the Plaintiffs for the damages suffered.

[112] Based on the case law summarized above regarding the use of expert opinion on motions for summary judgment and the manner in which they should be provided to the court, the “expert” opinion of Dr. Becker that is appended to the plaintiffs’ affidavit as Exhibit 14 is not properly before the court. Both sets of defendants objected to the manner in which it was provided to the court and its contents.

Abuse of Process

[113] There are several issues relating to the tort of abuse of process. First of all, this specific tort was not pled in the plaintiffs’ statement of claim. There, the plaintiffs pled malfeasance in public office. In their factum and argument, they make little reference to malfeasance in public office, but argue that there was an abuse of process giving rise to damages.

[114] In Harris v. GlaxoSmithKline Inc., 2010 ONSC 2326, 101 O.R. (3d) 665 at para. 48, which the plaintiffs relied on in argument, there are four constituent elements to the tort of abuse of process, all four of which must be made out before the plaintiffs can establish the tort:

The case law authorities establish that there are four constituent elements to the tort of abuse of process: (1) the plaintiff is a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damage has resulted: Hawley v. Bapoo (2005), 2005 CanLII 36451 (ON SC), 76 O.R. (3d) 649, [2005] O.J. No. 4328 (S.C.J.), at para. 86, vard 2007 ONCA 503, [2007] O.J. No. 2695, 156 C.R.R. (2d) 351 (C.A.); Metrick v. Deeb, [2002] O.J. No. 3576, 14 C.C.L.T. (3d) 297 (S.C.J.), at para. 9, affd 2003 CanLII 804 (ON CA), [2003] O.J. No. 2221, 172 O.A.C. 229 (C.A.), leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 378, 195 O.A.C. 398n; Scintilore Explorations Ltd. v. Larche, 1999 CanLII 14948 (ON SC), [1999] O.J. No. 2847, 107 O.T.C. 161 (S.C.J.); P.M. Perell, "Tort Claims for Abuse of Process" (2007), 33 Adv. Q. 193, at p. 193; [page681] J. Irvine, "The Resurrection of Tortious Abuse of Process" (1989), 47 C.C.L.T. 217.

[115] The first element of the tort appears to require the defendant to initiate the legal process. In the case before me, the Crown was responsible for prosecuting Hilary Payne on the charge of arson by negligence. The defendants were not parties to that prosecution. In GlaxoSmithKline Inc, the plaintiff sought to establish a new “derivative abuse of process” for persons who were not parties to the allegedly abusive legal proceedings. However, Justice Perrell declined to recognize that argument because of policy reasons against expanding the scope of the tort of abuse of process: see para. 56.

[116] If the plaintiffs can establish that the defendants initiated the legal proceeding, another element of the tort that the plaintiffs will have to establish is whether there was a definite act or threat. Perrell J. at para. 70, citing the Court of Appeal’s discussion on this issue in Metrick v. Deeb, 2003 CanLII 804 (ON CA), [2003] O.J. No. 2221, stated that “a definite act or threat in furtherance of the illegitimate purpose was essential because there is no liability when the defendant merely employs regular legal process to its proper conclusion albeit with bad intentions”. He further states that there must be an overt act outside of the allegedly abusive process complained of”. Quoting from Dooley v. C.N. Weber Ltd. (1994), 1994 CanLII 7300 (ON SC), 19 O.R. (3d) 779 (Gen. Div.) at p. 790, Perrell J. writes at para. 71 that “[t]he overt act or threat must be ‘separate and distinct from the proceedings themselves but related to the improper purpose’”. Perrell J. relying on Westjet Airlines Ltd. v. Air Canada further states that “[a]cts that a defendant is entitled to engage in as part, or as a consequence of, the legal process do not qualify as overt acts outside of the process”: see para. 71.

[117] In the case before me, with respect to whether there is an overt act outside of the legal process, Mr. Payne submits that the timing of the prosecution is suspicious. In addition, he contends that Mr. Sonego’s report to City Council dated April 10, 2006, and which went to Council in June of 2006, is connected with a desire on the part of the police, the City and its employees as well as the OFM to use the fire on Mill Street to further their goal of tightening restrictions on student housing.

[118] There are contentious facts on the issue of whether the defendants initiated the legal process predominantly to further some indirect, collateral, and improper purpose, which is another element a plaintiff must prove to establish the tort of abuse of process: see GlaxoSmithKline Inc. at para. 48. In particular the defendants’ alleged improper motive was to prosecute the plaintiffs in an effort to “clamp down” on student housing. In support of that position, the plaintiffs comment at para. 158 of their factum about the suspicious timing of the prosecution:

Charges against the Paynes were not laid until November 22, 2006, 10 months after the fire and only after officials from the City of Windsor, including the Fire Chief, adopted an official policy to use the threat of Fire Code violation prosecutions against landlords renting premises to more than three students at a time.

[119] Furthermore, Campbell J.’s conclusion at the preliminary hearing suggests that the defendants may have conducted the investigation that led to the prosecutions with an improper motive:

If the office of The Fire Marshall desires to change practices with respect to University Housing in the Province of Ontario, then it ought to be proactive in education and enforcing the provisions of the legislation rather than using the criminal justice system in an effort to correct what it considers to be misinterpretation of provisions that it believes have not been properly defined (R. v. Payne, 2008 ONCJ 63, [2008] O.J. No. 707 at para 69).

[120] The plaintiffs believe “that there was substantial contact between City officials and the officials of the Ontario Fire Marshal’s Office for this purpose, and that these contacts occurred prior to the charges against me being laid” (para. 67 of Hilary Payne’s affidavit sworn March 2, 2011). However, Mr. Payne’s cross-examination regarding his belief that there was substantial contact between City officials and the officials of the OFM is noteworthy at questions 53-54:

Q. So there are no documents or records recording these contacts between city officials and –

A. Not to my knowledge.

Mr. Colautti: Except to the extent that they’ve been raised in the cross-examinations of the various deponents so far …

Q. Perhaps I can clarify my question. So the paragraph 67 refers to substantial contact between city officials and officials of the Ontario Fire Marshall’s office. I direct this to you, Mr. Payne, but also to your counsel, whether there are any, or you’re aware of any documents or records recording that contact from the time of the fire two when the charges were –

A. (interposing) I’m not personally aware.

Mr. Hille: Mr. Colautti?

Mr. Colautti: And, again, they’ve been referred to in the, to the extent that there were, they were reerred to in the cross-examinations which have already taken place of the various parties, Christine Mak, Mike Owens—

Mr. Hille: Okay.

Mr. Colautti:--Cote, Marr and Sonego.

Mr. Hille: So they’re in the record?

Mr. Colautti: They’re in the record. There’s nothing else other than what is already, what’s in the record.

[121] Interestlingly, several passages in Mr. Owens’ affidavit raises some questions on contact between the OFM and City officials. At paras. 20-24, he deposes:

Later that day, I attended City of Windsor Building Department with Detective COTE and met with Chief Building official Mario SONEGO and his Deputy Bill JEAN. Bill JEAN provided an opinion that based on the circumstances known to him; the residence was a rooming house.

On Wednesday February 1, 2006, I received information from Paul PROULX the assigned Insurance Adjuster with SCM Adjusters Canada Ltd that PAYNE’s existing Insurance policy coverage for 614, Mill Street is classified as a lodging house, further, records indicate this specific information was furnished by PAYNE.

Also on that day, I was involved in a telephone conference call with OFM FIS Managers’ Trever BAIN and Robert LOCK, Fire Investigation Coordinator Christopher WILLIAMS and Fire Investigation Supervisor Jim FISHER. I provided an overview and update on the status of the investigation.

The conference call resulted in a decision to convince the Windsor Police Service to make application for another Criminal Code search warrant to allow for an inspection of the residence by OFM Engineers Christine Mak and Eric RANDSALU in order to inspect the residence and determine if the residence was in compliance with 9.3 of the Ontario Fire Code respecting rooming houses.

[122] However, when cross-examined on those statements, Mr. Owens stated:

“[I]t wasn’t a matter of convincing Windsor Police Service to proceed, it was more a matter of convincing them to proceed under a warrant … Because, you know, sometimes we do run into reluctance by police officers to do the paper to get the warrant … if we are going to do an audit in relation to a rooming house with the expectation of privacy issues, and the appropriate authority would be a 487 warrant. That was front and centre. If you are going to do it, do it right so to speak. And then, obviously, after the warrant is executed and the information is gathered, then it is up to the police whether they want to proceed with the Criminal Code …” [Emphasis in original].

[123] Mario Sonego in his cross-examination acknowledges that administration was exploring enforcement strategies to control “illegal” student rooming houses for the safety of the tenants. In particular, at questions 157-159, the following responses are relevant:

Q. All right. Now, at the point in time that these reports were done to Council, which is April of 2006, this is several months after the January 2006 fire –

A. Mm hm.

Q. –at the Mill Street property. Right?

A. That’s correct.

Q. Was there a discussion about that particular situation and what should be done within administration?

A. We’d been dealing with the issue of student housing or multi-tenant housing around the university since 2003. We’d been dealing actively with it and we set up this committee, this Off-Camus Housing Committee so… And we did various things through that. Certainly that was a high profile fire unfortunately at Mill Street and certainly we had … You know, we were going along doing different things. That certainly restarted our look at what we can do on that and probably gave us impetus to move forward with our strategy. [Emphasis added.]

Statutory Immunity

[124] Furthermore, while the defendants Mike Owens, Christine Mak, Eerik Randsalu, and Richard Marr argue that s. 74(1) of the Fire Protection and Prevention Act, 1997 protects the defendants from liability, that is correct only to the extent that the defendants executed their duties in good faith.

s. 74(1) No action or other proceeding for damages shall be instituted against a firefighter, a fire co-ordinator, a community fire safety officer, a member or employee of the Fire Safety Commission, an assistant to the Fire Marshal, the Deputy Fire Marshal, the Fire Marshal, or a person acting under his or her authority, for any act done in good faith in the execution or intended execution of his or her power or duty or for any alleged neglect or default in the execution in good faith of his or her power or duty.

s. 74(2) Despite subsections 5(2) and (4) of the Proceedings Against the Crown Act, subsection (1) does not relieve the Crown or a municipal corporation of liability in respect of a tort committed by a person referred to in subsection (1) to which they would otherwise be subject.

[125] In the present case, the plaintiffs pled bad faith/improper motive on the part of the defendants. Therefore, the success of the statutory immunity argument depends on a finding of a lack of good faith.

[126] The defendant, Mario Sonego, similarly relies on the Municipal Act, 2001, S.O. 2001, s. 448 for immunity:

s. 448(1) No proceeding for damages or otherwise shall be commenced against a member of council or an officer, employee or agent of a municipality or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.

s. 448(2) Subsection (1) does not relieve a municipality of liability to which it would otherwise be subject in respect of a tort committed by a member of council or an officer, employee or agent of the municipality or a person acting under the instructions of the officer, employee or agent.

Doctrine of Witness Immunity

[127] Two defendants, Mario Sonego and Richard Marr, relied on this doctrine. One of the authorities the defendants rely on with regard to witness immunity is Bader v. Rennie, 2007 CanLII 37674 (Ont. S.C. (Div. Ct.)) for the law on witness immunity. Paragraph 21 of that decision states the following:

The Law of Defamation in Canada, supra, s. 12.4, articulates the application of the privilege in relation to an action for defamation. It states:

An absolute privilege or immunity attaches to those communications which take place during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings. No action for libel or slander will lie for words spoken or written during the ordinary course of those proceedings.

Thus, any communication made in the course of a judicial proceeding is privileged. It is the occasion on which the words were spoken that is material for the application of the rule. The witness’s motive or the relevance of her or his testimony is not a material issue (Samuel Manu-Tech Inc. v. Redipac Recycling Corp., supra, at para. 19).

[128] Based on this decision, there is no certainty that the investigators in this case are immune from liability. It is not clear that each individual investigator made his or her statements or reports in the course of a judicial proceeding. It is not sufficient that the statements were later relied on at a hearing.

[129] Furthermore, it is often not appropriate to dispose of claims on the basis of witness immunity at the preliminary stages. In Reynolds v. Kingston (City) Police Services Board, 2007 ONCA 166, 84 O.R. (3d) 738, the Court of Appeal concurred with Wilson J.’s dissenting reasons on the order from which the plaintiff appeals, at paras. 20-21.

Justice Wilson engaged in a lengthy review of English and Canadian authorities that have considered the application of the witness immunity rule in a variety of factual situations. In para. 112, she concluded that the authorities demonstrate that the law with respect to the scope of witness immunity is not settled in Ontario, and that the courts have decided that this issue cannot be resolved at the pleading stage. It can only be determined at trial on the basis of a complete factual record. This is because whether witness immunity applies is primarily a question of fact. Moreover, the party claiming immunity has the burden to prove facts that bring him or her within it. She went on to refer to R.D. Belanger, supra, and other decisions of this court which emphasize that matters of law that have not been fully settled should not be disposed of at the pleading stage of the proceedings.

Justice Wilson's reasons for dismissing the appeal are to be found at paras. 130 to 132:

The law with respect to witness immunity and absolute privilege has evolved and continues to evolve. The courts have not examined the provisions of the Coroners Act that define the duties and limit the privilege afforded to someone like Dr. Smith. The determination of the boundaries of witness immunity, and the distinction between investigation and testimony in this specific context, involve nuanced questions of fact.

The determination of unsettled legal issues should be made only in the context of a full factual record, possibly including appropriate expert evidence: see Spasic Estate v. Imperial Tobacco Ltd. (2000), 2000 CanLII 17170 (ON CA), 49 O.R. (3d) 699, 188 D.L.R. (4th) 577 (C.A.), at paras. 22-23. To the extent that this case involves the resolution of unsettled questions of law, requiring a factual context, a Rule 21 motion is not the proper forum to resolve the issue.

For all these reasons, I am not satisfied that the defendant Dr. Smith has proved that it is "plain and obvious" in law that witness immunity applies to all acts and reports provided by Dr. Smith related to the autopsy. I would therefore dismiss the appeal from the decision of Justice Coo.

[130] While Reynolds involved a defendant’s motion to strike a statement of claim on the basis that the defendant is immune from liability, the Court of Appeal, at para. 24, stated that those comments also apply to motions for summary judgment:

In my view, it is important to keep in mind that the court is dealing with a pleading motion brought by Dr. Smith who contends that it is plain and obvious that the respondent's statement of claim fails to disclose a reasonable cause of action. As such, this issue is to be determined on the basis of the pleadings that, for the motion, are taken to be accurate and capable of proof. Following this analysis, I have no doubt that the statement of claim discloses a reasonable cause of action constituting the torts of negligence and misfeasance in a public office. There is no radical defect in the pleading of the elements of either tort. Dr. Smith contends that the claims cannot succeed because he is the beneficiary of the witness immunity rule. In my view, this is different from contending that a statement of claim is not substantively adequate. Probably it would have been more appropriate had the appellant's claims been attacked on a Rule 20 motion for summary judgment. However, in my view the result of such motion would have been the same as it would have been clear that there was a genuine issue for trial in respect to the application of the witness immunity rule as this would be for the trial judge to determine on the basis of a complete factual record [Emphasis added].

CONCLUSION

[131] The defendants argued that the plaintiffs’ obligations with respect to setting out the basis for their various claims fail to meet their evidentiary obligation to put their “best foot forward”. Nevertheless, as summarized earlier in this judgment, the court in Combined Air recognized a caveat to the “best foot forward” obligation. In cases that involve complex issues or requires a normal process of production of documents and oral discovery to be completed, summary judgment may not be appropriate: see Combined Air at paras. 57-58.

[132] On the evidence, the plaintiffs assert that there is a genuine issue requiring a trial with respect to whether the Ontario defendants and Detective Cote breached the standard of care in the course of their investigation. Should Mr. Marr and Mr. Sonego be determined to have duties of an investigative nature, the same conclusion would apply.

[133] Although it is possible that in some cases summary judgment may be granted where the only genuine issue is a questions of law (rule 20.04(4)), or if the factual controversy is not material (Hatzitrifonos v. Marzan, 2012 ONSC 3566, [2012] O.J. No. 3253 at para. 26), the contentious factual issues in this case will ultimately determine the actions.

[134] In Combined Air, the court recognized that in certain cases the “interests of justice” demand a trial for the fair and just resolution of disputes due to the advantages of a trial process at paras. 46-47.

What is it about the trial process that certain types of cases require a trial for their fair and just resolution? In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the majority decision of Iacobucci and Major JJ., at para. 14, quotes a passage from R.D. Gibbens in "Appellate Review of Findings of Fact" (1991-92), 13 Advocates' Q. 445, at p. 446, which refers to the trial judge's "expertise in assessing and weighing the facts developed at trial". The quoted passage states: "The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence." The passage further notes that the trial judge gains insight by living with the case for days, weeks or even months. At para. 18, Iacobucci and Major JJ. go on to observe that it is the trial judge's "extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole" that enables him or her to gain the level of appreciation of the issues and the evidence that is required to make dispositive findings.

As these passages reflect, the trial judge is a trier of fact who participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses. As expressed by the majority in Housen, at para. 25, the trial judge is in a "privileged position". The trial judge's role as a participant in the unfolding of the evidence at trial provides a greater assurance of fairness in the process for resolving the dispute. The nature of the process is such that it is unlikely that the judge will overlook evidence as it is adduced into the record in his or her presence.

[135] The nature of certain aspects of this proceeding raises novel issues. In particular, the standard of care to be exercised by fire investigators and whether their obligations are analogous to those of police officers, as well as the standard of care required of City officials to correctly classify residences according to their actual use and to communicate those decisions in a timely way, are novel issues. Whether those officials have a duty of care to the plaintiffs is also a novel issue. Therefore, whether the relationships of the Ontario and Windsor defendants, except for Detective Cote, are analogous to the relationship established in Hill, and whether a prima facie duty of care should be negated for policy reasons, are issues more appropriately determined at a trial. Similarly, the issue of causation requires a trial. A “full appreciation” of those issues are not possible on the record before me. A “full appreciation” of whether there was bad faith or an absence of good faith is also not possible on the record. Thus, the applicability of the statutory immunity provisions cannot be determined on these summary judgment motions. While it may be difficult for the plaintiffs to prove bad faith, further exploration of that issue should not be closed out at this point. Whether bad faith or absence of good faith can be proven requires close scrutiny of the evidence of the various witnesses by a trial judge who can make findings of credibility and reliability based on the oral testimony of those witnesses.

[136] At the same time, some of the issues raised by the plaintiffs are capable of being disposed of on this motion and the record before me. Even if the plaintiffs’ pleading lacked particularity with respect to the negligence claims, the case before me calls for multiple findings of fact emanating from a number of witnesses. The findings of fact and the law to be applied to those facts must be determined at trial to fairly dispose of the various claims.

[137] Likewise, the facts related to the claim of abuse of process are contentious. Based on the record before me, I cannot have a full appreciation of the elements of the tort of abuse of process. This claim and the inter-relationship between the various investigators requires the forensic nature of a trial.

[138] With respect to the Charter claims, whether the plaintiffs can make out a successful case, it can only be in regard to s. 7. I find that the allegations of breaches of ss. 8, 11(d) and 11(g) are without merit and those aspects of the claim are dismissed. The s. 7 claim can only succeed and s. 24(1) damages awarded if bad faith can be established.

[139] Daley J. recently permitted claims to move forward in Wellington Standard Condominium Corp. No. 124 v. Fergus Mill Inc., 2012 ONSC 3957, [2012] O.J. No. 3256, even though they lacked particularity. At para. 34, Daley J. states:

While the plaintiff’s pleading is in many respects sparse in terms of its particularity, the plaintiff has filed responding affidavit evidence in respect of each aspect of its claim in regard to which the Moving Defendants seeks to have summary judgment, which just minimally answers the evidence put forward on behalf of the Moving Defendants.

[140] Furthermore, at para. 36, Daley J.’s statement regarding the likelihood of success of various claims in the context of a motion for summary judgment is instructive:

In my view, while several of the causes of action asserted by the plaintiff in the statement claim may not ultimately succeed at trial, given the multiple findings of fact required on a conflicting and voluminous evidentiary record, I cannot achieve a full appreciation of the evidence and issues related to the plaintiff's claims so as to make dispositive findings such that the issues at stake can appropriately be resolved on a motion for summary judgment. As such I conclude that the interest of justice requires a trial.

[141] While I agree that there are problems with the manner in which Dr. Becker’s report was provided to the court, I adopt the reasoning of MacPherson J. in Beatty v. Waterloo (Municipality). I have considered the report not for the truth of its content but that it exists and that it may assist in determining whether there is a genuine issue requiring a trial. Specifically, Dr. Becker’s report addresses alleged deficiencies in Christine Mak’s fire protection engineer report, as well as the confusing and controversial classification of rooming houses.

[142] The case before me is not a document-driven case with limited testimonial evidence as can be observed by the number of witnesses who may be called to testify at trial, including experts. In the affidavit of Mr. Owens, he made reference to supervisors and managers in the OFM who were apprised of the ongoing investigation and expressed opinions about the investigation and what steps should be taken by the Windsor Police officers involved. There are contentious factual issues. For example, the existence of an improper motive or whether there was a breach of the standard of care is difficult to appreciate on the basis of transcripts of cross-examinations, prior to formal examinations for discovery having taken place. This case, in my view, cannot be supplemented by the hearing of oral evidence on discrete issues, such as a Charter breach, and the immunity provisions.

[143] The plaintiffs have not adduced any specific facts regarding Eerik Randsalu’s negligent investigation or bad faith that is independent from the actions of Ms. Mak. The evidence suggests that Eerik Randsalu’s role in the investigation was to receive training. He assisted Ms. Mak by taking pictures at the audit/inspection. He did not conduct the investigation nor prepare a report on the incident. The claims must fail as against this defendant.

[144] With respect to costs, if the parties are unable to agree, I will receive written submissions no longer than five pages in length within 45 days of the release of this judgment.

[145] I will also receive within that same time frame written submissions no longer than three pages in length, regarding the management of the trial pursuant to rule 20.05.

[146] In summary, the following order shall issue:

1. Summary judgment is granted in relation to Eerik Randsalu and the Charter claims pursuant to s. 8, s. 11(d), and s. 11(g);

2. The balance of the motions are dismissed.

3. Costs to be determined in accordance with my direction at paragraph 146.

Original signed by “Mary Jo M. Nolan”

Mary Jo M. Nolan

Justice

Released: December 21, 2012