ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-449625
DATE: 20140331

BETWEEN:

Carlos Ferreira
Plaintiff

– and –

Manuel Antonio Marcos and Mariana Marcos
Defendants

F. Teixeira, for the Plaintiff

D.S. Strashin, for the Defendants

HEARD: October 1-3, 24, 2013

Carole J. Brown J.

reasons for decision

"Good fences make good neighbors." Robert Frost

[1] The plaintiff brings this action as against the defendants for malicious prosecution and seeks general damages in the amount of $80,000, special damages in the amount of $10,000 and punitive, aggravated and exemplary damages in the amount of $10,000.

[2] All parties are Portuguese and are able to speak and understand Portuguese. The defendant, Mr. Marcos, was the only party who required an interpreter.

The Evidence

[3] The plaintiff, Carlos Ferreira, was 39 years of age at the time of trial. He resides at 292 St. Clarens Avenue in Toronto and has lived at that address since 2006, with his spouse, Sandra Almeida, and their son and daughter who were, in 2011 during the material time, five and eight years of age respectively.

[4] Mr. Ferreira is a senior account executive at Telus, where he manages a team of seven persons, focusing on strategy with assigned customers, particularly government and healthcare. His spouse, Ms. Almeida is employed with the University Health Network, which is an amalgamation of the Toronto Hospitals and Toronto Rehabilitation, in the position of IT analyst. In this position, she assesses workflows and situations within the hospitals to assist as regards patient care.

[5] The defendants, Manuel and Mariana Marcos, reside at 301 St. Clarens Avenue, across the street and to the south of the plaintiff's property. They also own the home at 294 St. Clarens Avenue, which is adjoined to the plaintiff's property by a party wall. This property, which they have owned for 33 years, is rental property, with four apartments. It appears, from the evidence, that Mr. Marcos often parked his car in the garage at 294 St. Clarens. Mr. Marcos was, at the time of trial, 68 years old, and was retired.

[6] The two subject properties, 292 and 294 St. Clarens Avenue, are separated by a party wall and, running from the house to the brick garage behind each yard, a fence. There is a laneway behind the garages at 292 and 294 St. Clarens Avenue, which provides access and egress from the main streets to the properties' garages.

[7] The plaintiff, Mr. Ferreira and his spouse, purchased their home in 2006 and moved in in 2007 after extensive renovations to the main house, in which they essentially gutted and renovated the interior of the home and installed new electricity and plumbing. Stage II of the renovations was to the exterior. They added a two-story extension, built back from the house 12 feet, which was constructed between 2008 and 2010. As part of the second stage of the renovations, they also replaced the old, rusty, chain-link fence, which Mr. Ferreira described as unsafe for his children or for anyone, with a 6 foot, 2 x 4 pressure-treated wooden fence.

[8] In order to undertake the renovations and construction to both interior and exterior, Mr. Ferreira was required to obtain permits for both stages of construction from the City, which were approved. In order to obtain approval from the City and particularly the Committee of Adjustments, he was required to get approval of the design from the defendants and to obtain a Party Wall Agreement, which was done. As part of the Agreement, the plaintiff was to construct the wooden fence. The Marcos agreed to the fence, as long as it would be placed in the same location as the chain-link fence. The architect also wanted to obtain approval of all of the surrounding neighbours, as it is apparently easier to obtain Committee of Adjustments approval if all of the neighbours have given approval. The chain-link fence was removed in 2010 and the wooden fence was constructed in 2011. In the interim, a construction safety fence was placed between the properties.

[9] It would appear from the evidence that, from the time the exterior construction began, tensions began to mount as between the parties which ultimately escalated into the events or incidents before this Court.

The First Incident: April 23, 2011

[10] It was the evidence of Mr. Ferreira that, on April 23, 2011, he was putting up a safety fence along the stairwell being constructed on their property, which bordered the two properties, 292 and 294 St. Clarens, in order that no one would fall into the stairwell, as the permanent fence had not yet been constructed. He was accompanied by his father and his son. He testified that Mr. Marcos came to the backyard, appeared to be angry and abrupt, was mumbling something, and began taking photographs of them from a distance of approximately 1 to 2 feet. Mr. Ferreira asked Mr. Marcos to stop photographing them, given the presence of his father and son. Mr. Marcos made a threatening gesture, which was described as "giving him the finger". Mr. Ferreira stated that Mr. Marcos then "grabbed his crotch" in a rude gesticulation. Mr. Ferreira described Mr. Marcos as aggressive, threatening, intimidating and bullying.

[11] Mr. Ferreira took his son and father into the house and called the police. The police came, Mr. Ferreira explained what had happened and the police thereafter went to speak to Mr. Marcos. Mr. Ferreira stated that the police told him they could not charge Mr. Marcos for "giving him the finger" or grabbing his crotch. Mr. Ferreira testified that he just wanted Mr. Marcos to leave them alone.

[12] Mr. Marcos denies that he displayed any anger or was aggressive or threatening at the time of the incident. He indicated that he had gone to his rental property, had seen people in the backyard, on his property, that he had not been advised that anyone would be accessing his property, and therefore went to his home to get his camera in order to photograph the trespassers. He stated that this was what he did.

[13] Mr. Marcos testified that he said nothing to the plaintiff. He testified that the plaintiff began to call him names, said he would "fix me" and threw a plastic chair at him. He stated that he did not call the police and, in his testimony, gave contradictory answers as to what he knew about who called the police. In examination in chief, he denied that the police came to his home.

The Second Incident: May 11, 2011

[14] Mr. Ferreira testified that he was having sod laid in the backyard to cover the bare spots left by the construction. He stated that he did not believe there was any sod placed on the Marcos property. He testified that Mrs. Marcos came to the backyard and stated that Mr. Ferreira's sod was on her property. She began kicking the sod over from the fence line onto his property. Mr. Ferreira stated that he tried to indicate to her that it was only grass, which was in both backyards, that it was covering the empty spots on the lawns. It is likely that it would have grown together in any event. He testified she would not listen and continued to kick aside the sod and indicated she did not want it on her property. She was speaking in a loud voice and seemed angry, aggressive and unreasonable. Mr. Ferreira testified that Mr. Marcos then came to the backyard and appeared very angry and aggressive, "huffing and puffing". Mr. Ferreira testified that Mr. Marcos grabbed the sod and then proceeded to rip the orange construction fence apart and threw it into Mr. Ferreira's backyard, along with the cement blocks holding it up.

[15] Mr. Ferreira testified that Mr. Marcos then went to the recycle bin, took out a stone which was approximately 6.5" x 6.5" and came at Mr. Ferreira. When Mr. Ferreira confronted him and asked if he was going to hit Mr. Ferreira with the stone, Mr. Marcos backed off, said no and threw it back into his yard. However, he then drew his finger across his throat saying "I'm gonna kill you" in Portuguese. Mr. Ferreira testified that he felt threatened, went into his garage and called 911. He stayed in the garage until Mr. Marcos left, and then went into his home. He testified that the police came quickly, as this was approximately the 10th time that they had been called due to ongoing harassment, bullying and threatening from Mr. Marcos which started with the construction and escalated with the fence.

[16] Mr. Ferreira testified that the police came, found Mr. Marcos in the laneway behind the garages, handcuffed him, put him in the police cruiser and subsequently charged him with uttering death threats. He was to have appeared in court on June 22, but instead, entered into a peace bond agreement.

[17] Mr. Marcos denied Mr. Ferreira's description of the incident on May 11, 2011. It was the evidence of Mr. Marcos that he was in the garage, heard his wife speaking loudly, went out to investigate and heard the plaintiff saying something about boundaries not being respected. He stated that the plaintiff got the garden hose and turned it on both Mr. and Mrs. Marcos. He stated that Mr. Ferreira then said he would "fix things". He testified that they left the backyard, went to change from their wet clothes and he then went back to the rental property garage. The police arrived and said they were looking for Manuel Marcos. He stated that they handcuffed him, arrested him, put him in the police cruiser and took him to the 14th division police station.

[18] He denies that he was ever told why he was arrested or what the charges were. His evidence in this regard was somewhat vague and evasive. He admitted calling his lawyer who came to the station. He stated that the lawyer spoke to the police, gave Mr. Marcos some papers and left without telling him what he was charged with. He stated that there was an Officer Serkera, who was able to translate to Portuguese for him. However, he denied that Officer Serkera advised him of the charges laid against him. He stated that Officer Serkera only translated two or three words and was only there a few minutes. He subsequently, in cross-examination, admitted that he was nervous and could have forgotten what was said or translated, although he stated that he "knew I didn't do anything wrong".

[19] He was charged with threatening death contrary to the Criminal Code of Canada, s.264.1(1)(a). He was given a Promise to Appear in court on Wednesday, June 22, 2011, which Promise to Appear he signed on May 11, 2011. Also on the same date, he signed an Undertaking Given to a Peace Officer which stated that Mr. Marcos undertook to "abstain from communicating, directly or indirectly with Carlos Ferreira or from going to within 40 feet of 292 St. Clarens Avenue, Toronto or anywhere Carlos Ferreira is known or likely to be" and further, was "not to possess any weapons as defined by the Criminal Code of Canada".

[20] After consultation with his lawyer, Mr. Marcos entered into a peace bond and signed a Recognizance to Keep the Peace on July 27, 2011, before Justice of the Peace P. A. Harris. The conditions of the recognizance were that the accused was to keep the peace and be of good behaviour for the term of 12 months commencing July 27, 2011; was to "have no contact or communication directly or indirectly with Carlos Ferreira "; "not possess any weapons as defined by the Criminal Code of Canada"; and "not to be on the premises of 292 St. Clarens Ave., Toronto, On". A recognizance without surety was ordered in the amount of $500.

[21] While Mr. Marcos denied that he had threatened the plaintiff, he stated that he wanted to put an end to it, and that it was for this reason that he signed a peace bond, on his lawyer’s advice.

The Third Incident: September 19, 2011.

[22] Mr. Ferreira testified that he had a "run in" with Mr. Marcos on September 19, 2011. He was driving south on Marguerita Street which is the first street east of St. Clarens. He stated that St. Clarens is a one-way street going north and Marguerita is a one-way street going south. In order to go in a southerly direction from his home, he would take St. Clarens north to Bloor and then turn south onto Marguerita. He noticed Mr. Marcos going to his own vehicle which apparently was parked on Marguerita. He stated that Mr. Marcos stopped and, as he was passing, gave him the finger and mumbled. Again, he interpreted it as threatening, contacted his lawyer and the police. The police advised him that there was no crime for giving the finger and there was no follow-up.

[23] Mr. Marcos denied doing anything or even seeing Mr. Ferreira on Marguerita Street. He testified that he sometimes parked on the street and had parked on Marguerita from May 11, 2011, as he did not want to have any problems and the garages at 292 and 294 St. Clarens were side-by-side.

[24] The evidence indicates that on September 21, 2011, Mr. Ferreira and Ms. Almeida commenced a proceeding for determination of the boundaries as regards 292 and 294 St. Clarens Avenue.

The Fourth Incident: November 5, 2011

[25] Mr. Ferreira testified that on the afternoon of November 5, 2011, he was leaving his garage and driving along the back laneway to the main street when he encountered Mr. Marcos in the laneway at the rear of the property. Mr. Marcos was walking in the center of the laneway. Mr. Ferreira stopped the vehicle and Mr. Marcos moved to the left (driver) side of the laneway where there was a walkway to walk on.

[26] Mr. Ferreira stated that his window was opened a tiny bit and, as he drove by, Mr. Marcos said "you're gonna pay" in Portuguese. Mr. Ferreira described Mr. Marcos as calm. After he passed by, Mr. Marcos moved to the center of the laneway and stared him down until he left. Mr. Ferreira took this as a definite threat. Mr. Ferreira drove directly to the 14th division police station and advised them of what had occurred. The police officers spoke with him and said they would go to speak with Mr. Marcos. When Mr. Ferreira returned to his home, he saw the police in front of 301 St. Clarens. He testified that later that evening, the police came to his home and told him that they had warned Mr. Marcos not to have any communication with Mr. Ferreira, and that if he did, he would go to jail.

[27] In testimony, Mr. Marcos admitted that he was in the laneway but that he walked by Mr. Ferreira's car, as if he weren't there, and did nothing. He stated that the police came to his home and told him they were responding to a call from the plaintiff, that the plaintiff had accused Mr. Marcos and said that he had provoked Mr. Ferreira. They talked about the peace bond he had signed and told him that he could be arrested if he became involved with Mr. Ferreira. He testified that they told him to be careful and not get involved. Mr. Marcos stated that they told him that he should see his lawyer and also go to a justice of the peace to find a way to stop this, otherwise Mr. Ferreira would keep calling and Mr. Marcos would end up in prison.

Charges Laid against Mr. Ferreira

[28] Mr. Ferreira stated that during the first week of December, 2011, he received a call from the police station at College and Bay and was told to attend at the station to pick up some documents. When he attended, he was told that he was being charged, and was provided with two Summons to a Person Charged with an Offence, one regarding Mariana Marcos dated 28 November, 2011 and the second regarding Manuel Marcos of the same date.

[29] The first Summons, directed to Carlos Ferreira, stated that he "did commit mischief by spraying Mariana Marcos with water by using a garden hose contrary to the Criminal Code s.430, and furthermore the said Carlos Ferreira, did by word knowingly utter a threat to Mariana Marcos, to cause death to Mariana Marcos and her family, contrary to the Criminal Code, s. 264.1(1)(a)."

[30] I note that, despite the laying of any information by Mariana Marcos alleging mischief and uttering death threats, and the second incident in which she was involved, as described above, Mrs. Marcos never testified at this trial.

[31] The second Summons directed to Carlos Ferreira stated that he "did in committing an assault on Manuel Marcos, use a weapon to wit: a plastic chair, contrary to the Criminal Code, or s.267(a), and furthermore the said Carlos Ferreira, on 23rd day of April 2011, Toronto, did by word knowingly utter a threat to Manuel Marcos, contrary to the Criminal Code, s. 264.1(1)(a), and furthermore the said Carlos Ferreira, on May 11, 2011, did commit mischief by spraying Manuel Marcos, with water by using a garden hose contrary to the Criminal Code, s. 430, and furthermore the said Carlos Ferreira, did by mouth utter a threat to Manuel Marcos, to cause death to Manuel Marcos, and his family, contrary to the Criminal Code, s. 264.1(1)(a).”

[32] Both Summonses indicated that Mr. Ferreira was to appear before the presiding judge on January 13, 2012.

[33] Mr. Ferreira testified that he was shocked and embarrassed at receiving these Summonses which he stated were false and fabricated.

[34] Mr. Marcos testified that he had spoken with his lawyer, Jason dos Santos after the November 5 incident. He testified in examination in chief that he was advised by his lawyer and the police who came to his house on November 5 to lay charges, otherwise Mr. Ferreira would not stop and Mr. Marcos would be put in prison. He initially testified that the police told him he had to find a way to defend himself. He subsequently, in cross-examination backed away from the statement that he had been told by the police to lay charges. He then testified that the police had told him to speak with a lawyer and to go before a justice of the peace in order to avoid having the complaints continue and to potentially be arrested.

[35] As noted, charges were laid 6 to 7 months after the first incidents. Mr. Marcus testified that he did not want to lay charges because he simply wanted to avoid problems and "wanted peace not war". He initially said that he laid the charges because the police told him to and he was advised to do so by his lawyer. Subsequently, he stated that he had gone to the court to lay the private prosecution charges because he had been unjustly accused and was really sick of it. In cross-examination, he conceded that he was upset and angry so he filed the charges, that the November 5 incident was the motivation for filing the charges and that he was "getting tired of all the false accusations so I decided to go and start the process".

[36] In evidence were the documentation and affidavit of Mr. Marcos filed with the court. He stated that he mentioned the incidents of April 23, May 11, as well as incidents on May 31 and June 1 when he alleged that Mr. Ferreira trespassed onto his property and removed vine posts, destroying grapevines growing there, which he stated in the affidavit in support of his private charges, were captured on security video from his backyard. He did not mention the incident of November 5, nor did he mention calling the police to report that his video security camera attached to his garage had been stolen. He denied that he had told the police that he suspected Mr. Ferreira of the theft

[37] The evidence adduced includes the transcript of proceedings at the Pre-Enquette held before His Worship, Justice of the Peace G. S. John on November 28, 2011, at which time Mr. Marcos gave evidence in support of his private laying of charges. The Crown prosecutor, Mr. Normandeau, after hearing the evidence, stated to the court that "I think that to lay a criminal charge then, on this appears to be for the purpose of helping a civil action, which is a… in the first place prohibited by the Code, if he found out that's what he's doing. But also is perhaps disingenuous as Mr. Marcos quite frankly, he understands perfectly well with either interpreter his daughter or Ms. Francisco, he's disingenuous in his answers".

[38] Also in evidence before this Court where the transcripts of the Court proceedings before His Worship Justice of the Peace J. Cottrell on March 19, 2012 at which time the Crown requested that the charges be withdrawn. The Crown submitted as follows "I've reviewed the brief, and Crown Nielsen has asked that all of these charges be marked withdrawn. They’re privately laid Informations, but the background is, there's a civil suit, and the Deputy Crown at the time, Normandeau, was concerned that the complainant was using the civil – the criminal charges in the civil suit, it could be abusive. So, we’re asking that all of these charges be marked withdrawn". Upon request, the court ordered that all charges be withdrawn.

[39] Mr. Ferreira testified that he was greatly affected by the laying of charges against him. He testified that he was shocked, embarrassed, stressed and anxious as a result of the charges. He indicated that he had never been in such a situation before. It is his evidence that, as a result of the stress and anxiety, he lost motivation, had to take time off from work, which he estimated to be approximately 14 days, and lacked any motivation at home. He stated that he was so embarrassed that he told only his spouse, their parents and after he received some comments from his supervisor at work, he also told her.

[40] His spouse, Ms. Almeida, confirmed that they were shocked and that the prospects of these criminal charges against her husband were daunting, stressful and that they were in constant worry and anxiety. She testified that the home environment was different as a result of the charges. She said that everyone was on edge. Due to Mr. Ferreira's stress and anxiety, he no longer wanted to play with the children, he did not want to go out for dinners with friends on the weekend as they used to do. She stated that they were worried that he may lose his job over the charges, which would leave her as the sole breadwinner of the family. She indicated that financially, things would have to change if she were the sole breadwinner, including the sale of the home, as she would not be able to pay for all expenses, upkeep and mortgage payments alone. She further stated that there was a financial strain on the family, given the additional legal bills incurred to defend Mr. Ferreira as regards these charges.

The Issues

[41] The issues for determination by this Court are as follows:

1. Has malicious prosecution of Mr. Ferreira by Mr. and Mrs. Marcos been established?

2. If so, have damages been sustained as a result of the malicious prosecution?

3. If so, what is the quantum of damages?

Credibility

[42] Counsel for both parties were generally in agreement that this is a fact-based case, with credibility as a significant issue. The evidence on most material points is significantly divergent.

[43] In assessing the credibility of the witnesses in this case, I am guided by the observations made by D. Brown J. in Atlantic Financial Corp. v. Henderson Et al, [2007] 15230 (SCJ), as follows:

In deciding between these two diametrically opposed positions, I am guided by the observations made about assessing the credibility of witnesses by O’Halloran, J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) where he stated, at page 357:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[44] Additional factors to take into account when assessing a witness’ credibility include the presence or absence of evidence contradicting a witness’ statements and corroborative evidence: Sopinka and Lederman, the Law of Evidence in Civil Cases (1974), pp. 527-8.

[45] In considering the credibility of the parties, I have first taken into consideration the fact that Mr. Marcos evidence was given through an interpreter, which may have interrupted the flow of the testimony. Having taken that into account, however, I find the defendant’s evidence to be inconsistent and in some instances contradictory, and many of his answers to be argumentative, defensive and self-serving. In cross-examination, the defendant became defensive, and when confronted with evidence which was not consistent with his version of the facts, he became evasive. His evidence regarding encounters with the police, when he was being arrested, at the police station with police officer Serkera, and thereafter regarding the incident of November 5, and his initial insistence that the police had told him to lay the charges, which he later backed away from, were not plausible as regards his answers given during cross-examination, as well as the exchange regarding his wife's abilities in the English language, which were evasive and argumentative. He seemed unable to give a straightforward answer. He attempted on many occasions to explain away questions and answers when confronted with contradictory evidence. His interpretation or understanding of events did not accord with common sense when placed in the context of the circumstances.

[46] In contrast, the plaintiff’s evidence was forthright, direct, clear and concise in both examination-in-chief and in cross-examination. Where the plaintiff’s and defendant’s evidence diverge, I prefer the evidence of the plaintiff, unless otherwise stated.

[47] Based on the evidence adduced, I accept the testimony of Mr. Ferreira as regards the incidents which occurred on April 23, May 11, September 19 and November 5, 2011. Based on common sense, there were likely other exchanges among the parties which were not adduced in evidence. Mr. Ferreira testified that there were approximately 10 previous times that the police had been called.

[48] Based on the evidence, it would appear that there was a buildup of tensions from the time that the exterior construction was occurring. It appears that Mr. Marcos did not like the construction, although he had agreed to it prior to Mr. Ferreira's obtaining of approval from the Committee of Adjustments for the construction. It is further apparent that Mr. Marcos did not agree with the placement of the wooden fence. This did not, however, justify the kind of behaviour which occurred.

[49] I do not accept the evidence of Mr. Marcos as regards his version of the facts and what occurred on April 23, May 11, September 19 and November 5, 2011. While Mr. Ferreira's responses to the September 19 and November 5 incidents, and his interpretation of them as threatening may be questioned, I do not doubt that, after all of the incidents and exchanges with Mr. Marcos which occurred previously, he considered these also to be threatening.

The Law and Analysis

Malicious Prosecution

[50] In Nelles v Ontario, [1989] 2 S.C.R. 170 (S.C.C.) at paragraph 42, the Supreme Court of Canada held that, in order to establish the tort of malicious prosecution, four elements must be present, as follows:

1. the proceedings were initiated by the defendant(s);

2. the proceedings terminated in the plaintiff's favour;

3. there was an absence of reasonable and probable cause for initiating the proceedings against the plaintiff; and

4. there was malice, or a primary purpose other than properly carrying the law into effect, on the part of the defendant(s).

[51] I note, in this case, that the privately laid charges made by Mr. Marcos some seven months after the first had occurred, were, in certain cases, almost mirror images of the defendant's conduct complained of by Mr. Ferreira at the time of the above-mentioned incidents, particularly as regards the death threats. As indicated above, where the evidence as regards those four incidents differs, I prefer the evidence of Mr. Ferreira.

[52] The evidence as regards the four elements of the tort of malicious prosecution are as follows.

[53] First, as regards the proceedings being initiated by the defendant, the evidence indicates that Mr. Marcos laid private Informations or complaints with the Ontario Court of Justice against Mr. Ferreira on November 28, 2011 comprising assault, three counts of assault with a weapon, three counts of uttering death threats, mischief by trespassing and mischief under $5000. This first part of the four-part test is satisfied.

[54] Second, as regards the termination of the proceedings in the plaintiff's favour, the evidence indicates that following a Pre-Enquette held on November 28, 2011, the charges were withdrawn by the Crown at court proceedings on March 19, 2012, on the ground that it appeared that the complainant was using the criminal charges to gain advantage in the civil suit which was proceeding between the parties. The Crown commented that the laying of criminal charges in such circumstances could be seen as an abuse of process. Thus, all charges were withdrawn by order of the court, and the proceedings were thereby concluded in favour of the plaintiff, which satisfies the second part of the four-part test.

[55] While the first two elements of the test are straightforward, the latter two require further analysis. Reasonable and probable cause has been defined as "an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed": Nelles v Ontario citing Hicks v Faulkner (1878), 8 Q.B.D. As explained by the Supreme Court of Canada, this test contains both a subjective and objective element. It must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances.

[56] In the present case, while I do not doubt that there were tensions, and that Mr. Marcos believed, based on his testimony, that he never did anything wrong, I have preferred the evidence of Mr. Ferreira to that of Mr. Marcos as regards the events in question, including the events complained of in the private Informations laid by Mr. and Mrs. Marcos. I do not find those allegations to be founded on an honest belief in the guilt of Mr. Ferreira, as defined at paragraph 55 above. Nor do I find that such belief was reasonable in the circumstances. I am satisfied, based on all of the evidence, that reasonable and probable cause was absent in the circumstances of this case and, accordingly, that the third part of the test is met.

[57] As stated by the Supreme Court of Canada in Nelles v Ontario, supra, "the required element of malice is, for all intents, the equivalent of "improper purpose". It has, according to Fleming, "wider meaning than spite, ill will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage" (Fleming, op. cit. at p. 609).

[58] In this case, Mr. Marcos, in his evidence, indicated that, following the November 5 incident, he was angry and simply wanted to put a stop to the complaints of Mr. Ferreira regarding Mr. Marcos behaviour. He stated that it was the November 5 incident which motivated the laying of private charges. As indicated above, those charges were withdrawn by the Crown, as they appeared to be an attempt to gain a private collateral advantage in the civil suit which was proceeding against the Marcos, which could be seen as an abuse of process. This would constitute an improper purpose in satisfaction of the fourth part of this test.

[59] On all of the evidence, I find that Mr. Ferreira has established the case for malicious prosecution.

Damages for Malicious Prosecution

[60] The three heads of damage for malicious prosecution were first enunciated by Holt C. J. in Savile v Roberts (1698), 1 Raym. 374, 91 E. R. 1147 (Eng. K. B.) at 1149 and cited in Pearson v Mian, 2006 CarswellOnt. 7286. They are:

1. Damages to a person's "good name, fame, credit and esteem";

2. Damages to the person which include an emotional reaction to the prosecution and the risks attendant thereto; and

3. Damages to property, which generally refers to financial loss due to the mounting of a defence or loss of earnings.

[61] The evidence of Mr. Ferreira and Ms. Almeida established that Mr. Ferreira became anxious, stressed, unable to concentrate on his work or his family, which also had an impact on family life. It appears that, while he was unable to work in a concentrated fashion, there was no reduction in his responsibilities or position, he was not demoted, and he did not experience a reduction in income. There was no evidence adduced as regards any effect, either immediate or long lasting, on his work. While he indicated that he was stressed, he did not consult a doctor, psychiatrist, psychologist, or any other health practitioner or counselor. He did indicate that he did not like to go to doctors and did not go. This was confirmed by Ms. Almeida. He did not participate socially in events with friends as he used to, but became isolated during these months from the time he was charged in November of 2011 to the withdrawal of charges in March of 2012.

[62] He testified that he only told his spouse, his immediate family and his immediate supervisor about the charges. He said that this was significantly embarrassing to him. Given his inability to focus at work, he was significantly concerned about his position. Both he and his wife were concerned about the impact that the charges may have on them were his job to be significantly affected by the stress of the charges or his position potentially lost as a result.

[63] Counsel for the plaintiff estimated his loss of income based on 14 days absence from the office to be in the range of $6,000. There was no evidence that Mr. Ferreira was, in fact, absent from the office or unable to work for 14 days and there was no evidence to support an actual loss of income.

[64] Mr. Ferreira also claims for legal costs which were incurred in order to defend himself as regards the private prosecution charges laid against him by Mr. Marcos. H