SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-2155-00
DATE: 20140411
RE: Sulochana Shanthakumar, Plaintiff
AND:
Royal Bank of Canada, Siva Gurrappadi,
William Sykes, Usha Radhakrishan, Sheila Wilson,
Royal Canadian Mounted Police, Phillip Carver, Albert Yang,
and the Attorney General for the Province of Ontario, Defendants
BEFORE: Andre J.
COUNSEL:
Peter M. Callahan, Counsel, for the Plaintiff
Sara Blake and Nadia Laeeque, Counsel, for the Defendant, The Attorney General for the Province of Ontario
Gregory W. Bowden, Counsel, for the Defendants, Royal Bank of Canada, Siva Gurrappadi, William Sykes, Usha Radhakrishan, and Sheila Wilson
Sharon McGovern, Counsel, for the Defendants, Royal Canadian Mounted Police, Phillip Carver, and Albert Yang
HEARD: March 26, 2014
ENDORSEMENT
[1] On October 4, 2010, the RCMP charged the plaintiff with attempting to defraud the defendant bank. The defendant, Attorney General of Ontario (“A.G. of Ontario”), prosecuted the case against the plaintiff and subsequently stayed the charge against her on May 15, 2012. Thereupon, the plaintiff sued the A.G. of Ontario for malicious prosecution and conspiracy to commit malicious prosecution. The plaintiff pleaded that there was a complete absence of any reasonable or probable grounds to initiate or to maintain the unjustified prosecution and that a Crown prosecutor had stayed the charge against the plaintiff because of “insufficient evidence to sustain the charge”.
[2] The A.G. of Ontario now seeks an order, pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (the “Rules”) striking out the plaintiff’s statement of claim on the ground that it discloses no reasonable cause of action or defence.
[3] I must therefore decide the following issues:
Does the plaintiff’s statement of claim disclose any reasonable cause of action against the A.G. of Ontario?
If not, should the plaintiff’s statement of claim be struck and the action against the A.G. of Ontario dismissed?
[4] For the reasons indicated below, I find that the plaintiff’s statement of claim does not disclose a reasonable cause of action and that accordingly, the plaintiff’s action against the A.G. of Ontario should be dismissed.
FACTS:
[5] The plaintiff pleads the following particulars in support of its claim against the A.G. of Ontario:
At no time prior to May 2012, did the Crown conduct an investigation of its own into the charge, or test the evidence allegedly supporting the charge. (at para. 48)
The A.G. of Ontario relied upon the false and misleading information provided to them by the defendant bank and by two officers of the RCMP. (at para. 48)
The defendants conspired, planned and acted in concert against her in an effort to prosecute her, thereby causing her harm.
There was a complete absence of any reasonable or probable grounds or basis to initiate or to maintain the unjustified prosecution.
Each party to the conspiracy knew, or ought to have known that the effect of their individual actions would lead to, or would likely lead to, further, or maintain, the unjustified prosecution.
The Crown stayed the charge against her “because of insufficient evidence to sustain the charge.”
ANALYSIS:
ISSUE NO. 1: Does the plaintiff’s statement of claim disclose any reasonable cause of action against the A.G. of Ontario?
[6] Rule 21.01(1)(b) provides that a party may move to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.
[7] On a motion under this rule, the facts alleged in the statement of claim must be accepted as provable or true when applying the test set out in the rule: see Raposo v. Dasilva 2013 ONSC 3298, at para. 7.
[8] The purpose of Rule 21.01(1)(b) is to enable a judge to strike from the pleadings, claims and/or defences that do not, in law, have a chance of succeeding. No pleading should be stricken unless it is “plain and obvious” that it “discloses no reasonable cause of action and defence”: see S.(R.) v. H.(R.) (2000), 2000 17038 (ON CA), 52 O.R. (3d) 152 (C.A.) at para. 14; Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at p. 976-77.
[9] Rule 25.06(1) also provides that “every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.”
[10] Rule 25.06(8) provides that “where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.”
- Does the plaintiff’s statement of claim disclose an action based on conspiracy to commit malicious prosecution?
[11] In my view, the plaintiff’s action against the A.G. of Ontario, based on conspiracy to commit malicious prosecution against her, must be dismissed for the following reasons:
Subject only to the tort of malicious prosecution, a Crown prosecutor and, by extension, the Attorney General of Ontario, is immune from a claim based on allegations of conspiracy: see McCreight v. Canada (Attorney General), 2012 ONSC 1983, at para.89; aff’d 2013 ONCA 483, at para. 18; 116 O.R. (3d) 429.
Even if the A.G. of Ontario is not immune from a claim based on allegations of conspiracy, the statement of claim does not disclose a reasonable cause of action based on conspiracy. A statement of claim, based on a claim of conspiracy to commit malicious prosecution, must contain pleadings which support the plaintiff’s claim of conspiracy to commit malicious prosecution.
As noted by the Court of Appeal for Ontario in Normart Management Ltd. v. West Hill Redevelopment Co (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97, at p.104, quoting the High Court of Justice in H.A. Imports of Canada Ltd. v. General Mills Inc. (1983), 1983 1722 (ON SC), 42 O.R. (2d) 645:
The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.
- In my view, the pleadings in the statement of claim fall short of the legal requirements set out in Normart Management Ltd. These pleadings are limited to the following assertions:
(i) The defendants (including the Crown) acted together, or in concert, or conspired together, or acted with a similar purpose or intent, namely to pursue the plaintiff in a manner which culminated in the unjustified prosecution.
(ii) Each of the defendants contributed meaningfully, and/or were instrumental in initiating, furthering and maintaining the unjustified and unlawful prosecution of the plaintiff.
(iii) Each party to the conspiracy (including the Crown) knew, or ought to have known, that the effect of their individual actions would lead to, or would likely lead to, further, or maintain the unjustified prosecution.
- The plaintiff’s statement of claim contains precious little information regarding:
(a) The relationship between the A.G. of Ontario, the defendant bank and the relationship between the A.G. and the individual defendants.
(b) The alleged agreement between the A.G. of Ontario and the other defendants.
(c) The overt acts alleged to have been done by each alleged conspirator in furtherance of the agreement.
Not only did the plaintiff fail to plead particulars about the alleged conspiracy to commit the tort of conspiracy, but the very decision by the A.G. of Ontario to stay the fraud allegations against the plaintiff, undermines the plaintiff’s bald contention that the A.G. of Ontario conspired to commit malicious prosecution against her.
Does the plaintiff’s statement of claim disclose an action against the A.G. of Ontario based on malicious prosecution?
[12] In order to succeed in this claim, the plaintiff must plead the following elements of the tort of malicious prosecution:
(a) The prosecution was initiated or continued by the defendant;
(b) The prosecution was terminated in favour of the plaintiff;
(c) The prosecution was undertaken without reasonable and probable cause; and
(d) The prosecution was motivated by malice or a primary purpose other than that of carrying the law into effect: see Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at para. 3.
[13] Rule 25.06(8) requires that where malice is alleged in a statement of claim, the pleadings must contain full particulars although knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.
[14] The plaintiff has pleaded particulars regarding the first two elements but not the latter two. The prosecution against the plaintiff was clearly based on the investigation conducted by the defendant bank’s employees and by RCMP officers. The fact that the witnesses relied upon by the A.G. of Ontario proved to be unreliable or proved not to be credible does not necessarily constitute proof that the defendant, A.G. of Ontario, lacked the requisite reasonable and probable grounds to prosecute the plaintiff.
[15] Neither can one rely on the decision to stay the charge against the plaintiff as proof that the witnesses relied upon by the A.G. of Ontario in its case against the plaintiff were not credible. Indeed, the plaintiff could nevertheless have been prosecuted by the A.G. of Ontario, even if it believed that the evidence of one or more of its witnesses was unreliable: Miazga v. Kvello Estate, at paras. 67, 73. To that extent, the contention that the alleged lack of credibility of the witnesses relied upon by the A.G. of Ontario, in its prosecution of the plaintiff, constitutes evidence of malicious prosecution, is without foundation.
[16] Additionally, an action based on allegations of malice requires evidence that the prosecutor was motivated by an improper purpose. It requires evidence that the A.G. of Ontario, “perpetrated a fraud on the process of criminal justice and in so doing has perverted or abused his office and the process of criminal justice”: Nelles v. Ontario, [1989] 2. S.C.R. 170, at p.194; Miazga, at paras. 78, 80-81. Absent such evidence, the plaintiff’s action against the defendant A.G. of Ontario must fail.
[17] The plaintiff’s counsel submits that the fact that the Crown stayed the fraud charge against the plaintiff because there was insufficient evidence to sustain the charge, is evidence of malicious prosecution in the matter. He also submits that the A.G. of Ontario’s failure to initially assess or investigate the evidence of the defendant bank’s investigators and to assess their credibility constitute evidence of malicious prosecution in this matter.
[18] With respect to the first submission, the belated decision to stay a criminal charge due to insufficiency of the evidence, is not, by itself, proof of malice or of malicious prosecution. A Crown prosecutor may honestly and objectively believe that the evidence on which a prosecution is based is sufficient, while another may have an entirely different opinion. In those circumstances, if a prosecutor stays a charge based on a conclusion that there is insufficient evidence to sustain a charge, that decision does not constitute proof of improper motive or malice towards the person charged.
[19] In Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, the Supreme Court of Canada noted, at p. 21, that a “failed prosecution does not without more – much more – give rise to a viable claim for prosecutorial wrongdoing.” In my view, the same principle appears where the Crown has decided, after a passage of time, not to proceed to trial.
[20] To properly ground a statement of claim based on allegations of malicious prosecution, the plaintiff was required to plead particulars related to animus, spite, hatred or bigotry against the plaintiff. There must be particulars pleaded that demonstrate a purpose outside the prosecution of the plaintiff for her alleged criminal wrongdoing: see G.C. v. (Ontario Attorney General) of Ontario, 2014 ONSC 455, at para. 68.
[21] The plaintiff was required to identify a collateral purpose that motivated the A.G. of Ontario, outside of his “core prosecutorial discretion”: G.C., at para. 71.
[22] Neither was the A.G. of Ontario required to have conducted its own investigation into the allegations against the plaintiff. Had there been some early indication that the investigation was flawed, or was motivated by animus or prejudice towards the plaintiff then the A.G. of Ontario could reasonably have been expected, early on in the process, to carefully review the evidence on which its prosecution of the plaintiff was based.
[23] However, there is nothing in the pleadings suggesting that this was the case. There is nothing to suggest that the A.G. of Ontario ignored any evidentiary “red flags” or ignored evidence that pointed towards the exoneration of the plaintiff. Neither is there any evidence that the A.G. of Ontario had been co-opted in a capricious scheme to prosecute the plaintiff.
[24] Even if the evidence regarding the A.G. of Ontario’s prosecution of the plaintiff falls short of malicious prosecution, evidence of tardiness or negligence on the part of the Crown in proceeding with a prosecution cannot ground an action based on malicious prosecution, given that “prosecutorial negligence” or “gross negligence” is insufficient to ground a malicious prosecution claim against a Crown attorney: Proulx; Fitzpatrick v. Durham Regional Police Services Board et al. (2005), 2005 63808 (ON SC), 76 O.R. (3d) 290; (S.C.), at para. 15. As the Court of Appeal for Ontario noted in Miguna v. Ontario (Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346 (C.A.), at para. 11: “No action lies against a Crown attorney for prosecutorial misconduct that sounds in negligence.”
[25] The delay in the staying of the charge against the plaintiff, the proposed reason for doing so, or the failure of the Crown to conduct its own investigation into the witnesses employed by the defendant bank, do not constitute evidence of malice in this matter.
[26] For the above reasons, the motion brought by the A.G. of Ontario in this matter is granted. The plaintiff’s statement of claim is struck because it discloses no reasonable cause of action.
[27] Counsel for the parties declined my invitation, at the conclusion of this hearing, to make submissions regarding the award of costs. Each party must therefore submit a two to three page summary of their position, together with a Bill of Costs. This must be submitted within fifteen days of the date of this decision.
Andre J.
Date: April 11, 2014