COURT FILE AND PARTIES

COURT FILE NO.: CV-12-468535

DATE: 20140617

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARK THOMPSON, Plaintiff

AND:

ATTORNEY GENERAL OF ONTARIO, Defendant/Moving Party

BEFORE: Justice Firestone

COUNSEL: No one appearing for the Plaintiff

H. Burnett, for the Defendant/Moving Party

HEARD: June 5, 2014

ENDORSEMENT

[1] The Defendant, Attorney General of Ontario (“Crown”) originally brought their motion to strike out the Plaintiff’s statement of claim (“Claim”) without leave to amend pursuant to Rules 1.04(1), 21.01(1)(a)(b), 21.01(2)(a), 25.11(b)(c), 37, 39 and 57 of the Rules of Civil Procedure. That motion came before me on April 11, 2014.

[2] The Plaintiff filed responding material but did not appear on that date. The matter was held down until 3:00 p.m.

[3] In the interests of justice I adjourned the matter to today’s date to give the Plaintiff an opportunity to attend and make submissions. I directed the Plaintiff to appear.

[4] On April 11, 2014, the Crown was granted leave to file an additional motion record or notice of motion under rule 20 “summary judgment rule” requesting the same relief, which was to be served in accordance with the rules.

[5] I ordered that a copy of my endorsement of April 11, 2014, was to be served on the Plaintiff by the Crown by both regular mail and registered mail.

[6] On April 30, 2014, the Crown did by way of letter dated April 29, 2014 in accordance with my endorsement send to the plaintiff by both regular and registered mail a copy of my endorsement dated April 11, 2014 and advised that the motion was adjourned to the June 5, 2014 to give the plaintiff an opportunity to attend the motion. In that correspondence the Crown advised the Plaintiff that it would, in accordance with my endorsement, be filing an updated notice of motion, factum and supplementary book of authorities.

[7] In that correspondence the Crown advised the Plaintiff that on the return date of June 5, 2014, it would be seeking to strike the Plaintiff’s claim and dismiss his action. An affidavit of service sworn May 5, 2014, was filed with the court confirming service on April 30, 2014, of their letter dated April 29, 2014, and my endorsement dated April 11, 2014.

[8] On May 20, the moving party served the Plaintiff with its revised notice of motion to strike or dismiss the Plaintiff’s claim under rules 20, 21 and 25 as well as its updated factum and supplementary book of authorities. An affidavit of service sworn May 20, 2014, confirming service has been filed with the court.

[9] The Plaintiff is not in attendance today.

[10] The Crown on this motion advances the following arguments:

(a) That the claim is a nullity as a result of the Plaintiff’s failure to serve a notice of his intention to bring a claim against the Crown as required by section 7 of the Proceedings Against the Crown Act, R.S.O. 1990, c.P.27 and section 8 of the Ministry of the Attorney General Act, R.S.O. 1990, c.M.17;

(b) The Plaintiff’s claim is statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c.24, Schedule B;

(c) The Plaintiff fails to plead a reasonable cause of action against the Defendant;

(d) The action is frivolous, vexatious, and is an abuse of process of the Court.

Facts and Procedural History

[11] The plaintiff was arrested on July 17, 2007, and charged with assault with a weapon and sexual assault.

[12] These charges were dismissed on December 18, 2009. The Plaintiff subsequently appealed his acquittal to the Summary Conviction Appeal Court. On September 22, 2010, that appeal was dismissed. The Plaintiff’s notice of application for leave to appeal was quashed by the Ontario Court of Appeal on November 19, 2012, on the basis that the Criminal Code does not provide an individual a right of appeal from his acquittal.

[13] The Plaintiff’s Notice of Action was issued November 26, 2012. Subsequently, the Notice of Action and Statement of Claim were served on the Defendant on December 6, 2012. The evidence contained in the record before me confirms that the Plaintiff did not serve any prior notice of intention to commence these proceedings.

[14] Rule 20.02(2) requires that in response to a summary judgment motion, a responding party may not rest solely on the allegations or denials in the party’s pleadings. They must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial.

[15] The Plaintiff has not filed a responding affidavit in opposition to this motion. The Plaintiff did file a Responding Motion Record which consists of a simplified motion form, factum for motion and an email dated August 6, 2013, to Fatema Dada at the Ministry of the Attorney General.

[16] The affidavit of Jeffrey Claydon filed by the Crown in support of this motion deposes that the Crown Law Office Civil (“MAG-CLOC”) was served with a Statement of Claim and Notice of Action on December 6, 2012, and that there is no record of the Plaintiff having provided any notice of such claim as required by section 7(1) of the Proceedings Against the Crown Act or section 8(5) of the Ministry of the Attorney General Act. Leave was requested under rule 21.01(2) (a) to file this affidavit. I exercise my discretion and grant leave to do so.

[17] In this action the Plaintiff is claiming general, punitive, exemplary and aggravated damages for negligence, malicious prosecution, misfeasance in public office and conspiracy. The Plaintiff also seeks “reinstatement of his clean police record and the purge of all related documents within the Ministry of the Attorney General”.

[18] At paragraph 1 of the claim the Plaintiff pleads the Defendants acted “in a very malicious manner towards the Plaintiff over a period of several years to defame his reputation”.

[19] The Plaintiff pleads at paragraphs 6,7,10 and 11 of the claim that the malicious events referred to took place in 2007.

Analysis

(a) Notice

[20] Under section 7(1) of the Proceedings Against the Crown Act no action for a claim shall be commenced against the Crown unless the claimant has, at least 60 days before the commencement of the action, served notice of the claim.

[21] Pursuant to section 8(5) of the Ministry of the Attorney General Act, section 7 of the Proceedings Against the Crown Act applies, with necessary modifications, to actions against the Attorney General.

[22] In Persaud v. Ontario (Attorney General), [2008] O.J. No. 2953 (S.C.J.) para. 60 the Court stated as follows: “the 60 day notice requirement cannot be abridged. The court does not have the discretion to look beyond the technical requirement of s. 7(1). Furthermore, neither the court nor the Crown has discretion to waive the 60-day notice requirement.”

[23] It is clear that before the commencement of an action such notice is a specific statutory requirement and precondition to an action such as the one commenced by the Plaintiff.

[24] The record establishes that the required notice was not given to the Crown. As a matter of law I find that the claim against the Attorney General is a nullity. The Crown has delivered a Statement of Defence and is therefore entitled to bring a motion for summary judgment under rule 20.

[25] Under rule 20, in accordance with the principles set out in Hryniak v. Mauldin, 2014 SCC 7, I grant summary judgment dismissing this action in its entirety on the basis that the required notice was not given and therefore the entire action is a nullity.

[26] I am satisfied that under rule 20.04(2)(a) there is no genuine issue requiring a trial. On the record before me I conclude as a matter of fact that the required notice was not given by the Plaintiff. I am therefore able to reach a fair and just determination of the notice issue: Hryniak para 49.

(b) The Limitation issue

[27] Pursuant to section 4 of the Limitations Act a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Pursuant to section 5(1) of the Limitations Act, the claim is discovered on the earlier of (a) the day on which the person with the claim first knew that the injury, loss or damage had occurred; that the injury, loss or damage was caused by or contributed to by an act or omission, that the act or omission was that of the person against whom the claim is made and that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[28] Pursuant to section 5(2) a person with a claim shall be presumed to have discovered the claim on the day that the act or omission forming the basis of the claim took place unless the contrary is proved.

[29] Under s. 7(1) the limitation period does not run for any time in which the person with the claim is incapable of commencing a proceeding in respect to the claim because of his or her physical, mental or psychological condition and is not represented by a litigation Guardian in relation to the claim. In this case there is no evidence that the Plaintiff was incapable during the relevant time period.

[30] In an action for malicious prosecution, the limitation period begins to run from the date when the Plaintiff is acquitted: R. v. Simanek, [2006] O.J. No. 3692 (C.A.) at para. 3, leave to appeal to SCC refused [2006] S.C.C.A. No. 433, at para. 3; Leclair v. McLellan, [2011] O.J. No. 174 at para. 4 (S.C.J.).

[31] The Plaintiff was acquitted of all charges on December 18, 2009. The Plaintiff is presumed to have been made aware of such dismissal on that date.

[32] The Court does not have discretion to extend the limitation period in the Limitations Act: Penn-Co Construction Canada (2003) Ltd v. Constance Lake First Nation, 2001 ONSC 5875.

[33] The only tort claim available against the Crown arising from a prosecution is a claim for malicious prosecution: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 para. 7-8.

[34] The Plaintiff was acquitted of the charges against him on December 18, 2009. The limitation period for the claim of malicious prosecution runs from that date. The two-year limitation period therefore expired on December 18, 2011. The Notice of Action was issued on November 26, 2012.

[35] On the evidence before me I am satisfied, apart from my finding on the notice issue, that the Plaintiff’s claim for malicious prosecution is statute barred. Under rule 20.04(2), I grant summary judgment dismissing the Plaintiff’s claim for malicious prosecution on that basis.

[36] The Plaintiff also seeks damages for misfeasance in public office and conspiracy. On the claim in its current form it is unclear if the claim is based solely on the facts surrounding the alleged malicious prosecution. There are insufficient particulars plead regarding any deliberate unlawful conduct.

[37] In Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 at para. 23, the Supreme Court of Canada confirmed that the necessary elements of such a claim are deliberate unlawful conduct of a public officer in the exercise of public functions; awareness that such conduct unlawful and likely to injure the plaintiff; and that such unlawful conduct caused damage.

[38] Rule 25.06(8) requires that where malice is alleged, the pleading shall contain full particulars. Without material facts these are no more than bald allegations which do not meet the requirements of Rule 25.06(8).

[39] The bald and vague allegations make it impossible for the Crown to know the case it has to meet: Aristocrat Restaurants Ltd. (c.o.b. Tonys East) v. Ontario, [2003] O.J. No. 5331 at para 21 (S.C.J).

[40] The claims for misfeasance in public office and conspiracy are therefore struck under Rule 25.11(b) and (c) as scandalous, frivolous, vexatious and an abuse of process of the Court without leave to amend given my finding on the notice issue.

[41] There is no legal basis for the relief sought in paragraph (a) (ii) of the claim, namely, “reinstatement of his clean police record; and the purge of all the related documents within the Ministry of The Attorney General”. This claim is struck pursuant to rule 21.01 (1) (b) on the ground that there is no reasonable cause of action.

(c) Disposition

[42] The Plaintiff’s claim is dismissed.

(d) Costs

[43] The Plaintiff submitted a costs outline in the sum of $5,442.72. During oral argument the Crown advised that they were seeking the sum of $500.

[44] In accordance with s. 131(1) of the Courts of Justice Act and the principles set forth in Boucher v. Public Accountants Counsel for the Province for Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) I exercise my discretion and fix costs payable by the Plaintiff to the Crown in the sum of $400 payable within 60 days.

Firestone J.

Date: June 17, 2014