ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-425391
DATE: 20140624

BETWEEN:

CATHERINE A. ADAMSON and ROBERT CROSBIE
Plaintiffs

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE ATTORNEY GENERAL OF ONTARIO, LYNN SHERIFFS, ANN TIERNEY, ONTARIO PROVINCIAL POLICE (NOTTAWASAGA DETACHMENT), STEVEN SILLS, ROBERT JAMIESON, THE WORKPLACE SAFETY AND INSURANCE BOARD OF ONTARIO, SUSAN SNOW-LISKA, BRIAN BINNIE, DAN GIANNOBILIE, ALEX PEARCE, NEIL FOLEY and JOHN DOE
Defendants

Anthony Moustacalis, for the Plaintiffs

Amy Leamen, for the Defendants Her Majesty the Queen in Right of Ontario, Steven Sills, and Robert Jamieson

Eric Kupka, for the Defendants The Workplace Safety and Insurance Board, Susan Snow-Liska, Brian Binnie, Dan Giannobilie, and Neil Foley

HEARD: June 9, 2014

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION OVERVIEW

1The Plaintiffs Catherine Adamson and Robert Crosbie bring an action for: (1) malicious prosecution; (2) negligent investigation; (3) abuse of public office; (4) intentional infliction of mental suffering; and (5) breach of the Canadian Charter of Rights and Freedoms.

2There are two motions before the court. First, pursuant to Rule 21, the Defendants The Workplace Safety and Insurance Board (“WSIB”), Susan Snow-Liska, Brian Binnie, Dan Giannobilie, and Neil Foley bring a motion to strike the Plaintiffs’ Fresh as Amended Statement of Claim without leave to amend and to dismiss the Plaintiffs’ action. Second, pursuant to Rule 21, Her Majesty the Queen in Right of Ontario (“the Crown”), Steven Sills, and Robert Jamieson, who are OPP officers, bring a motion to strike the Fresh as Amended Statement of Claim without leave to amend and to dismiss the Plaintiffs’ action.

3The Crown also submits that the Plaintiffs’ action is a nullity for failure to provide the Crown notice as required by the Proceedings Against the Crown Act.¹

4As I shall explain below, I agree that the claim is a nullity as against the Crown. That conclusion, however, does not bar the action against the WSIB, Susan Snow-Liska, Brian Binnie, Dan Giannobilie, Neil Foley, and the police officers, Sills and Jamieson. All of these Defendants are outside the scope of the Proceedings Against the Crown Act.

5The success of the Defendants’ Rule 21 motions depends upon this court agreeing with their three-faceted argument that: (1) the evidence from the transcripts of the criminal proceedings against the Plaintiffs is admissible; (2) the Plaintiffs’ claims for malicious prosecution, negligent investigation, abuse of public office, intentional infliction of mental suffering, and breach of the Canadian Charter of Rights and Freedoms are derivations of the malicious prosecution claim; and (3) it is plain and obvious that the Plaintiffs’ malicious prosecution claim must fail because the criminal proceedings did not end favourably for them.

6In resisting the summary judgment motion, Ms. Adamson and Mr. Crosbie deny that their claims for negligent investigation, abuse of public office, intentional infliction of mental suffering, and breach of the Canadian Charter of Rights and Freedoms are derivations from a defective malicious prosecution claim. They argue that the transcripts of the criminal proceedings are not admissible, and in the alternative, they argue that if this evidence is admitted, then it does not establish that it is plain and obvious that their malicious prosecution claim will fail.

7As I shall explain below, I will assume that the transcripts of the criminal proceedings are admissible. Then, accepting that the transcripts are admissible, in my opinion, it is not plain and obvious that the proceedings did not end favourably for Mr. Crosbie.

8At this juncture of the action, it is certainly not plain and obvious that Ms. Adamson’s criminal proceedings did not end favourably for her.

9Thus, it will be for the trial judge or a judge on a motion for a summary judgment to determine whether Ms. Adamson’s and Mr. Crosbie’s discrete malicious prosecution claims have been proven.

10Thus, the malicious prosecution claim shall proceed. It is further my conclusion that the negligent investigation, abuse of public office, and intentional infliction of mental suffering causes of action are tenable as currently pleaded.

11However, I dismiss the action as against the Crown as a nullity, and I strike the claim for breach of the Canadian Charter of Rights and Freedoms without leave to amend.

12Finally, given the divided success on these motions, I order that the costs of the motions are in the cause.

B. RULE 21 JURISDICTION AND THE EVIDENTIARY RECORD

13Rule 21 authorizes the court to decide a legal issue before trial. It states:

WHERE AVAILABLE

To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) 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.

(2) No evidence is admissible on a motion,

(a) under clause (1) (a), except with leave of a judge or on consent of the parties;

(b) under clause (1) (b).

14In the case at bar, the Crown relies on rule 21.01(1)(a) for the determination before trial of an issue of law. The issue of law is whether proper notice was given under the Proceedings Against the Crown Act.

15Under rule 21.01(1)(a), evidence is admissible on a motion with leave of the court. I grant leave.²

16In the case at bar, all the Defendants rely on rule 21.01(1)(b) to strike out Ms. Adamson’s and Mr. Crosbie’s pleading on the ground that it discloses no reasonable cause of action.

17Where a defendant submits that the plaintiff’s pleading does not disclose a reasonable cause of action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim.³ Matters of law that are not fully settled should not be disposed of on a motion to strike,⁴ and the court's power to strike a claim is exercised only in the clearest cases.⁵ The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.⁶ However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law.⁷ Generally speaking, the case law imposes a very low standard for the demonstration of a cause of action, which is to say that, conversely, it is very difficult for a defendant to show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed with the claim.

18In assessing the cause of action or the defence, no evidence is admissible and the court accepts the pleaded allegations of fact as proven, unless they are patently ridiculous or incapable of proof.⁸

19No evidence is admissible on a motion under rule 21.01(1)(b). However, in the case at bar, the Defendants wish to rely on the transcripts from the criminal proceedings against Mr. Crosbie in support of their motion. They rely on Beardsley v. Ontario Provincial Police,⁹ Leadbeater v. Ontario,¹⁰ White v. Canada,¹¹ Web Offset Publications Ltd. v. Vickery,¹² and Vaughan v. Ontario (Minister of Health),¹³ and they submit that in the circumstances of a malicious prosecution and negligent investigation claim, it is permissible for the court to have regard to the transcripts of the criminal proceedings.

20As noted in the introduction, I will not decide whether the transcripts are admissible. I will rather just assume that the transcripts are admissible, and I shall use them to determine whether it is plain and obvious that the proceedings against Ms. Adamson and the proceedings against Mr. Crosbie did not end favourably for them. FACTUAL AND PROCEDURAL BACKGROUND

1. The Investigation and Criminal Proceedings

21The WSIB is the provincial agency constituted under the Workplace Safety and Insurance Act, 1997,¹⁴ to administer the workers’ compensation scheme in Ontario. The WSIB has the powers of a natural person and may carry on investigations. Ms. Snow-Liska, Mr. Binnie, Mr. Giannobilie, and Mr. Foley were employees of the WSIB.

22Mr. Crosbie filed a claim for workers’ compensation benefits from the WSIB. In his claim, Mr. Crosbie stated that he was an employee of GTTA Parking Control.

23Ms. Adamson was the person at GTTA Parking Control who was responsible for dealing with the WSIB in relation to Mr. Crosbie’s claim.

24In 1998, Mr. Crosbie began receiving benefits. I was told during argument that Mr. Crosbie received approximately $240,000 in benefits.

25Ten years later, in 2008 and 2009, the WSIB and the OPP conducted an investigation of Ms. Adamson and of Mr. Crosbie, and they were charged with fraud over $5,000 in connection with Mr. Crosbie’s claim for compensation benefits.

26On April 27 and 28, 2009, there was a preliminary inquiry at which Mr. Giannobilie was cross-examined by Ms. Adamson and Mr. Crosbie.

27On April 28, 2009, Ms. Tierney, the Assistant Crown Attorney assigned to the case, advised the court that she needed to assess some information that arose during Mr. Giannobilie’s cross-examination and certain discussions that she had had with him. The matter was adjourned to a judicial pre-trial on April 30, 2009.

28At the judicial pre-trial, Ms. Tierney advised that a recently-produced document raised an issue about whether Mr. Crosbie had breached his obligation to advise the WSIB of a material change in circumstances. She also stated that during her discussions with Mr. Crosbie on April 27, 2009, he had admitted that he was working and earning income, which was a fact that the Crown would otherwise have had to prove in its case. She said that the Crown was confident of achieving a committal to trial, but the Crown also had some concerns about the prosecution and she had proposed that the matter be resolved by him paying back the benefits he received up to July 1999.

29At the judicial pre-trial, Ms. Tierney proposed that if Mr. Crosbie repaid a sum of money in the range of $30,000 to the WSIB, the Crown would withdraw the charges against both Mr. Crosbie and his co-accused, Ms. Adamson. The sum of $30,000 was approximately the amount that Mr. Crosbie had received during the first year he received benefits beginning in 1998, and in her opinion, it behooved the WSIB to have concluded an investigation into his claim more promptly.

30Mr. Crosbie and Ms. Tierney then negotiated for Mr. Crosbie to repay $20,000 to the WSIB, in exchange for the withdrawal of all charges.

31Mr. Crosbie made arrangements to make the payment by cheque the next day, May 1, 2009, and on that day, the charges against him and Ms. Adamson were withdrawn.

32The parties drew my attention to the following excerpts from the transcripts of the criminal proceedings:

Ms. Tierney: Good morning. Your Honour, I have been having ongoing discussions with Mr. Crosbie and Ms. Adamson and there has been continuing disclosure this morning. Documents were received that none of us had seen before and the contents of the documents, as well as some additional matters brought to my attention in my discussions with Mr. Crosbie, and some of the things that came out in Mr. Giannobilie’s testimony as well, cause me some concern and as a result of that the Crown has a continuing obligation to continually assess their case, and as a result I would feel that I shouldn’t call further evidence at this time until – and if I do so it would be after we have the discussions with Justice Krelove…

The Court: Well, why don’t we do this then. I take it when you say the continuing obligation to assess their case you’re referring to your continuing obligation to assess whether you have a reasonable prospect of conviction?

Ms. Tierney: That as well as other obligations I have in assessing whether or not a prosecution continues. [Transcript of Proceedings, April 29, 2008, p.123-124]

Ms. Tierney: I advised [Crosbie] that the Crown was of the view that the Crown could prove that GTTA Parking Control was, I called it, a sham, that the registration by Gerald Poulton was in reality a company that was Mr. Crosbie’s and Mr. Poulton’s testimony was to that effect. And in terms of committal to trial on the next stage I believe the Crown would have a committal because of the test under preliminary hearing based on Mr. Poulton’s testimony, but be that as it may, the Crown has some concerns about the prosecution given… what I’ve outlined to Your Honour essentially, and so I proposed to him that one way of resolving this may be that he pay back the benefits he received until the point of July 1999…[Transcript of Proceedings, April 30, 2009, p. 8]

Mr. Crosbie: Well, I’d like to resolve it. This has been going on eleven years. We’ve spent four years in trial – we’ve been charged for four years. We’ve spent over $100,000 for lawyers so far. Ms. Adamson hasn’t been able to work for four years. So do I want to drag this into a trial? No. Do I feel I’ve done something wrong with WSIB? No. I advised WSIB that I’d returned to work. I begged them to let me go back to work in 1999. They didn’t want me. They were the ones saying no I can’t. And I sent numerous letters. Half my file is missing. They can’t find it. It took months to find a letter that the police officer had noted that he’s took in a – the search warrant…That was a very important piece of document because its faxed confirmation and – and an acknowledge (sic) that WSIB receive the information. I told them I’m working as a paralegal. They’re training me… [Transcript of Proceedings, April 30, 2009, p.12-13]

Mr. Crosbie: I think Mr. Giannobilie should finish his investigation like he started. I don’t think I should be forced to sign off if I’m paying a sum back. That I think should fall on its own merits. He can do his investigation. At the end of the day he can verify with Revenue Canada the amount I got. He can verify with doctors. He can send me to their assessment facilities and at the end of the day he will make a conclusion and either close the file or deem that that’s payable. I don’t think a settlement of this should have anything to do with that. [Transcript of Proceedings, April 30, 2009, p.19-20]

2. Notice to the Crown of Possible Civil Proceedings

33The criminal proceedings having been withdrawn, Ms. Adamson deposed that on June 16, 2009, she delivered a letter to the registrar or the clerk of the Barrie court in which she requested that her fingerprints and those of Mr. Crosbie be destroyed.

34Mr. Crosbie deposed that he asked Ms. Adamson to write the letter.

35The letter indicated that legal action against the Crown was contemplated. The letter in its entirety stated:

June 16, 2009

Barrie Courthouse

Crown Attorney Office

Attention: Ann Tierney

RE: R. v. Catherine Adamson and Robert Crosbie

Dear Ms. Tierney

I am writing to request the criminal records be destroyed for Robert Crosbie and myself, Catherine Adamson. The judge informed me that I could request this, at the courthouse, a few days after our trial ended.

Also, I am still waiting for the full explanation as to why I was ever charged. The judge said it would be acceptable to you to explain after we left the courtroom, but all you said was, “You should never have been charged in the first place.” The entire process, system and false accusations have cause my life to be put on hold and caused significant grief and anguish to me personally. This is not how our legal system should be used and I feel someone should be held responsible for the misuse of our justice system and everything we had to endure.

I look forward to receiving this explanation, so we can properly start a legal proceeding against the Crown and any other responsible parties.

Thank you for your time,

Kate Adamson.

36At some point in time, the fingerprints were destroyed.

37Ms. Tierney deposed that she had not received notice of an action against the Crown, but she did recall receiving a letter, of which she did not have a copy, about destroying the fingerprints of the Plaintiffs.

38Ms. Tierney said that she did not recall receiving the letter of June 16, 2009 nor did she recall any conversations with Ms. Adamson about a potential claim against the Crown.

3. The Civil Action

39Two years later, on April 29, 2011, this action was commenced by Notice of Action.

40On May 26, 2011, the Statement of Claim was filed, and it was amended on September 19, 2011.

41On October 12, 2011, the Amended Statement of Claim was served on the Nottawasaga detachment of the OPP.

42On October 19, 2011, the Ministry of the Attorney General at 720 Bay Street in Toronto received the Amended Statement of Claim in which Ms. Lynn Sheriffs and Ms. Tierney, both Crown Attorneys, were named as defendants. They were subsequently let out of the action.

43On February 10, 2014, a Fresh as Amended Statement of Claim was delivered.

44In the Fresh as Amended Statement of Claim, Ms. Adamson and Mr. Crosbie allege that:

• The WSIB failed to conduct a proper investigation by failing to contact or interview the Plaintiffs, by failing to obtain information from third parties, by failing to conduct a speedy investigation, by “developing a wrongful opinion” about Mr. Crosbie and his circumstances, by interviewing witnesses through leading or suggestive questioning, by failing to corroborate the witnesses’ evidence, by failing to allow Mr. Giannobilie to complete his assessment before the referral to the OPP, by making mistakes in conducting its surveillance, and by attempting to influence the OPP.

• The WSIB suppressed evidence by failing to disclose and make note of the November 25, 2001 fax from Mr. Crosbie.

• The WSIB’s unlawful conduct was calculated to harm the Plaintiffs, by commencing an investigation that they knew to be unfounded and continuing with it after knowing that the only issue was whether Mr. Crosbie had reported to the WSIB that he was working.

• In a conversation between Mr. Foley and Ms. Adamson on March 26, 2007, the WSIB counselled Ms. Adamson to falsely change her position and to testify to inculpate Mr. Crosbie.

• The criminal charges were withdrawn midway through the preliminary inquiry and that the OPP officers had no reasonable and probable grounds to lay the charges. In particular, that there was no evidence that Mr. Crosbie was not an employee, was not injured, or continued to receive benefits without notifying the WSIB of re-training.

• The OPP officers deliberately withheld the letter regarding re-training for the improper purpose of obtaining a conviction and harming Mr. Crosbie.

• The OPP officers intentionally supressed, or alternatively, negligently misplaced documents to deliberately hinder the investigation into the Plaintiffs.

• The OPP officers laid baseless charges against the Plaintiffs for the purposes of causing harm to the Plaintiffs, which did cause harm to the Plaintiffs.

C. DISCUSSION AND ANALYSIS

1. Introduction

45In the following discussion and analysis, I will first explain why the action should be dismissed as against the Crown for non-compliance with the Proceedings Against the Crown Act.

46Second, I will explain why it is not plain and obvious that the Plaintiffs do not have a tenable malicious prosecution claim and a tenable negligent investigation claim.

47Third, I will discuss the Plaintiffs’ claim for intentional infliction of mental suffering.

48Fourth, I will discuss the Plaintiffs’ claim of abuse of public office.

49Fifth, I will discuss the Plaintiffs’ claim for breach of the Charter.

2. Notice under the Proceedings Against the Crown Act

50Section 7(1) of the Proceedings Against the Crown Act states:

7 (1) Subject to subsection (3), except in the case of a counterclaim or claim by way of set-off, no action for a claim shall be commenced against the Crown unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose, and the Attorney General may require such additional particulars as in his or her opinion are necessary to enable the claim to be investigated.

51Under the Proceedings Against the Crown Act, Ms. Adamson and Mr. Crosbie are required to provide the Crown with notice containing sufficient particulars to identify the occasion out of which the claim arose at least 60 days before the commencement of the action. Failure to comply with the notice requirements pursuant to the Act is irremediably fatal; notice is a necessary pre-condition and the failure to give the required notice makes the action against the Crown a nullity.¹⁵

52The purpose of s. 7(1) is to allow the Crown to investigate a complaint and gather sufficient information to discuss and potentially resolve the grievance of the complainant before any litigation.¹⁶ Although no particular form is required, the notice must be in writing, and it must contain sufficient particulars to detail what the claim against the Crown encompasses and what possible liability the Crown might have.¹⁷

53In Mattick Estate v. Ontario (Minister of Health),¹⁸ Justice Goudge stated:

17. Setting the language of s. 7(1) against the backdrop of its legislative purpose, I do not think that any particular formula of words must be used to give notice. Nor is the claimant required to state in her notice that she intends to take legal action against the Crown. Such a requirement would be inconsistent with the legislative purpose of permitting the Crown to investigate in order to resolve the complaint at an early point in time without the commencement of legal proceedings. It would undercut this objective to insist that a claimant in her notice firmly assert that she had decided to litigate.

18. Rather, I think that s. 7(1) requires that a claimant must serve a notice that communicates a complaint which, if not satisfied, could reasonably be anticipated to result in litigation against the Crown. When coupled with particulars that sufficiently identify the occasion in question to permit the Crown to investigate, such notice fulfils the legislative purpose. It allows the Crown to gather sufficient information to permit resolution of the complaint in advance of legal action or, if that fails, to prepare to defend the litigation which the notice makes it reasonable to anticipate. Not every complaint to the Province must be treated as a s. 7(1) notice. The complaint must be such that, in the circumstances, it could reasonably be anticipated by the Crown that if not resolved, litigation could result.

54In Latta v. Ontario,¹⁹ Justice MacPherson stated:

26. Adequate notice, then, entails two distinct requirements. The first is that it must contain sufficient particulars to allow the Crown to identify the source of the potential problem, so that it can investigate. ….

27. The second requirement is that notice entails an element of "complaint". This requirement flows from the word "claim", and the legislative purpose of the provision. Section 7(1) is intended to allow the Crown either to avoid litigation, or to have an early opportunity to prepare its defence. The court in Mattick Estate indicated that notice of a "claim" does not entail mere notice of the facts underlying the claim. Rather, notice must inform the Crown of a potential conflict "that could reasonably be anticipated to result in litigation against the Crown". It is knowledge of a potential conflict that will alert the Crown to take advantage of the early notice to investigate and resolve the problem prior to the commencement of litigation.

55The notice must provide sufficient particulars so that the Crown has sufficient information to resolve the complaint or to prepare to defend the litigation that the Crown ought reasonably to have anticipated from the notice.²⁰ If a plaintiff has claims against different servants or agents of the Crown, then the fact that the notice is sufficient to identify the occasion and particulars against one Minister, servant, or agent does not make the notice sufficient with respect to other Ministers, servants or agents.²¹

56In the case at bar, although the point was hotly contested, I need not decide whether Ms. Tierney received Ms. Adamson’s letter of June 16, 2009, which the Plaintiffs rely on as the required notice under the Act because, in any event, that notice was insufficient to give notice that a claim would be made against the OPP.

57The written notice of June 16, 2009 may have been sufficient to give notice of a claim against Ms. Tierney for which the Crown would be liable, but the notice does not mention the OPP.

58Ms. Tierney has been let out of this action and the notice against her is not notice against the OPP. While the Crown might have anticipated from the notice that its attorneys would be sued, the notice was inadequate with respect to giving notice of claims against the OPP.

3. Malicious Prosecution and Negligent Investigation Claims

59In order to succeed in a claim for malicious prosecution, a plaintiff must plead and prove the four constituent elements of the tort; namely: (1) the defendant initiated the prosecution; (2) the prosecution ended favourably for the plaintiff; (3) the prosecution was undertaken or continued without reasonable cause, which is a question of law; and (4) the defendant was motivated by malice or a primary purpose other than that of carrying the law into effect.²²

60The elements of a claim of negligent investigation are explained in Hill v. Hamilton-Wentworth Regional Police Services Board,²³ but need not be explicated for present purposes. For present purposes, it is sufficient to note that it is a precondition to a claim in negligent misrepresentation that the prosecution ended favourably for the plaintiff.²⁴

61The case at bar calls for an analysis of what it means for a prosecution to end favourably for an accused; i.e., the plaintiff in a subsequent action for malicious prosecution or negligent investigation. This second constituent element of the tort of malicious prosecution was discussed by Justice Charron for the Supreme Court in Miazga v. Kvello Estate as follows:²⁵

54. The second element of the tort demands evidence that the prosecution terminated in the plaintiff's favour. This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. The favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff's favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay. However, where the termination does not result from an adjudication on the merits, for example, in the case of a settlement or plea bargain, a live issue may arise whether the termination of the proceedings was "in favour" of the plaintiff: see, for example, Ramsay v. Saskatchewan, https://www.canlii.org/en/sk/skqb/doc/2003/2003skqb163/2003skqb163.html, 2003 SKQB 163, 234 Sask. R. 172; Hainsworth v. Ontario (Attorney General), [2002] O.J. No. 1390 (Q.L.) (S.C.J.); Hunt v. Ontario, [2004] O.J. No. 5284 (Q.L.) (S.C.J.); Ferri v. Root, <https://www.minicounsel.ca/oca/2007/79 2007 ONCA 79, 279 D.L.R. (4th) 643.

62In the case at bar, the Defendants submit that the Plaintiffs’ malicious prosecution and negligent investigation claims must inevitably fail because it is plain and obvious that the prosecution did not end favourably for the Plaintiffs as evidenced by the fact that Mr. Crosbie paid $20,000 in order to secure a withdrawal of the charges against him and Ms. Adamson.

63I can immediately say that it is not plain and obvious to me that the fact that Mr. Crosbie paid something to obtain a withdrawal of the charges entails that the prosecution did not end favourably for Ms. Adamson. It may ultimately be found to be true that the prosecution did not end favourably for Ms. Adamson, but on a pleadings motion at this juncture of her action for malicious prosecution and negligent investigation, it is not plain and obviously true.

64Ms. Adamson’s causes of action are independent of Mr. Crosbie’s causes of action and, in my opinion, it is not plain and obvious that her claims for malicious prosecution and negligent investigation cannot succeed. I, therefore, dismiss the Defendants’ motions to strike Ms. Adamson’s claims for malicious prosecution and negligent investigation.

65Although it is less obvious, I also conclude that it is not plain and obvious that Mr. Crosbie’s causes of action for malicious prosecution and negligent investigation will inevitably fail because the criminal proceedings did not end favourably for him.

66The case law holds that a favourable outcome for the accused will be established if: (a) the criminal proceedings end in a discharge at a preliminary hearing, a withdrawal, a stay, or an acquittal; or (b) the criminal proceedings are abandoned or withdrawn without any compromise or arrangement with the accused.²⁶ A withdrawal of criminal charges with the explanation that there is no reasonable prospect of conviction or a withdrawal without explanation is a favourable outcome for the accused.²⁷

67There is case law that holds that a withdrawal of criminal charges conditional upon the accused entering into a peace bond does not qualify as a favourable outcome for the accused.²⁸ There is case law that holds that a withdrawal of criminal charges conditional on the accused paying restitution to the complainants is not a favourable outcome for the accused.²⁹

68Agreements and arrangements with a withdrawal of the charges are another way that a criminal proceeding can end unfavourably for the accused. The decision of the Court of Appeal in Romanic v. Johnson,³⁰ is a leading case.

69In Romanic v. Johnson, the plaintiff was a police officer who had been charged with breach of trust and theft of police equipment for his personal use in his locksmith business. After the charges were withdrawn in exchange for his agreeing to resign from the police force, the now former police officer sued for malicious prosecution and negligent investigation. On a Rule 21 motion, Justice K.L. Campbell held that the proceedings had not ended favourably for the plaintiff. The Court of Appeal agreed. The outcome was not favourable because the plaintiff experienced a real sanction in having to resign his position as a police officer. There was no evidence that the Crown had connived the arrangement that the plaintiff resign as a police officer in order to insulate itself from a civil action for malicious prosecution or negligent investigation.

70However, and this is the crucial point, not every withdrawal or stay of criminal proceedings on terms that impose obligations or restrictions on the freedom or rights of the accused is unfavourable to the accused in the sense that the agreement or arrangement precludes an action for malicious prosecution or negligent investigation. The leading case is the Court of Appeal’s decision in Ferri v. Ontario (Attorney General).³¹

71In Ferri v. Ontario (Attorney General)³² the Court of Appeal held that where there is a negotiated agreement between the Crown and the accused to settle criminal charges, it is appropriate to determine the underlying reasons for the settlement.

72In Ferri v. Ontario (Attorney General), the somewhat weird facts were that Mr. Ferri purchased a property from the TD Bank. Before the closing of the transaction, Mr. Ferri hired Mr. Mammoliti to remove 2,000 banker boxes that the Bank had apparently left behind. The Bank learned that the boxes, which contained confidential records, had been moved into storage. The Bank asked for their return. Messrs. Ferri and Mammoliti said that the documents would be returned, if the Bank agreed to pay for their labour and storage costs. It was alleged that Mr. Mammoliti alone told the Bank that the storage and labour charge would be $500,000, but he said that he was just joking. In any event, following the conversation with Mr. Mammoliti, the Bank contacted the Niagara Regional Police Service and charges for theft and attempted extortion followed against Messrs. Ferri and Mammoliti.

73There was a three day preliminary hearing. In December 1998, Mr. Ferri was committed for trial on the charge of theft, and Mr. Mammoliti was committed for trial on the charges of theft and extortion. In January 2000, the committal order against Mr. Ferri was quashed, and in November 14, 2000, the charges against Mr. Mammoliti were withdrawn upon the conditions that he return the Bank’s files, and that he sue the Bank civilly, which he promptly did.

74Mr. Ferri and Mr. Mammoliti subsequently sued the Crown Attorneys and the police for malicious prosecution and for liability for a constitutional tort of breach of the Charter. Interestingly, the Crown conceded that the proceedings had ended favourably for Mr. Ferri but not for Mr. Mammoliti.

75On a motion for summary judgment, Justice Sheppard dismissed Mr. Mammoliti’s claim for malicious prosecution after concluding that all but the first constituent element of the tort could be proven. This decision was reversed by the Court of Appeal in a majority judgment written by Justice LaForme (Justice Gillese concurring). Justice Juriansz dissented, but not on the point that I shall focus on.

76For present purposes, the major points to note is that Justice LaForme held a withdrawal of charges derived from a settlement did not necessarily mean that the outcome of the proceedings was unfavourable to the accused so as to preclude an action for malicious prosecution. Justice LaForme said that there was a genuine issue for trial about whether the second element of the tort had been proven. He said that the finding of an arrangement, agreement, or compromise did not end the analysis of whether or not the outcome was favourable to the accused. Justice LaForme stated at paragraphs 53 to 56 of his judgment:

53. Merely finding such an arrangement, agreement or compromise, however, should not, in my view, end the court's analysis of an action for malicious prosecution. For several reasons, which are not intended to be exhaustive, I believe there should be a further analysis into the underlying reasons on the part of the Crown and police for entering into such an arrangement, agreement or compromise.

54. First, the underlying policy of the tort of malicious prosecution is to allow recovery in situations where the Crown or police acted outside the scope of the duties of their office. Thus, the Crown or police could avoid scrutiny by simply entering into an agreement, arrangement or compromise with an accused person, no matter how trivial, before withdrawing the charges against that person. This would have the effect of completely undermining the purpose of the tort.

55. Second, it will almost always be the case that the Crown and police will be proceeding from a position of strength. The accused person, who believes he or she was the subject of a malicious prosecution, would effectively be giving up his or her right to sue even in the clearest of cases in exchange for his or her freedom, to avoid the stigma of a criminal conviction, or perhaps, to avoid the costs of a trial.

56. If the police or Crown, for example, are found to have entered into a settlement for the purpose of avoiding a civil action for malicious prosecution, the settlement, or underlying purpose thereof, might well amount to evidence relevant to the issues of reasonable and probable cause and malice. Thus, there is, as I said earlier, a need for the court to engage in further examination of arrangements, agreements or compromises and their relevance to the second element of the Nelles framework.

77In his dissent, Justice Juriansz agreed with Justice LaForme finding that there was a genuine issue for trial as to whether the criminal proceedings had ended favourably for Mr. Mammoliti. He disagreed, however, with Justice LaForme’s conclusion that steps 3 and 4 of the Nelles test were satisfied. Thus, the panel of the Court of Appeal in Ferri v. Ontario (Attorney General) was unanimous that a settlement of the criminal proceedings did not preclude a finding that the proceedings had ended favourably for the accused.

78A settlement or arrangement may or may not be unfavourable to the accused. A fact intensive analysis of the reasons and motivations and purposes served by the settlement or arrangement is necessary. Returning to In Romanic v. Johnson, discussed above, a ground of appeal was that Justice K.L. Campbell had not completed a “Ferri analysis” before concluding that the criminal proceedings had ended unfavourably for the accused. The Court of Appeal disagreed and stated:³³

7. The appellant argues that the motion judge did not properly apply the decision of this court in Ferri v. Ontario, <https://www.minicounsel.ca/oca/2007/79 [2007] O.J. No. 397 per LaForme J.A., at paras. 50-58. We disagree. The motion judge instructed himself in the following terms:

As a result of the decision in Ferri v. Root, it is clear that in cases where the criminal proceedings have ended in some type of negotiated resolution agreement, and the accused has subsequent[ly] launched a civil action against the police and/or the Crown, the court must examine the circumstances surrounding the agreement to try to understand the underlying reasons for the settlement. It is only after such an examination that the court may properly determine whether or not the termination of the criminal proceedings was truly in favour of the accused turned plaintiff.

79Notwithstanding that the Court of Appeal in Ferri v. Ontario and Romanic v. Johnson held that it was appropriate to examine the underlying reasons for the settlement, there is case law that holds that for policy reasons a peace bond or other settlement of criminal charges is conclusive that the criminal proceedings did not end favourably for the accused. The leading example of this view is Justice Colin Campbell’s judgment in Khan v. Peel (Regional Municipality) Police Services Board, where he stated:³⁴

6. I am of the view that in spite of the argument of Mr. Markin, I am bound by the above decisions and for good reason. The policy basis behind the conclusion that a Peace Bond is not a successful termination for the plaintiff is that otherwise the Crown would have to pursue a charge to completion to know whether it would be relieved of a possible malicious prosecution action.

7. In my view, if the Police or Crown is to be said to be acting outside the scope of their duties and potentially perverting the criminal justice system, this should first be dealt with in the criminal system. Anything other than acquittal could then lead the Police open to their conduct being tried in the civil system. A Peace Bond does involve a compromise. Absent fraud or perjury, the Crown and Police are entitled to the finality of any issue of their conduct when the disposition is made final in the Criminal Court. This is what happens when a compromise is reached, one basis of which is a withdrawal of charges.

8. It is in the interests of our society that where appropriate, criminal charges be compromised. There is a public interest in the finality of compromise. An accused in our system is entitled to "have his day in Court" by pleading not guilty and defending the charges.

9. Justice officers as well as the public should be able to look to compromises as bringing finality to not just criminal charges, but as well civil claims based on criminal charges.

10. In my view, the justice system is entitled to consider that an agreement by an accused to a Peace Bond is a recognition by the accused to being at some risk should the prosecution go forward. The purpose of such compromise would be undermined if after the fact an accused could allege that the Police knew or ought to have known that the prosecution must fail.

80I agree with Justice Colin Campbell that a peace bond involves a compromise, and I also agree with the authorities that hold that a withdrawal of the criminal charges based on a negotiated settlement with terms imposed such as a peace bond, a resignation from employment, or a restitutionary payment may not be a favourable outcome for the accused. However, I part company with his conclusion that such outcomes are conclusive and foreclose an examination of: (a) whether the settlement was a favourable outcome for the accused; or (b) whether the settlement was a connivance of the prosecutor or the complainant designed to insulate himself or herself from a civil action for malicious prosecution or negligent investigation.

81The finality of court proceedings must give way to doing justice, and finality must give way to the proper administration of the criminal justice system. Having an exception to finality is part of the policy reasons for the existence of the tort of malicious prosecution in the first place. Justice LaForme in Ferri was alert to the reality that categorically holding that a settlement is unfavourable to the accused could “have the effect of completely undermining the purpose of the tort.”

82In many, perhaps most, cases a Ferri analysis will not be required because like Romanic v. Johnson, it will be immediately apparent that the arrangement or agreement was no exoneration, vindication, or victory for the accused. In the case at bar, which is now just at the pleadings stage, it is not plain and obvious that the withdrawal of charges against Ms. Adamson and Mr. Crosbie respectively was an unfavourable outcome. Whether the outcome of the criminal proceedings was favourable is a matter that will have to be proven at a motion for summary judgment or at a trial.

83Therefore, I do not strike out their respective claims for malicious prosecution or their respective claims for negligent investigation.

4. Intentional Infliction of Mental Suffering

84The elements of a claim of intentional infliction of mental suffering are: (1) the defendant’s actions are flagrant and outrageous; (2) the defendant intends to harm the plaintiff or the defendant knows that his or her conduct will cause harm; and, (3) the plaintiff suffers a visible and provable illness.³⁵

85I do not agree with the Defendants’ arguments that the claim for intentional infliction of mental suffering is a disguised version of the tort of the malicious prosecution designed to get around the frailties of the malicious prosecution claim. It is not plain and obvious that the Plaintiffs do not have a tenable claim for intentional infliction of mental suffering.

5. Abuse (Misfeasance) in Public Office

86The elements of a claim of abuse or misfeasance in public office are: (1) the defendant is a public official or public authority; (2) the defendant engaged in deliberate unlawful conduct in his, her, or its capacity as a public official or public authority; (3) the defendant had a culpable mental state; namely the public official was aware that: (a) the conduct was unlawful, and (b) that the conduct was likely to harm the plaintiff; (4) the conduct caused the defendant harm; and, (5) the harm is compensable under tort law.³⁶

87The Defendants’ arguments against the Plaintiffs’ claims for abuse (misfeasance) in public office are much the same as the arguments against the Plaintiffs’ other claims and once again I do not agree with their arguments. It is not plain and obvious that the Plaintiffs do not have a tenable claim for abuse in public office.

6. Breach of the Charter

88The action against the Crown is a nullity because of non-compliance with the Proceedings Against the Crown Act. Damages for breach of the Charter are only available against the state and not against individual defendants.³⁷ Accordingly, the breach of Charter claim should be struck without leave to amend.

D. CONCLUSION

89The motions to strike are granted as set out above. Costs in the cause.

Perell, J.

Released: June 24, 2014

COURT FILE NO.: CV-11-425391
DATE: 20140624

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

CATHERINE A. ADAMSON and ROBERT CROSBIE
Plaintiffs

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE ATTORNEY GENERAL OF ONTARIO, LYNN SHERIFFS, ANN TIERNEY, ONTARIO PROVINCIAL POLICE (NOTTAWASAGA DETACHMENT), STEVEN SILLS, ROBERT JAMIESON, THE WORKPLACE SAFETY AND INSURANCE BOARD OF ONTARIO, SUSAN SNOW-LISKA, BRIAN BINNIE, DAN GIANNOBILIE, ALEX PEARCE, NEIL FOLEY and JOHN DOE
Defendants