Court File and Parties

COURT FILE NO.: 11/11

DATE: 20140120

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gerald Guy Brummell Plaintiff (Respondent)

AND:

The Attorney General for Ontario, Andrew Beatty, Darrly Foulkes, Commissioner Julian Fantino, Superintendent Ken Smith, Inspector George Miller, Inspector Pat Finnigan, Inspector Earl Johns, Inspector Carson Pardy, Mark Zulinski, Mike Smith, Paul Beesley, Chris Newton, Baldassare Nuccio, Brian Hollenbeck, Jayne Pellerin, Christina Reive, Vern Crowley, Al Doubrough, Dennis Desjardins, Brad Robson, John Bakelaar, Bernie Gaw, Kevin Knowack, Al O’Byrne, Conner Durkin, Jeff McKinnon, Brad Burkholder, Mark Allison, Don Davies, Troy Bellehumeur, Terry Penlington, Andrew Goad, Kevin Conner, Matt Casie, Tom Whittaker, Dan McAuley, The City of Quinte West Police Services Board, Her Majesty the Queen in Right of Ontario Defendants (Applicants)

BEFORE: H.K. O’Connell, J.

COUNSEL: Mr. Darrell Kloeze and Ms. Judith Parker, Counsel for the Defendants, Moving Parties Mr. Gerald Guy Brummell, self-represented Plaintiff, Responding Party on Motion

HEARD: May 23, May 27 and June 28, 2013

JUDGMENT

[1] The argument on this motion commenced on May 23, 2013 at Cobourg, continued on May 27 and was completed on June 28, 2013 at Oshawa.

Nature of the Motion

[2] The Crown moves on the following basis: to strike out the Second Amended Statement of Claim without leave to amend as it fails to disclose a reasonable cause of action; to strike out the Claim as it fails to plead material facts to support the existence of many of the torts alleged, pleads torts that do not exist in law, and fails to plead material facts to support existing torts against several of the defendants; to strike out the Claim as the majority of the pleadings are barred by operation of the Limitations Act; and finally the Crown argues that the Claim is an improper collateral attack on the findings of criminal proceedings brought against the plaintiff and therefore constitutes an abuse of process. In addition the Crown argues that the Second as Amended Claim fails to comply with Rule 25 of the Rules of Civil Procedure.

[3] The Crown further argues, that if it is successful, there is no basis upon which to grant leave to amend the claim.

[4] The Crown relies upon the following material in support of the relief sought: its motion record on behalf of the defendants, a factum, a reply factum inclusive of supplementary authorities, 3 volumes of books of authorities, and a supplementary motion record. The Crown made extensive yet concise oral submissions.

[5] Mr. Brummell relies upon his factum, book of authorities, and his supplementary submissions in relation to the motion to strike. Like Crown counsel, Mr. Brummell presented oral submissions that were concise.

Some Background

[6] On November 27, 2012 Justice Gunsolus prepared an endorsement wherein he noted amongst other content that “the plaintiff shall serve and file his responding materials including his factum, cross motion, casebook and any other materials he wishes the court to consider (including his request for leave to amend his statement of Claim for a third time and proposed draft of it) by 1 March 2013.”

[7] Mr. Brummell met the deadline for service of his Second as Amended Claim as per the endorsement of Gunsolus J.

[8] However after the Crown brought its motion to strike the Second as Amended Claim, Mr. Brummell in his document entitled Supplementary Submission re: Motion to Strike, relied upon another incarnation of the Claim, entitled Draft Fresh As Amended Claim.

[9] This caused the Crown to file its Supplementary Motion Record, inclusive of its Reply Factum and Supplementary Book of Authorities. That claim was not served before reference was made to it in the materials filed on this motion.

[10] The Crown advised the Court in its opening submissions, that it would argue its motion to address the Draft Fresh as Amended Claim produced in May 2013.The Crown does not take issue with the timing of ‘service’ of that claim and argued this motion on the basis of that incarnation of the claim, as well as the Second as Amended Claim as well.

[11] The Crown’s consent to proceed in this manner, I note, was done even though Mr. Brummell did not seek leave to file it, it was produced outside of the time frame provided for by Gunsolus J. and it only came to light one week before the commencement of the Crown’s motion on May 23, 2013.

[12] In the Crown’s Supplementary Motion Record it takes the position that although the plaintiff Mr. Brummell has “cleaned up his pleadings” to some extent, this newest incarnation in the Draft Fresh as Amended Claim suffers from the same flaws that the Crown argues exist in the Second as Amended Statement of Claim.

[13] Furthermore the Crown argues that the plaintiff now seeks to withdraw the admissions made in his Second as Amended Claim, which should be disallowed as otherwise this would allow Mr. Brummell to “avoid the otherwise inevitable consequences of the motion to strike.”

[14] Finally the Crown argues that if it is successful on its motion to strike, there is no need to consider the “discovery motion” brought by Mr. Brummell, as it will be moot.

[15] Mr. Brummell did not suggest that his “discovery motion” should not sit in abeyance pending my determination of the motion to strike. Clearly this was the appropriate manner to deal with the issues.

Dealing with the Second as Amended Statement of Claim

[16] Although the Crown filed a reply factum to deal with the newly constituted Draft Fresh as Amended Statement of Claim, given the way that the plaintiff has crafted his pleadings, it is prudent to address both of the Claims as structured.

[17] I am also proceeding in this manner because the Crown has argued that a consideration of its argument that the limitation period has been missed for most of the causes of action as pleaded, requires context derived from the Second as Amended Statement of Claim and because the Crown asserts that a consideration of whether leave to amend should be granted is best dealt with in the light of both the Second as Amended Claim and the Draft Fresh as Amended Claim.

The Second as Amended Statement of Claim

[18] The chronology of the claim has its genesis in 2000 as a consequence of the assertion that the plaintiff and his then wife were harassed by various police officers.

[19] Later, in 2005, the plaintiff asserts that an O.P.P. officer told his neighbours to obstruct a snowmobile trail used by the plaintiff. He claims that this was done by the placement of tomato cages on the trail that caused injury to him.

[20] In 2006 the plaintiff was arrested and charged with a number of criminal offences, and was charged with further offences in 2007.

[21] The criminal investigation lead to a search warrant being executed at the plaintiff’s home, where he alleges officers engaged in theft, and likewise during the criminal investigation of him, tampered with evidence, withheld disclosure, and committed perjury.

[22] During the course of the criminal proceedings against him, the plaintiff pleaded guilty to intimidating the Crown prosecutor.

[23] In 2008 convictions were entered for several other criminal offences and a sentence of 30 days jail was imposed, in addition to time already served.

[24] Although the plaintiff did not appeal his convictions originally, it was brought to the attention of the Court that in December 2013 the Court of Appeal dealt with a motion dated June 17, 2013, requesting the granting of leave to Mr. Brummell to extend time to file an appeal from conviction.

[25] A copy of this motion for leave to extend the time in which to appeal was provided to me in June 2013 by Mr. Brummell during the course of his submissions.

[26] I pause to note here that the motion was dealt with by Justice Rosenberg in Chambers on December 06, 2013. Justice Rosenberg dismissed the motion of Mr. Brummell on December 12, 2013. The Crown provided the court with Rosenberg J.’s 14 page decision. The Crown did not seek to make further submissions save to alert the court to the decision.

[27] Mr. Brummell has advised the court via letter dated December 16, 2013 of his attention to seek a hearing before a three member panel of the Court of Appeal to review Justice Rosenberg’s decision, and if that fails, to seek leave to the Supreme Court of Canada.

[28] The Second as Amended Claim sets out 22 causes of action, with 36 defendants inclusive of members of the O.P.P. and employees of the Attorney General of Ontario, as well as Her Majesty the Queen in right of Ontario.

[29] The claim is divided into three parts as follows: the failure of the O.P.P. to properly investigate the alleged snowmobile trail tampering in 2005; allegations that the O.P.P. and the Crown intentionally concealed and/or tampered with evidence in the plaintiff’s criminal prosecution, committed theft from his home, and used the criminal process in 2005 and 2008 for improper purposes; and finally it is alleged that in 2009 and 2010 the O.P.P. and the Professional Standards Bureau did not properly investigate the plaintiff’s complaint against several O.P.P. officers.

[30] There is also an allegation of a conspiracy being perpetrated against the plaintiff over a substantial period of time. This conspiracy is said to have not become known to the plaintiff until at least May 2009.

[31] The Crown asserts that but for this allegation of his discovery of the conspiracy in 2009 the various causes of action are otherwise statute barred.

[32] Under Rule 21.01(1)(b) the Crown asserts that the claim of Mr. Brummell discloses no reasonable cause of action. The Crown sets out the test for such a finding at paragraph 25 of its originating factum. The Crown recognizes that allegations must be taken as true unless blatantly ridiculous or incapable of proof. The Crown reminds that assumptions and speculation do not convert to assertions that are to be taken as true. In addition allegations must give rise to a recognized cause of action.

[33] Rule 21.01(1)(a) can be utilized to determine limitation periods in cases that do not depend upon findings of fact.

[34] Finally under Rule 21.01(3)(d) pleadings that are otherwise frivolous and vexatious or constitute an abuse of process can be struck out.

[35] Untenable pleas, insufficiency of material facts to support allegations, allegations without merit, or a claim that is commenced for an extraneous or collateral purpose, are subject to being struck on motion.

[36] Irrelevant, argumentative, or bare allegations are subject to being struck out as scandalous.

[37] Finally Rule 25.06 of the Rules notes that a concise statement of material facts in support of each alleged cause of action, but not evidence, is required in the pleadings. Where malicious conduct is alleged, under Rule 25.06(8) specific facts supporting the causes of action are required.

The Claim in Relation to the Criminal Proceedings is really a claim for Malicious Prosecution

[38] I find that it is clear that the pleadings of the plaintiff in relation to his criminal prosecution are tantamount to a pleading of malicious prosecution. The claim is asserting the tort of malicious prosecution as against various police defendants and Crown counsel.

[39] In essence these allegations cannot meet the test for malicious prosecution. That test is a four part consideration, as set out in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170 and require that the plaintiff show that the defendants initiated the proceedings; the proceedings were terminated in favour of the plaintiff; there were no reasonable and probable grounds to prosecute; and malice or a primary purpose of the prosecution other than that of carrying out the law was present.

[40] What the plaintiff has done is make sweeping allegations of malice which are bald in the extreme. No showing is made to substantiate in the pleadings a foundation of malice. In short no purpose is shown behind the alleged wrongs.

[41] Of more import is that the criminal proceedings did not terminate in the plaintiff’s favour. Mr. Brummell did not appeal, but he did seek leave to appeal late in the game. That motion failed in December 2013. The fact that he is seeking a further audience before the Court of Appeal is no reason to me to delay my judgment on this motion.

[42] The fact that a variety of charges were dismissed does not assist Mr. Brummell in climbing the hill of showing that charges were terminated in his favour. Amongst other consideration, he agreed to a term of probation to provide for a three year period of non-contact with witnesses and alleged victims.

[43] I likewise reject the submission of Mr. Brummell that the transcript of the criminal pleadings as produced by the Crown is not complete. It clearly captures the essence of the proceedings, inclusive of the fact that Mr. Brummell was assisted by experienced counsel, who took on the role of amicus. It is clear that Mr. Brummell knew what he was acceding to when he was before Justice Power.

[44] There is no foundation for this Court, as Mr. Brummell suggests, to find that on this motion the Crown played “pick and choose” with what it has produced in relation to the record of the criminal proceedings.

[45] What occurred in the plea portion of Mr. Brummell’s convictions and dismissal of various charges is the usual cut and thrust of plea bargaining. Nothing in the cessation of various charges assists Mr. Brummell in substantiating his claim of malicious prosecution.

[46] The claim against the named defendants in relation to the criminal proceedings of the plaintiff must therefore be struck.

The Claim against the Attorney General is likewise struck

[47] The Crown Attorney is generally immune from suit, excepting for malicious prosecution. Given my agreement with Crown counsel on this motion that the claim for malicious prosecution must be struck, there is therefore no claim remaining against the Crown Attorneys who were involved in Mr. Brummell’s case.

[48] In essence there is no viable claim remaining against the Crown Attorneys. This saves the Attorney General from jeopardy in this lawsuit.

The Conspiracy Claim

[49] I agree with Crown counsel that there is a failure to plead material facts to support the tort of conspiracy. The tort of conspiracy requires proof of agreement; that the defendants acted in furtherance of that agreement; that the predominant purpose is to injure the plaintiff or the defendants conduct is unlawful and that the defendants should know that the injury to the plaintiff is likely; and finally that the plaintiff was injured as a result of the conspiracy.[^1]

[50] The findings for a showing of conspiracy have not been met. The underpinnings of the pleadings do not show an agreement. Indeed the pleadings suggest that the alleged conspiracy started with one person. One person cannot make an agreement. In any event there is no purpose or object to the conspiracy alleged, nor is there a pleading to substantiate a showing of acting in furtherance of the conspiracy.

No Cause of Action in failing to lay criminal charges

[51] Although there is a tort of negligent investigation, there is no cause of action in negligence by an alleged victim of crime for failure of the police to lay a charge in an investigation. This claim must therefore be struck.

Do the Pleadings Support a pleading of Misfeasance or “Non Feasance” in Public Office

[52] The tort of “non-feasance” does not exist. The tort of misfeasance in public office clearly does. There is simply no statutory duty to any particular plaintiff under the Police Services Act. There is only a general duty to the public in investigating criminal allegations.

[53] A showing of bad faith or dishonesty, and a deliberate engagement in conduct that is known to be inconsistent with the obligations of a public official is required.[^2] Such a pleading is founded on specific requirements. Those are absent in the plaintiff’s claim and rise to nothing more than broad allegations absent the required particularity.[^3]

Should the Second Claim be struck as against certain Defendants: No material facts in support

[54] Two of the defendants, Bellehumeur and Penlington, do not have any allegations asserted as against them. Although they are referenced in paragraph 2(b) of the claim, no material facts whatsoever are pleaded. This pleading must therefore be struck.

[55] As to the claim against the then Commissioner of the O.P.P, Julian Fantino, Her Majesty the Queen is liable for the torts alleged and not the Commissioner. Vicarious liability does not rest on the shoulders of Fantino, who is not liable for negligence of individual officers.[^4]

[56] Given my determination of the absence of a showing of the commission of any tort by Fantino, Bellehumeur and Penlington, the claim is struck against all three, inclusive of the substituting action against Her Majesty in relation to these three defendants, as there is no substituting action left.

Various Purported Causes of Action are not known at Law

[57] The allegations of imminent harmful or offensive conduct, false criminal allegations and illegal surveillance are not known causes of action. As the Crown concedes assault would be, as would be malicious prosecution subject to meeting the Nelles test, as would invasion of privacy.

Abuse of Process

[58] This tort requires the proof of four elements, as described in Hawley v. Bapoo, 2005 CanLII 36451 (ON SC), [2005] O.J. No. 4328 (S.C.J.). Those elements are: the plaintiff has been subjected to a legal process by the defendant(s); this has been done to further some indirect, collateral and improper purpose; some definite act or threat has been made in furtherance of that purpose; and some measure of special damages has resulted.

[59] The plaintiff was subject to the legal process of a criminal prosecution. There is no showing of an indirect, collateral or improper purpose. Nor is there any pleading to substantiate an act in furtherance of such purpose.

[60] This claim is therefore likewise struck.

Alienation of Affection

[61] This tort is non-existent in Canada. It is therefore struck.

Assault

[62] Nothing in the claim speaks to an assault. It is therefore struck.

Breaches of the Charter

[63] The claims for breach under sections 7, 8, 11, 12 and 15 cannot be sustained. I completely agree with the Crown’s position in its factum at paragraphs 90- 94. At its core, and in any event, there is simply no showing of any material facts to substantiate the plaintiff’s breaches.

[64] Finally the alleged breach of sections 8 and 11 of the Charter are collateral attacks against judicially authorized search warrants and decisions rendered at judicial interim release hearings. As such they are not sustainable in this lawsuit.

The Claims of tortious interference and intentional interference with economic relations

[65] I agree with the Crown that these torts are simply not available on the pleadings. Bald allegations underpin these torts. They are therefore struck.

Intentional Misrepresentation

[66] Four elements must be plead to sustain this tort. There is a complete failure to plead detrimental reliance.[^5] The facts that are pleaded do not fit within the elements of this tort.

Fraud as Plead

[67] Criminal fraud is not a civil cause of action, per se. Although unjust enrichment is claimable, it is not pleaded. This ‘tort’ is therefore struck.

Is Mandamus or Injunctive relief available

[68] Mandamus is an extraordinary remedy. Judicial review is the avenue to compel the relief. It is not part of a civil action, per se. Injunctive relief is simply not available against the Crown or its servants in this action.[^6]

Limitations Act

[69] Although I have otherwise found that the incidents in relation to the snowmobile trail and the criminal proceedings should be struck out, they are also statute barred. These reasons could have started with this finding, however I thought it prudent in fairness to the plaintiff and his pleadings as captured in his Second as Amended Claim, that I deal with the position of the Crown as argued in the sequence it presented.

[70] I will make further comment later in relation to the Fresh as Amended Claim.

[71] It is plain and obvious in relation to these incidents that the limitation period has expired. Rule 21.01(1)(a) applies. The events underpinning the snowmobile trail issue were clearly discoverable shortly after January 30, 2005. In relation to the criminal proceedings it is self-evident that the events within that chain of criminal proceedings were known to the plaintiff as they occurred.

[72] Likewise the claim of theft by officers was known to the plaintiff on or before February 02, 2007.

[73] The various allegations of misconduct by various officers and or Crown counsel were all “live issues at trial” and were the subject of motions in court during the criminal proceedings.

[74] I reject the position of the plaintiff that he was only able to grasp the level of the tortious conduct as a consequence of his more detailed analysis of the disclosure. In this regard I adopt the language of the Crown, that the plaintiff “cannot sleep on his rights.”

[75] The plaintiff was armed with the material facts necessary to commence his action within the limitations period. There is no evidence whatsoever of wilful concealment by the defendants save and except Mr. Brummell’s claim of such.

[76] As a consequence, it is plain and obvious that in relation to the snowmobile trail issue and the criminal proceedings complaints that these claims must be struck given the operation of the Limitations Act.

Is the Claim an improper collateral attack against rulings made in the Criminal Proceedings

[77] Collateral attack is manifest in the case at bar. To seek redress the plaintiff should have appealed the outcome of his criminal proceedings. He did not. He did, as noted above, seek leave to extend the time in which to appeal to the Court of Appeal. That argument failed in December 2013. The fact that Mr. Brummell has advised, in his correspondence to the Court, that he will seek review before a panel of the Court of Appeal, and failing success, will move to appeal to the Supreme Court of Canada, does not assist him.

[78] A final determination of the criminal court is in place. That finding is not subject to collateral attack in these civil proceedings.

The Complaints that are non-criminal

[79] In relation to the investigation of Mr. Brummell’s complaints before the tribunal that deals with such complaints, the plaintiff has redress under the Police Services Act. To use the civil process when a stream of potential remedy is otherwise available to the plaintiff likewise constitutes an abuse of process. What the plaintiff is challenging is the exercise of a statutory power of decision. Mr. Brummell did not exhaust his remedies in that sphere.

Do the Pleadings offend Rule 25

[80] The pleading, read carefully is long, contains unspecified allegations, is repetitive and pleads evidence as distinct from material facts. It is infected by bald assertions. I note that Justice Gunsolus attempted to assist the plaintiff in presenting pleadings that were succinct and driven to the issues at hand. His endorsement speaks to that.

[81] I find that Rule 25 has been offended. There has been a failure to plead in accordance in Rule 25, at the least in respect of the paragraphs in the claim as referenced at paragraphs 125, 126, 127, and 128 of the Crown’s factum.

Conclusion in relation to the Second Claim

[82] In relation to the Second as Amended Claim, the claim is struck in its entirety. I have not inserted under each of the headings above all of the specific defendants to which the tortious conduct is claimed, but for clarity I agree with each of the positions as advanced by the Crown in relation to each of the defendants to which it relates.

The Crown’s Reply to the Fresh Claim

[83] The Crown provided further submissions in its reply factum to Mr. Brummell’s reply to its motion to strike in relation to the malicious prosecution claim, as well as other headings in its summary.

The Fresh Claim: Does it Survive?

[84] As noted above, in his material dated May 16, 2013, entitled Supplementary Submission re Notice to Strike, the plaintiff provided the most recent incarnation of his claim.

[85] The plaintiff notes that this incarnation of his claim was provided to accommodate the concern of Justice Gunsolus in order to narrow his claim and “clean up his pleadings.”

[86] The plaintiff provides a factum that contains 4 parts inclusive of a Part 4 entitled The Law and Argument. He seeks relief to amend his claim in accordance with the Fresh as Amended Claim. I remind here that the crown does not suggest that the Court should not utilize this document in considering the motion and expressly consents to it being the operative claim.

[87] Mr. Brummell pleads harassment and intimidation of his person throughout the criminal proceedings. At paragraph 12 of his Supplementary Submission, he provides five instances where he was so exposed.

[88] Mr. Brummell notes at paragraph 16 therein the allegation of continued harassment and intimidation tactics which occurred in 2006, inclusive of the execution of a search warrant on his then home; his subsequent arrest; being held in custody; and finally being exposed to false allegations, via an officer, to the Children’s Aid Society.

[89] I have reviewed the pleadings at paragraphs 17-61 which provide further assertions of Mr. Brummell.

[90] The Crown responded to this material with their reply factum.

[91] Given the contents of the Fresh Claim, it would now appear that only 16 defendants are being pursued and 19 torts are alleged.

[92] To this extent it would appear the Claim is tapered in some degree.

[93] For the reasons that follow I agree with the Crown that the action should be struck in relation to this Fresh Claim as well.

Criminal Proceedings

[94] In relation to the factual basis of the prosecution of Mr. Brummell, the Crown references extracts of the proceedings before Power J. which are captured at pages 2-3 of the Crown’s reply factum, and which are supplemented in full by the transcript at Tab 1 of the Supplementary Motion Record of the Crown.

[95] It is clear that the guilt of Mr. Brummell was admitted.

[96] The Crown also notes with reference to the transcript extracts that upon his pleas the Crown did not lead any evidence underpinning several other counts. Those counts were therefore dismissed. Indeed amicus, assisting Mr. Brummell and the court made it plain that part of the arrangement was that once Mr. Brummell was found guilty of the counts for which he was conceding his culpability, the court was to be invited to dismiss the other counts.

[97] The sentencing position was jointly proposed. Mr. Brummell had senior counsel act as amicus during this portion of his proceedings. His total sentence was 14.5 months incarceration less time spent in pre-trial custody, which rendered a further period of incarceration. Mr. Brummell was also subject to a conditional sentence.

[98] Those complainants who were the subject of the dismissed charges were named and agreed to be persons to whom Mr. Brummell would have no contact. They were named in Mr. Brummell’s probation order.

[99] Amicus for Mr. Brummell noted that the resolution was considered extensively before and at the time it occurred.

The Fresh Claim: Malicious prosecution

Proceedings did not terminate in the Plaintiff’s favour

[100] This Fresh Claim does not assist Mr. Brummell in passing the hurdle of showing that the proceedings in criminal court terminated in his favour.

[101] Crown counsel refers to the decision of the Court of Appeal in Romanic v. Johnson, 2012 ONSC 3449, [2012] O.J. No. 2642 released post filing of the Crown’s originating factum, wherein the court noted the agreement for Romanic to resign as a police officer and in turn charges would be withdrawn against him. This was not, it was held, a situation where charges where charges resolved in his favour. This is so even though there was no criminal sanction whatsoever.

[102] The Crown says that none of the charges as against Mr. Brummell were withdrawn but were rather dismissed given his entry of guilty pleas to some of the charges. This lead to not guilty findings on a variety of charges, but restrictions attached to those charges by way of terms of probation that protected contact between the plaintiff and various complainants.

[103] This, the Crown argues, is tantamount to a peace bond. In addition the transcript illustrates that the proceedings were a negotiated resolution.

[104] I agree with the position of the Crown that nothing in the new Fresh Claim disturbs the reality that the proceedings did not terminate in Mr. Brummell’s favour. There is no evidence of any portion of that proceeding being in Mr. Brummell’s favour for purposes of establishing one of the necessary components of the malicious prosecution test.

[105] This tort is not given fresh sustenance in the incarnation of the Fresh Claim. To the contrary it is dissipated even more so given the decision in Romanic.

Is Malice Pleaded Properly?

[106] Irrespective, there is nothing in the Fresh Claim pleadings to substantiate pleadings that show that the Crown acted with an improper purpose tantamount to a “deliberate and improper use of the office of the Attorney General or Crown Attorney… a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice."[^7]

[107] A suggestion of “malice aforethought” is not a basis to get oneself out of the arena of bald allegations of malice.

[108] Likewise the instances of malice said to be present are not tenable to root a showing of malice. The plaintiff’s pleadings cannot give rise to a showing of malice. Bail conditions are the purview of the court. A continued prosecution, which ends the way this one did, is clearly premised on a reasonable prospect of conviction standard and the need to consider the public interest in the discharge of the prosecutorial function.

[109] Finally, the intonation of some type of conflict of interest as asserted by the plaintiff is bereft of an air of reality.

[110] There continues to be no effective pleading of an improper purpose in the prosecution of the plaintiff. Combined with the fact that the proceedings did not terminate in favour of Mr. Brummell, two of the essential elements of a malicious prosecution pleading are absent.

Prior Admissions withdrawn

[111] Various admissions made in the Second Claim have been omitted in the Fresh Claim.

[112] For instance in the Second Claim the plaintiff pleads facts which establish he had knowledge of tampering of evidence and perjured testimony prior to 2008 but now claims that this fact was not discoverable until 2009. These initial facts are absent in the Fresh as Amended Claim.

[113] The Crown further sets out at paragraph 18 of its reply factum what the plaintiff claims was raised at his criminal trial proceedings and which is pleaded in his Second as Amended Claim. This catalogue of material is largely absent in the Fresh Claim.

[114] Otherwise the three incidents that underpin the Fresh Claim are relied upon as they were in the Second Claim.

[115] In relation to the alleged conspiracy in the Fresh Claim the plaintiff now sets out a new version of the genesis of the alleged conspiracy.

[116] I find it manifestly plain that the plaintiff cannot meet the test to withdraw admissions under Rule 51.05. The plaintiff cannot satisfy the court of the necessity of showing that the admission was inadvertent or resulted from wrong instructions, or that the proposed amendment raises a triable issue.

[117] Finally I find that the attempt to withdraw admissions by the plaintiff is clearly an attempt to end run the defendants Limitations Act argument as it relates to most of the Second Claim.

[118] I also agree that to allow the withdrawal of the admissions would be highly prejudicial to the Crown. It would neuter the limitations argument, an argument made plain by the admissions of the plaintiff in his Second Claim.

[119] I also concur that the withdrawal of admissions in relation to the conspiracy allegation would allow the plaintiff to provisionally escape the fatal flaw in his admissions, to wit: the failure to plead essential elements of the tort of conspiracy.

[120] However in the Fresh Claim there are still no new assertions relied upon to show a triable issue. What the plaintiff is attempting to do is to withdraw admissions to make up for fatal flaws in his initial pleadings.

[121] Irrespective of the admissions issue and their withdrawal, the conspiracy is still not particularized. It is a conspiracy said to exist between “two, more or all” absent any particularization of the role of “two, more or all”. Finally it is clear in the Fresh Claim that the conspiracy alleged is not founded upon anything more than a theory of common intention. This is not enough to particularize an agreement at law.

Negligence as Pleaded

[122] The Fresh Claim speaks to intentional torts. No acts of negligence are pleaded. The tort of negligent investigation is negated by the assertion in both the Second and Fresh Claim that the actions perpetrated by the defendants on Mr. Brummell were deliberate and intentional.

[123] There is therefore no basis for the negligent investigation tort or the tort of negligence.

Is there a Duty of Care owing to a Complainant

[124] Mr. Brummell argued strenuously that he was owed a duty of care. He cited and quoted from Hill v. Hamilton –Wentworth Regional Police Services Board.[^8] He argues that the police owed him a duty of care in relation to the investigation of the snowmobile trail tampering and the Police Services Board complaint.

[125] The Crown concedes that the police may owe a duty of care to conduct an investigation in a non-negligent fashion, but that a duty of care does not exist between police officers and the target of an investigation in prior and subsequent dealings with that target.

[126] While there is a duty with respect to the conduct of the investigation of the target of an investigation, that does not apply to complainants with respect to the conduct of an investigation.[^9]

Does the Fresh Claim relieve against the Limitations Act

[127] I have already alluded to the fact that the Fresh Claim with the attempted withdrawal of admissions is a tactical ploy to attempt to defeat the Limitations Act argument.

[128] To be sure, the Second Claim provides the facts that clearly show the discoverability of the claim within the operation of the two year period.

[129] Even being generous to the position of the plaintiff, there are no facts pleaded to support his allegation of late discovery, or to contextualize his change in position, save his bald assertions inclusive of his submissions of how he came to learn thing,s that it is evident he was aware of, leaving aside the degree of knowledge. Nothing stopped the plaintiff from bringing his action within the 2 year time period.

Nothing is new to Substantiate a Reasonable Cause of Action

[130] Finally nothing in the new Fresh pleadings rectifies the absence of a reasonable cause of action.

[131] My comments in relation to the Second Claim apply here as well.

Should Leave be Granted to Amend

[132] The claim is flawed in its entirety. There is no utility in allowing a further amendment. The plaintiff filed his Fresh as Amended Claim in his response to the Crown’s motion. He did so without leave but with the acquiescence, ex post facto of the Crown. There is simply no reason, given now three versions of the claim, to think that allowing an amendment can salvage the claim. Leave to amend is therefore denied.

[133] Given my determination on this motion the discovery motion of Mr. Brummell is now moot.

Costs

[134] Crown counsel provided a bill of costs in May. The Crown will have 20 days from receipt of these reasons, to file any additional costs outline, inclusive of a bill of costs, not to exceed 6 pages in total. Mr. Brummell will have 10 days from the date of receipt of the Crown’s costs submissions to respond.

[135] All material to be sent to my attention at Judges’ Reception, Superior Court of Justice, Oshawa Courthouse, 150 Bond Street East, Oshawa, via fax: 905 743 2801.

The Honourable Mr. Justice H.K. O’Connell

Date: January 21, 2014

[^1]: Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (S.C.J.) [^2]: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263. [^3]: Ontario v. Gratton-Masuy Environmental Technologies Inc. (2010), 2010 ONCA 501, 101 O.R. 321 (Ont. C.A.) [^4]: See Police Services Act, R.S.O. 1990, c. P. 15, s. 50(1). [^5]: Cannon v. Funds for Canada Foundation, 2012 ONSC 399, [2012] O.J. No. 168 (S.C.J) ; leave to appeal refused by Div. Ct. [^6]: Judicial Review Procedure Act, R.S.O. 1990, c. J.1; McHale v. Ontario (Attorney General), 2009 O.J. No. 5630; Proceedings Against the Crown Act, s. 14. [^7]: See : Nelles v. Ontario; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339. [^8]: 2007 SCC 41, [2007] S.C.J. No. 41. [^9]: See Wellington v. Ontario, 2011 ONCA 274, [2011] O.J. No. 1615 (C.A.), leave to appeal refused at [2011] S.C.C.A. No. 258.