COURT FILE NO.: CV-13-488748
DATE: 20141001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICK WHITTY, RPR ENVIRONMENTAL INC., 1049585 ONTARIO INC. o/a RPR ENVIRONMENTAL SERVICES, and 876947 ONTARIO LIMITED
Plaintiffs
– and –
EDWARD N. WELLS, EDWARD G. WELLS, BRADLEY MAY, RENZO BENOCCI, BRAD SIMPSON, MARK VANDERLAAN, PETER KENT, JOHN BAIRD, JIM PRENTICE, MANON BOMBARDIER, GORDON OWEN, SANDRA ANTONIANI, DIANA BALL, LUKE CAYLEY, ROB FORTIN, ERIN GILMER, JEFFREY GREEN, MELANIE GREGORICH, JULIE HORVATH, REBECCA HUEHN, ANNA LYN-KING, DOUGLAS LAING, DENISE MCGUIRE, JOHN MILLER, AMRICK SHERGILL, LORRAINE YOUNG and the ATTORNEY GENERAL OF CANADA
Defendants
Vilko Zbogar, for the Plaintiffs
Jacqueline Dais-Visca and Abigail Browne, for the Defendants Edward N. Wells, Edward G. Wells, Bradley May, Renzo Benocci, Brad Simpson, Mark Vanderlaan, Peter Kent, John Baird, Jim Prentice, Manon Bombardier, Gordon Owen, Diana Ball, Luke Cayley, Rob Fortin, Erin Gilmer, Jeffrey Green, Melanie Gregorich, Julie Horvath, Rebecca Huehn, Anna Lyn-King, Douglas Laing, Denise McGuire, John Miller, Amrick Shergill, Lorraine Young and the Attorney General of Canada
John Evans and Scott Beattie, for the Defendant Sandra Antoniani
HEARD: July 3, 2014
T. Mcewen j.
reasons for decision
INTRODUCTION
[1] The Defendant, Sandra Antoniani (“Antoniani”) moves pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order striking the Plaintiffs’ 3rd amended Statement of Claim (the “Statement of Claim”) on the basis that it discloses no reasonable cause of action. Antoniani also moves to strike the action on the ground that it is scandalous, frivolous, vexatious or is otherwise an abuse of process pursuant to Rules 21.01(3)(d) and 25.11.
[2] I have released a number of decisions concerning the Plaintiffs’ various claims against Antoniani and the Crown Defendants. In those decisions I have set out the facts in some detail citing the long and complicated history of the various proceedings. For some time I have remained seized of the pleadings motions. As I have advised counsel, with this decision, my participation comes to an end.
[3] Briefly, there are four Plaintiffs. The three Plaintiff companies, 876947 Ontario Limited, 1049585 Ontario Inc., and RPR Environmental Inc. (collectively “RPR”), are engaged in the business of hazardous waste disposal. They carry on business in Stoney Creek, Ontario. The Plaintiff Patrick Whitty (“Whitty”) is a director, officer and general manager of each of the above Plaintiff companies. The claim arises out of an investigation of all Plaintiffs between 2005 and 2010 by various members of the Environmental Enforcement Directorate of Environment Canada (the “EC”), and the subsequent prosecution of the Plaintiffs. Antoniani, a named Defendant, is a lawyer in private practice and a Federal standing Crown agent who was contacted by the Public Prosecution Service of Canada to prosecute RPR and Whitty. Various employees of the EC are also named Defendants in the within action, however this motion relates only to Antoniani.
[4] Pursuant to the EC’s investigation, two search warrants were obtained and executed by the EC against the Plaintiffs. The first search warrant was carried out on August 9, 2007. In September 2007, EC officials charged RPR with 26 charges under the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations, SOR/2005-149 (the “Regulations”). Whitty was charged with one offence under the Regulations. These charges were allegedly withdrawn in December 2007. The Plaintiffs do not allege any misconduct by Antoniani in relation to these charges, but rather her impugned conduct is in relation to the second search that was carried out in 2008, as well as her involvement in the prosecution of the Plaintiffs.
[5] In January 2008, EC officials laid 40 charges against RPR and 1 charge against Whitty for alleged breaches of the Regulations. In February 2008, an additional 62 charges were sworn against both RPR and Whitty and 1 charge against Whitty alone for alleged breaches of the Regulations. The January 2008 charges were subsequently withdrawn, and the Plaintiffs allege that the charges in the January information were duplicated in the February information.
[6] Of the February 2008 charges, 40 related to alleged breaches of manifesting requirements, 21 related to RPR’s failure to confirm waste destruction as required by the Regulations and 1 was against Whitty in his capacity as Director of RPR.
[7] In March 2008, a second search warrant was carried out at the RPR’s premises. EC conducted a search and seized property belonging to RPR.
[8] The Plaintiffs assert that Antoniani knew the second search took place only seven months after the first, and that the charges arising from that search had been withdrawn after it was determined that the Plaintiffs had complied with the Regulations. They allege that Antoniani instructed EC officials to carry out the second search warrant despite having the view that there were no reasonable grounds to believe that any offence had been committed based on the evidence presented to her. The Plaintiffs allege that Antoniani knew that a second search was not necessary to support the January and February 2008 charges.
[9] Alternatively, the Statement of Claim alleges that if Antoniani had reasonable grounds to believe an offence had been committed, she instructed the second search to take place for ulterior, collateral and improper purposes. Specifically, the Plaintiffs submit that the second search was a ruse to fish for evidence relevant to a spurious and unrelated investigation under s. 17 of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 (“CEPA”), and to generally disrupt the Plaintiffs’ business operations.
[10] Finally, the Plaintiffs submit that Antoniani prosecuted RPR and Whitty for the February 2008 charges despite the absence of reasonable and probable grounds to believe that they had committed an offence. They say she did so to injure the Plaintiffs’ business and reputation, and that she also did so for personal financial gain.
[11] The Plaintiffs argue that the charges were disposed of in their favour. Namely, they allege that the charge against Whitty was withdrawn, one charge against RPR resulted in an absolute discharge following a guilty plea (though this charge is not the subject of the malicious prosecution claim), while all other charges against RPR were withdrawn.
[12] In their Statement of Claim, the Plaintiffs allege the following causes of action against Antoniani: misfeasance in public office; abuse of process; malicious process; conspiracy; and malicious prosecution. For the purposes of these Reasons, I have considered malicious process and malicious prosecution to be interchangeable terms and that malicious process does not, in and of itself, compromise a separate cause of action. The authorities use the term interchangeably and at the motion counsel for the Plaintiffs did not provide me with any authority to suggest otherwise.
[13] It is important to note that it is the Plaintiffs’ position that the malicious prosecution claim relates only to Antoniani’s involvement in the 2008 prosecution. They claim that other aspects of her interaction with EC officials, such as the investigation under s. 17 of CEPA, were outside the scope of her prosecutorial function. These interactions are the subject of the remaining causes of action against Antoniani.
[14] Antoniani submits that all of the causes of action against her, with the exception of the malicious prosecution claim, ought to be struck on the basis of prosecutorial immunity. She submits that legal authority is clear and unqualified that Crown prosecutors, in their professional capacity, enjoy immunity from all tort claims except malicious prosecution.
[15] Antoniani further submits that the Statement of Claim pleads insufficient facts to support any of the causes of action brought within it. She claims that because the Plaintiffs have failed to plead the material facts necessary to give rise to a claim for malicious prosecution, that claim must be struck for being frivolous and vexatious. She further submits that the claim contains bare allegations that should be struck as scandalous. Finally, Antoniani submits that the claim should be struck because it is barred by virtue of the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
ISSUES
1. Does the Statement of Claim fail to disclose a reasonable cause of action?
[16] Antoniani argues that a Statement of Claim can fail to properly establish a cause of action if: (1) its allegations do not give rise to a recognized cause of action; or (2) it fails to plead the necessary legal elements of an otherwise recognized cause of action. She argues that the Statement of Claim fails to properly establish a cause of action on both grounds.
[17] The parties agree that on a Rule 21.01(1)(b) motion, a statement of claim will only be struck where it is plain and obvious that it discloses no cause of action: see Ontario v. Gratton-Masuy Environmental Technologies Inc. (c.o.b. EcoFlo Ontario), 2010 ONCA 501, 101 O.R. (3d) 321.
a) Is it plain and obvious that the Plaintiffs’ claims against Antoniani, except for malicious prosecution, must fail on the basis of prosecutorial immunity?
[18] Antoniani submits that it is well-settled that the tort of malicious prosecution is the sole exception to the doctrine of prosecutorial immunity. Accordingly, Antoniani argues, all causes of action in the Statement of Claim except for the malicious prosecution claim must be struck because she was acting in her role as prosecutor when her impugned conduct was alleged to have taken place.
[19] Antoniani relies on McCreight v. Canada (Attorney General), 2012 ONSC 1983, O.J. No. 1996 [McCreight]; Fitzpatrick v. Durham Regional Police Services Board (2005), 2005 63808 (ON SC), 76 O.R. (3d) 290 (S.C.) and Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 [Miazga]. She submits that these cases foreclose the possibility of claiming a tort against a prosecutor except for malicious prosecution.
[20] The Plaintiffs argue that courts have recognized that Crown prosecutors may be sued for other torts, such as abuse of power and conspiracy. They point to the Ontario Court of Appeal’s decision in Folland v. Ontario (2003), 2003 52139 (ON CA), 64 O.R. (3d) 89 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 249 [Folland]. In that case, the court held that it would be inappropriate to strike claims for abuse of process, conspiracy to injure and intentional infliction of harm on a motion to strike. Weiler J.A. stated the following, at paras. 22-24:
It would appear, therefore, that the jurisprudence is not fully settled as to whether the four elements for the tort of malicious prosecution must always be proven in every civil action against a prosecutor. It is also not clear that, if the four elements are established, a plaintiff is restricted to framing the action as one of malicious prosecution rather than as one of conspiracy, abuse of process or intentional infliction of harm. It may be that in some cases, such as conspiracy, the rules relating to admissibility of evidence would be of assistance to a plaintiff in establishing his or her case.
I also note that the purpose of a Rule 21 motion is to bring finality to litigation that does not disclose a cause of action at an early stage of the proceedings. Here, the actions of malicious prosecution and for breach of Charter rights have not been struck and will be going on to trial in any event.
Conclusion
It is inappropriate to strike the claims for abuse of process, conspiracy to injure and intentional infliction of harm at this stage of the proceedings because the jurisprudence is not settled that the four requirements of his action for malicious prosecution must always be proven when a common law tort is alleged against the Crown. Accordingly, I would allow the appeal, set aside the decision of the motions judge and dismiss the motion to strike the claims indicated.
[21] The Plaintiffs also rely on Milgaard v. Saskatchewan (1994), 1994 4592 (SK CA), 118 D.L.R. (4th) 653 (Sask. C.A.), Munro v. Canada (1993), 1993 8453 (ON SC), 16 O.R. (3d) 564 (Div. Ct.) and Gendreau v. Alberta (Department of Justice), 2010 ABQB 781, A.J. No. 1412. They acknowledge that a Crown prosecutor is immune from allegations of negligence. They assert, however, that these cases state that where bad faith, malice or other improper motives are alleged, it is inappropriate to strike out the claims for misfeasance in public office, abuse of process and conspiracy on a Rule 21 motion.
[22] The Plaintiffs further submit that prosecutorial immunity only applies to Crown prosecutors in their exercise of prosecutorial functions. The Plaintiffs say that the allegations against the Defendant arise from her involvement in directing the second search to occur for the purpose of furthering the EC’s improper investigation under s. 17 of CEPA. The s. 17 process did not result in any charges or prosecution. Accordingly, the Plaintiffs say that aside from Antoniani’s actions during her prosecution of RPR and Whitty on the 62 charges that were disposed of in February 2009, the doctrine of prosecutorial immunity does not operate to protect her.
[23] Antoniani does not dispute that in Folland, the Ontario Court of Appeal stated that the jurisprudence was not settled with respect to whether a plaintiff is restricted to an action for malicious prosecution against a Crown prosecutor. Instead, she submits that since Folland, the law has been settled such that only a claim for malicious prosecution is available to a plaintiff in an action against a prosecutor. The Defendant points to McCreight and Miazga in this regard.
[24] For the reasons that follow, I accept the Plaintiffs’ position in this issue. In my view, it is not plain and obvious that claims for misfeasance in public office, abuse of process and conspiracy must be struck on a Rule 21 motion on the basis of prosecutorial immunity.
[25] Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not demonstrating a reasonable cause of action: Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.) [Nash].
[26] The Court of Appeal’s decision in Folland is the latest appellate guidance on whether claims other than malicious prosecution may be brought against a Crown prosecutor. In that case, the court stated that it was unclear whether a plaintiff is restricted to framing an action as one of malicious prosecution rather than one of conspiracy, abuse of process or intentional infliction of harm.
[27] In McCreight, Patterson J. struck claims against Crown prosecutors on the basis of prosecutorial immunity. However, it appears as though the Folland decision was not before him and he makes no reference to Folland. In the absence of appellate authority settling the unclear jurisprudence, I am bound by Folland, which states that striking claims for abuse of process or conspiracy on a Rule 21 motion is inappropriate.
[28] In oral submissions, Antoniani’s counsel argued that the principle from Folland was settled by the Supreme Court in Miazga. I disagree. While the Court in Miazga reiterated the high threshold required to make out a claim for malicious prosecution, it did not address whether allegations of bad faith or malice could give rise to other causes of action.
[29] The important public interest in effective and uninhibited prosecution of criminal wrongdoing was highlighted by the Supreme Court in Miazga and Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9 [Proulx]. Those cases emphasized that malicious prosecution should only be found in exceptional circumstances in order to protect this fundamental objective. Attaching liability to prosecutors for misfeasance in public office, conspiracy and malicious process, which all involve some form of bad faith or malice, do not threaten the policy concerns stated in Proulx and Miazga. In the absence of appellate authority to the contrary, I am not prepared to find that it is plain and obvious that the Plaintiffs’ claim is hopeless.
[30] This makes particular sense to me given that the Plaintiffs allege that much of Antoniani’s misconduct occurred outside of her role as a prosecutor.
b) Does the claim fail to disclose facts supporting a claim for malicious prosecution?
[31] Antoniani submits that the Statement of Claim does not contain the facts necessary to prove any of the four elements of the tort of malicious prosecution.
[32] On a motion to strike pursuant to Rule 21.01(1)(b), all allegations of fact, unless patently ridiculous or incapable of proof, must be accepted as proved: Nash. Antoniani, however, correctly submits that in these circumstances, Rule 25.06 requires a heightened degree of particularity. Rule 25.06(1) provides that every pleading shall contain a concise statement of material facts on which the party relies for its claim. Rule 25.06(8) provides that pleadings alleging malice or intent shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. Accordingly, I must determine whether the Plaintiffs’ pleadings meet the requisite threshold of particularity for pleas of malice.
[33] For ease of reference, the parties agree that the four elements of malicious prosecution, as first articulated by the Supreme Court of Canada in R v. Nelles, 1989 77 (SCC), [1989] 2 S.C.R. 170, and then reaffirmed more recently in Miazga, are as follows:
(a) The proceedings must have been initiated by the defendant;
(b) The proceedings must have terminated in favour of the plaintiff;
(c) The absence of reasonable and probable cause to commence or continue the prosecution; and
(d) Malice, or a primary purpose other than that of carrying the law into effect.
[34] Antoniani submits that the first criterion is not met because the Plaintiffs have not pleaded that Antoniani was involved in the laying of the second set of charges. She argues that ordering a search warrant is not tantamount to “initiating a proceeding.” She further submits that because RPR pleaded guilty to a single charge, it cannot be said that the proceedings terminated in the Plaintiffs’ favour.
[35] Antoniani argues that the third criterion has not been established because the Plaintiffs have failed to provide supporting facts and have only baldly asserted that Antoniani had no reasonable grounds, and alternatively, that she had reasonable grounds.
[36] Similarly, Antoniani submits that the Plaintiffs have only baldly alleged malice by claiming that Antoniani acted for improper purposes. She argues that nothing in the Statement of Claim suggests that Antoniani’s instruction to obtain a second search warrant or carrying the prosecution forward was for any purpose other than Antoniani acting pursuant to her professional duty as a Crown prosecutor. She submits that this is not a proper case for the court to infer malice from a lack of probable cause.
[37] In response, the Plaintiffs submit that the first criterion is satisfied where the prosecutor carries forward the prosecution. In this case, they claim that Antoniani clearly carried the prosecution forward after the information was sworn. For the second criterion, the Plaintiffs submit that the proceedings terminated in their favour because all charges except for one, which is not the subject of the malicious prosecution claim, were withdrawn. In any event, the Plaintiffs claim that although a guilty plea in a prior criminal proceeding is prima facie evidence of the events to which the defendants pleaded guilty in a subsequent civil proceeding, it is a presumption open to rebuttal.
[38] The Plaintiffs further submit that the Statement of Claim demonstrates a lack of reasonable and probable grounds, satisfying the third criterion. The claim asserts that Antoniani persisted in prosecuting the Plaintiffs despite knowing that there were no reasonable and probable grounds for doing so, and despite knowing that the two-year limitation period with respect to several of the charges had expired.
[39] The Plaintiffs submit that malice can be inferred from an absence of reasonable and probable grounds. In any event, they submit that the Statement of Claim identifies several improper purposes for which Antoniani carried on the prosecution.
[40] The issue here is whether the Plaintiffs have pleaded sufficient facts to support an allegation of malicious prosecution against Antoniani. For the reasons that follow, I find that they have.
[41] I am prepared to accept that the Plaintiffs have pleaded sufficient facts to support the first two elements of the tort of malicious prosecution. The prosecution was carried forward by Antoniani and many of the charges that were laid terminated in the Plaintiffs’ favour. Whether the Plaintiffs’ have established that Antoniani had no reasonable and probable grounds to continue with the prosecution is less clear.
[42] The Plaintiffs’ assertions in this regard are found at paragraphs 151-152 of the Statement of Claim. They state as follows:
At the time that these charges were laid, Environment Canada officials knew that RPR Environmental Inc. and Patrick Whitty were not in breach of section 11 or section 36 of the Regulations and that there were no reasonable grounds for the charges.
Despite the absence of reasonable grounds to prosecute RPR Environmental Inc. or Patrick Whitty and despite the expiry of the two-year limitation period with respect to several of the offences, Sandra Antoniani, … persisted in prosecuting or causing the prosecution of the charges against them….
[43] The Plaintiffs’ allegation with respect to whether reasonable and probable grounds existed is little more than an assertion that no reasonable and probable grounds existed. Little or no material facts are pleaded in support of that submission. Nonetheless, given the Plaintiffs’ allegation that Antoniani knew the governing limitation period for the prosecution had expired, I am not prepared to find that it is plain and obvious that Antoniani had reasonable and probable grounds to proceed with the prosecution of the Plaintiffs. Although it is far from clear whether Antoniani had such grounds to continue with the prosecution, the Plaintiffs have pleaded sufficient facts such that, in my view, the issue should be determined by the trial judge.
[44] With respect to the element of malice, the Plaintiffs assert that malice can be inferred from the lack of reasonable and probable grounds Antoniani had for proceeding with the prosecution. Although the Statement of Claim is rather disorganized with respect to the various assertions made regarding the accusations of malice, the impugned behaviour is set out essentially in the following paragraphs:
At that time, Ms. Antoniani was of the view that there were no reasonable grounds to believe any offence had been committed based on the evidence presented to her, but nevertheless instructed that the second search take place for ulterior, collateral and improper purposes.
In determining whether reasonable grounds existed, Ms. Antoniani was required to have regard to, inter alia,
a) the fact that the Plaintiffs’ premises had already been raided by Environment Canada officers only seven months earlier, in August 2007;
b) the collapse of the ensuing prosecutions when Ms. Antoniani withdrew all 27 charges in December 2007 after determining that there was no reasonable prospect of conviction since the accused had actually complied with the regulations;
c) the absence of any legitimate new grounds arising in the short time since the collapse of the previous prosecutions that would have justified laying new charges or conducting another search; and
d) her knowledge that E.N. Wells, E.G. Wells, Bradley May and their colleagues were driven by vindictiveness, bad faith, and other improper purposes towards the Plaintiffs.
In the alternative, if Ms. Antoniani was of the view that there were reasonable grounds to believe an offence had been committed based on the information provided by E.N. Wells and his colleagues, a further search was not needed to obtain evidence of the offence or to sustain charges which E.N. Wells had already laid, but Ms. Antoniani nevertheless instructed that the second search take place for ulterior, collateral and improper purposes.
In directing that the second search occur, the Defendant Sandra Antoniani was not acting in her role as a prosecutor. No prosecution was ever commenced in relation to the complaint purportedly received under s. 17 of CEPA.
Prior to execution of the Second Search Warrant, Environmental Enforcement officials including Jeffrey Green, E.N. Wells and E.G. Wells, in collaboration with Sandra Antoniani, determined that they should expand the search beyond what was permitted by the Second Search Warrant. They decided to use the opportunity to bundle other investigations into the search, including their investigation of the CEPA s. 17 complaint, even though they had no judicial authorization to do so. As such, the Second Search Warrant was a cover to embark on an oppressive and intrusive fishing expedition in a manner unauthorized by law.
Prior to the plea arrangement, E.N. Wells, Bradley May and Sandra Antoniani had undertaken efforts to intimidate Dianne Saxe, the lawyer for RPR Environmental Inc. and Patrick Whitty, and to compromise the integrity of those parties’ legal representation. In particular, they attempted to use the fact that Ms. Saxe had been awarded a contract by Environment Canada some years earlier as leverage against her, even though that contract had nothing to do with the charges against RPR Environmental Inc. and Patrick Whitty.
By seeking the Second Search Warrant, laying informations, and targeting the RPR Group and Patrick Whitty for excessive and unwarranted investigations, prosecution and other enforcement measures without reasonable cause outside the two year limitation period and in defiance of Environment Canada’s own policies and practices, or by authorizing, instructing, or otherwise causing such actions, E.N. Wells, E.G. Wells, Bradley May, Mark Vanderlaan, Jeffrey Green, and Sandra Antoniani engaged in malicious process and abuse of process.
The Second Search Warrant was obtained and used for a collateral and improper purpose. The true purpose was to gain access to the Plaintiffs’ premises in support of a spurious investigation pursuant to ss. 17 and 18 of CEPA. More generally, the purpose was to harass and coerce the Plaintiffs and disrupt their business. The search was undertaken in furtherance of these illegitimate purposes and thus constituted an abuse of process.
There were no reasonable and probable grounds for obtaining and executing the Second Search Warrant, as described herein. That fact, combined with the fact that the purpose of the search was unlawful and improper, rendered the Second Search Warrant process an instance of malicious process.
The vexatious and unnecessary repetition of the search warrant, and the laying of multiple sets of charges in relation to alleged breaches of manifesting requirements after similar charges were already disposed of in favour of the accused Plaintiffs, also constitute vexatious use of process.
These efforts were not undertaken in good faith or for any legitimate or lawful purpose, but to harass and coerce the Plaintiffs, who they had arbitrarily singled out for scrutiny and draconian enforcement action, and to undermine their business.
Ms. Antoniani was likewise motivated by malice or improper purposes and by a primary purpose other than that of carrying the law into effect.
a) She adopted the [EC] Defendants’ motives as her own, and accordingly set out to further their objectives of wrongfully making an example of Mr. Whitty and the RPR Group regardless of the actual facts, and generally harming their business;
b) She sought to ingratiate herself to these Defendants and assisted these Defendants’ efforts to cover up their wrongdoing in order to expand her own retainer and increase her billable hours on the file during a period when she was facing personal financial challenges related to a new business venture (a café);
c) She stepped outside her role as a prosecutor and assisted the [EC] Defendants with their efforts to target the Plaintiffs under s. 17 of CEPA in furtherance of this purpose; and
d) She directed the second search warrant to be executed in the absence of an honest belief that there was any lawful justification for the search and with reckless indifference to the facts.
- RPR Environmental Inc. and Patrick Whitty rely on the particulars of malice or improper purposes described elsewhere in this Statement of Claim. In addition, these Plaintiffs plead that Ms. Antoniani continued the prosecution in the absence of an honest belief in the accuseds’ guilt, with reckless indifference to the truth and in spite of knowledge of the truth, because she was driven to secure a guilty verdict in order to satisfy the demands of Environmental Enforcement officials.
[45] The Plaintiffs’ allegation, that Antoniani was motivated by malice, is thin. First, with respect to their submission that I infer malice, I am guided by the following comments from the Supreme Court of Canada in Miazga, at paras. 88-89:
To permit an inference of malice from absence of reasonable and probable grounds alone would nullify the very purpose of the malice requirement in an action for malicious prosecution and risk subjecting Crown prosecutors to liability when they err within the boundaries of their proper role as “ministers of justice”.
In summary, the malice element of the test for malicious prosecution will be made out when a court is satisfied on a balance of probabilities, that the defendant Crown prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a “minister of justice”. The plaintiff must demonstrate on the totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice such that he or she exceeded the boundaries of the office of the Attorney General. While the absence of a subjective belief in reasonable and probable cause is relevant to the malice inquiry, it does not dispense with the requirement of proof of an improper purpose.
[46] In the circumstances, however, I find that it is not plain and obvious that there is an absence of reasonable and probable grounds, as alleged by the Plaintiffs in the Statement of Claim, to demonstrate that Antoniani deliberately intended to subvert or abuse the office of the Attorney General, or otherwise giving rise to a finding of malice.
[47] Second, the Plaintiffs’ allegations with respect to Antoniani’s improper purposes, while also thin, are not unsupported by the necessary material facts.
[48] In coming to this conclusion, I am guided by the following comments from the Ontario Court of Appeal in Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2013 ONCA 683, O.J. No. 5117. In paras. 59-61, the Court stated:
The pleading is disorganized and prolix, and must be brought into conformity with the ruling in the previous section of these reasons. That said, in our view the specific factual allegations in paras. 54 and 61 of the statement of claim are sufficient to pass muster as a valid pleading of misfeasance in public office. The pleading makes allegations about specific public officials and their specific unlawful purpose in acting as they did: L.(A.) v. Ontario (Minister of Community and Social Services) (2006), 2006 39297 (ON CA), 83 O.R. (3d) 512, leave to appeal refused, [2007] S.C.C.A. No. 36, at para. 37.
We are alive to the problem pointed out by the Federal Court of Appeal in St. John’s Port Authority v. Adventure Tours Inc., 2011 FCA 198, per Stratas J.A., at para. 63 that a bald pleading is especially problematic in cases alleging abuse in public office. Stratas J.A. pointed out that: “it is all too easy for a plaintiff who is aggrieved by governmental conduct to assert, perhaps without any evidence at all, that “the government” acted, “knowing” it did not have the authority to do so, “intending” to harm the plaintiff.” That said, we do not agree with the motion judge that the pleading is “completely bald”. This pleading is detailed and as fact-specific as the appellant can be at this stage of the proceeding. The allegations link to actual events, documents and people.
To quote Moldaver J.A., in Granite Power at para. 40, on the facts pleaded, including the particulars, “there exists a narrow window of opportunity for [the appellant] to make out its claim in misfeasance.” The appellant cannot provide more particulars now because many of the necessary supporting facts would be within Ontario’s knowledge and control, and there has been no document production or discovery.
[49] The pleadings that Antoniani sought to ingratiate herself with the EC Defendants, and that she sought to expand her retainer as a result of personal financial difficulties, are very serious allegations. It cannot be said, however, based on the paragraphs in the Statement of Claim referred to above, that the pleading is entirely bald. In my view, there is enough detail to allow the pleadings to stand particularly in light of the fact that many of the necessary supporting facts would be within the Defendant’s knowledge and control and as of yet there has been no document production or discovery.
[50] In summary, read as a whole and taking the facts pleaded as true or reasonably capable of proof, it is not plain and obvious that the facts pleaded by the Plaintiffs cannot lead to a finding of malice against Antoniani. They are not unacceptably bald. For these reasons the claim for malicious prosecution is not struck.
2. Should the action be struck because it is scandalous, frivolous, vexatious or is otherwise an abuse of process pursuant to Rules 21.01(3)(d) and 25.11?
[51] Antoniani submits that the Statement of Claim demonstrates a complete lack of material facts that would give rise to a tort claim against her, and is therefore frivolous and vexatious. She submits that the Statement of Claim constitutes bare allegations of an improper purpose, and should be struck as scandalous, particularly because they allege intentional or malicious conduct.
[52] I have already found above that the allegations in the Statement of Claim relating to malicious prosecution ought not to be struck. As a result, I need address this issue any further.
3. Are the Plaintiffs’ claims against Antoniani out of time?
[53] Antoniani argues that each of the Plaintiffs’ claims are statute-barred by the Limitations Act, 2002. In my decision of March 7, 2014, I found that the issue of discoverability would be more appropriately dealt with at a later stage in the proceeding. I am still of this view.
[54] I agree with the Plaintiffs that where facts are in dispute relating to the issue of discoverability, a limitation-period issue is better left to the trial judge, who will have a complete record on which to base his or her decision. As I held in the March 2014 decision, Antoniani is free to raise limitation-period defences in this regard.
4. Other Arguments
[55] Antoniani also submitted, when submissions were originally heard on May 16, 2013 that she adopted certain arguments made by the EC Defendants. The EC Defendants ultimately did not proceed with their motion in this regard and did provide submissions with respect to the issues of collateral attack, parallel proceedings before the Federal Court and the suitability of Charter claims. Antoniani also did not raise these issues in her Notice of Motion dated June 11, 2014. The within Order is made on a without prejudice basis for Antoniani to raise such arguments should she deem it desirable to do so and in the discretion of any future motions judge.
disposition
[56] Antoniani’s motion is therefore dismissed. In the circumstances, the Plaintiffs are entitled to costs. I have heard sufficient submissions with respect to the issue of costs. The Plaintiffs are entitled to their costs not only with respect to this motion but also with respect to the previous motion concerning the transfer issue that was opposed by Antoniani in which the Plaintiffs were successful and I have also had regard to all of the other motions and positions taken by Antoniani at the various motions and case conferences.
[57] In totality, the Plaintiffs are entitled to the amount of $15,000.00 inclusive. It is reasonable though to make the costs payable in the cause, given the Plaintiffs’ contribution to the overall confusion concerning pleadings and the nature of the pleadings.
T. McEwen J.
Released: October 1, 2014
COURT FILE NO.: CV-13-488748
DATE: 20141001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICK WHITTY, RPR ENVIRONMENTAL INC., 1049585 ONTARIO INC. o/a RPR ENVIRONMENTAL SERVICES, and 876947 ONTARIO LIMITED
Plaintiffs
– and –
EDWARD NICHOLAS WELLS, EDWARD GLENN WELLS, DIANA BALL, LUKE CAYLEY, ROB FORTIN, ERIN GILMER, JEFFREY GREEN, MELANIE GREGORICH, JULIE HORVATH, REBECCA HUEHN, DOUGLAS LAING, BRADLEY MAY, JOHN MILLER, AMRICK SHERGILL, MARK VANDERLAAN, SANDRA ANTONIANI, and ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR DECISION
T. McEwen J.
Released: October 1, 2014