ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-00422511
DATE: 20141203
BETWEEN:
MARTINS UCHENNA ASAGWARA
Plaintiff
– and –
MONEY MART, NATIONAL MONEY MART COMPANY and DOLLAR FINANCIAL GROUP INC.
Defendants
Self-represented
Marvin J. Huberman, for the Defendants
HEARD: November 10, 12 and 13, 2014
REASONS FOR DECISION
justice Matheson
[1] The plaintiff sues for slander, malicious prosecution and intentional infliction of mental distress. These claims relate to the plaintiff’s arrest at a Money Mart store in 2006, on charges that were ultimately stayed.
[2] The plaintiff testified as his sole witness at trial. A number of witnesses were called by the defendant as mentioned in these reasons for decision.
[3] Although three defendants are listed in the title of proceedings, only two legal entities are sued. Most relevant to this claim is the corporate defendant National Money Mart Company. The arrest at issue took place in one of its stores. The named defendant “Money Mart” is actually a business name, registered by National Money Mart Company, and not a separate legal entity. Lastly, the defendant Dollar Financial Group Inc. is the parent company of National Money Mart Company. David Windler of National Money Mart Company testified at trial about the corporate organization of that company, as well as its parent company Dollar Financial Group Inc.
Events giving rise to claim
[4] The plaintiff is a well-spoken 35-year-old who currently lives in Toronto. He emigrated from Nigeria at age 18 and completed high school in Manitoba. He has since taken courses in the arts at community college and at Ryerson University, but has not completed a degree. At the relevant time, he was an aspiring model and actor.
[5] In May 2003, the plaintiff and his manager/partner Mandeep Kler obtained an order from the then Ontario Rental Housing Tribunal in relation to a rent dispute with their landlord. The Tribunal ordered that the landlord, Sherbourne Estates Management, give them a rent abatement and reimburse certain expenses in a total amount of $3,495 (the “Order”).
[6] In June 2003, the plaintiff and Mandeep Kler filed a notice of garnishment with the Toronto Small Claims Court against Scotia Bank, the landlord’s bank. The plaintiff testified that despite this step the amount owing remained unpaid, with the potential exception of $211.41 mentioned in his affidavit in support of the garnishment. He cannot now recall the background regarding that figure, which was described in his 2003 affidavit as the total amount received since the Order was granted.
[7] Later in June 2003, the landlord requested a hearing in Small Claims Court regarding the garnishment. The notice of motion requesting the hearing asserted that the majority of the amount owing under the Order had been offset against rental arrears and the balance owing was paid to Mandeep Kler. The notice of motion was addressed only to Mandeep Kler.
[8] Danielle Peck, an Ontario lawyer, testified at trial. She was an associate with the law firm Aird & Berlis LLP in 2003. She acted as counsel to the landlord at the hearing in the Toronto Small Claims Court. Her reporting memo referred to Mandeep Kler as the former tenant, not the plaintiff. This is consistent with certain other Small Claims Court documentation filed by the plaintiff when the garnishment was requested in 2003. It appears from the evidence before me that the plaintiff did not receive notice of the hearing.
[9] The decision of the Small Claims Court judge, rendered in September 2003, concluded that the Order had been paid in full. I accept the plaintiff’s evidence that he was unaware of this at the time.
[10] Some years later, the plaintiff was living in Edmonton. On February 14, 2006, the plaintiff went to a Money Mart store in Edmonton and tendered a cheque to be cashed. The cheque was in the amount of the Order, $3,495. It showed the issuer as the landlord Sherbourne Estates Management. It bore the cheque number 1229. It was dated January 20, 2006, and was payable to Uchenna Asagwara, i.e., the plaintiff’s middle and last name.
[11] The plaintiff had used the services of Money Mart on a number of prior occasions. The plaintiff’s brother was also a registered customer of Money Mart.
[12] The clerk that served the plaintiff that day, Twilla Coates, testified at trial. She testified that the plaintiff presented her with the cheque, which he had endorsed, and she looked up the name on the cheque on her computer. It is now clear that the computer record she found was for the plaintiff’s brother, not the plaintiff. She did not know this at the time. But since the names did not exactly match, she asked the plaintiff some questions and asked for identification. She wrongly concluded that it was the correct record.
[13] Ms. Coates then took the cheque away from the public area and made a phone call. She did so because of the amount of the cheque. Money Mart had a corporate policy that for all cheques over a certain amount the clerk was required to call the cheque issuer to confirm the validity of the cheque before it would be cashed.
[14] Ms. Coates testified that when she called the issuer of the cheque she was told that it was not a valid cheque. She therefore came back into the public area and asked the plaintiff to continue to wait. She left again and called the police. Very shortly thereafter, two police officers arrived and the plaintiff was arrested for alleged fraud under $5,000 and uttering a forged document.
[15] The plaintiff testified that he asked Ms. Coates why she called the police and she said that she was a professional and was only doing what she had been told to do. At trial, Ms. Coates did not recall making this statement, but testified that she called the police because of her duty to protect her employer from cheque fraud.
[16] The next day, Ms. Coates added a note to the file to the effect that the plaintiff had confirmed that she had the right file.
[17] One of the attending police officers testified at trial – Constable Dilullo. His trial evidence about what happened on February 14, 2006, was not materially different from the plaintiff’s evidence. He asked the plaintiff some questions and the plaintiff mentioned that he had won a settlement (i.e., the Order) against Sherbourne that allowed him to garnish for the amount on the cheque. At the time, the plaintiff was carrying both a current and an expired driver’s licence, which is not permitted. The expired licence was therefore seized, and the police also took the cheque. The plaintiff was charged and later released on his own recognizance.
[18] The plaintiff testified that after he was released he took steps to address the charges against him. He went back to Ontario. He learned of the Small Claims Court decision ruling that the Order had been paid in full.
[19] More than two years later, in June 2008, the plaintiff brought a motion in the Small Claims Court to reopen the garnishment on the grounds that he had not been given notice of the hearing. That motion was dismissed, with a brief written endorsement referencing the doctrine of laches given what was then a five-year period since the garnishment had been terminated in 2003. The plaintiff then commenced an action in the Toronto Small Claims Court in December 2008, which was dismissed as abandoned in July 2009.
[20] By 2009, the plaintiff was registered at Ryerson University. He was able to obtain two types of assistance through Ryerson. He obtained some legal advice through a clinic. As a result of the legal advice, he retained counsel in Edmonton to represent him in the criminal proceedings. He testified that he provided that counsel with all of his materials regarding the Order, the garnishment and the subsequent Small Claims Court proceedings. Ultimately, the charges against him were stayed. The trial, which had been scheduled for April 2010, did not proceed.
[21] The second type of assistance the plaintiff received at Ryerson related to his mental health. The plaintiff testified that he began to see various physicians. He was referred to a psychiatrist. In April 2009, the plaintiff was diagnosed as having reactive psychosis, a form of schizophrenia. He has since seen several medical professionals to assist him with his condition.
[22] This was not the first reference to mental health in the trial evidence. The plaintiff testified that in 2004 his relatives, under a pretense, got him to go to a hospital. The detailed hospital records are no longer available from that time, but there is a single hospital record from 2004 that describes the plaintiff as an outpatient for “mental health”.
[23] The plaintiff testified that once he was diagnosed in 2009, he was put on medication to assist with his schizophrenia. Unfortunately, the medication also caused him to have skin rashes on his face. At a later stage, he switched to a different medication, which reduced this problem. However, he testified that his career as a model was negatively affected by this side effect.
[24] The defendants introduced evidence from an expert psychiatrist, Dr. Mount. Dr. Mount’s opinion is that the arrest and related events did not cause or exacerbate the plaintiff’s mental health. Dr. Mount emphasized that if the arrest had been significant to the plaintiff’s mental health, he would have expected that the plaintiff would have received psychiatric treatment after the arrest. But there are no medical records for the period from 2006 to 2009. As well, he would have expected that the numerous medical records commencing in 2009 would have highlighted the arrest as a significant event, and they do not. It is only mentioned in passing.
[25] The plaintiff called no expert evidence. In final argument, he indicated that the reason he did not seek medical assistance between the arrest and his treatment in 2009 was that he had misplaced his health card.
Police investigation
[26] Constable Dilullo testified about the police investigation of the charges against the plaintiff. A statement was obtained from Ms. Coates on the day of the arrest. She briefly recounted her steps, concluding with the statement, “I called the police and had the person (Uchenna) arrested”. This statement forms part of the reason for the plaintiff’s malicious prosecution claim against National Money Mart. Despite her unfortunate choice of words, it was not Ms. Coates’ decision to make the arrest. The police made that decision.
[27] In April of 2006, Constable Dilullo re-attended at the Money Mart store to follow-up on the question of identification. At that time, he determined that the plaintiff had been mis-identified as his brother. He obtained the correct customer records for the plaintiff, which he believed disclosed some significant additional information.
[28] The plaintiff’s customer records showed that on February 11, 2006, three days before the incident in question, he had gone to a different Money Mart store in Edmonton and attempted to cash a similar cheque. He had a cheque in the same amount ($3,495), with the same cheque number (#1229), but this cheque was showing as issued by a related company (O’Neill Property Management) and was unsigned. Since it was unsigned, the transaction went no further but National Money Mart made a record of it.
[29] With respect to going to two different Money Mart stores, the plaintiff testified at trial that one was close to his home and the other close to his work. The plaintiff was also asked at trial how he had come to have each of these cheques, with the same cheque number and in the same amount. He did not provide a clear response.
[30] Ms. Coates testified that she was surprised to learn of the misidentification, which came to her attention when Constable Dilullo returned in April 2006. She believed that the plaintiff had confirmed the identification on February 14, 2006. However, she testified that even if the correct record had been located she would still have phoned the cheque issuer, given the amount of the cheque, and the subsequent events would still have occurred.
[31] The police also made inquiries of the cheque issuer and the issuing bank. The landlord was by then controlled by another company, Metcap Living Management Inc. The police spoke to Metcap, which said the cheque did not exist on the records and was therefore a counterfeit. The issuing bank said that the bank account showing on the cheque existed but had been closed between the date of the cheque and the date the plaintiff attempted to cash it. As well, the bank indicated that the bank accountholder was different, though it would not disclose the actual accountholder’s name.
[32] Constable Dilullo testified that at the conclusion of his investigation in 2006 he remained of the opinion that the plaintiff had knowingly attempted to cash a fraudulent cheque. Constable Dilullo was not involved in the decision in 2010 to stay the charges.
Summary judgment
[33] The defendants brought an unsuccessful motion for summary judgment in 2012. In September of 2012, Justice Pattillo dismissed that motion. He decided that the evidence was insufficient to grant summary judgment at that stage, and the issues of limitation period and malice had to be determined at trial.
[34] The plaintiff suggested that as a result of Justice Pattillo’s decision, the only issues that had to be addressed at trial were malice and the limitation period defence. However, Justice Pattillo’s oral reasons show that he did not make determinations that would relieve the plaintiff from proving all aspects of his claim at trial. The plaintiff did proceed to introduce evidence on other issues in any event.
Discussion
[35] Three causes of action are alleged:
(i) slander;
(ii) malicious prosecution; and,
(iii) intentional infliction of mental suffering.
[36] The third cause of action was not pleaded. Defendants’ counsel made the appropriate objection, but proceeded to deal with that claim, as will I.
[37] The plaintiff also made some submissions about the Bills of Exchange Act, R.S.C. 1985, c. B-4 (ss. 5, 48, 136 and 137), the Creditors’ Relief Act, R.S.O. 1990, c. C.45 (s. 3) the Conveyancing Law of Property Act, R.S.O. 1990, c. C. 34 (s. 53), the Criminal Code, R.S.C. 1985, c. C-46 and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (s. 13). However, this legislation does not assist the plaintiff in advancing his claims in this action.
[38] In addition to defending the above claims on the merits, the defendants advance a defence based on the Limitations Act, 2002, S.O. 2002, c. 24.
[39] Lastly, there is a threshold issue with respect to the claim against the defendant Dollar Financial Group Inc., which I will deal with first.
Dollar Financial Group Inc.
[40] Based on the trial evidence, it is clear that the store in which the arrest occurred is operated by the defendant National Money Mart and Ms. Coates is an employee of that company, not its parent company Dollar Financial Group Inc. Further, Mr. Windler testified that the Dollar Financial manual was not used at National Money Mart.
[41] The plaintiff introduced evidence about only one connection between his claim and Dollar Financial Group Inc. One of the documents introduced at trial refers to Dollar Financial’s policies on document shredding in a trailer at the end of the document. While this reference is in the document, it is not sufficient to create liability on Dollar Financial Group Inc., especially because document shredding is not relevant to the plaintiff’s claim.
[42] Given the trial evidence of Mr. Windler and Ms. Coates, the plaintiff has not proved that Dollar Financial was involved in his situation in any way that would give rise to liability. This action is therefore dismissed as against Dollar Financial Group Inc.
[43] The balance of my reasons therefore relate only to the claims against the other defendant, National Money Mart Company.
Slander
[44] The plaintiff sues for slander because Ms. Coates told the police and other National Money Mart employees that the plaintiff was engaged in cheque fraud, or words to that effect. At trial, there was evidence that at least one other employee was aware of the allegation, in addition to the police.
[45] As set out by the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, the plaintiff in an action for defamation is required to prove three things, after which falsity and damage are presumed:
(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
(2) that the words in fact referred to the plaintiff; and,
(3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.
[46] In this case, there is no significant dispute about these three requirements. There is no doubt that the allegation of cheque fraud referred to the plaintiff and was published to at least three other people (another employee and the police). Nor is there any real issue that the impugned words were defamatory in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.
[47] The plaintiff has therefore satisfied these requirements. I then turn to the question of defences. Although the defendants advance a number of defences, one is particularly apt, specifically qualified privilege. This case falls squarely within that defence, subject only to the question of malice.
[48] Qualified privilege attaches to the occasion upon which the communication is made. Where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it, it is a privileged occasion: Haas v. Davis, 1998 14642 (ON SC), [1998] 37 O.R. (3d) 528, [1998] O.J. No. 331 (Ont. Gen. Div.) citing Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3 at p. 5 [headnote], 126 D.L.R. (4th) 609.
[49] In this case, Ms. Coates had a duty to communicate to the police about potential cheque fraud and the police had a corresponding interest and duty to receive that information. This is also the case with respect to the communications on the subject within National Money Mart. The elements of qualified privilege have therefore been satisfied.
[50] The defence of qualified privilege is defeated by malice. Malice is commonly understood as spite or ill-will, and also includes any indirect motive or ulterior purpose: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at para. 145.
[51] It is the plaintiff’s onus to prove malice. In this case, the plaintiff relies upon Ms. Coates’ failure to correctly identify him. When she called the police, she had wrongly pulled up his brother’s file, rather than his. He submits that Ms. Coates knew he was not the right person and therefore must have been motivated by malice.
[52] Ms. Coates’ trial testimony showed that she had an honest, albeit wrong, belief that she was using the correct Money Mart customer records on February 14, 2006. She did not hold any ill-will toward the plaintiff, and was just doing her job. Malice has therefore not been proved.
[53] The defence of qualified privilege therefore stands, and the slander claim is unsuccessful.
Malicious prosecution
[54] As set out by the Supreme Court of Canada in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, at para. 42, to succeed in an action for malicious prosecution, the plaintiff must prove the following:
(i) the proceedings must have been initiated by the defendant;
(ii) the proceedings must have terminated in favour of the plaintiff;
(iii) there must be the absence of reasonable and probable cause; and,
(iv) there must be malice, or a primary purpose other than that of carrying the law into effect.
[55] The plaintiff must also have suffered damage.
[56] With respect to the first requirement, the plaintiff relies upon the facts showing that the defendant’s employee Ms. Coates called the police, and relies upon what Ms. Coates said in her statement about having the plaintiff arrested. Despite her unfortunate choice of words in her statement, it was not Ms. Coates’ decision to make the arrest. The police made that decision. Giving information to the police is not enough to satisfy this element of the cause of action. Ms. Coates did not take part in the decision to lay charges and the police could and did conduct their own investigation: Lewis N. Klar et al., Remedies in Tort, looseleaf (Toronto: Carswell, 2014) vol. 1 at 15-18. The first requirement has not been satisfied.
[57] The second requirement is conceded – the criminal proceedings were terminated in favour of the plaintiff.
[58] With respect to the third requirement, the plaintiff is obliged to prove an absence of reasonable and probable cause. Reasonable and probable cause has both a subjective and an objective component: Klar, vol. 1 at 15-28.1.
[59] Objectively there was reasonable and probable cause both at the outset and as the investigation continued. At the outset, the steps taken to verify the cheque led to Ms. Coates being told that the cheque had never been issued. This information was not dependent on the incorrect identification of the plaintiff as his brother. Once the incorrect identification was sorted out, the police obtained additional information in support of reasonable and probable grounds. Specifically, the police learned that the plaintiff had attempted to cash an unsigned cheque from a different company a few days before, with the same cheque number and the same amount, in satisfaction of the same debt. As well, the police had confirmed that the cheque was not on the record of the issuer, that the account number on the cheque was for a different entity and that the account had been closed.
[60] Based upon Constable Dilullo’s evidence it is clear that the subjective component is met.
[61] With respect to the fourth requirement, as with the slander claim, malice has not been proved.
[62] Lastly, the plaintiff must show that he suffered damage. He relies upon his health problems and the side-effects of his medication for schizophrenia.
[63] There is evidence that shows that the plaintiff had already been seen for mental health issues before the events in February 2006 at the Money Mart store. The plaintiff acknowledges that he had health issues in 2004, but he did not regard them as mental health issues. However, the 2004 hospital record describes him as a mental health outpatient. There was then a period of years between that event and the plaintiff’s diagnosis with schizophrenia in April 2009. The only expert evidence put forward at trial was the evidence of Dr. Mount. Based upon a review of the plaintiff’s medical records, he concluded that the arrest was not the cause of the plaintiff’s illness, or an aggravating factor. Further, it is significant that the many medical records commencing in 2009 do not identify the 2006 arrest as significant to the plaintiff’s mental health issues. Even considering the plaintiff’s submission about his health card, the plaintiff has not been proved that the arrest and prosecution caused these conditions, or aggravated them.
[64] The requirements for this claim have therefore not been satisfied.
Intentional infliction of mental suffering
[65] To succeed in an action for intentional infliction of mental suffering, the plaintiff must demonstrate that the defendant committed: (1) flagrant or outrageous conduct; (2) calculated to produce harm; (3) resulting in a visible and provable illness: Leschyna v. CIBC World Markets Inc., [2005] O.T.C. 1135, 144 A.C.W.S. (3d) 992, at para. 27.
[66] It is understandable that the plaintiff is unhappy about the conduct of the defendant in contacting the police. As a result, the plaintiff was charged with a criminal offence and had to go through the process of defending himself up until the time when the charges were stayed. However, the defendant’s conduct was not flagrant or outrageous or calculated to produce harm. The first two requirements of this claim are therefore not satisfied.
[67] Further, the plaintiff has not proved that the defendants were the cause for his medical conditions, as discussed above.
[68] As the required elements of this claim have not been satisfied, this claim is also unsuccessful. In the circumstances, I need not deal with the defendant’s objection that this claim was not claimed in the statement of claim and should therefore not be considered at all.
Limitation period defence
[69] This action was commenced on March 18, 2011, about five years after the events in question. The plaintiff relies on s. 7 of the Limitations Act, 2002 to suspend the two-year limitation period that otherwise applies to his claim.
[70] Section 7(1) provides that the two-year limitation period does not run during any time that the plaintiff was “incapable of commencing a proceeding… because of his or her physical, mental or psychological condition” and is not represented by a litigation guardian.
[71] This provision must be considered in the context of section 7(2), which provides that a person shall be presumed to be capable unless the contrary is proved. The plaintiff is therefore presumed to be capable and must prove otherwise.
[72] The plaintiff submits that he felt handicapped by his medical condition and pressure about the criminal charges and their potential impact on his immigration status. However, the trial evidence does not support a finding under s. 7(1). To begin with, the plaintiff did not see a physician in the period following the arrest, for about three years. Even considering the explanation about losing his health card, the presumption that he was capable has not been displaced. Most significantly, the plaintiff was able to commence Small Claims Court proceedings in 2008, showing he was capable of doing so years before this action was commenced.
[73] The plaintiff has therefore not proved that he was incapable and cannot rely on s. 7(1). The limitation period for this claim has therefore passed.
Judgment
[74] This action is therefore dismissed. If the parties are unable to agree on costs, the defendants shall make their submissions by brief written submissions together with a costs outline to be delivered by December 19, 2014. The plaintiff may respond by delivering brief written submissions by January 19, 2015.
Justice Matheson
Released: December 3, 2014
COURT FILE NO.: CV-11-00422511
DATE: 20141203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARTINS UCHENNA ASAGWARA
Plaintiff
– and –
MONEY MART, NATIONAL MONEY
MART COMPANY and DOLLAR
FINANCIAL GROUP INC.
Defendants
REASONS FOR DECISION
Justice W. Matheson
Released: December 3, 2014