Court File and Parties

Court File No.: 06-CV-35434 Date: 2015-10-27 Ontario Superior Court of Justice

Between: Frank D’Addario Responding Party/Plaintiff

– and –

Betty Smith and Chris Napior Moving Party/Defendants

Counsel: Joseph Griffiths, for Responding Party/Plaintiff; Responding Parties/Defendants by Counterclaim Ronald Caza/Jeff Saikaley, for the Moving Parties/Defendants; Moving Parties/Plaintiffs by Counterclaim

-and between-

Betty Smith and Chris Napior Moving Parties/Plaintiffs by Counterclaim

-and-

Frank D’Addario and Ferne D’Addario Responding Parties/Defendants by Counterclaim

Heard: October 26, 2015 Before: Beaudoin J.

Decision on a Motion

[1] The defendants/plaintiffs by counterclaim bring this motion of the following relief:

1. dismissing the malicious prosecution action as against the defendants, Betty Smith and Chris Napior;
2. an order withdrawing the defence of qualified privilege and the issue of actual malice from the jury.

Motion for a Non-Suit

[2] A motion for non-suit in modern practice is made by the defendant, contending that the trier of fact should not proceed to evaluate the evidence in the normal way, that is, to say on a balance of probabilities, but should dismiss the action. The defendant must satisfy the trial judge that the evidence is such that no jury, acting judicially, could find in favour of the plaintiff. The issue is whether there is some evidence to support the claim; if there is, the issue goes to the jury and if there is none, it does not.[^1]

[3] The test for a non-suit is repeated in D. K. v. Miazga 2003 SKQB 451, (2003), 234 D.L.R. (4th) 578, at paras. 16 and 17:

The Non-suit Test and the Relevant Considerations

16 The general legal test to be applied in determining non-suit applications is well established. It is whether a prima facie case has been made out at the conclusion of the plaintiffs’ case in the sense that a reasonable trier of fact (a judge or properly instructed jury) could find in the plaintiffs’ favour on the basis of the uncontradicted evidence adduced. Where the nature of the case requires the drawing of inferences of fact from other facts established by direct evidence, the test includes the question of whether the inferences that the plaintiffs seek could reasonably be drawn from the direct evidence adduced if the trier of fact chooses to accept the direct evidence as fact.

17 I use the term prima facie case to indicate that the applicants have a lesser onus than having to demonstrate the absence of “any” evidence on a material issue. The case law clearly establishes that the applicants need only demonstrate the absence of “sufficient” evidence, which if left uncontradicted, could satisfy a reasonable trier of fact that the case has been made out on a balance of probabilities. The ruling on a non-suit motion is a question of law. The determination of the credibility or believability of the evidence is a question of fact to be subsequently determined in the action if the non-suit application fails.

I previously dealt with this issue in Nahas v. Haddad, 2013 ONSC 6678, [2003] O. J. No. 4824 at paras. 4, 6, 7, and 8:

The Court’s Jurisdiction to hear a Motion for a Non‑Suit

4 The Court of Appeal addressed this issue in FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. 2007 ONCA 425 at para. 12:

Before addressing Robert Laba's submission, I want to say a few words about non-suit motions in civil non-jury trials. The term "non-suit" refers to a motion brought by the defendant at the close of the plaintiff's evidence to dismiss the action on the ground that the plaintiff has failed to make out a case for the defendant to answer. Neither the Courts of Justice Act, R.S.O. 1990, c. C.43, nor the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, specifically provides for non-suit motions, but judges continue to have a recognized jurisdiction to entertain these motions.

6 The Defendant admits that he did not make an election at the close of the Plaintiff’s case because at that time he did not realize the effect of section 108(2) of the Courts of Justice Act on the plaintiff’s claims but that nothing precludes the motion being brought at this time.

7 At page 149 of the same text cited by the plaintiff, the author refers to this test from Arendale v. Federal Building Corp. Ltd. (1962), 35 D.L.R. (2d) 202 (Ont. C.A.):

The Defendant must satisfy the trial judge that the evidence is such that no jury, acting judicially, could find in favour of the plaintiff.

8 If there are finding of facts to be made, I agree that the better course is for the trial judge to leave these to the jury to decide and the trial judge should wait to rule on the motion. In this case however, the Defendant argues that even if all of evidence of the plaintiff was accepted as true there could be no finding of liability on the breach of contract claim. Moreover, if an appeal were taken, that Court would have all of the evidence before it. I conclude that there is no basis for deferring my decision.

[4] As Ms. Smith and Mr. Napior undertook to opposing counsel to call Ms. Smith and Mr. Napior as witnesses, they could not proceed with a motion for non-suit at the close of the plaintiff’s case. Ms. Smith and Mr. Napior are therefore bringing their motion now that the evidence has concluded. Their failure to bring their non-suit motion at the close of the plaintiff’s case is not fatal.

[5] Ms. Smith and Mr. Napior submit that, in applying for a non-suit test, there can be no finding of liability on the claim for malicious prosecution.

Malicious Prosecution

[6] In Nelles v. Ontario, [1989] 2 S.C.R. 170, the Supreme Court of Canada held that in an action for malicious prosecution, the plaintiff must establish, on a balance of probabilities, each of the following four (4) elements:

• The proceedings must have been initiated by the defendant;
• The proceedings must have terminated in favour of the plaintiff;
• There is an absence of reasonable and probable cause; and
• There is malice, or a primary purpose other than the carrying of the law into effect.

[7] The Court held that failure to establish any of these four (4) elements is fatal to the plaintiff’s action. The plaintiff’s burden is a difficult one to meet and the plaintiff is held to a very high standard of proof to avoid a non-suit or directed verdict. At page 197, the Court stated:

By way of summary then, a plaintiff bringing a claim for malicious prosecution has no easy task. Not only does the plaintiff have the notoriously difficult task of establishing a negative, that is the absence of reasonable and probable cause, but he is held to a very high standard of proof to avoid a non-suit or directed verdict (see Fleming, op. cit., at p. 606, and Mitchell v. John Heine and Son Ltd. (1938), 38 S.R. (N.S.W.) 466, at pp. 469-71). Professor Fleming has gone so far as to conclude that there are built-in devices particular to the tort of malicious prosecution to dissuade civil suits (at p. 606):

The disfavour with which the law has traditionally viewed the action for malicious prosecution is most clearly revealed by the hedging devices with which it has been surrounded in order to deter this kind of litigation and protect private citizens who discharge their public duty of prosecuting those reasonably suspected of crime. [Emphasis mine]

[8] Our Court in Correia v. Kohler Ltd. (ONSC), at para. 75, reversed on other grounds, 2008 ONCA 506 has described the public policy concerns that are the foundation for this difficult burden, this way:

I turn now to malicious prosecution. It is often observed that the bar is set very high in a claim of malicious prosecution and that a plaintiff has a very difficult burden to meet to make up the claim. It is in the public interest that this be the case because criminal prosecutions are brought not for the benefit of the prosecutor nor for the benefit of the complainant but rather for the common welfare of society. Second, because the standard of proof is very high in a criminal prosecution, there will be many prosecutions brought that do not succeed not because the charge is unfounded but because the standard of proof has not been met. That the threshold for success is high in an action of malicious prosecution therefore balances the public interest in bringing to justice persons who may have broken the law against the private interest of persons who have been wrongfully prosecuted without reasonable grounds and for oblique or improper motives.

[9] It makes sense that the bar is set very high; otherwise any citizen who gives a statement to the police that is not believed beyond a reasonable doubt could be exposed to a claim of malicious prosecution. In that case, very few citizens would come forward in the public interest.

[10] In Mirra v. Toronto Dominion Bank (ON SC), that court commented as follows at para. 25:

25 Furthermore, the action for malicious prosecution has always been “held on a tighter rein than any other in the law of torts [which may] explain why this action was never absorbed into the law of defamation” (Fleming, The Law of Torts, 9th ed. (Sydney: The Law Book Co. Ltd., 1998) at 673). The difficulty of making out a claim in malicious prosecution reflects the sound policy of protecting the good faith exercise of prosecutorial discretion from liability.

Who Initiated the Prosecution?

[11] At issue this motion is the first element of the tort of malicious prosecution; namely who initiated the prosecution ?

[12] The plaintiff maintains that if it is found that the defendants maliciously made false statements to the police and a criminal charge was subsequently laid, those false statements are sufficient in and of themselves to support a finding that they initiated the prosecution and the falsity of their statements is an issue for the jury to decide.

[13] The Defendants argue that the question of whether they lied to the police is irrelevant to the issue of who initiated the prosecution unless certain exceptional circumstances exist. They say their credibility is relevant only with regard to the third branch of the test; “reasonable and probable cause”.

[14] In Kefeli v. Centennial College of Applied Arts and Technology (ONCA) at para. 24, the Court of Appeal held that as a general rule, the court will view the police officer that laid the charge as being the person who initiated the prosecution in motion.

[15] The Court of Appeal went on to hold that only in exceptional circumstances will a private citizen or complainant be found to have initiated a prosecution for the purpose of a malicious prosecution action. To so find, the trier of fact must satisfy this three-part test:

a. the complainant desired and intended that the plaintiff be prosecuted;

b. the facts were so peculiarly within the complainant's knowledge that it was virtually impossible for the professional prosecutor or police officer to exercise any independent discretion or judgment in determining whether or not to lay the charge; and

c. the complainant procured the institution of proceedings by the professional prosecutor or the police officer, either by furnishing information relevant to the determination of whether or not a charge should be laid that he knew to be false, or by withholding information that he knew to be true, or both. [Emphasis mine]

[16] In McNeil v. Brewers Retail Inc., 2008 ONCA 405, [2008] O. J. No. 1990, the Court of Appeal commented on this test further. This case involved allegations of theft by an employee. On appeal, the focus of the argument was on initiation. At para. 47, The Court of Appeal cited, with approval, the decision of the House of Lords in Martin v. Watson [1996] A.C. 74 at 86:

Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.

[17] The defendant in that case had argued that this “virtually impossible” test was not met because it gave an entire tape containing exculpatory evidence to the police and the detective confirmed that an independent evaluation was conducted prior to laying the charges. The court rejected that argument and concluded at paras. 52 and 53 as follows:

52 In our view, this is not a case in which we must decide all the factors that could, in any particular case, satisfy the element of initiation. On the facts of this case, it was open to the jury to find that BRI knowingly withheld exculpatory information from the police which the police could not be expected to find and indeed did not find upon their review of the tapes. But for the withholding of this essential information, McNeil would not have been charged.

53 The facts here confirm that the police and the Crown relied wholly on BRI, which actively and deliberately misled them. Only a trained operator of the video monitor could properly review the tapes. The police were unable, through their own due diligence, to uncover the exculpatory evidence available to BRI prior to laying charges.

[18] In short, the withholding of exculpatory evidence by B.R.I. made it impossible for the police to exercise any independent judgment.

[19] The Court of Appeal had occasion to revisit the three part test set out in Kefeli in Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, (2003), 118 O.R. (3d) 481. In that case, an employee’s employment was terminated because his employer had alleged financial discrepancies. His was then he was charged criminally. Justice Lauwers, (in dissent on the issue of punitive damages only) said this about the test for initiation at paras. 31 and 32:

The Test for Initiation

31 In my view, it is necessary and fair to read the First Trial reasons and the Malicious Prosecution reasons together in considering this ground for appeal, since the trial judge does not repeat all his findings in both decisions, although there is significant repetition. The interposition of the First Appeal did result in an important shift in the trial judge’s assessment of the evidence from the First Trial reasons to the Malicious Prosecution reasons. That shift responds to this court’s First Appeal reasons and to the arguments of the parties to the trial judge at the re-trial. In the First Appeal reasons, Simmons J.A. discussed the application of the malicious prosecution test to the facts in this case, at para. 47:

It is well-established that a defendant may be found to have initiated a prosecution even though the defendant did not actually lay the information that commenced the prosecution. Although this court has not determined "all the factors that could, in any particular case, satisfy the element of initiation", it has held that a defendant can be found to have initiated a prosecution where the defendant knowingly withheld exculpatory information from the police that the police could not have been expected to find and did not find and where the plaintiff would not have been charged but for the withholding: McNeil v. Brewers Retail Inc., 2008 ONCA 405 at para. 52.

32 Simmons J.A. identified four elements that are required in this case to determine malicious prosecution: (1) whether Mr. Beaven “knowingly withheld exculpatory information from the police”; if so, (2) “whether the conduct of Mr. Beaven undermined the independence of the police investigation”; (3) “whether Mr. Beaven prepared his statements in a manner that misled the officers into not conducting their own search of the relevant records”; and (4) whether Mr. Beaven undermined “the independence of the decision-making process… to lay charges and prosecute”: First Appeal reasons, at paras. 51-53. There is no doubt that the trial judge was aware of these elements, since he cited para. 51 of the First Appeal reasons in the Malicious Prosecution reasons, at para. 33.

[20] The Court went to review the trial judge’s findings; specifically that the defendant in that case had failed to disclose information to the police which would have resulted in no charges being levelled against plaintiffs. The court found that the exculpatory evidence was withheld.

[21] The court went on to discuss the Kefeli case as well as McNeil: and at paras. 50 and 51, the Court said further:

50 The Township focuses and relies on the expression “virtually impossible”. But, some years later, this court rejected the “virtual impossibility” test in McNeil, at paras. 49-51, and concluded, at para. 52:

In our view, this is not a case in which we must decide all the factors that could, in any particular case, satisfy the element of initiation. On the facts of this case, it was open to the jury to find that BRI knowingly withheld exculpatory information from the police which the police could not be expected to find and indeed did not find upon their review of the tapes. But for the withholding of this essential information, McNeil would not have been charged. [Emphasis added.]

51 In my view, the element of initiation can be satisfied if the defendant knowingly withheld exculpatory information from the police that the police could not be expected to find in all the circumstances.

[22] The court then focused on the issue of the independence of the decision to prosecute. At para. 77, the court referred to the trial judge’s assessment of the evidence.

77 The trial judge’s assessment of the evidence was more comprehensive in his Malicious Prosecution reasons, at para. 47; the additional detail is telling:

The evidence of Mr. Beaven was that he had been instructed by his superior to dismiss Mr. Pate and offer clemency from criminal charges if he, Mr. Pate agreed to resign. He further gave evidence that he had been instructed to build a case against Mr. Pate, subsequent to this wrongful dismissal. Therefore, there is evidence that the Township initiated proceedings for "a reason other than simply bringing the law into effect." We also have the evidence of Officer Stokes that pressure was brought upon him by his superiors to lay charges. In fact, Officer Stokes described a very odd turn of events. He indicated that the criminal matters were turned over to another investigating officer, which he confirmed was very unusual, but it was done because "The Township had complained that I took too long to lay charges in this matter." He again confirmed that he laid the charges based upon the package of statements provided by Mr. Beaven as he believed the statements "would stand up in court". It was his evidence that the Municipality wanted charges laid, as this civil action had already been commenced. In fact, he was removed from the prosecution of this matter and was "written up", allegedly for his tardiness in deciding whether to lay charges. [Emphasis mine]

[23] The evidence of the police officers was critical in determining that they had been misled and that the independence of the prosecution and the decision-making process were undermined by the defendant BRI.

[24] The case law has identified very limited instances in which it will be impossible for the prosecutor or police to exercise any independent discretion in laying the charge.

[25] There are cases in which, given the nature of the complaint, it will be difficult, if not impossible for the police not to charge. As recognized by the Superior Court in Wood v. Kenedy (ON SC) at para. 51 and affirmed by the Divisional Court in St. Jacques v. Doyle (ON SCDC) at paras. 18-20 and citing Wood v. Kenedy; this is the case with a complaint of sexual assault made by a minor against a family member.

[26] The courts have emphasized that some measure of police discretion is possible unless the victim was the sole witness to the assault. Where there are other witnesses, the police have the discretion to interview them and to assess their credibility prior to laying a charge.

[27] The Superior Court has also suggested that a complaint of sexual assault by a person well known to the complainant and in respect of whom consent is objectively plausible, may limit or negate the police’s discretion to investigate. This makes sense: a complaint of sexual assault by a wife against her husband is one such example.

[28] This lead the Divisional Court to distinguish the decision in Wood, one of the rare cases in which a complainant was held to have initiated the proceedings, as a “considerably different” case.

[29] In Wood, there was an allegation of sexual assault on a 13 year old girl by her uncle. She was the only witness to the alleged assault. Furthermore, counsel for the defendants, including the girl, “did not take serious issue” with the contention that the girl’s actions, in making a “disclosure” to her friends, and repeating the allegations to a teacher, a C.A.S. worker and the police, could amount to instituting the proceedings. It was held she knew that when she was speaking to the police that criminal charges were likely to be laid. It was also held that the nature of the allegations were such that it was difficult, if not impossible, for the police to exercise any independent discretion or judgment. The police had little choice but to charge the uncle.

[30] More recently, in Chaudhry v. Khan, 2015 ONSC 1847, [2015] O.J. No. 1379, Justice O’Connor, reaffirmed that what is important when dealing with a “non-state agent” such as Ms. Smith and Mr. Napior, is whether the prosecution was nonetheless initiated as a result of independent discretion on the part of the authorities. In this regard, the evidence of the investigating officer was crucial. The following paragraphs are of importance:

Whether the prosecution was initiated by the defendant

11 Under the first element of the test for malicious prosecution, the plaintiff must establish that:

[T]he prosecution at issue was initiated by the defendant. This element identifies the proper target of that suit, as it is only those who were “actively instrumental” in setting the law in motion that may be held accountable for any damage that results [citation omitted] (Miazga at para. 53).

12 The first question that arises at this stage is under what circumstances a non-stage agent, such as Chaudhry, can be found to be the prosecutor. The general rule is that the police are treated as a prosecutor, and the court will consider the police officer who laid the charge as the person who set the prosecution in motion (Harrison v. Wicro Products, 2011 ONSC 1049, at para. 8 [Harrison]; Kefeli v. Centennial College of Applied Arts and Technology, [2002] O.J. No. 3023 (C.A.) at para. 24 [Kefeli])

13 However, in exceptional circumstances, a private citizen may be treated as the prosecutor. This may arise where:

a. the complainant desired and intended that the plaintiff be prosecuted;

b. the facts were so peculiarly within the complainant's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment; or if the complainant puts the police in possession of information which virtually compels an officer to lay an information; and

c. the complainant procured the initiation of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both (Kefeli at para 24; see also Harrison at para 8; and Mirra v. Toronto Dominion Bank, [2004] O.J. No. 1804, [2004] O.T.C. 365 (S.C.J.) at para. 35).

14 On the last point, the complainant’s deceit must be intended for the purpose of procuring a prosecution against the plaintiff (St. Jacques v. Doyle, [2008] O.J. No. 914, 165 A.C.W.S. (3d) 69 (S.C.J. Div. Ct.) at para. 17).

Application to this Case

15 In this case, I am easily satisfied that Khan desired and intended that Chaudhry be prosecuted. He went to the authorities with incriminating information that Chaudhry had threatened to burn down his house.

16 The important question is whether, despite Khan having furnished the relevant information to the authorities, the prosecution was nonetheless initiated as a result of independent discretion on the part of the authorities. In this regard, the evidence of officer Sebastian Cuoco (“Cuoco”), the investigating officer, is crucial. Cuoco testified that:

a. the decision to charge Chaudhry was that of police;

b. Cuoco exercised his own independent discretion to charge Chaudhry;

c. Khan did not specifically ask police to charge Chaudhry;

d. Khan did not subvert the police investigation in any way;

e. Khan did not place any pressure on Cuoco with respect to investigating or charging Chaudhry;

f. Khan did not deceive Cuoco in any way;

g. Through the course of his investigation, Couco did not discover any evidence concealed by Khan;

h. Nobody on behalf of Khan attempted, obstructed, interfered, or persuaded Cuoco to charge Chaudhry;

i. The Defendant did not obstruct or influence the investigation in any way;

j. During Cuoco’s investigation, he examined witnesses, namely, Ziad Anwar, Nabeel Khan, Faisal Malik, and Arifa Dar;

k. Ziad Anwar was the main witness for the prosecution; and

l. After examining these witnesses, Cuoco reasonably believed that there were reasonable and probable grounds that the offence had been committed by Chaudhry.

17 The evidence of officer Cuoco, which was uncontradicted on cross-examination, indicates that Khan did not intend to deceive the police, either by omission or commission, regarding the nature of the allegations against Chaudhry. Further, and importantly, Cuoco’s evidence clearly establishes that the police conducted an independent investigation before deciding whether to lay a charge against Chaudhry.

18 I agree with Khan’s position that the “but for” threshold advanced by Chaudhry is insufficient to establish this prong of the test. While it is true that the prosecution would not have been initiated but for Khan’s complaint to the police, the evidence shows that the decision to initiate the prosecution was nonetheless within the discretion of, and exercised by, the police in this case.

19 Therefore, Chaudhry has failed to prove the first element of the test on a balance of probabilities.

20 In light of the fact that all four elements of the test must be met in order for the plaintiff to succeed, a finding that any one element has not been made out is sufficient to find that Chaudhry has failed to establish the tort of malicious prosecution. Nonetheless, I will proceed to consider the remaining three elements of the test. [Emphasis mine]

[31] As set out above, in order to submit the malicious prosecution action against Ms. Smith or Mr. Napior to the jury, there must be some evidence that, if true, could lead the jury to reasonably conclude that the police were unable to exercise any independent discretion or judgment as result of their actions.

[32] I conclude that there is no evidence from which it could be reasonably inferred that Constable McRoberts was unable to exercise discretion or judgment. In fact, the only evidence is to the contrary.

[33] This was not the type of complaint (e.g., domestic assault or sexual assault on a minor) that results in a mandatory charge. There were eyewitnesses to the incidents which occurred in public places. At least one eyewitness, Mr. Napior, was interviewed by the police. Moreover, Ms. Smith’s complaint was not made against someone with whom she was intimate and in respect of whom her consent was objectively plausible. The evidence is uncontested that there was no intimate relationship between Ms. Smith and Mr. D’Addario.

[34] Constable Brooke McRoberts testified that she specifically inquired with Ms. Smith about her relationship to Mr. D’Addario. Constable McRoberts testified that, for policy reasons, when sexual assaults occur between parties that are dating or cohabitating, she effectively has no choice but to lay charges. Before taking her KGB statement, she followed a standard protocol that specifically warned Ms. Smith that she could be charged if she gave false information.

[35] In her interview with Mr. Napior, she also canvassed the relationship between Ms. Smith and Mr. D’Addario and was advised that they were not in a romantic relationship. She testified that she had no concerns about the veracity of his statement. She gave evidence about her investigation which she said took approximately one month. She contacted the Ottawa Police Service and they gave her their approval to investigate the Ottawa incidents. She dealt with a Detective Turnbull who advised that they had taken a statement from Ms Smith but had not gone further in their investigation. In cross-examination she conceded that Ms. Smith advised Constable McRoberts that two (2) additional eyewitnesses, Roberto and Giuseppe Sansone, were present on the evening of the first alleged sexual assault. She had asked Ottawa Police Services to follow-up but there was none. She did not feel that this was important to her investigation.

[36] She acknowledged getting a long letter from Betty Smith at some point and stated that it had no effect on her investigation and that she put in the file in the interest of full disclosure. She was aware of other incidents but felt that she didn’t need that evidence to lay the charges. Constable McRoberts testified that she conducted her own investigation and was satisfied in all of the circumstances, after interviewing Ms. Smith and Mr. Napior, that there were reasonable grounds to lay charges against Mr. D’Addario. She confirmed that she had full discretion to lay the charges and that she exercised that discretion after consultation with a supervising officer.

[37] She met with Mr. D’Addario’s lawyer in Huntsville on April 26th, 2004 before laying the charge. She received an e-mail from Ferne D’Addario date April 30th, 2006 complaining about the presence of Andrew Mayeda in court and advising her that Chris Napior and Robert Sansone were putting pressure on Frank D’Addario to provide shares to Mr Sansone. At the request of the D’Addario’s she had talked to Mr Mayeda on April 26th, 2004 and had found him to be polite and said that he had a right to be there as a reporter.

[38] She was surprised when she later learned that the charges had been stayed. The fact that the charges were stayed for whatever reason has no bearing on the question of who initiated the prosecution.

[39] The police could have taken further steps to interview the Sansones, and the fact that they did not do so was a matter of judgment and not within the control of Ms. Smith or Mr. Napior.

[40] The plaintiff put a number of questions to Ms. Smith about her involvement in the investigation and the information she provided to the police. He sought to have Ms. Smith admit that she had tried to influence the investigation, which she emphatically denied. More importantly, no such questions were put to Constable McRoberts who did not testify about interference or of any pressure being placed on her by the complainant.

[41] The plaintiff argues that the defendants should have disclosed to Constable McRoberts that they had provided different affidavits with respect to the events of July 14, 2005; that Constable McRoberts was not made aware of the full extent of the relationship that existed between the parties or that Mr. D’Addario had stayed at Ms. Smith’s cottage. This is not exculpatory evidence in relation to the fact of the assault. It may be relevant evidence with respect to the third branch of the test and in terms of assessing credibility; but it is not exculpatory evidence.

[42] Constable McRoberts was called as Mr. D’Addario’s witness. No transcript of Ms. Smith’s videotape statement was produced. The sole document was a summary of her statement prepared by Constable McRoberts. More critically none of this alleged lack of disclosure was presented to Constable McRoberts in examination in chief nor was she asked if her knowledge of these facts would have influenced her decision to lay the charges. Had these questions been put to Constable McRoberts, defendants’ counsel could have cross-examined her on this issue. It would be patently unfair to leave these suggestions with the jury when they were not presented to the officer who laid the charges. Moreover, none of this was pleaded in the Amended Amended Statement of Claim. The plaintiff relied solely on the fact that the allegations of sexual assault were fabricated.

[43] The plaintiff relies on a number of decisions that support his position that the mere provision of a false statement is sufficient to meet the test of initiation. One of these is the Wood decision, but even there, the court held at para. 55 that “the nature of her allegations were such that it was difficult, if not impossible, for the police to exercise any independent discretion or judgment, and in the circumstances, the police had little choice but to charge Robert Wood.”

[44] The plaintiff relies on Drainville v. Vilchez, 2014 ONSC 4060, [2014] O.J. No. 3311, where Justice Howden said this at para. 7:

7 Normally the person or entity against whom a malicious prosecution suit is brought is the police or the Crown. However, there are rare cases like his one where the complainant has been the defendant, without creating even a ripple on the surface of the lake of analytic discipline. In fact, this tort arose out of private litigation, not actions against public officials. The target of the suit is the person who was “actively instrumental in setting the prosecution in motion”. In this case, it is the defendant who initiated and was actively instrumental in initiating proceedings against the plaintiff when he complained to the police about the alleged actions of the plaintiff. It meets the elements of the exception to the general rule found in Kefeli v. Centennial College of Applied Arts & Technology, [2002] O.J. No. 3023 (C.A.), cited in Fitzpatrick v. Orwin, 2012 ONSC 3492, 2012 ONSC 3492 (SCJ); Wood v. Kennedy (SCJ).

[45] But Justice Howden went on at para. 8 to adopt the virtually impossible test:

[8] In R.A.W. v. L.C.K (1998), 165 D.L.R. (4th) 542 (Ont. C.J.-Gen. Div.) Sharpe J. (as he then was) adopted the following analysis from the House of Lords, at pp.567-569 of Martin:

Where an individual falsely gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.

[46] A close review of the facts of that case reveals that this was a case where there were no independent witnesses.

[47] The plaintiff relies on Dardha v. Theodore (ON SC). The decision of the Court of Appeal in Kefeli was not referred to and the trial judge did quote the test in Martin v. Watson completely. She omitted the following:

Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.

[48] Tschekalin v. Brunette (ON SC) relied upon by the plaintiff, was decided without reference to Kefeli and in the light of the Pate decision can no longer be considered as correctly decided.

[49] Even if it were accepted that the defendant’ statements to Constable McRoberts were false, that fact alone is not enough for a jury to conclude that they initiated the prosecution. Much more was required to meet the high bar of malicious prosecution. There has to be evidence that the defendants withheld exculpatory evidence; that they pressured the police in laying the charges or somehow compromised the independence of the prosecution. Other witnesses were identified by them and Constable McRoberts was aware of them but determined that these were not necessary for her investigation and she exercised her discretion independently. In light of the foregoing, there is no evidence that, if true, would lead the jury to conclude that Ms. Smith initiated the proceedings against Mr. D’Addario. As such, the claim of malicious prosecution as against Ms. Smith must fail and therefore, ought not to be put to the jury.

[50] There is no evidence that Mr. Napior contacted the police much less that he initiated the proceedings. Mr. Napior did not alert the police and was responding to inquiries from the police. Constable McRoberts testified that Mr. Napior was acting solely in his capacity as a witness and that any communications that she had with Mr. Napior were as a result of Ms. Smith having identified him as a witness to both incidents of sexual assaults.

[51] Again, there is no evidence that could lead the jury to conclude that Mr. Napior initiated the proceedings against Mr. D’Addario. As such, the claim of malicious prosecution as against Mr. Napior must fail and therefore, ought not to be put to the jury.

[52] In his Amended Amended Statement of Claim, Frank D’Addario sought damages against the defendants for defamation, conspiracy, intentional and/or a negligent infliction of mental suffering, abuse of process, malicious prosecution and conspiracy. All of those claims except for the claim of malicious prosecution were abandoned before trial. He could have pursued Constable McRoberts for negligent investigation but he does not appear to have done so.

Qualified Privilege

Were the Statements to Father Kerslake made on a recognized occasion of qualified privilege?

[53] The issue of whether this is an occasion of qualified privilege is a question of law to be determined by me. Mr. Napior contests Frank D’Addario and Ferne D’Addario’s allegation that the statements made to Father Kerslake were made on an occasion of qualified privilege.

[54] Father Kerslake conceded that Mr. and Mrs. D’Addario made the following statements to him:

• Chris Napior is the town drunk;
• Chris Napior is an alcoholic;
• Chris Napior is abusing his position with the Church;
• Chris Napior is dishonest and cannot be trusted; and
• Chris Napior falsely alleged to the police that Frank D’Addario committed sexual assault against his elderly aunt, Betty Smith.

[55] It is well settled law that qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. In Cusson v. Quan, 2007 ONCA 771, (2007), (2007), 286 D.L.R. (4th) 196, our Court of Appeal had to consider whether to extend the reach of qualified privilege, either in its traditional form or in some modified form specifically tailored to the media. The Court reviewed the law this way at paras. 38 through 40:

38 Qualified privilege arises on occasions where the maker of the defamatory statement has an interest or duty to make it and the person to whom it is made has a corresponding interest or duty to receive it. The classic and frequently quoted formulation of qualified privilege is that of Lord Atkinson in Adam v. Ward, [1917] A.C. 309, [1916-1917] All E.R. Rep. 157 (H.L.) at p. 334 A.C.: an occasion 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. This reciprocity is essential.

39 Employment references, business and credit reports, and complaints to police, regulatory bodies or public authorities are classic examples of occasions of qualified privilege. The rationale for qualified privilege is that on such occasions, "no matter how harsh, hasty, untrue, or libellous the publication . . . the amount of public inconvenience from the restriction of freedom of speech or writing would far outbalance that arising from the infliction of private injury" (Huntley v. Ward (1859), 6 C.B. (N.S.) 514, at p. 517).

40 The privilege is said to be qualified as it can be defeated upon proof of malice, that is spite or ill-will, ulterior purpose, or, more commonly, proof that the defendant either knew the statement was false or was reckless as to its falsity: see Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 145 ("Hill v. Scientology"). The privilege can also be lost where the limits of the duty or interest are exceeded by the use of words not reasonably appropriate to the occasion.

41 The categories for qualified privilege are never closed and "can never be catalogued and rendered exact" (London Association for Protection of Trade v. Greenlands, Ltd., [1916] 2 A.C. 15 (H.L.), at p. 22, quoted in McConchie and Potts, supra, at pp. 370-71) and the question before us on this appeal is whether it is time to extend the reach of qualified privilege, either in its traditional form or in some modified form specifically tailored to the media.

[56] Later, the Court concluded at paragraph 136:

Turning to the question of sound policy, recognizing the general availability of qualified privilege for reports on all matters of public interest and the consequent adoption of a malice requirement would represent a significant change to Ontario law. Malice is notoriously difficult to prove and the adoption of a malice standard would, as a practical matter, make recovery for most plaintiffs a remote possibility. In my view, the adoption of qualified privilege in its traditional form to all reports on matters of public interest would represent a dramatic and unwarranted shift in the law that would unduly minimize the protection of the important value of individual reputation.

[57] In short, the Court of Appeal signaled its reluctance to expand the categories of qualified privilege in view of the need to protect the important value of individual reputation. In Bird v. Ontario, 2014 ONSC 2457, [2014] O.J. No. 3060, at para. 28, Justice Cornell identified certain categories of established privileged occasions have been recognized in the case law. While acknowledging that these categories are not closed, he listed the following:

• family communications;
• communications regarding employment;
• union communications;
• management/employee communications;
• business and credit reports;
• business to business communications;
• shareholder and corporate communications;
• communications about litigation;
• communications about insolvency proceedings;
• complaints to authorities;
• medical communications;
• statements to public bodies and responses to criticism.

Communications to priests are not among the recognized occasions that are protected by the defence of qualified privilege.

[58] Therefore, in order to be able to successfully invoke the defence, the D’Addarios bear the onus of establishing a new occasion of qualified privilege. The D’Addarios bear the onus of proving that they had an interest or a duty, legal, social, or moral, to make it to Father Kerslake and that the person to whom it was made had a corresponding interest or duty to receive it. This reciprocity is essential.

[59] In this case, the communications were not of a spiritual nature whatsoever. The D’Addarios admitted that they did not attend St. Leonard’s parish and were not meeting with Father Kerslake for a religious or spiritual purpose. It was because Chris Napior attended that parish that they were seeking out to tell their story.

[60] While Father Kerslake may have had an interest or duty to receive certain information regarding a member of his parish, in this instance, it cannot be said that Mr. and Mrs. D’Addario had a corresponding duty or interest to make the statements to him: Father Kerslake testified that he had no interest in receiving the last three statements namely; Chris Napior is abusing his position with the Church; Chris Napior is dishonest and cannot be trusted; and Chris Napior falsely alleged to the police that Frank D’Addario committed sexual assault against his elderly aunt, Betty Smith.

[61] In B.(P.) v. V.E.(R.), 2007 BCSC 1568, Justice Sigurdson said this at paras. 342-346:

342 The defendant carries the burden of establishing that an occasion of qualified privilege existed. As noted by Professor Brown at p.13-112 to 13-114.:

The burden is on the defendant to show that he or she is entitled to the protection of a qualified privilege. The defendant must allege and prove by a preponderance of the evidence all such facts and circumstances as are necessary to bring the words complained of within the privilege, including the fact that it was “fairly made” or “fairly warranted by some reasonable occasion or exigency” and published in good faith, and involved person having reciprocal interests or duty in making and receiving the information.

343 The assessment of whether there was an occasion of privilege is objective. Professor Brown at s. 13.2(4) refers to Sapiro v. Leader Publishing Co. (1926), 20 Sask. L.R. 449 at 453 (Sask. C.A.), where Lamont J.A. listedthe factors usually considered:

... the Judge will consider the alleged libel, who published it, why, and to whom, and under what circumstances. He will also consider the nature of the duty which the defendant claims to discharge, or the interest which he claims to safeguard, the urgency of the occasion, and whether or not he officiously volunteered the information, and determine whether or not what has been published was germane and reasonably appropriate to the occasion.

344 Because the occasion is measured objectively, the defendant's mere belief that he or she wasfulfilling a duty to communicate does not create such a duty. The issue is not whether the defendant had a right to make the communication or thought that he or she had a duty to make it, but rather whether a reasonable person would feel compelled by a duty to make the communication: Halls v. Mitchell, [1928] S.C.R. 125, [1928] 2 D.L.R. 97at p.134 (S.C.C.).

345 As stated by Professor Brown at p.13-27 to 13-32, 13-35 to 35-41:

Privilege attaches to the occasion on which the communication was made. It is the “occasion” that gives rise to the privilege, not the statement…. [A] distinction must be drawn between the privileged “occasion:, which is a legal question for the judge to decide, and the privileged “communication,” which is a question of fact for the jury….

The fact that the statement was untrue or, for that matter, that the defendant may have honestly believed in the truth of his or her assertions, or was moved by the highest of motives, is totally irrelevant to the issue as to whether the occasion was privileged….[T]he circumstances upon which the defendant relies must in fact exist in order to make the occasion one in which a communication is privileged.

[p.13-35]

… Lord Atkinson has articulated the nature of a privileged occasion in a leading English decision as follows:

[A] privileged occasion is … an occasion 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 so made has a corresponding interest or duty to receive it. This reciprocity is essential. [Adam v. Ward, [1917] A.C. 309at 334 (H.L.)]

The statement must be one “fairly made in discharge of some public or private duty, or in the conduct of the defendant’s own affairs in matters in which his interests are concerned”…. The fact that something happens to be a matter of public interest may not be sufficient. It must be “an interest in the subject matter of the communication over and above the general interest of the public at large. However, the interest need not be direct, but it must be something that is tangible and substantial.

346 Consistent with the nature of a privileged occasion articulated above, Allen M. Linden in Canadian Tort Law, 5th ed. (Toronto: Butterworths, 1993) at p. 665 listed four main areas where qualified privilege has been recognized:

There are four main areas where a qualified privilege has been recognized: (a) protection of one's own interest, (b) common interest or mutual concern, (c) moral or legal duty to protect another's interest, and (d) public interest.

[62] In summary, the assessment of whether an occasion is privileged is an objective one. The defendant's mere belief that he or she was fulfilling a duty to communicate information does not create such a duty. The issue is not whether the defendant had a right to make the communication or thought that he or she had a duty to make it, but rather whether a reasonable person would feel compelled by a duty to make the communication to the person or party to whom the communication is made.

[63] In conducting this objective assessment, at para. 343, the court listed the following considerations:

• the alleged libel;
• who made it;
• why it was made;
• to whom it was made;
• under what circumstances it was made;
• the nature of the duty which the defendant claims to discharge, or the interest which he claims to safeguard;
• the urgency of the occasion;
• whether or not he officiously volunteered the information; and
• whether or not what has been communicated was germane and reasonably appropriate to the occasion.

[64] In conducting this objective assessment, I conclude that it cannot be said that a reasonable person would feel compelled to seek out the priest of a parish, to which he does not belong, to make statements of the nature of the statements made in the present matter. Neither Frank D’Addario nor Ferne D’Addario attempted to provide any justification for why they made those statements to Father Kerslake. Furthermore, Ferne D’Addario admitted that she was not aware of Mr. Napior’s role with the church or what it entailed.

[65] I cannot conclude that Frank D’Addario and Ferne D’Addario were compelled by a duty or interest to make those statements. They did not testify that they advanced the statements for the purpose of helping either Chris Napior or the St. Leonard’s parish. Rather, they testified that they wanted Father Kerslake to be aware of Mr. Napior’s erratic behaviour and what was going on in their lives. Frank D’Addario told Father Kerslake because he “knew a lot people” and wanted to “inform him of what was happening.”

[66] For these reasons, the defence of qualified privilege is withdrawn from the jury.

Mr. Justice Robert N. Beaudoin

Released: October 27, 2015

[^1]: Liu v. Toronto Police Services Board (Ont. Div. Ct.) at para 20, citing with approval Ontario v. O.P.S.E.U., [1990] O. J. No. 635, (1990), 20 A.C.W.S. (3d) 1096 at paras. 39-40.