ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Grann v. Thunder Bay Police Services Board, 2015 ONSC 438
COURT FILE NO.: CV-13-0351
DATE: 2015-01-20
B E T W E E N:
Toni M. Grann, Glenn Grann, Tanner Dampier, Noah Conner, by his Litigation Guardian, Glenn Grann, Zachary Grann, by his Litigation Guardian, Glenn Grann and Zoe Grann, by her Litigation Guardian, Glenn Grann,
Nancy Erickson, for the Plaintiffs
Plaintiffs
- and -
Thunder Bay Police Services Board, Thunder Bay Police Service, Bob Herman, Susan Kaucharik, Sylvia Hauth and Philip Levesque,
Stephen J. Wojciechowski, for the Defendants
Defendants
HEARD: September 22 & December 18, 2014, at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Reasons For Judgment
[1] The defendants bring a motion for summary judgment. They assert there is no genuine issue requiring a trial of the plaintiff’s and her family’s claims as set out in an amended statement of claim dated May 20, 2014. The claims are numerous. In general terms, the plaintiff sues for damages for negligent investigation, malicious prosecution, conspiracy, and breach of her rights under s. 24(2) of the Charter.
[2] At the outset of the motion, it was agreed by counsel for the plaintiffs that the defendant “Thunder Bay Police Service” was not a proper party, as it is not a proper legal entity. In any event of the disposition of this motion, the plaintiffs agreed the claims against this entity should be dismissed.
Background
[3] The plaintiff, Toni Grann (“Toni”), is a Thunder Bay police officer. She was first hired as an officer in 1998. In November 2010, she was charged with 11 counts of breach of trust by a public officer. Toni was tried for these offences in the Ontario Court of Justice over 11 days commencing in November 2011, and concluding on February 4, 2012. She was acquitted of the charges.
[4] Toni was also charged with insubordination under the provisions of the Police Services Act. These charges have been adjourned sine die.
[5] The individual defendants are also Thunder Bay police officers, all of whom interacted at work with Toni in a capacity as her supervisors or superior officer.
[6] From 2005 to 2010, Toni was the Registrar/Administrator of the Sex Offender Registry (“SOR”) maintained by the Thunder Bay Police. At this time, she was also the DNA Administrator for the police service.
[7] As the SOR Administrator, Toni’s duties included the following:
a) contacting offenders convicted within the jurisdiction of the Police Board, and making efforts to ensure that these offenders report to police and comply with the requirements of the applicable Acts;
b) monitoring the compliance of offenders and ensuring actions were taken when offenders appeared non-compliant;
c) registering the offenders annually within the Sex Offender Registry database, including photographing the offender and noting physical descriptions; and,
d) ensuring that the Sex Offender Registry information was accurately uploaded in a timely manner onto the CPIC database.
[8] Toni worked in this position until January 15, 2010, at which time she was removed from the position by her supervisors. Toni went off work on medical leave on January 18, 2010, and has been off work ever since.
[9] In the statement of defence, the defendants allege Toni inaccurately maintained the SOR. An internal investigation was conducted by the defendants. It revealed alleged deficiencies in Toni’s work. In particular, for 12 different offenders, the registrations included inaccurate details and information relating to offenders that had been falsely recorded and entered by Toni in a manner that suggested the details and information were current. As well, offenders were noted as being compliant with their obligations to annually register with the SOR when, in reality, they had not.
[10] When faced with these results, management of the Thunder Bay Police formed the opinion that the evidence suggested that Toni had not made efforts to keep the SOR database up-to-date and current so that it could remain as a useful investigative tool for sex offender crimes. The Toronto Police Service was contacted. Officers from that service conducted an investigation. The investigation was reviewed by a Crown Attorney in Toronto.
[11] A decision was reached by persons other than those involved as defendants in this litigation to charge Toni. On November 9, 2010, Toni attended at the RCMP Detachment in Thunder Bay where she was arrested by two members of the Toronto Police Service and charged with 12 counts of breach of trust, 11 of which proceeded to trial.
[12] The charges against Toni were made pursuant to s. 122 of the Criminal Code, which states:
Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.
[13] She was acquitted of the charges in March 2012 after a lengthy trial.
[14] Toni claims damages arising from four alleged torts described in general terms as follows:
negligent investigation of the breach of trust charges;
malicious prosecution of the breach of trust charges;
conspiracy; and,
breach of her rights under section 24(1) of the Canadian Charter of Rights and Freedoms (I note this is the plaintiff’s express characterization of the claim).
[15] Also Toni’s husband, one adult child, and three minor children assert Family Law Act claims, as well as repeating the claims made specifically by the plaintiff.
[16] On this motion, it was admitted by the parties that any matters relating to Toni acting in her capacity as a police officer, are governed by a collective agreement. At the outset of this motion, counsel for the plaintiffs advised the Court that the claims in this matter do not arise out of Toni’s employment as a police officer. As such, if the matter proceeded to trial, the plaintiffs would not be seeking damages founded on employment contract issues.
[17] Much of the material initially filed by the defendants on this motion dealt with the issue of whether or not this Court had the jurisdiction to deal with the plaintiffs’ claim. This was based on the jurisprudence dealing with those matters where the jurisdiction of the Superior Court is ousted by the operation of statute in matters of collective bargaining. However, at the opening of the motion it was made clear by counsel, that they agreed the Court did have jurisdiction to deal with the claim, it being understood the torts as alleged in the statement of claim are unrelated to issues that would otherwise be arbitral under the collective agreement between the Thunder Bay Police Services Board and the Thunder Bay Police Association, which Toni was and is a member.
The Law
[18] Initially, among the other basis upon which the defendants brought this motion, they relied on the provisions of Rule 21.01(1) of the Rules of Civil Procedure. This aspect was founded on arguments relating to the jurisdiction of the Court to entertain the plaintiffs’ claim to the extent it involved exclusively employment issues. This aspect of the motion was made moot by the plaintiffs’ admission at the outset of the motion that no damages arising from employment would be sought in this litigation. Accordingly, the argument on the motion proceeded to address the case as a summary judgment motion relying on the provisions of Rule 20.
Summary Judgment
[19] Rule 20.04(2)(a) provides that a court shall grant summary judgment where the court is satisfied that there is no genuine issue requiring a trial. Rule 20.04(2.1)(a) provides that in determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and may exercise fact finding powers of weighing the evidence, evaluating the credibility of the deponent, and/or drawing any reasonable inference from the evidence.
[20] The leading case regarding summary judgment in Ontario is the relatively recent case from the Supreme Court of Canada in Hyrniak v Maudlin 2014 SCC 7, [2014] 1 S.C.R. 87. The case sets out a number of important principles applicable to this motion as follows:
▪ There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (para. 49);
▪ The standard for fairness is not whether a summary judgment motion is as exhaustive as a trial, but whether the process gives the court confidence that it can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (para. 50);
▪ The interests of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability (para. 56);
▪ On summary judgment motion process, the evidence considered by the court need not be equivalent to that which would be available at a trial, but must be such that the presiding judge is confident that she can fairly resolve the dispute (para. 57); and,
▪ A summary judgment motion can consider a comparison of evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. Even if the evidence available on a motion is limited, there may be no reason to think that better evidence would be available at trial (para. 58).
[21] Rule 20.02(2) requires that a party responding to a motion for summary judgment may not rest solely on the allegations or denials in that party’s pleadings, but must set out in affidavit or other evidence, specific facts showing there is a genuine issue requiring a trial. This has been described in established case law concerning summary judgment as the obligation of all parties to “put their best foot forward” and “lead trump” or risk losing: See 1061590 Ontario Ltd. v. Ontario Jockey Club, 1995 CanLII 1686 (ON CA), [1995] O.J. No. 132, 52 A.C.W.S. (3d) 1377 (Ont. C.A.); Transamerica Life Insurance Co. v. Canada Life Assurance Co., 1996 CanLII 7979 (ON SC), [1996] O.J. No. 1568, 62 A.C.W.S. (3d) 891 (Ont. Gen. Div.).
Negligent Investigation
[22] The leading case in respect of this issue is Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, 3 S.C.R. 129. The majority in that decision determined police officers owe a duty of care to persons they are investigating (paras. 34, 39, and 45). The standard of care is that of a reasonable police officer (paras. 50, 67, and 73). Accordingly, the principles of the law of negligence apply. That is to say that in order for a plaintiff to prove a cause of action for negligent police investigation, the plaintiff must show that they suffered compensable damage and that there is a causal connection to the breach of the duty of care owed to them.
[23] Other cases have more particularly elaborated on the nature of the tort of negligent investigation. For example, in Solomonivici v. Toronto (City) Police Services Board, [2009] O.J. No. 3144, 179 A.C.W.S. (3d) 725 (Ont. S.C.) at para. 9, Justice Wilson found that a plaintiff must establish three elements:
a) the proceedings must have been initiated by the defendant;
b) the proceedings must have been terminated in favour of the plaintiff; and
c) there must be an absence of reasonable and probable cause to commence or continue with the prosecution.
[24] The police are not required to demonstrate anything more than reasonable and probable grounds in the course of their investigation. They are not required to establish a prima facie case for conviction prior to making an arrest. They need not establish that the charge would succeed at trial or to establish that an accused had no valid defence to the charge: Lawrence v. Peel (Regional Municipality) Police Force, 2009 CanLII 19934 (ON SC), [2009] O.J. No. 1684, 176 A.C.W.S. (3d) 887 (Ont. S.C.) at para. 48. They are also not required to obtain an accused version of events before being able to establish reasonable and probable grounds: Charlton v. St. Thomas Police Services Board, [2009] O.J. No. 2132, 177 A.C.W.S. (3d) 833 (Ont. S.C.) at para. 40.
[25] The withdrawal of charges at a later time or the absence of a criminal conviction does not lead to an automatic conclusion that reasonable and probable grounds did not exist for an accused’s arrest: Charlton, para.41.
Malicious Prosecution
[26] In order for a plaintiff to establish a cause of action for malicious prosecution, they must prove four elements, three of which are exactly the same as those identified for negligent investigation as per Justice Wilson in Solomonivici. The additional element required is proof of malice: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, 16 A.C.W.S. (3d) 318 at para. 42.
[27] The threshold for civil liability for malicious prosecution is very high. A remedy for malicious prosecution is only granted in cases where a prosecutor’s actions are so egregious that they take the prosecutor outside his or her proper role as minister of justice: Miazga v. Kvello Estate, 2009 SCC 51, 3 S.C.R. 339 at paras. 50 and 51.
Conspiracy
[28] The Supreme Court of Canada outlined the two categories of civil conspiracy in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452, 19 A.C.W.S. (2d) 352, at para. 33:
Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if:
(1) Whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,
(2) Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.
[29] In both, there must be an agreement between the defendants to unlawfully injure or to injure another (Murphy Oil Co. v. Predator Corp., 2004 ABQB 688, 134 A.C.W.S. (3d) 75) and actual damage suffered by the plaintiff (LaFarge, para. 34).
[30] The requirements for a proper pleading in conspiracy were reiterated in Normart Management Ltd. v. West Hill Redevelopment Co., 1998 CanLII 2447 (ON CA), [1998] O.J. No. 391, 77 A.C.W.S. (3d) 518, (Ont. C.A.) at para. 21, and recently cited in 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp., [2009] O.J. No. 4376, 181 A.C.W.S. (3d) 677 (Ont. S.C.) at para. 55:
In H.A. Imports of Canada Ltd. v. General Mills Inc. (1983), 1983 CanLII 1722 (ON SC), 42 O.R. (2d) 645, 150 D.L.R. (3d) 574 (H.C.J.), O'Brien J., dealing with the civil action of conspiracy as pleaded, quoted from Bullen, Leake and Jacob's Precedents of Pleadings, 12th ed. (London: Sweet & Maxwell, 1975), as follows at pp. 646-47:
The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.
The above is still good law.
Breach of Charter Rights
[31] The leading case is the decision of the Supreme Court of Canada in Ward v. Vancouver (City), 2010 SCC 27, 2 S.C.R. 28. The Court established a four-fold process for evaluating claims of this nature. First, a plaintiff must establish a Charter breach (para. 23). Secondly, the court must consider if damages for the breach functionally fulfill one or more objects of compensation, vindication of the right, or deterrence of future Charter breaches (para. 32). Third, the court is to then consider if the state may establish that other considerations render s. 24(1) damages inappropriate or unjust (para. 33). Fourth, the court must decide if the quantum of damages is appropriate or just (para. 46).
The Evidence of the Moving Party Defendants
[32] On this motion, I have been provided with affidavit evidence on behalf of the defendants by the Deputy Chief of Police, Andrew Hay, and from one of the personal defendants, Detective Sergeant Susan Kaucharik. The defendants’ further relied on the cross-examination of Toni on her affidavit filed on this motion.
[33] Also, the defendants submitted transcripts of Toni’s evidence from the criminal trial and a copy of the decision of Justice Hoshizaki in that trial. No objection was taken by the plaintiffs to the introduction of these two pieces of evidence. I characterize this evidence as “other evidence” within the meaning of Rule 20.01(3).
[34] The primary fact stressed in the evidence of the defence is that none of the named defendants actually conducted an investigation of Toni that could be subject to a civil claim for negligent investigation.
[35] The affidavit evidence of Detective Sergeant Kaucharik set out in some detail steps taken by her and “others” (unnamed persons), that objectively could be described as “an investigation” of Toni. However, following 18 paragraphs over 7 double spaced pages that described this “investigation”, the affidavit of Detective Sergeant Kaucharik stated at paras. 38 and 39:
38 Once the investigation into the SOR which was managed by Constable Grann during the relevant time period was completed, the information which was gathered was sent to the Toronto Police Service and the Crown’s Office in Toronto. Ultimately a decision was made by the Crown’s office to lay charges against Constable Grann for twelve (12) counts of breach of trust
39 No decision was made to lay charges by anyone in Thunder Bay, including any of the Defendants
[36] No evidence was filed by the defendants Bob Herman, Sylvia Hauth, and Philip Levesque.
[37] The defendants referred to various sections of the evidence given by Toni at the criminal trial in support of their argument that that information added to the SOR by Toni, in some instances, was incorrect and deceitful. They also referenced evidence by Toni regarding ten different offenders, DM, DT, DH, BK, DD, Mr. S, LJ, RY, JC, and TL to show deficiencies, errors, and failure to accurately record information by Toni in the course of maintaining the SOR.
[38] The defendants also rely on the following passage from the decision of Justice Hoshizaki at para. 42:
The accused did not require the registrants to attend in person. I accept that this clearly undermines the intent of the legislation. It is difficult to accept that a police officer in this position did not follow the letter and spirit of the Act. As a result, current photographs were not taken, nor were any accurate or specific physical descriptors uploaded to the SOR registry. By using the previous data on file, specifically addresses; the accused nullified the usefulness of the database that was created to assist police officers in ensuring public safety. In some instances, she confirmed the registrant’s current address, but did not even ask them about their physical appearance. In another case, she registered an offender without him even knowing. I accept that the cavalier manner in which she was administering her duties was a marked departure from the standards expected of any person in that position. This was beyond a serious mistake in judgment. [Emphasis added].
The Evidence of the Responding Parties Plaintiffs
[39] Toni filed an affidavit on this motion. Also, she filed affidavits from three other persons who worked with her. No affidavit evidence was filed on behalf of the Family Law claimants.
[40] In my view, much of the affidavit evidence filed by Toni (and from the defendants as well) was directed at addressing facts related to collective bargaining issues rather than the essential issues on this motion. For example, I find the affidavits of the three persons (other than the plaintiff) filed in support of Toni did not in the least way provide any useful evidence touching on three of the four major issues presented in this motion for summary judgment. All of it related to workplace conditions and interactions involving Toni which may well be appropriate for a grievance arbitration. However, in my view, none of it had any probative value to the plaintiffs’ allegations of negligent investigation, malicious prosecution, or breach of Charter rights.
[41] A very generous reading of the totality of the three non-party affidavits filed by the plaintiffs suggested some evidence that might be connected to an allegation of conspiracy. However, Toni’s claim was so baldly plead that it was difficult for me to understand how the conspiracy referred to in the affidavits could be causally connected to any claim Toni could assert in this action.
[42] Much of the evidence was directed at Toni’s working conditions and suggested an internal power struggle was going on regarding succession to the position of Deputy Police Chief. This certainly was the focus of the affidavit of Keith Hobbs. The only paragraph that could be remotely connected to matters at issue in this litigation read as follows:
I believe that the allegations in Constable Grann’s amended Statement of Claim regarding her treatment by certain members of the Thunder Bay Police Service deserve to be heard by a trial judge and her action should not be dismissed. There will be testimony supporting her allegations.
[43] The limited value of this evidence on a motion for summary judgment is self-evident.
[44] The evidence put forward in the affidavit of Dan Taddeo was also of limited use in my view. While it did verify that members of the Toronto Police Force were investigating Toni in October 2010, the balance of the affidavit concerned his difficulties in his employment as a police officer. This was of no use for this motion.
[45] The affidavit of Jim Mauro spoke of his observations of Toni in the workplace in a general way. The evidence alleged Toni was having difficulty doing her job. However, nothing in this affidavit had anything to do with issues on this motion other than a paragraph stating exactly the same thing as noted above by Mr. Hobbs and a statement that he agrees with Toni’s affidavit and her conclusions about a negligent investigation, malicious prosecution, and breach of her rights under the Charter. Again, the limited use of this type of unsupported statement, making a sweeping conclusion, in a motion of this type should be self-evident.
[46] Turning to Toni’s affidavit, much of it was directed at matters that had nothing to do with allegations that can be adjudicated in this Court. There were only two statements in her affidavit that in my view related to a civil action for negligent investigation. Toni’s stated that no one interviewed her prior to her being charged and “so I was not given the opportunity to respond to the allegations before my arrest”. Her affidavit also confirmed that two members of the Toronto Police Service were investigating her in respect of the Criminal Code charges.
[47] There was nothing in her affidavit that related to her claim for malicious prosecution other than a bald statement “I believe that the actions of the Defendants were malicious”.
[48] There was nothing in Toni’s affidavit that explained or set out a basis for her claim for damages for conspiracy. Her statement of claim makes a one line reference to a conspiracy in paragraph 41 dealing with allegations against the defendant Sylvie Hauth. The claim (but not any affidavits filed on this motion) states that Inspector Hauth refused to allow other officers to help Toni in the workplace which “was part of a conspiracy to harass and overwork Toni so that she would quit her job”. I observe here that Toni did not quit her job.
[49] The defendant Levesque is cited in the statement of claim as being an active participant in the conspiracy as well. No further material facts to support the conspiracy claim are provided.
[50] There was no direct evidence about the alleged breach of her rights under the Charter other than a further bald statement that she believed her rights had been infringed. She stated in her affidavit “after my arrest, when I refused to respond to questions from the Toronto police officers who were ordering me to do so under the authority of Chief Bob Herman, I was charged with insubordination under the Police Services Act”. I had to reference paragraph 32 of the statement of claim to make the connection that this is the alleged basis for Toni’s claim for a Charter breach.
[51] There appeared to be only one paragraph in Toni’s affidavit dealing with damages. It read as follows at para. 15:
The lives of my husband, Glenn, my children and I have been seriously disturbed and disrupted by the actions of the relevant police officers and the Police Services Board. The financial cost has been staggering. The emotional and psychological costs have been even more so.
Discussion
[52] I will deal first with the attempt by the defendants to obtain summary judgment in respect of the claim by Toni for negligent investigation.
[53] The direction from the Supreme Court in Hryniak is foremost in my consideration of this matter. A proportional approach tailored to the needs of the case is now the focus of any motion for summary judgment. I will consider if there are any genuine issues for trial. In order to grant judgment, I must be satisfied that I can reach a fair and just determination on the merits. This will be the case if the evidence allows me to make the necessary findings of fact, to apply the law to the facts, and determine this process is a proportionate, more expeditious, and less expensive means to achieve a just result.
[54] It seems to me that the focus of this motion has shifted around((and then was ultimately narrowed) from the time the motion was commenced to the time it was argued before me. This has resulted in what I can only call a superficial treatment by the plaintiffs of the evidence necessary to address and resist a summary judgment of the plaintiffs claim. Also, the evidence of the defendants regarding the claim of conspiracy and breach of Charter rights was non-existent. I believe this is because the plaintiffs’ claim is poorly drafted concerning these issues, even in the amended claim and then not properly addressed on this motion.
[55] What is clear from the affidavit evidence filed on behalf of the defendants is that the investigation leading to the Criminal Code charges against Toni began with Detective Sergeant Susan Kaucharik and other unnamed persons. While it is not clear from the affidavits, I draw an inference that the other “unnamed persons” were the other personally named defendant officers from the Thunder Bay Police Service. I draw this inference, which is adverse to the position of the defence, because clearly the defendants were in a position to file affidavit evidence as to what extent the personal defendants were or were not involved in this process of information gathering. They did not do so. This was not explained by counsel for the defendants.
[56] However, it is not disputed in this matter that the ultimate decision to charge Toni was made after information was considered by two members of the Toronto Police Service and the Crown Attorney’s Office in Toronto. I accept the assertion in the affidavit of Detective Sergeant Kaucharik that none of the defendants had anything to do with the ultimate decision to charge Toni. There was no evidence to the contrary led by Toni.
[57] It is clear from the decision of the Supreme Court of Canada in Hill that the police officer defendants who were investigating Toni owed her a duty of care, if in fact they were conducting an investigation that led to a criminal charge. There is no direct evidence on this motion for me to decide one way or the other, if the process clearly undertaken by Detective Sergeant Kaucharik and others was used or relied upon by the Toronto Police Services officers who actually laid the charges. I am left to infer that the information gathered was used, because Detective Sergeant Kaucharik goes on at length in her affidavit to provide particulars of the deficiencies in Toni’s administration of the SOR.
[58] These deficiencies in Toni’s conduct were stressed in argument by the defendants. It was argued they form the basis of the conclusion drawn by Justice Hoshizaki at para. 42 that “I accept that the cavalier manner in which she was administering her duties was a marked departure from the standards expected of any person in that position. This was beyond a serious mistake in judgment.”
[59] In my view, this statement from Justice Hoshizaki represents a definitive conclusion by a neutral adjudicator, considering matters through a lens more favourable to the plaintiff (reasonable doubt, as opposed to the civil standard of balance of probabilities), of a matter that goes to the essence of two of the plaintiffs’ claims in this action: negligent investigation and malicious prosecution. Justice Hoshizaki made a conclusion about the conduct of Toni as it related to the standards expected of her administering a SOR at the criminal trial. This conclusion found her conduct lacking in a significant way. Her actions were found to be more than simply a serious mistake in judgment. I interpret this to mean Justice Hoshizaki found that Toni did actions that constituted fraud and breach of trust.
[60] I am therefore left to consider how much different, or better, would the plaintiffs case be if this matter was left to proceed to trial on the issue of negligent investigation or malicious prosecution. Toni has Crown disclosure. She testified at a trial. She was given the opportunity to put forward evidence on this motion to counter the defendants alleging her claim had no merit in fact or at law, as they assert the investigation against her which lead to charges was not conducted by any of the defendants. She was faced with a motion that alleged the necessary acts for these two torts of negligent investigation and malicious prosecution were not committed by the defendants. In face of that evidence, she chose to lead evidence that was weak and unhelpful.
[61] It was revealing to me that none of the five police officers and one former officer who provided affidavits on this motion, gave any evidence about what they viewed to be a reasonable course of action for a police officer investigating an offence of breach of public office. I appreciate why the defendants did not do this. Their position regarding negligent investigation starts and stops with their assertion, accepted by me, that they did not do an investigation that could ground a civil action.
[62] In response, Toni’s assertion that she was not interviewed during any investigative process was not placed in any context in terms of objective standards by which I could measure whether this represented reasonable or unreasonable conduct by the defendant officers. In Charlton, the Court found the duty of care of an investigating police officer did not require them to interview an accused prior to the laying of the charge. No case law was provided by the plaintiffs to counter that statement of law.
[63] In light of Justice Hoshizaki’s decision that Toni’s conduct fell below the standard expected, and it being squarely placed before this Court as “other evidence” on a motion for summary judgment, it was incumbent on Toni to provide evidence to the contrary. Her affidavit evidence or that of the three other officers filed on her behalf did not provide that evidence. In light of the fact that she did testify at the trial where Justice Hoshizaki came to that conclusion, I cannot come to the conclusion that at a civil trial, there will be different or additional evidence that would assist a trier of fact in assessing her conduct in any other different way than that found by Justice Hoshizaki.
[64] The findings regarding Toni’s conduct are significant as it was argued by the defendants that this conduct provided the reasonable and probable grounds that the Toronto Police Service officers relied upon to lay the charges at issue. I agree with the defendants on this particular issue.
[65] In my view there is no genuine issue requiring a trial of the plaintiffs’ claim for negligent investigation.
[66] In coming to this conclusion, I have relied on reasoning contained in the decision of Solomonivici. According to that decision, proceedings have to be “initiated” by a defendant in order for a plaintiff to satisfy the first portion of the four-fold test set out in that case to prove a cause of action for negligent investigation.
[67] I agree with the submission of the defendants that the proceedings to which Toni was subjected were not initiated by the defendants. I accept the defendants’ evidence on this motion and find that the Toronto Police Services officers and a Crown Attorney in Toronto initiated the proceedings against Toni. I did not have sufficient evidence before me to draw a conclusion that those Toronto non-party persons may have relied exclusively upon a data gathering process, an “investigation,” conducted by the defendants. In my view, that evidence was available to the plaintiffs through those Toronto witnesses who could have been summoned to give vive voce evidence on this motion if necessary. I appreciate this may have been difficult for the plaintiffs. However, they claim general damages of ten million dollars in this action. They were faced with a process seeking to end the claim. The evidence provided did not address proof of their claim adequately, in my view.
[68] This is significant because ultimately the plaintiff is required to prove there has to be a causal connection of what the defendants did to what happened to the plaintiff. This is what it means to “lead trump”. While the defendants admit they conducted a process that Detective Sergeant Kaucharik called an “investigation”, there was not a connection drawn in the evidence between what the defendants did and how it was causally connected to the charges against Toni. I note Detective Sergeant Kaucharik was not cross-examined by the plaintiffs on this motion.
[69] Toni’s affidavit regarding the issue of negligent investigation or malicious prosecution was of little value. The only tangible allegation of negligence was her assertion that she was not interviewed by anyone prior to her being charged. There is no evidence before me that this failure to interview a target of a police investigation represents a breach of duty by a police investigator or is contrary to what would be reasonably expected from an investigation of this nature. Nor can I draw from this evidence that it would or could lead to a finding of malice.
[70] The defence rests on the very simple fact that they did not decide to have Toni charged. Their evidence then focused on the proof of reasonable and probable grounds to have Toni charged.
[71] There are three elements to the tort of negligent investigation as enumerated in Solomonivici. From the evidence submitted, I find that the first aspect of the test has not been made out. I find it would not be made out by the plaintiffs if this matter proceeded to trial.
[72] I find from the evidence, the decision to charge Toni was not made by the individually named defendants, nor any officer employed by the defendant Thunder Bay Police Services Board. This is an important fact. Without a decision to charge, it would be hard to imagine any real damages that could arise from the investigation at issue, where the chief complaint by the plaintiff was that she was not interviewed. Her affidavit evidence does not say one way or the other if she was aware of the investigation. It would be difficult to comprehend how an action for a negligent investigation could be founded when the target was unaware of it and no adverse impact, like a charge, results.
[73] That finding, in my view, forms a basis to grant summary judgment to the defendants both in regard to the claim for negligent investigation and malicious prosecution. This is because both torts rely on this first finding that proceedings were initiated by the defendants.
[74] The test for a finding of a malicious prosecution requires a plaintiff to prove the three elements of negligent investigation and in addition prove malice. It follows that as I have found the plaintiffs cannot sustain an action for negligent investigation, there can be no finding of a malicious prosecution. In any event, I find that the plaintiffs have not led any tangible evidence of malice. I disagree with the argument of counsel for the plaintiffs that unfairness in the workforce equates to malicious behaviour. They are two different things. Toni has redress for workplace unfairness in the grievance process. In this case, any perceived unfairness was not of a quality that it can be elevated to a finding of maliciousness.
[75] If I am wrong in this regard, I would also grant judgment for the defendants in respect of the claims for negligent investigation and malicious prosecution for additional reasons.
[76] With regard to the second branch of the Solomonivici test, it is not disputed that the proceedings were terminated in favour of Toni. She was acquitted.
[77] However, with regard to the third branch of the test, in this case, a critical assessment must be made. In my view, consideration of the reasons for decision of Justice Hoshizaki provide a reasonable, efficient, and proportionate basis for a determination of the issue of whether a trial will be necessary to find whether or not there were reasonable and probable grounds to commence and continue the prosecution that arose from the investigation at issue. This would be necessary for the plaintiffs to establish in order to succeed on both the negligent investigation and malicious prosecution claims.
[78] The criminal trial was lengthy. The reasons of Justice Hoshizaki are thorough and detailed. The learned justice was a neutral adjudicator of fact. She heard and assessed the evidence, including that of Toni. The plaintiff seeks to rely on the conclusion drawn from the evidence before the trial judge, the acquittal, as the basis to dismiss the motion for summary judgment and have the matter proceed to trial. This overlooks an important aspect of the findings of Justice Hoshizaki. As noted above, Justice Hoshizaki found Toni’s conduct fell below an acceptable standard for an officer acting in her position. She did this relying on a reasonable doubt standard.
[79] This aspect of the decision is a determination of facts. This finding of fact could not found an issue estoppel in this matter, as the criminal case and this civil case are between different parties. However, I regard the reasoning of Hryniak as encouraging and permitting a process that discourages re-litigation of similar fact circumstances and therefore can operate as a basis to grant summary judgment in appropriate circumstances.
[80] Justice Hoshizaki’s findings concerning Toni’s conduct are sufficient to permit a conclusion that whatever entity decided to proceed against Toni, (I find it was a Crown attorney from Toronto relying on an investigation by officers of the Toronto Police Service), it had reasonable and probable grounds to do so.
[81] I find that it is not reasonable to expect matters on the issue of reasonable and probable grounds, to become any clearer as the result of a civil trial regarding negligent investigation or malicious prosecution. Toni’s conduct in her role as a public officer fell well below that which could be reasonably expected. It was not a mere error in judgment. Her acts were those of breach of trust and fraud.
[82] Ultimately, Toni was acquitted because Justice Hoshizaki found that the Crown had failed prove beyond a reasonable doubt that Toni had the necessary mens rea to register a criminal conviction. However, in my view, Justice Hoshizaki’s decision clearly set out that Toni committed the actus reus of the offence of breach of trust and fraud in the course of an official acting in carrying out the duties of her office.
[83] I have also considered the evidence put forward by Detective Sergeant Kucharik on this motion regarding particulars of Toni’s alleged failing in her duties respecting ten offenders. In light of this evidence and the findings of Justice Hoshizaki, I find the Crown Attorney in Toronto had little choice than to proceed with the prosecution. If the case was not pursued, it could have been interpreted that Toni was receiving special treatment because of her position as a police officer. She made serious errors in relation to the very serious business of complying with Criminal Code and court-ordered provisions for offenders who were ordered to registry with the SOR.
[84] In my view, the public would be scandalized to learn that errors on the magnitude of Toni’s were not made the subject of a criminal proceeding. Despite Justice Hoshizaki’s comments in her decision about this matter being more properly dealt with by disciplinary proceedings, that does not detract from her findings about what Toni did. Based on the totality of the evidence before me on this motion, I find there were reasonable and probable grounds for charges to be laid against Toni under s. 122 of the Criminal Code.
[85] Therefore based on my findings concerning the first and third branches of the test in Solomonivici, I am able to resolve issues regarding the claim for negligent investigation and malicious prosecution fairly and justly based on the evidence before me. There are no genuine issues requiring a trial with respect to the claims for negligent investigation and malicious prosecution
[86] Despite the amount of the claim for damages in the statement of claim, there was no evidence put forward of any monetary damages suffered by Toni that could be adjudicated in the Superior Court, as opposed to the arbitration process.
[87] In one paragraph of Toni’s affidavit, as noted above, she deposes her life and the lives of her husband and children have been seriously disturbed and disrupted. She baldly asserts “the financial cost has been staggering. The emotional and psychological costs have been even more so.”
[88] In my view, this is not sufficient evidence to satisfy the “best foot forward” test. It is a bald assertion. It lacks particulars. I cannot assess what it means without more detail. This is important as the Hyrinak test suggests that proportionality is a governing factor in determining if summary judgment can be granted. Toni’s affidavit asserts she is presently on long term disability. The exact monetary meaning of this was not made clear by her affidavit. However, I take it she still has an income source that has not been adversely impacted by the torts as currently alleged in her amended statement of claim.
[89] In the defendants’ materials is a copy of a grievance filed seeking indemnification by Toni for her legal costs arising from her defence of the criminal charge. This matter is clearly arbitral and beyond the scope of this proceeding.
[90] I will now address the other two torts contained in the statement of claim. The claim for conspiracy and breach of Charter rights is baldly plead in the statement of claim to say the least. These aspects of the statement of claim were not adequately addressed either in argument or the materials filed by either party on this motion. The focus of the argument and materials of the parties was the negligent investigation and the malicious prosecution. At best, the only inference I can draw about any alleged conspiracy was a conspiracy to have Toni quit her employment. She did not do that. Further, such a claim is squarely within the ambit of the collective agreement in my opinion.
[91] Toni is aware of her grievance rights. She has filed a grievance relating to her legal bill. I was not apprised of the status of the grievance or whether or not she has filed any other grievances specifically related to her having to go on long term disability. However, she maintains her employment status despite being on long term disability.
[92] In light of the paucity of evidence regarding both these issues, from both parties, I am reluctant to grant summary judgment for these claims at this point. However, mindful of the direction of the Supreme Court in Hyrniak, and Rule 20.01(3), I am prepared to grant leave for the plaintiffs to file a further fresh as amended pleading regarding her claims for conspiracy and breach of Charter rights. This claim shall be served and filed within 30 days of the release of these reasons. If no such claim is served and filed, the plaintiffs claim in regard to these other two torts and the Family Law Act claims will be deemed to be dismissed.
[93] The plaintiffs should be careful to ensure that only proper parties are subject of a fresh as amended statement of claim. If the plaintiffs choose to continue to proceed, the defendants so named in the claim shall have 30 days to file a fresh as amended statement of defence.
[94] In order to preserve the familiarity the Court now has with the nature of the plaintiffs’ claims and the defences against her, and in the interests of efficiency, I order that any further motions regarding this fresh as amended claim or defence shall be brought before me on special dates to be arranged through the trial coordinator. This would include any future motions for summary judgment on a fresh as amended claim or defence.
[95] I want to make it clear I am not acting as the case management judge. However it seems to me that both parties would benefit from my familiarity with this file in regard to any motions arising from the pleadings or for summary judgment on any fresh as amended pleadings that result from my order. Any fresh as amended pleading should more carefully and accurately define the facts relied on by the parties which in turn should define the issues to be tried with regard to the two remaining causes of action that the plaintiffs may wish to pursue. Based on the material before me at present, I could not specify what material facts are not in dispute or define the issues to be tried for the allegations of conspiracy or breach of Charter rights. I rely on the spirit of Rule 20.05(1) and the direction of that Rule that the Court may seek to assist the parties to have the balance of matters proceed to trial expeditiously once they have put the entire matter before the Court by way of a summary judgment motion which is granted in part.
[96] Accordingly, order to go as follows:
The defendants are granted summary judgment dismissing all plaintiffs’ claims against all named defendants for negligent investigation and malicious prosecution;
The plaintiffs are granted leave to file a further fresh as amended statement of claim regarding only claims for conspiracy and breach of Charter rights under s. 24(1);
The fresh as amended statement of claim shall be served and filed within 30 days of the release of these reasons. If no such fresh as amended statement of claim is served and filed, the plaintiffs’ claim in regard to these other two torts and the Family Law Act claims in the existing amended statement of claim will be deemed to be dismissed with costs;
Any future motions regarding this fresh as amended claim or defence, including any motions for summary judgment shall be brought before me on special dates to be arranged through the trial coordinator; and,
In any event all claims against “Thunder Bay Police Service” are dismissed.
Costs
[97] If the parties cannot agree on costs of this motion they may make an appointment to address me on this matter. If the trial coordinator is not contacted requesting such a date on or before February 27, 2015, the issue of costs will be deemed to have been settled.
_______”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: January 20, 2015
CITATION: Grann v. Thunder Bay Police Services Board, 2015 ONSC 438
COURT FILE NO.: CV-13-0351
DATE: 2015-01-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Toni M. Grann, Glenn Grann, Tanner Dampier, Noah Connor, by his Litigation Guardian, Glenn Grann, Zachary Grann, by his Litigation Guardian, Glenn Grann and Zoe Grann, by her Litigation Guardian Glenn Grann,
Plaintiffs
- and -
Thunder Bay Police Services Board, Thunder Bay Police Service, Bob Herman, Susan Kaucharik, Sylvia Hauth and Philip Levesque,
Defendants
REASONS FOR JUDGMENT
Fitzpatrick J.
Released: January 20, 2015
/mls