CITATION: Ebagua v. National Rent A Car et al., 2015 ONSC 979 COURT FILE NO.: CV-12-464596 DATE: 20150212
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JUNIOR OSAS EBAGUA
Plaintiffs
- and -
NATIONAL RENT A CAR, EMERALD CLUB and SHIRLEY GOMES.
Defendants
Munyonzwe Hamalengwa,
for the Plaintiff
David S. Young and Kevin R. Bridel,
for the Defendants
HEARD: February 11, 2015
F.L. Myers J.
REASONS FOR decision
Background
[1] Both parties move for summary judgment. Both agree that under Rule 20.04(2)(b) the court should grant summary judgment one way or the other. The court agrees that there is no need for a trial or for resort to the enhanced powers under Rule 20.04(2.1). Rather, the court is satisfied on the evidence before it that the facts can be found and law applied so as to bring a fair and just resolution to the issues in this action.
[2] The plaintiff was charged with theft of a car owned by the defendant National Rent A Car Inc. He was discharged when the Crown Attorney withdrew the charge amid trial. The defendant Shirley Gomes is an employee of National and reported the theft of the car to the police. The plaintiff sues Ms Gomes and National for malicious prosecution, defamation, and negligent investigation.
[3] The plaintiff says that the criminal charges caused him “rolling, tolling calamities”. Although the plaintiff feels badly mistreated, there is no triable issue raised on the evidence in respect of any of the causes of action alleged in his statement of claim.
The Facts
[4] On July 25, 2010, Ms Gomes was engaged in reviewing unaccounted for vehicles and discovered that a particular car was missing. The car had been left with its keys in the ignition when it was returned from its last rental on July 23, 2010. It had not been inventoried since that date. Ms Gomes checked the overdue rentals and incomplete rentals files and determined that the car was stolen.
[5] On September 20, 2010, Ms Gomes reported the theft to the police. It is National’s policy to wait for a month (in this case almost two months) before reporting thefts in case the car shows up. Ms Gomes was interviewed by the police at the time.
[6] On October 10, 2010, the police found the car with the plaintiff. The plaintiff claimed that he rented the car from National. He produced no documentation to the police. He says that his rental contract was in the glove compartment of the car and was missing after the police had searched it. The police arrested the plaintiff and charged him with theft. The Crown Attorney carried the prosecution.
[7] Ms Gomes provided a further statement to the police on July 15, 2011. She gave evidence at the trial pursuant to a subpoena. In each case she said that the vehicle was stolen from National.
[8] National has no record of renting the car to the plaintiff. They do have a record of the plaintiff renting a different car on July 23, 2010. The plaintiff says that the first car was defective so he returned it right away and was given a second car which was the one that was said to be stolen. National’s records show that the plaintiff returned his first car on July 25, 2010 but with zero mileage driven. It charged the plaintiff’s credit card $176 for that rental as agreed.
[9] The plaintiff says that not only was he given the car for rent but that he called National several times at its head office in Missouri to renew the rental out to October when the police arrested him. He says that he called on his cell phone. On cross-examination, however, he refused to produce his cell phone records. He also says that he gave National his credit card number so he could be charged. He produced no statements to show any such payments.
[10] It is apparent that National’s record of the plaintiff’s first car being returned two days later with zero mileage driven is wrong. The car was taken into inventory two days later but the plaintiff must have returned it to the garage on the 23rd and taken or been given the second car. He then got that car through security either by showing a new contract that he cannot produce and National denies exists, or perhaps by some other means. The plaintiff says, with some force, that National’s inventory controls were negligent at best.
[11] But, it must be borne in mind that the plaintiff is suing for malicious prosecution, defamation, and negligence in how National and Ms Gomes investigated or failed to investigate the loss of the car prior to and subsequent to reporting it stolen. National’s inventory recording methods and parking gate security are relevant only to how they implicate those torts. If the plaintiff took the car unlawfully, there was no duty of care owing by National to the plaintiff to have better security processes. It is only if the plaintiff lawfully rented the car and then National wrongly reported it stolen that the plaintiff might have cause for complaint.
The Tort of Negligent Investigation
[12] In Correia et al. v. Canac Kitchens et al., 2008 ONCA 506, the Court of Appeal discussed the extension of the tort of negligent investigation beyond police officers to private persons. At paragraph 18, the Court set out the basic proposition under discussion as follows:
In Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, the Supreme Court of Canada recognized the tort of negligent investigation as applied to police officers. Speaking for the majority, McLachlin C.J.C. held that the police owe a duty of care in negligence to suspects being investigated. The question posed by this case is whether the reasoning in Hill can be extended to recognize a duty of care on private actors.
[13] The Court of Appeal held that the duty of care to avoid negligent investigations does apply to private investigation firms. But it came to the opposite conclusion for people who were not in the business of investigation. At paragraph 74, the Court held:
The second reason that we would not recognize a duty of care on Canac lies in the potential chilling effect on reports of criminality by honest citizens to the police. Unlike Aston, Canac was not in the business of investigation. It was in many ways in the same position as any other citizen who reports criminal activity to the police. Public policy favours encouraging the reporting of criminality to the police. Someone not in the business of private investigation who honestly, even if mistakenly, provides information of criminal activity should be protected: see Mirra v. Toronto Dominion Bank, [2004] O.J. No. 1804, [2004] O.T.C. 365 (S.C.J.). [emphasis added]
[14] The plaintiff points to a number of things that National and Ms Gomes might have done to perform a better investigation before reporting the car stolen. Given that the law does not recognize a duty of care, the fact that they did not do what the plaintiff says they ought to have done, does not give him a right to sue for negligent investigation. Rather, the law errs on the side of favouring reporting of criminal behaviour by protecting informants even if they are mistaken. However, if a person strays too far from propriety in dealing with the police, then he or she will be subject to the laws of malicious prosecution and defamation as discussed below and perhaps also the tort of false arrest that is not raised in this action. It is those torts, and not the tort of negligent investigation, that define the balance between actionable and acceptable behaviour for private people and businesses that are not in the business of investigating crime.
Malicious Prosecution
[15] In Nelles v. Ontario, 1989 CanLII 77 (SCC) at para. 42, the Supreme Court of Canada set out the following facts that a plaintiff must prove to succeed in a claim for malicious prosecution.
(i) the proceedings must have been initiated by the defendant;
(ii) the proceedings must have terminated in favour of the plaintiff;
(iii) there must be the absence of reasonable and probable cause; and,
(iv) there must be malice, or a primary purpose other than that of carrying the law into effect.
(i) Proceedings Initiated by the Defendant
[16] The plaintiff cannot surmount the first hurdle. The prosecution was initiated by the police. The Crown carried the case. Simply providing information to the police for them to investigate is not an act that exposes people to liability where the police lay a charge that does not result in a conviction. Exposing people to liability for making reports to the police would be contrary to the important public policy encouraging reporting of criminality as recognized by the Court of Appeal in Correia, supra. As expressed by Matheson J. in Asagwara v. Money Mart, 2014 ONSC 6974, a recent decision that canvasses many of the same issues as are raised in this action, at para 56:
Giving information to the police is not enough to satisfy this element of the cause of action. Ms. Coates did not take part in the decision to lay charges and the police could and did conduct their own investigation: Lewis N. Klar et al., Remedies in Tort, looseleaf (Toronto: Carswell, 2014) vol. 1 at 15-18.
[17] Similarly, neither Ms Gomes not National took part in the decision to lay charges. The police found the car and spoke to the plaintiff. There is a video in evidence of the plaintiff’s interrogation by the police. He plainly gave them his story that he had lawfully rented the car. They charged him anyway. National was not involved in their decision to lay charges.
[18] There are limits on the protection available to those who report to the police. If one deliberately deceives the police or provides false information, or actively intervenes to cause the charges to be laid, one can be held to have initiated the prosecution under Nelles. See Harrison v. Wirco Products, 2011 ONSC 1049 at para 8 citing Martin v. Watson, [1995] 3 All E.R. 559 (H.L.) at p. 565.
[19] The plaintiff points to Ms Gomes having told the police that they car was “stolen” and repeating that claim ten months after she knew that the plaintiff claimed to have rented the car, and yet again at trial, as proof that National and Ms Gomes were actively involved in the prosecution. Even if the plaintiff is correct in asserting that he thought he had rented the car, or that he did rent the car, National did not know it. National’s alleged neglect may go to the issue of whether it acted with malice as is dealt with below. But merely reporting a fact to the police, even if the fact was incorrect and negligently so, as alleged by the plaintiff, does not make one the initiator of a prosecution where the police have intervened, investigated, and laid charges as is the case here.
(ii) Proceedings Terminated in Favor of the Plaintiff
[20] The plaintiff has proved the second Nelles fact – that the charges were determined in his favour.
(iii) Absence of Reasonable and Probable Cause
[21] The plaintiff says there was no reasonable and probable cause for the charges. National says that this is only an issue where one is held to have initiated the charges i.e. the police. That must be correct because once the court holds that the defendant did not initiate the charges, the tort cannot be made out. Therefore, the assumption in assessing this prong of the test is that the defendant did initiate the charges. The following, then, is a hypothetical or alternative assessment of this issue in case I am wrong on the issue of initiation of the charge.
[22] As Matheson J. discussed at para. 58 of Asagwara, supra, reasonable and probable cause has both objective and subjective elements. Objectively, even some five years later, the plaintiff has yet to produce one iota of objective evidence supporting his claim that he was lawfully in possession of the car. No contract; no phone records; no payment records. Subjectively, National did not know that the plaintiff had the car. While there were other possible explanations as to where a car might have gone (an employee may have moved it for example) there is no evidence undermining National’s belief that the car was not taken legitimately. The plaintiff questions, “Where are National’s documents?” There are none because, it says, it did not lease out the car. All of its internal inquiries were negative.
[23] Even if National was involved in initiating the prosecution, which it was not, the police had reasonable and probable grounds to lay the charges against the plaintiff. National believed that car was stolen and the police found it in the plaintiff’s possession with no support provided by the plaintiff for his claim to have rented it despite proof of his phone and credit card records being in his control (and that is ignoring the plaintiff’s inability to produce a contract given his claim that the police took it or lost it). Therefore the plaintiff does not meet the third test in Nelles.
(iv) Malice
[24] The fourth and final fact that a plaintiff must prove to succeed in a claim of malicious prosecution is malice. Matheson J. defines this term at para. 50 of her reasons in Asagwara, supra, as follows:
Malice is commonly understood as spite or ill-will, and also includes any indirect motive or ulterior purpose: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 145.
[25] The plaintiff is unable to point to any evidence that National or Ms Gomes bore any malice toward him or, for that matter, had ever heard of him. They never told the police that the plaintiff stole the car. They did not know that the plaintiff had the car. All they knew was that it was missing without any apparent lawful excuse i.e. it was stolen, and that is what Ms Gomes told the police.
[26] The plaintiff argues that one need not know of a person to hold malice against him or her. The plaintiff argues further that malice can be inferred from a lack of reasonable and probable grounds. There is some case law for this proposition. In Miazga v. Kvello Estate, 2009 SCC 51, [2009] SCJ No. 51 the Supreme Court of Canada said that malice can be inferred from a lack of reasonable and probable grounds for the charge where the prosecutor is a private person. A lack of reasonable and probable grounds may be evidence of improper purpose of a private informant.
[27] But an important gloss was overlaid on this general proposition by Thorburn J. in Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), 2009 CarswellOnt 7412 as follows:
While it may be possible to infer malice from the absence of reasonable and probable cause to commence or to continue a prosecution, it is only appropriate to do so where the "circumstances [are] such that prosecution can only be accounted for by implying some wrong or indirect motive to the prosecutor, although it may be impossible to say what it was." [Wilson v. Ontario (Metropolitan) Police Service, [2001] O.J. No. 2434 at para. 71. (Sup. Ct.) (QL), aff’d 2002 CanLII 4770 (ON CA), [2002] O.J. No. 383 (C.A.), citing Linda Rainaldi, ed., Remedies in Tort at 15-30 to 15-33.]
[28] It is just not the case that the prosecution can only be accounted for by implying some wrong or indirect motive to National. The prosecution can be accounted for by the independent investigation by the police including their interrogation of the plaintiff.
[29] Even if the National was part of the laying of charges and even if the charges did not have reasonable and probable grounds, there is no evidence of any ulterior motive held by National or Ms Gomes to bring charges against the plaintiff? The plaintiff asserts that National needed to put the blame for the loss of the car on him. Why? There is no evidence at all of any benefit to National or to Ms Gomes of a criminal charge being laid against the plaintiff as compared to anyone else or at all. The is simply no evidentiary foundation for a finding or inference that National or Ms Gomes had any ulterior motive or improper purpose let alone spite or ill-will.
[30] Therefore, three of the four elements of the tort of malicious prosecution cannot be made out.
The Torts of Libel and Slander
[31] In Asagwara Matheson J. held that even if the plaintiff were able to make out the constituent elements of a claim of defamation, the claim is defeated by the defence of qualified privilege. At para. 48 of her reasons, she defined the defence as follows:
Qualified privilege attaches to the occasion upon which the communication is made. Where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it, it is a privileged occasion: Haas v. Davis, 1998 CanLII 14642 (ON SC), [1998] 37 O.R. (3d) 528, [1998] O.J. No. 331 (Ont. Gen. Div.) citing Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3 at p. 5 [headnote], 126 D.L.R. (4th) 609.
[32] In this case, National and Ms Gomes had an interest and duty to communicate to the police about potential theft of the car and the police had a corresponding interest and duty to receive that information. The elements of qualified privilege have therefore been satisfied. Again, none of the facts asserted by the plaintiff concerning his alleged rental of the car affect the defence to this point.
[33] The defence of qualified privilege is defeated by malice. I have previously ruled that the plaintiff was unable to make out a case of malice against the defendants. Therefore the claims in defamation must fail as well.
Summary
[34] I have not found it necessary to make any findings on contested facts or to draw inferences.
[35] There is no tort of negligent investigation against private informants. The police laid the charges after investigation. There were reasonable and probable grounds for them to do so. There is no evidence of National or Ms Gomes knowing who the plaintiff was or having any ulterior motive in reporting the car stolen. National and Ms Gomes had an interest and duty in reporting and the police had an interest and duty in receiving the report made. On well understood principles of law, uncontested or objectively proven facts, there is no issue requiring a trial on any of the causes of action alleged by the plaintiff.
[36] The action is therefore dismissed.
[37] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.
[38] The defendants seek costs on a partial indemnity basis of $25,791.97 for the motion and a further $6,791.33 for the remaining elements of the lawsuit that is now being dismissed in its totality. I have reviewed the hours and rates in the Costs Outlines submitted by the defendants. They are reasonable and unexceptional. The plaintiff sued for $7.5 million. He laid the loss of his professional license and his descent into a whole host of criminality, mental health issues, and family law issues at the feet of the defendants. He had to have expected a full and complete defence to be mounted by the defendants. Accordingly, it is fair and reasonable for the plaintiff to pay the defendants jointly and severally the aggregate sum of $30,000 in costs inclusive of disbursements and HST.
F.L. Myers, J.
DATE: February 12, 2015
CITATION: Ebagua v. National Rent A Car et al., 2015 ONSC 4832 COURT FILE NO.: CV-12-464596 DATE: 20150212
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JUNIOR OSAS EBAGUA
Plaintiffs
- and -
NATIONAL RENT A CAR, EMERALD CLUB and SHIRLEY GOMES.
Defendants
REASONS FOR DECISION
F.L. MYERS J.
Released: February 12, 2015