CITATION: Pitney v. Toronto Police Services Board v. 2016 ONSC 1013

COURT FILE NO.: CV-13-480849, CV-13-480760 and CV-13-479773

DATE: 20160324

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Linda Pitney, Plaintiff

AND:

Toronto Police Services Board, Toronto Police Services, Chief of Police Bill Blair, Det. Const. Andrew MacPhail, Court Officer Melissa Maya, Defendants

AND BETWEEN:

Carole Tovell, Plaintiff

AND:

Toronto Police Services Board, Metro Toronto Police Services, Bill Blair, Chief of Police, Andrew MacPhail, Police Officer, M. Savary, Court Officer, Defendants

AND BETWEEN:

Rafat Parsaei, Plaintiff

AND:

Toronto Police Services Board and Andrew MacPhail, Defendants

BEFORE: Stewart J.

COUNSEL: Linda Pitney (in person) and Carole Tovell (in person) and James C. Morton for the Plaintiff, Rafat Parsaei

Rebecca L. Bush and Kathryn Shani for the Defendants

HEARD: October 29, 2015

ENDORSEMENT

1Three motions for summary judgment have been brought on behalf of Toronto Police Services Board, Toronto Police Services, Chief of Police Bill Blair, Detective Constable Andrew MacPhail and Court Officer Melissa Maya (the “Police Defendants”), all of whom have been variously named as defendants in three separate actions brought by Linda Pitney, Rafat Parsaei and Carole Tovell. The other named defendants as may appear in some of the titles of proceedings have been removed from the actions.

2All three actions arise out of the same circumstances and the same investigation conducted by officers of the Toronto Police Services and involve claims of negligent investigation in respect of criminal charges laid against each of the plaintiffs by the Toronto Police Services on July 9, 2009. Two of the actions also seek damages for malicious prosecution, among other things, as against the Police Defendants.

3By agreement, the motions were heard together on October 29, 2015.

Background Facts

Background Facts

4The criminal charges against the plaintiffs relate to a series of threatening letters which were posted and mailed to residents who lived in the area of the Perth Avenue Public School, a series of harassing phone calls made to staff and the principal of the school and to members of the Toronto District School Board, and a harassing letter sent to a TDSB Trustee. The details of these letters and phone calls are set out in the affidavit of the defendant Detective Constable Andrew MacPhail sworn October 6, 2014, delivered in support of the motions.

5On December 19, 2008, numerous copies of the first threatening letter were found scattered around the school and surrounding neighborhood. The first threatening letter appeared to be written by cutting and pasting block letters. In the letter, a threat was made to shoot a teacher at the school and her baby.

6In response to this event, school officials contacted the police.

7Detective Constable MacPhail’s affidavit outlines the additional events of late 2008 and early 2009 which include the receipt by the school of a series of threatening phone calls and receipt or discovery of additional threatening letters.

8Following an investigation by police and the execution of search warrants, Linda Pitney was charged with one count of Criminal Harassment. Rafat Parsaei was charged with six counts of Threatening Death and five counts of Intimidation, and Carole Tovell was charged with six counts of Threatening Death, five counts of Intimidation and one count of Criminal Harassment.

9Detective Constable MacPhail sets out in exhaustive detail the nature and extent of the police investigation in which he was involved, and attached the memo book notes of the several other officers involved in the investigation leading up to the arrests of the plaintiffs.

10Transcriptions of the evidence heard at the preliminary hearing held on September 13, 2010 and the subsequent trial were also tendered by the Police Defendants in Detective Constable MacPhail’s affidavit evidence.

11On May, 2011, the charges against Parsaei, Pitney and Tovell proceeded to trial before Mr. Justice Cavion of the Ontario Court of Justice. Due to certain medical issues affecting Tovell at the time of trial, the charges against her were severed and were to be tried at a later date.

12At the conclusion of the trial, Cavion, J. found Pitney guilty of Criminal Harassment. She was given a conditional sentence along with 24 months’ probation.

13Although Cavion, J. acquitted Parsaei of the charges of Threatening Death and Intimidation against her, he stated in his reasons that he was “deeply suspicious” of her conduct, as well as of Pitney and Tovell’s involvement in the conduct which prompted the laying of charges. Although Parsaei was acquitted, she agreed to enter into a Peace Bond with conditions.

14After the verdict was handed down for the charges against Parsaei and Pitney, the Crown elected to withdraw the charges against Tovell.

Have any of the plaintiffs raised any genuine issue requiring a trial?

Have any of the plaintiffs raised any genuine issue requiring a trial?

15It is the position of the Police Defendants that summary judgment dismissing all three actions should be granted as there is no genuine issue for trial. In summary, the Police Defendants argue that reasonable and probable grounds existed for these arrests and that the evidence fails to establish any malice on the part of the Toronto Police Services officers involved to sustain the actions in any respect.

16In respect of the Pitney action, it is the further position of the Police Defendants that summary judgment dismissing her action should be granted as it is barred pursuant to the limitation period provided in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B ( the “Limitations Act”)

17The Plaintiffs resist summary dismissal of their actions. For the reasons that follow, I am of the view that summary judgment should be granted dismissing all three actions.

18Pursuant to Rule 20 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, a defendant may move for summary judgment to have all or part of a claim dismissed. The Court shall grant summary judgment if satisfied that there is no issue requiring a trial.

19In determining whether there is a genuine issue requiring a trial, the evidence submitted by the parties must be considered. The motions judge may weigh the evidence, evaluate credibility and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial.

20There will be no genuine issue requiring a trial when the motion 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 allows the judge to make the necessary findings of fact and to apply the law to these facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure (see: Hyrniak v. Mauldin, 2014 SCC 7).

21Summary judgment has been recognized as playing a particularly important role in actions brought against prosecutorial entities. The availability of summary judgment protects the exercise of prosecutorial function in the absence of those entities being given complete immunity from tort claims. Accordingly, courts confronted with motions for summary judgment in factually-laden claims of negligent investigation, wrongful arrest and malicious prosecution are encouraged to carefully examine the factual record and the case as pleaded to determine whether summary judgment should be granted (see: Danos v. BMW Group Financial Services Canada et al, 2014 ONSC 2060).

22The requirement for a party to put its “best foot forward” in responding to a summary judgment motion in cases such as this remains important.

23Neither Tovell nor Pitney delivered sworn affidavits in response to these motions.

24Each of Tovell and Pitney filed an unsworn Reply to Statement of Defence. Although these documents appear set out their respective positions, they do not address the fundamental issues for determination of these motions nor do they amount to an evidentiary basis for a credible response.

25Rafat Persaei swore and delivered a brief affidavit in which she denied having committed any crimes or having any connection to any wrongdoing by Pitney and/or Tovell. She suggests that the charges were laid against her only because she was a convenient suspect and is of Persian background.

26Further, no cross-examination of Detective Constable MacPhail on his affidavit was undertaken on behalf of any of the plaintiffs.

27Pitney provided no explanation for her delay in commencing the action. The proceedings against Pitney terminated on May 18, 2011. Her action was not commenced until May 21, 2013 after the two-year limitation period had expired.

Reasonable and Probable Grounds

Reasonable and Probable Grounds

28Proof that charges were laid in absence of reasonable and probable grounds is a necessary element in establishing the torts of malicious prosecution, false arrest and negligent investigation. Accordingly, the existence of reasonable and probably grounds is fatal to each of these causes of action.

29In its reasons for decision in Nelles v. Ontario, [1989] S.C.R. 170, the Supreme Court of Canada defined reasonable grounds as:

An honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in a position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

30In its reasons for decision in R. v. Storrey 1990 125 (SCC), [1990] 1 S.C.R. 241, the Supreme Court of Canada emphasized that police need not demonstrate anything more than reasonable and probable grounds to justify arrest. Specifically, they are not required to establish a prima facie case for a conviction before making the arrest.

31In Wiles v. Ontario (Police Complaints Commissioner), [1997] O.J. No. 6274 (Div.Ct.), the Court examined the “reasonable grounds” standard and echoed the Supreme Court of Canada’s pronouncement that a police officer is not required to demonstrate anything more than reasonable grounds. A police officer is not required to establish a prima facie case for a conviction before making the arrest, to establish that the charge would succeed a trial, or to establish that the accused has no valid defense to the charge.

32This articulation of the law concerning reasonable grounds for arrest and detention was addressed and adopted in the specific context of a motion for summary judgment in MacPhee v. Ottawa Police Services Board, [2003] O.J. No. 180 (S.C.J). It was likewise concluded that the police need not demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making an arrest.

33Accordingly, the onus rests with each plaintiff to establish an absence of reasonable and probable grounds as a genuine issue for trial. Failing that, the actions must be dismissed.

34In Cellini v. Ontario (Attorney General), [2000] O.J. No. 180 (S.C.J.), the Court stated that to discharge such onus a plaintiff is required to satisfy the court that the defendant officers had before them facts pointing so overwhelming to the plaintiff’s innocence that no reasonable person could have believed in the plaintiff’s guilt.

35Where the Crown prosecutor determines prior to trial that there is a reasonable prospect of conviction, it is implicit in that determination that those involved in the investigation and laying of the charges had reasonable grounds to lay the charge.

36Based on the information provided, I am satisfied that the evidence on these motions establishes that D.C. MacPhail and the Police Defendants had such necessary reasonable and probable grounds and had an objectively reasonable honest belief in the guilt of each of the plaintiffs based on the following:

(a) D.C. MacPhail found the interviewees Nardaya Dipchand, Janet Myers and Muriell Castillo to be honest and credible and he believed their stories to be true;

(b) Parsaei and her husband were angry with the school and with Ms. Myers and Ms. Dipchand as a result of perceived unjust treatment of a student;

(c) The timing of the threatening letters always coincided with an issue at the school involving the student;

(d) Parsaei claimed that she did not know that Myers had a baby, but it was determined that Myers had discussed her pregnancy with Parsaei on a number of occasions and that it was well known that Myers had a baby;

(e) Parsaei also informed officers that she had shared all of her son’s issues with the school with Pitney and had retained her to be her advocate with the school;

(f) Parsaei admitted to police that Pitney was upset about what was allegedly occurring at the school and that Pitney could have made the harassing telephone calls to the school;

(g) Pitney’s voice was also identified as the same voice as that of the female caller in the harassing telephone calls and messages;

(h) The call-back number left by the female caller in the harassing telephone calls matched the number on Pitney’s business card

(i) After a warrant had been issued for the arrest of Pitney, Tovell sent a fax letter to a TDSB Trustee;

(j) A “doodle” on Linda Pitney’s business card also looked similar to a “doodle” which appeared at the end of the second threatening letter;

(k) A copy of the student’s school calendar was found among a pile of copies of the third threatening letters found around the school;

(l) Documents seized during the execution of the search warrants at the residence of Pitney and Tovell and the residence of the Parsaei were inculpatory; and

(m) There were no further harassing calls or threatening letters after Pitney, Tovell and Parsaei were charged.

37In order to establish the tort of malicious prosecution, a plaintiff must demonstrate that the proceedings were instituted or continued by the defendant, the proceedings have been terminated in favour of the plaintiff, the proceedings were instituted or continued without reasonable and probable grounds, and the defendant acted out of malice or for a primary purpose other than carrying the law into effect. Although my conclusion that the existence of reasonable and probable grounds defeats these claims, I will consider the other elements.

38An action for malicious prosecution must be based on more than recklessness or gross negligence. Malice requires evidence that reveals a wilful and intentional effort on the prosecutor’s part to abuse or distort its proper role within the criminal justice system.

39In Nelles (supra), Lamer J. indicated the following regarding the proof of malice for malicious prosecution:

The required element of malice is for all intents, the equivalent of “improper purpose” … In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice. In fact, in some cases this would seem to amount to criminal conduct.

40There is no credible evidence before me to suggest that the actions of D.C. MacPhail and/or any of the other Police Defendants involved were motivated by malice.

41Further, the proceedings were not terminated in Pitney’s favour given that she was convicted of Criminal Harassment. The fact that Parsaei entered into a peace bond following trial suggests that she did not achieve any full exoneration at trial.

42Finally, as stated above, there is no evidence to support any allegation that D.C. MacPhail or any of the Police Defendants involved were negligent in their investigation even assuming such a claim could be capable of success. The Police Defendants conducted a comprehensive investigation and had reasonable grounds to believe that the plaintiffs were involved in the writing and/or posting of the threatening letters, harassing calls and fax letter forming the basis of the charges laid.

Defamation

Defamation

43Pitney and Tovell also seek damages for slander and/or defamation from the Police Defendants. Pitney claims damages for “loss of reputation”. Tovell claims damages for defamation as her “reputation has been tarnished by numerous media articles and photos on the internet and [her] current teaching contracts with the federal government have been seriously jeopardized”.

44A Statement of Claim alleging defamation must set out verbatim the precise words published by the defendant of which the plaintiff complains. The words alleged to be defamatory are material facts. This is a fundamental requirement.

45The plaintiff in a defamation action also must establish that the words stated by the defendant, and complained of by the plaintiff, had a defamatory meaning, that is: a meaning that lowered the plaintiff’s reputation in the estimation of ordinary, reasonable members of society generally, or exposed the plaintiff to hatred, contempt, or ridicule.

46To the extent any statements are attributed to the Police Defendants, they are clearly subject to qualified privilege and cannot sustain an action for damages for defamation.

47In my opinion, it is plain and obvious that these claims for slander or defamation cannot succeed. Both Pitney and Tovell have failed to properly and precisely plead the required elements of the tort of defamation. They have failed to set out the precise words which they claim are defamatory, a fundamental requirement of the pleading, and have failed to plead the alleged defamatory meaning and therefore these claims should be struck. At this stage and on this record, I also find that the claims for defamation do not raise any genuine issue for trial and should be dismissed.

The Charter

The Charter

48Tovell is also seeking damages for violations of her rights under section 7 of the Charter of Rights and Freedoms. In accordance with the above, Tovell has neither established that her Charter rights were breached, nor that an award of damages under section 24(1) of the Charter would be justified on this evidence.

Limitation Period

Limitation Period

49The evidence on the motion establishes that Pitney’s action was commenced after the limitation period expired and must be dismissed on that ground as well.

Conclusion

Conclusion

50For these reasons, the actions commenced by Pitney, Tovell and Parsaei are hereby dismissed.

Costs

Costs

51If the issue of costs cannot be agreed upon, written submissions may be delivered by the Police Defendants within 20 days of the date of this decision and by each of the plaintiffs within 20 days thereafter.

Stewart J.