Kolosov v. Lowe’s Companies Inc., 2016 ONSC 1661

CITATION: Kolosov v. Lowe’s Companies Inc., 2016 ONSC 1661

COURT FILE NO.: CV-12-17981

DATE: 20160324

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mihail Kolosov, Andrei Kolosov also known as Andrei Kolasau, and Alena Kolasava

Plaintiffs

– and –

Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle, Casey Findlay, Windsor Police Services Board, Gary Smith, Former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury, Staff Sgt. Alan Brown, Belleville Police Service Board, Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo, Constable Jeff Ling, Detective Constable Paul Josefik and Her Majesty the Queen in Right of the Province of Ontario as Represented by the Attorney General of Ontario

Defendants

COUNSEL:

Raymond G. Colautti, for the Plaintiffs

Tom Galligan, for the Defendants, Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle and Casey Findlay

Sheila C. Handler, for the Defendants, Windsor Police Services Board, Gary Smith, former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury and Staff Sgt. Alan Brown

Wilfrid Menninga and Melissa Seal, for the Defendants, Belleville Police Service Board, Cory McMullan, Constable Ron Kanyo, Constable Jeff Ling and Detective Constable Paul Josefik

HEARD: May 25, 2015 and August 20, 2015

verbeem j.:

I) Nature of the Motion

[1] The defendants, Belleville Police Service Board, Cory McMullan (The Chief of Belleville Police Services), Police Constable Ron Kanyo, Police Constable Jeff Ling, and Detective Constable Paul Josefik (collectively, “the Belleville defendants”), bring this motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the action against them on the basis that there are no genuine issues regarding their liability that require a trial.

II) Nature of the Action

[2] The plaintiffs, Mihail Kolosov (“Mihail”) and his son Andrei Kolasau, also known as Andrei Kolosov, (“Andrei”), were arrested on April 10, 2010 on charges of possession of property knowing that the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to s. 354(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[3] Mihail and Andrei were arrested pursuant to valid arrest warrants issued on March 25, 2010. The arrest warrants were obtained in relation to an Information sworn by Detective Constable Paul Josefik (“DC Josefik”) based on his investigation of a complaint of fraud and theft at a Lowe’s retail store located in Belleville, Ontario.

[4] Specifically, the Belleville police received a complainant that beginning in early March 2010, Lowe’s received several telephone orders for merchandise from an individual or individuals who provided fraudulent or stolen credit card information to “pay” for the orders.

[5] Mihail, who operated a small moving company out of the Greater Toronto Area (“GTA”), and his son Andrei attended the Belleville Lowe’s location on March 10, 2010 and picked up two of these orders. They assert that they were not involved in placing the orders, rather Mihail was retained, over the phone, to pick up the merchandise from the Belleville Lowe’s location and deliver it to the Toronto area. Mihail and his other son, who is not a party to this action, attended the Belleville Lowe’s location on March 11, 2010 to pick up additional merchandise under similar circumstances.

[6] “Fraudulent credit card” telephone orders were also placed with a Lowe’s store located in Windsor, Ontario. Mihail was retained to attend the Windsor Lowe’s store on March 13, 2010, to pick up merchandise that was obtained by that method and deliver it to the Toronto area. Andrei accompanied him on that date.

[7] While at the Windsor Lowe’s store, Mihail and Andrei were briefly questioned and then arrested by members of the Windsor Police Service and charged with “fraud exceeding $5,000”. They were unable to post a deposit for bail and as a result they were held in custody for nearly 30 days.

[8] On April 9, 2010 Mihail’s wife, Alena Kolasava (“Alena”), attended at the Windsor detention facility and posted bail. Mihail and Andrei were released on April 10, 2010 and immediately arrested, in Windsor, by Bellville Police Constable Ling (“PC Ling”), who executed the valid arrest warrants issued on March 25, 2010. Mihail and Andrei were then transported to Belleville by PC Ling where they were charged with several counts pursuant to s. 354(1) of the Code as a result of their possession of the property that was unlawfully obtained from the Belleville Lowe’s store on March 10 and 11, 2010. Subsequently, they were held in custody for two days pending a show cause hearing.

[9] In the fall of 2010, all charges laid by the Belleville police and the Windsor police were withdrawn by the Crown.

[10] The plaintiffs assert that they were innocent of any criminal conduct in relation to the fraudulent Lowe’s orders and there has never been any evidence to support a reasonable and probable belief in their guilt. Further, there has never been any evidence establishing that either of them “knew” about the unlawful method by which the goods were “obtained” from the Belleville Lowe’s. Accordingly, their arrests and subsequent imprisonment were unlawful and the Belleville police investigation was negligently conducted.

[11] In June, 2012 the plaintiffs commenced this action. Mihail and Andrei claim, among other things, compensatory, punitive and aggravated damages from the Belleville defendants for negligence, false imprisonment, wrongful arrest, and breach of their rights pursuant to the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[12] Alena claims damages from the Belleville defendants for negligence, negligent infliction of nervous shock, loss of care, guidance, companionship and support pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F-3, and breach of her Charter rights.

[13] The plaintiffs also claim damages from the Windsor Police Service Board and members of the Windsor Police Service arising from Mihail and Andrei’s arrest and imprisonment in Windsor and the corresponding Windsor police investigation. They also claim damages from “Lowe’s” and its employees for their respective roles in the investigations that resulted in the plaintiffs’ arrests and the charges against them.

III) Position of the Parties on This Motion

[14] The Belleville defendants deny that they are liable to the plaintiffs as alleged, and they submit that a trial is not required in respect of the claims against them, for several reasons.

[15] First, they assert that the claims for false imprisonment, wrongful arrest and breach of Charter rights are statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B. They submit that those causes of action were discovered on April 10, 2010 when Mihail and Andrei were arrested by PC Ling. The statement of claim was issued more than two years after the alleged causes of action arose.

[16] Conversely, the plaintiffs submit that the applicable limitation period commenced when the charges laid by the Belleville police were withdrawn on October 5, 2010, or alternatively and at the very earliest when the Crown provided full disclosure to their counsel with respect to those charges on September 23, 2010. Therefore, the statement of claim was issued before the limitation period expired.

[17] Second, while the Belleville defendants concede that the plaintiffs’ claims for negligent investigation were commenced within the applicable limitation period, they submit that DC Josefik had reasonable and probable grounds to swear the Information resulting in the warrants for Mihail and Andrei’s arrest and to charge them with the offences he did. Further, his investigation was conducted in accordance with the requisite standard of care.

[18] The plaintiffs submit that the evidence never supported the existence of reasonable and probable grounds to believe that they committed any offence, and that members of the Belleville police acted unreasonably in their investigation.

[19] Finally, the plaintiffs submit that a trial is required for the fair determination of the issues on this motion because of the intertwining acts and omissions of the various defendants (including the Lowe’s defendants and the Windsor police defendants), which they say caused and contributed to the plaintiffs damages, the number of witnesses to be called and the complex factual and legal issues to be determined.

IV) Procedural History of This Motion

[20] This motion was originally returnable before me on May 25, 2015. In support of their motion the Belleville defendants delivered affidavit evidence from Police Constable Kanyo (“PC Kanyo”), PC Ling and DC Josefik. None of those witnesses were cross-examined on their affidavit evidence.

[21] The plaintiffs delivered evidence in the form of a 137 paragraph affidavit sworn by Ms. J.J. Avery, together with 43 exhibits appended thereto. Ms. Avery’s affidavit and related exhibits total 1,014 pages.

[22] Ms. Avery is a lawyer. She represented the plaintiffs, from time to time, in the defence of the criminal charges brought against them by the Windsor police and the Belleville police. She has also assisted plaintiffs’ counsel in the context of this action. She expects to be called as a witness at trial.

[23] Prior to her legal practice, Ms. Avery was employed, at various times, as a police officer, a corrections officer, and a border services officer. She also worked in “retail investigation”. As a result, she believes that she is uniquely qualified to give evidence with respect to this matter.

[24] On receipt of Ms. Avery’s affidavit, the moving parties brought a motion to strike portions of the affidavit for a variety of justifiable reasons. I heard the motion to strike on May 25, 2015 together with a portion of the moving parties’ submissions with respect to the summary judgment motion.

[25] During the course of submissions on May 25, 2015 the parties consented to an order dismissing the action against PC Ling and Chief McMullan.

[26] The balance of the summary judgment motion was adjourned to August 20, 2015. In the interim, I released the reasons for my order striking several portions of Ms. Avery’s affidavit. The plaintiffs delivered a revised affidavit from Ms. Avery that was consistent with my order.

[27] The plaintiffs did not personally swear affidavits in opposition to the summary judgment motion. Instead, the transcripts of their respective examinations for discovery were appended as exhibits to Ms. Avery’s affidavit. In order to avoid an adjournment of the summary judgment motion, the moving parties ultimately agreed that the plaintiffs could rely on their own discovery evidence on that motion. In the result, all of the evidence given by each of the plaintiffs at their examinations for discovery is before me on this motion.

[28] Before turning to the merits, I will consider whether a fair and just determination of the issues before me on this motion can be achieved through summary judgment.

V) Legal Principles Applicable to Summary Judgment

[29] Rule 20.01(3) of the Rules of Civil Procedure provides that:

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[30] Rules 20.04(2) – (2.1), in part, provide:

(2) The court shall grant summary judgment if,

a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;

(2.1) Powers – in determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.

2. Evaluating the credibility of the deponent.

3. Drawing any reasonable inference from the evidence.

[Emphasis added.]

[31] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J. observed that the judicial determination of civil disputes must embrace processes other than a traditional trial where such processes may result in more accessible, proportional, timely and affordable modes of adjudication that yield fair and just resolutions of disputes. Several principles emerge from Hryniak including the following:

a) The procedure used to adjudicate a civil dispute must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interest involved then it will not achieve a fair and just result (para. 29);

b) A genuine issue requiring a trial will not exist when the judge is able to reach a fair and just determination of an action on the merits on a motion for summary judgment. This will occur 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 than a trial (para. 49);

c) When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. However, a process that does not provide a judge with confidence in her conclusions can never be a proportionate method to resolve a dispute (para. 50);

d) On a summary judgment motion, the evidence need not be equivalent to that at trial, but it must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact finding tools, including ordering oral testimony [pursuant to r. 20.04(2.2) in Ontario] is often sufficient to resolve material issues fairly and justly (para. 57);

e) The standard of fairness is, therefore, not whether the procedure utilized to resolve the parties’ dispute is as exhaustive as a trial but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (para. 50).

f) The fact finding powers under r. 20.04(2.1) are discretionary and are presumptively available to the motion judge. They “may” be exercised unless it is in the interest of justice for those powers to be exercised only at trial;

g) In determining whether “it is in the interest of justice” that the r. 20.04(2.1) fact finding powers only be exercised at trial, the motion judge may be required to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial (including the cost and speed of both procedures). The determination may also involve a comparison of the evidence that will be available at trial and the evidence available on the motion, as well as the opportunity to fairly evaluate that evidence. However, even when the evidence available on the motion is limited, there may be no reason to think better evidence will be available at trial (para. 58);

h) When a judge is able to fairly and justly adjudicate a claim through the use of the new fact finding powers it will generally not be against the interest of justice to do so. What is “fair and just” turns on the nature of the issues, the nature and strength of the evidence and the correspondingly proportional procedure in all the circumstances (para. 59);

i) In considering whether the use of the fact finding power accords with the “interest of justice” a judge must consider the consequences of the motion and the context of the litigation as a whole. For instance, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. Conversely, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost efficient approach (para. 60);

j) On a motion for summary judgment the judge should first determine if there is “a genuine issue requiring trial” based only on the evidence before her, without using the new fact finding powers. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the fact finding powers under r. 20.04(2.1) and (2.2). She may, at her discretion use those powers provided that their use is not against the interest of justice (para. 66); and

k) While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact finding powers or to call oral evidence is discretionary, thereby giving the judge some flexibility in deciding the appropriate course of action in the context of a particular motion (para. 68).

[32] Notwithstanding the “culture shift” away from the primacy of trial and towards a proportional adjudicative process that produces a fair and just result, there will still be cases that must go to trial. Evidence by affidavit, prepared by the parties’ legal counsel can obscure the affiants’ authentic voice making the judge’s task of assessing credibility and reliability difficult. Accordingly, the motion judge must take care to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters the procedure in a way that would not likely occur in a full trial when the judge sees and hears it all: see Yusuf (Litigation guardian of) v. Cooley, 2014 ONSC 6501, [2014] O.J. No. 5511, at paras. 8 and 21, and Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.

[33] The evidentiary principles applicable to motions for summary judgment that were developed prior to the enactment of the current provisions of r. 20.04 continue to apply. The motion judge must still take a “hard look” at the evidence to determine whether the moving party has met its onus to demonstrate that there is no genuine issue requiring a trial. Each party must still put its best evidentiary foot forward and submit cogent and compelling evidence to support or oppose the relief sought. The motion judge is entitled to assume the record contains all the evidence the parties will adduce at trial. The moving party is obliged to present a record that can enable the court to avail itself of the enhanced powers under r. 20.04(2.1), if the record warrants the exercise of such discretion. The responding party cannot reasonably rely on the position that a genuine issue requiring a trial exists because additional supportive evidence may emerge at trial.

[34] In my view, summary judgment is a fair and just process to determine the issues related to the Belleville defendants’ liability. On the record before me I am confident that I can find the necessary facts and apply the relative law to the facts and it is in the interest of expedient, proportional and affordable justice to determine the issues of the liability of the Belleville defendants in accordance with the procedure set out in r. 20 of the Rules of Civil Procedure.

[35] I also find that the issues surrounding the Belleville defendants’ liability are discrete and severable from issues involving the liability of the other defendants. I appreciate the plaintiffs’ position that the investigations conducted by the “Windsor police defendants” and “the Lowe’s defendants”, upon which the Belleville police defendants partially relied, were inherently flawed and negligent, and that negligence was adopted by the Belleville defendants once they relied on the results of those investigations. However, on the evidence, I find that it was reasonable for the Belleville defendants to rely on the information provided to them by the Lowe’s defendants and the Windsor police defendants as credible and accurate, in accordance with the subjective evidence given by DC Josefik and PC Kanyo, which was not challenged or contradicted by other evidence adduced on this motion. As a result, I find that it is unnecessary to determine whether the Windsor police defendants, or any of them, or the Lowe’s defendants, or any of them, were negligent in their respective investigations prior to determining issues with respect to the liability of the Belleville defendants. The potential liability of the other defendants does not create a genuine issue with respect to the liability of the Belleville defendants that requires a trial to determine. The liability of the other defendants remain live issues in the action and when those issues come before the court, I am confident that they can be determined without the involvement of the Belleville defendants as parties to the action. While there are cross claims advanced by and against the Belleville defendants, the Lowe’s defendants and Windsor police defendants do not oppose this motion.

[36] Further, the nature of the evidentiary record before me supports that a “fair and just” determination of the liability of the Belleville defendants can be made without a full trial for the following reasons.

[37] First, there are relatively few pure “factual” disputes between the parties. Instead, their primary disputes are focused on whether the evidence available to the Belleville police at the relevant time was capable of supporting the requisite grounds to seek warrants to arrest Mihail and Andrei and charge them with criminal offences and whether the Belleville police investigation was conducted in accordance with the requisite standard of care.

[38] Second, none of the parties conducted cross-examinations of any adverse party for the purpose of this motion. The plaintiffs did not cross-examine the three Belleville police officers who were directly involved in the subject matter giving rise to the plaintiffs’ alleged causes of action (PC Ling, PC Kanyo, DC Josefik). The moving parties ultimately agreed that the plaintiffs could rely on their own discovery evidence on this motion, in part, because they did not wish to cross-examine the plaintiffs.

[39] Third, the plaintiffs have adduced a comprehensive and robust record on this motion that includes: the detailed affidavit of Ms. Avery; transcripts from the examinations for discovery of the plaintiffs as well as the moving parties DC Josefik, PC Kanyo and PC Ling and several of the Lowe’s defendants; other Lowe’s witnesses’ answers to written discovery questions; and a substantial amount of documentary evidence. There is no indication that there may be further evidence available to the court at the time of trial, that is not available now.

[40] Fourth, the plaintiffs did not express an intention to deliver expert evidence on the applicable standard of care. Instead, they submit that they are not required to tender expert evidence on the standard of care applicable to the moving parties who participated in the Belleville investigation, because this court is routinely called upon to review police conduct (particularly in the context of alleged Charter violations) and it routinely does so without expert evidence. Based on their position, the lack of expert evidence on this motion does not raise a genuine issue requiring a trial.

[41] In the result I am satisfied that the evidence contained in the written record before me likely constitutes the evidentiary record that will be developed at trial, as it relates to issues regarding the Belleville defendants’ liability. It is a record that allows me to arrive at a “fair and just” determination of the issues before me and to do so with confidence. I will now turn to the merits of the motion.

VI) Facts and Evidence

a) The Moving Parties’ Evidence

i. The Initial Complaint

[42] On March 13, 2010 the Belleville police received a complaint from the defendant Andrew Fralick, a loss prevention manager for the Lowe’s Home Improvement Warehouse (“Lowe’s”) store located in Belleville, Ontario. Mr. Fralick reported that the Belleville store had been “victimized” by fraud. PC Kanyo was assigned to respond to the complaint.

[43] According to PC Kanyo’s unchallenged evidence, he attended at the Belleville Lowe’s store on March 13, 2010 and spoke directly with Mr. Fralick. Mr. Fralick reported that beginning on March 4, 2010 a series of fraudulent purchases were made through telephone orders placed to the Belleville store (the value of the goods involved totalled approximately $33,000). The orders were placed with the use of stolen credit card information, under several different credit card numbers, using the names “Lachman” and “Kofman”, which were ultimately not the actual names associated with the cards. Mr. Fralick reported that through an internal investigation he confirmed that the purchases were not made by the cards’ actual owners.

[44] Mr. Fralick also informed PC Kanyo that similar fraudulent purchases had been made through the Windsor Lowe’s location under the same names as those used in association with the Belleville orders.

[45] Mr. Fralick then showed PC Kanyo video surveillance footage of two individuals picking up merchandise that was the subject of some of the orders. PC Kanyo deposes that the video recordings displayed two men, the first appearing between 40 and 50 years of age with salt and pepper hair and a medium build. The second was approximately 25 years of age with brown hair and average height and weight. Mr. Fralick stated that both men had heavy European accents.

[46] Mr. Fralick advised PC Kanyo that “store employees do not request personal identification when patrons pick up ‘phone ordered items’”. While PC Kanyo was taking the Lowe’s complaint, Mr. Fralick received a telephone call and subsequently advised PC Kanyo that he was advised two individuals were currently at the Windsor store to pick up goods ordered by telephone and the suspected use of stolen credit card information. Approximately 15 minutes later, Mr. Fralick informed PC Kanyo that the two suspects were in the custody of the Windsor police. He provided PC Kanyo with the licence plate number of a white cube van which he said was being used by the men who were arrested in Windsor. He also told PC Kanyo that a vehicle with the same licence plate had been used to pick up some of the subject orders from the Belleville Lowe’s location.

[47] PC Kanyo performed a licence plate query and determined that the plate was registered to the plaintiff Mihail and associated with a 1996 white Ford CTV cube van. He also learned that the suspects arrested in Windsor were identified as Mihail and Andrei.

[48] After meeting with Mr. Fralick, PC Kanyo prepared a “General Occurrence Report” detailing his involvement in the Lowe’s complaint and the information that was reported to him. He had no further involvement in the investigation or conduct of the matter.

[49] PC Kanyo deposes that he accepted the evidence given to him by Mr. Fralick as credible and he believed it to be true. There is no other evidence that contradicts or challenges his evidence in that regard.

ii. Investigation by DC Josefik/Evidence of DC Josefik

[50] On March 17, 2010 Belleville police officer DC Josefik was assigned to investigate the allegations of fraud at the Belleville Lowe’s store. Initially, he reviewed the General Occurrence Report prepared by PC Kanyo and met with Mr. Fralick at the Belleville Lowe’s store. Mr. Fralick advised him that two males were placed under arrest in Windsor as a result of a similar occurrence to the complaint made in respect of the Belleville store (telephone order using fraudulent credit card information). Mr. Fralick also advised him that the Belleville store had incurred losses in excess of $33,000 as a result of fraudulent purchases made on multiple dates between March 4 and March 12, 2010 through the use of nine different credit card numbers. Mr. Fralick told DC Josefik that the store’s closed circuit TV system (CCTV) had captured images of the men who picked up items obtained through the use of fraudulent credit card information on March 10 and 11, 2010. Mr. Fralick provided DC Josefik with a written statement concerning the details of the Lowe’s complaint.

[51] After meeting with Mr. Fralick, DC Josefik contacted Windsor police officer Detective Constable Kevin McCann (“DC McCann”), who informed him that Windsor police had arrested two individuals in connection with a fraudulent telephone order placed to the Windsor Lowe’s location whom he identified as:

a) Andrei Mihailovich Kolosov, date of birth March 8, 1991; and

b) Mihail Ivanovich Kolosov, born January 14, 1958.

[52] DC McCann sent photographs of the individuals arrested in Windsor to DC Josefik who compared them to “still shots” taken from the Belleville Lowe’s CCTV surveillance. DC Josefik concluded that the individuals in the photographs appeared to be the same persons as those appearing in the Belleville Lowe’s store surveillance.

[53] DC McCann informed DC Josefik that the individuals arrested in Windsor were father and son, and that they had explained that they operated a moving company and had been retained to pick up the goods in Windsor and deliver them to Toronto. DC Josefik and DC McCann both found it strange that the two individuals from Toronto would travel to Windsor and to Belleville to pick up merchandise from Lowe’s locations for the same customer, particularly when there were several Lowe’s stores in the GTA which would have been much closer to them.

[54] After speaking with DC McCann, DC Josefik contacted a Crown attorney to discuss the possible charges arising out of the purchase and receipt of merchandise from the Belleville Lowe’s store through the use of fraudulent credit card information. He was advised by the Crown attorney that the person making the call and placing the fraudulent order was the person committing “fraud” and that the persons picking up the items were in “possession of property obtained by crime”.

[55] Later on March 17, 2010 Mr. Fralick provided DC Josefik with a “package of materials” that included a number of written witness statements from Belleville Lowe’s employees related to the fraudulent credit card purchases. The statements were prepared at the Lowe’s store without the assistance or involvement of DC Josefik, who did not personally interview or interact, at any time, with the persons who made the statements.

[56] All of the statements that were provided to DC Josefik are dated March 17, 2010 and the majority of them were made by Belleville Lowe’s employees who took the fraudulent orders from persons identifying themselves as a variation of “Kofman,”, or “Lachman,”. One of the employees, Robert Bruce, stated that on March 11, 2010 he received a telephone order from an individual who identified himself as “David Kofman.” Mr. Bruce’s statement indicates, in part:

Later that day [being March 11], at 2:30 p.m. I noticed the product that was being picked up was for Kofman. I approached the customer and introduced myself as the person he talked to on the phone earlier that day. He nodded his head and said, “Yes, yes” and shook my hand. The accent of this person was the same as the person I had talked to earlier on the phone.

[57] The package also contained a statement from the Lowe’s loss prevention manager in Windsor, Casey Findlay, confirming that the still photograph of Mihail taken from the Belleville CCTV surveillance on March 11, 2010 depicted one of the individuals that was arrested in Windsor on March 13, 2010, while attempting to pick up items obtained through a fraudulent credit card order.

[58] According to the evidence given by DC Josefik at his examination for discovery (a transcript of which was filed by the plaintiffs for use on this motion), he reviewed all of the CCTV video surveillance footage from the Belleville Lowe’s stores for each of the days that fraudulently obtained property was picked up from that store, specifically March 5, 9, 10 and 11, 2010. He was able to identify Mihail as one of the persons that picked up such property on both March 10 and 11, 2012. He also observed Andrei in the March 10, 2010 CCTV video, but not in the March 11, 2010 video. Neither Andrei nor Mihail were observed in the March 5 or 9, 2010 video and DC Josefik confirmed that two other “unidentified suspects” picked up the fraudulently obtained property on those dates.

[59] On March 22, 2010, while Mihail and Andrei were still in custody in Windsor, DC Josefik advised DC McCann that he would be pursuing warrants for their arrest for possession of property obtained by crime in relation to the property that they picked up from the Belleville Lowe’s location. DC Josefik also advised Belleville Police Inspector Graham of his intention to obtain warrants for the arrest of Mihail and Andrei. Inspector Graham advised him to inform the Windsor police that the Belleville police would “return on the warrants”.

[60] On March 22, 2010 DC Josefik reviewed the Belleville Lowe’s CCTV surveillance from March 10 and 11, 2010 again and specifically observed that the vehicle Mihail used to pick up merchandise on those dates was the same white cube van that was impounded by the Windsor police on March 13, 2010, in connection with Mihail’s arrest on that date.

[61] According to the evidence given at his examination for discovery, during the course of his investigation DC Josefik determined that the credit cards used in relation to the fraudulent purchases from the Belleville Lowe’s store were not physically stolen, and the information on the cards was obtained “fraudulently through other means”. He also contacted a fraud investigator with the financial institution “Citibank” and was advised that some of the credit card information used to place the Lowe’s orders shared a possible common point of purchase in Riga Latvia. The point of purchase related to “bogus internet virus alerts” through which consumers were prompted to enter credit card information to pay for virus removal services. Eventually, DC Josefik received related documentation from the fraud investigator but he did not obtain a witness statement from him.

[62] On March 26, 2010 DC Josefik sent an email communication to the financial institution “MBNA” in reference to certain of the fraudulent transactions at the Belleville Lowe’s location, requesting information about charges on specific credit cards used with respect to certain “Lowe’s” transactions. He is uncertain if he ever received a reply to his inquiry.

iii. DC Josefik’s Evidence with Respect to His Grounds to Believe Mihail and Andrei Committed an Offence

[63] DC Josefik testifies that he had reasonable grounds to believe that Mihail and Andrei committed the offence of possession of property obtained by crime contrary to s. 354(1) of the Code with respect to the merchandise they picked up from the Belleville Lowe’s store in March 2010 based on the following information:

a) Persons whose identity could not be verified had placed telephone orders to Lowe’s for merchandise;

b) The credit cards used to purchase the merchandise were fraudulent or counterfeit, in other words, the true owners of the credit cards did not place the orders picked up by the plaintiffs;

c) A cube van registered to Mihail Kolosov bearing Ontario licence plate 2551TF was used to pick up the merchandise at the Belleville Lowe’s store, and was impounded at the Windsor Lowe’s store where the plaintiffs attempted to pick up merchandise just prior to being arrested;

d) Two individuals who picked up merchandise purchased with fraudulent or counterfeit credit cards at the Belleville Lowe’s store were identified as the plaintiffs Mihail and Andrei, and were the same persons who were arrested at the Windsor Lowe’s store by the Windsor police; and

e) The plaintiffs were arrested by Windsor police while attempting to pick up merchandise ordered by telephone using stolen credit card information and using the same names as those used to fraudulently purchase merchandise in the Belleville Lowe’s store, which the plaintiffs picked up in Belleville.

[64] The following exchange with respect to the formation of his “grounds” is set out at pp. 41-42 of the transcript of DC Josefik’s examination for discovery [with Mr. Colautti (plaintiffs’ counsel) asking the questions]:

225. Q. …From the videos that you reviewed and the documents that you looked at in the course of your investigation and your discussions with - - Mr. Fralick, did you understand that they attended on two separate occasions at the Lowe’s store in Belleville to pick up items?

A. Yes.

226. Q. All right. And in relation to those times, did you - - what evidence did you feel that you had to show reasonable and probable cause that they were in possession of stolen property? Can you just lay that out for me?

A. The false person - - or unknown person calls Lowe’s and places an order. Okay? Whoever that person is coming to pick up an order, when a card comes back as fraudulent or counterfeit, or whatever you want to call it, then they’re executing or finishing that transaction by retrieving those goods. So, they’re in possession of property obtained by crime.

227. Q. Right. What evidence did you have that pointed to the fact that the persons who were picking up the goods knew that the goods had been ordered on fraudulent credit cards?

A. Well, when the - - when the cards have already come back - - and this is after the fact, they’ve already picked up the goods. Okay? Whether they - - they’ve already picked up those goods and it’s come back from a - - a credit card, itself. That’s - -

228. Q. Okay.

A. - - that’s been that. And I’ve spoken, in reference to the Crown Attorney on that, which was previous in my notes, who advised possession of property obtained by crime.

229. Q. All right. Now, what evidence did you have that the persons that you - - that were eventually arrested had a connection to the fraudulent credit cards - - or the person placing the fraudulent credit card order?

A. The person placing the fraudulent credit card, I don’t know whoever they were. If I knew that I would have - - and found out who they were, then I would have made fraud charges on them.

[Emphasis added.]

[65] In his affidavit evidence, DC Josefik testifies that the information given to him by Lowe’s employees in Belleville and Windsor was accepted by him to be credible, was consistent with his own investigation, and led him to conclude that he had sufficient grounds to initiate criminal proceedings against Mihail and Andrei. He was not cross-examined with respect to his stated subjective belief. No other evidence was adduced that contradicts or challenges his evidence with respect to his subjective belief that sufficient grounds existed to initiate criminal proceedings.

iv. Arrest Warrants are Obtained – March 25, 2010

[66] DC Josefik swore an Information on March 25, 2010 with respect to the plaintiffs Mihail and Andrei, respecting charges of possession of property obtained by crime. In the affidavit he filed on this motion he deposes that based on all of the information he received from his review of the Occurrence Report prepared by PC Kanyo, his attendances at the Belleville Lowe’s store, his review of the Belleville surveillance video, and information given to him by Lowe’s employees, he had probable grounds to cause the Information to be sworn against Andrei and Mihail. His evidence with respect to his subjective belief in that regard was not contradicted or challenged by any other evidence adduced on this motion.

[67] DC Josefik then applied to Justice of the Peace Chappelle on March 25, 2010 for warrants for the arrest of Mihail and Andrei for offences pursuant to s. 354(1) of the Code. There is no evidence before me concerning the information and evidence provided to the Justice of the Peace by DC Josefik, or the manner in which it was provided. Ultimately, the Justice of the Peace issued warrants of arrest for Mihail and Andrei on March 25, 2010. At that time, they were still in custody in relation to the attempted fraud charge laid by the Windsor police.

v. The Belleville Police Arrests – April 10, 2010

[68] On April 9, 2010 DC Josefik was advised that Mihail and Andrei would be released from custody in Windsor the following day. Accordingly, on April 10, 2010, PC Ling was order to attend in Windsor to arrest Mihail and Andrei pursuant to the outstanding warrants for their arrest. PC Ling attended at the regional detention centre in Windsor, Ontario and arrested the plaintiffs pursuant to the warrants. He returned the plaintiffs to Belleville where they were held in custody for a show cause hearing on April 12, 2010. PC Ling did not receive a request from either plaintiff to peruse the warrants or to be provided with copies of same.

[69] PC Ling’s involvement with the plaintiffs was limited to executing the arrest warrants, transporting them to Belleville and writing an arrest report.

[70] DC Josefik deposes that Mihail and Andrei did not provide a statement to any officer regarding their explanation for picking up the subject merchandise from the Belleville Lowe’s location, after their arrests by Belleville police.

vi. DC Josefik’s Evidence Regarding Other Aspects of His Investigation

[71] On April 2, 2010, DC Josefik followed up with Mr. Fralick regarding documentation related to the cancellation of the fraudulently placed orders (charge backs) and eventually Mr. Fralick provided that documentation.

[72] DC Josefik also attempted to develop information regarding the phone numbers that were provided to Belleville Lowe’s employees when the individuals using the fictitious names “Kofman and Lachman,” placed the fraudulent orders. He called the numbers but he “could not get through”. He did not obtain telephone records with respect to those numbers because he did not have the actual names associated with them. He testifies that he could not obtain records based solely on the phone numbers given. No evidence was adduced to contradict or challenge his evidence in that regard.

[73] DC Josefik did not interview or speak to Mihail or Andrei at any point. He did not request that Windsor police interview Mihail or Andrei in relation to the merchandise that they picked up from the Belleville Lowe’s location.

[74] DC Josefik attempted to investigate the circumstances surrounding the pick up of merchandise that was obtained through the Belleville Lowe’s location on March 5 and March 9, 2010, by persons other than the plaintiffs. However, he testifies that he did not have any means to identify those individuals and accordingly that portion of the investigation became a “dead end”. DC Josefik also indicates that there was a further fraudulent telephone order placed with the Belleville Lowe’s store on March 11, 2010 which was scheduled for pick up on March 13, 2010. That order was not picked up and no further fraudulent orders were placed after Mihail and Andrei were arrested by Windsor police.

b) The Position and Evidence Relied on by the Plaintiffs

[75] The plaintiffs state that Andrei and Mihail did not engage in any criminal conduct connected to the fraudulent telephone orders placed with the Belleville and Windsor Lowe’s locations. They assert that their innocence ought to have been patently obvious to anyone, (including members of Lowe’s, the Windsor police and the Belleville defendants), through a fair and objective evaluation of the evidence of their limited role in picking up orders in March 2010. As a result, they submit that the Belleville defendants did not have reasonable and probable grounds to arrest them, at any time.

[76] The plaintiffs contend that the Belleville defendants’ misguided belief in the existence of reasonable and probable grounds to arrest and charge Andrei and Mihail was furthered by Lowe’s failure to conduct its “internal investigation” of fraudulent orders in accordance with a reasonable standard of care and Lowe’s decision to limit the evidence it provided to the Belleville defendants to that which tended to implicate Andrei and Mihail. In their view, Lowe’s withheld exculpatory evidence from the police.

[77] Finally, the plaintiffs say that the “grounds for arrest” asserted by the Belleville defendants resulted from their own negligent investigation. Had they conducted a reasonable investigation they would have developed further evidence establishing Andrei and Mihail’s innocence.

vii. The Plaintiffs’ Evidence - Background

[78] The sources of the plaintiffs’ evidence on this motion include the transcripts from their respective examinations for discovery and information they have provided to Ms. Avery, which she believes to be true.

[79] Mihail, Alena and their two sons Andrei and Alexei immigrated to Canada from Belorussia (Belarus). After arriving in Canada the family settled in the GTA, where Mihail operated a small moving business, with the use of a cube van.

[80] In 2010, Mihail and Alena spoke very little English. They are fluent in Russian. Andrei, who was a high school student at the time, did speak fluent English.

[81] Mihail often advertised his moving business in Russian language newspapers circulated in the Toronto area and a significant number of his clients spoke Russian. In the ordinary course of his business, he received customer instructions over the phone to move goods and, at times, to pick up merchandise from large retail stores such as IKEA, Home Depot and Lowe’s and thereafter to deliver the merchandise to a location specified by the customer. He was typically paid a small fee for his services, often in cash.

viii. The Plaintiffs’ Dealings with “Kofman” and “Lachman”

[82] On March 10, 2010, Mihail received a telephone call from an individual who identified himself as “Lachman”. The plaintiffs do not know Lachman’s true identity. Lachman asked Mihail to attend at a Lowe’s store in Belleville, Ontario to pick up merchandise held under the “Lachman” name that was already paid for and to transport it back to Toronto. Mihail agreed and he and Andrei, who was on a school break, drove from Toronto to the Belleville Lowe’s location that day. When they arrived, they attended at the customer service desk, where Mihail told a Lowe’s employee that he was there to pick up goods held under the name “Lachman”. He was provided with merchandise with a total value of $5,678.47 that was the subject of two separate orders – one for a number of lights and the other for a washer and dryer. The merchandise was loaded into Mihail’s vehicle and he and Andrei returned to Toronto. As they neared the GTA, they received instructions from “Lachman”, over the phone, to deliver the goods to a location specified as “120 Torresdale”, which brought them to the end of a dead end street, situated about 200 metres from Mihail’s own residence.

[83] Mihail and Andrei arrived at the “drop off” location, after dark, at approximately 7:00 p.m. The Lowe’s merchandise was then transferred, on the street, to a second vehicle. The transfer occurred quickly, and some of the merchandise was transferred from Mihail’s truck directly onto the road before the second vehicle arrived. Mihail testifies that he did not know the individual who operated the second vehicle, who identified himself as “Vitaly”. When Vitaly arrived at the transfer location, he passed a phone to Mihail, who was then instructed, over the phone, by “Lachman” to give Vitaly the Lowe’s merchandise. Mihail complied and was then paid $400 in cash. Mihail did not provide anyone with a receipt for his services and no paperwork was exchanged on delivery.

[84] On March 11, 2010, Mihail received a telephone call from an individual who identified himself as “David Kofman”. Kofman asked Mihail to attend at the Belleville Lowe’s location to pick up merchandise held under the name “Kofman” that was already paid for. Mihail and his son Alexei, drove from Toronto to the Belleville Lowe’s store that day. Either Mihail or Alexei told a Lowe’s employee that they were there to pick up an order for “Kofman”. They were provided with merchandise that included a Pfister shower panel - Spaberry, white furniture, an antique mirror and a Weber barbeque, among other things. The items were loaded into Mihail’s cube van by Lowe’s employees.

[85] Mihail and Alexei transported the merchandise from Belleville to the Toronto area, where they delivered it to the same location at the end of the dead end street where Mihail had delivered the “Lachman” orders on March 10, 2010. Once there, the merchandise was transferred, on the street, to the back of a second vehicle and received by the same individuals as those who received the merchandise on March 10, 2010. No paperwork was exchanged on delivery.

[86] On March 12 or 13, 2010, Mihail received another telephone call from an individual identifying himself as “Kofman” and was asked to attend at the Lowe’s location in Windsor to pick up orders that were already paid for and held under Kofman’s name. Mihail agreed and on March 13, 2010 he and Andrei drove from the Toronto area to Windsor and attended at the Lowe’s location there. Upon arrival, Andrei advised Lowe’s employees at the customer service desk that he and Mihail were picking up an order for Kofman. He was told that there was a complication with the order. Mihail called “Kofman” from his cell phone and handed the phone to a Lowe’s employee so that “Kofman” could answer the employee’s questions directly. Mihail and Andrei were asked to wait as the Lowe’s employee spoke to “Kofman”.

[87] Unbeknownst to Mihail and Andrei, the Windsor Lowe’s loss prevention manager contacted the Windsor police and reported that there was likely a “fraud in progress” at the store.

[88] Eventually, two Windsor Police Service officers, including Police Constable Jacqueline Khoury (“PC Khoury”), arrived at Lowe’s and questioned Mihail and Andrei about their business. With Andrei acting as an interpreter, Mihail informed PC Khoury that he operated a moving company and he was retained, by phone, to pick up goods at the Windsor Lowe’s location and deliver them to a customer in Toronto. Mihail offered his cell phone to PC Khoury and indicated that she could speak to Kofman herself.

[89] Mihail testifies that at his urging, PC Khoury took the cell phone from him, and engaged in a brief conversation with an individual self-identifying as Kofman. He further states that eventually PC Khoury handed the phone back to him, and informed him (and Andrei) that the goods they were attempting to pick up were fraudulently purchased. Andrei reiterated that his father owned a moving company, they were only there to transport the goods and that they had no idea how the goods were paid for or obtained.

[90] Andrei testifies that when the police arrived they asked him what he and Mihail were “doing” and why they were in the store. He told the police that they were there to make a delivery to Toronto. He confirms that on further police questioning he told police that he did not know what specific merchandise they were picking up or the specific address where the goods were to be delivered. During initial police questioning, a Lowe’s customer service representative was talking to “Kofman” on Mihail’s phone. At his examination for discovery, Andrei testified that he did not ask for the opportunity to speak to Kofman in the presence of the police to confirm, for their benefit, that Kofman had placed the order. He also indicates that even after they were handcuffed the Kolosovs did not offer their cellphones to Windsor police officers to request that they contact Kofman. There is no sworn evidence from PC Khoury or any other Windsor Police Service officer before me.

[91] PC Khoury arrested Mihail and Andrei, charged them with attempted fraud exceeding $5,000, and handcuffed them in the Lowe’s store. Andrei testifies that the only “assistance” the plaintiffs subsequently offered to the Windsor police was a proposal that officers could follow his father and him back to Toronto to the place where the merchandise was to be delivered, a location unknown to the plaintiffs at the time of their arrests. Despite being handcuffed Andrei did not appreciate that he had been arrested. He thought he was being transported to the Windsor police station to speak to detectives.

[92] Subsequent to their arrest Mihail and Andrei were held in custody at the detention centre in Windsor pending further investigation.

[93] When Mihail and Andrei were arrested in Windsor, Alena was visiting in Belarus. With Alena out of the country, Mihail and Andrei were unable to post the cash deposits necessary for their judicial interim release. On news of the arrests, Alena returned to Canada but was unable to secure a return flight until April 2, 2010. On her return, she borrowed $4,000 in cash, which was deposited with the bailiff on April 9, 2010, in order to secure Andrei and Mihail’s release. Andrei and Mihail were released on bail on April 10, 2010 and almost immediately arrested again on charges laid by the Belleville police. They were transported to Belleville, held in custody for a show cause hearing, and eventually released on bail.

[94] At the time the Belleville police arrested Mihail and Andrei, Ms. Avery was their “counsel of record”. She testifies that the Belleville police did not request an opportunity to question Mihail and Andrei in relation to the charges they laid and she states that had a request been made she would have “encouraged” them to answer questions regarding their various attendances at the Lowe’s stores. In her view, the suggestion that questioning did not take place by Belleville police officers because Mihail and Andrei “refused” to answer questions or otherwise actively asserted their right to silence, is false and misleading.

[95] The plaintiffs contend that the scope of the fraud committed against Lowe’s extended beyond the orders they picked up. Documentary evidence provided by Lowe’s demonstrates that the Lowe’s stores in Belleville and Windsor received 15 fraudulent telephone credit card orders between the two locations over the course of nine days in March 2010. The Kolosov family was responsible for picking up eight of those orders on three separate attendances at Lowe’s stores (they picked up more than one order at a time). There were seven orders placed under the names of “Kofman” and “Lachman” that were either picked up by individuals other than the plaintiffs or were not picked up at all. On March 11, 2010, while Mihail and Andrei were picking up an order in Belleville, a different order placed under the name “Lachman” or “Kofman” was picked up in Windsor by individuals other than the plaintiffs. Those individuals have never been identified. No charges were laid against any individuals other than Mihail and Andrei.

[96] DC Josefik testified at his examination for discovery that he relied on the investigations conducted by Mr. Fralick and Mr. Findlay (Lowe’s loss prevention managers) and the investigation conducted by the Windsor police, and in particular DC McCann. Internal Windsor Police Service documentation including a “Charge Sheet” completed by PC Khoury on March 13, 2010 and an email exchange between DC McCann and a Windsor Crown attorney on May 13, 2010 confirmed that the Windsor police investigation was not complete as of May 13, 2013. Additionally on May 3, 2010, DC McCann received video surveillance from the Windsor Lowe’s location dated March 11, 2010, which confirmed that a fraudulent order was picked up from the Windsor Lowe’s location on that date by persons other than the plaintiffs (consistent with Mihail’s attendance in Belleville that day).

[97] The plaintiffs assert that in the course of their investigation, Windsor police officers did not directly obtain written witness statements from any of the Windsor Lowe’s employees except for that store’s loss prevention manager. Windsor police detectives did not question any of the Lowe’s customer service employees who dealt directly with Mihail and Andrei or any Windsor Lowe’s employees who received the fraudulent telephone orders. However, I do not find that it is necessary to make factual determinations regarding the complete scope of the Windsor police investigation in order to determine the issues on this motion and I decline to do so.

[98] With respect to the Belleville police, the plaintiffs submit that the witness statements from Lowe’s employees provided to DC Josefik by Mr. Fralick contained important exculpatory evidence that was ignored by DC Josefik. Specifically:

a) the first fraudulent order was placed on March 4, 2010 under the name “Kofman”, who provided seven different credit card numbers that were rejected, before an eighth card was approved;

b) the March 4, 2010 order was not picked up by the plaintiffs;

c) an order was placed by “Lachman” on March 9, 2010 for pick up on March 10, 2010. Employees were instructed by management to validate the credit card used by Lachman when the order was picked up, and the employees failed to do so;

d) multiple orders were placed under Kofman’s name on March 11, 2010 and five different credit card numbers were provided before the sale was approved. Employees who released the ordered merchandise to Mihail and Andrei did not validate the ordering credit card when the goods were picked up, despite being instructed by management to do so;

e) there were no statements provided from employees who dealt directly with the plaintiffs or directly with others who picked up merchandise obtained through fraudulent orders;

f) a statement from the Windsor Lowe’s employee who spoke to “Kofman” immediately prior to Andrei and Mihail’s arrest was not provided.

[99] Lowe’s documentation evidences that other fraudulent orders were placed with the Windsor store under the name “Mark Levi”. Windsor loss prevention manager Findlay testifies that he did not provide information regarding the “Levi” orders to the Windsor police because he understood that the plaintiffs were only charged in relation to the Kofman orders. The plaintiffs say that this evidences that Lowe’s withheld exculpatory evidence demonstrating the fraud scheme was not limited to transactions in which they were involved.

VII) Reasons for Disposition

a) Executive Summary

[100] For the reasons set out below, I concluded that summary judgment dismissing the action against the Belleville Police Service Board, Constable Ron Kanyo and Detective Constable Paul Josefik ought to be granted. In my view, the moving parties have established that the evidentiary record does not raise any genuine issue requiring a trial with respect to their liability, as alleged.

[101] While I will specifically address each relevant aspect of the motion below, in general, I conclude that:

1. The plaintiffs’ claims for false arrest, false imprisonment and violations of their Charter rights by the Belleville defendants are answered by the fact that Mihail and Andrei were lawfully arrested pursuant to facially valid warrants for their arrest. Their arrests were subject to prior judicial authorization. There is no allegation and no evidence before me that demonstrates that the decision to hold Mihail and Andrei for a show cause hearing after they were arrested by PC Ling was unreasonable or independently violated their Charter rights;

2. The plaintiffs’ claims for false arrest, false imprisonment and related Charter violations were discovered at the time of arrest and detention on April 10, 2010. As a result those claims are statute barred pursuant to the provisions of the Limitations Act, 2002;

3. The plaintiffs’ claims founded in negligent investigation were discovered in October 2010, when the charges laid by the Belleville police were withdrawn. Their action in that regard was commenced within the applicable limitation period. However, the totality of the evidence does not establish that the Belleville defendants, or any of them, failed to act in accordance with the requisite standard of care when investigating Mihail and Andrei’s possession of property obtained by crime from the Belleville Lowe’s location;

4. On all of the evidence, I find that DC Josefik held an honest belief that sufficient grounds existed to seek warrants for Mihail and Andrei’s arrest for offences under s. 354(1) of the Code and to charge them with such offences. I also find that his belief in that regard was objectively reasonable in all of the circumstances;

5. Since I have concluded that Mihail and Andrei’s claims should be dismissed, Alena’s derivative Family Law Act claim must also be dismissed. Additionally, I conclude that the Belleville defendants did not engage in any negligent acts or omissions as it relates to their investigation and arrest of Mihail and Andrei and as a result there is no factual basis for Alena’s claim for “infliction of nervous shock”.

b) The Plaintiffs’ Claims for False Arrest, False Imprisonment and Related Charter Breaches

[102] False arrest and false imprisonment are actions in trespass. To establish a false arrest, the plaintiff must only prove that the defendant caused the plaintiff to be arrested. Once that is done, the onus shifts to the arresting party to justify his or her actions as lawful. Where the arrest is made, without a warrant, a defendant can prove justification by showing that, objectively, there were reasonable and probable grounds for the arrest and that he or she subjectively believed that there were reasonable and probable grounds to make the arrest: see Lloyd v. Toronto (City) Police Services Board, [2003] O.T.C. 19, [2003] O.J. No. 83 (Ont. S.C.), at paras. 74-75.

[103] However, Mihail and Andrei’s arrests were the subject of prior judicial authorization manifested in the arrest warrants issued by Justice of the Peace Chappelle on March 25, 2010. The warrants were lawfully executed by PC Ling on April 10, 2010.

[104] In order to establish the tort of false imprisonment, the plaintiffs must initially demonstrate that they were completely deprived of their liberty by the defendants, against their will. Once that is demonstrated the onus then shifts to the defendants to show that the detention was justified at law: see Lloyd, at para. 37; Wong v. Toronto Police Services Board (2009), 2009 CanLII 66385 (ON SC), 183 A.C.W.S. (3d) 89, [2009] O.J. No. 5067 (Ont. S.C.), at para. 74.

[105] Unquestionably, after Mihail and Andrei were arrested by PC Ling they suffered a total depravation of their liberty pending their show cause hearing. Accordingly, the onus shifts to the defendants to justify the detention.

[106] The plaintiffs submit that the evidence related to their claims for false imprisonment, false arrest and related Charter breaches raise genuine issues requiring trial, and in particular the issue of whether the evidence available to the Belleville police at the time of their arrests was capable of supporting “reasonable and probable grounds” for the arrests. They contend it was not, and suggest instead that the evidence supported that they were innocent. For the following reasons, I do not accept the plaintiffs’ position.

[107] First, PC Ling arrested the plaintiffs pursuant to valid arrest warrants issued by a justice of the peace pursuant to s. 507(1) of the Code. That section provides that a justice who receives an Information by a peace officer shall hear and consider, ex parte, the allegations of the informant and where the justice of the peace considers it desirable and necessary to do so, the evidence of witnesses. Where a justice considers the case for doing so is made out, the justice of the peace shall issue either a summons or a warrant for the arrest of the accused to compel the accused to attend before the court to answer to a charge of an offence: see s. 507(1) Criminal Code.

[108] There is no record, or other evidence, before me indicating the nature or extent of the allegations and/or evidence disclosed to the justice of the peace prior to the issuance of the arrest warrants. However, the responding parties have not challenged the validity of the arrest warrants or the manner in which they were issued, in the context of this proceeding and there is no evidence that they did so in any other context.

[109] I accept the evidence that the plaintiffs were arrested pursuant to valid warrants. In my view, that fact acts as a complete answer to the plaintiffs’ claims for false arrest, false imprisonment and the related Charter breaches. Since the arrests were made pursuant to valid warrants the Belleville defendants have discharged their onus to justify the arrests as lawful: see G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters Canada Limited, 2010), at pp. 96-97.

[110] PC Ling did not rely on the police power to arrest an individual without a warrant pursuant to s. 495 of the Code. Since the arrests were made pursuant to warrants the Belleville defendants do not need to demonstrate that PC Ling had reasonable and probable grounds, within the meaning of that section, to arrest the plaintiffs on April 10, 2010.

[111] Further, I find that because the plaintiffs were “detained” as a result of PC Ling’s execution of valid warrants for their arrest and subsequently held for a show cause hearing, their detention was not arbitrary within the meaning of s. 9 of the Charter. The Belleville defendants have met their onus to justify the plaintiffs’ detention as lawful.

[112] The second reason for dismissing the claims for false arrest and related Charter breaches against the Belleville Police Service Board lies in the order I made, on consent, on May 25, 2015 dismissing the claim against PC Ling. Since PC Ling was acting in obedience to warrants issued by a justice of the peace when arresting Mihail and Andrei, he is immune from liability for the plaintiffs’ arrests pursuant to s. 6(1) of The Public Authority Protection Act, R.S.O. 1990 c. P.38. PC Ling was the only officer involved in Mihail and Andrei’s arrest. Since PC Ling is not liable to the plaintiffs for the arrest there is no basis to find the Belleville Police Service Board vicariously liable for his acts of arrest.

[113] Third, the plaintiffs’ claims for false arrest, false imprisonment and related Charter breaches are statute barred pursuant to the Limitations Act, 2002, because they did not bring their action within two years of their arrest and detention.

[114] Relying on Ms. Avery’s evidence, the plaintiffs observe that in her role as Mihail and Andrei’s criminal counsel, she did not receive complete disclosure from the Belleville Crown attorney until September 23, 2010. The charges laid by the Belleville police were not withdrawn until October 18, 2010. The plaintiffs submit that without the Crown disclosure brief, they had no way of knowing who the arresting officers were, who swore the information to lay the charges or who the investigating officers were. In addition, Ms. Avery states that without disclosure the plaintiffs “did not know and could not assess what evidence had been gathered by the police, who they interviewed and what steps they failed to take in their investigation”. Therefore, they posit that they could not be deemed to have “discovered” their “claims” until disclosure was complete.

[115] I reject the plaintiffs’ position for the following reasons.

[116] Section 4 of the Limitations Act, 2002 requires a plaintiff to bring an action in respect of a “claim” no later than the second anniversary of the day on which the claim was “discovered”.

[117] Subsection 5(2) of the Act effectively provides that “a claim” is discovered on the date the act or omission on which the claim is based took place, unless the contrary is proved.

[118] Causes of action for false arrest, false imprisonment and breach of Charter rights arising therefrom crystallize on the date of the arrest or detention and not on the date of the conclusion of any prosecution that arose from the same facts: see E.B.F. (Litigation guardian of) v. Ontario, 2013 ONSC 2581, [2013] O.J. No. 5330, at para. 16 and Wong, at para. 75.

[119] Since Andrei and Mihail were arrested and detained on April 10, 2010 any cause of action for wrongful arrest, wrongful imprisonment/detention and any related Charter breaches, presumptively arose on that date. The evidence does not persuade me, on an objective standard, that on the date of their arrests either Mihail or Andrei lacked subjective knowledge of the facts upon which their claims for false arrest and related Charter breaches are based.

[120] There is also no evidence that either Mihail or Andrei suffered from a disability or incapacity in April 2010, or any time thereafter, that impacted their respective abilities to appreciate: the fact of the arrest and detention; that charges had been laid by the Belleville police; or their belief in their innocence. Despite the plaintiffs’ assertion that they did not have the requisite knowledge to appreciate that a proceeding would be an appropriate means to seek a remedy until full disclosure was made by the Crown, I find that such knowledge reasonably existed when Mihail and Andrei were arrested and detained for offences they believed they did not commit.

[121] The plaintiffs have not adduced evidence that persuasively rebuts the presumption set out in s. 5(2) of the Act.

[122] Based on their evidence on this motion, I find that at the time they were arrested Mihail and Andrei believed they were innocent of any criminality with respect to the Belleville Lowe’s orders. As of April 10, 2010, they were aware they were arrested and charged with criminal offences by Belleville police officers and they were aware that they were transported to Belleville where they were held in custody secondary to their arrests. While they may not have known the identity of the specific arresting officer, they knew that they were arrested and detained by an officer of the Belleville Police Service. A proceeding could have been commenced against the Belleville Police Service Board and the arresting officer naming him as a “John Doe” defendant if his identity was not forthcoming.

[123] Finally, full disclosure by the Crown was not necessary for the plaintiffs to discover their claims for false arrest, false imprisonment and related Charter breaches. While full disclosure may have informed the strength of their cases, the plaintiffs’ knowledge of their claims existed on the day of arrest and imprisonment, based on their knowledge of the relevant facts set out above: see E.B.F., at paras. 19-20.

[124] As a result, I conclude that Andrei and Mihail’s claims for false arrest, false imprisonment and related Charter violations were discovered on April 10, 2010. Since their proceeding was not commenced until June 5, 2012, their claims in that regard are statute barred pursuant to the provisions of the Limitations Act, 2002.

c) The Plaintiffs’ Claims for Negligent Investigation

[125] The plaintiffs argue that at an early stage in the investigation DC Josefik unreasonably determined that Andrei and Mihail should be charged with indictable offences for knowingly possessing property obtained by crime, solely because they attended at a Lowe’s store and picked up merchandise ordered by someone else over the telephone. They submit that the Belleville defendants (and in particular DC Josefik) negligently conducted their investigation because they:

a) Caused Andrei and Mihail to be arrested despite a lack of reasonable and probable grounds. Specifically, DC Josefik swore the Informations related to the plaintiffs, without any evidence establishing the knowledge required for the offences;

b) Completely ignored the plaintiffs’ “innocent explanation” of their possession when considering whether subjective and objective grounds to pursue charges or an arrest existed;

c) Failed to investigate the issue of “guilty intent” and therefore did not have an objective basis for believing that Mihail and Andrei possessed such intent;

d) Failed to continue the investigation after the plaintiffs’ arrests;

e) Failed to investigate or consider the exculpatory information provided by Mihail and Andrei to the Windsor police;

f) Placed undue reliance on information given to them by Lowe’s employees;

g) Failed to take any steps to ascertain the true identity of “Kofman” and “Lachman”;

h) Failed or refused to take any steps to withdraw charges or correct the Information sworn to initiate charges against Mihail and Andrei, when they knew or ought to have known that they were not parties to the fraudulent transactions;

i) Failed to take any steps or adequate steps to identify any of the parties to the fraudulent transactions that occurred at the Belleville and Windsor Lowe’s locations;

j) Failed to consider the evidence that multiple fraudulent orders under the same customer name were picked up on the same day in both Windsor and Belleville by different individuals; and

k) Failed to consider that other orders under the names “Lachman” and “Kofman” were picked up in Belleville by persons other than the plaintiffs.

[126] In Hill v. Hamilton-Wentworth (Regional Municipality)Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, the Court concluded that there are some circumstances in which police officers do owe a duty of care to the subjects of a criminal investigation. Generally, a police officer owes a duty of care to suspects such that the officer will be liable for negligence if he or she fails to meet the standard of care of a “reasonable police officer in similar circumstances”. The applicable standard of care does not demand perfection or even optimum police conduct judged from the vantage of hindsight. The standard is that of a reasonable officer judged in the circumstances prevailing at the time the decision was made, which may include urgency and deficiencies of information (para. 73).

[127] The conduct of a police officer must be evaluated in accordance with the requisite standard of care that existed at the time of the investigation and not at the time of the evaluation of the reasonableness of the investigation by a trier of fact (para. 80).

[128] The standard of care of “a reasonable police officer in similar circumstances” should be applied in a manner that recognizes the discretion inherent in police investigation. The requisite standard of care is not breached because a police officer exercises his or her discretion in a manner that is viewed as less than optimal by the reviewing court. Police officers are entitled to exercise their discretion as they see fit, provided they stay within the bounds of “reasonableness” (para. 73).

[129] Police officers may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care (para. 73).

[130] The recognition of a duty of care owed by police to suspects does not elevate the standard required of police from “reasonable and probable grounds” to some higher standard. The requirement of reasonable and probable grounds for arrest and prosecution informs the standard of care applicable to those specific aspects of police work (para. 54).

[131] Police are concerned primarily with gathering and evaluating evidence. Prosecutors are concerned mainly with whether the evidence the police have gathered will support a conviction at law. The fact based investigative character of the police task distances it from a judicial or quasi-judicial role. The possibility of holding police civilly liable for negligent investigation does not require police to make judgments as to “legal guilt or innocence” before proceeding against a suspect. While police are required to weigh evidence, to some extent, in the course of an investigation they are not required to evaluate evidence according to legal standards or to make legal judgments. Rather, that is the task of prosecutors, defence attorneys and judges (paras. 49 and 50).

[132] Police officers must approach their duties with an open mind, and must be willing to re-investigate matters when circumstances warrant such action. When new information emerges that could be relevant to the suspect’s innocence, “reasonable police conduct” may require the file to be reopened and the matter re-investigated. The requirements imposed by the “duty to re-investigate” vary depending on the nature of the evidence which later emerges. In some cases, an examination of the evidence and a determination that it does not warrant further action may be enough. In others, reasonable prudence may require the police to re-examine prior theories of the case, test the credibility of new evidence and engage in further investigation based on the new evidence. However, police investigations are not never ending processes extending indefinitely past the point of arrest. Police officers acting reasonably may, at some point, close their case against a suspect and move on to other matters. The question is always what a reasonable officer, in like circumstances, would have done to fulfill the duty to re-investigate and to respond to new evidence (para. 84).

[133] In accordance with the foregoing principles, I will now consider the various aspects of the conduct of the Belleville defendants, particularly DC Josefik, that form the basis of the plaintiffs’ claims for negligent investigation. I will begin with the allegation that the moving parties caused Andrei and Mihail to be arrested and charged in the absence of reasonable and probable grounds to believe they committed an offence.

1. Existence of Reasonable and Probable Grounds

[134] For the reasons set out below, I conclude that DC Josefik had reasonable and probable grounds to swear an Information, apply for arrest warrants, and to charge Mihail and Andrei with offences pursuant to s. 354(1) of the Code.

i. Reasonable and Probable Grounds – Legal Principles

[135] In reaching the conclusion stated above, I have considered the following legal principles, in addition to those set out in Hill:

a) For a claim for negligent investigation to succeed the plaintiff must establish that police negligence caused the charges to be laid in circumstances where reasonable and probable grounds did not exist. Failure by the plaintiff to establish the absence of reasonable and probable grounds is fatal to a claim for negligent investigation: see Kellman v. Iverson, 2012 ONSC 3244, [2012] O.J. No. 2529, at para. 23;

b) Reasonable and probable grounds have both a subjective and an objective component. An arresting officer must subjectively have reasonable and probable grounds on which to base the arrest and a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. However, the police need not go further and establish a prima facie case against the suspect: see R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at para. 17;

c) A peace officer’s subjective belief of the existence of reasonable and probable grounds is a question of fact. Whether the subjective belief is objectively reasonable is a question of law: see Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 74;

d) In Wiles v. Ontario (Police Complaints Commissioner), [1997] O.J. No. 6274, 1997 CarswellOnt 6039 (Ont. C.J. (Div. Ct.)), at para. 47, the Divisional Court held that in forming reasonable and probable grounds a police officer is not required:

i. to establish a prima facie case for conviction before making an arrest;

ii. to establish that the charge would succeed at trial; or

iii. to establish that the accused had no valid defence to the charge.

e) The police are not required to guarantee a conviction of a person placed under arrest: see Magiskan v. Thunder Bay (City) Police Services Board, 2011 ONSC 7334, [2011] O.J. No. 5920, at para. 32;

f) The function of the police is to investigate incidents which might be criminal and to make a conscientious and informed decision as to whether charges should be laid and then to present the full facts to the prosecutor: see Wong, at para. 56, and 495793 Ontario Ltd. (c.o.b. Central Auto Parts) v. Barclay, 2014 ONSC 3517, [2014] O.J. No. 2753, at para. 32;

g) In determining whether they have reasonable grounds, police officers have a duty to be observant, receptive and open-minded and note any relevant circumstance which points either to innocence or to guilt: see 495793 Ontario Ltd., at paras. 34-35;

h) Police may not meet the appropriate standard of care where they fail to consider, document, investigate and disclose to the Crown attorney innocent explanations given by suspects or other indicia of innocence: see 495793 Ontario Ltd., at para. 51;

i) Police officers are not entitled to ignore exculpatory evidence in determining whether reasonable and probable grounds to lay charges exist. However the police are not obligated to weigh and determine the validity of various versions of events and render judgment before arresting or charging the accused: see Kellman, at para. 18; Wiles, at para. 50; and

j) The onus is on the plaintiff to demonstrate that the evidence available to the officer pointed so overwhelmingly to the plaintiff’s innocence that no reasonable person could have believed in the plaintiff’s guilt: see Kellman, at para. 17.

ii. Reasonable and Probable Grounds Existed

[136] In his affidavit, DC Josefik deposes that he held a subjective belief that reasonable grounds existed to arrest and charge Mihail and Andrei with offences pursuant to s. 354(1) of the Code. His evidence in that regard, which I accept, was not challenged or contradicted.

[137] I also find that DC Josefik’s stated subjective belief was objectively reasonable. At the time he sought the arrest warrants and at the time that Mihail and Andrei were charged, DC Josefik was aware of evidence, which he believed to be credible, indicating that:

a) On March 10 and 11, 2010 merchandise was fraudulently obtained by individuals from the Lowe’s store in Belleville, Ontario;

b) On March 13, 2010 two individuals were arrested at the Lowe’s location in Windsor in the process of attempting to obtain possession of goods that credibly appeared to have been procured through fraudulent means;

c) The individuals arrested in Windsor were identified as the plaintiffs Mihail and Andrei;

d) Photographs of the persons arrested in Windsor (Mihail and Andrei) matched video surveillance images of the individuals who picked up the subject merchandise from the Belleville Lowe’s location on March 10, 2010. A photograph of one of the individuals arrested in Windsor (Mihail) matched video surveillance images of one of the individuals who picked up the subject merchandise from the Belleville Lowe’s location on March 11, 2010;

e) A vehicle impounded in connection with the plaintiffs’ arrest in Windsor was identified as the same vehicle used to pick up the subject merchandise from the Belleville Lowe’s location on March 10 and 11, 2010; and

f) A similar mode of commission (the fraudulent use of credit card information) was employed to obtain merchandise from the Belleville Lowe’s location on March 10 and 11, 2010 and in the attempt to obtain merchandise from the Windsor location on March 13, 2010 and the same name was used to place orders with both locations.

[138] Acting reasonably, DC Josefik sought guidance from a Crown attorney on the first day of his investigation and was advised that person placing the orders to the Lowe’s store was engaged in fraud and that the persons picking up the items were “in possession” of property obtained by crime. Ultimately, the Belleville police defendants did not charge or cause the plaintiffs to be arrested for an offence arising from the actual placement of the orders with the Belleville Lowe’s store.

[139] The Belleville police charges against Mihail and Andrei (and their related arrests) were restricted to the factual transactions that the plaintiffs were observed to engage in, during the course of the Belleville Lowe’s video surveillance.

[140] In that regard, and in the context of this action, the plaintiffs acknowledge that Andrei and Mihail were, in fact, in possession of goods obtained by crime on March 10, 2010 and Mihail was, in fact, in possession of goods obtained by crime on March 11, 2010. They submit that mere “possession of goods obtained by crime” is not sufficient to establish reasonable and probable grounds to believe an offence pursuant to s. 354(1)(a) of the Code was committed. The offence is only made out when the possessor of the property knows the manner by which it was obtained. The plaintiffs posit that because the Belleville police had “no evidence” establishing that Andrei and Mihail “knew” that the property they received from “Lowe’s” on the relevant dates was obtained by crime, the Belleville defendants could not form reasonable and probable grounds to believe that the plaintiffs had committed that offence.

[141] There is no dispute that DC Josefik was not aware of “direct evidence” establishing the knowledge required to make out an offence under s. 354(1) of the Code, but that does not lead to the inescapable conclusion that there was “no evidence” available to him on that issue.

[142] In my view, there was evidence available to DC Josefik from which the “state of mind” required for an offence pursuant to s. 354(1) of the Code was capable of being reasonably inferred for the purpose of forming reasonable and probable grounds to seek arrest warrants and charge Mihail and Andrei.

[143] Where direct knowledge of a fact is an essential element of an offence, it is often difficult to establish that element through direct evidence at the investigatory stage of a proceeding. Absent a voluntary inculpatory confession of knowledge from the suspect or evidence of an admission of guilty knowledge made to a third party, police (and ultimately triers of fact), are often left to evaluate a suspect or accused’s “knowledge” through the existence of permissible inferences arising from circumstantial evidence.

[144] The issue of whether the plaintiffs “knew” that the subject property was obtained by crime requires a determination of their respective states of mind. At trial, the Crown would have had an onus to prove that the plaintiffs “actually knew” that the Lowe’s property had been acquired, directly or indirectly, through a crime or that they were wilfully blind to that fact (I will address the issue of wilful blindness later in my reasons). The requisite state of mind for the offence is a matter that may be established indirectly through permissible inferences arising from the circumstances surrounding the factual transaction(s) from which the offence is said to arise. When determining whether the Crown met its onus to prove, beyond a reasonable doubt, that Mihail and Andrei knew that the property they possessed was obtained through crime, the trier of fact would have been entitled to consider their words and conduct before, at the time, and after they came into possession of the “unlawfully obtained” property.

[145] Subject to a similar fact application with respect to evidence of each of the counts in the Information being admissible as evidence on the other counts in the Information (and evidence of the attempted Windsor pick up being admissible at all), the evidence of Mihail and Andrei’s involvement in more than one pick up or attempted pick up of property obtained by crime; their receipt of goods in different parts of the province; the consistent fraudulent mode by which the various orders were obtained; and the common customer name used to obtain goods from different locations reasonably had the potential to inform the trier of fact’s determination of the plaintiffs’ respective states of mind.

[146] As a result, I find that there was “some evidence” supporting the “knowledge element” of the s. 354(1) counts at the time that the warrants were sought and the plaintiffs were charged. Whether that evidence was ultimately sufficient to allow a trier of fact to find that the Crown had proven the essential elements of the offences with which the plaintiffs were charged was not a matter for DC Josefik to conclude. He was not required to evaluate the evidence available to him according to “legal standards”; to make legal judgments or to establish an inevitable conviction in order to form reasonable and probable grounds to charge Mihail and Andrei.

iii. The Doctrine of Recent Possession

[147] In addition, the moving parties submit that the evidence available to DC Josefik, at the time the plaintiffs were charged, supports the potential application of the “doctrine of recent possession”. The so-called “doctrine” is operative where the Crown proves the “unexplained” possession of property that was, in relation to the possession, recently unlawfully obtained. In such a case, the trier of fact may, but does not have to, draw an inference of guilt of theft or other offences incidental to theft, such as “break and enter” or “possession of property with knowledge that it was unlawfully obtained”: see R. v. Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 S.C.R. 59, [1988] S.C.J. No. 66.

[148] The permissive inference arising from “recent possession” may be rebutted by evidence of an innocent explanation for the accused’s possession of the unlawfully obtained property. If the trier of fact accepts the explanation, the Crown will not be in a position to prove “knowledge” beyond a reasonable doubt. Similarly, where the trier of fact concludes, in all the circumstances, that the explanation “might reasonably be true” the accused is entitled to an acquittal because any reasonable doubt must be resolved in his favour: see R. v. Choquette, 2010 ONCA 327, [2010] O.J. No. 1851, at paras. 9-10.

[149] Accordingly, where evidence of an innocent explanation of an accused’s possession of property recently obtained by crime is adduced at trial, the Crown must prove beyond a reasonable doubt that the explanation cannot “reasonably be true”. If the trier of fact is not satisfied that the Crown has done so, the permissible inference arising from proof of “recent possession” may not be drawn to establish any element of the offence.

[150] It is for the trier of fact to determine whether an accused’s “innocent” explanation might reasonably be true. Subject to certain exceptions it is only an innocent explanation that is given in testimony, under oath, at trial that may operate to render unavailable the inference that the trier of fact may draw from proof of an accused’s recent possession of unlawfully obtained property. An unsworn explanatory statement made prior to trial will not suffice in that regard, unless it is admitted at trial when tendered by the Crown and proven voluntary after a voir dire, or as part of the res gestae (that is that the accused’s pretrial explanation of such possession was given with the requisite degree of contemporaneity so as to make the evidence admissible). In each of those circumstances, since the accused’s pretrial explanation is tendered as evidence at trial, it can serve as the accused’s explanation for the purpose of determining whether the permissible inference arising from “recent possession” may be drawn.

[151] I accept the moving parties’ position that on proof that Mihail and Andrei possessed property which was recently and unlawfully obtained from the Belleville Lowe’s, a trier of fact determining the criminal charges against them would have had the discretion to draw an inference that the plaintiffs were aware of the manner by which the goods were obtained. The availability of that inference would have been subject to evidence of an innocent explanation for the plaintiffs’ recent possession being adduced at trial and the trier of fact’s conclusion that the Crown had not established that the explanation offered in evidence could not reasonably be true.

[152] I accept the evidence that after their arrests in Windsor, Mihail and Andrei provided an innocent explanation for their involvement in the Windsor Lowe’s transaction on March 13, 2010. They explained that they operated a moving company, they were picking up merchandise on behalf of a customer and they had no involvement in ordering the merchandise they intended to pick up. I also accept that the plaintiffs’ “explanation” was provided to DC Josefik by DC McCann at the outset of the former’s investigation.

[153] I find that a reasonable police officer, in similar circumstances, would have documented and considered that information in the course of his investigation. I also find that DC Josefik did, in fact, document and consider the plaintiffs’ explanation, together with all of the other evidence available to him, in the course of his investigation, and specifically before he formed his subjective belief that there were sufficient grounds to charge the plaintiffs.

[154] At his examination for discovery, DC Josefik testified that he contemporaneously recorded the information he received from DC McCann on March 17, 2010, including the information about the plaintiffs’ “explanation”, in his notebook (see pp. 5-7 of transcript) and that he believed that “the explanation” originally came from the suspects (Mihail and Andrei) (see p. 8). I accept that evidence, which is neither challenged nor contradicted by any other evidence before me.

[155] Although the evidence before me does not indicate that the same explanation was offered by the plaintiffs specifically with respect to the Belleville orders picked up by the plaintiffs, DC Josefik’s evidence, which I accept, indicates that he and DC McCann discussed the plaintiffs’ explanation in the context of both the Windsor and the Belleville orders that plaintiffs picked up or attempted to pick up.

[156] In considering the plaintiffs’ explanation, DC Josefik deposes in his affidavit (consistent with his March 17, 2010 notes) that it seemed strange to him that individuals were moving merchandise from Lowe’s locations in different areas of the province after picking them up for the same individuals who purchased the merchandise with credit cards.

[157] He also testifies that he found it strange that two individuals from the Toronto area would travel to Windsor and Belleville to pick up merchandise from a Lowe’s store when there were several Lowe’s stores located in the GTA, all of which would have been closer to them. In that regard, DC Josefik provided a “map” disclosing 11 Lowe’s locations in the GTA. I am uncertain if that is the number of Lowe’s locations that existed in the GTA in 2010 (the map indicates a copyright date of 2014), however, I accept that there were several Lowe’s locations operating in the GTA in March of 2010.

[158] DC Josefik’s evidence that during the course of his investigation, and specifically prior to seeking warrants for the plaintiffs’ arrests, he considered the plaintiffs’ explanation for their attempt to take possession of the subject property in Windsor on March 17, 2010 which I accept, was not challenged or contradicted by any other evidence before me.

[159] I also find that the explanation that was provided to, and considered by, DC Josefik in the course of his investigation is consistent with the “explanation” the plaintiffs provided during the course of their examinations for discovery in this proceeding.

[160] While DC Josefik fulfilled his duty to document and consider information about the plaintiffs’ explanation for their possession of the Lowe’s property, he was not obliged to unequivocally accept that explanation as true. Whether the explanation given by Mihail and Andrei, if provided in evidence at trial, would be accepted as one which “might reasonably be true”, and if not, whether an inference of knowledge ought to be drawn on proof of “recent possession”, were issues for the trier of fact. Reasonably, DC Josefik was not required to determine those legal issues as part of his duty.

[161] As a result of the foregoing, I find that on the evidence available to him, DC Josefik’s belief that there were sufficient grounds to charge the plaintiffs was reasonable and that he exercised his discretion as a police officer in a reasonable manner when charging Mihail and Andrei with the offences set out in the information.

2. The Alleged Failure to Personally Question Mihail and Andrei

[162] From the evidence, I conclude that DC Josefik did not actively seek to question the plaintiffs, either pre or post-arrest. There is no evidence that the plaintiffs expressly asserted their right to silence in the face of questioning or a request for an opportunity to question them. There is also no evidence that the plaintiffs took any active steps, either personally or through counsel, to provide statements to the Belleville police after they were charged by the Belleville defendants.

[163] I do not accept the plaintiffs’ submissions that DC Josefik breached the requisite standard of care because he did not attempt to personally question the plaintiffs, during the course of his investigation. Further, on the evidence I am unable to conclude that had he done so, he would have discovered further evidence establishing their innocence.

[164] A peace officer conducting a criminal investigation is not under a general obligation to interview or otherwise obtain a suspect’s version of events prior to laying charges or to solicit an accused’s version of events after charges are laid. In Wong, Justice Thorburn states, at para. 59:

A police officer need not exhaust all possible avenues of investigation or inquiry, or interview all potential witnesses, prior to making an arrest. Nor is a police officer required to obtain the accused’s version of events or otherwise establish that the accused has no valid defence before being able to form reasonable and probable grounds.

[165] In my view the evidence does not establish that DC Josefik recklessly or unreasonably ignored evidence that Mihail and Andrei were probably innocent. I have already concluded that before charges were laid against the plaintiffs, DC Josefik documented and considered their exculpatory explanation for their involvement with the Windsor order.

[166] Further, based on the plaintiffs’ evidence at their examinations for discovery, I am unable to conclude that the sufficiency of DC Josefik’s grounds to charge them would have been appreciably altered if he had personally questioned them.

[167] At the their respective examinations for discovery, Mihail and Andrei testified about the circumstances under which Mihail was hired to pick up the Belleville orders on March 10 and 11, 2010 and the Windsor order on March 13, 2010, together with the circumstances surrounding the deliveries of the Belleville orders. I accept the moving parties’ submission that had they provided the same evidence to DC Josefik in the course of his investigation, that evidence would have been capable of supporting reasonable grounds to believe that the plaintiffs were wilfully blind to the unlawful means used to obtain the Lowe’s merchandise.

[168] Wilful blindness is the equivalent of knowledge, and operates to impute knowledge to a person who suspected the truth, knew its probability, but deliberately refrained from making inquiries that would have confirmed his suspicion because he wished to avoid actual knowledge. Where wilful blindness is an issue, the question is not whether the accused should have been suspicious but whether the accused was in fact suspicious to the point where he or she saw the need for further inquiries but deliberately chose not to make those inquiries: see R. v. Briscoe, 2010 SCC 13, [2010] 1 SCR 411, at paras. 21-23.

[169] Had Mihail and Andrei been questioned by DC Josefik and provided information consistent with the evidence they gave at their respective examinations for discovery, the Belleville police would have been told that:

a) On March 9 or 10, 2010 Mihail was contacted by a Russian-speaking individual identifying himself as “Lachman”. Lachman indicated that he required goods to be picked up from a Lowe’s store in Belleville and delivered to Toronto and he could not spare workers from “his jobsite” to do so. Mihail was retained to pick up the goods. Mihail did not meet Lachman personally. He was not provided with a delivery address or an address for Lachman at the time he was retained. He and Andrei attended in Belleville and picked up the merchandise from Lowe’s, as directed. At the time they picked up the merchandise, they were not aware of the location where it was to be delivered. As they returned to the GTA, they received telephone instructions from Lachman to deliver the merchandise to a specific street location which was approximately 200 metres from Mihail and Andrei’s residence;

b) The delivery address was not a “jobsite”. Rather, the location they were sent to was near the end of a “dead end” street. Mihail “found this to be strange” because they usually “went to addresses”. Andrei did not find the circumstances of the delivery strange. Once there, they transferred the merchandise from their vehicle onto the street and eventually into a vehicle operated by two individuals who Lachman authorized to receive the goods, over the phone;

c) No documentation was exchanged on delivery and Mihail was paid in cash;

d) On March 11, 2010 Mihail received a telephone call from an individual who identified himself as “Kofman”, who also required merchandise to be picked up at the Belleville Lowe’s location and delivered to an unspecified location in the GTA. Mihail agreed to do so;

e) Mihail and his other son attended at the Belleville Lowe’s location and picked up Kofman’s orders. At that time, they did not know the specific location where the property was to be delivered. As they returned to the GTA they were instructed, by phone, to deliver the goods to the same “dead end” street as the day before. Once there, they transferred the property, on the street, to a second vehicle;

f) No documentation was exchanged on delivery and Mihail was paid in cash;

g) On March 12 or 13, 2010 Mihail was contacted by “Kofman” and asked to pick up merchandise at the Lowe’s location in Windsor and deliver it to an unspecified location in the GTA;

h) When Mihail and Andrei attended Windsor to pick up the order they did not know where they were supposed to deliver the goods and there was no documentation between the plaintiffs and Kofman with respect to the intended delivery;

i) Andrei and Mihail maintained that they were not involved in placing any of the Lowe’s orders; and

j) Andrei and Mihail asserted that they did not know that the property they picked up or attempted to pick up was obtained through unlawful means.

[170] In my view, had DC Josefik been provided with the foregoing information through suspect questioning, before or after arrest, he would still have had reasonable and probable grounds to charge Andrei and Mihail for the offences he did.

[171] As a result of the information he received from DC McCann the exculpatory elements of Mihail and Andrei’s narrative were already known to DC Josefik without suspect questioning. The additional information in the plaintiffs’ narrative of the circumstances prior to and subsequent to Mihail’s successive acts of possession and delivery of property from the Belleville Lowe’s store to the back of a second vehicle on a dead end street in the GTA (circumstances which he felt were “strange”) without any documentation for cash, appears to be more inculpatory than exculpatory, on the issue of the plaintiffs’ respective states of mind and specifically the subjectively perceived need to make further inquiries about the method of acquisition of the property being transported.

[172] While it would have eventually been for the Crown to establish beyond a reasonable doubt that the plaintiffs knowingly possessed property obtained by crime, or were wilfully blind to the manner in which the property was obtained, that is not the standard that DC Josefik was required to apply when determining whether reasonable and probable grounds existed to charge the plaintiffs.

[173] The evidences does not establish that DC Josefik failed to act in accordance with the requisite standard of care because he did not interview the plaintiffs. He was not required to do so. His decision not to pursue suspect questioning fell within the reasonable exercise of his discretion as a police officer. However, even if he had interviewed them, the plaintiffs’ information surrounding the circumstances of the pick up and delivery of the Lowe’s property and Mihail’s retention to do so, would not have operated to vitiate DC Josefik’s reasonable grounds to charge the plaintiffs with offences pursuant to s. 354(1) of the Code.

3. The Alleged Failure to Directly Interview Lowe’s Employees and the Alleged Failure to Consider Evidence that Other People Committed the Fraud

[174] For the following reasons, I do not accept the plaintiffs’ submission that DC Josefik was negligent because he did not directly interview the Lowe’s employees who received the fraudulent telephone orders or the employees that dealt directly with the plaintiffs when they picked up property from the Belleville location.

[175] First, there is no evidence that the content of the Lowe’s employee statements that Mr. Fralick provided to DC Josefik, and upon which DC Josefik relied, were untrue or inaccurate.

[176] Second, DC Josefik’s evidence, which I accept, indicates he accepted the information provided to him as credible. There is no evidence establishing that DC Josefik had, or ought to have had, any reason to doubt the credibility or accuracy of the information set out in the various witness statements that were provided to him.

[177] Third, there is no evidence that further exculpatory evidence would have been uncovered had DC Josefik conducted interviews of the employees who directly dealt with the plaintiffs and those that took orders from Kofman and Lachman. The identity of the plaintiffs as the individuals who picked up Lowe’s property on March 10 (both) and 11 (Mihail only), 2010 was not an issue. The plaintiffs do not dispute that they did so. The issue was their state of mind at the time. There is no evidence that allows me to conclude that a police officer in the place of DC Josefik would reasonably anticipate that further interviews of Lowe’s employees would have resulted in additional relevant and material evidence on that issue, or at all. There is no evidence that further exculpatory evidence would have been developed, in fact, had DC Josefik personally interviewed the Lowe’s employees.

[178] In all of the circumstances, I conclude that DC Josefik was not negligent because he decided not to personally interview Lowe’s employees other than Mr. Fralick.

[179] I also find that during the course of his investigation and prior to laying charges against the plaintiffs, DC Josefik appreciated and considered that persons other than the plaintiffs were involved in obtaining property from Lowe’s through the fraudulent use of credit card information.

[180] Early in his investigation he spoke with a Crown attorney and was advised of the basis of culpability for the persons placing the orders as distinct from the persons picking up the subject of the orders. The Belleville police investigation did not reveal evidence that Andrei and Mihail actually placed any fraudulent orders and DC Josefik did not pursue charges against them on that basis. Rather, the focus of the Belleville police investigation and its subsequent charges against Mihail and Andrei related only to their possession of property obtained by crime.

[181] In addition, I find that prior to charging the plaintiffs, DC Josefik appreciated and considered that there were persons other than the plaintiffs who also picked up unlawfully obtained merchandise from Lowe’s on days other than the days that either plaintiff attended the Belleville location.

[182] The plaintiffs were charged only in relation to the specific factual transactions in which they were involved. The fact that others were involved in similar conduct on different days does not, in my view, amount to overwhelming evidence of the plaintiffs’ innocence, and it does not appreciably inform the issue of whether there were reasonable and probable grounds to suspect that the plaintiffs were guilty of possession of property obtained by crime in relation to the orders that the they did pick up.

4. The Alleged Failure to “Further Investigate” and Re-investigate

[183] I do not accept the plaintiffs’ submissions that DC Josefik was negligent for failing to investigate “those responsible for the fraud”. There is evidence, which I accept, that establishes DC Josefik did take steps to determine the identity of the person(s) posing as Kofman and Lachman. His evidence at his examination for discovery was that he followed up on the phone numbers used to place the fraudulent orders, and he could not get through. His evidence, which was not challenged or contradicted, also indicates that he was unable to obtain further information with respect to those phone numbers and he was unable to determine the actual names associated with those numbers.

[184] He also testifies that during his investigation he obtained information tracing the possible point of compromise of some of the credit card information to an “internet virus scheme” originating in Latvia. Ultimately, he was unable to identify the specific individuals involved in placing the fraudulent orders and, no one, including the plaintiffs, was charged with fraud by the Belleville police. His evidence in that regard, which I accept, was not challenged or contradicted.

[185] There is no persuasive evidence before me that as part of his or her investigation of potential charges against Mihail and Andrei for possession of property obtained by crime, a reasonable police officer in similar circumstances would have taken additional steps, beyond those taken by DC Josefik, to investigate the underlying fraud through which the property was obtained. There is also no evidence that identifies the specific additional steps that a reasonable officer would have allegedly taken, and on the evidence before me I am unable to determine what those steps may have been. Finally, there is no evidence that demonstrates that there was a reasonable prospect that additional steps to investigate the underlying fraud would have resulted in further exculpatory evidence with respect to the actual charges laid against the plaintiffs.

[186] On the issue of reinvestigation, Ms. Avery deposes that after Mihail and Andrei were taken into custody by the Belleville police, she provided the “the Belleville police” with copies of newspaper advertisements, in Russian, for Mihail’s moving business, in order to evidence his claim that he operated a moving company. Copies of those documents were not adduced as evidence on this motion.

[187] Ms. Avery observes that “[a]t no time did Josefik refer to the fact that he had these newspaper ads, and there is no indication that the Belleville police ever translated those ads from Russian to English.”

[188] Ms. Avery does not indicate specifically when she provided the ads to the Belleville police, other than to say it was after the plaintiffs were taken into custody by its officers. However, it is clear on her evidence that the advertisements were not available to DC Josefik when he formed his subjective belief that sufficient grounds arrested to seek arrest warrants and charge Mihail and Andrei.

[189] Ms. Avery does not testify that she provided copies of the advertisements directly to DC Josefik at any time. She does not indicate the manner by which the advertisements were provided to the Belleville police or what, if any, narrative explanation accompanied them.

[190] Her evidence that DC Josefik “never referred to the fact that he had these newspaper ads” is consistent with the evidence he gave at his examination for discovery. At that time, he testified that it was his belief that a copy of an advertisement that was referenced in the moving parties’ affidavit of documents came from the Crown attorney and “that was the first time I saw it.” He was not questioned any further on the document and he was not asked whether the advertisement would have altered his subjective belief in the existence of reasonable and probable grounds, had he seen it at an earlier time.

[191] On the evidence before me, I am unable to conclude that DC Josefik personally received the advertisements referred to by Ms. Avery in the course of his investigation or before the charges against the plaintiffs were withdrawn. Accordingly, I am unable to conclude that he failed to act in accordance with the requisite standard of care with respect to his consideration (or lack thereof) of those documents.

[192] Further, Ms. Avery testifies that in the context of the Belleville police investigation, the evidentiary value of the advertisements was their ability to corroborate that Mahail operated a moving business. However, as Ms. Avery subsequently deposes at paragraph 107 of her affidavit, DC Josefik’s affidavit evidence indicates that he was aware of Mihail’s stated operation of a moving company.

[193] The evidence does not establish that DC Josefik unequivocally rejected the information he received from DC McCann concerning the stated nature of Mihail’s business in the course of his investigation, but that he considered it in the context of the other evidence surrounding the circumstances of Mihail and Andrei’s multiple attendances at Lowe’s locations to pick up merchandise, prior to forming his belief that grounds existed to lay criminal charges. Evidence of a person’s receipt of property for the purpose of transporting it for a fee is not, inherently, inconsistent with that person knowing that the property was obtained by crime and is not, by necessity, mutually exclusive to the existence of sufficient grounds to believe that the possessor has committed an offence under s. 354(1) of the Code. All of the circumstances surrounding the possession must still be considered.

[194] Based on the foregoing, I am unable to conclude that newspaper advertisements would have materially altered the reasonableness of DC Josefik’s subjective belief of the sufficiency of his grounds.

5. Conclusion Regarding Allegations of Negligent Investigation

[195] In accordance with the foregoing reasons, a trial is not required to determine the issue of whether DC Josefik was negligent in the investigation leading to criminal charges by the Belleville police against the plaintiffs. I am satisfied, as a matter of fact, that he held a subjective belief that there were sufficient grounds to seek the arrest of Mihail and Andrei and to subsequently charge them with specified counts of possession of property obtained by crime. As a matter of law, I conclude that from an objective perspective his subjective belief, in all of the circumstances, was reasonable.

[196] I conclude that he did not ignore exculpatory evidence with respect to Andrei and Mihail. There is no evidence establishing that DC Josefik acted unreasonably by accepting, as credible and reliable, evidence and information provided to him by Mr. Fralick and DC McCann or that he failed to take steps in the investigation that a reasonable police officer would have taken in similar circumstances. I find that the manner in which DC Josefik conducted the investigation was consistent with the reasonable exercise of his discretion.

d) Liability of Officer Kanyo

[197] The issue of PC Kanyo’s liability can be disposed of readily without a trial. The issue of whether he breached a duty of care owed to the plaintiffs is not a genuine one. He did not. His role was limited to attending the Belleville Lowe’s location one time in order to receive an initial “complaint”. His active involvement was limited to his receipt of information from Mr. Fralick, which he documented, and his query of a licence plate number, after he received information regarding a vehicle that was impounded in association with the arrests made at the Lowe’s in Windsor.

[198] There is no evidence that PC Kanyo failed to record material information. He prepared contemporaneous notes concerning his interaction with Mr. Fralick and his attendance at the Belleville Lowe’s store. He also prepared a General Occurrence Report summarizing his involvement. With that, his function with respect to the Lowe’s complaint was spent.

[199] There is no evidence that a reasonable police officer who was instructed to attend a specific location to take a report from a complainant would have acted any differently than PC Kanyo acted. PC Kanyo was not tasked with, or involved in, the ongoing investigation of the Lowe’s complaint; the decision to swear an Information naming Mihail and Andrei; the decision to seek arrest warrants; the decision to charge Mihail and Andrei; or any aspect of the post-arrest investigation.

[200] There is no evidence that PC Kanyo was advised on an ongoing basis, or otherwise, about the conduct or the results of DC Josefik’s investigation. There is no evidence that PC Kanyo was in a position to halt the charges against Mihail and Andrei.

[201] There is no evidence that this man was negligent.

e) The Claims for Alleged Charter Breaches

[202] Since I have concluded that Mihail and Andrei were lawfully arrested and detained by the Belleville police and that the charges laid against them did not result from a negligent investigation, I conclude that their rights under ss. 7, 8, 9 and 11 of the Charter of Rights and Freedoms were not infringed by any of the Belleville defendants, at any time.

f) The Plaintiffs’ Claim for Malicious Prosecution

[203] The parties dispute whether the plaintiffs have properly plead a claim for malicious prosecution in their statement of claim. The moving parties correctly observe that through their remedial claim set out in paragraph one of the statement of claim, the plaintiffs seek damages for a list of specified causes of action that does not include malicious prosecution.

[204] In response, the plaintiffs point to paragraphs 59 through 61 of the statement of claim where the alleged losses of Mihail, Andrei and Alena are particularized and are said to result from “the investigation, arrest, detention and prosecution” of Mihail and Andrei (emphasis added).

[205] In order to establish liability for malicious prosecution a plaintiff must prove, on a balance of probabilities, the following:

a) The proceeding was initiated by the defendant;

b) The proceeding was terminated in favour of the plaintiff;

c) The absence of reasonable and probable cause to commence the prosecution; and

d) Malice, or a primary purpose other than carrying the law into effect.

See Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, at para. 42.

[206] In Nelles, the Court adopted the following definition of “reasonable and probable cause”, at para. 43, as:

[A]n 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 an ordinary prudent man, placed in the position of the accuser to conclusion that the person charged was probably guilty of the crime imputed.

[207] For reasons I have already set out, I am satisfied that DC Josefik had the requisite reasonable and probable cause to charge Mihail and Andrei. Therefore, I conclude that even if the plaintiffs’ claim for malicious prosecution has been properly plead, the plaintiffs’ claims in that regard against the moving parties ought to be dismissed.

[208] Before leaving this area, I observe that on the issue of malice, the plaintiffs assert a theory that the conduct of members of the Belleville police, including DC Josefik, was motivated, in part, by “ethnic bias”. I find there is no cogent evidence that demonstrates that DC Josefik or any other member of the Belleville Police Services held an ethnic bias or prejudice against any of the plaintiffs, or that any aspect of the Belleville police investigation was improperly motivated by the plaintiffs’ ethnicity.

g) Alena’s Claims Pursuant to [Section 61](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) of the [Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) and for “Nervous Shock”

[209] For the following reasons, I find that there is no genuine issue requiring trial with respect to the issue of liability between Alena and the Belleville defendants.

[210] First, there is no evidence of direct dealings between Alena and the Belleville defendants. She was not arrested or detained by the Belleville defendants and was not a subject of the Belleville police investigation. As a result, Alena has failed to establish a factual basis for her claim for damages for breach of her Charter rights as alleged in paragraph 1(iii)(e) of the statement of claim.

[211] Second, Alena’s claim pursuant to s. 61 of the Family Law Act is derivative in nature. Her entitlement to recover damages pursuant to that section is premised on her status as a “spouse” and as a “parent” of persons who were allegedly “injured” by the fault or neglect of another, under circumstances where those persons are entitled to recover damages. I have determined that neither Mihail nor Andrei were “injured” as a result of the “fault or neglect” of the Belleville defendants, or any of them, and therefore they are not entitled to recover damages from those defendants. As a result, Alena is not entitled to recover damages from the Belleville defendants, or any of them, through her derivative Family Law Act claim.

[212] Third, Alena’s claim for “negligent infliction of ‘nervous shock,’” is premised on the allegation that Mihail and Andrei were falsely arrested and imprisoned as a result of the Belleville defendants’ negligent investigation. Based on my findings that the Belleville defendants did not engage in actionable conduct with respect to the arrest, detention or investigation of Mihail and Andrei, her claim in that regard must fail.

[213] Further, there is no evidence before me that Alena suffered from a “recognizable psychiatric or psychological injury or condition” or other “serious trauma or illness” as a result of any action or inaction on the part of the Belleville defendants. At her examination for discovery she testified that she was “emotional” and “a little bit nervous” as a result of Mihail and Andrei’s arrest and detention by the Belleville defendants. That type of reaction, while understandable, does not rise to the level of harm required to ground a successful compensatory claim for “nervous shock”.

h) Liability of Belleville Police Service Board

[214] The plaintiffs’ cause of action against the Belleville Police Service Board is solely founded in its vicarious liability for the negligence and other tortious conduct of its members. Since I have concluded that none of the individual members of the Belleville Police Service Board are liable to the plaintiffs on account of any of the causes of action asserted against them, there is no basis for a vicarious liability claim against the Belleville Police Service Board. As a result, I find there is no genuine issue requiring a trial in relation to its liability.

VIII) Final Disposition

[215] Based on the evidence before me, I am satisfied that there is no genuine issue with respect to the liability of the Belleville defendants that requires a trial in order to achieve a fair and just determination on the merits. I have reached that conclusion without resort to the powers under r. 20.04(2.1) of the Rules.

[216] In the result, I grant the Belleville defendants’ motion for summary judgment.

[217] An order will go dismissing the action against the Belleville Police Service Board, Constable Ron Kanyo and Detective Constable Paul Josefik. The action has previously been dismissed against Cory McMullan and Constable Jeff Ling, on consent.

[218] The moving parties may deliver written submissions of no more than eight (8) pages with respect to costs of this motion and the related motion to strike portions of the Avery affidavit together with a costs outline within 30 days of the date of release of these reasons. The plaintiffs may deliver written submissions of no more than 8 (eight) pages together with a costs outline within 30 days of the date they are served with the moving parties’ materials. The moving parties may deliver reply submissions of a maximum of three (3) pages within 15 days of date of service of the plaintiffs’ materials.

Original signed “Justice Verbeem”

Gregory J. Verbeem

Justice

Released: March 24, 2016

CITATION: Kolosov v. Lowe’s Companies Inc., 2016 ONSC 1661

COURT FILE NO.: CV-12-17981

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mihail Kolosov, Andrei Kolosov also known as Andrei Kolasau, and Alena Kolasava

Plaintiffs

– and –

Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle, Casey Findlay, Windsor Police Services Board, Gary Smith, Former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury, Staff Sgt. Alan Brown, Belleville Police Service Board, Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo, Constable Jeff Ling, Detective Constable Paul Josefik and Her Majesty the Queen in Right of the Province of Ontario as Represented by the Attorney General of Ontario

Defendants

REASONS FOR JUDGMENT

Verbeem J.

Released: March 24, 2016