Court File and Parties

COURT FILE NO.: 622/14 DATE: 2016 08 04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL GEORGE Plaintiff – and – BRYAN LARKIN as Chief of the Guelph Police Services, GUELPH POLICE SERVICE and MARY O’DONNELL Defendants

Counsel: W. Punnett, Counsel for the Plaintiff J. Stirton, Counsel for the Defendants

HEARD: June 21, 2016

REASONS FOR JUDGMENT

Trimble J.

Nature of the Motion:

[1] The Police Applicants seek summary judgment, dismissing Mr. George’s action against them.

Nature of the Action:

[2] Mr. George sues the Guelph Police Services and Mr. Larken, the Police Chief (the Police Defendants), and Mary O’Donnell (his former spouse), for negligent investigation of the case against Mr. George in respect of a fire (paras. 6, 9 and 10 of the Statement of Claim). He seeks damages only for mental suffering he incurred because of that negligent investigation (paras. 1 and 11, Statement of Claim).

[3] On May 25, 2012, Mr. George was arrested and charged with three offences arising out of a fire which occurred in June 29, 2004. Downie, J., acquitted Mr. George on February 28, 2013, following five days of trial. Since Mr. George could not find a surety he remained incarcerated for the nine months between his arrest and acquittal.

[4] The only cause of action Mr. George advances is negligent investigation. He did not advance any claim against any defendant for malicious prosecution, for example. The limitation for Mr. George’s cause of action expired on February 28, 2015.

[5] On August 18, 2014, Mr. George brought this action. On June 2, 2015, the Police defended and crossclaimed against Ms. O’Donnell for contribution and indemnity, only. On March 2, 2015, Ms. O’Donnell defended, making no crossclaim against the Police. She served her Defence on the Plaintiff, but not the Police.

[6] Ms. O’Donnell did not appear at the Motion.

Legal Principles:

[7] There is no disagreement between the parties on the law. The disagreement is with respect to the application of the law to the facts of the case.

[8] The following legal principles apply to negligent Police investigation:

1. Police officers owe a duty of care to those the police investigate. The standard is that of a police officer in similar circumstances, acting reasonably, recognizing the discretion necessarily inherent in police investigations. The standard is not one of perfection or even what is optimum when viewed from the vantage of hindsight. The duty of care is met where there are reasonable and probable grounds to make an arrest (see Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 SCR 129, at para. 73; Roda v. Toronto Police Services Board, 2016 ONSC 743, at para. 71).
2. Police must show only that they had reasonable and probable grounds to lay the charges. They are not required to establish that the charge would likely result in a conviction or that the accused’s defence would fail. They are not required to interview every possible witness, to evaluate or weigh evidence, or to accept the accused’s version of events (see Grann v. Thunder Bay Police Services Board, 2015 ONSC 438, at paras. 24 and 62; Fragomeni v. Greater Sudbury Police Services, 2015 ONSC 3937, para. 88; Wong v. Kyriacou, 2009 ONSC 6000 at para. 59).
3. If the Police rely on uncorroborated testimony of a single witness and that testimony gives rise to reasonable and probable grounds for the arrest, the onus shifts to the Plaintiff to show that the police had “overwhelming evidence” to discredit that uncorroborated witness’s evidence (see Wong, supra, para. 57; Fragomeni, supra, para. 89).
4. The determination of whether the standard of care was met is made based on the evidence at the time the charge was laid. Later events and evidence cannot be considered. For example, while the acquittal or withdrawal of charges may be a precondition to bringing a claim, the fact of the acquittal is not relevant to whether the Police had reasonable and probable grounds to lay the charge (see Wong, supra, at para. 50; Grann, supra, para. 25).
5. Conversely, committal to a trial on the charges is strong evidence of reasonable and probable grounds (see Wong, supra, para. 60; Fragomeni, supra, para. 102).

[9] As set out in Hryniak v. Mauldin, 2014 SCC 7 the following principles apply to a motion for summary judgment.

1. Under Rules 20.01 and 20.04(2)(a), summary judgment “shall be granted” where there is no genuine issue requiring a trial.
2. There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when, on the motion, the judge can make the necessary findings of fact, the judge can apply the law to the facts, and the motion process is a proportionate, more expeditious and less expensive means to achieve a just result.
3. The overarching issue to be answered is “whether summary judgment will provide a fair and just adjudication.” The issue is NOT whether the procedure 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.”
4. Where the interests of justice require a hearing of some aspect of a case in order to provide a fair and just adjudication, the powers available under Rules 20.04(2.1) and (2.2) are available. They only become unavailable where it is in the interest of justice for such powers to be exercised only at trial. The Supreme Court noted: “The interests of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.”
5. The judge should determine if there is a genuine issue requiring trial based only on the evidence before him or her, without using the new fact-findings powers. There will be no genuine issue requiring trial if the summary judgment process provides the trial judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
6. If there appears to be a genuine issue requiring a trial based on the summary judgment motion material, the judge should determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The motion judge may, at his or her discretion, use those powers unless it is against the interest of justice to do so. It will not be against the interest of justice if use of the powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
7. Hryniak left undisturbed the pre-Hryniak law with respect to the ongoing obligations of a party responding to a summary judgment motion. The responding party must still put his/her best foot forward, presenting sworn evidence of specific facts showing that there is a genuine issue requiring a trial, or, to put it another way, that there is an issue that has a ‘real chance of success’ [see: Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 2227, [2010] O.J. No. 1502 (Ont. S.C.J.), Guarantee Co. of North America v. Gordon Capital (1993), 3 S.C.R. 423, and Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764]. Without detracting or deviating from Hryniak, the parties have the duty to place all available, relevant evidence before the court to consider on the motion. The court must determine whether the evidence before it, including any evidence that may be obtained through the additional powers under Rule 20.04, is sufficient to make the findings needed to arrive at a final determination of the issue. If the evidence is sufficient to make the findings necessary to determine the issue, then judgment can be made. If not, then a trial or some procedure crafted under Rule 20.04 is required.

[10] In the case of a negligent investigation case (as in any case involving a professional standard of care) the Plaintiff must present evidence to identify the standard of conduct of the Police and the Police failure to meet that standard of care. That evidence is usually in the form of an expert’s opinion, but does not necessarily need to be so. The failure to lead such evidence will result in granting summary judgment (see, for example, Fragomeni, supra, at para. 92; Salmonovici v. Toronto Police Services Board, 2009 ONSC 3990 at para. 13).

The Parties’ Positions:

[11] The Police say that at the time that they charged Mr. George with three charges stemming from the June 2004 fire, they had reasonable and probable grounds to do so. Their investigation spanned two months. Ms. O’Donnell, Mr. George’s estranged spouse, said that he admitted to her that he started the fire. She was interviewed 3 times, twice under oath. Mr. Madigan, O’Donnell’s son, was also interviewed twice, once under oath. He said that Mr. George started the fire, and that he had participated with Mr. George in starting the fire. Fire investigation experts, after hearing Ms. O’Donnell description of how the fire started, said that her version was consistent with the evidence at the fire scene. Ms. O’Donnell’s evidence was corroborated by the three Crime-Stoppers reports made in the 8 years between the time of the fire and the laying of the charges, and by statements taken from the owner of the burned premises. Mr. George has failed in his onus to show that there was no overwhelming evidence to suggest that Ms. O’Donnell and Mr. Madigan were not credible.

[12] Mr. George says that there was overwhelming evidence that Ms. O’Donnell and Mr. Madigan were not credible witnesses and that their stories ought not to have been believed. The Police ignored evidence that was not consistent with the charge; namely, that the fire department did not find arson (it found that the fire was consistent with a smoldering fire), there was no evidence of a break in, Mr. Madigan lied, and that Ms. O’Donnell alleged that Mr. George was stalking her and had alternate reasons for making her statement. Mr. Madigan wanted to help his mother.

Result:

[13] This is an appropriate case for summary judgment. I can do justice between the parties on the record before me. There are no issues with require either a trial, or the use of the special powers under Rule 20.04.

[14] The motion for summary judgment is granted. Costs are to be addressed as determined at the end of these reasons.

Analysis:

[15] The Respondents’ motion must succeed for several reasons.

[16] First, Mr. George did not put his “best foot forward”. He presented no evidence of the standard of care of a police officer. He did accept, however, the standard of care as proffered by the Police.

[17] His evidence, however, is still lacking.

[18] In his Affidavit, Mr. George speaks of facts concerning the door to the burned house being locked and there being no evidence of a break in. He refers to an investigation by the Fire Marshall, and the Fire Marshall’s conclusion that the fire was consistent with a smoldering fire. While Mr. George does not say it, his position is that he was not present at the fire location on the date of the fire. Therefore his recitation the facts is hearsay as it must have been taken from some other source he does not identify. He filed no affidavit from the Fire Marshall, the Fire Department or any other investigator who looked into the June, 2004 fire. He did not put any reports before the Court as to the cause of the fire. These reports would have been disclosed to him in his criminal proceeding.

[19] Further, in argument Mr. George referred to evidence that showed that there were serious credibility issues with respect to Ms. O’Donnell and Mr. Madigan that required the matter to go to trial. The evidence Mr. George referred to in argument are:

a) Investigators for the property owner’s insurers concluded in 2004 that there was no arson, which conflicts with the two investigators who advised the Police in 2012 that Ms. O’Donnell’s and Mr. Madigan’s description of the start of the fire was consistent with the evidence at the scene of the fire. b) In 2004, there was no evidence of a break-in to the burned property.

[20] These “facts” are hearsay. In any event, they were not in evidence before me.

[21] Second, Mr. George fails to meet the test required of him. As indicated above, the test for negligent investigation is whether the Police had evidence which provided reasonable and probable grounds for laying the charge. The Police are entitled to rely on the uncorroborated statement of a witness, and should only disregard that statement when the Plaintiff puts before the Court “overwhelming” evidence as to the witness’s poor credibility.

[22] Why is the test thus in a civil action?

[23] By framing the test as above, the Courts, in the civil context, set the standard for Police conduct in investigation at the same level as in the criminal context. In other words, in the criminal context, the Police are required to have only reasonable and probable grounds that an offence has been committed in order to lay a charge. Therefore, if there is negligence in the civil context, it must be with respect to whether the Police had reasonable and probable grounds. This is a relatively low standard. It is up to the Court trying the charges to evaluate the witnesses and make findings with respect to the merits of the charges.

[24] Mr. George’s argument is that the evidence was “overwhelming” that the main witnesses, Ms. O’Donnell and Mr. Madigan, were not credible. They had ulterior motives to have Mr. George charged.

[25] I disagree. The Police did not rely only on the two witnesses with ulterior motives. They involved experts to determine whether it the arson theory was consistent with the physical evidence. With respect to Ms. O’Donnell’s and Mr. Madigan’s ulterior motives, the police put to each of the two witnesses their possible ulterior motives for having Mr. George charged. They took sworn statements, and in one case, video recorded the statement. The evidence casting doubt on the main witness’ credibility was not “overwhelming”. I find, on the evidence before me, that the Police had reasonable and probable grounds to lay the charges against Mr. George.

[26] Mr. George’s argument on this motion was that the charges never should have been laid because a) there was no break in at the burned premises, b) the CrimeStoppers calls were made long before 2012, were not properly investigated, and were all likely made by Ms. O’Donnell, c) that there was “bad blood” between Ms. O’Donnell and Mr. Madigan on one hand and Mr. George on the other, and d) that the fire department and insurance fire investigators concluded that there was no arson.

[27] This is a re-argument of the successful arguments Mr. George made at the trial on the merits of the charges, which resulted in his acquittal. Accepting Mr. George’s position on this motion would change the standard of care by requiring the Police to do the weighing and assessing of evidence. This is the Court’s responsibility at the trial of the charges. This is not the correct standard of care for the Police.

Costs:

[28] The Defendants, Larkin and the Guelph Police Service are presumed entitled to their costs. I will decide who should pay costs to whom, and in what amount, based on written submissions. Those submissions are not to exceed 3 double spaced pages, excluding bills of costs, cases and other supporting documents. Larkin and Guelph Police Service must serve and file their costs submissions by 4 p.m. on August 15, 2016, and Mr. George by 4 p.m. on August 31.

Trimble J.

**Released:** August 4, 2016