CITATION: Patinios v. Cammalleri, 2016 ONSC 6743

COURT FILE NO.: CV-13-479778

DATE: 20161108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALEXANDER PATINIOS

Plaintiff

– and –

ROSARIO CAMMALLERI

Defendant

Michael Simaan, for the Plaintiff

No one appearing for the Defendant

HEARD: October 17, 2016

M.D. FAIETA J.

REASONS FOR DECISION

INTRODUCTION

[1] The plaintiff, Alexander Patinios, brings this action for malicious prosecution arising from the stay of two criminal charges initiated by the defendant, Rosario Cammalleri. This action was initially defended. Justice D.A. Wilson’s endorsement following a pre-trial conference held on July 4, 2016, states:

This is malicious prosecution case - set for 17 Oct 2016. 5 days. [Defendant] is self-rep and did not attend today’s PT so it is unclear if he is defending the action. Case is ready for trial. Counsel for [Plaintiff] is to send the [Defendant] a copy of this endorsement.

[2] A legal assistant with the law firm representing the plaintiff sent a copy of Justice Wilson’s endorsement to the defendant on July 4, 2016, by regular mail: see the Affidavit of Vitalia Sousa, sworn October 17, 2016.

[3] The defendant did not attend the trial of this action.

[4] The trial proceeded in the defendant’s absence. The plaintiff was the only witness to testify.

[5] The plaintiff claims $32,129.02 for legal costs in defending the prosecution, general damages in the amount of $50,000, and punitive damages in the amount of $1,000.

[6] I have dismissed this action for the reasons described below.

BACKGROUND

[7] The plaintiff provided the following evidence. He is a 48-year-old man, has been married for 24 years, and has three children ages 14, 17 and 18. He owns a company that helps alcohol and beverage producers get their products onto the shelves of the Liquor Control Board of Ontario.

[8] The defendant is the principal, if not sole owner, of JRC Developments Limited (“JRC”).

[9] By agreement dated June 8, 2007 (the “Agreement”), the plaintiff hired JRC to build a home that the plaintiff had designed in Toronto, Ontario. The defendant represented JRC in its dealings with the plaintiff in respect of the Agreement. There were no major problems between the plaintiff and defendant during the course of construction. The plaintiff moved into his new home in April 2008.

[10] The plaintiff subsequently filed a claim in April 2008 for breach of warranty with the Tarion Warranty Corporation in respect of about 210 alleged defects related to the home. The defendant arranged for the repair of about 100 defects. The defendant took the position that the remaining alleged defects were not covered by the Tarion warranty. Tarion conducted its own inspection of the plaintiff’s house. By letter dated February 4, 2009, Tarion advised the plaintiff that some of the alleged defects were covered by the warranty. The defendant refused to fix the defects referenced in Tarion’s letter. As a result, Tarion completed those repairs.

[11] The plaintiff and his spouse appealed the refusals in Tarion’s February 4, 2009 decision letter. At the outset of a hearing before the Licence Appeal Tribunal, which commenced on September 9, 2009, the plaintiff, his spouse and Tarion informed the Tribunal that they had settled all issues except one between them on terms they kept confidential. The hearing continued for four more days because JRC, whose request to be an added party to the hearing was granted, sought a declaration that it was not a “builder” within the meaning of the Ontario New Homes Warranties Plan Act, R.S.O. 1990, c. O.31. The Tribunal found that JRC was a “builder”. On December 30, 2009, JRC appealed the Tribunal’s decision to the Ontario Divisional Court. This appeal was dismissed on November 23, 2010. The court ordered that the defendant pay costs of $6,500 to the plaintiff and his spouse: see JRC Developments Ltd. v. Tarion Warranty Corp., 2010 ONSC 6205.

[12] On March 22, 2010, while the appeal to the Divisional Court was pending, JRC commenced an action against the plaintiff and his spouse in the Toronto Small Claims Court for the recovery of $8,428.75, which was the alleged balance due under the Agreement that had been retained as a holdback. On April 14, 2010, the plaintiff and his spouse filed a counterclaim in the amount of $25,000 for monies allegedly owed to them by JRC under the Agreement as a credit for the supply of materials. This Small Claims Court action has not proceeded to trial.

[13] In 2010, the defendant and his family moved into a house about five houses down the street from the plaintiff’s house. The plaintiff states that the defendant would often walk and drive by his house and wave at his wife and children.

[14] The plaintiff states that he received calls from police officers on three or four occasions during the period from 2009 to 2011, in relation to complaints that the police had received from the defendant regarding the plaintiff’s conduct. The plaintiff states that the police officers seemed apologetic in making these inquiries and did not pursue the matter any further.

[15] The defendant then filed two private informations alleging criminal misconduct by the plaintiff.

The First Charge

[16] The defendant submitted a document dated July 12, 2011, to a Justice of the Peace requesting that the plaintiff be charged with criminal harassment and mischief. He stated that the plaintiff had obstructed, interrupted and interfered with the defendant’s personal and business activities. The defendant asked that the plaintiff enter a peace bond. A Justice of the Peace issued a summons. There is no evidence of the particulars of the alleged offence. The plaintiff states that he attended court on a number of occasions until the charge was stayed at the court’s suggestion. No documentary evidence, such as a copy of the summons, related to this charge was filed in evidence.

The Second Charge

[17] The defendant delivered another statement to a Justice of the Peace dated November 20, 2011. The contents of the statement are reproduced below:

Statement for Justice of the Peace

Alleging Mischief charges against Alexander G. Patinios [redacted]

Toronto [redacted]

My name is Rosario “Ross” Cammalleri; I am the President of JRC Developments. We develop, construct and renovate homes in the Yonge Street, mid-town corridor. We are an established and recognized firm that has been in business for more than 25 years.

I was contracted by Mr. Patinios in June 2007 to undertake specific work pertaining to the construction of his new home.

Mr. Patinios has since the completion of his home, caused Mischief to myself and to JRC Developments by using numerous and questionable tactics. He has taken matters into his own hands to OBSTRUCT, INTERRUPT and INTERFERE with my day to day personal and business activities. His actions have followed me through 5 work sites and 3 residences.

Mr Patinios has undeniably expressed to me directly and through other associates that he wants to see me bankrupt and homeless. His actions against me, by going through different governmental agencies manufacturing wrong doings are now forming a familiar targeting pattern.

I request that the Courts charge Mr. Patinios with Mischief in an effort to cease his malicious actions directly or indirectly through other agencies in interfering with my daily personal and work activities. It has become exhausting on all levels. I am itemizing Mr. Patinios’ actions which are characterized as being menacing and badgering to myself and my business.

Along with these 14 resent confrontations, I have document over 20 similar acts dating back to January 2009.

My evidence, photos, discussions with key individuals and documents support that all of these actions where a direct result of Mr. Patinios actions.

1. Soon after moving into my new house at [address redacted] on June 10^th, a complaint was made by Mr. Patinios that my parking pad was illegal. Again without any truth, I meet with Stanley Funes; By law officer no issues, my driveway was fine. Then on June 14 Patinios corresponded with the bylaw officer giving specific detail that a “builder owned that house and he does what he want”. the file was later closed.

2. July 5 6 pm. Alex drove by my site at [address redacted] Ani-wall was pouring the footings, a worker was on the road and Patinios told the worker to get the Fuck off the road.

3. July 6 the Ministry of Labour came to an un-registered site at [address redacted] where my sign is displayed, on a complaint.

4. July 7 Terry a bylaw officer contacted me and my clients that an emergency call came in; that kids were playing on my site [address redacted] near pool full of water without any fencing and he was on his way. When he arrived he saw that there was no danger and that there was no water in the pool and that it was an active work site.

5. July 7 met with D’Amico the building inspector at [address redacted] for another matter, he indicated to me that this morning a call come in again about kids playing dangerously close to one of my other site at [address redacted]. The site, as are all my sites, secured with 6 foot high fencing.

6. July 15 the Ministry of labour came by [address redacted], a then fully completed home on a complaint of an unsafe site.

7. July 19 Bylaw officer Doug Stabbings contacted me to investigate a complaint that JRC was operating without a Metro licence. The complainant gave him details on my work activities and web site-info. After I sent him my documents the file was closed without and charges.

8. August 4th. Ministry of labour came by [address redacted] on a complaint of an un safe work site. Non was true the inspector detailed in her report that all workers where working safety. These visits stop work for about 1 hour.

9. August 5 aging a second complaint was made by Patinios that my parking pad at [address redacted] was illegal. Again without any truth, I meet with Stanley Funes; By law officer no issues, my driveway was legal.

10. August 9 a complaint was made to the building inspector Peter Killham that the site at [address redacted] the gate was open and unsafe.

11. August 10th. Ministry of labour came by [address redacted] on a complaint of an un safe work site. Non was true the inspector detailed in her report that all workers where working safety.

12. August 15 4:30pm. Roger my framer was working at [address redacted] as he walked over to my other site at [address redacted] to inspect the roof line, Patinios was in his car in front of his house, came out and confronted Roger to ask “what his problem was”, roger replied “nothing”. Patinios replied that this was a family street and that Roger should have not been smoking a cigarette.

13. September 9 at 5:10 pm. Patinios drove by [address redacted], I was out front, he slowed to stare me down.

14. September 14 7:40 pm. Patinios drove by my residence […], slowed to stare me down. See pic #bb 332.

In closing, it is of great concern that Mr. Patinios’ actions have only escalated over the years and become more personal. Based on what Mr. Patinios has done in the past, I do not want to be faced with further interruptions, delay and financial adversity initiated by his actions. Also now that my clients are aware of the Maclean’s magazine article about Patinios titled “The neighbour from Hell”, this may have them contemplating awarding me future contracts. I believe he has paved the way for a personal vendetta against me which is unrelenting. His actions to date have proven to be Vexatious. I’m hopeful that a mischief charge will provide me with some relief from his malicious actions and allow me to enjoy the lawful use of my properties and carry on my business activity without his malicious harassment.

Sincerely,

Ross Cammalleri

[18] The above statement led a Justice of the Peace to issue a summons on December 12, 2011, which charged the plaintiff with mischief for wilfully obstructing, interrupting or interfering with the lawful use, enjoyment, or operation of property contrary to s. 430(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46, between June 10, 2011 and November 24, 2011.

[19] At the trial of the instant action, the plaintiff stated that there is no merit to the defendant’s complaints, with the exception that the plaintiff did file a complaint with the City of Toronto’s by-law enforcement officer that debris from one of the defendant’s construction projects in his neighbourhood was on the road. I also note that the plaintiff’s document brief (Exhibit 16) contains an email dated August 4, 2011, to 311@toronto.ca, which states:

At [address redacted] they are parking on the front pad. I don’t believe they have a permit for this as this is not allowed in our neighbourhood.

Thanks for following up.

Alex Patinios

[20] The complaint made August 4, 2011, noted above, appears to be referenced as item 9 of the defendant’s statement dated November 20, 2011.

[21] A judicial pre-trial was held on March 15, 2012, which the plaintiff was to attend; however, the plaintiff’s evidence did not address this judicial pre-trial. A letter dated March 22, 2012, from Daniel J. McMahon, counsel for the defendant, addressed to an Assistant Crown Attorney, states:

Further to our judicial pre-trial of March 15^th, 2012, I have enclosed herewith the following:

1. Initial complaint of email at the bottom of the page dealing with April 7^th, 2011 and a response dated July 15^th, 2011. Please note that the response to the initial complaint is addressed to “Hi Alex”. Please also note an indication that the initial complaint talks about the builder “consistently ignores by-laws, rules and regulations”;

2. Copy of information received through the Freedom of Information Act and the log kept by Stanley Funes wherein Alex Patinios is identified as furnishing photographs; and

3. I further advise that my client, Mr. Cammalleri, has spoken subsequent to the pre-trial with Mr. Stanley Funes, who has confirmed that he is more than prepared upon being served with a subpoena to attend court with all of his files to indicate the history of his attendances at all of the premises that Mr. Cammalleri was building at and residing at, where found to be about merit. Please also be advised that Mr. Funes is prepared to fully disclose specifically who the complaint was from and when the complaints were received.

It is further my understanding with respect to the events of July 19^th, 2011, Mr. Cammalleri is prepared at his expense to call as a witness, Mr. Doug Stubbings, relating to his involvement with respect to the matter of July 19^th, 2011. In this regard I have enclosed a copy of an email sent by Doug Stubbings to my client, which I trust you will find self-explanatory.

[22] None of the attachments referenced in Mr. McMahon’s letter were produced by the plaintiff. Further, the phrase “where found to be about merit” in the third paragraph of the above letter appears to contain at least one typographical error and might have been meant to state “were found to be without merit”.

[23] A further statement from the defendant dated January 3, 2013, states, in part, that:

The long and short of it is that every single complaint filed by Mr. Patinios filed against me or my company with the city of Toronto, which numbered approximately 11, were totally without any merit whatsoever. In addition I spent a considerable amount of time dealing with other complaints from other agencies that were also found to be without merit. In this regard, I refer you to my earlier statement dated January 18^th, 2012. It should be noted that on at least 2 if not 3 separate occasions he parked his personal motor vehicle in front of my job sites with the view of obstructing workers and trades from access to my job sites. In this regard I have enclosed a copy of a photograph what was previously furnished to both your office which in turn furnished a copy to the lawyer representing Mr. Patinios.

[24] The trial on the mischief charge commenced on the afternoon of February 4, 2013. Three by-law enforcement officers attended the trial for the purpose of proving that the complaints were made, and describing their investigations and consequences of those complaints: see p. 10 of the Transcript. Only the testimony of the defendant was completed before the court adjourned for the day. After learning that the charge was based on a private complaint, the trial judge stated that she had “a concern about the charge…,” and asked whether it might be helpful to hold another judicial pre-trial. She stated that “serious thought [should be given] to whether this is the type of matter that should be dealt with in this court or not”: see pp. 94-95 of the Transcript. The trial was adjourned for a further judicial pre-trial, which was held on March 11, 2013.

[25] On May 6, 2013, following “extensive discussions and a judicial pre-trial”, the court “mark[ed] the charges stayed at the request of the Crown”: see p. 1 of the Transcript. On the same day, the plaintiff commenced this action seeking $250,000 in general and special damages and $100,000 in punitive damages. The defendant filed a Statement of Defence and Counterclaim on June 10, 2013, seeking an injunction to restrain the plaintiff from conducting surveillance on the defendant, damages in the amount of $100,000, and punitive damages in the amount of $100,000.

ANALYSIS

[26] A claim for malicious prosecution requires proof of the following elements:

(1) The prosecution was initiated by the defendant;

(2) The prosecution was terminated in the plaintiff’s favour;

(3) There was an absence of reasonable and probable cause to commence the prosecution; and

(4) The defendant’s conduct in setting the criminal process in motion was fueled by malice: see Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 3.

[27] The first element is satisfied as both prosecutions were initiated by the defendant.

[28] There is insufficient evidence before me regarding the First Charge (including what crime the plaintiff was precisely charged with having committed) to find that the second, third and fourth elements of the tort of malicious prosecution have been established. Accordingly, the analysis below focuses solely on whether the initiation of the Second Charge satisfies the remaining elements of the tort of malicious prosecution.

Prosecution terminated in favour of the plaintiff?

[29] In Miazga, the Supreme Court of Canada stated, at para. 54:

The second element of the tort demands evidence that the prosecution terminated in the plaintiff’s favour. This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. The favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay. However, where the termination does not result from an adjudication on the merits, for example, in the case of a settlement or plea bargain, a live issue may arise whether the termination of the proceedings was “in favour” of the plaintiff: see, for example, Ramsay v. Saskatchewan, 2003 SKQB 163, 234 Sask. R. 172; Hainsworth v. Ontario (Attorney General), [2002] O.J. No. 1390 (QL) (S.C.J.); Hunt v. Ontario, [2004] O.J. No. 5284 (QL) (S.C.J.); Ferri v. Root, 2007 ONCA 79, 279 D.L.R. (4th) 643. [Emphasis added.]

[30] I reject the plaintiff’s submission that the second element is satisfied merely because the charge was stayed. First, the charge was stayed by the Crown rather than the court. It appears that the Crown exercised his discretion to stay the prosecution pursuant to s. 579 of the Criminal Code. The Crown’s decision was recorded by the court. Second, the stay did not follow an adjudication on the merits of the prosecution.

[31] Where a stay does not result from an adjudication on the merits, as in this case, the court “must examine the circumstances surrounding the agreement to try to understand the underlying reasons for the settlement…” in order to determine whether the criminal proceedings were terminated in favour of the plaintiff: see Romanic v. Johnson, 2013 ONCA 23, at paras. 7-10. There is no evidence regarding the circumstances of the settlement of the charges against the plaintiff, such as whether the defendant faced any sanction or restriction as a term of the settlement. Accordingly, I find the plaintiff has not proven that the prosecution was terminated in his favour.

Absence of reasonable and probable cause for initiating the prosecution?

[32] The third element requires proof of the absence of reasonable and probable cause for initiating the prosecution. In the context of a private prosecution, the Supreme Court of Canada in Miazga, at para. 70, explained:

[T]he plaintiff, who bears the burden of showing an absence of reasonable and probable cause, would succeed by showing either an absence of subjective belief or an absence of objective reasonable grounds.… [Emphasis in original.]

[33] There is some evidence regarding the defendant’s state of mind. The defendant’s lengthy statement, shown above, describes various grievances and explains his reasons for believing that there is reasonable and probable cause for the plaintiff’s guilt. This case is unlike Pearson v. Mian, [2006] O.J. No. 4635, at para. 25, where the defendants pleaded guilty to a charge of obstruction of justice because they knew the allegations made were false.

[34] The plaintiff points to the defendant’s unsuccessful proceedings before the Licence Appeal Tribunal and the Divisional Court, including the resulting blemish on the defendant’s Tarion record, as the basis for believing that the criminal harassment charge was not only motivated by revenge, but also that the defendant did not believe that there were reasonable grounds for the charge of criminal harassment.

[35] I am not satisfied that the evidence relied upon by the plaintiff establishes that the defendant did not believe there was reasonable and probable grounds for the charge of criminal harassment.

[36] The evidence before me shows that the plaintiff, by his own admission, made at least two by-law enforcement complaints. There does not appear to have been any serious challenge on cross-examination of the defendant at the trial before the Ontario Court of Justice of the defendant’s evidence that the plaintiff made the many complaints described above to the City of Toronto; the defendant’s belief was questioned only in respect of a few complaints. The cross-examination of the defendant focused on whether such complaints resulted in regulatory action and thus had merit: see pp. 79-80 of the Transcript. In response to those questions, the defendant denied that any regulatory action was taken against him arising from those complaints. The evidence of the three by-law enforcement officers who were set to testify at the prosecution could have addressed this gap in the evidence. I am not satisfied that there was an absence of objective reasonable grounds for initiating this prosecution.

Defendant motivated by malice in commencing the prosecution against the plaintiff?

[37] The fourth and final element requires proof that the defendant acted with malice in initiating the prosecution against the plaintiff. Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice: see Miazga, at para. 80. In the case of private complaints, malice can be inferred from the absence of reasonable and probable cause: see Miazga, at para. 88. The plaintiff has asked that I infer malice from what he views as the absence of any reasonable and probable cause for the Second Charge. However, given my findings, I am unable to make any such inference.

CONCLUSIONS

[38] For the reasons given, I dismiss this action. Given that I did not find the defendant liable in malicious prosecution, it is not necessary for me to consider the amount of damages that should be awarded to the plaintiff.

[39] In accordance with Rule 52.01(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I also dismiss the defendant’s counterclaim given his failure to attend the trial.

[40] The plaintiff claims $45,000 in costs on a partial indemnity basis. Given the circumstances, I make no order regarding costs.

Mr. Justice M. D. Faieta

Released: November 8, 2016

CITATION: Patinios v. Cammalleri, 2016 ONSC 6743

COURT FILE NO.: CV-13-479778

DATE: 20161108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALEXANDER PATINIOS

Plaintiff

– and –

ROSARIO CAMMALLERI

Defendant

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: November 8, 2016