CITATION: Prince v. Attorney General of Ontario, 2016 ONSC 675
COURT FILE NO.: CV-14-516677
DATE: 20160127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IGBINEDION ODION PRINCE Plaintiff/Responding Party
– and –
CROWN ATTORNEY OF ONTARIO, ATTORNEY GENERAL OF CANADA AND ATTORNEY GENERAL OF ONTARIO Defendant/Moving Party
Self-represented and acting in person
Jim Smith, for the Defendant Attorney General of Ontario
HEARD: January 26, 2016
ENDORSEMENT
DIAMOND J.:
Overview
[1] On November 21, 2014, the plaintiff commenced this proceeding against, inter alia, the Attorney General of Ontario (“AGO”). The plaintiff’s Statement of Claim sought damages in the amount of $27,500,000.00 pursuant to various alleged heads of relief and causes of action, including intentional inflection of mental distress, negligence, malicious prosecution, breach of trust and a breach of the plaintiff’s rights under the Canadian Charter of Rights and Freedom. (the “Charter”)
[2] After being served with the Statement of Claim in early 2015, the AGO brought a motion seeking an order striking out the claim. That motion was scheduled to proceed on March 27, 2015.
[3] On consent of both the plaintiff and the AGO, Justice McEwen signed an order dismissing the plaintiff’s claim against the AGO with leave to amend.
[4] After several extensions of the deadline by which the plaintiff was to deliver a Fresh as Amended Statement of Claim, he finally did so on July 27, 2015.
[5] The AGO now brings this second motion seeking an order striking out the Fresh as Amended Statement of Claim without leave to amend.
Motions to Strike
[6] On a motion to strike out a claim on the basis that it discloses no reasonable cause of action, the moving party must show that it is “plain and obvious” that the claim stands no chance of success. The test is traditionally a stringent one, as the Court will accept the allegations in a claim as true unless they are blatantly ridiculous or incapable of proof.
[7] As held by Justice Ratushny in Holland v. Ontario (Ministry of the Attorney General) [2000] O.J. No. 566 (S.C.J.), any allegations which take the form of assumptions and/or speculations are not to be taken as true because by their very nature they are incapable of proof by the adduction of evidence.
The Fresh as Amended Statement of Claim
[8] While the plaintiff has reduced the amount of damages sought in the Fresh as Amended Statement of Claim to $9,800,000.00, both the number and nature of the allegations contained therein have been greatly expanded, and often obscured by repetition and hyperbole. Cut down to its core, the “factual narrative” in the Fresh as Amended Statement of Claim is as follows:
● In or around October 2003, the plaintiff was arrested and charged with three counts of fraud under $5,000.00 and one count of fraud over $5,000.00 pursuant to section 380(1) and 380(1)(a) of the Criminal Code;
● After a five day jury trial, on May 31, 2007 the plaintiff was convicted of the fraud charges;
● The plaintiff appealed both his conviction and sentence, and by endorsement released on September 2, 2011, the Court of Appeal for Ontario quashed the plaintiff’s conviction and ordered a new trial;
● The plaintiff’s second trial commenced in November 2012. On the third day of trial, the plaintiff was acquitted of the fraud charges by way of directed verdict.
Decision
[9] The Fresh as Amended Statement of Claim is replete with unnecessary and repetitive assumptions, conjecture, speculation and irrelevant allegations (including the “cutting and pasting” of online articles and extracts from various Canadian jurisprudence). For those reasons alone, the Fresh as Amended Statement of Claim ought to be struck out, and recast with a view to focusing and narrowing the material facts necessary to support the plaintiff’s viable causes of action.
[10] On that note, in my view the plaintiff’s only viable causes of action as against the AGO are the tort of malicious prosecution and, possibly, a breach of the plaintiff’s rights under the Charter. As set out by the Supreme Court of Canada in Miazga v. Kvello Estate 2009 SCC 51, [2009] S.C.J. No. 51 (S.C.C.), there are four essential elements to the tort of malicious prosecution:
a) the criminal proceeding must have been initiated by the defendant;
b) the criminal proceeding must have been terminated in favour of the plaintiff;
c) the criminal proceeding was instituted and continued in the absence of reasonable and probable cause; and
d) the criminal proceeding was actuated by malice, or a primary purpose other than that of carrying the law into effect.
[11] The AGO has properly conceded that, even in its current state, the contents of the Fresh as Amended Statement of Claim satisfy the first two pleading requirements of the tort of malicious prosecution. However, the AGO argues that the plaintiff has failed to plead the material facts in support of the third and fourth elements.
[12] I agree with the AGO. To begin, it is difficult to ascertain the material facts pleaded in the Fresh as Amended Statement of Claim to support (a) the absence of reasonable and probable cause in commencing and/or continuing the prosecution, and (b) malice.
[13] As held by the Supreme Court of Canada in Miazga, a plaintiff must allege, and ultimately prove, that a Crown Attorney was acting pursuant to an improper purpose inconsistent with his/her office. A Crown Attorney must invoke or continue the criminal process only where he/she believes, based upon the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law.
[14] While I understand the plaintiff’s position that the AGO acted maliciously towards him when it chose to retry the case in the face of the Court of Appeal for Ontario’s decision, the fact that he was subsequently acquitted by way of directed verdict does not, in and of itself, satisfy the third and/or fourth elements of the tort of malicious prosecution.
[15] The plaintiff must set out additional, material facts to support the absence of reasonable and probable cause and the presence of malice. The Fresh as Amended Statement of Claim, in its current state, does not accomplish that goal and is hereby struck out with leave to amend as I believe that the plaintiff ought to be given an opportunity to “flesh out” those material facts.
[16] On consent of the parties, the plaintiff shall have a further 90 days from the release of this Endorsement to serve and file his Second, Fresh as Amended Statement of Claim.
Costs
[17] At the conclusion of the hearing, I heard submissions from both the plaintiff and the AGO as to the costs of this motion.
[18] I agree with the AGO’s submissions that given the relief sought and the result achieved, there shall be no costs of this motion to either party.
Diamond J.
Released: January 27, 2016
CITATION: Prince v. Attorney General of Ontario, 2016 ONSC 675
COURT FILE NO.: CV-14-516677
DATE: 20160127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IGBINEDION ODION PRINCE Plaintiff/Responding Party
– and –
CROWN ATTORNEY OF ONTARIO, ATTORNEY GENERAL OF CANADA AND ATTORNEY GENERAL OF ONTARIO Defendant/Moving Party
ENDORSEMENT
Diamond J.
Released: January 27, 2016