Payne v. Mak, 2017 ONSC 243

CITATION: Payne v. Mak, 2017 ONSC 243

COURT FILE NO.: CV-09-13295 CM

DATE: 2017-01-16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GLORIA PAYNE, HILARY PAYNE and LAURA MUNRO personally and as Litigation Guardian for TARA MUNRO and SHANE MUNRO, minors

Plaintiffs

– and –

CHRISTINE MAK, MIKE OWENS, EERIK RANDSALU, THE OFFICE OF THE FIRE MARSHAL, RICHARD COTE, WINDSOR POLICE SERVICES BOARD, RICHARD MARR, WINDSOR FIRE AND RESCUE SERVICES DEPARTMENT, MARIO SONEGO, THE CORPORATION OF THE CITY OF WINDSOR

Defendants

COUNSEL:

Raymond Colautti and Steven Pickard, for the plaintiffs

Jeremy Glick, Christopher Thompson and Heather Burnett, for the defendants Christine Mak and Mike Owens

Sheila Handler, for the defendants Windsor Police Services Board, Richard Marr, Windsor Fire and Rescue Services Department, Mario Sonego, and the Corporation of the City of Windsor

HEARD: September 28, 29, 30, October 4, 5, 6, 7, 11, 12, 13, 14 and 17, 2016; written argument completed November 21, 2016

REASONS FOR JUDGMENT

T. Heeney R.S.J.:

[1] On January 25, 2006 there was a fire at 614 Mill Street in Windsor. It was a seven bedroom dwelling, owned by the plaintiffs, that was occupied at the time by five individuals, most of whom were university students. It is common ground that, for purposes of this lawsuit, the fire was intentionally started by one of the occupants, Norman Fraser.

[2] A guest who was staying there that night, Anne Culligan, suffered severe burns and smoke inhalation that left her in critical condition. Two residents of the building suffered injuries when they jumped from the second floor to escape the fire, having no other means of escape available to them.

[3] A criminal investigation started immediately, which resulted in Mr. Fraser being charged with arson, although he was ultimately acquitted. A separate criminal investigation was also pursued against the plaintiffs regarding possible charges under s. 436 of the Criminal Code for “arson by negligence”. In layman’s terms tailored to this case, this section provides that if an owner fails to comply with any law respecting the prevention or control of fires, and that failure is a cause of a fire or the spread of fire that causes bodily harm or damage to property, the owner is guilty of an offence.

[4] The investigation concluded that the Mill Street property was being operated as a boarding, lodging and rooming house. The Fire Code, which is Ontario Regulation 388/97 passed under the Fire Protection and Prevention Act, 1999, S.O.1999, c. 4, contains a number of retrofit requirements in s. 9.3 thereof, applicable to boarding, lodging and rooming houses. The investigation concluded that several of those provisions had been breached, which contributed to the spread of the fire and the consequential bodily injuries.

[5] Charges were laid against the plaintiffs, although the charge against Gloria Payne was later withdrawn by the Crown when it became clear that she took no part in the actual operation of Mill Street. The charges against Hilary Payne proceeded to a preliminary inquiry before Campbell J. of the Ontario Court of Justice. In written reasons released February 8, 2008, he discharged Hilary Payne on all counts.

[6] The plaintiffs now sue the defendants for one million dollars in general damages, $500,000 in punitive, aggravated and exemplary damages, and $500,000 in special damages. As pleaded in the Statement of Claim, liability is based on the following: negligence, negligent investigation, malfeasance in office and s. 24 damages under the Charter of Rights and Freedoms. At trial, this list was expanded to include malicious prosecution and abuse of process, although no formal amendment to the Statement of Claim was sought or obtained. In argument, the claim of negligence was confined to negligent investigation, and the claim of malfeasance in office was not pursued. Although the deficiency of the plaintiffs’ pleadings was noted by defence counsel, that issue was not pursued in argument either, and nothing turns on it.

[7] The claims against the Office of the Fire Marshall (“OFM”) were dismissed on consent by Quinn J. in 2010, by reason of the fact that it was not an entity capable of being sued. On December 21, 2012, Nolan J. rendered her decision on a motion for summary judgment, reported as 2012 ONSC 6541. She dismissed the claims against the defendant Eerik Randsalu. She also dismissed the plaintiffs’ claims under ss. 8, 11(d) and 11(g) of the Charter, leaving only the claim under s. 7 remaining. In that regard, she pointed out that the plaintiffs would have to prove bad faith in order to succeed, relying on the decision of the Divisional Court in Forrest v. Kirkland, 2012 ONSC 429, [2012] O.J. No. 518 (Ont. Div. Ct.) at para. 62.

[8] There was a great deal of evidence heard during the course of this trial. Although I have considered all of it, I do not propose to refer to all of it in these reasons. My review of the evidence will be confined to the facts which are essential to the relatively narrow legal issues that must be determined.

[9] The following summary will serve to set the stage for the analysis that will follow.

Background:

[10] The plaintiffs purchased Mill Street as joint tenants on August 1, 1996. According to the report and enclosures from the solicitor who closed the transaction, the property was zoned RD2.2 and there were no outstanding permits or work orders from the Building Department.

[11] Mill Street had seven bedrooms in total, including one in the basement, one on the main floor, four on the second floor and one in the third floor loft. It was located close to the University of Windsor. The MLS listing showed that the property “has been used for student rental”, and indeed that is the use that Hilary Payne put it to from the time the plaintiffs purchased it. He rented out bedrooms on an individual basis to individual tenants. They paid rent for their room alone, and that rent was unaffected by whether other tenants moved into or out of the other rooms in the house. The number of tenants living in the house varied from time to time. Each tenant had the right to use common areas of the house along with the others. Utilities were paid for by the plaintiffs and they supplied the furniture for the common areas and, if needed, for the tenant’s room. Hilary Payne had his own key to the property and went there two to three times each week. It was Hilary Payne who cleaned the common areas, and provided his own cleaning equipment and supplies.

[12] There was a fire in the residence in 1999, when a tenant allowed a burning candle to tip over. Damage was caused, primarily confined to the second floor and loft, which was covered by insurance. A building permit was obtained to repair the damage.

[13] During the course of this, it became apparent to Allan Martin, who was the Fire Prevention Officer with Windsor Fire & Rescue Services at the time, that the property was listed on the records of the Building Department as a duplex. This was odd, since the building was not, in fact, divided into two separate units, and the plaintiffs had never used it as a duplex. In any event, Mr. Martin identified several violations of the Fire Code that applied to a duplex, including a requirement for 30 minute fire separations between the units. He prepared a Fire Safety Report which identified the deficiencies and required compliance by the owners, found at Tab 44 of Ex. 5A. The Retrofit Inspection Information Form found at the same tab, dated January 5, 2000, states that the Notice of Violation was sent to the owner on “Jan. 7/99” and to the Building Department on the same date. It appears that the date was intended to read “Jan. 7/00”, since the fire didn’t happen until December of 1999. In any event, Hilary Payne testified that they never received any communication from any City of Windsor officials regarding this fire at any time. I accept that evidence.

[14] There is a supplement to the report dated January 17, 2000, signed by Mr. Martin, that reads as follows:

Met with Building Inspector Bill Szekeley re status of residence.

Building appears not to be a duplex but city records indicate it is.

Owner may be given option to revert use to single family dwelling. Building Dept will confirm status.

OFC 9.8 inspection will be voided and Ont. Hydro inspection order will be issued.

[15] In his video statement that was admitted as evidence at trial on consent, Mr. Martin said that the property looked like a single family dwelling that was being used as a lodging house, although it was nowhere near to complying with the Fire Code requirements for a lodging house. He felt that he did as much as he could in terms of raising a flag about that issue, but was not concerned for safety as the residence was vacant at the time due to the fire.

[16] He said he did not rescind the order. However, it is clear that it was never acted upon. It is also clear that the Building Department never did any follow-up to confirm the status of the building.

[17] There is an interesting document that also relates to this first fire, found at Tab 34 of Ex. 5A, that nobody referred to during the trial. It is titled “OFM Report”, and is dated Dec. 19, 1999. It relates to 614 Mill Street, and beside the entry “Property Classif.” it says “Rooming/Boarding/Lodging House”.

[18] The fire that set this case in motion happened on January 25, 2006. At that time, there were five bedrooms occupied and two vacant. Norman Fraser was occupying the bedroom on the basement floor, while his brother, Brendan Fraser, occupied the bedroom on the main floor. There was a love triangle ongoing involving the two of them and a mutual friend, Anne Culligan. She was visiting on the night in question, and while she was in Brendan’s room with him, Norman lit a bag of garbage on fire outside his bedroom door. Brendan smelled smoke, came out and extinguished the fire. However, Norman did it again, and probably a third time as well. The Origin and Cause investigation conducted by the defendant Mike Owens (“Owens”) concluded that combustible material was ignited by Norman and left in proximity to a love seat in the living room on the main floor, after which he left the building. The fire spread quickly thereafter, throughout the main floor and up the open staircase to the second floor. Norman Fraser returned to the scene when the fire was well underway and the fire department had responded.

[19] Brendan managed to escape from the bedroom and exit the building, leaving Anne Culligan behind in his bedroom. She remained in that room for about 35 to 40 minutes, when she was found, unconscious, by firefighters and removed. She was taken to the hospital in critical condition, with extensive burns to one side of her body coupled with smoke inhalation. Her prospects for survival were not hopeful, but she did ultimately recover.

[20] Charles McKittrick occupied a bedroom on the second floor. His room has a balcony with an external fire escape leading from it. He woke up and felt his bedroom door and it was hot. When he opened it, a lot of smoke poured in. He was able to exit his room by means of the fire escape.

[21] John DeAngelis occupied the bedroom in the third floor loft. He was woken up by the smoke detector at about 4 a.m. He saw smoke coming up the stairs and the door at the bottom of the stairs was hot. He climbed out of the window and jumped to the roof one level below, where he joined Sheila Butchart. She occupied a bedroom on the second floor, and had just moved in a week or so before the fire. She also heard the alarm go off. When she opened her bedroom door she saw smoke, and went back into her room and climbed out of her window to the roof. Both she and John DeAngelis jumped to the ground from the roof. In so doing, she sustained injuries to her back, while DeAngelis injured his left foot.

[22] The defendant Richard Cote (“Cote”) was a Sergeant with Windsor Police Services and was a member of the arson unit at this time. He was assigned to the case, and began his investigation immediately. Witness statements were taken by him, and by other officers assisting him, from all of the occupants. He interviewed Norman Fraser, and obtained the admission that it was he who started the fire. Norman Fraser was arrested and charged with arson.

[23] Hilary Payne was interviewed by Officer MacDougall at 9:45 a.m. on January 25, and said that he rents out each room separately, and currently has five tenants and two vacant rooms. The tenants all arrived at slightly different times. They are all on verbal leases and pay monthly. They are not required to stay for any specific length of time and are free to move out with[out] any penalty. He stops at the house at least once a week but usually two or three times. He cleans the common areas and the students look after their own rooms.

[24] Owens is a Fire and Explosion Investigator with the OFM, and was assigned to the case at 8 a.m. on January 25. He testified that the OFM does not get involved in every fire that happens, but does have an interest in fires that cause death or serious injury, or relate to vulnerable residences like retirement homes or multi-unit residences like apartments and boarding, lodging and rooming houses. The Dispatch Report indicated that this fire was “SI”, meaning serious injury. Under “Incident Details” it noted “Possible university housing”.

[25] Owens met with the defendant Richard Marr (“Marr”), who was a Fire Prevention Officer with the Windsor Fire Department, and who had made the initial contact with the OFM. According to Marr, he probably told Owens what he knew, which would include the name of the owner of the property, and that it was being operated as a boarding, lodging and rooming house.

[26] Owens also met with Cote and was briefed on the status of the investigation. The OFM had the legal right to enter the scene of the fire and investigate it without a warrant. However, given the prospect of a charge of arson or possibly murder being laid against Norman Fraser, and given Fraser’s reasonable expectation of privacy in the residence, Owens recommended to Cote that they obtain a Criminal Code search warrant before entering and examining the residence. Cote agreed that that was an appropriate course of action, and one was issued late the following day.

[27] On January 27, 2006, Owens did his inspection of the property for the purpose of determining the origin and cause of the fire. He explained that his role has two phases. The first is to determine where and how the fire started. The second phase is to examine the prevailing circumstances beyond origin and cause. These can include the classification of the building, concerns about the fire department’s response and suppression activities, and so on, which could lead to a decision being made as to what needs to be done to address those circumstances.

[28] Based on what he had learned, Owens was of the view that they were dealing with a boarding, lodging and rooming house. This opinion was shared by Marr, Cote and all others involved in investigating the fire. When the defendant Mario Sonego (“Sonego”), who was the Chief Building Official at the time, was briefed on the information that had been gathered, he also shared that opinion.

[29] It was Owens who brought s. 436 of the Criminal Code to Cote’s attention. Cote had never laid a charge under that section before, but Owens was familiar with it. An audit of the residence was done by Marr on January 29, 2006, which found several violations of the s. 9.3 Fire Code retrofit provisions applicable to boarding, lodging and rooming houses, and he prepared a draft report. He spoke to Hilary Payne on that same date, and noted in his duty book that “Mr. Payne stated he was in control of the home. Mr. Payne has no written contracts with the tenants he only collects the money from each tenant monthly. Mr. Payne stated he furnished the common areas – living rooms and kitchen and bathrooms.”

[30] Given that there was now a prospect of Criminal Code charges being laid against the owners of the property, Owens recommended that a new Criminal Code search warrant be obtained. He explained that this would keep all options open: charges under the Criminal Code, charges under the Fire Code or no action at all. He made it clear in his evidence, though, that responsibility for laying Criminal Code charges was between Windsor Police Services and the Crown Attorney. Cote agreed with his suggestion, and a new warrant was obtained.

[31] On February 6, 2006, the OFM assigned the defendant Christine Mak (“Mak”) to do a formal audit or evaluation of the building. She is a Fire Protection Engineer whose primary job it is to perform building evaluations, i.e. to classify the building and see if it is in compliance with the provisions of the Fire Code that apply to such a classification. She arrived at the property and did her audit on February 7, 2006.

[32] From the information gathered at the audit, Mak concluded that the premises were being operated as a boarding, lodging and rooming house. She identified a series of violations of the retrofit provisions of s. 9.3 of the Fire Code relating to boarding, lodging and rooming houses, and these were set out in her draft report. A copy was provided to Cote.

[33] The final version of her report was signed by her on July 31, 2006. That concluded her involvement in the case, other than responding, on August 4, 2006, to an email sent by Owens to answer a question posed by the Crown Attorney.

[34] The parties have agreed on a number of facts as to how the investigation proceeded. These admitted facts, together with the other evidence heard, provide the following time-line:

• The negligent arson investigation was submitted to the Crown Attorney’s office on or about February 15, 2006;

• Assistant Crown Attorney Gary Nikota was assigned to the case;

• On March 23, 2006, the then-lawyer for the plaintiffs, Daniel Scott, wrote to Assistant Crown Attorney Nikota confirming that he had been retained to represent the plaintiffs with respect to the criminal investigation against them, and enclosing a report by Dr. Becker that had been obtained by Hilary Payne;

• Cote re-interviewed several of the tenants in June, 2006, at the request of the Crown;

• In August, 2006, several emails were sent involving Nikota, Cote, Owens and Mak, relating to a series of questions posed by the Crown. One of those questions was, if the court perversely found the property not to be a rooming house, whether there were other Fire Code violations. The response from Mak was that if the court found it was not a rooming house, the only other thing it could be called would be a single family dwelling unit, and in that event there would have been no Fire Code violations;

• There was a meeting with Nikota, Owens and Cote on October 3, 2006, during which Nikota requested that a further statement be taken from the tenant Sheila Butchart;

• In October, 2006, the Crown’s office advised Cote that if the police laid the charges, the Crown would prosecute them;

• Charges were laid on or about November 24, 2006, and the summons was served on the plaintiffs through Mr. Scott’s office;

• The prosecution was carried by Crown Attorney Walter Costa;

• On April 25, 2007, Crown Attorney Costa received a lengthy letter from defence counsel providing a list of reasons why the charges should be withdrawn;

• Charges were withdrawn against Gloria Payne at or about that time, based on her total lack of involvement in the operation of the Mill Street property, but continued against Hilary Payne;

• The preliminary inquiry proceeded on August 2 and 3, December 18, 19 and 20, 2007. At the conclusion of the evidence, Crown Attorney Costa requested a committal;

• On February 8, 2008, Campbell J. released his reasons discharging Hilary Payne on both counts;

• The plaintiffs make no allegation that Assistant Crown Attorney Nikota or Crown Attorney Costa were involved in any conspiracy, nor that they acted in bad faith.

[35] Before moving to an analysis of the issues, it is worthwhile to make a brief comment as to the impact of the decision and reasons of Campbell J. on these proceedings. Counsel for Mak and Owens filed a memorandum of law setting out why the findings of the preliminary inquiry judge are not binding on this court, either on the basis of issue estoppel or abuse of process. Reliance was placed on the decision of the Ontario Court of Appeal in Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427.

[36] That case involved a nurse who had been acquitted of sexual assault, during the course of which the trial judge went beyond finding her not guilty and actually declared the nurse’s innocence. The family of the alleged victim then sued the nurse’s family civilly, alleging sexual assault, battery and breach of fiduciary duty. The defendants brought a motion to strike the claim, on the basis that it was an attempt to relitigate issues already decided in the criminal proceeding. The motion was granted, but overturned on appeal. The Court of Appeal held that the findings of the criminal court were not binding in the civil action, for several reasons including the inability of any party to appeal the findings underlying the verdict.

[37] While that case involved an acquittal, as opposed to a discharge following a preliminary inquiry where the standard of proof is much lower, the same principles apply here. Mak, Owens and Cote were mere witnesses at the preliminary inquiry, as opposed to parties with the benefit of counsel to represent them, to call other witnesses of their choice, and to make submissions. The other defendants did not participate in the preliminary inquiry at all. None of the defendants had the right to appeal the findings of the preliminary inquiry judge. Furthermore, the evidence before the preliminary inquiry judge was confined to the witnesses that the Crown elected to call. The evidentiary record before the preliminary inquiry court was considerably different than this trial, both in terms of the exhibits filed but also in that witnesses were called there who did not testify at this trial, and vice versa. Notably, Hilary Payne did not testify at the preliminary inquiry. His admissions at this trial are of great significance in the factual findings and legal conclusions I have arrived at.

[38] I conclude that the findings of the preliminary inquiry judge have no binding effect on this court. Counsel for the plaintiffs did not file any legal memorandum on this point, nor did they pursue it in argument, and I infer from that that they take no issue with the position of the defendants.

Malice:

[39] A threshold factual issue in this case is whether the plaintiffs have proven malice. I use that word in its broadest sense, to include not just ill-will towards the plaintiffs, but also acting in bad faith or acting for an ulterior, improper purpose.

[40] There were two theories regarding malice, as outlined in the plaintiffs’ opening statement. The first essentially alleges that residents who lived near the University of Windsor were upset at the “studentification” of the area, where landlords rented houses to students. This created political pressure to limit the number of students. The mechanism arrived at by the defendant, the Corporation of the City of Windsor (“the City”), was to enforce the provisions of the Fire Code regarding boarding, lodging and rooming houses as a means of discouraging landlords from renting to more than three students at a time; or, if they chose to continue to rent to large numbers of students, to enhance the safety of those students from the dangers of fire through the more stringent requirements of the Fire Code that apply to boarding, lodging and rooming houses.

[41] It was baldly alleged that this political pressure is what motivated the laying of charges against the plaintiffs by Cote.

[42] The second theory involves the OFM, and is similar. It alleges that they had an agenda to “crack down” on illegal student housing, and that Owens and Mak pressured the police to lay charges against the plaintiffs in furtherance of that agenda.

[43] I will deal first with the theory that the City, through the Sonego (the Chief Building Official), pressured Cote to lay criminal charges against the plaintiffs for the ulterior and improper purpose of discouraging landlords to rent houses to large numbers of students.

[44] Most of the evidence relevant to this issue comes from Sonego. His initial view was that there was nothing illegal about the operation of Mill Street. When he was contacted by the Windsor Star after the fire, he was quoted on January 27, 2006 as saying “There were no outstanding work orders. The building was a legal duplex. We had no issues recorded.”

[45] He was also contacted by email by a concerned citizen, who had heard about the young girl critically injured in the Mill Street fire. She expressed the view that this was an illegal lodging home. Sonego’s response on January 27, 2006 was that it was a legal duplex, and did not meet the standard of a lodging home. That email string is filed as Ex. 42.

[46] However, on January 31, 2006, he spoke with Cote, who advised him as to the information he had learned about the operation of the residence. Based on that information, Sonego was now of the opinion that this was a boarding, lodging and rooming house.

[47] On March 2, 2006, Sonego sent an email to Cote attaching the Good v. Waterloo decision, with the accompanying note: “Read this case as to the difficulty of proving a lodging home under a licensing or zoning or definition that must prove people are not living as a single housekeeping unit.” More will be said about this case below, when I discuss whether Cote had reasonable and probable grounds to charge the plaintiffs.

[48] On April 10, 2006, Sonego prepared a report to City Council. In the public portion of that report, it noted that multiple tenant occupancy of single family or duplex residences, particularly around the University of Windsor, had been an issue since the double cohort year of 2003. It referred to Good v. Waterloo, where the judge decided that a dwelling was not operating as a lodging home because decisions were being made by the group as a single housekeeping unit. The report noted that one possible enforcement strategy is to proceed through the Fire Code to confirm compliance and the safety of the occupants.

[49] In the “Private Enclosure” attached to the report, meant only for the eyes of counsellors, and to be discussed during their in camera session, Sonego noted that “[p]roving that decisions within a living arrangement are made independent and controlled by the owner is extremely difficult.” He proposed that, “[i]f zoning and licensing are not effective in controlling tenant use, then Administration is of the opinion that pursuit of making these units safe from fire is the method to pursue.”

[50] This plan contemplated ordering landlords to upgrade their units so that they are fire safe. By complying with such an order under the Fire Code, there will be costs associated with doing necessary upgrades. This could result in owners deciding to bring their occupancy down so that there are 3 tenants or less, and thereby avoid the expense of upgrades. Under the definition in the City’s zoning by-law, a residence is not a boarding, lodging and rooming house unless it has 4 or more tenants.

[51] If a landlord chose not to reduce the number of tenants, compliance with the order would make the premises safer, although neighbouring residents would still be unhappy.

[52] The report therefore recommended that the Fire Department “proceed on a few properties to act under the Fire Code” where occupancy is greater than 3 tenants, to bring those units up to the required standards.

[53] This report, while it was prepared in April, did not go before City Council until June 12, 2006. The recommendations were adopted.

[54] After the report was prepared, but before it was considered by City Council, Sonego was quoted in the Windsor Star on June 2, 2006, in an article entitled “City cracks down on student rental homes”. He told the reporter that a landlord could be charged criminally by police if a tragedy – such as a fire – occurs in a home that is not up to municipal standards. He was quoted as saying “If you’re going to take this risk and something does happen, the nature of an investigation may be a little different.” While the plaintiffs treat this statement as something nefarious, it is, in fact, entirely true, both factually and legally.

[55] In cross-examination, he was asked whether it was fair to say that his report to council was in part motivated by fact that there was this Mill Street fire, where someone was seriously injured. His response was that it was “part of seeing where we go forward”, which I interpret to be a somewhat affirmative response.

[56] It is significant that Sonego’s report was never circulated to Windsor Police Services. There is no evidence that Mill Street was one of the “few properties” where the Fire Department was going to begin enforcing the Fire Code. There is no evidence that Sonego, or anyone from the City, instructed or pressured Cote to lay charges against the plaintiffs. Indeed, such a proposition was never even put to Sonego in cross-examination.

[57] At the end of his cross-examination, Hilary Payne admitted that he had no direct evidence of a conspiracy against him. In his closing submissions, Mr. Colautti, for the plaintiffs, conceded that Sonego did not tell or direct Cote to lay charges. Instead, he “articulated the process by which charges would be laid”. However, it is clear from the analysis above that under that process those charges would be under the Fire Code, not the Criminal Code, and would be against other owners, not against the plaintiffs.

[58] Furthermore, the timing of events militates against the plaintiffs’ theory. Sonego’s report was not prepared until April, 2006, and was not presented to City Council until June. However, the criminal investigation against the plaintiffs was well underway by early February, and charges were clearly contemplated by then. Hilary Payne admitted in cross-examination that he was advised by his lawyer in February that charges were expected to be laid. While they were not officially laid until November, the evidence demonstrates that this was due to the delay in answering a series of questions posed by the Crown to the police that required some further investigation and enquiries to be made.

[59] It may well be that the City’s initiative to begin enforcing the Fire Code was motivated, at least in part, by the January fire. However, there is not a shred of evidence pointing the other way, to lead to the inference that the criminal charges laid against the plaintiffs were motivated by the City’s initiative regarding student housing.

[60] The second theory regarding malice alleges that the OFM, through Owens and Mak, pressured Cote to lay criminal charges against the plaintiffs as part of a provincial crackdown against illegal boarding, lodging and rooming houses. One of the collateral benefits of such a campaign would hopefully be clarification of the definition of such residences.

[61] Once again, there is no direct evidence of any such conspiracy.

[62] As to circumstantial evidence, the plaintiffs rely on a statement by Cote at his cross-examination, pg. 31, where it was put to him that the OFM had been developing a growing concern about what it considered to be rooming houses in university settings and was hoping to clamp down on that kind of occupancy. His answer was “Well, I know Mike Owens was talking about a provincial concern about rooming houses, university students”. He agreed that they wanted to clamp down (he wasn’t sure of the exact words used), or enforce the Fire Code, as it relates to students living in these places where landlords were running them like rooming houses.

[63] It is neither surprising nor improper that the OFM would have a concern in this regard. As Owens testified, there are provincial concerns regarding several types of high density housing, such as retirement homes, apartment buildings and boarding, lodging and rooming houses, because the occupants are more vulnerable in the event of a fire. Such properties fall into a higher risk category than single family dwellings under the Fire Code. The higher standards in s. 9.3 of the Fire Code are there for a reason, and if landlords are operating boarding, lodging and rooming houses without complying with those standards, the OFM should have a serious concern about the safety of the residents of those buildings.

[64] Owens agreed that the topic of how to define a boarding, lodging and rooming house was the subject of some discussion in the OFM. He personally did not find it to be a complex issue, and felt that he understood what a boarding, lodging and rooming house was. He was aware of the Good v. Waterloo case, although he understood that it was a zoning case, not one involving the Fire Code.

[65] Owens agreed that it was he who initially drew to Cote’s attention the existence of s. 436 of the Criminal Code. I see nothing improper in that. He was there as an expert from the OFM, working with the police to investigate the fire. It is entirely proper that he would share with Cote the expertise he had accumulated from investigating other fires. While Owens was not a police officer, he, like any good citizen, had a vested interest in seeing the law enforced. He also had a direct interest, as an investigator with the OFM, in seeing the law relating to the operation of boarding, lodging and rooming houses enforced.

[66] What is entirely missing from the plaintiffs’ case is any evidence that the OFM, through Owens and Mak, pressured the police into laying charges against the plaintiffs in furtherance of an agenda to crack down on these practices. Mak simply did her job, which was to do a building audit as instructed by her superiors, and she had virtually no other involvement in the investigation, and no interaction with the police thereafter save for providing an answer to a question posed by the Crown Attorney. There is no evidence that she provided the police with any information that she did not believe to be true, nor that she withheld relevant information.

[67] Owens did the job assigned to him as well, and in the process provided the police with the benefit of his expertise in these matters, including advising them of the wisdom of obtaining a Criminal Code search warrant to preserve the option of criminal charges. Thereafter he answered questions and provided information as needed. Again, there is no evidence that he provided the police with any information that he did not believe to be true, nor that he withheld relevant information. Significantly, there is no evidence that he pressured the police into laying charges in pursuit of any crackdown on illegal student housing, nor was that proposition even put to him in cross-examination. When he was asked in examination-in-chief whether he was using this case to make an example out of Hilary Payne or to sort out the definition of a rooming house, he flatly denied doing so. I found him to be a very responsive and helpful witness, and I accept his evidence.

[68] Cote testified that the decision to lay charges was his alone, and he was not directed to do so by anyone. I believe him. It is clear on all of the evidence that the decision to charge the plaintiffs was made entirely by Cote, based upon his assessment of the case, aided by careful and extensive consultation with the Crown Attorney’s office.

[69] The plaintiffs argue that Cote’s actions can only be explained by inferring malice. I do not agree. This was a major fire where a young woman almost lost her life and others were injured, and where the expert opinions at hand indicated that there had been multiple breaches of the Fire Code that contributed to the rapid spread of the fire. There is no reason to believe that, in pursuing his investigation and ultimately laying charges, Cote was motivated by anything other than a sincere desire to do his job.

[70] In sum, there is simply no evidence, direct or circumstantial, that proves on a balance of probabilities that the charges laid by Cote against the plaintiffs were laid as a result of malice, or in furtherance of an agenda being pursued by either the OFM or the City, or their respective employees, to clamp down on illegal student housing. I find as a fact that Cote laid the charges because he honestly concluded that he had reasonable and probable grounds to believe that an offence had been committed, and not for any ulterior or improper purpose, nor as a result of any malice toward the plaintiffs.

[71] This factual finding has far-reaching consequences for the claims of the plaintiffs. Malice is an essential ingredient of the tort of malicious prosecution. In Miazga v. Kvello Estate, 2009 SCC 51, at para. 3, Charron J., speaking for the court, outlined the essential elements of this tort:

To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect.

[72] I will be discussing the third element – whether Cote had reasonable and probable grounds to lay these charges – later in these reasons. It is noteworthy, though, that the court, at para. 80, made it clear that the absence of reasonable and probable grounds does not equate with malice, but is a separate element that must be proven:

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. The third and fourth elements of the tort must not be conflated.

[73] Given my finding that no malice has been proven, the plaintiffs’ claims based on malicious prosecution must be dismissed.

[74] The claim of malicious prosecution against Mak and Owens must be dismissed for the additional reason that they did not initiate the charges, but merely provided evidence to Cote which he considered, along with other evidence he gathered, in arriving at the decision to lay charges. In D’Addario v. Smith, 2015 ONSC 6652 at para. 15, Beaudoin J. summarized the three part test established by the Court of Appeal to determine whether a complainant or other person may be said to have initiated the charges:

The Court of Appeal went on to hold that only in exceptional circumstances will a private citizen or complainant be found to have initiated a prosecution for the purpose of a malicious prosecution action. To so find, the trier of fact must satisfy this three-part test:

a. the complainant desired and intended that the plaintiff be prosecuted;

b. the facts were so peculiarly within the complainant's knowledge that it was virtually impossible for the professional prosecutor or police officer to exercise any independent discretion or judgment in determining whether or not to lay the charge; and

c. the complainant procured the institution of proceedings by the professional prosecutor or the police officer, either by furnishing information relevant to the determination of whether or not a charge should be laid that he knew to be false, or by withholding information that he knew to be true, or both. [Emphasis added by Beaudoin J.]

[75] There is no evidence that Mak or Owens desired or intended that the plaintiffs be prosecuted, nor that they subverted the investigation by withholding evidence that they knew to be true or supplying evidence that they knew to be false. In addition, the decision to charge was based on a large body of evidence collected by the police, from the tenants and elsewhere, of which the evidence supplied by Mak and Owens was but one element. It could not be said that the facts were so peculiarly within the knowledge of Mak and Owens that it was virtually impossible for Cote to exercise any independent discretion or judgment in determining whether or not to lay the charges.

[76] The same reasoning applies to Marr and Sonego with even more force, given that they played virtually no role in the laying of charges, and provided almost no information upon which those charges were based. Their opinion that this was a boarding, lodging and rooming house was expressed very early in the investigation, and had no impact on the laying of charges many months later. I am satisfied that Cote exercised his own independent judgment in arriving at the conclusion that this was a boarding, lodging and rooming house.

[77] This finding that no malice or ulterior purpose has been proven also disposes of the tort of abuse of process. In Harris v. GlaxoSmithKline Inc., 2010 ONSC 2326, Perell J. outlined the essential elements of abuse of process at para. 48, which includes proof of some indirect, collateral and improper objective:

The case law authorities establish that there are four constituent elements to the tort of abuse of process: (1) the plaintiff is a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damage has resulted: Hawley v. Bapoo (2005), 2005 36451 (ON SC), 76 O.R. (3d) 649 (Ont. S.C.J.) at para. 86, var'd (2007), 2007 ONCA 503, 156 C.R.R. (2d) 351 (Ont. C.A.); Metrick v. Deeb (2002), 14 C.C.L.T. (3d) 297 (Ont. S.C.J.) at para. 9, aff'd (2003), 2003 804 (ON CA), 172 O.A.C. 229 (C.A.), leave to appeal ref'd, (2004) [2003] S.C.C.A. No. 378, 195 O.A.C. 398n (S.C.C.); Scintilore Explorations Ltd. v. Larache, 1999 14948 (ON SC), [1999] O.J. No. 2847 (S.C.J.); P.M. Perell, "Tort Claims for Abuse of Process" (2007) 33 Adv. Q. 193 at p. 193; J. Irvine, "The Resurrection of Tortious Abuse of Process" 47 C.C.L.T. 217.

[78] The finding that no malice has been proven is also fatal to the other torts alleged against the defendants Owens and Mak. Section 74 of the Fire Protection and Prevention Act provides as follows:

74. (1) No action or other proceeding for damages shall be instituted against a firefighter, a fire co-ordinator, a community fire safety officer, a member or employee of the Fire Safety Commission, an assistant to the Fire Marshal, the Deputy Fire Marshal, the Fire Marshal, or a person acting under his or her authority, for any act done in good faith in the execution or intended execution of his or her power or duty or for any alleged neglect or default in the execution in good faith of his or her power or duty.

(2) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (1) does not relieve the Crown or a municipal corporation of liability in respect of a tort committed by a person referred to in subsection (1) to which they would otherwise be subject.

[79] I find that the acts done by Owens and Mak relating to their investigation into this fire were done in good faith in the execution of their duties. This provides a complete defence to all personal claims against them.

[80] While s. 74(2) does not relieve the Crown from being held vicariously liable for torts committed by Owens and Mak, the Crown has not been sued. They are employed by the Province of Ontario, and Her Majesty the Queen in Right of Ontario is not a defendant in this lawsuit.

[81] Accordingly, the action against Owens and Mak is dismissed in its entirety.

[82] This statutory immunity also applies to the personal claims against Marr, in his capacity as a community fire safety officer. I am satisfied that he was acting in good faith in the execution of his duties during his involvement with the investigation of this fire.

[83] However, he is not employed by the province but rather is an employee of the City (or at least I presume this to be the case, since this was not clearly articulated by counsel). The City has been sued, and could be vicariously liable if he were found to be liable for any torts other than malicious prosecution or abuse of process. Thus, the personal claims against Marr are dismissed, but the issue of the City’s vicarious liability for other claims against him remains open.

[84] Similar comments apply to Sonego. Section 448 of the Municipal Act, 2001, S.O. 2001, c. 25, reads as follows:

448. (1) No proceeding for damages or otherwise shall be commenced against a member of council or an officer, employee or agent of a municipality or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.

(2) Subsection (1) does not relieve a municipality of liability to which it would otherwise be subject in respect of a tort committed by a member of council or an officer, employee or agent of the municipality or a person acting under the instructions of the officer, employee or agent.

[85] I find that the acts done by Sonego in relation to this fire investigation and the laying of charges, limited though they were, were done in good faith and in the performance of his duties as the Chief Building Official. Accordingly, the personal claims against him are dismissed. Once again, though, the issue of the vicarious liability of the City for the remaining torts, other than malicious prosecution or abuse of process, would remain an open issue, by virtue of ss. 448(2). I should add that Marr would have personal immunity under s. 448 as well, as a City employee, if he did not already have it under the Fire Protection and Prevention Act.

Section 24 Charter Damages:

[86] The plaintiffs claim that their s. 7 Charter rights “to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” were breached by the defendants, and claim damages under s. 24(1).

[87] The first fatal flaw in this claim is that it has been brought against individual defendants and not against the state. As already noted, Her Majesty the Queen in Right of Ontario is not a defendant in this action.

[88] In Vancouver (City) v. Ward, 2010 SCC 27 at para. 22, McLachlin C.J., speaking for the court, made it clear that a claim for constitutional damages lies against the state, not against individual actors:

The term "damages" conveniently describes the remedy sought in this case. However, it should always be borne in mind that these are not private law damages, but the distinct remedy of constitutional damages. As Thomas J. notes in Dunlea v. Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para. 81, a case dealing with New Zealand's Bill of Rights Act 1990, an action for public law damages "is not a private law action in the nature of a tort claim for which the state is vicariously liable, but [a distinct] public law action directly against the state for which the state is primarily liable". In accordance with s. 32 of the Charter, this is equally so in the Canadian constitutional context. The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual's constitutional rights. An action for public law damages -- including constitutional damages -- lies against the state and not against individual actors. Actions against individual actors should be pursued in accordance with existing causes of action. However, the underlying policy considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state. Such considerations may be appropriately kept in mind.

[89] While this flaw is sufficient to dismiss this claim, there are other reasons.

[90] The factual basis for the alleged breach of the plaintiffs’ s. 7 rights is not clearly articulated in the Statement of Claim. At para. 56 of the Memorandum of Law filed by the plaintiffs and used during counsel’s closing submissions, the following factual basis is articulated:

In the circumstances of this case, the Police and Fire Marshall Defendants were not exercising a discretionary power: it was not their function to decide whether or not to prosecute the plaintiffs. They exercised their powers to swear an information and lay the charges. The law, particularly the Charter, requires that officers act in accordance with the full requirements of the law before arresting or swearing an information. The officers failed to adhere to the legal requirements of the law in charging the plaintiffs. They had no reasonable and probable grounds to believe that the plaintiffs were guilty of any offence prescribed by law. To charge and prosecute the plaintiffs, without having reasonable and probable grounds about a fundamental constituent element of the alleged offence is to fail to follow the requirements of the law, and therefore the Charter. In these circumstances, malice and bad faith are not a requirement of s. 24(1) of the Charter cause of action.

[91] In my view, the plaintiffs are attempting to advance a malicious prosecution claim in the guise of a s. 24 Charter claim, in an effort to get around the clear requirement that malice be proven.

[92] The plaintiffs seek to rely on Henry v. British Columbia (Attorney General), 2015 SCC 24 for the proposition that the police will be liable for a breach of s. 7 for proceeding with charges without reasonable and probable grounds even in the absence of malice. However, that is not what that case says. It involved a wilful failure by the Crown to provide disclosure to the defence that was highly material, the non-disclosure of which materially affected the ability of the accused to make full answer and defence. The court made it clear that the tort of malicious prosecution is well-established in our law, and where a prosecution is continued against an accused without reasonable and probable grounds, it is only actionable if the decision to do so was characterized by malice. However, in the case of a breach of the constitutional obligation to provide full disclosure, the bar is not set so high, and malice need not be proven.

[93] At para. 62, Moldaver J., speaking for the majority, explained that the threshold to intrude upon the core of prosecutorial discretion – the judgment call that reasonable and probable grounds exist to lay charges – is onerous, and requires proof of malice, as embodied in the tort of malicious prosecution:

Third, the decision to initiate or continue a prosecution falls within the core of prosecutorial discretion, whereas disclosure decisions do not. Whether in private or public law, the threshold to intrude upon that core discretion must be onerous, since it squarely implicates the independence of prosecutors. As this Court held in Krieger:

Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.

... [T]hese powers emanate from the office holder's role as legal advisor of and officer to the Crown. In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts ... . [paras. 43 and 45]

Both malice and abuse of process therefore represent very high thresholds deliberately chosen to insulate core prosecutorial functions from judicial scrutiny. In contrast, disclosure decisions are not part of core prosecutorial discretion:

In Stinchcombe, ... the Court held that the Crown has an obligation to disclose all relevant information to the defence. While the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not ... a matter of prosecutorial discretion but, rather, is a prosecutorial duty. [ibid., at para. 54]

[94] So disclosure is not a matter of prosecutorial discretion, it is a constitutional prosecutorial duty, and for that reason malice need not be proven. However, malice must be proven where an attack is made against the discretionary decision as to whether to lay charges.

[95] The Divisional Court held precisely that in Forrest v. Kirkland (supra). As in the case at bar, the plaintiff sued for malicious prosecution, alleging that the police lacked reasonable and probable grounds to lay charges against him, and brought a s. 24 Charter claim on the same factual basis. The trial judge found that malice had not been proven. At para. 62, Thomas J., speaking for the Divisional Court, said this:

In our opinion, the liability for a breach under s. 7 of the Charter requires wilfulness or mala fides in the creation of a risk or course of conduct that leads to damages. Proof of simple negligence is not sufficient for an award of damages in an action under the Charter. Bad faith is essential to establish the Charter breach: McGillivray v. New Brunswick (1994), 1994 4465 (NB CA), 116 D.L.R. (4th) 104 and Ferri v. Ontario (Attorney General) 2007 ONCA 79, [2007] O.J. No. 397.

[96] The other factual basis for the plaintiffs’ claim for a breach of s. 7 of the Charter rests on the argument that this was arbitrary state action.

[97] In that regard, the plaintiffs argue that this was an attempt to enforce a law that was “vague”. They concede that the Criminal Code is not vague, but argue that the underlying Fire Code provisions are, and in particular the definition of a boarding, lodging and rooming house.

[98] This is a clear illustration as to the need to bring a Charter claim against the state, and not against individuals. It is the state’s law, specifically the Province of Ontario, that is under attack. Her Majesty the Queen in Right of Ontario is an essential party in such a claim, since the validity of Ontario law is at issue.

[99] In any event, I do not agree that the Fire Code is vague. It will be described in detail below. For present purposes, while a more detailed definition would have been desirable, the term is capable of being understood by an ordinary person based on the plain language used and the application of common sense. It is not a difficult concept. While there are other relevant factors, as will be discussed below, in its simplest terms a rooming house is a place where someone rents a room. While they may have use of common areas together with others, it is only their room where they have exclusive dominion. This is distinct from renting an entire house or an entire apartment, where the tenant or group of tenants who rented the house or apartment have dominion over the entire unit.

[100] I am satisfied that the language used is adequate to give “fair notice to citizens and limitation of enforcement discretion”: see Hogg, Constitutional Law of Canada 5th ed., Thomson Carswell, Toronto, at p. 47-63.

[101] The Charter claims are, therefore, dismissed.

Negligent Investigation:

[102] The only remaining claim is negligent investigation. I will discuss it first as it relates to Cote, who was in charge of the investigation, and was the one who made the decision to lay the charges.

[103] The tort of negligent investigation has been recognized by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41. That decision recognizes that the police owe a duty of care toward a suspect. The standard of care is articulated at para. 67 of the majority decision:

Both the trial judge and the Court of Appeal adopted the standard of the reasonable police officer in like circumstances as the standard that is generally appropriate in cases of alleged negligent investigation. I agree that this is the correct standard.

[104] The applicable standard is that which prevailed at the time of the investigation. Even if prevailing police practices and investigative techniques have changed since the time of the investigation, an officer will not be liable if the investigation met the prevailing standard at the time.

[105] In Hill, there were specific allegations of negligent actions on the part of the investigating officer. They included witness contamination as a result of publishing a photograph of the accused; interviewing two witnesses together and with a photograph of Hill on the desk; structural bias in the manner in which the photo lineup was conducted; and, the failure to reinvestigate once evidence came to light that the robber was not Hill but was instead a different man, Sotomayer.

[106] In the case at bar, there is no evidence as to the prevailing standard of care, nor any evidence that that standard has been breached by Cote.

[107] The general rule is that expert evidence is required to establish the standard of care of a professional such as a police officer: 495793 Ontario Ltd. (c.o.b. Central Auto Parts) v. Barclay, 2016 ONCA 656 at para. 53. At para. 57, Juriansz J.A., speaking for the court, articulated two exceptions to this general rule:

Epstein J.A., on behalf of this court in Krawchuk, identified two exceptions to the general rule that it is not possible to determine professional negligence without the benefit of expert evidence. The first, as mentioned above, is in nontechnical matters within the knowledge and experience of the ordinary person. The second is where the impugned actions are so egregious that it is obvious that the defendant's conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care. Epstein J.A. explained, at para. 135, that "this second exception involves circumstances where negligence can be determined without first identifying the parameters of the standard of care rather than identifying a standard of care without the assistance of expert evidence."

[108] The second exception clearly does not apply. As to the first, the only nontechnical matter that may be within the knowledge and experience of the ordinary person is whether Cote had reasonable and probable grounds to believe that an offence had been committed. That is an issue that this court routinely deals with in criminal cases, without the need for expert evidence.

[109] Hill, at para. 55, describes the interplay of the requirement for reasonable and probable grounds and the standard of care:

Recognizing a duty of care in negligence by police to suspects does not raise the standard required of the police from reasonable and probable grounds to some higher standard, as alleged. The requirement of reasonable and probable grounds for arrest and prosecution informs the standard of care applicable to some aspects of police work, such as arrest and prosecution, search and seizure, and the stopping of a motor vehicle. A flexible standard of care appropriate to the circumstances, discussed more fully below, answers this concern.

[110] The issue as to whether Cote had reasonable and probable grounds was clearly before the court in this case, and can be considered in the context of determining whether Cote met the standard of care. However, absent expert evidence that his investigation failed to meet the applicable standard of care in other respects, the analysis will be confined to that issue.

[111] That analysis will be informed by the comments of the majority in Hill at paras 49 – 50:

It was argued that the decision of police to pursue the investigation of a suspect on the one hand, or close it on the other, is a quasi-judicial decision, similar to that taken by the state prosecutor. It is true that both police officers and prosecutors make decisions that relate to whether the suspect should stand trial. But the nature of the inquiry differs. 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 them to make judgments as to legal guilt or innocence before proceeding against a suspect. Police are required to weigh evidence to some extent in the course of an investigation: Chartier v. Attorney General of Quebec, 1979 17 (SCC), [1979] 2 S.C.R. 474. But they are not required to evaluate evidence according to legal standards or to make legal judgments. That is the task of prosecutors, defence attorneys and judges. This distinction is properly reflected in the standard of care imposed, once a duty is recognized. The standard of care required to meet the duty is not that of a reasonable lawyer or judge, but that of a reasonable police officer. …

[112] The analysis begins with the section of the Criminal Code under which the plaintiffs were charged. Section 436 reads as follows:

436(1) Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.

(2) Where a person is charged with an offence under subsection (1), the fact that the person has failed to comply with any law respecting the prevention or control of fires or explosions in the property is a fact from which a marked departure from the standard of care referred to in that subsection may be inferred by the court.

[113] The first element is that the accused must own or control the property. That element is clearly met, because it is common ground that both of the plaintiffs owned the property at all material times.

[114] Two of the other key elements of the offence are set out at par. 28 of the reasons of Abella J.A. (as she then was) in R. v. Harricharan, 1995 CarswellOnt 1712 (Ont. C.A.):

Two of the key elements of the actus reus which the Crown must therefore prove beyond a reasonable doubt are:

(a) that the accused's behaviour represented a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions; and

(b) that the culpable behaviour was a cause of a fire (or its spread), or of an explosion causing damage.

[115] The plaintiffs had argued that, in a prosecution under this section, it was necessary for the Crown to prove that their marked departure from the standard of care actually caused the fire. As already noted, it is common ground that the fire was started by a tenant, not by the plaintiffs. The passage just quoted lays that argument to rest, and I note that both Morden A.C.J.O. and Catzman J.A. concurred with Abella J.A. on this point. The Crown may obtain a conviction where it proves, beyond a reasonable doubt, that the marked departure of the owners was either a cause of the fire, or a cause of the spread of the fire, which in turn caused damage or injury. Note that all is required that it be a cause and not the cause.

[116] A marked departure from the standard of care may be inferred by the court where the owner failed to comply with any law respecting the prevention or control of fires. In this case, the law in question is the Fire Code. It was the position of Cote, and of the Crown at the preliminary inquiry, that s. 9.3 of the Fire Code applied to this property, because it was being operated as a boarding, lodging and rooming house. That section contains a number of measures designed to control the spread of fire. Key among them are the requirement for fire separations between bedrooms and the rest of the building, the requirement for fire separations between floors, and the requirement to separate stairways from the rest of the building by fire separations.

[117] The evidence that Cote had gathered indicated that the bedroom in which Anne Culligan was found was breached by fire because the fire separations protecting that room were not up to the standards prescribed by the Fire Code, and she was injured as a result. The evidence also indicated that the fire rapidly spread up to the second floor and beyond due to the fact that the stairway to the second floor was open and unprotected, leaving an open pathway for the fire to spread upward. The occupants of the second and third floors (other than McKittrick) were unable to escape the fire by means of the stairway because, presumably, it was engulfed in smoke and flames or, at the very least, it led to the main floor which was engulfed in smoke and flames. Since no other fire escape was accessible, they were forced to jump from the roof to the ground, and were thereby injured.

[118] A threshold question is whether Cote had reasonable and probable grounds to believe that the property was being operated as a boarding, lodging and rooming house and that s. 9.3 of the Fire Code therefore applied.

[119] Section 9.3 consists of “retrofit” provisions, which require proactive compliance by an owner who operates a boarding, lodging and rooming house. But for one relevant exception that is discussed below, these provisions apply irrespective of the age of the building or whether it was in existence at the time the Fire Code was proclaimed in force.

[120] Allison Orr is a professional engineer who testified for the defence, who was qualified as an expert in building engineering, the interpretation of the Ontario Building Code (which is O. Reg. 927/75 under the Building Code Act, 1992, S.O. 1992, c. 23 (the “Building Code”)) and the practical application of the interrelationship between the Building Code and the Fire Code. She testified that s. 9.3 applies to existing buildings irrespective of their age. She spent a considerable portion of her career in Hamilton working for that city’s Building Department, ensuring compliance with the retrofit provisions applicable to many old structures in Hamilton.

[121] Dr. Norbert Becker is a professional engineer who testified for the plaintiffs, and was also qualified as an expert on the Building Code. It was his thesis that s. 9.3 of the Fire Code did not apply to Mill Street because the building “satisfied” the Building Code.

[122] To understand that argument, it is necessary to set out some details. Mill Street was built somewhere around the 1940’s, several decades before the Building Code came into force. The provisions of the Building Code are not, generally speaking, retroactively applicable to buildings that existed when the Code came into force, but only apply to material alterations or repairs to those buildings that occurred while the Building Code was in force. Section 2.1.1.7(1) provides that:

… where an existing building is extended or subject to material alteration or repair, the Code is applicable only to the design and construction of the extensions and those parts of the building that are subject to the material alteration or repair.

[123] Section 9.1.2.2. of the Fire Code provides as follows:

This Part does not apply to buildings or parts thereof that satisfy the requirements of the Building Code.

[124] The plaintiffs’ argument, through Dr. Becker, is that since the building predated the Building Code, it can be said to “satisfy” the Building Code by virtue of the fact that the Building Code does not apply to it. On that interpretation, s. 9.3 of the Fire Code would not apply, because the building could be said to “satisfy the requirements of the Building Code”.

[125] I reject this interpretation.

[126] The Building Code contains many detailed, technical standards for the construction of buildings covering a wide variety of topics, including fire safety. To say that a particular building “satisfies” the Building Code means that the building has been constructed in accordance with those specified standards. That is quite a different thing from saying that the Building Code does not apply to the building.

[127] If the Building Code does not apply, the building may fail to comply with the standards prescribed in the Code in many respects. All this means is that the owner will not be forced, under the Building Code, to bring the building up to those standards.

[128] In this case, I conclude that s. 9.3 of the Fire Code does apply to Mill Street, because there is no evidence that it met the standards specified in the Building Code for boarding, lodging and rooming houses. It is noteworthy that Allison Orr testified that the fire safety standards in the Building Code tend to be more onerous than those in the Fire Code, so it makes sense that compliance with the standards in the Building Code would be sufficient.

[129] So the next issue that must be addressed is this: did Cote have reasonable and probable grounds to believe that Mill Street was a boarding, lodging and rooming house, such that s. 9.3 applied?

[130] A boarding, lodging and rooming house is defined in the Fire Code as follows:

9.3.1.1. (1) This Section applies to boarding houses, lodging houses, rooming houses and private rest homes in which residents do not require care or treatment because of age, mental or physical limitations, where

(a) the building height does not exceed 3 storeys and the building area does not exceed 600 m²,

(b) lodging is provided for more than four persons in return for remuneration or the provision of services or both, and

(c) lodging rooms do not have both bathrooms and kitchen facilities for the exclusive use of individual occupants.

[131] While the definition in the Fire Code is the relevant one for purposes of this case, it is worthwhile to examine the definition of the same term elsewhere. The definition in the Building Code of a boarding, lodging and rooming house, found in s. 1.3.2. thereof, is almost identical to the Fire Code, except that the definition applies when lodging is provided for more than three persons instead of four.

[132] In the City’s Zoning By-law 8600, the definition of a “lodging home” is “a dwelling in which a minimum of 4 persons, not including staff, are provided with lodging for hire, with or without meals, but does not include a place of detention or correction, residential care facility, group home, hotel or motel, private home daycare room or suite of rooms used by or designed to be used by one or more individuals.”

[133] Mill Street meets each of the criteria in the Fire Code for a boarding, lodging and rooming house.

[134] Much was made by the plaintiffs of the decision of Good v. Waterloo (City), 2003 14229 (ON SC), [2003] O.J. No. 4027 (S.C.J.) per Gordon J. It was a zoning case, where the owner applied for a declaration that his use was in conformity with the by-law. The building was divided into two units, with four bedrooms in one and six in the other. Each unit had a kitchen, living room and bathroom. The owner maintained that these were two separate residential units, while Waterloo argued that they constituted a lodging house.

[135] At para. 19, Gordon J. summarized a series of relevant points:

In this regard, the evidence provided by the three occupants provides assistance, a summary of relevant points being as follows:

(a) a lease originally entered into and signed by all occupants at the time;

(b) occupants often leave during the specified term of the lease but are responsible to find a replacement, that is sub-let, and the replacement occupants do not always sign the lease;

(c) rent is charged for each unit, not per bedroom per se, and is presently paid individually by post-dated cheques, from each occupant, delivered to the applicant;

(d) one invoice is received from each utility provider for the building and is divided 60:40 between the units with each occupant paying his or her share, one of whom will collect payment;

(e) housekeeping, such as it is, of the rooms in the unit, including the kitchen, bathroom and living room, is done by the occupants, on an informal basis, and the exterior is maintained by the applicant;

(f) all furniture is supplied by the occupants;

(g) bedroom allocation is determined by the occupants;

(h) occupants entertain guests in the living room or in their bedroom, the living room also being used by the occupants to watch television or for other activities;

(i) locking devices, referred to as a "hasp and loop" were installed on some or all bedroom doors by prior occupants, some present occupants using a padlock to secure their bedroom when away from the premises, with none of the occupants obtaining permission from the applicant;

(j) the applicant notified the occupants of the lower unit only to remove such locks, in part to access the furnace room.

[136] At paras. 23 and 24, he ruled as follows:

In my view, the distinguishing characteristic as between a lodging house and a residential unit focuses on the control of the premises. The label currently attached, a lease, is of little importance as such may, in some cases, simply be a method to disguise the true purpose and use.

Control, in a lodging house, is by the owner and the occupants on an individual basis, whereas in a residential unit it is by the group. Accordingly, for a residential unit there must be evidence of collective decision-making regarding the use of the premises.

[137] Counsel for the plaintiffs have seized on this passage as standing for the proposition that the only thing that matters in determining whether something is or is not a boarding, lodging and rooming house is the presence or absence of joint decision-making, something that is very difficult for anyone to prove, short of actually moving in with the tenants and observing. In my view, that is a misreading of this decision. The ten-item list of various decisions that need to be made and tasks to be done, which demonstrate who controls what, is an integral part of the decision, and serves as a useful summary of relevant factors that must be taken into account in determining the final issue.

[138] That is precisely how the Court of Appeal approached the matter when this decision went to appeal. In the decision of the Court, reported at 2004 23037 (ON CA), [2004] O.J. No. 3725 (C.A.), the following is said at paras. 4 – 6:

The motions judge correctly addressed the critical phrase to be interpreted, namely whether the premises in question are a "single housekeeping unit". He used as an important interpretive criterion whether there was collective decision-making sufficient to create a single unit for housekeeping purposes. We agree this is an appropriate criterion.

In this case, there was ample evidence to support his decision that there was sufficient collective decision-making to meet this criterion, including:

(a) how the rent was paid;

(b) the furnishing of the apartment and rooms by the occupants;

(c) payment of the utilities by the occupants;

(d) the assignment of the rooms by the occupants; and

(e) how the housekeeping, or lack of it, was to be done.

The cohesiveness of this unit is further exemplified by the fact that most of the occupants had occupied the premises for lengthy periods of time.

There was also ample evidence on which the motions judge could conclude that this was not a circumstance in which there was exclusive possession of any parts of the unit.

[139] Note that the Court of Appeal referred to collective decision-making as “an” important criterion, not “the” criterion by which the question is to be answered.

[140] When the list of factors outlined by the Court of Appeal is applied to Mill Street, it leads to the inescapable conclusion that it was not a single housekeeping unit, but rather was a boarding, lodging and rooming house:

• How the rent was paid: In Waterloo, the tenants rented each of the two units as a whole, and paid a fixed rent for that entire unit. While they each contributed to that rent through post-dated cheques, the important fact is that they were collectively responsible for the entire rent for the entire unit. If a tenant moved out, it was his/her responsibility to find another tenant, who would pay his/her share of the rent. By contrast, the tenants on Mill Street paid rent for their bedroom only, directly to the owners, as opposed to renting the entire house. Their rent for that bedroom was unaffected by whether other tenants moved in or out, and they had no obligation to find a replacement tenant. Hilary Payne advertised it as “come and go as you like”;

• The furnishing of the apartment and rooms: In Waterloo, furnishings were provided entirely by the tenants. At Mill Street, Hilary Payne provided furniture for all of the common areas, and if a tenant wanted additional furniture, he provided it;

• Payment of utilities: In Waterloo, the tenants paid their pro-rata share of utilities, based on the number of bedrooms, so that one unit paid 60% and the other paid 40%. By contrast, Hilary Payne paid all of the utilities, including cable and internet, for Mill Street, without any contribution from the tenants;

• Assignment of the rooms: In Waterloo, bedrooms were assigned by the tenants themselves. At Mill Street, Hilary Payne rented out individual rooms to tenants that he selected, and determined who received what room;

• How the housekeeping was done: In Waterloo, the tenants were responsible for doing their own housework. At Mill Street, Hilary Payne cleaned all of the common areas on a regular basis, using his own cleaning supplies. The tenants were only responsible for maintaining the bedroom that they occupied;

• Length of occupancy: Norm Fraser had lived in the residence since at least early 2005. But according to the statement of John DeAngelis taken June 9, 2006, DeAngelis, Charles McKittrick and Brendan Fraser all moved in in September, 2005. This coincides with the rental ledger at Tab 1, Ex. 5B, which shows no rent paid by those three tenants prior to September, 2005. In the meantime, many other tenants came and went. Krisztian Szaraz moved out in November, 2005; Sophie Guilbeault moved in in September, 2005 and left after one month; Chad Fryer moved out in August, 2005; Joe Doxtator and Sara Wall moved out in July, 2005; Dan Fleming moved in in September, 2005 and left after only one month; and Sheila Butchart moved in around January 19, 2006. It cannot, therefore, be said that “most of the occupants had occupied the premises for lengthy periods of time”;

• Exclusive possession of any part of the unit: In Waterloo, the tenants had exclusive possession in common of the entire unit. At Mill Street, the tenants only had exclusive possession of their own bedroom, and shared all of the common spaces with other tenants. Hilary Payne also entered up to two or three times per week with his own key, indicating that the tenants did not have quiet possession of the entire unit.

[141] The fact that Sheila Butchart, a complete stranger to DeAngelis, McKittrick and the two Fraser brothers, moved into the residence a week or so before the fire is of considerable importance. There is no evidence that she participated with her new roommates to make joint decisions as to the operation of the residence. She didn’t even know their last names. Furthermore, Hilary Payne showed the two vacant rooms to two other prospective tenants during the week before the fire. There is no evidence that they had any connection to the existing tenants. Had they moved in, three out of seven residents may well have been complete strangers to each other.

[142] Plaintiffs’ counsel frequently referred to the “lifestyle” of the occupants as being determinative of whether the property was a boarding, lodging and rooming house. In other words, the fact that two of them were related, and that they were friends with two other tenants, who socialized and played music together, somehow meant that the property became a single family residential unit, and not a boarding, lodging and rooming house.

[143] I do not agree. Suppose that five individuals lived in this residence, each of whom were strangers to the others, who moved in at different times, and paid their rent separately to the landlord for their own bedroom. No-one could argue that this was anything other than a rooming house arrangement. But suppose that during the course of living in the same building, they became friends, and began socializing and sharing some meals together. They discovered a mutual interest in music and decided to form a band. Could it be argued that at some point in time this boarding, lodging and rooming house transformed itself into a single residential unit? Could it be argued that the more stringent fire and safety regulations that apply to a boarding, lodging and rooming house suddenly became inapplicable simply because the tenants became friends and began socializing? Clearly not.

[144] While the cohesiveness of the group of residents is a factor to be considered, it must be considered within the context of the entirety of the living arrangements, including the legal arrangements entered into with the landlord. Did the residents rent the entire house or apartment from the landlord, where they would have quiet possession of the entire unit and would decide who slept in what bedroom and, as a group, would be responsible for paying rent for the entire residence irrespective of one or more of them moved out? Or did they instead each, individually, rent nothing more than a bedroom, with the right to use the common areas, where the landlord decided who slept in what bedroom, where they did not have quiet possession of the whole unit but instead the landlord could enter the premises at will, and where the rent they paid for their room was unaffected by whether other tenants moved out or moved in from time to time?

[145] In a case decided under the Building Code, Balmoral Developments Hilda Inc. v. Orillia (City), [2013] O.J No. 1552 (C.A.), the issue was whether increasing the occupancy of each unit to seven students, each with his or her own lease, would bring the units within the definition of a boarding, lodging or rooming house. The application judge held that it would not. In allowing the appeal, and in finding that the property was a boarding, lodging and rooming house, the Court of Appeal said the following, at para. 6:

In our view, it is clear that the respondent's proposed use of the units provides lodging for more than four persons in return for remuneration. This is apparent from the following facts:

• there will be seven individual leases, one for each of the bedrooms, which the occupants of those bedrooms will enter into with the landlord

• the occupants will rent for terms that vary between 10 and 12 months

• the individual bedrooms all will have locks on their doors

• the furniture by and large will be provided by the landlord

• there is no evidence of any anticipated collective decision making among the occupants

• there is no evidence that the occupants will be required to pay a share of the utilities other than as encompassed in the rent

• although the landlord will take requests into consideration, the occupants will be selected by the landlord, and

• apart from their attendance at university or college there is no evidence of any other connection among the seven proposed occupants.

[146] This list of factors applies fully to Mill Street, save for the fact that there was a connection among four of the occupants, in that they were friends who played in a band together, and two of them were brothers. However, the vast preponderance of these factors all point to Mill Street being a boarding, lodging and rooming house.

[147] One of the factors that the Court of Appeal considered relevant was that the individual bedrooms will all have locks on their doors. Hilary Payne installed deadbolt locks on the bedroom doors at Mill Street sometime in 2005.

[148] It is also noteworthy that the description of the property on the plaintiffs’ insurance policy said “Student Rooming House – 5 Rooms”. Hilary Payne testified that this was the insurance company’s label, not his. He said he was asked what the property is being used for and he said “students”. He claims to remember the exact words used in that conversation, which may have occurred as far back as 1996 when he purchased the property. He agreed that he got insurance renewals each year that said “student rooming house”, but claims never to have noticed it. I find that difficult to accept.

[149] Reasonable and probable grounds have both a subjective and objective component. An arresting officer must subjectively have reasonable and probable grounds upon which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. The police are not required to establish a prima facie case for conviction before making the arrest: R v Storrey, 1990 125 (SCC), [1990] 1 SCR 241 at para 17.

[150] There is no question that Cote subjectively concluded that he had reasonable and probable grounds to believe that Mill Street was a boarding, lodging and rooming house, such that s. 9.3 of the Fire Code applied. On all of the evidence, I am satisfied that this belief was entirely justifiable from an objective point of view. Indeed, I find as a fact that Mill Street was a boarding, lodging and rooming house.

[151] The next question is, did Cote have reasonable and probable grounds to believe that the elements of an offence under s. 436 existed? As already noted, the Crown must prove that the accused's behaviour represented a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires, and that the culpable behaviour was a cause of a fire (or its spread).

[152] A marked departure from the standard of care may be inferred from a breach of any law respecting the prevention or control of fire, such as the Fire Code.

[153] Cote was provided with a building audit report by Mak that demonstrated a long list of violations of the retrofit provisions of s. 9.3 of the Fire Code that applied to boarding, lodging and rooming houses. These violations were as follows:

• 2.8.1.1: no fire safety plan for the building;

• 9.3.2.2: no fire separation between the first and second floors, allowing the fire to spread from the first to the second floor quickly;

• 9.3.2.4: 30 minute fire separations for each guest room;

• 9.3.2.5: 45 minute fire separation for the furnace room;

• 9.3.3.1: no second exit provided for the third floor bedroom or the basement;

• 9.3.3.5: the stairs to the second floor were unprotected, rendering them inaccessible at some point during the fire. The stairs from the second floor to the third floor had a door, but not one with the minimum 20 minute fire-protection rating as required by s. 9.3.3.8(1);

• 9.3.3.10: no exit signs showing means direction of exit travel;

• 9.3.4.1: since the floors did not have a 45 minute fire separation, the building required a specified fire alarm and smoke detector system, which it did not have, although it was equipped with smoke alarms;

• 9.3.5.1: at least one 2A rated portable fire extinguisher on each floor. There was only one, in a kitchen cabinet.

[154] Clearly, from this evidence Cote had reasonable and probable grounds to believe that a marked departure from the standard of care existed, and that belief was objectively reasonable.

[155] Finally, did Cote have reasonable and probable grounds to believe that the Fire Code breaches were a cause of the spread of the fire, which in turn caused damage or injury?

[156] The lack of a fire separation between the first and second floors allowed the fire to spread quickly up the stairs and engulf the second floor. This was the opinion of Owens, which was shared by the plaintiffs’ expert Dr. Becker, who stated that “it is obvious”. He also agreed that this would be detrimental to those on the second floor, although he believed it might have benefitted those on the main floor because the fire was allowed to vent upwards.

[157] The fact that the fire spread quickly to the second floor meant that Sheila Butchart and John DeAngelis did not have the protection from the fire that a fire separation with the specified ratings would have provided. This left them with less time to escape, and gave the Fire Department less time to respond to the fire and perhaps contain it before it spread to the second floor. The fact that the stairway was unprotected also eliminated their means of escape, because the stairway was inaccessible due to the fire. This required Sheila Butchart to climb out of her window to the roof and jump to the ground, resulting in injury. John DeAngelis should have been provided with a second exit from the third floor loft, but was not. While a fire escape did lead from the second floor, it was accessible only from a bedroom and not from a corridor as required. He also jumped to the roof below and then to the ground, resulting in injury.

[158] Aside from injuries, it is clear that the rapid spread of fire to the second, and then the third, floor caused damage to property, which is also an offence under s. 436, although a charge specific to property damage was not laid.

[159] One of the points argued by the plaintiffs against the existence of reasonable and probable grounds related to the bedroom in which Anne Culligan was found. The Fire Code requires a fire separation of 30 minutes in the bedroom walls. One “wall” consisted of French doors on one side and a single layer of drywall on the other. The drywall that was used was too thin to provide this separation, and the door itself had thin panels which had been burned through and which, in Mak’s opinion, would not provide the required fire separation. The argument, though, is that the evidence does not support a finding that the drywall/French door combination was necessarily a breach of the Fire Code because the date of installation was not known. Since the assembly consisted of a combination of gypsum wallboard and the door, it would have been deemed to be in compliance, irrespective of the thickness of the membrane, if it existed as of February 11, 1987 (which was the date that s. 9.3 came into force). This is specified in s. 9.3.2.4.(1), combined with s. 9.3.1.1.(3)(b). If it was put in place after that date, the drywall/French door combination would not comply.

[160] However, this point only became clear during the testimony of Mak. Cote was not cross-examined as to the age of the drywall/French door combination to determine if he was alive to the issue or to what extent it was investigated. He did testify that it was clear to him that this installation had been breached by the fire, and was of the belief that it would not have been had it had a higher fire resistance rating. Owens testified that there was evidence of charring inside the bedroom, consistent with a breach by fire, and believed that Anne Culligan was burned from radiant heat emanating from the ceiling, although not by direct flame.

[161] While this may represent a gap in the evidence, gaps and minor discrepancies in the evidence do not necessarily negate the existence of reasonable and probable grounds: see, for example, Chmielewski v. Niagara (Police Services Board), 2009 ONCA 51. It is noteworthy that this alleged breach of the Fire Code was only one of a long list of violations that, according to the expert information Cote was provided with, contributed to the rapid spread of the fire.

[162] It is also significant that the plaintiffs’ then-lawyer, Kirk Munroe (now Munroe J.) wrote a thoroughly-researched and comprehensive 21 page letter to Crown Attorney Costa dated April 25, 2007, setting out a long list of reasons why the charges should be withdrawn. The apparent gap in the evidence relating to the main floor bedroom, and the related issue of the causal connection between the Fire Code breaches and the injuries sustained by Anne Culligan, were not mentioned in that letter. If this arguable flaw in the Crown’s case was apparently not identified and raised by experienced defence counsel, one can hardly fault the investigating officer for failing to do so. It is instructive to recall the comments at para. 49 of Hill, already referred to above:

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.

Police are required to weigh evidence to some extent in the course of an investigation: Chartier v. Attorney General of Quebec, 1979 17 (SCC), [1979] 2 S.C.R. 474. But they are not required to evaluate evidence according to legal standards or to make legal judgments. That is the task of prosecutors, defence attorneys and judges.

[163] I am satisfied that Cote subjectively believed that he had reasonable and probable grounds to conclude that breaches of the Fire Code were a cause of the spread of the fire, which was, in turn, a cause of injury to John DeAngelis and Anne Culligan, and that such belief was objectively reasonable. He also had reasonable and probable grounds to believe that such breaches were a cause of injury to Sheila Butchart and were a cause of property damage, although charges were not laid in either regard.

[164] Plaintiffs’ counsel repeatedly made reference to the fact that the property was “classified” as a duplex on the records of the City, and that no-one at the City ever changed that classification. The implied suggestion is that there was some onus on the City to inspect the property and advise the plaintiffs as to how their residence was classified, so that they could determine whether it was or was not in compliance with all applicable regulations. This feeds the argument that there was “officially induced error” at play.

[165] This argument is untenable. As attested to by Allison Orr, the historical records of the City may be interesting, but they say nothing about how the building is actually being used at the relevant time. Buildings can be constructed for one purpose, and then undergo a change in use over time, or perhaps several. There is no legal onus on the City to monitor the use of any given building from time to time, or to notify the owner if that use is not in compliance with zoning or other regulations.

[166] What counts is not what the historical records say, but how the building is actually being used at the relevant time. If Mill Street was actually being used as a boarding, lodging and rooming house in January, 2006, then the regulations relevant to such a use are the ones that apply, irrespective of how the property may have been described in the City’s records. The old adage “ignorance of the law is no excuse” is apt. The onus is on the owner to determine what regulations apply, based on the use that the owner chooses to put the property to. Section 1.1.1.1 of the Fire Code provides as follows:

Unless otherwise specified, the owner shall be responsible for carrying out the provisions of this Code.

[167] Furthermore, to the extent that the historical records are relevant, they describe the property as a duplex. Hilary Payne admitted that the property had never been used by him as a duplex from the time he purchased it. If he had placed any reliance on the City’s records, he would have known that he was using the property for a purpose that was different than how the property had been classified. Once again, the onus would be on him, as the owner, to find out what classification applied to the use he was actually putting the property to.

[168] The plaintiffs argue that the officer did not have reasonable and probable grounds to lay a charge because there was no evidence of “moral blameworthiness” which, Campbell J. held, was an element of the applicable mens rea. Campbell J. said this in the context of suggesting that the plaintiff “would be able to point to officially induced error” in his defence.

[169] This goes far beyond what is required to establish the existence of reasonable and probable grounds. The elements of the offence are established by the Criminal Code, as interpreted in Harricharan. Cote had reasonable grounds to believe those elements existed. There is no basis in law to demand that he go beyond that assessment and ask himself whether the plaintiffs would be able to avail themselves of the defence of officially induced error.

[170] As noted in Central Auto Parts v. Barclay, (supra at para. 84), a police officer is not required to establish that an accused has no defence.

[171] In any event, a defence of officially induced error would not have been available to the plaintiffs in this case. The elements of that defence are set out in R. v. Cranbrook Swine Inc., 2003 41182 (ON CA), [2003] O.J. No. 1433 (C.A.) at para. 52:

There are five elements or components in the defence – (1) the accused must have considered the legal consequences of its actions and sought legal advice, (2) the legal advice obtained must have been given by an appropriate official, (3) the legal advice was erroneous, (4) the persons receiving the advice relied on it, and (5) the reliance was reasonable…

[172] In this case, none of those elements are present. The plaintiffs sought no legal advice at any time from the City, nor did the City provide any such advice. In cross-examination, Hilary Payne admitted that he had had no communication from the City whatsoever – good, bad or indifferent – following the 1999 fire. It is worth noting that Hilary Payne did not testify at the preliminary inquiry, so Campbell J. did not have this evidence before him.

[173] Failure to prove that charges were laid in the absence of reasonable and probable grounds is fatal to a claim for negligent investigation: see Kellman v. Iverson, 2012 ONSC 3244 at para. 23; Fragomeni v. Greater Sudbury (City) Police Service, 2015 ONSC 3937, [2015] O.J. No. 3797 at para 101.

[174] Accordingly, the claim against Cote for negligent investigation is dismissed. It follows that the vicarious liability claims against the City and Windsor Police Services Board are also dismissed.

[175] The claim for negligent investigation was also levelled against the defendants Mak, Owens and Marr. As particularized in para. 21 of the Memorandum of Law filed on behalf of the plaintiffs, the theory is that they were acting as agents of the state, and can therefore be held liable for this tort. It was not argued that they owed a separate duty of care to the plaintiffs.

[176] I have already dismissed all claims against Mak and Owens due to the failure to prove malice and the operation of statutory immunity.

[177] As to Marr, he played no part in this investigation other than offering an opinion early on that this was a boarding, lodging and rooming house, and doing a preliminary audit of the building. While that audit revealed similar violations of the Fire Code as did the one later done by Mak, it was Mak’s report that was relied upon by Cote in laying charges. The mere fact of cooperation with the police is not sufficient to create an agency relationship: see. R. v. M. (M. R.), 1998 CarswellNS 346 (S.C.C.) at para. 28.

[178] In any event, even if there was an agency relationship, Marr did nothing that was negligent. The opinion he gave was honestly held, and was objectively reasonable. Indeed, I have found it was an entirely accurate description of the property. He did not mislead the investigation or withhold relevant evidence. Furthermore, dismissal of the claim against the principal would invariably lead to dismissal of the claim against the agent. The claim for negligent investigation against Marr, and vicariously against Windsor Fire and Rescue Services Department and the City, is dismissed.

[179] The same reasoning applies to Sonego. He was not acting as an agent of the police but merely provided information when asked to do so. The opinion he gave was honestly held, and was objectively reasonable. He did not mislead the investigation or withhold relevant evidence. He did nothing that was negligent. Even if he had been acting as an agent of the police, dismissal of the claim against the principal leads to dismissal of the claim against the agent. The claim for negligent investigation against Sonego, and vicariously against the City, is dismissed.

[180] The net result of all of the above is that the plaintiffs’ action is dismissed in its entirety. Given that, it is unnecessary to deal with the defendants’ claim that the plaintiffs were contributorily negligent in failing to take any steps to ensure that their property complied with applicable laws.

[181] The only remaining task it to make a provisional assessment of damages. I do not propose to give extensive reasons, nor do I propose to make a provisional assessment of the claim for aggravated damages. Such a claim is based upon high-handed and oppressive conduct. Having found no such conduct, I would be provisionally assessing such damages in a factual vacuum. Nor do I propose to make a provisional assessment of Charter damages, given the clear authority that they are only recoverable against the state.

[182] Instead, I will assess general damages globally for each plaintiff, on the hypothetical proposition that some of the defendants were liable for some or all of the torts alleged of malicious prosecution, abuse of process, and negligent investigation.

[183] Hilary Payne spent a large part of his career in public service, working his way up to City Engineer, then Commissioner of Public Works, then City Manager and finally Chief Administrative Officer for the City. He retired before the fire, and thereafter worked as a consultant, a real estate agent, and managed his own rental properties. In the written submissions on damages filed by the plaintiffs, he is described as a “pillar of the community”, and that is not an overstatement. In 2010, he successfully ran for office as a City Councillor, a position that he continues to occupy today, having been twice re-elected.

[184] The plaintiffs argue that his reputation in the community suffered significantly as a result of the criminal charges laid against him. They argue that damages should be assessed “at large” as in Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, and commend that case as establishing the appropriate range. He seeks $150,000 in non-pecuniary general damages.

[185] Hill was a defamation case, and this is not. The plaintiffs have not cited any binding authority for the proposition that reputational damages for malicious prosecution and related torts should be assessed “at large” as opposed to being assessed under normal compensatory principles. I do acknowledge that damage to the reputation of a person wrongfully accused is a foreseeable consequence of the laying of the charges, and compensation for that should form a component of general damages. Courts have routinely considered damage to the reputation of a wrongfully accused plaintiff as part of a global assessment of non-pecuniary general damages. However, Hilary Payne admitted that any impact on his reputation was relatively short-lived, and ended shortly after he was discharged at the preliminary inquiry, when he was effectively vindicated. His successful election and re-election as a City Councillor is strong evidence of that.

[186] Much of the reputational damage is alleged to flow from press coverage of the fire and the ensuing charges. There were a total of seven articles from the Windsor Star filed in support of Hilary Payne’s damages claim, but his name was mentioned in only four of them. Those four articles reported on evidence taken at the preliminary inquiry, and would not have been permitted to be published had Hilary Payne not waived his automatic right to a publication ban of evidence taken at the preliminary inquiry.

[187] Hilary Payne argues that he was attempting to mitigate his damages by waiving a publication ban, in the hope that publication of the evidence would serve to dispel the rumours and stigma among the general public arising from the laying of the charges. If that is true, it logically follows that he was of the view that publication of the evidence would not harm his reputation, but in fact would rehabilitate it. Accepting that, no reputational damages could flow from the fact of this publicity.

[188] In terms of emotional damage caused to him as a result of the charges, there is very little evidence of that. He is a very confident and resilient individual, who made a conscious effort not to let the charges bother him. He never saw the need for counselling or other clinical intervention. There is evidence that he spoke of the prospect of hanging himself on one occasion, but that appears to be an isolated incident, and obviously he did not act on any such impulse.

[189] It is significant that neither Hilary nor Gloria Payne were arrested or detained as a result of these charges. Instead, service of the summons was effected through their lawyer, which avoided the stress and emotional harm that might otherwise have arisen from an arrest and temporary loss of liberty.

[190] Gloria Payne is clearly more vulnerable than her husband, and was much more affected by the charges. She was vomiting and crying on an ongoing basis from the time she was initially advised that charges had been laid. On one occasion she took a handful of pills because she felt she didn’t want to wake up anymore. She was treated by Dr. Haber-Gibson for her emotional condition, having 20 sessions between February, 2007 and February 13, 2008, and 3 additional sessions between July 2009 and 2012, although the latter appears more related to the obtaining of a report for purposes of this litigation than it was to treatment. A diagnosis of Major Depressive Disorder, Mild Severity was supported by Dr. Prendergast, who did an independent assessment on behalf of the defendants.

[191] There were other significant stressors in her life, however. Her daughter Laura had suffered a life-threatening aneurism two years before the fire, and continues to this day to be on strong medication and unable to return to work on a full-time basis. She admitted that the experience with her daughter rivalled, and was probably worse, than her experience with the charges. She is also suffering emotionally from the fact that one of her sons became sick a few years ago with an undiagnosed illness, and has lost the use of his legs, has problems using his hands, and cannot work.

[192] She continues to be fragile, and the marital relationship between Hilary and Gloria Payne has been negatively impacted. However, to the extent that this and her other emotional and psychological problems have continued since the charges were dismissed at the preliminary inquiry, I am persuaded that it has been largely contributed to by the stressors just described, as well as the stress associated with pursuing this lawsuit, rather than as a result of being charged with a criminal offence.

[193] She seeks non-pecuniary damages of $250,000.

[194] Laura Munro is the daughter of Hilary and Gloria Payne. She claims damages under the Family Law Act on her own behalf and on behalf of her two children, Shane and Tara, who were 5 and 10 years of age at the time of the fire.

[195] Laura suffered a brain aneurysm in 2004, which made her very reliant on her parents, given that she was a divorced single mother coping with the care of two young children. She testified that the changes in her mother’s behaviour as a result of the charges impacted both her and the children, in that her mother was inconsolable and angry virtually all of the time. She swore in front of the children as the preliminary inquiry approached, something she had never done before. Laura noticed her mother physically shaking at the preliminary inquiry, and that condition has now become permanent.

[196] Aside from observing, and being concerned about, the impact of the charges on her mother, there is very little evidence that Laura suffered any loss of the guidance, care and companionship that she might reasonably have expected to receive from her mother had the charges never been laid. In written argument, it was suggested that Laura’s visits with her mother “decreased markedly”, but in her testimony Laura said that she and the children visited with her parents once each week and once on the weekend after the charges were laid. The evidence is not clear how often they visited before the charges.

[197] As to the claims of the two grandchildren Tara and Shane, there was very little to no evidence about any impact on them. Tara is now 21 years of age and Shane is 16. Neither testified at trial, and we therefore have no direct evidence from them as to any loss of guidance, care and companionship. Both children are old enough to testify at trial, and I draw an adverse inference from the fact that they did not do so.

[198] Laura claims general damages of $35,000 and $5,000 each for her two children. She testified that she suffered no out of pocket expenses or other pecuniary losses in connection with these events.

[199] I now move to an analysis of these claims.

[200] In provisionally assessing general damages for Hilary and Gloria Payne, Mr. Glick relies on a number of cases which establish a range of damages for torts relating to improperly laid charges, including malicious prosecution, negligent investigation, false arrest and others. That range is from $5,000 to $35,000.

[201] In Russell v. York (Regional Municipality) Police Services Board, [2011] O.J. No. 3541 (S.C.J.), D. M. Brown J. (as he then was), said the following, at para. 193:

Non-pecuniary damages for torts such as false arrest, false imprisonment and malicious prosecution are intended to compensate for the deprivation of liberty, public humiliation, loss of reputation and mental anguish. They reflect the nature of the events, the character of the person wronged, and the community where the events occurred. In the 2004 decision of Hanisch v. Canada the British Columbia Court of Appeal regarded an award of general damages for such torts in the amount of $25,000 at the upper end of the scale of appropriate damages. In its 2005 decision in Trudgian v. Bosche the Saskatchewan Court of Appeal regarded the normal range of "substantial" damages for these torts as in the area of $30,000. From my review of the cases submitted by counsel, including the very helpful Table of Cases at Tab 2 of the Defendants' Memorandum & Brief of Facts & Law, I conclude that the upper range for general damages for those torts, absent extraordinary circumstances, falls in the range of $25,000 to $30,000. Although plaintiff's counsel referred me to the decision of our Court of Appeal in Oneil v. Marks in which that court upheld a jury's award of damages for malicious prosecution of $75,000, a close reading of that case reveals that the award for general damages was only $12,500, and that in a case where the plaintiff was put through a criminal trial.

[202] The plaintiffs rely on Hill v. Church of Scientology (supra) and Young v. Bella, 2006 SCC 3, [2006] 1 S.C.R. 108 in support of the proposition that reputational damages merit a substantial award. Neither of those cases involved the torts under consideration here, and both were jury awards, where the reasoning behind the award of general damages is not apparent. Indeed, in Young, at para. 66, the court stated that damages were higher than they would have awarded in the circumstances. However, in both cases the high threshold for appellate intervention was not met. I do not find these cases to be of much assistance in assessing damages in this case.

[203] Furthermore, as I have already observed, the damage to Hilary Payne’s reputation, if any, was short-lived and ended with his discharge following the preliminary inquiry. Gloria Payne suffered little, if any, damage to her reputation, and the duration of that was even shorter than that of her husband, given that the charges against her were withdrawn after about 6 months, and she did not have to endure the preliminary inquiry.

[204] I provisionally assess Hilary Payne’s general damages at $30,000. While that is at the top end of the range of damages outlined in Russell, it is justifiable given his standing in the community, and given that he was forced to go through a preliminary inquiry before being vindicated.

[205] As to Gloria Payne, I provisionally assess her damages at $45,000. The emotional impact of these charges on her has been severe, and has continued long after the charges against her were dropped, although there are other contributing stressors as noted above.

[206] I provisionally assess the general damages of Laura Munro at $10,000. General damages for her two children are provisionally assessed at nil.

[207] The plaintiffs also claim pecuniary damages of $73,308.89 relating to the costs associated with defending the criminal charges.

[208] The defendants do not oppose the claims amounting to $65,361.07, as representing the proven costs of defending against the criminal charges. However, exception is taken to the two invoices that make up the difference between these two figures.

[209] The first is the invoice from Paroian Law for $3,323.10 dated July 24, 2006. The objection is that it is not clear what work that law firm did in connection with the plaintiffs’ defence, given that Mr. Paroian did not do criminal work. However, it is clear that he was consulted concerning the charges at the outset, and reviewed the applicable section of the Criminal Code. He had ongoing discussions and meetings with Dan Scott, who was retained to conduct the defence of the criminal charges. I am satisfied that most of the charges did relate to consultations in connection with the criminal charges. There were, however, entries on March 6, 2006 that clearly relate to the plaintiffs’ insurance claim, which has nothing to do with this case. Those docketed amounts total $337.50. With GST at the then-applicable rate of 6%, this results in a deduction of $357.75.

[210] The other disputed invoice is from Dr. Becker, for $4,376.96 dated March 3, 2006. The argument from the defence is that it relates to work done in connection with reconstruction of the house after the fire, as opposed to work done in connection with the defence of the criminal charges. Hilary Payne said in evidence that he retained Dr. Becker to do the engineering work that was necessary for completing repairs after the fire. Two of Dr. Becker’s subsequent invoices, dated April 30, 2006 and June 30, 2006, were withdrawn during Hilary Payne’s cross-examination, because they clearly related to reconstruction.

[211] The work detailed in the March 3, 2006 invoice, including “preparation of preliminary layout drawings for the basement, main floor, main floor ceiling, second floor and roof” appear to directly relate to reconstruction. While Dr. Becker’s role later changed to one of an expert witness in the plaintiffs’ defence, I find that his role in the early months of his retainer was confined to engineering work relating to the necessary repairs. This invoice will be discounted in its entirety.

[212] Accordingly, the plaintiffs’ special damages are provisionally assessed at $68,574.18.

[213] With respect to costs, the parties are encouraged to resolve this issue among themselves. If they are unable to do so, I will accept written submissions from the defendants within 20 days, with the plaintiffs’ responding submissions to follow within 15 days thereafter, and any reply to follow within 10 days thereafter. Failing that, the parties will be deemed to have resolved the issue of costs among themselves.

“T. A. Heeney R.S.J.”

T. Heeney R.S.J.

Released: January 16, 2017

CITATION: Payne v. Mak, 2017 ONSC 243

COURT FILE NO.: CV-09-13295 CM

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GLORIA PAYNE, HILARY PAYNE and LAURA MUNRO personally and as Litigation Guardian for TARA MUNRO and SHANE MUNRO, minors

Plaintiffs

– and –

CHRISTINE MAK, MIKE OWENS, EERIK RANDSALU, THE OFFICE OF THE FIRE MARSHAL, RICHARD COTE, WINDSOR POLICE SERVICES BOARD, RICHARD MARR, WINDSOR FIRE AND RESCUE SERVICES DEPARTMENT, MARIO SONEGO, THE CORPORATION OF THE CITY OF WINDSOR

Defendants

REASONS FOR JUDGMENT

T.A. Heeney R.S.J.

Released: January 16, 2017.