Court File and Parties

COURT FILE NO.: DC-15-498 DATE: 20170428 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MIHA HALIK and ESTATE of his mother TEREZIJA DRAZIC, Appellants AND: CHIEF OF THE TORONTO POLICE WILLIAM BLAIR, TORONTO POLICE SERVICES BOARD, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Respondents

BEFORE: MARROCCO A.C.J.S.C.

COUNSEL: Miha Halik, acting in person Jeremy Glick, for Her Majesty the Queen Matthew Cornett, for the Chief of Police, Toronto Police Services Board

HEARD: MARCH 23, 2017

Endorsement

[1] Mr. Halik and his mother went to a Justice of the Peace and swore private informations complaining that they had been victims of violent crimes carried out by the janitor in their condominium building. Charges were laid and the Crown assumed carriage of the prosecution. The janitor was acquitted.

[2] The appellants then sued Her Majesty the Queen in relation to the alleged conduct of a Crown Attorney and the Director of Crown Operations, as well as the police. Mr. Halik’s mother, Terezija Drazic, has since passed away and her estate has continued the litigation. The appellants claimed that the police were negligent in their investigation and that the Crown failed to properly prosecute the case. The appellants also claimed that the police terrorized, intimidated and assaulted them and subjected their home to unauthorized searches.

[3] The appellants’ action was dismissed for delay by the Registrar on October 1, 2013. The appellants unsuccessfully moved before a Master to set aside the dismissal.

[4] The issue on this appeal is whether the Master made a palpable and overriding error in denying the appellants’ motion to set aside the Registrar’s dismissal. This court cannot substitute its view of the matter for the Master’s simply because the court takes a different view than the Master did. The Master’s decision was discretionary and is entitled to deference, absent a palpable and overriding error: see Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, at paras. 28-31; Bains v. Morrow, 2011 ONSC 4647, at paras. 12-15.

[5] The Master correctly identified that the appellants had the onus to satisfy the court that the action should be permitted to continue.

[6] The Master also correctly identified the test to be applied: see Habib v. Mucaj, 2012 ONCA 880, at paras. 4-6; Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. Div. Ct.). The Master considered the four well-established factors referred to in those decisions and commented on each of them. The Master’s appreciation of the evidence is not subject to review on an appeal, absent a palpable and overriding error.

[7] Quite simply, the appellants have failed to identify any palpable or overriding error in the Master’s decision.

[8] Among other issues, the appellants maintain that there was an error in the Master’s calculation of the delay because the Master was required to calculate the length of the delay from the time a statement of defence was filed. The appellants maintain that no statement of defence was filed and that “therefore the determinant conclusion was self-evident.”

[9] For a Status Notice issued under the former Rule 48.14(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a Notice of Intent to Defend is considered a defence. There is a note following para. 2 of the then Status Notice form, which provides that a Notice of Intent to Defend is considered a defence for the purposes of calculating the two-year timeline to determine whether the action will be dismissed for delay.

[10] The appellants attempt to rely on the fact that they had been asked by the respondents for an extension of time in 2010 to file the Defence, to which the appellants had agreed. The appellants therefore submit that the delay from the point of that request forward was the responsibility of the respondents. The Master commented that the appellants did not request a status hearing at which they could have advanced this reason to show why the action should not be dismissed. In addition, it is well established that the onus is on the plaintiffs (i.e., the appellants) to move litigation forward.

[11] The Master indicated that the appellants claimed that they delayed noting the respondents in default because they were frightened and intimidated due to the alleged past actions of the Toronto Police Service. The Master did not find this to be an adequate explanation for the delay because the appellants ultimately did note the respondents in default after the appellants received the Status Notice.

[12] The Master was entitled to consider this evidence and conclude that the appellants had not adequately explained their delay in proceeding with the action.

[13] The Master then determined that the appellants were not prompt in moving to set aside the Registrar’s order. The Master was entitled to come to this conclusion. The dismissal order was issued on October 1, 2013 and, despite having received the order on or about that date, the appellants did not file their motion to set aside the dismissal order until October 30, 2014.

[14] Finally, the Master considered whether there would be prejudice to the respondents if the action proceeded. The Master applied the appropriate governing principles commencing at para. 33 of her decision, after having noted that the burden of proving an absence of prejudice was on the appellants. The Master continued that the respondents are not required to prove actual prejudice where the appellants have not rebutted the presumption of prejudice.

[15] The Master determined that the appellants did not present any evidence to rebut the presumption of prejudice. The Master went onto find that there would be actual prejudice to the Toronto Police Services Board and William Blair, in particular, if the action proceeded given that the incidents leading to this matter occurred six to ten years before the time of her judgment in 2015. This conclusion was open to the Master.

[16] In short, the Master’s conclusion that the appellants failed to satisfy their onus was open to her on the evidence. Further, it has not been demonstrated that the Master made a palpable and overriding error in coming to this conclusion.

[17] The merits of the action can be considered on a motion to set aside a Registrant’s administrative dismissal. The only private law exception to prosecutorial immunity is an action for malicious prosecution. There is a public law exception in respect of an action for Charter damages based on a wrongful failure to disclose. These exceptions are not relied upon here. Accordingly, the Master’s conclusion that appellants’ action is unlikely to succeed is legally correct and supported the Master’s decision to dismiss the appellants’ motion.

[18] This appeal is dismissed with costs. The appellants have not demonstrated that the Master’s discretionary decision refusing to set aside the Registrar’s administrative dismissal contains a palpable and overriding error.

[19] Submissions concerning costs will be filed by both parties within five days of the release of these reasons. Cost submissions are not to exceed five pages.

MARROCCO A.C.J.S.C. Date: 20170428