Court File and Parties

COURT FILE NO.: 39/16 DATE: 20170707

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Everton Brown Plaintiff – and – The Woodstock Police Service Board, Det Sergeant Heidi Becks, Badge # 9826, Officer R. Wright, Badge # 408, Officer J. Sylvester, Badge # 707; & Officer T. Westlake, Defendants

Counsel: Osborne G. Barnwell, for the plaintiff Brian McCall, for the defendants

HEARD: April 20, 2017

Raikes J.

Endorsement

[1] On February 15, 2013, Mr. Brown was sitting in a car outside an apartment building in Woodstock when he was grabbed by police. There was a struggle during which he was allegedly beaten and tasered four times. He sustained serious injuries in the altercation.

[2] Mr. Brown was then arrested by police and held in custody. He was not taken to the hospital for treatment until the following day. He was criminally charged with four counts including possession of crack cocaine and assault.

[3] The trial on the charges commenced in October 2015 with various Charter applications. After five days of evidence, Crown counsel approached defence counsel with an offer to resolve the criminal proceedings: Mr. Brown would enter into a s. 810 peace bond and, in return, the charges then pending would be withdrawn. He accepted the offer and entered into the peace bond.

[4] This action was commenced May 13, 2016, more than two years after his arrest, confinement and the alleged beating by police. Mr. Brown sues the Woodstock Police Services Board (“WPSB”) and officers for damages for the torts of battery, illegal search, wrongful arrest and detention, various related Charter breaches, and malicious prosecution.

[5] The defendants move pursuant to r. 21, and r. 20, if necessary, to dismiss the action. They assert that all claims except malicious prosecution are barred by the expiry of the limitation period. The defendants further assert that because he entered into a peace bond, Mr. Brown cannot satisfy one of the essential elements of the tort of malicious prosecution: that the criminal proceeding was terminated favourable to him.

[6] I will deal with the limitations issues first, then with the peace bond in relation to the malicious prosecution claim. Although the motions are brought under both r. 20 and 21, in my view the issues raised are best addressed under r. 20.

Summary Judgment

[7] Summary judgment motions are governed by r. 20.04 which states:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;…

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence
2. Evaluating the credibility of a deponent
3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[8] The leading case on summary judgment is Hryniak v. Mauldin, 2014 SCC 7. At para. 66, Karakatsanis J. for the court wrote:

On the motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[9] Thus, the judge hearing the summary judgment motion must ask:

1. On the basis of the evidentiary record alone, are there genuine issues that require a trial?
2. Does the evidentiary record provide the evidence needed to “fairly and justly adjudicate the dispute”?

[10] In Hryniak, the test for summary judgment was stated at para. 49 as follows:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[11] The onus of establishing that there is no genuine issue requiring a trial rests on the moving party. Where the moving party establishes that there is no genuine issue requiring a trial, the onus shifts to the responding party to establish that there is a genuine issue requiring a trial: Sweda Farms Ltd. v. L.H. Gray & Son Ltd., 2014 CarswellOnt 11926 (ONCA) at para. 26; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC CarswellOnt 913 at para. 12.

[12] A responding party must set out in affidavit material or other evidence the specific facts that establish that there is a genuine issue requiring a trial. The responding party cannot rest on mere denials of allegations of a party’s pleading: Sweda, para. 27 (See also John Deere Financial Inc. v. 1232291 Ontario Inc. (c.o.b. Northern Haul Contracting), [2015] O.J. No. 6503 (S.C.J.) at para. 14; O’Laughlin v. Byers, [2014] O.J. No. 4221 (S.C.J.) at para. 40, upheld [2015] O.J. No. 1559 (CA)). It is not enough to allude to evidence that may be adduced in the future.

[13] The judge hearing the motion must:

1. Determine the motion on the pleadings and evidence actually before the court on the motion. The judge is entitled to assume that the record contains all the evidence that would be adduced at trial; and
2. Take a hard look at the evidence and the merits of the action at this preliminary stage: Sweda, paras. 26-28.

Limitations Defence

[14] There is no dispute that the applicable limitation period is two years pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The limitation period starts to run from the day on which the claim was discovered.

[15] The applicable principles to fix the date of discovery of the claim are set out in s. 5 of the Limitations Act, 2002. Section 5 states:

5. (1) A claim is discovered on the earlier of,

(a) The day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) The day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[16] Mr. Brown deposed in his affidavit in response to the motion as follows:

6. As I stated in my Statement of Claim, at paragraphs 10-26, I was brutalized by the Police Officers. Specifically, I was tasered at least four (4) times, struck repetitively in my face and head. I sustained injuries to my throat. I was dragged out of my car in the snow and thrown in a snow bank. I suffered continuous beatings by the Officers. I was in significant pain as I had a prior back and leg injury. I begged to be taken to the hospital and I was initially refused. Up to this day I continue to suffer from the manner in which I was treated.

WHY DID I BRING THIS CLAIM AFTER THE CRIMINAL MATTER WAS COMPLETED?

17. The beatings and injuries I suffered came about because of the Police misconduct. The Police convinced the Crown to prosecute me for the criminal charges which they say properly formed the basis for their misbehaviour. In order to defend myself, I had to hire a lawyer through legal aid.

18. Mentally and financially, I was not in any shape to be civilly suing the police. It was my understanding as gathered through my criminal Lawyer that I needed to wait until such time that the case was completed in order to sue the Police. To me, this made sense.

19. It was clear to me that given that the Police assaulted me, and at that time, I had no idea why they did what they did to me, it made sense that I should wait until I hear their evidence under oath. To me, it was not appropriate to seek a remedy against the police before they shared why they behaved the way they did. In other words, I believed that it would make sense to see whether they had any justification for their behaviour before I wasted money and time.

20. I also wish to advise the Court that I am semi-illiterate and so I depend on others to explain these kinds of things to me. I have only about a grade three education and to be honest, I am unable to read well. However, if the matter is read to me and explained in simple terms, I would understand. In this case, the criminal Lawyer I had was seen by me as having the knowledge and I rely upon him to guide me. I would not have been able to get this going without someone’s guidance. [Emphasis in original]

[17] Mr. Brown was cross-examined on his affidavit and, specifically, the above quoted paras. In cross-examination, Mr. Brown testified that:

a. On the day he was arrested, he knew that he had been arrested by Woodstock police officers; b. On that same day, he knew that he had been beaten, tasered and injured; c. He was taken to the Woodstock Police station and held overnight; d. He was charged with four offences by Woodstock police; e. On the date of arrest, he believed he was innocent; f. He knew on the day of his arrest that he had the right to sue police for what they did to him; g. He intended from the start to sue police for what they did to him; and h. He wanted to finish the criminal proceedings before starting this civil action.

[18] The case law consistently holds that a claim for damages for false arrest, false imprisonment and breach of Charter rights arising therefrom “crystallizes on the date of arrest”: see E.B.F (Litigation Guardian of) v. Ontario, 2013 ONSC 2581, [2013] O.J. No. 5330 citing Nicely v. Waterloo Regional Police, [1991] O.J. no. 460 (Div. Ct.) at para. 14 and Ferri v. Ontario, 2007 ONCA 79, [2007] O.J. No. 397 (C.A.) at para. 102; Kolosov v. Lowe’s Companies Inc., [2016] O.J. No. 1901 at para. 118.

[19] Similarly, the limitation period for an assault or battery starts to run on the date the assault or battery occurs: Boyce v. Toronto (City) Police Services Board, 2011 ONSC 53, [2011] O.J. No. 7 at paras. 4-6, 8, 9 and 23.

[20] There is no evidence that Mr. Brown suffered from a disability or incapacity on or after February 15, 2013 that would toll the operation of the limitation period. His statement that he was in no condition mentally to pursue a civil action against police is a bald assertion. No details are provided. No medical or other expert evidence is put forward.

[21] His evidence confirms that he knew of the acts complained of when they occurred. He believed those acts by police were wrongful. He knew he could seek redress for those wrongs and intended to do so from the outset. The decision to await the outcome of the criminal proceeding was based on advice from his legal counsel.

[22] Mr. Brown argues that:

a. Section 5(1)(a)(iv) imports an individual assessment of when Mr. Brown knew that a civil proceeding would be an appropriate means to remedy what happened; b. There may be special circumstances which militate against a finding that the individual claimant appreciates the appropriateness of suing (see for example Brown v. Baum, 2016 ONCA 325, [2016] O.J. No. 2317 (ON CA)); c. It is unrealistic to expect an individual facing serious criminal charges to take on the effort and cost of a civil action with the prospect that, in doing so, it will antagonize the police and Crown counsel: Chimienta v. Windsor (City) (2011), 2011 ONCA 16, 105 O.R. (3d) 72 (ONCA) at para. 15; and d. In these circumstances, it was reasonable for Mr. Brown to heed the advice of his lawyer and wait to see the evidence of the officers to determine whether he had a claim at all.

[23] In Brown v. Baum, the plaintiff had surgery following which complications occurred. The same surgeon decided that restorative surgery should be done to remove necrotic tissue and reconstruct her breasts. She issued the statement of claim just before the two year mark following the last surgery. The doctor moved to dismiss the action as statute barred because the plaintiff clearly knew there was a problem with the first surgery which was unsuccessful and knew of the complications that resulted.

[24] The motion judge dismissed the motion for summary judgment because the criterion in s. 5(1)(a)(iv) was not met: the plaintiff did not know that a proceeding was an appropriate means to remedy when she awaited the surgeries to repair. The Court of Appeal upheld that finding. Feldman J.A. for the court found that:

1. Because the doctor was continuing to treat his patient to fix the problems that arose from the initial surgery (to eliminate her damage), it would not be appropriate to sue the doctor because he might have been able to correct the complications and improve the outcome (para. 18); and
2. The judge was entitled to conclude on the facts that the plaintiff did not know that bringing an action against her doctor would be an appropriate means to remedy the injuries and damages sustained (para. 19).

[25] Clearly, the facts in Brown v. Baum are completely different than those before me in this case. More to the point, however, I observe that in the Brown v. Baum case, there was a continuing doctor-patient relationship in which the doctor continued to treat the patient for the same or related condition. That ongoing treatment by the doctor had the potential to remedy most, if not all, of the damage sustained.

[26] In this case, the outcome of the prosecution of the action could not possibly remedy the personal injuries and harm suffered by Mr. Brown. Even if convicted, the extent of the force used and resulting injuries may have given rise to civil liability. Moreover, in a criminal prosecution, charges may be dismissed because the higher standard of proof is not met. A successful outcome to the criminal proceeding is not a guarantee of success in the civil action and, in any event, will not remedy the injury, loss or damage sustained when he was arrested and detained.

[27] The plaintiff relies on the decision of the Ontario Court of Appeal in Chimienta, where the plaintiff sued police for negligent and malicious investigation. A motion for summary judgment was brought by police on the basis that the claim was brought outside the six-month limitation period in s. 7(1) of the Public Authorities Protection Act (“PAPA”). The action was brought six months and one day after the charges were dropped. The motion judge held the claim was statute barred.

[28] On appeal, the Court of Appeal upheld the result but disagreed with the motion judge who found that the limitation period began to run on the day the plaintiff was arrested. The Court of Appeal relied on the decision of the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at paras. 96-98 where the court held that “the loss or injury for negligent investigation is not established until it is clear that the suspect has been imprisoned as a result of a wrongful conviction…”

[29] It is against that backdrop that Justice MacPherson wrote at para. 15:

I also have some sympathy for the appellants’ policy arguments. In my view, it is unrealistic to ask a person already preoccupied with defending a criminal charge to take on the additional effort and cost of mounting a civil action, particularly given the likely unfounded but understandable concern, that in doing so, he might antagonize the police and Crown counsel. Furthermore, there is something of a logical inconsistency in asking a civil court to rule on the propriety of a criminal prosecution before the criminal court has had the opportunity to assess the merits of the underlying charge.

[30] I note first that Chimienta was a negligent investigation claim, which is not among the causes of action being asserted here. That is significant because the timing of the injury or harm suffered in the claims before me do not depend on a conviction for their accrual.

[31] Further, the claim in Chimienta was one that arose from an arrest in 2000. The action was commenced in 2003. The current Limitations Act did not apply; hence the reference to the PAPA. The current legislation provides a two year window to sue, considerably more than the six months under the former regime.

[32] The current Act does not defer or toll the running of limitation periods for those facing criminal charges which are connected to or underlie the civil cause of action. The concerns expressed by MacPherson J.A. can be addressed by commencing the action in a timely fashion and moving to stay the action pending the outcome of the criminal proceeding.

[33] In this case, Mr. Brown knew and intended to pursue a civil claim from the outset. He appreciated that a civil action was an appropriate means to remedy what happened to him. The decision to await the outcome of the criminal proceedings or to hear the testimony of the officers was based on advice of counsel. If so, it was advice that ignored the effect of the operation of the limitation period. Nevertheless, the start of the running of the limitation period does not depend on Mr. Brown’s knowledge and understanding of the legislation: Boyce, paras. 35 and 37.

[34] In E.B.F., the plaintiff deferred commencement of his claim until after he consulted counsel who had engaged a private investigator who provided a report. The court held that: “The results of that investigation may have informed the strength of J.M.’s claim but knowledge that a claim existed as a means to remedy an arrest for which he believed he was innocent, was reasonably known to him … on the date of arrest.” That reasoning applies with equal force here.

[35] The decision to wait to issue the claim in these circumstances is akin to waiting to see the other player’s hand before deciding whether to play. I find that Mr. Brown had sufficient facts within his knowledge on the day he was arrested to know whether bringing a claim would be an appropriate means to remedy the injury he sustained; in fact, his evidence in his affidavit and in cross-examination confirms same. The claims for breach of the common law torts and Charter claims are barred by s. 5 (1) (a) of the Limitations Act, 2002 and are therefore dismissed.

Malicious Prosecution Claim

[36] The remaining cause of action is for malicious prosecution. It is undisputed that that claim is not barred by any limitation period.

[37] The constituent elements of the tort of malicious prosecution are set out in Nelles v. Ontario, [1982] 2 S.C.R. 170 at pp. 192-193:

There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:

a) The proceedings must have been initiated by the defendant;

b) The proceedings must have terminated in favour of the plaintiff;

c) The absence of reasonable and probable cause;

d) Malice, or a primary purpose other than that of carrying the law into effect.

[38] The defendant asserts that the plaintiff’s claim must be dismissed as the plaintiff cannot satisfy the requirement that the criminal proceeding terminated in favour of the plaintiff because the plaintiff’s criminal charges were only withdrawn after he entered into a peace bond on the recommendation of and with the advice of his defence counsel.

[39] Mr. Brown deposed in his responding affidavit that throughout the course of the criminal proceedings, Crown counsel wished him to plead guilty to at least one of the pending charges. Mr. Brown got angry at his counsel and advised his counsel that he would not plead guilty as he was not guilty. He wished to go to trial (para. 9).

[40] Mr. Brown further deposed that:

1. Just before the day he signed the peace bond, he was approached by his defence lawyer who advised that the Crown wished to withdraw the charges and to charge him with a noise complaint to which he would plead guilty. He instructed his counsel that he would not plead guilty to a criminal charge of any kind because he wished to sue police (para. 10);
2. On October 22, 2015, his defence lawyer approached him with what counsel said was a better deal: the Crown would dismiss the pending charges and Mr. Brown would have to sign papers (para. 11);
3. He went before the Court and was told by the presiding judge that the charges were being dropped and that he “would have to sign a peace bond” (para. 12);
4. After he left the courtroom, he asked his lawyer about the peace bond. His lawyer told him the peace bond “would not stop me from suing and in fact he had a lawyer to assist” him with the claim. He was referred to a lawyer at the Lerner firm in London (para. 12);
5. He signed the peace bond in another room. He was told it meant that he could not be in Woodstock. No one read the peace bond to him (para. 13);
6. The ability to sue police was always very important to him, a fact he reiterated to his defence counsel (para. 14);
7. The peace bond had “nothing to do with the criminal matters. It was not as if I was concerned about being found guilty” (para. 14);
8. He understood the Charter motion was going well. The police officers were lying and gave inconsistent evidence which is why the Crown approached his lawyer to suggest a peace bond; and
9. Because of the advice he received that the peace bond would not prevent him from suing for his injuries, he agreed to the peace bond (para. 16).

[41] As part of the evidence before me, I have a certified transcript of the proceeding before the trial judge on October 22, 2015. Such evidence is admissible on a motion for summary judgment where a peace bond has been imposed. As stated by Justice G. Mew in Sheridan v. Ontario, 2014 ONSC 4970, [2014] O.J. No. 4023 at para. 18:

The court’s reasons and disposition are a matter of material fact that bears upon the question of whether the proceedings were terminated in the plaintiff’s favour. They are not extraneous, but form an integral part of the plaintiff’s claim.

[42] No objection was taken to the admissibility of the transcript and both counsel referred to same during their submissions. I agree that this evidence is necessary to provide a proper context for what happened when the parties were before the court. Of course, care must be taken not to place too much emphasis on the transcript where material facts occurred when court was not in session.

[43] In cross-examination on his affidavit, Mr. Brown testified that:

1. He was represented by criminal counsel during his criminal proceeding;
2. He also had people with him to explain what was happening;
3. His daughter was with him in court on October 22, 2015 and took notes of his discussions with defence counsel;
4. He was told by his defence lawyer that if he agreed to the peace bond, he could sue the police;
5. His lawyer never mentioned to him that it was a peace bond;
6. The peace bond was not explained to him in court; and
7. He was told it was a peace bond when he signed it.

[44] The transcript of the proceeding in court before Justice M.E. Graham on October 22, 2015 clearly indicates that:

1. Defence counsel was asked by Justice Graham whether he agreed that there was “a sufficient basis to cause this gentleman to enter into the recognizance for the period of 12 months”;
2. Defence counsel responded: “Yes there is. I’ve explained the same to my client, and he is of the same view”;
3. Justice Graham explained to Mr. Brown that breach of the recognizance may require him to pay the amount stipulated in the bond. He explained the terms of the peace bond directly to Mr. Brown and asked whether he understood;
4. Although Mr. Brown initially indicated that he did not understand, he then spoke with defence counsel and indicated that he did understand when asked again by the judge if he understood the terms;
5. Mr. Brown agreed to obey those terms; and
6. He was told by the judge that the recognizance in the peace bond was a court order and, if he breached the order, that would be a criminal offence.

[45] Mr. Brown did not object to the peace bond or its terms. He has never appealed that order.

[46] I find that this is an appropriate case to weigh the evidence in a limited fashion. To the extent Mr. Brown’s evidence in his affidavit and cross-examination is contradicted by the transcript of the proceeding before Justice Graham, I prefer the evidence of the court proceeding.

[47] On the evidence, Mr. Brown knowingly and willingly agreed to enter into a peace bond pursuant to s. 810 of the Criminal Code, R.S.C. 1985, c. C-46. The court ensured that he understood both its terms and what would happen if he violated those terms. He was represented by counsel who not only advised the court that he had explained the effect of the peace bond but agreed it was warranted by the evidence.

[48] Neither Mr. Brown nor his counsel addressed with the court in any way Mr. Brown’s desire to be able to sue police upon resolution of the criminal charges. Certainly, it was open to defence counsel at the time to seek an agreement with the Crown and police that the peace bond would not affect his right to sue for malicious prosecution. There is no evidence that this was a subject of discussion.

[49] Further, I observe that the only evidence filed by the plaintiff on this motion is his affidavit. His defence counsel did not swear an affidavit and was not asked to do so. His daughter, who was present and took notes during his discussions with defence counsel, likewise did not file an affidavit. I am left with only Mr. Brown’s affidavit as to his communications with his counsel.

[50] The defendants rely upon several cases which hold that where charges are withdrawn against an individual after he or she enters into a peace bond, such an outcome does not result in the prosecution having been terminated in favour of the plaintiff as required for the tort of malicious prosecution: Sheridan, para. 39; Lauber v. Atkinson, [2011] O.J. No. 3503 (S.C.J.) at paras. 4, 7 and 9; E.B.F., paras. 26, 28 and 33; and Romanic v. Johnson, 2012 ONSC 3449, [2012] O.J. No. 2642 (S.C.J.) at paras. 23-26.

[51] In addition, the defendants rely on Sheridan and E.B.F., which cite and rely on the Court of Appeal’s decision in Beardsley v. Ontario, [2001] O.J. No. 4574 at para. 75, for the proposition that entering into the peace bond precludes Mr. Brown from successfully claiming for breach of Charter rights.

[52] Plaintiff’s counsel points to the decision of the majority in Ferri v. Ontario (Attorney General), 2007 ONCA 79, [2007] O.J. No. 397 (CA) in which LaForme J. indicated that merely entering into a peace bond does not end the court’s analysis of an action for malicious prosecution. At paras. 53-56, he wrote:

53. …I believe there should be a further analysis into the underlying reasons on the part of the Crown and police for entering into such an arrangement, agreement or compromise.

54. First, the underlying policy of the tort of malicious prosecution is to allow recovery in situations where the Crown or police acted outside the scope of the duties of their office. Thus, the Crown or police could avoid scrutiny by simply entering into an agreement, arrangement or compromise with an accused person, no matter how trivial, before withdrawing the charges against that person. This would have the effect of completely undermining the purpose of the tort.

55. Second, it will almost always be the case that the Crown and police will be proceeding from a position of strength. The accused person, who believes he or she was the subject of a malicious prosecution, would effectively be giving up his or her right to sue even in the clearest of cases in exchange for his or her freedom, to avoid the stigma of a criminal conviction, or perhaps, to avoid the costs of a trial.

56. If the police or Crown, for example, are found to have entered into a settlement for the purpose of avoiding a civil action for malicious prosecution, the settlement, or underlying purpose thereof, might well amount to evidence relevant to the issues of reasonable and probable cause and malice. Thus, there is, as I said earlier, a need for the court to engage in further examination of arrangements, agreements or compromises and their relevance to the second element of the Nelles framework.

[53] There is no evidence from which I may conclude that there is a genuine issue that the Crown or police motive to enter into the peace bond agreement was to avoid scrutiny or civil liability for conduct outside the scope of their authority. First, the peace bond came about after four to five days of evidence on the Charter motions – their conduct was already fully on display in open court. Second, Mr. Brown’s defence counsel acknowledged that the basis for a peace bond was made out and that his client agreed with it. Third, although the plaintiff alleges police misconduct, inconsistencies in their evidence at the trial and that the peace bond was “thrust upon him by the Crown Attorney in the face of his inability to prove the case against the plaintiff” (see statement of claim paras. 27-43), the claim does not allege nor is there any evidence that the peace bond was proffered for the purpose cautioned against by LaForme J. in Ferri.

[54] It may well be that the Crown was motivated to offer to resolve on the basis of the peace bond because, as Mr. Brown alleges, the Crown recognized that it could not successfully prosecute him. That is, however, not the same thing as entering into a peace bond to avoid scrutiny or civil liability. That allegation is not made in the statement of claim nor is evidence adduced to put that matter in issue.

[55] It is not for me to speculate as to what evidence might exist or come out later in the action if it proceeds. Rather, at this stage I must take a hard look at the evidence to determine whether there is a genuine issue that requires a trial. I find that there is no genuine issue requiring a trial of the claim for malicious prosecution. That the plaintiff acted on the advice provided by his lawyer does not, in my view, vitiate the effect of the peace bond entered into. If Mr. Brown has accurately set out the substance of his discussions with his counsel and the advice he received, and assuming he would not have accepted the peace bond had he been properly advised on this legal issue, his claim lies against his counsel in negligence. He does not get a pass in this litigation from the implications of his actions in entering into the peace bond.

[56] I find that the plaintiff cannot satisfy the second requirement of a successful claim for malicious prosecution. Accordingly, the malicious prosecution claim is dismissed.

Conclusion

[57] Given my findings above, the motion for summary judgment is granted. The plaintiff’s action is dismissed.

[58] If the parties cannot agree on costs, they may make submissions in writing not to exceed 3 pages within 15 days.

“Justice R. Raikes” Justice R. Raikes Released: July 7, 2017