Igbinedion Odion Prince v. Attorney General of Ontario

COURT FILE NO.: CV-14-516677 DATE: 2018-02-09 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: Igbinedion Odion Prince, Plaintiff/Responding Party

• and - Attorney General of Ontario, Defendant

BEFORE: J. Copeland, J. HEARD: January 23, 2018

COUNSEL: Ernest J. Guiste, appearing for the plaintiff Jim Smith, for the Defendant, Attorney General of Ontario

ENDORSEMENT

Overview

[1] The defendant brings a motion under rule 21 and 25 to strike the plaintiff’s claims for malicious prosecution and based on the Charter, without leave to amend, and dismissing the action. The basis for the motion is that the claims fail to provide material facts to support either cause of action, are incapable of success, and are frivolous, vexatious, and an abuse of process.

[2] The plaintiff resists the motion, and argues that there are sufficient material facts pleaded in the statement of claim. In the alternative, if the court finds that there are not sufficient material facts pleaded, the plaintiff asks that the court grant leave to amend.

[3] The current version of the statement of claim is the fourth version. The plaintiff was previously self-represented, and prepared the first three versions of the statement of claim himself. The three previous versions of the statement of claim were struck, with leave to amend, by orders of this court dated March 27, 2015, January 27, 2016, and November 22, 2016. The current claim is the only one that was prepared with the assistance of counsel. It is fair to say that the current statement of claim is much more focused and streamlined that the previous versions.

Background to the claim

[4] The background to the plaintiff’s claim is a criminal prosecution. The plaintiff was charged with fraud. The basic allegation in the criminal case (according to the Court of Appeal endorsement) was that the plaintiff deposited a forged cheque into his business bank account, and then withdrew increasingly large amounts of the money from the account. In the criminal trial, the plaintiff’s position was that he had been given the cheque by a business associate, and he believed the cheque was genuine.

[5] The plaintiff was convicted in his first trial in 2007. He appealed. In August 2011, the Court of Appeal allowed the appeal and ordered a new trial. In ordering a new trial, the Court of Appeal noted that the plaintiff had completed his sentence, and that it would be for the Crown to determine whether it was in the interests of justice to proceed with a new trial.

[6] In the second trial, the plaintiff was acquitted on a directed verdict in November 2012.

[7] The plaintiff’s claim is that the prosecutor’s decision to continue the criminal proceedings against him was malicious prosecution and breached the Charter. The plaintiff is of African Canadian heritage from Nigeria, and a central aspect of the claim is that the prosecution decision-making was improperly affected by racial profiling, based on his being Nigerian, and charged with fraud.

The applicable law

[8] On a motion to strike out a claim on the basis that it discloses no reasonable cause of action, the moving party must show that it is “plain and obvious”, assuming the facts pleaded to be true, that the claim discloses no reasonable cause of action, or put differently, has no reasonable prospect of success. The test on a motion to strike is a stringent one. The pleadings must be read generously in favour of the plaintiff, with allowances for drafting deficiencies: R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45 at paragraph 17; Biladeau v. Ministry of the Attorney General, 2014 ONCA 848 at paragraph 15.

[9] The Court will accept the allegations in the statement of claim as true, unless they are manifestly incapable of being proven: Imperial Tobacco at paragraph 22. However, allegations which are vague, or take the form of assumptions or speculation are not taken as true because by their very nature they are incapable of proof by the adduction of evidence: Holland v. Ontario, [2000] O.J. No. 566 (S.C.J.).

[10] In considering whether a claim discloses a reasonable cause of action, a court must bear in mind that the law is not static. New developments in the law may first arise on preliminary motions such as a motion to strike. Thus, in considering a motion to strike, the court must ask whether, assuming the facts pleaded to be true, the claim has a reasonable prospect of success, taking into account that the process of development of the law may allow a novel but arguable claim to prevail at trial: Imperial Tobacco at paragraph 21.

The malicious prosecution claim

Should the claim be struck as disclosing no reasonable cause of action?

[11] The four elements required for a claim of malicious prosecution are well-established: see Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at paragraph 3. The defendant has conceded for the purposes of the motion that the claim satisfies the first two elements of the tort of malicious prosecution. However the defendant argues that the claim fails to plead material facts in support of the third and fourth elements, that the proceeding was instituted or continued in the absence of reasonable and probable cause, and that the proceedings were actuated by malice, or a primary purpose other than that of carrying the law into effect.

[12] The central aspect of the plaintiff’s claim for malicious prosecution, and on which the plaintiff asserts the third and fourth elements of the tort are sufficiently pleaded, are that there was no evidence of an essential element of the criminal offence of fraud (knowledge), and yet the prosecutor continued the prosecution, and that in light of the plaintiff’s African-Canadian ethnic background and his being of Nigerian extraction, it is alleged that the decision to continue the prosecution was tainted by the improper motive of racial profiling.

[13] The plaintiff argues that the offence of fraud with which the plaintiff was charged requires a subjective intent to perform the prohibited act and put the pecuniary interests of another at risk. He argues that the material fact of the directed verdict at the second trial, is evidence that there was no evidence on an element of the criminal offence (presumably knowledge, although the reasons for the directed verdict in the criminal trial were not filed by either party on the motion). He argues that these allegations, combined with the allegation that the prosecutor was motivated by racial profiling, and the defendant is African-Canadian and of Nigerian extraction, satisfy the third and fourth elements of malicious prosecution.

[14] The Supreme Court provided a detailed analysis of the meaning of reasonable and probable cause in this context in Miazga at paragraphs 58-77. The focus is on an objective assessment of the circumstances known to the prosecutor at the time he or she decided to continue the prosecution.

[15] In Miazga, the Supreme Court also considered the requirements to prove malice at paragraphs 78 to 89. The Supreme Court was clear that the element of malice is more than just the absence of reasonable and probable cause to commence or continue the prosecution. Malice requires a deliberate and improper use of the office of the Attorney General or the Crown Attorney, inconsistent with the status of “minister of justice”. The absence of reasonable and probable cause, standing alone, does not prove malice, because a prosecutor’s failure to fulfil his or her role can be due to other causes such as inexperience, incompetence, or negligence. The high standard for proof of malice is key to maintaining the balance between ensuring that prosecutors are not unduly hindered in carrying out their important public duties, and the need to provide a remedy to individuals who have been wrongly and maliciously prosecuted.

[16] Although Miazga is clear that a proven absence of reasonable and probable cause to commence or continue a prosecution is not, standing alone, proof of malice, it is also clear that an assessment of whether malice is proven must be made by considering the totality of the circumstances, and the absence of reasonable and probable cause is relevant to the assessment of whether malice or an improper purpose has been proven (see in particular at paragraphs 85-89).

[17] The holding in Miazga in relation to malice is echoed by rule 25.06(8), which requires that “where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.”

[18] In the context of a motion to strike under rule 21, the effect of the holding in Miazga about proof of malice is that a plaintiff is not required to plead an express act of malice, or in this case, an express action by the prosecutor based on racial profiling. Rather, the plaintiff must plead material facts which, assuming for the purpose of the motion they are proven, would allow the drawing of an inference of a malice or an improper motive on the part of the prosecutor in the sense defined in Miazga.

[19] I turn then to how the issue of racial profiling relates to the claim for malicious prosecution. Racial profiling is not a cause of action in and of itself, but it has been held that proof of racial profiling case be an aspect of a claim of Charter damages: Hamalengwa v. Bentley, 2011 ONSC 4145, [2011] O.J. No. 3477 at paragraph 9. By the same logic, I accept that if it was proven that racial profiling was an aspect of decision-making by a prosecutor, that motive would be capable of constituting an improper motive for a claim of malicious prosecution. The defendant does not contest that if racial profiling was proven, it would constitute an improper motive. Rather, the defendant asserts that in this case the pleading is conclusory on this issue and not supported by material facts.

[20] It is important to bear in mind in considering the sufficiency of the claim of malicious prosecution that alleges racial profiling that by their nature, such claims will usually be based on drawing inferences about a prosecutor’s motive from all of the surrounding circumstances. It will be rare that a prosecutor will expressly state that an action is taken on the basis of racial profiling: R. v. Brown, 2003 CanLII 52142 at paragraph 44 (ONCA); Peart v. Peel Regional Police, 2006 CanLII 37566 at paragraphs 95-96 (ONCA).

[21] The type of evidence that the courts will find sufficient to establish proof of racial profiling, in either a criminal or a civil case, is still an issue developing before the courts: Peart v. Peel Regional Police, supra at paragraphs 89-101; R. v. Sitladeen, 2016 ONCJ 805 at paragraphs 14-27. This reality does not relieve the plaintiff of giving sufficient notice to a defendant of the material facts in support of the claim. But it speaks to the need for caution in striking out a claim and denying leave to amend at this early stage of proceedings, where the elements the plaintiff must prove to succeed at trial must of necessity be based on inferences drawn from all of the circumstances: Imperial Tobacco, supra at paragraph 21.

[22] I find that as currently pleaded, to a large measure the allegations pleaded by the plaintiff are conclusory statements. These bald assertions alone are not sufficient: see Hamalengwa v. Bentley, 2011 ONSC 4145, [2011] O.J. No. 3477 at paragraphs 10-11. In particular, the plaintiff must plead material facts setting out why the prosecutor had no reasonable and probable cause, and the material facts supporting why an inference of improper purpose or malice on the part of the prosecutor should be drawn. It is not sufficient for the plaintiff to plead that there was no evidence that he had knowledge the cheque was fraudulent, and assert that racial profiling was involved. The plaintiff must plead all of the material facts that support the drawing of an inference of an improper purpose.

[23] Part of the plaintiff’s response to the motion is to assert that counsel will be in a position to provide more detail on the allegations through the discovery process. With respect, this is not an answer to the defendant’s motion to strike. A defendant is entitled to sufficient notice of the material facts to support the allegations in order to permit the defendant to respond to the claim: Wilson v. Toronto (Metropolitan Police Service), [2001] O.J. No. 2434 (SCJ); aff’d, 2002 CanLII 4770 (ON CA), [2002] O.J. No. 383 (CA). A plaintiff is not entitled to use the discovery process as a fishing expedition to find the basis for their claim.

[24] I find that the plaintiff’s claim should be struck for disclosing no reasonable cause of action because it is too conclusory and made up largely of bald assertions not supported by material facts. However, for reasons I will explain, I find that the plaintiff should be granted leave to amend the claim.

Should the plaintiff be granted leave to amend the claim?

[25] Rule 26.01 provides that: “On a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

[26] Rule 26 has been interpreted as creating a general rule that amendments are presumptively approved, but that amending is not an absolute right. The court has a residual right to deny amendments where appropriate: Marks v. Ottawa (City), 2011 ONCA 248 at paragraphs 19. In Marks, the Court of Appeal summarized the factors a court should consider in deciding whether to allow an amendment to pleadings:

• An amendment should be allowed unless it would cause an injustice not compensable in costs.
• The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.
• No amendment should be allowed which, if originally pleaded, would have been struck.
• The proposed amendment must contain sufficient particulars.

[27] Following the approach taken by the Court of Appeal in Biladeau v. Attorney General on Ontario, supra paragraphs 25-37, and rule 26.01, although the statement of claim as currently pleaded does not contain sufficient material facts to support the causes of action, the record suggests that there are facts that the plaintiff could plead in support of both the third and fourth elements of malicious prosecution. I am not satisfied that the plaintiff’s claim is incapable of success, if the material factual allegations are fleshed out in the statement of claim.

[28] The defendant argues that leave to amend should not be granted primarily on the basis of the need for finality, as the claim is already in its fourth iteration.

[29] There is some force to the defendant’s argument regarding finality. However, as I have noted above, the first three versions of the statement of claim were prepared by the plaintiff personally, before he had counsel. The current version of the statement of claim is the first one prepared by counsel. In light of rule 26.01, and the approach to leave to amend taken by the Court of Appeal in Biladeau, supra and Marks, supra, I find that leave to amend should be granted.

[30] I turn then to the record in this case. As I have noted, the statement of claim is relatively conclusory on the issue of there being no evidence of the plaintiff’s knowledge that the cheque was fraudulent, and of the assertion of racial profiling, both of which the plaintiff relies on to ground the claim that there was no reasonable cause to continue the prosecution and that the prosecutor’s actions were motivated by malice or an improper purpose. However, as in Biladeau, I find that the record provides a basis to suggest that there are facts that the plaintiff could plead to support his claim.

[31] The fact that the plaintiff was acquitted at the second trial on a directed verdict motion means that the trial judge found that on at least one element of the offence with which the plaintiff was charged, there was no evidence on which a reasonable jury, properly instructed could find guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. The trial judge’s reasons for the directed verdict were not in the record before me on the motion, although they are referred to in paragraph 7 of the statement of claim.

[32] I accept that the fact of a directed verdict of acquittal, standing alone, is not a material fact that supports either the absence of reasonable or probable grounds to continue the prosecution, or a finding of malice or improper motive. However, I find that the facts that underlie the granting of the directed verdict, taken together with the other circumstances surrounding the decision to continue the prosecution may enable to plaintiff to plead material facts to support his claim of malicious prosecution. In effect, if pleaded with more particularity, the circumstances in the record before me on the motion may be sufficient for the plaintiff to plead a claim for malicious prosecution that will survive a rule 21 challenge.

[33] Based on the motion materials (including the earlier versions of the statement of claim), it is clear that the plaintiff’s claim with respect to improper purpose/malice, is based on looking cumulatively at allegations that: when the appeal from the first trial was allowed, the Court of Appeal indicated in its endorsement that the plaintiff had already served his sentence imposed at the first trial, and that it would be for the Crown to consider whether the interests of justice required a new trial (I pause to note that this is a matter within prosecutor’s discretion, if discretion is not exercised for an improper purpose); that there was no evidence that the plaintiff had knowledge that the cheque at issue was fraudulent and as a result there was not reasonable and probable grounds to continue the prosecution (as I have outlined, this allegation needs to be fleshed out to support there being a lack of reasonable and probable grounds); that prosecuting counsel offered a very favourable plea resolution to the plaintiff prior to the second trial, which arguably in the context of all of the allegations could provide some support for the prosecutor being aware of a problem with the case; and that the second criminal trial was decided on a directed verdict. The reasons of the trial judge on the second trial are not in themselves material facts supporting the claim. But there is a reasonable possibility that the facts underlying the decision to grant a directed verdict at the second trial are material facts that could be pleaded as part of the circumstances to support an argument that there is a basis to draw an inference of improper motive on the part of the prosecutor.

[34] Not all of these aspects of the claim are fleshed out in the statement of claim or expressly pleaded as material facts. It is these factual allegations that the plaintiff must flesh out in the statement of claim.

[35] What is missing from the plaintiff’s claim are the material facts from which he says the inferences of lack of reasonable and probable cause to continue the prosecution, and the inference of malice or improper purpose arise.

[36] For example, the plaintiff repeatedly asserts in the statement of claim that there was “no evidence” that he had knowledge of the fraudulent nature of the cheque he cashed. The defendant argues that this is an assertion of a legal conclusion.

[37] I find that it is both a legal conclusion, and an assertion of fact. But as an assertion of fact, it is lacking in particularity. Without engaging in redrafting the plaintiff’s claim myself, I note that the plaintiff knows what substance of the criminal case against him was (i.e., the evidence that was and was not available to the prosecutor). He could plead as material facts supporting his allegation of lack of reasonable and probable grounds to continue the prosecution in general terms the evidence that was available to the prosecutor, and where specifically this left a gap in the evidence such that there was not reasonable and probable grounds to continue the prosecution. I pause to note that the plaintiff’s current pleading of the lack of reasonable and probable grounds aspect of his claim not as conclusory as the pleading with respect to improper purpose.

[38] With respect to the element of improper purpose or malice, Miazga is clear that the absence of reasonable and probable cause to continue the prosecution is not sufficient, in itself to draw an inference of improper purpose. However, Miazga is also clear that the assessment of whether malice or improper purpose is proven must be made by considering the totality of the circumstances, and the absence of reasonable and probable cause is relevant to the assessment of whether malice or an improper purpose has been proven (see paragraphs 15 and 16 above). Again, I am not going to engage in redrafting the plaintiff’s claim. But fleshing out the factors mentioned in paragraph 33 above, and any other material facts the plaintiff relies on to support the inference that the prosecutor acted with an improper purpose, may be sufficient material facts to survive a rule 21 motion.

[39] As I have noted, neither party on the motion filed the reasons of the trial judge regarding the directed verdict at the second criminal trial. In the circumstances, I am unable to conclude that the plaintiff’s claim will invariably be struck if he is given an opportunity to serve and file and amended statement of claim fleshing out the basis for his claim of lack of reasonable and probable grounds, and malice or improper purpose on the part of prosecution counsel in continuing the proceedings. For these reasons, I will grant the plaintiff leave to serve and file an amended statement of claim.

[40] The defendant also argues in relation to lack of reasonable and probable grounds that the fact that the Court of Appeal ordered a retrial when it allowed the appeal from the first trial is fatal to the plaintiff’s claim that the prosecution lacked reasonable and probable grounds and was malicious. With respect, I do not accept this argument. The only live issues in the appeal before the Court of Appeal were the admissibility at trial of certain prejudicial evidence, and the failure of the trial judge to give a limiting instruction to the jury in relation to that evidence. The issue of reasonable and probable grounds to lay the charge or continue with the prosecution was not before the Court of Appeal. The Court of Appeal’s comments in its endorsement about the case being “relatively straight-forward” were made in setting out the factual context for the legal issues in the criminal appeal.

The Charter claim

[41] A claim for damages based on a Charter breach requires the following elements (1) that the plaintiff’s Charter rights were violated; (2) that damages fulfil one or more of the objects of compensation, vindication of the right, or deterrence of future Charter breaches; and (3) that countervailing factors do not make an award of Charter damages inappropriate or unjust: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28.

[42] In the context of this claim, as in the Court of Appeal decision in Biladeau, supra at paragraphs 41-43, the Charter claim tracks the same factual allegations as the malicious prosecution claim.

[43] For the same reasons I have set out with respect to the malicious prosecution claim, I am of the view that the Charter claim as presently pleaded lacks sufficient material facts, but that the plaintiff should be granted leave to amend.

Conclusion

[44] Although I agree with the defendant that the claims for malicious prosecution and for Charter damages as currently pleaded lack sufficient material facts, for the reasons outlined above, I am not satisfied that the claims are incapable of success if pleaded with more specificity. The motion is granted in part. The statement of claim is struck pursuant to rule 21; however, the plaintiff is granted leave to serve and file a fresh as amended statement of claim in accordance with these reasons within 60 days.

[45] The parties agreed at the end of the hearing of the motion that there should be no order as to costs regardless of the outcome of the motion.

Justice J. Copeland

Released: February 9, 2018