COURT FILE NO.: CV-12-17981

DATE: 20181218

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mihail Kolosov, Andrei Kolosov also known as Andrei Kolasau, and Alena Kolasava

Plaintiffs

– and –

Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle, Casey Findlay, Windsor Police Services Board, Gary Smith, Former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury, Staff Sgt. Alan Brown, Belleville Police Service Board, Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo, Constable Jeff Ling, Detective Constable Paul Josefik and Her Majesty the Queen in Right of the Province of Ontario as Represented by the Attorney General of Ontario

Defendants

Raymond G. Colautti, for the Plaintiffs

Tom Galligan, for the Defendants, Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle and Casey Findlay

Sheila C. Handler, for the Defendants, Windsor Police Services Board, Gary Smith, former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury and Staff Sgt. Alan Brown

HEARD: March 26 and 27, 2018, with

additional written submissions filed

RULING ON SUMMARY JUDGMENT MOTION

verbeem j.:

I) Nature of the Motion

[1] The defendants, Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle, and Casey Findlay (collectively “the Lowe’s defendants”) bring a motion for summary judgment pursuant to r. 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), to dismiss this action against them on the basis that there is no genuine issue regarding their alleged liability that requires a trial to determine.

[2] Similarly, the defendants, Windsor Police Services Board, Detective Kevin McCann (“DC McCann”), Police Constable Steven Brnardic (“PC Brnardic”), and Police Constable Jacqueline Khoury (“PC Khoury”) (collectively, “the WPS defendants”) also bring a motion pursuant to r. 20.01(3) of the Rules, to dismiss the action against them on the basis that there are no genuine issue regarding their alleged liability that requires a trial to determine.

[3] For reasons dated March 24, 2016 (reported at 2016 ONSC 1661 aff’d 2016 ONCA 287, 130 O.R. (3d) 452), I granted summary judgment dismissing the action against the defendants: Belleville Police Services Board; Constable Ron Kanyo (“PC Kanyo”); and Detective Constable Paul Josefik (“DC Josefik”) (the “Belleville defendants”). I made a further order on consent, dismissing the action against Cory McMullan, Chief of Belleville Police Services (“BPS”), and Constable Jeff Ling (“PC Ling”). The action was discontinued against Her Majesty the Queen in Right of the Province of Ontario as represented by the Attorney General of Ontario, in 2012. Finally, by order of King J., dated January 25, 2018, the action was dismissed against Gary Smith, Former Chief of Windsor Police Service (“WPS”) and Staff Sgt. Alan Brown.

[4] Through the reasons that follow, I will explain why both motions must be allowed and the action must be dismissed against both the WPS defendants and Lowe’s defendants. In doing so, I will first outline the nature of the action and the factual narrative giving rise to the plaintiffs’ asserted claims. I will then provide an overview of the parties’ respective positions on the motions followed by a review of the principles governing the disposition of a motion for summary judgment. I will then turn to a detailed review of the voluminous evidence adduced of the motions and explain my reasons for striking portions of the affidavit evidence adduced by the plaintiffs. Finally, I will explain the bases for the disposition of each motion.

II) Nature of the Action

[5] The plaintiffs, Mihail Kolosov (“Mihail”) and his son Andrei Kolasau, also known as Andrei Kolosov (“Andrei”), were arrested on March 13, 2010 by PC Khoury, a WPS officer, for the offence of “fraud exceeding $5,000”, an offence punishable by indictment, contrary to s. 380(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. Mihail and Andrei were taken into police custody and subsequently charged with attempted fraud, contrary to s. 463(b) of the Code. They were initially held in custody for a period of 72 hours at the request of the WPS, to permit further investigation. The Crown then requested a show cause hearing, which was subsequently adjourned on a number of occasions. The eventual terms of the plaintiffs’ judicial interim release (to which their criminal counsel agreed) required each of them to deposit the sum of $2,000, which Mihail and Andrei were unable to do. As a result, they were held in custody at a detention centre in Windsor for approximately 30 days.

[6] The narrative leading to Mihail and Andrei’s arrest follows. On March 12, 2010, Casey Findlay, a Loss Prevention and Safety Manager employed at the Windsor Lowe’s location, determined that in early March 2010, that store received several telephone orders for merchandise from an individual or individuals who had potentially used stolen credit card information to “pay” for the orders. The suspect orders were placed varyingly under the surname pseudonyms of “Levi”, “Lachman”, and “Kofman”.

[7] On March 13, 2010 (and prior to Mihail and Andrei’s arrest), Lowe’s confirmed that “fraudulent” telephone orders using some of the pseudonyms above, were also placed with and picked up from a Lowe’s store located in Belleville, Ontario.

[8] Mihail, who operated a small moving company out of the Greater Toronto Area (“GTA”) and his son, Andrei, attended the Belleville Lowe’s location on March 10, 2010 and picked up two of the suspect orders. They each assert they were not involved in placing the orders. Rather, they say that Mihail was innocently retained, over the phone, to pick up the merchandise from the Belleville Lowe’s store and deliver it to the GTA. Mihail and his other son, Alexei, (who is not a party to this action and has since been deported from Canada as a result of criminal convictions including an offence related to the fraudulent use of a credit card), attended the Belleville Lowe’s location on March 11, 2010 to pick up additional orders under similar circumstances.

[9] Mihail and Andrei assert that Mihail was retained, under circumstances similar to those above, to attend the Windsor Lowe’s store on March 13, 2010, to pick up merchandise under the name “Kofman” and deliver it to the GTA. Andrei accompanied him on that date. Through information provided by credit card issuers, Lowe’s confirmed the March 13, 2010 orders associated with the name “Kofman” as fraudulent orders before Mihail and Andrei arrived. When they subsequently attempted to pick up the orders, Mr. Findlay contacted police, at the urging of a fraud investigator for the Canadian Imperial Bank of Commerce (“CIBC”), (which had issued a number of the credit cards that were fraudulently used in prior Lowe’s transactions associated with some of the pseudonyms above).

[10] PC Khoury and PC Brnardic were dispatched to attend the Windsor Lowe’s store in response to Mr. Findlay’s call. Upon arrival, they received background information from Mr. Findlay, who advised them that there were two individuals in the store attempting to pick up Kofman telephone orders that were confirmed to have been purchased by the unauthorized use of credit card information. Police were eventually shown a still image taken from closed circuit television surveillance at the Belleville Lowe’s store on March 11, 2010, which revealed Mihail picking up merchandise at that location that had also ostensibly been purchased through fraudulent credit card use. PC Khoury briefly questioned Mihail and Andrei and placed them under arrest, as set out above.

[11] Elsewhere, on March 13, 2010, the BPS received a complaint from Mr. Fralick, the Loss Prevention and Safety Manager at the Belleville Lowe’s store, that beginning in early March 2010, Lowe’s received several telephone orders for merchandise from an individual or individuals who used fraudulent or stolen credit card information to pay for the orders. Eventually, the BPS received a package of information from Mr. Fralick enclosing all of Lowe’s internal documentation with respect to the completed and pending suspected fraudulent transactions involving the Belleville store, together with its video surveillance of all of the pickups that had occurred to date. In his investigation, DC Josefik (of the BPS) also received information from DC McCann (of the WPS) concerning the circumstances leading to the arrests of Mihail and Andrei in Windsor.

[12] DC Josefik sought an arrest warrant for Mihail and Andrei related to the fraudulent orders that they were involved in picking up from the Belleville Lowe’s location. On March 25, 2010, valid arrest warrants for their arrest were issued on charges of possession of property, knowing that the property was obtained by the commission of an offence punishable by indictment, contrary to s. 354(1) of the Code.

[13] On April 9, 2010, Mihail’s wife, Alena Kolasava (“Alena”), attended at the Windsor detention facility where Mihail and Andrei were held and posted the deposits required by their bail conditions. Mihail and Andrei were released on April 10, 2010 and immediately arrested in Windsor, by PC Ling of the BPS, who executed the arrest warrants issued on March 25, 2010. Mihail and Andrei were then transported to Belleville where they were charged with several counts pursuant to s. 354(1) of the Code, as a result of their possession of property that was unlawfully obtained from the Belleville Lowe’s stores on March 10 and/or 11, 2010, respectively. Subsequently, they were held in custody for two days pending a show cause hearing.

[14] In the fall of 2010, all charges laid against Mihail and Andrei by the BPS and the WPS were withdrawn by the respective Crown Attorneys.

[15] In the context of this action, the plaintiffs assert that they were and are innocent of any criminal conduct in relation to the fraudulent Lowe’s orders. They further assert that there has never been any evidence to support a reasonable and probable belief in their guilt. More specifically, there has never been any evidence establishing that either of them had subjective knowledge of any prohibited acts of deceit, falsehood, or other fraudulent means designed to deprive Lowe’s of its property, through the unauthorized use of credit card information by whomever placed the Lowe’s orders, which Mihail was then retained to pick up. Instead, at all times, they were unknowingly used by the fraudsters as the “tools” by which aspects of the fraud committed against Lowe’s were implemented. Together with Lowe’s, they were the victims of the fraud. They submit that no evidence was ever uncovered by Lowe’s, the WPS, or the BPS establishing otherwise.

[16] The plaintiffs’ contend that the warrantless arrests made by PC Khoury were unlawful because they were made without reasonable and probable grounds to believe that they had engaged in any criminality. They also contend that the post-arrest investigation conducted by the WPS, and DC McCann in particular, was negligent. They allege that DC McCann ignored exculpatory evidence that tended to establish their innocence and he failed to engage in other investigatory steps that would have unearthed further exculpatory evidence. Therefore, any grounds that PC Khoury may have had to arrest them were vitiated by the results of DC McCann’s subsequent investigation. Finally, they allege that DC McCann conducted his investigation with a level of wanton recklessness that supports an inference of malice.

[17] The plaintiffs also impugn the conduct of the Lowe’s defendants. They allege that Lowe’s employees failed to follow Lowe’s internal policies and procedures with respect to telephone credit card orders. They assert that had they done so, the fraudulently purchased merchandise would never have been released to Mihail and Andrei. Further, they contend that Lowe’s negligently conducted its own internal investigation into the fraudulent credit card orders and withheld key exculpatory evidence from police in respect of Mihail and Andrei. Plaintiffs’ counsel confirms that malice is not asserted against Lowe’s or its employees. Instead, the claim against them is primarily framed as negligent investigation.

[18] In June 2012, the plaintiffs commenced this action. Mihail and Andrei claim, among other things, compensatory, punitive and aggravated damages from the WPS defendants for negligent investigation, false imprisonment, wrongful arrest, and a breach of their rights pursuant to the Canadian Charter of Rights and Freedoms. The plaintiffs claim similar compensatory damages from the Lowe’s defendants premised on their negligence, including negligent investigation, that resulted in the plaintiffs’ arrests by both the WPS and BPS and the subsequent charges laid against them by police.

[19] Alena Kolasava (“Alena”) claims damages from the remaining defendants for: negligence; negligent infliction of nervous shock; loss of care, guidance, companionship and support, pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F-3; and breaches of her Charter rights.

III) Previous Disposition of the Belleville Police Service Defendants’ Motion for Summary Judgment

[20] Similar to the plaintiffs’ claim against the WPS and its members, their claims against the BPS and its members were framed in negligent investigation, false imprisonment, wrongful arrest, and breaches of their Charter rights. The plaintiffs also asserted that the statement of claim sufficiently pleaded a cause of action in malicious prosecution against the Belleville defendants.

[21] In determining the BPS’ motion for summary judgment, I generally concluded that:

1. The plaintiffs’ claims for false arrest, false imprisonment, and violations of their Charter rights by the Belleville defendants were answered by the fact that Mihail and Andrei were lawfully arrested by PC Ling pursuant to facially valid warrants for their arrest.

2. The plaintiffs’ claims for false arrest, false imprisonment and related Charter violations were discovered at the time of arrest and detention by the BPS on April 10, 2010. As a result, those claims were statute barred pursuant to the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B.

3. The plaintiffs’ claims founded in negligent investigation were discovered in October 2010, when the charges laid by the BPS were withdrawn. Their action in that regard was commenced within the applicable limitation period. However, the totality of the available evidence did not establish that the Belleville defendants, or any of them, failed to act in accordance with the applicable standard of care when investigating Mihail and Andrei’s possession, in fact, of property obtained by crime from the Belleville Lowe’s location.

4. On all of the evidence, I found that DC Josefik held an honest belief that sufficient grounds existed to seek warrants for Mihail and Andrei’s arrests for offences pursuant to s. 354(1) of the Code and to charge them with such offences. I also found that his belief in that regard was objectively reasonable, in all of the circumstances.

5. Finally, I dismissed Alena’s Family Law Act claim against the Belleville defendants because the claims of Mihail and Andrei, from which her claim was derived, were dismissed. Additionally, I concluded that the Belleville defendants did not engage in any negligent acts or omissions as it related to their investigation and arrest of Mihail and Andrei and, as a result, there was no factual basis to support a finding that those defendants were liable in respect to Alena’s claim for affliction of nervous shock.

IV) The Parties’ Positions on the Defendants’ Summary Judgment Motions

a) The WPS Defendants’ Motion for Summary Judgment

[22] Both the WPS defendants and the Lowe’s defendants deny that they are liable to the plaintiffs as alleged, or at all, and they submit that a trial is not required in respect of the claims asserted against them, generally, for the reasons set out below.

[23] The WPS defendants assert that the claims against them for false imprisonment, wrongful arrest and breach of Charter rights are statute barred pursuant to the Limitations Act, 2002. They submit that those causes of action were discovered on March 13, 2010, when Mihail and Andrei were arrested by PC Khoury. The statement of claim was issued more than two years after those events occurred, which was the date the plaintiffs discovered their claims in relation thereto.

[24] Conversely, the plaintiffs submit that the applicable limitation period in respect to the foregoing torts and Charter violations commenced when the charges laid by the WPS were withdrawn on November 3, 2010. Alternatively, as expressed at paragraph 19 of the plaintiffs’ factum, the plaintiffs assert that the limitation periods related to the foregoing causes of action did not start to run on the institution of the charges. Rather, they submit that they were not in a position to have discovered those potential causes of action against the WPS defendants, until full disclosure was made by the Belleville defendants and the Belleville Crown in relation to the charges laid against Mihail and Andrei by the BPS. The Belleville Crown provided initial disclosure to the plaintiffs’ criminal counsel on July 7, 2010 and full disclosure was not provided until September 23, 2010. Therefore, the plaintiffs submit that this action was commenced within the two-year limitation period. In their submissions, the plaintiffs do not specifically avert to the date that disclosure was made by the Crown prosecuting the charges laid by the WPS. However, the available record discloses that the majority of police and Crown disclosure was made to the plaintiffs’ criminal counsel in relation to the Windsor charges on March 16, 2010, three days after their arrest.

[25] Second, while the WPS defendants concede that the plaintiffs’ claim for negligent investigation was commenced within the applicable limitation period, they submit that PC Khoury had reasonable and probable grounds to arrest Mihail and Andrei without a warrant on March 13, 2010. Subsequently, the WPS had sufficient grounds to charge Mihail and Andrei as it did. Finally, there is no evidence that DC McCann’s conduct of the post-arrest investigation failed to accord with a reasonable standard of care. In that regard, they submit that a claim for negligent investigation is a professional negligence claim and as a result, subject to two exceptions (neither of which apply in these circumstances), the court’s determination of the scope of the applicable standard of care must be informed by the evidence of a properly qualified expert. Yet, the plaintiffs have not adduced any expert evidence with respect to the applicable standard of care and do not intend to do so.

[26] In response, the plaintiffs submit that despite their status as innocent persons, the Lowe’s defendants and the WPS defendants negligently misapprehended the available information and mis-characterized them as “guilty” members of a sophisticated and well-organized criminal group of fraudsters, without reasonable and probable cause to do so. The plaintiffs submit that in order to effect a lawful warrantless arrest, PC Khoury was required to hold both subjective and objectively reasonable grounds on which to base the plaintiffs’ arrests. Objectively, at the time of the arrests, she did not. Specifically, PC Khoury had no evidence to establish the mens rea element of the crime for which the plaintiffs were arrested. There was no evidence available to her establishing that Mihail and Andrei knew that the goods they were attempting to pick up in Windsor had been purchased through fraudulent means. Instead, she was confronted with a considerable amount of exculpatory evidence demonstrating that Mihail and Andrei were simply engaged in transporting merchandise purchased by others, from various Lowe’s stores to a location somewhere in the GTA. Without any evidence that Mihail and Andrei had knowledge of the fraud, there were no grounds to make an arrest.

[27] In addition, the plaintiffs submit that DC McCann’s post-arrest investigation of the offences with which the plaintiffs were charged by the WPS was limited to minimal and superfluous investigatory tasks that interrupted otherwise lengthy periods of inactivity. In asserting that DC McCann failed to meet the applicable standard of care, the plaintiffs contend that: he failed to pursue reasonable investigatory steps that would have uncovered exculpatory evidence; he failed to appropriately consider the exculpatory evidence of which he was actually aware; and he continued with an “open investigation” in the absence of reasonable and probable grounds to do so. They posit that expert evidence is not required to define the parameters of the applicable standard of care for two reasons. First, DC McCann’s investigation was not overly technical. Second, DC McCann’s investigatory malfeasance was so egregious that it can be found to have breached the applicable standard of care, even without knowing its specific parameters.

[28] Third, the WPS defendants submit that a cause of action in malicious prosecution against them is not properly pleaded. Further, they submit that there is no genuine issue requiring a trial with respect to that alleged cause of action because the record does not disclose any evidence of malice. The evidence does, in their submission, establish that WPS members consistently held reasonable and probable grounds to believe that Mihail and Andrei were committing or about to commit an indictable offence, at all times from their arrests to the time the Crown withdrew the charges against them in November 2010 (on the basis that the prosecution was no longer in the public interest).

[29] Conversely, the plaintiffs submit that the pleadings sufficiently assert a cause of action in malicious prosecution. They contend that the requisite malice can be inferred from the level of recklessness with which DC McCann conducted his post-arrest investigation and from the fact that police never possessed adequate grounds to arrest them.

[30] In the context of all of the foregoing issues, the plaintiffs submit there are genuine issues requiring a trial to determine the nature and extent of the WPS defendants’ liability. A paper record will not do. The motion for summary judgment must be dismissed.

b) The Lowe’s Defendants Motion for Summary Judgment

[31] The Lowe’s defendants submit that there are no genuine issues that require a trial in respect of the liability allegations made against them because Lowe’s was simply a victim of crime, who reported the crime to police. In that context, none of the Lowe’s defendants owed a duty to the plaintiffs in respect of the subject matter of their allegations of negligent investigation. Further, the Lowe’s defendants did not conduct a negligent investigation with respect to the plaintiffs. In fact, they did not conduct an investigation with respect to the plaintiffs, at all. Instead, they investigated the circumstances surrounding demonstrably fraudulent telephone credit card purchases, which deprived Lowe’s of property with a cumulative value far in excess of $5,000. They turned the results of that investigation over to police and thereafter, they fully cooperated with police inquiries in the course of the subsequent investigations conducted by the WPS and BPS. The Lowe’s defendants did not insist or suggest that anyone (including the plaintiffs) be charged with a crime and they did not “prosecute” a proceeding against the plaintiffs, nor anyone else in connection with the fraudulent credit card orders. They left all decisions with respect to charges, criminal proceedings, and further investigation of the crimes which had been committed against Lowe’s, to the officers of the BPS and the officers of the WPS, respectively. In the foregoing circumstances, the Lowe’s defendants contend that they did not owe a duty of care to the plaintiffs.

[32] Alternatively, the Lowe’s defendants submit that if any of them owed a duty of care to the plaintiffs, there is no evidence to suggest that they failed to meet the requisite standard of care. The plaintiffs have failed to adduce evidence on the parameters of the standard of care from a properly qualified expert (or at all). In addition, the evidence establishes that the information provided by the Lowe’s defendants to police was accurate and complete. Finally, plaintiffs’ counsel has confirmed that the plaintiffs do not allege “malice” against the Lowe’s defendants. Accordingly, no claim in malicious prosecution can succeed against them.

[33] The plaintiffs see things differently. They submit that some of the Lowe’s defendants conducted an extensive internal investigation that was targeted at and tailored towards them. They submit that the weight of judicial authority establishes that when a private actor undertakes such an investigation, a duty of care is owed to those implicated by the investigation, to do so in accordance with a reasonable standard of care. At the very least, there are genuine issues requiring a trial to determine whether the Lowe’s defendants owed the plaintiffs a duty of care and, if so, whether their conduct met the applicable standard of care. The plaintiffs contend that it did not. They posit that the negligence of the Lowe’s defendants “materially contributed to and was a significant factor” in causing them to be falsely arrested and falsely imprisoned, which ultimately, resulted in the plaintiffs’ damages.

[34] Finally, the plaintiffs submit that a trial is required for the fair determination of the issues on this motion because of: the intertwining acts and omissions of the various Lowe’s defendants and WPS defendants, which they say caused and contributed to their damages; the number of witnesses to be called; and the complex factual and legal issues to be determined.

V) The Nature of the Available Evidence

[35] The evidentiary records adduced on the summary judgment motions are robust and comprehensive. The record filed by the WPS defendants includes affidavit evidence sworn by: PC Khoury; PC Brnardic; DC McCann; retired WPS Chief of Police Gary Smith; retired WPS Sgt. Alan Brown; and retired Assistant Crown Attorney Russell Cornett (who was involved with the prosecution of the charge against Mihail and Andrei that was laid by the WPS).

[36] The Lowe’s defendants have adduced affidavit evidence from Lowe’s employees or former employees: Casey Findlay; Andrew J. Fralick; Benedetto Mondello (a Lowe’s Company Canada Area Loss Prevention and Safety Manager); Carrie Fox (a Lowe’s Customer Service Representative that interacted with Mihail and Andrei on March 13, 2010); Steven Boyle; Gerald Howard; and Laura Mroz (a Law Clerk employed with the firm representing the Lowe’s defendants, who appends as exhibits to her affidavit copies of relevant documentation produced by the parties in the context of the action).

[37] The plaintiffs have adduced affidavit evidence from: Mihail Kolosov; Andrei Kolassau; J.J. Avery (the plaintiffs’ former criminal counsel); and Andrew Colautti (a member of the firm representing the plaintiffs, who appends as exhibits to his affidavit a copy of my reasons for striking portions of an affidavit Ms. Avery previously swore in the context of the Belleville defendants’ motion for summary judgment, together with complete copies of the transcripts of the Examinations for Discovery of Mihail Kolosov; Andrei Kolassau; and Alena Kolasava – to place in context, certain excerpts from those transcripts upon which the moving parties rely).

[38] The foregoing affidavit evidence is supplemented by a substantial number of relevant documentary exhibits, with their cumulative volume totalling in the hundreds of pages.

[39] The available records also include excerpts from the Examinations for Discovery for Mihail Kolosov, Andrei Kolassau, Casey Findlay, Andrew Fralick, and Alena Kolasava. The complete transcripts of the evidence given by PC Khoury, PC Brnardic, and DC McCann at their Examinations for Discovery have also been filed. Finally, certain responses to written interrogatories made by the Lowe’s defendants have been adduced in evidence.

[40] The evidentiary records also include the complete transcripts of the cross-examinations of: DC McCann; J.J. Avery; Russell Cornett; Carrie Fox; Steven Boyle; Gerald Howard; Benedetto Mondello; Mihail Kolosov; Andrei Kolassau; PC Brnardic; PC Khoury; and Casey Findlay.

[41] In the result, the evidence on the motions totals in the thousands of pages and includes the testimony of all key witnesses and all relevant documentations with respect to the issues in the action. The evidence of key witnesses has been tested through cross-examination. In that context, there is no reason to believe that any better evidence will be available at trial. There is, however, a significant challenge raised by all moving parties concerning the admissibility of the affidavit evidence of Ms. Avery, which I will explain and determine below.

VI) The Defendants’ Motions to Strike the Affidavit (or Portions Thereof) of J.J. Avery, Sworn August 31, 2017

[42] Prior to determining the substantive issues raised on the defendants’ motions, I turn to a preliminary issue concerning the admissibility of certain aspects of the affidavit evidence adduced by the plaintiffs. In their response to the defendants’ motions for summary judgment, the plaintiffs have adduced an affidavit sworn by Ms. J.J. Avery on August 31, 2017. Ms. Avery is the lawyer who represented the plaintiffs in their defence of the criminal charges brought against them by the WPS and BPS. She has also “assisted” plaintiffs’ counsel in the context of this action and she expects to be called as a witness at trial. She deposes that she attended as “co-counsel” at the Examinations for Discovery of all of the BPS and WPS defendants. As a result of the foregoing, she deposes that she has knowledge of the matters set out in her affidavit.

[43] Ms. Avery appends as exhibits to her affidavit: various documents produced by the defendants in the course of the proceeding; transcripts or excerpts of transcripts from the Examinations for Discovery of Mr. Fralick and Mr. Findlay, together with the complete Examination for Discovery transcripts of PC Brnardic, PC Khoury and DC McCann; written responses to interrogatories given by Ben Mondello, a Lowe’s Area Loss Prevention and Safety Manager; and certain responses to undertakings that were given at the Examinations for Discovery of various Lowe’s defendants.

[44] The Lowe’s defendants and the WPS defendants move to strike portions of Ms. Avery’s affidavit on the basis that its content: amounts to legal argument; contains improper expressions of opinion and unsupported personal views; contains irrelevant and unnecessary content; and contains unsourced hearsay. They correctly submit that Ms. Avery is not a properly qualified expert and cannot offer admissible opinion evidence on the motion. They contend that Ms. Avery’s affidavit simply recounts or summarizes the evidence deposed to by other parties (and witnesses) that has already been filed and is before the court on the motions. As a result, they submit that Ms. Avery’s “evidence summaries” are unnecessary and an abuse of process. They also contend that the admission of the majority of Ms. Avery’s evidence will cause them undue prejudice and unduly lengthen the proceeding.

[45] The WPS defendants (supported by the Lowe’s defendants) specifically categorize the alleged deficiencies in Ms. Avery’s affidavit, as content that is:

a) argument/speculative – paras. 22, 23, 25, 26, 32, 34, 36(a)-(d), 37, 38, 41-47, 50(a)-(d), 58, 62, 64, 66, 67, 72-75 and 77;

b) improper opinion evidence – paras. 23, 25, 26, 41, 44(a)-(c), 45, 47, 58 and 62;

c) irrelevant/unnecessary – paras. 3-8 (inclusive), and 10-77 (inclusive);

d) unsourced hearsay – paras. 8, 11, 13-22 (inclusive), 25, 29-35, 37-40, 44(a)-(e), 46, 48, 50(a), 50(c), 52-56, 59-61, 63-65 and 68-77.

[46] The Lowe’s defendants submit that when it is distilled to its essence, Ms. Avery’s “evidence” is an attempt to argue the plaintiffs’ case, in affidavit form. Beyond that, they correctly submit that Ms. Avery’s affidavit contains demonstrably inaccurate evidence with respect to her allegations that the Lowe’s defendants negligently or deliberately withheld certain evidence from police, which Ms. Avery characterizes as “exculpatory”. When cross-examined, Ms. Avery conceded the inaccuracy of her sworn statements that identify certain information as being withheld from police, when, in fact, it was disclosed.

[47] In response, the plaintiffs concede that portions of Ms. Avery’s affidavit should be struck, specifically: the last sentence of paragraph 25; all of paragraph 26; and all of paragraph 41. Beyond that, the plaintiffs submit that Ms. Avery’s affidavit conforms with the provisions of the Rules and the applicable common law principles. The plaintiffs posit that Ms. Avery’s affidavit supplements their own affidavit evidence, by providing necessary contextual and background information relating to the investigations conducted by the Lowe’s defendants and the WPS defendants that resulted in their arrests (with her knowledge in that regard being predominately informed by other evidence adduced in the context of these motions). Her evidence is materially relevant to the claims of negligence and negligent investigation, which are asserted against all the defendants. Although she swore her affidavit, primarily, on information and belief, her sources in that regard are identified within the body of her affidavit evidence.

[48] The plaintiffs also correctly submit that there is a fundamental difference between the admissibility of evidence and the weight that should be afforded to the evidence once it is admitted. In the plaintiffs’ view, the defendants have conflated those concepts. Excepting the paragraphs that the plaintiffs concede ought to be struck (which are set out above), affidavit evidence that is premised on the information and belief of the deponent is admissible, even in the context of a summary judgment motion. Further, the plaintiffs posit that to the extent Ms. Avery deposes to her subjective conclusions, inferences and interpretations of the other evidence available on these motions, she is permitted to do so and her evidence in that regard is admissible. They submit that in the same manner that a witness at trial is allowed to state a conclusion or express a position during her testimony (as long as there is a proper factual basis for the conclusion or position) evidence of that nature ought not to be struck from an affidavit. They submit that in this instance, Ms. Avery’s stated conclusions and expressions of position serve to put her own evidence in proper context.

[49] After considering the parties submissions and carefully reviewing the challenged evidence, I am satisfied that portions of Ms. Avery’s affidavit ought to be struck. I will explain below.

[50] In determining the defendants’ motions to strike, I remain mindful that pursuant to r. 25.11 of the Rules, a court may strike out or expunge all or part of a pleading or other document on the grounds that the pleading or other document: (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous, or vexatious; or (c) is an abuse of the process of the court.

[51] I also remain mindful that the provisions of the Rules regarding affidavits require that the evidence provided therein be confined to the statement of facts within the personal knowledge of the deponent, or to other evidence that the deponent could give if testifying as a witness in court, except where the Rules provide otherwise: see r. 4.06(2) of the Rules. The general provision set out in r. 4.06(2) of the Rules is subject to an exception permitting an affiant to depose to statements of his or her information and belief, if the source of the information and the fact of the belief are specified in the affidavit: see r. 39.01(4) of the Rules. That exception remains operable in the context of a motion for summary judgment pursuant to r. 20 of the Rules, however, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts: see r. 20.02(1) of the Rules.

[52] With those provisions in mind, I turn to the disputed issue of admissibility. In discharging its “gatekeeper” function, in the context of the potentially determinative motions brought by the defendants, this court must make a preliminary determination with respect to the admissibility of the evidence that the parties seek to adduce, particularly in circumstances in which adverse parties raise objections in that regard. I will do so below.

[53] Evidence is admissible if it is relevant, material and not otherwise the proper subject of an exclusionary rule.

[54] “Relevance” is a matter of every day experience and common sense. Evidence that is not logically probative of the fact requiring proof (a fact in issue) is generally inadmissible. To be probative, the evidence must increase or decrease the probability of the truth of the asserted fact to which it is said to relate: see Ontario v. Rothmans Inc., 2011 ONSC 2504, 5 C.P.C. (7th) 112, at para. 110. Indeed, in order for evidence to be “relevant” it must have some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence: see R. v. White 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 36. “Materiality” is a legal concept that directs an inquiry into whether the fact that the party seeks to prove bears any relation to the issues in the proceeding as determined by the applicable substantive and procedural law, and the issues raised by the pleadings.

[55] Argument, speculation and irrelevant information should not be contained in an affidavit. Legal arguments belong in a factum, not in affidavit form. Generally, legal submissions contained in an affidavit should be struck pursuant to r. 25.11 of the Rules, as scandalous, frivolous, or vexations: see Chopik v. Mitsubishi Paper Mills Ltd. (2002), 26 C.P.C. (5th) 104 (Ont. S.C.). Assertions in an affidavit that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations may be struck out as scandalous: see George v. Harris, 2000 CarswellOnt 1714 (S.C.) at paras. 19-20.

[56] Opinion evidence is generally inadmissible except from a properly qualified expert who serves a report in compliance with r. 53.03(2.1) and acknowledges a duty to provide evidence that is fair, objective and non-partisan: see r. 4.1.01 of the Rules.

[57] In the context of the foregoing principles, I am satisfied that a substantial amount of Ms. Avery’s affidavit evidence ought to be struck, primarily on the basis that it holds no probative value in finding the facts required to determine the issues raised in the summary judgment motions. In other words, it is irrelevant. The bulk of her evidence does not serve to increase the probability of a fact or facts that are material to the subject matter of the motions. Further, some aspects of her evidence amount to unqualified opinion evidence. Finally, aspects of her evidence are argumentative or otherwise constitute Ms. Avery’s conclusory inferences that she has drawn from other evidence adduced on the motions that is otherwise available to the court. I will explain the foregoing findings further below, by first detailing the anatomy of Ms. Avery’s affidavit.

[58] Throughout the majority of her affidavit, Ms. Avery purports to give evidence concerning factual matters in which she was not directly involved. Further, the information that forms the basis of her belief in that regard is sourced almost entirely to the sworn evidence of other witnesses and documents that already form part of the evidentiary record available on the motions. In that regard, Ms. Avery offers her evidence:

a) summarizing documentation provided by various defendants in a narrative style (paras. 4, 5, and 7);

b) summarizing aspects of the affidavit evidence given by the plaintiffs, Mihail and Andrei, that already forms part of the same record in which Ms. Avery’s affidavit is adduced (paras. 6, 8, 9, 54, 75, 76, 77);

c) appending the transcripts of the Examinations for Discovery, or portions thereof, of various defendants as exhibits (paras. 10 and 27); and

d) summarizing, in the body of her affidavit, the evidence given by various defendants at their Examinations for Discovery and, at times, directly quoting from the transcripts that she appends as exhibits, in which she places her own emphasis (through font changes) on portions of that evidence. In some instances, she deposes to her subjective interpretation of aspects of the evidence of other witnesses that is otherwise contained in the available record (paras. 11-20, 29-35, 39, 40, 47, 48, 51, 52, 56, 61, 63, 64).

[59] At paragraphs 22, 23 and 25 of her affidavit, Ms. Avery provides her own summary of the information that she believes was available to WPS officers at the time Mihail and Andrei were arrested, based on her own review of other aspects of the evidence presently before the court. She then testifies to her own view of the content of PC Khoury’s affidavit evidence with respect to the bases of her grounds to make those arrests (excepting the last sentence of paragraph 25, which the plaintiffs concede should be struck).

[60] At paragraphs 36 and 37 of her affidavit, Ms. Avery deposes to her subjective interpretation and her subjective characterization of DC McCann’s evidence concerning the steps that he took in his post-arrest investigation. In paragraph 38, she testifies to her interpretation of e-mail correspondence dated May 13, 2010 from the Crown to DC McCann, and her own subjective characterization of that correspondence as criticism over the status of his investigatory efforts.

[61] At paragraphs 40 and 41 of her affidavit, Ms. Avery deposes to her subjective interpretation and characterization of certain aspects of the evidence given by DC McCann at both his Examination for Discovery (the transcript of which has been filed, in its entirety, on the WPS motion) and in his affidavit filed in support of the WPS defendants’ motion.

[62] At paragraphs 42 to 47 of her affidavit, Ms. Avery testifies to the subjective conclusions that she has drawn from the other evidence adduced on the motions regarding the investigatory steps that were taken by DC McCann. She deposes to her subjective opinion that some of the investigatory steps taken by DC McCann were “superfluous”. She also identifies 11 specific activities for which she then contends there is no evidence that DC McCann undertook in his investigation.

[63] In other portions of her affidavit evidence, Ms. Avery appends certain documents produced by various defendants in the course of the litigation, together with responses to undertakings given at certain defendants’ Examinations for Discovery and certain responses to written questions for discovery. At times, her identification of such documentation is followed by her quotation of certain portions of its content with font changes signifying emphasis that she places on aspects of that evidence. In turn, the majority of her stylized excerpts are followed by further commentary by Ms. Avery, in which she states the factual conclusions that she subjectively draws from the documentation and other evidence (see paras. 49, 50, 53, 54, 55, 57, 59, 60, and 65).

[64] At paragraph 58 of her affidavit, Ms. Avery testifies to her own subjective interpretation of the available evidence concerning Lowe’s employees’ historical compliance with Lowe’s own internal policies and procedures and the manner in which she suggests their level of compliance effected Mihail and Andrei. She then deposes to her own speculative belief as to what would have happened if Lowe’s employees had strictly complied with Lowe’s internal procedures. She gives evidence of a similar ilk at paragraph 62 of her affidavit. At paragraph 66 of her affidavit, Ms. Avery provides her subjective opinion concerning the magnitude of a change to Lowe’s internal policies and procedures that was implemented after the discovery of the relevant fraudulent transactions in this instance.

[65] Then, there is her evidence at paragraphs 67 to 73 of her affidavit in which Ms. Avery, under oath, states that the Lowe’s defendants failed to provide police with what she subjectively characterizes as important exculpatory evidence in respect of Mihail and Andrei. At paragraph 67 of her affidavit, Ms. Avery introduces that subject with the following assertion of fact:

“In addition to the policies and procedures, Lowes employees withheld exculpatory evidence from both the Windsor and Belleville police, as detailed below.”

[66] In the balance of her evidence on the point, Ms. Avery asserts the Lowe’s defendants did not provide the WPS defendants with evidence that they possessed, indicating that the relevant fraudulent orders were not only placed under the name “Kofman”, but also under the pseudonyms “Levi” and “Lachman”. She then subjectively opines that information held by the Lowe’s defendants with respect to orders placed under the name “Levi” was important exculpatory evidence that Lowe’s withheld from police. The difficulty with that aspect of her evidence is that it is not true. Indeed, the entire premise of this aspect of her evidence was completely undermined during the course of her cross-examination. Ms. Avery concedes that the asserted exculpatory information that forms the subject of this aspect of her evidence was actually disclosed by Lowe’s to the WPS on March 13, 2010 (the date of Andrei and Mihail’s arrest), and subsequently that information was provided to her, in her capacity as the plaintiffs’ criminal counsel, on March 16, 2010. She further concedes that she reviewed that information on March 16, 2010, contemporaneous to its receipt.

[67] Finally, at paragraphs 74 to 77 of her affidavit, Ms. Avery testifies that there is a significant discord between the evidence of PC Khoury and the evidence of Mihail with respect to whether PC Khoury spoke to a “Kofman” over the phone on March 13, 2010.

[68] With the content of Ms. Avery’s affidavit defined, I will now determine its admissibility. In doing so, it is important to place Ms. Avery’s evidence in context. Ms. Avery is not offered as an expert witness qualified to express opinion evidence, nor does she stand in a non-partisan role. Instead: she acted as the plaintiffs’ criminal counsel; she is “assisting” the plaintiffs’ civil counsel in the context of this action; and she describes herself as the plaintiffs’ “co-counsel” at various defendants’ Examinations for Discovery. She also describes herself as an anticipated witness at trial. Her evidence in cross-examination also suggests she may have a financial interest in the outcome of the plaintiffs’ action. Specifically, Ms. Avery testified that she hopes to be paid from the proceeds of the plaintiffs’ action, for certain amounts that the plaintiffs still owe her as a result of her involvement in the criminal proceedings.

[69] Further, although Ms. Avery deposes that she expects to be called as a witness at trial, the content of her affidavit largely does not engage the evidence that she would presumably give in such a proceeding, including: her firsthand experiences during the course of her representation of the plaintiffs in the criminal proceedings; the circumstances underwriting the 30-plus days that the plaintiffs spent in custody following their arrests; her efforts to secure their judicial interim release (although she was cross-examined heavily on those points); and any relevant factors of which she is aware, that may inform the date of discoverability of certain causes of action the plaintiffs assert (i.e. evidence to rebut the presumption set out in s. 5(2) of the Limitations Act, 2002).

[70] Instead, Ms. Avery’s affidavit evidence is largely a restatement of other sworn evidence that has been adduced and is otherwise before the court in the context of these motions, together with her interpretation of that evidence and the inferences that she draws therefrom, particularly in respect of factual transactions in which she was not directly involved and to which she has no firsthand knowledge. With respect, that type of “evidence” is simply not helpful. It has no probative value. It is irrelevant.

[71] To be clear, it is this court’s role to consider and assess the evidence adduced on the motions from its primary sources (i.e. the actual affidavits, exhibits, and transcripts of cross-examinations and Examinations for Discovery that are filed) with resort to the fact finding powers available pursuant to r. 20.04(2.1) of the Rules if it is in the interest of justice to do so, in order to determine whether there is a genuine issue that requires a trial to fairly and justly adjudicate the action on its merits. Ms. Avery’s secondary evidence in which she subjectively summarizes, interprets and otherwise characterizes the primary evidence available to the court on these motions is of no assistance to the court in discharging its function in that regard. This court’s view of the evidence is determined by the content and quality of the evidence itself, considered in the context of the evidence as a whole, and decidedly not by what Ms. Avery (or any other witness) may think about, or conclude from, the evidence given by other witnesses in this proceeding about matters in which she was not directly involved.

[72] The type of summaries and “reviews” of the available evidence of other witnesses to which Ms. Avery deposes can, of course, form part of the plaintiffs’ factum, in which those types of summaries and excerpts would be cited with appropriate references to the aspects of the evidentiary record upon which they are premised. Indeed, that is precisely what the plaintiffs have done in the factum they delivered in this instance.

[73] Similarly, it is unnecessary for Ms. Avery to provide evidence that constitutes her review of aspects of the evidence of other witnesses that is otherwise available on the motions, for the purpose of placing emphasis on certain aspects of that evidence. That is another objective that can be accomplished through a factum and in submissions. Again, the plaintiffs have done so in the factum they delivered in this instance.

[74] To the extent that Ms. Avery gives evidence in which she purports to subjectively interpret what other witnesses “meant” in, or by, their evidence, she intrudes on the function of this court. For example, in paragraph 41 of her affidavit, Ms. Avery interprets an answer that DC McCann gave at his Examination for Discovery as indicating that he “had concerns about the veracity of the case against Mihail and Andrei after he watched the video from the March 11, 2010 pickup in Windsor and realized Mihail and Andrei were not involved.” With respect, that is a determination that the court must make. Ms. Avery’s “take” on DC McCann’s evidence offers no assistance in that regard. The court is well-equipped to comprehend, review and consider the evidence before it in determining the defendants’ summary judgment motions without the need for further evidence from a stranger (in this case Ms. Avery) to the factual transaction that is the subject of the evidence, offering his or her own evidence about how they interpret what a particular witness “really” meant when they testified. The vehicles for such advocacy are not affidavits, but rather facta and submissions.

[75] Similarly, Ms. Avery’s sworn characterization of certain steps taken in DC McCann’s investigation as “superfluous” intrudes upon the fact finding function of this court. As I will explain later in these reasons, I arrive at a different conclusion with respect to whether the steps that are identified by Ms. Avery were, in fact, superfluous. Not only are these aspects of Ms. Avery’s evidence without probative value, they carry with them a risk of prejudicial effect. Ms. Avery does not offer her evidence as a properly qualified expert and she has not been qualified as such, on any issue on either motion. In that context, her evidence characterizing certain investigatory steps taken by DC McCann as “superfluous” and her identification of a list of 11 activities for which she deposes there is no evidence that he engaged, during the course of his investigation (see paragraph 45 of her affidavit), invites the potential mischief that such evidence will inferentially inform the determination of the parameters of the standard of care applicable to the conduct of the WPS’ investigation, in the absence of actual evidence from a properly qualified expert on the point. Further, Ms. Avery’s evidence in that regard is not necessary for the purpose of allowing the plaintiffs to make submissions that there is no evidence supporting certain matters of fact. Ms. Avery’s observations in that regard can just as easily be made in a factum and through submissions of counsel (as they were in this case).

[76] The lack of necessity and irrelevance of Ms. Avery’s evidence summarizing the evidence of others are findings of multiple application in respect of the content of her affidavit. I will explain.

[77] The plaintiffs have filed the transcripts of the Examinations for Discovery and cross-examinations of several of the named defendants (or portions thereof) as evidence on the motions. In those circumstances, it is not necessary for Ms. Avery (or any other witness) to provide affidavit evidence summarizing and quoting from the transcripts of evidence given by another witness (at an Examination for Discovery or cross-examination), in order to prove that the other witness gave the answers sought to be relied upon. The certification of the transcripts, as filed, affords the necessary proof that the subject evidence was given.

[78] Further, where an affidavit of a party or other witness has been delivered in the context of these motions, the court does not require evidence from Ms. Avery (or any other witness) to prove the content of that affidavit by summarizing or paraphrasing its content in a subsequent affidavit. The original sworn affidavit stands as conclusive evidence of its own content.

[79] Similarly, in circumstances in which the plaintiffs wish to rebut the content of evidence given or relied upon by adverse parties or other witnesses by referring the court to other aspects of the record before it, it is not necessary to do so through an affidavit from Ms. Avery (or any other witness). Instead counsel can do so through the content of the parties’ factum and/or in submissions, directing the court to those other aspects of the record.

[80] Repeating and/or parroting, through Ms. Avery’s affidavit, aspects of the evidence that is otherwise available from a primary source in the record on these motions does not serve to make the repeated or summarized evidence any more or less credible and/or reliable. Instead, issues directed at the credibility of a deponent or the reliability of the evidence that they give, ought to be addressed through the parties’ facta and submissions.

[81] Finally, to the extent that a party wishes to identify a discord in the evidence that it submits results in a genuine issue requiring a trial, it can do so through its factum and submissions without the need to identify and particularize the otherwise patently discernable evidentiary conflict through the affidavit evidence of another witness.

[82] In arriving at the conclusion that the majority of the content of Ms. Avery’s affidavit is irrelevant, unnecessary, or constitutes improper opinion evidence, I remain mindful of the plaintiffs’ reliance on the reasons in Lacroix v. Canada Mortgage and Housing Corp., [2001] O.J. No. 1792 (S.C.), in which the following is stated at para. 7:

...[I]n the same manner as a witness at trial will often be allowed to state a conclusion or express a position during his testimony as long as there is a proper factual basis for the conclusion or position, such a statement will not necessarily be struck from an affidavit. It is recognized in many cases that the opinion or expression of position, if properly supported by a factual foundation, will serve to put the evidence of the deponent in context. [Emphasis added.]

[83] The plaintiffs submit that many aspects of Ms. Avery’s evidence, with which the defendants take issue, are conclusions and positions that are founded on a proper factual basis, and operate to place her evidence in proper context. Therefore, they submit the evidence is admissible.

[84] The difficulty with that submission is that the “evidence” said to be placed “in its proper context” by Ms. Avery’s statements of position and her conclusions is not primarily her own. Instead, her conclusions and statements of position are said to place in context the portions of her evidence, summarizing, partially summarizing, and quoting with emphasis, the evidence of other witnesses. In actuality, it is her evidence purportedly summarizing and quoting the evidence of other witnesses that frames the context for Ms. Avery’s evidence of her own subjective conclusions, opinions, views, inferences, and interpretations of the other evidence before the court. In turn, the latter aspects of her evidence are consistent with an effort (whether intended or not) to argue the plaintiffs’ case in affidavit form.

[85] In addition, in their factum and in submissions, the plaintiffs do not set out the first two sentences of paragraph 7 of Lacroix, upon which they otherwise rely, specifically:

It is, therefore, clear that a deponent may not give opinion evidence unless properly qualified to do so. Similarly, statements, which amount to mere arguments or conclusions, are not proper and should be struck out.

In my view, the majority of Ms. Avery’s purported evidence falls within the scope of those two sentences. The basis for her stated conclusions and expressions of position is limited to her own subjective review, consideration and interpretation of the evidence adduced by other parties and witnesses in the context of these motions on factual transactions in which she was not directly involved (many of which occurred before she was retained by the plaintiffs as their criminal counsel). Her evidence is not derived from historical experience but rather her impressions of the other evidence available to the court on these motions. Again, and with respect to Ms. Avery, the court is confident that it can review, comprehend and evaluate the evidence adduced by the parties without the need for Ms. Avery’s testimonial assistance in that regard. Indeed, the court has done so in determining the defendants’ motions.

[86] Notwithstanding the foregoing, there are aspects of Ms. Avery’s affidavit that are relevant and admissible. Ms. Avery provides an evidentiary anchor identifying the undertaking responses provided by the Lowe’s defendants; the answers to certain written interrogatories; and a chart summarizing the particulars of various Lowe’s orders that were purchased through the fraudulent use of credit card information (which appears to be non-contentious). Although it is not necessary to adduce the transcripts from various defendants’ Examinations for Discovery as “exhibits” to an affidavit, the transcripts are admissible as evidence on the motion in accordance with the Rules.

[87] As a result of the foregoing, the following paragraphs or portions thereof are struck from Ms. Avery’s affidavit:

(a) on consent, the last sentence of para. 25, all of paras. 26 and 41.

(b) the last sentence of para. 3, paras. 5, 6, 7, 8, 9, the second to last sentence of para. 10, paras. 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 except the last sentence, paras. 22, 23, 25, 29, 30, 31, 32, 33, 34, 35, 36, 37 except the last sentence, paras. 38, 39, 40, 41, 42, 43, 44, 45 except 45(b), paras. 46, 47, 48, 50, 51, 52, 53 except the second sentence, para. 54 except the first and third sentences, the first sentence of para. 55, paras. 56, 58, the first sentence of para. 59, paras. 60, 61, 62, 63, 64, 66, 68, 69, 70, 71, 74, 75, 76 and 77.

[88] Although a significant amount of Ms. Avery’s evidence is struck as inadmissible, it does not impact the arguments that the plaintiffs advance in this instance because all of the evidence that Ms. Avery purported to summarize, interpret and comment on, still remains evidence on the motions. The arguments, positions and conclusions deposed to by Ms. Avery remain before the court in the form of the content of the plaintiffs’ factum and Mr. Colautti’s customary fulsome and thoughtful submissions.

[89] With the parameters of the admissible evidence determined, I will now turn to the principles applicable to the motions brought by the defendants.

VII) The Legal Principles Applicable to a Motion for Summary Judgment

[90] Rule 20.01(3) of the Rules of Civil Procedure provides that:

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[91] Rules 20.04(2) – (2.1), in part, provide:

(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 trial:

1. Weighing the evidence.

2. Evaluating the credibility of the deponent.

3. Drawing any reasonable inference from the evidence.

[Emphasis added.]

[92] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J. observed that the judicial determination of civil disputes must embrace processes other than a traditional trial where such processes may result in more accessible, proportional, timely and affordable modes of adjudication that yield fair and just resolutions of disputes. Several principles emerge from Hryniak including the following:

a) The procedure used to adjudicate a civil dispute must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interest involved then it will not achieve a fair and just result (para. 29);

b) A genuine issue requiring a trial will not exist when the judge is able to reach a fair and just determination of an action on the merits on a motion for summary judgment. This will occur 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 than a trial (para. 49);

c) When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. However, a process that does not provide a judge with confidence in her conclusions can never be a proportionate method to resolve a dispute (para. 50);

d) On a summary judgment motion, the evidence need not be equivalent to that at trial, but it must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact finding tools, including ordering oral testimony [pursuant to r. 20.04(2.2) in Ontario] is often sufficient to resolve material issues fairly and justly (para. 57);

e) The standard of fairness is, therefore, not whether the procedure utilized to resolve the parties’ dispute is as exhaustive as a trial but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (para. 50).

f) The fact finding powers under r. 20.04(2.1) are discretionary and are presumptively available to the motion judge. They “may” be exercised unless it is in the interest of justice for those powers to be exercised only at trial;

g) In determining whether “it is in the interest of justice” that the r. 20.04(2.1) fact-finding powers only be exercised at trial, the motion judge may be required to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial (including the cost and speed of both procedures). The determination may also involve a comparison of the evidence that will be available at trial and the evidence available on the motion, as well as the opportunity to fairly evaluate that evidence. However, even when the evidence available on the motion is limited, there may be no reason to think better evidence will be available at trial (para. 58);

h) When a judge is able to fairly and justly adjudicate a claim through the use of the new fact finding powers it will generally not be against the interest of justice to do so. What is “fair and just” turns on the nature of the issues, the nature and strength of the evidence and the correspondingly proportional procedure in all the circumstances (para. 59);

i) In considering whether the use of the fact-finding power accords with the “interest of justice” a judge must consider the consequences of the motion and the context of the litigation as a whole. For instance, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. Conversely, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost efficient approach (para. 60);

j) On a motion for summary judgment 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. 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 fact-finding powers under r. 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 (para. 66); and

k) While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary, thereby giving the judge some flexibility in deciding the appropriate course of action in the context of a particular motion (para. 68).

[93] Notwithstanding the “culture shift” away from the primacy of trial and towards a proportional adjudicative process that yields a fair and just result, there will still be cases that must go to trial. Evidence by affidavit, prepared by the parties’ legal counsel can obscure the affiants’ authentic voice making the judge’s task of assessing credibility and reliability difficult. Accordingly, the motion judge must take care to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters the procedure in a way that would not likely occur in a full trial when the judge sees and hears it all: see Yusuf (Litigation guardian of) v. Cooley, 2014 ONSC 6501, 123 O.R. (3d) 474, at paras. 8 and 21, and Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.

[94] The evidentiary principles applicable to motions for summary judgment that were developed prior to the enactment of the current provisions of r. 20.04 continue to apply. The motion judge must still take a “hard look” at the evidence to determine whether the moving party has met its onus to demonstrate that there is no genuine issue requiring a trial. Each party must still put its best evidentiary foot forward and submit cogent and compelling evidence to support or oppose the relief sought. The motion judge is entitled to assume the record contains all the evidence the parties will adduce at trial. The responding party cannot reasonably rely on the position that a genuine issue requiring a trial exists because additional supportive evidence may emerge at trial: see Kolosov v. Lowe’s Companies Inc., 2016 ONSC 1661, at para. 33, aff’d 2016 ONCA 973; Aranas v. Kolodziej, 2016 ONSC 7104, at para. 34; Mazza v. Ornge Corporate Services Inc., 2015 ONSC 7785, at paras. 48-50, aff’d 2016 ONCA 753.

[95] Summary judgment motions are decided by evidence of the facts and, if appropriate, by reasonable and permissible inferences drawn from those facts (i.e. not by speculation about the facts): see Chernet v. RBC General Insurance Company, 2017 ONCA 337, 11 M.V.R. (7th) 1, at para. 12.

[96] Failure to cross-examine on affidavits or to otherwise challenge evidence placed in the record by an adverse party may have an adverse impact on a party to a summary judgment motion: see Mazza (ONSC), at para. 51.

[97] The right to a jury trial is generally not a relevant factor in determining the availability of summary judgment. Where an issue is otherwise appropriately determined by summary judgment, it must be granted even if a jury notice has been delivered, unless what remains after an issue is summarily decided is a disembodied question without context, or a proceeding that would require the same evidence to be repeated before the jury: see Mehlenbacher v. Cooper, 2017 ONSC 3434 at paras. 38-40; Anjum et al. v. Doe et al., 2015 ONSC 5501, at para. 20.

VIII) The Principles Applied

[98] In applying the foregoing principles and for the reasons that follow, I am satisfied that the available record on each motion adequately permits me to fairly and justly adjudicate all of the issues of liability involving the Lowe’s defendants and the remaining WPS defendants, with confidence. The available evidence allows me to:

1. Make the necessary findings of fact required to determine the foregoing issues; and

2. To apply the relevant legal principles to the facts, as found.

[99] In addition, summary judgment represents the most proportionate, the most expeditious and the least expensive means to achieve a fair and just determination of the remaining issues of liability in the action. I will explain.

[100] First, there are relatively few pure factual disputes between the WPS defendants and the plaintiffs. Instead, with respect to the WPS defendants the primary issues are: whether the evidence available to the WPS at the relevant times was capable of supporting reasonable and probable grounds to arrest and charge Mihail and Andrei; if so, whether those grounds were vitiated during the course of DC McCann’s post-investigation; and whether the conduct of WPS officers involved in the investigation, fell outside the parameters of the applicable standard of care. The available evidence (or lack thereof) permits the court to find the facts necessary to determine all of the bases for liability against the WPS defendants.

[101] Similarly, there are relatively few pure factual disputes between the plaintiffs and the Lowe’s defendants. Instead, the primary disputed issues between them include: whether the available evidence supports the recognition of a duty of care owed to the plaintiffs by the Lowe’s defendants with respect to: the manner in which Lowe’s conducted its internal investigation of the fraudulent transactions; the extent of the information that Lowe’s supplied to police; and Lowe’s employee’s compliance with Lowe’s own internal policies with respect to telephone credit card orders and pickups; and if so, whether the Lowe’s defendants’ conduct breached the applicable standard of care.

[102] The limited number of pure factual disputes between the parties can be readily determined by resort to the fact-finding powers available pursuant to r. 20.04(2.1) of the Rules and in all of the circumstances, it is in the interests of justice to do so. In the context of the motions, the available evidence of key witnesses is fulsome and has been subjected to cross-examination. There is no reason to believe that the evidence available at trial will be better or more robust. Given the relatively modest number of factual disputes arising from the evidence, determining those disputes in the context of these motions is the most proportionate means by which to achieve a fair and just adjudication of the action on its merits.

[103] Second, as I set out previously, the parties have adduced a robust and comprehensive record in the context of these motions that includes a substantial amount of evidence from the parties and key witnesses (sourced to affidavits, cross-examinations and Examinations for Discovery) and a substantial amount of documentary evidence. There is no indication that there may be any further relevant and material evidence available to the court at trial, beyond that which is presently before the court.

[104] Third, the plaintiffs have not expressed an intention to deliver expert evidence on the issue of the respective standards of care applicable to the WPS defendants and Lowe’s defendants. Instead they posit such evidence is unnecessary. Based on their position, the lack of expert evidence on these motions does not result in a genuine issue requiring a trial.

[105] In the result, I conclude that the available records are sufficient to fairly and justly determine the issue of liability related to the remaining defendants. I will now turn to the merits of the motions, by first detailing the available admissible evidence.

IX) The Nature and Content of the Evidence

[106] Below I will detail the evidence adduced on the motions in a manner consistent with the narrative sequence of events giving rise to the plaintiffs’ asserted claims. I will begin with the evidence relating to Lowe’s initial discovery on the suspected fraudulent orders and its internal response to same. I will then detail the moving parties’ evidence with respect to: the circumstances of Lowe’s initial complaints to the WPS and the BPS; the police response to same; the circumstances of Mihail and Andrei’s arrests, detention and judicial interim release; the circumstances of the WPS post-arrest investigation; and the Crown’s view of the prosecution. I will then detail: the evidence adduced by the plaintiffs regarding the nature of Mihail’s business; the circumstances of his retention and involvement in picking up and delivering certain merchandise from the Belleville Lowe’s store and attempting to pick up merchandise from the Windsor Lowe’s store; and Mihail and Andrei’s arrest and detention. Finally, I will detail the evidence relied upon by the plaintiffs with respect to their assertion that Lowe’s failed to follow its own policies and procedures, thereby allegedly exposing the plaintiffs to the risk of being falsely implicated in a crime.

a) Lowe’s Initial Discovery of the Fraudulent Credit Card Purchases

and its Initial Investigation

[107] On March 12, 2010, Casey Findlay, who was employed as the Loss Prevention and Safety Manager of a Lowe’s retail store located in Windsor, determined that the Windsor Lowe’s had potentially been victimized by recent credit card fraud, in which expensive merchandise was ordered over the telephone and purchased through the unauthorized use of credit card information supplied by persons other than the actual credit cardholders. The merchandise was scheduled for pick up at a later date. He specifically identified details of the transactions in which the fraud had potentially occurred including: the names provided by the persons ostensibly placing the orders (and potentially falsely using the credit card information of others) as “Mark Levi”, “Joseph Lachman” and “David Kofman”; the particulars of the credit cards used in association with the purchases (type of credit card and credit card numbers); and the dates of the subject purchase transactions, the specific merchandise associated with the suspect orders, the date that some of that merchandise was picked up; and the specifics of suspect orders that had been placed but not yet picked up.

[108] On March 12, 2010, Mr. Findlay contacted the financial institutions (including the CIBC) that issued the credit cards associated with the identified potential fraudulent purchases. In doing so, he determined that the names and phone numbers provided to Lowe’s by the parties that placed the impugned orders did not match those of the actual credit cardholders. Mr. Findlay also determined that three different orders, ostensibly placed by “David Kofman”, were scheduled to be picked up the following day (March 13, 2010) at the Windsor Lowe’s location. Since those orders were deemed to possibly be fraudulent, he arranged for a note to be placed on the related merchandise, alerting other Lowe’s employees about that concern.

[109] Through e-mail correspondence that he sent on the evening of March 12, 2010, Mr. Findlay advised certain other Lowe’s employees about the details of the foregoing information, including his direct supervisor (Mr. Mondello), and the Loss Prevention and Safety Managers at other Lowe’s locations in Ontario, one of which was Andrew Fralick, the Loss Prevention and Health and Safety Manager of a Lowe’s retail store located in Belleville, Ontario.

[110] In his affidavit evidence, Mr. Fralick deposes that one of his duties included detecting and attempting to prevent the commission of fraud against Lowe’s and its customers. After reviewing Mr. Findlay’s March 12, 2010 e-mail correspondence on March 13, 2010, Mr. Fralick was aware that: the Windsor Lowe’s store had experienced credit card fraud and possible credit card fraud related to Visa and MasterCard cards; the names used to place the orders associated with the suspected credit card fraud were Mark Levi, Joseph Lachman, and David Kofman; each of the suspect orders was placed over the phone and subsequently picked up or still awaiting pickup; and, the items purchased included eight indoor hot tubs, washers, dryers, high-end barbeques, and shower columns.

[111] Armed with that information, Mr. Fralick then searched the Belleville Lowe’s records for the names set out in Mr. Findlay’s e-mail correspondence. He determined that those names (or permutations of them) were associated with nine separate transactions at the Belleville Lowe’s location involving nine different credit card numbers, which were used to purchase goods cumulatively totalling $34,987. He then contacted several of the credit card companies that issued the cards involved in the Belleville transactions. He received a reply from the CIBC, in which he was advised that the particulars of the transactions that included CIBC issued credit cards did not match the actual cardholder’s information and were presumptively fraudulent.

[112] During his March 13, 2010 investigation of the Belleville Lowe’s transactions that involved the names: “Levi”, “Kofman”, and “Lachman”, Mr. Fralick reviewed Lowe’s databases and documentation and retrieved loading tickets, receipts, and records of the impugned transactions. He also reviewed a substantial amount of video surveillance footage taken within the Belleville Lowe’s store on the dates that suspected fraudulent orders were picked up. He was ultimately able to visualize two men who picked up an order from the Belleville Lowe’s location on March 11, 2010 that was associated with the fraudulent use of credit card information (as confirmed by the issuer of the credit card involved in that transaction).

[113] Mr. Fralick deposes that over the course of the day on March 13, 2010, he engaged in a number of telephone conversations with Mr. Findlay in which Mr. Fralick disclosed the results of his internal loss investigation, including: his receipt of confirmation from the relevant issuing financial institutions that credit card information used to purchase merchandise that was subsequently picked up from the Belleville Lowe’s store on March 11, 2010 was not authorized by the actual cardholders, and was presumptively fraudulent.

b) Lowe’s Initial Complaint to the BPS

[114] Mr. Fralick reported his findings to the BPS on the morning of March 13, 2010 (the same morning they were made), after which he continued to research the credit cards used in the suspect Belleville Lowe’s transactions. He spoke to PC Kanyo, of the BPS, at approximately 11:30 a.m. on March 13, 2010, and disclosed the information that he had developed concerning the possible fraudulent credit card purchases. He specifically advised PC Kanyo that there were possibly two other male suspects involved in the fraudulent purchases other than the two individuals that he had identified by viewing the March 11, 2010 surveillance video.

c) Lowe’s Initial Complaint to the WPS

[115] Mr. Findlay deposes that at some point on March 13, 2010, he was advised by a Lowe’s employee that two individuals were present at the Windsor Lowe’s store, attempting to pick up the suspect Kofman orders, which had been flagged as possibly fraudulent. In response, Lowe’s personnel immediately contacted Paul Morgan, a fraud investigator employed by the CIBC, because the credit cards used to purchase the orders had been issued by the CIBC. Mr. Morgan advised Mr. Findlay that all three credit cards used to purchase the Kofman orders that were scheduled to be picked up on March 13, 2010, had been used without the actual cardholders’ authorization. Mr. Findlay advised Mr. Morgan that two individuals were presently at the Windsor Lowe’s store attempting to pick up the suspect Kofman orders. Mr. Morgan asked Mr. Findlay to personally arrest them. Mr. Findlay declined. Next, Mr. Morgan requested that Mr. Findlay call the police. Mr. Findlay received approval from his supervisors to do so, and advised Mr. Morgan that he would so do.

[116] Immediately thereafter, Mr. Findlay called 9-1-1 and reported that there were two unidentified men in the store attempting to pick up fraudulent orders placed in the name of “Kofman”. Mr. Findlay deposes that at the time he contacted the police, he had already confirmed through CIBC fraud investigator Morgan that those specific Kofman orders were fraudulently purchased through the unauthorized use of credit card information belonging to persons other than “Kofman”.

[117] While police were en route, Lowe’s employees stalled the two individuals in the store. In that regard, Carrie Fox, who was employed by Lowe’s as a customer service associate at its Windsor store in March 2010, deposes in her affidavit that on March 12, 2010, she was advised by store management that Lowe’s had confirmed through the associated credit card issuer, that an order that was made under the name “Kofman” was possibly fraudulently purchased. She placed a note on the items associated with that order (and awaiting pickup), indicating they were not to be removed without a Lowe’s representative first speaking to management. Ms. Fox further deposes that on March 13, 2010, before the actual attempted pickup of the subject merchandise, she became aware that the Kofman orders were removed from the Lowe’s computer system, in order to prevent the inadvertent completion of a pickup transaction.

[118] Ms. Fox next deposes that on March 13, 2010, her co-worker, Jenelle Rinkel, asked for her assistance with a customer pickup. At that point, Ms. Fox met with two individuals (subsequently identified as Mihail and Andrei), who indicated they were there to pick up an order under the name “Kofman”. In an effort to “stall” the individuals, she feigned a computer search for the order and told them she could not find it on the Lowe’s pickup screen. On her specific inquiry, the older of the two individuals denied having a receipt or a pickup number in relation to the order. He told her that “Kofman” instructed them to come to the Windsor store and pick up his “stuff”. On her further inquiry, the older of the two individuals indicated that he did not know the specific merchandise that they were picking up.

[119] As she was looking at the computer, the older individual engaged in a telephone conversation in a foreign language with someone she understood to be “Kofman”. Then he handed his phone to her and she spoke directly to the other party, who identified himself as “Kofman”. He told Ms. Fox that he had placed an order over the phone for a washer, dryer, refrigerator, stove, spa, and plumbing “stuff”. She informed “Kofman” that they were unable to locate the order and Lowe’s did not have a receipt or pickup number in relation to it. She said that she would call him back when the order was found. She continued to feign a computer search for information on the order.

[120] Shortly thereafter, the older individual handed her his phone again and for a second time he asked her to speak with “Kofman”, who then repeated the items that he had “purchased” and identified the first names of the Lowe’s employees with whom he had previously dealt, over the phone. Again, she told Kofman that she would call him back when the order was found.

[121] Ms. Fox deposes that the entire time she was attempting to locate the “Kofman order” on the Lowe’s computer system, she was engaged in stalling the two individuals that were present in the store. She was aware that the order was possibly fraudulent and that the police had been notified about the attempted pickup and were on en route.

d) Confirmation that Mihail was One of the Individuals Who Picked Up a Fraudulently Purchased Order from the Belleville Lowe’s Store on March 11, 2010

[122] Mr. Fralick deposes that at approximately noon on March 13, 2010, he and Mr. Findlay engaged in a telephone conversation about the descriptions of the individuals who were at the Windsor store to pick up the Kofman orders and the individuals who Mr. Fralick had observed in the surveillance footage of the pickup of fraudulently purchased merchandise under the name “Kofman” from the Belleville Lowe’s on March 11, 2010. The description of the older individual at the Windsor Lowe’s store, was identified as a possible match with the description of the older individual that Mr. Fralick had observed on the March 11, 2010 Belleville surveillance video. Mr. Findlay also advised Mr. Fralick that the individuals at the Windsor Lowe’s store arrived there in a white cube van and he provided its licence plate number. The vehicle description and plate number matched the vehicle used by the two unknown individuals who picked up the March 11, 2010 Kofman orders at the Belleville store. Mr. Findlay also advised Mr. Fralick that he had received confirmation that the credit cards associated with the purchase of the merchandise that the individuals sought to pick up at the Windsor Lowe’s store were fraudulently used.

[123] Subsequently, Mr. Findlay contacted Mr. Fralick and inquired whether a photograph existed of either of the parties involved in the March 11, 2010 Belleville pickup. Mr. Fralick sent Mr. Findlay a still image of the older of the two individuals from the surveillance video. Mr. Findlay advised Mr. Fralick that the man in the image matched one of the males at the Windsor Lowe’s store.

e) WPS Attendance at the Windsor Lowe’s Location on March 13, 2010

and the Plaintiffs’ Arrest

[124] In her affidavit, PC Khoury deposes that on March 13, 2010, while on patrol she was dispatched to a Lowe’s retail store to respond to what police dispatch described as a “fraud in progress”. She states that she was further advised by police dispatch that two suspects were attempting to pick up over $40,000 worth of merchandise fraudulently purchased with a credit card. In a further update, she was advised by police dispatch, that: the two parties matched the description of perpetrators who had committed a fraud in Belleville; they were picking up an order placed by “David Kofman”; they had arrived in a white cube van; and, they were being stalled by Lowe’s employees.

[125] Upon arrival, PC Khoury was met outside the store by Mr. Findlay who, according to PC Khoury, advised her that: two individuals in the store were attempting to pick up goods ordered over the phone by “David Kofman”; the goods had been fraudulently purchased with credit cards; the goods included high-end furniture and appliances; he had received confirmation from the CIBC that the actual credit cardholders confirmed that they had not authorized or made the subject purchases (or used their cards at a Lowe’s store); Lowe’s had just commenced an investigation on March 12, 2010, after detecting suspicious credit card orders coming from Toronto; and he had made inquiries to the CIBC and was advised by Paul Morgan (a CIBC investigator) that the cards used to purchase the goods that the two individuals were attempting to pick up, together with cards used in certain past purchases from Lowe’s, were done so fraudulently.

[126] Finally, Mr. Findlay advised PC Khoury that in response to an e-mail message he sent to all Lowe’s stores in Ontario about the suspected fraudulent credit card orders, he was contacted by a Lowe’s employee in Belleville, who advised him that a male party had picked up an order at that location placed under the name “Kofman”. A still image of the man taken from video surveillance at the Belleville Lowe’s store, was sent to Mr. Findlay on March 13, 2010. He advised PC Khoury that the image was consistent with the appearance of one of the two men that was currently in the Windsor store, attempting to secure possession of the “Kofman” orders.

[127] While PC Khoury was still outside with Mr. Findlay, she was joined by PC Brnardic who was also dispatched to the call. In his affidavit, PC Brnardic testifies that as he arrived at Lowe’s, PC Khoury and Mr. Findlay were engaged in conversation outside the store. The substance of their prior discussion was summarized for him. The information he received from Mr. Findlay was consistent with a formal statement that he took from Mr. Findlay on March 13, 2010, which is summarized later in these reasons.

[128] When the officers and Mr. Findlay entered the store, Mr. Findlay pointed out the individuals ostensibly picking up the Kofman orders. The officers approached them to further investigate. Mr. Findlay did not. Contrary to Mihail’s evidence, which is detailed later below, PC Khoury does not recall Mihail talking on a phone as she approached him. She has no recollection of either Mihail or Andrei handing her a telephone. She is certain that she did not speak to “Kofman” over the phone for a minute or so, as Mihail otherwise suggests in his affidavit adduced in opposition to the defendants’ motions. PC Khoury states that if she had spoken to “Kofman” over the phone, she would have recorded that event in her notes. She did not.

[129] In response to PC Khoury’s specific inquiries, Mihail and Andrei denied any involvement with stolen goods and they denied knowing that the goods they were attempting to pick up had ostensibly been purchased through the fraudulent use of credit cards. They advised her that: Mihail operated a moving company; “Kofman” was a customer who found them because Mihail advertised in Russian language newspapers; they had been hired by Kofman to drive from Toronto to the Windsor Lowe’s in order to pick up an order and to transport it back to Toronto. On specific inquiry, they confirmed that they did not receive any paperwork from Kofman. Instead, they were directed to provide Kofman’s name when they arrived and the order would be on the computer. They admitted that they were picking up the order for Kofman and they stated that they did not specifically know what items they were picking up. They were supposed to be paid $700 to drop off the goods at what PC Khoury details as a “vaguely described designated meeting place in Toronto”.

[130] In her narrative report, prepared on March 13, 2010, PC Khoury, identified the individuals that she spoke to as Andrei Kolasau and his father Mihail Kolosov. Andrei spoke accented English and Mihail spoke broken English. Andrei served as a translator when they spoke. In addition to the information set out above, Andrei confirmed that he and Mihail had previously picked up merchandise for Kofman, from the Belleville Lowe’s store.

[131] After PC Khoury spoke to Andrei and Mihail, she viewed the still image from the surveillance footage of the March 11, 2010 Belleville pick up of merchandise associated with fraudulently purchased Kofman orders. Mihail matched the individual in the image.

[132] As a result of information she received from Mr. Findlay, Mihail, and Andrei, PC Khoury concluded that she had reasonable and probable grounds to arrest Mihail and Andrei and proceeded to do so, for “fraud over $5,000”. She read them their rights to counsel and caution. Mihail indicated in English that he understood his rights. Nonetheless, PC Khoury had Andrei translate her caution and right to counsel information in the Russian language, in order to ensure that Mihail understood his rights. When asked if they wanted to speak to a lawyer, Mihail and Andrei indicated they did not have one. PC Khoury explained that there would be a list of lawyers in the cell block at the WPS headquarters and they could call anyone that they wanted. She also explained the 1-800 Legal Aid numbers to them twice, post-arrest.

[133] Eventually, the WPS transportation unit arrived and brought Mihail and Andrei to WPS headquarters. PC Khoury had no further contact with them. She arranged to have their cube van towed from the scene. She requested PC Brnardic take a formal statement from Mr. Findlay and she returned to WPS headquarters to complete her report. While at headquarters, she personally spoke with CIBC investigator Paul Morgan who confirmed that the owners of the credit cards used to make the purchases at the Windsor Lowe’s location had not, in fact, authorized or made the purchases in question.

[134] PC Khoury’s report reiterates the content of her conversation with Mihail and Andrei at the Windsor Lowe’s location, including: their denial that they were involved with stolen goods; their denial that they knew the goods they were picking up were purchased fraudulently with credit cards; and their advice that they did not even know what they were picking up on March 13, 2010, until someone at the store contacted Kofman about the order.

[135] PC Brnardic was present for portions of PC Khoury’s discussion with Mihail and Andrei in the Windsor Lowe’s store. He also spoke to Mr. Findlay at some point during that process. He recalled that Mihail and Andrei stated that they owned a moving company and they published advertisements in a local Russian newspaper, as a result of which they were contacted by Kofman. Kofman retained them to pick up merchandise from the Lowe’s store in Windsor. Mihail and Andrei advised officers that they had previously picked-up merchandise for Kofman from the Belleville store and, thereafter, they delivered the merchandise to a location in Toronto that was not an actual address. As at the time that they were at the Windsor Lowe’s store, Mihail and Andrei still did not know where they were going to deliver the Kofman ordered merchandise after they took possession of it in Windsor. Instead, after they picked up the merchandise, they were supposed to be provided with the specific location for delivery, which would be somewhere in the GTA. He vaguely recalls Mihail and Andrei offering to let the officers follow them to the yet to be determined drop-off location in Toronto, once it was disclosed. In that regard, PC Brnardic testifies that even if he believed such action would have held any investigatory value, pursuant to the terms of WPS Directive #782-07, “Use of Agents”, it was not an investigatory technique that the officers could have engaged in, in the circumstances.

[136] Although PC Khoury was the lead officer on the call and the arresting officer, PC Brnardic felt there were reasonable and probable grounds to arrest Mihail and Andrei and he had no concern about the existence of PC Khoury’s grounds to do so. After the arrests were made, he was tasked with taking a statement from Mr. Findlay and waiting for Mihail’s cube van to be towed. After he completed those tasks, he had nothing further to do with this matter, and no further involvement with the plaintiffs.

f) The Immediate Post-Arrest Activities of the WPS

[137] PC Khoury submitted her report on the afternoon of March 13, 2010, after which it would have been reviewed by her Sergeant who had the authority to withdraw the charges against Mihail and Andrei if he felt that adequate grounds did not exist. Then her report would have been referred to a Detective in the “general investigations branch”, which also had the authority to withdraw the charges if there was an absence of reasonable and probable grounds. The charges were not withdrawn at that time.

[138] PC Khoury’s March 13, 2010 report which, in part, informed DC McCann’s post-arrest investigation, discloses among other things:

a) the identity of Mihail and Andrei as the persons arrested;

b) three further suspects, namely “David Kofman”, “Mark Levi”, and “Joseph Lachman”, with identified phone numbers associated with each of those individuals;

c) Mihail and Andrei were arrested for fraud over $5,000;

d) specified particulars of three orders that had previously been placed and picked up at the Windsor Lowe’s, which included: the specific credit card information used to purchase the goods; the value of goods purchased; that name “Joseph Lachman” was used when the orders were placed; and the date the orders were picked up (March 11, 2010);

f) that the “identity of the parties who picked up orders on March 11, 2010 remained unknown, and video surveillance was to be forwarded by Lowe’s to the WPS Fraud Unit when available”;

g) the specific particulars of six other orders that had been placed through the fraudulent use of credit card information at the Windsor Lowe’s store and that had not yet been picked up including: the credit card numbers used to purchase the goods; the value of merchandise associated with each of the six orders; the date each of the orders were placed; the names under which the orders were placed, namely four orders placed under “David Kofman” and two orders placed under “Mark Levi”;

h) that the total value of Lowe’s loss resulting from the March 11, 2010 pickups was $10,790.14;

i) that the total value of Lowe’s potential loss from the attempted March 13, 2010 pickup was $20,563.65;

j) that the total value of Lowe’s potential loss from the remaining orders that had been placed but were still awaiting pickup was $20,538.79;

k) a narrative summary of her involvement in the matter, which is consistent with the evidence she deposed to in her affidavit; her summary also included the substance of her post-arrest conversation with CIBC investigator Morgan, who confirmed that the owners of the credit cards associated with the fraudulent purchases had not made them;

l) Andrei and Mihail were both negative on CPIC and had no local contacts;

m) a copy of Mr. Findlay’s statement together with particularized credit card information provided by Lowe’s and CIBC.

[139] The statement taken from Mr. Findlay by PC Brnardic on March 13, 2010, and disclosed to Mihail and Andrei’s criminal counsel on March 16, 2010, which also informed DC McCann’s post-arrest investigation, contained the following information:

a) the details of Mr. Findlay’s March 12, 2010 detection of suspicious credit card phone orders placed through the Lowe’s Windsor store from individuals in Toronto and his subsequent confirmation from associated issuing financial institutions that the information provided to Lowe’s by the person(s) placing the orders did not match the actual cardholders’ information, respectively;

b) there were a total of nine credit cards used in the suspicious transactions, by three names placing very large orders out of Toronto, specifically “Mark Levi”, “David Kofman”, and “Joseph Lachman”. The value of the merchandise associated with the nine orders totalled in excess of $40,000;

c) two individuals attended the Windsor Lowe’s location on March 13, 2010 to pick up an order previously placed by “Kofman” which had a note associated with it warning employees it was a potential fraudulent order;

d) Lowe’s employees contacted a fraud investigator at the CIBC, who confirmed that the owners of all three credit cards used for the March 13, 2010 Kofman orders confirmed that they did not make any purchases at Lowe’s;

e) after receiving the foregoing information from the CIBC, Findlay contacted police;

f) On March 12, 2010, Findlay sent an e-mail to all Lowe’s stores advising of the potential fraudulent orders placed over the phone with “bad credit cards” and the names associated with the potential fraudulent orders placed through the Windsor Lowe’s store;

g) in response, he was contacted by Andrew Fralick, the Loss Prevention and Safety Manager at the Belleville Lowe’s store who advised that they had received orders under the name “Gery or David Kofman”;

h) Mr. Findlay provided Mr. Fralick with a description of the individuals attempting to pick up the Windsor orders on March 13, 2010. Mr. Fralick advised him that his description of one of the individuals was similar to the description of a male who had picked up a Kofman order at the Belleville Lowe’s store on March 11, 2010. Mr. Findlay subsequently received a picture of the individual and identified him as one of the individuals attempting to pick up the Kofman orders from the Windsor Lowe’s store on March 13, 2010;

i) on March 11, 2010 (before the suspected credit card fraud was discovered), two unidentified males attended the Windsor Lowe’s location and picked up orders of high-end merchandise under the names “Kofman” and “Lachman” with a total value over $10,000;

j) all parties were captured on store security cameras.

[140] After their arrest, Mihail and Andrei were brought to Windsor Police headquarters and charged on March 13, 2010 with a single count of attempt to defraud Lowe’s of merchandise of a value exceeding $5,000, contrary to s. 463(b) of the Code.

[141] Later, on March 13, 2010, WPS Det. Verkoeyen prepared a charge summary document in respect of Mihail and Andrei in which he describes: the suspicious credit card activity at Lowe’s; the circumstances leading to Andrei and Mihail’s arrest; similar incidents at another Lowe’s location; Andrei and Mihail’s lack of a criminal record; and their residence in Toronto. He indicated further investigation was required and he requested that Andrei and Mihail be held for 72 hours.

[142] By March 16, 2010, Andrei and Mihail had retained J.J. Avery as their criminal counsel. She immediately requested disclosure. In response, she was provided with an initial disclosure package on March 16, 2010 that included, among other things: PC Khoury’s March 13, 2010 report; Mr. Findlay’s police statement; Det. Verkoeyen’s charge summary; a handwritten sheet particularizing various orders placed with the Windsor Lowe’s store through the names Levi, Kofman and Lachman, together with associated credit card numbers, dates, amounts involved in the transaction, and identification of which transactions were reversed; various Lowe’s “loading tickets” associated with subject orders that had been successfully picked up from the Windsor Lowe’s; and copies of the relevant portions of PC Khoury and PC Brnardic’s notebooks. The particulars of all of the Windsor Lowe’s transactions made under the pseudonyms Levi, Kofman and Lachman are clearly set out in the content of the disclosure provided to Mihail and Andrei’s counsel on March 16, 2010.

g) The Plaintiffs’ Evidence on the Motions for Summary Judgment – Background

[143] In response to the motions for summary judgment, the plaintiffs have delivered an affidavit sworn by Andrei on September 6, 2017, an affidavit ostensibly sworn by Mihail on September 6, 2017 (the jurat does not indicate the date upon which the affidavit was sworn), and Ms. Avery’s affidavit sworn August 31, 2017. As I have previously indicated, I have difficulty with several portions of Ms. Avery’s affidavit, which I have struck. Nonetheless, each of Mihail, Andrei and Ms. Avery were cross-examined on their respective affidavits, and portions of Mihail and Andrei’s Examination for Discovery evidence was filed and relied upon by the moving parties.

[144] The combined evidence of Mihail and Andrei discloses the following narrative. In 2006, Mihail, Alena, and their two sons, Andrei and Alexei, immigrated to Canada from Belorussia (“Belarus”). After arriving in Canada, the family settled in the GTA, where Mihail operated a small moving business with the use of a full-sized white cube van.

[145] In 2010, Mihail and Alena spoke very little English. They are fluent in Russian. Andrei, who was a highschool student at the time, spoke fluent English, albeit with an accent. Mihail often advertised his business in Russian language newspapers circulated in the GTA and a significant number of his clients spoke Russian. In the ordinary course of his business, Mihail received customer instructions over the phone to move products and, at times, to pick up merchandise from large retail stores and thereafter, to deliver the goods to a location specified by the customer. He was typically paid in cash for his services. In cross-examination, Mihail confirms that when he picked up customer orders at retail stores, he was almost never asked to show identification or to sign any form of documentation.

[146] In the course of his business, Mihail has never assisted customers in paying for or procuring the goods that he was asked to move. The goods were always purchased in advance of pickup. Mihail only attended retail stores to receive the goods and transport them to the locations specified by his clients.

[147] From time to time, both Andrei and Alexei assisted Mihail in his business. During cross-examination, Andrei confirms that prior to March 2010, his efforts in that regard were “probably” limited to one instance when he helped move a chair. He continued to periodically provide assistance to his father after March 2010.

h) The Plaintiff’s Dealings with “Kofman” and “Lachman”

(i) Mihail’s Evidence

[148] In his affidavit, Mihail deposes to receiving telephone calls from “Kofman” or individuals who claimed they worked for “Kofman”, in March 2010. He was advised over the phone that “Kofman” was a contractor who was building a house and he needed assistance in transporting certain merchandise that had already been purchased. “Kofman”, or his employees, retained Mihail, over the phone, to travel from Toronto to a Lowe’s store in Belleville and later a Lowe’s store in Windsor, to pick up goods and move them to a location that was ultimately determined by “Kofman”.

[149] Mihail further testifies that in accordance with the instructions he received from Kofman or Kofman’s employees, he left Toronto and attended the Lowe’s store in Belleville on two occasions, specifically March 10 and 11, 2010. On March 10, 2010, he was accompanied by Andrei. On March 11, 2010, he was accompanied by Alexei.

[150] After obtaining the Kofman merchandise from the Belleville Lowe’s store on March 10, 2010, Mihail and Andrei travelled back to Toronto. In accordance with Kofman’s (or Kofman employee’s) prior instructions, he called “Kofman” on his way back to Toronto and advised him that he had successfully picked up the merchandise. Kofman had not yet provided Mihail with a delivery address, so he asked where he should deliver the merchandise. He was instructed to make the delivery to 120 Torresdale in the City of Toronto.

[151] As it turns out, the specified delivery location was a cul-de-sac at the end of a dead-end street. Mihail deposes that he was familiar with that area because it is next to a popular park (“G. Ross Lord Park”) and it is in front of a large apartment building. Kofman advised him that he would send two employees to meet him at that location to take delivery of the goods.

[152] Mihail found it strange that Kofman wanted the goods delivered on the street. Mihail was accustomed to delivering goods to a physical premises and he often assisted his customers by bringing their goods into the premises to which they were delivered. When Kofman provided him with the delivery location, Mihail, who apparently knew that the address was a dead-end, asked him why he wanted the goods delivered to a street. Kofman advised him that the house he was building had to be completed before the goods could be delivered to that location. As a result, it was more convenient for Kofman’s employees to meet Mihail on Torresdale. Since Mihail already had Kofman’s merchandise in his truck, he believed he had no choice other than to deliver it to the location that he was provided. He testifies that he did not give the matter much more thought.

[153] In the context of their respective motions, the WPS defendants and the Lowe’s defendants rely on excerpts from Mihail’s Examination for Discovery, in which he testifies about the foregoing events in somewhat more detail. Specifically, he testified that on March 9, 2010, he received a telephone call from an individual who identified himself as “Kofman”. He could not recall if he specifically interacted with individuals holding themselves out as either Lachman or Levi. Kofman retained Mihail, over the phone, to attend a Lowe’s location in Belleville on March 10, 2010 to pick up merchandise. Mihail was not provided with the specifics of the merchandise to be picked up, other than that it had already been purchased. Kofman said he was building a house, they had to finish construction, and those items had to be delivered.

[154] Mihail and Andrei, who was on a school break, drove from Toronto to the Belleville Lowe’s location on March 10, 2010. When they arrived, they attended at the customer service desk and obtained what other evidence indicates, was merchandise with a total value of $5,678.47 (which was the subject of two separate purchase orders – one for a number of lights and another for a washer and dryer). The merchandise was loaded into Mihail’s vehicle, and he and Andrei returned to Toronto. Mihail did not know the location to which the merchandise was to be delivered. As they neared the GTA, they received instructions from Kofman over the phone, to deliver the goods to a location specified as 120 Torresdale, which brought them to the end of a dead end street situated in relatively close proximity to Mihail’s own residence (about 200 metres away).

[155] Mihail and Andrei arrived at the drop-off location, at approximately 7:00 p.m. It was dark out. The Lowe’s merchandise was then transferred on the street from Mihail’s cube van to a second vehicle. The transfer occurred quickly and some of the merchandise was transferred from Mihail’s truck directly onto the road before the second vehicle arrived. Mihail testifies that he did not know the individual that operated the second vehicle, who only identified himself as “Vitale”. When Vitale arrived at the transfer location, he passed a phone to Mihail, who was then instructed to give Vitale the Lowe’s merchandise. Mihail complied and was paid $400 in cash. Mihail did not provide anyone with a receipt for his services and no paperwork was exchanged on delivery.

[156] Curiously, despite Mihail’s recollection that he dealt with “Kofman” on March 9 and 10, 2010, and that he picked up orders under the name “Kofman” on those dates, Lowe’s documentation evidences that the orders that Mihail picked up on March 10, 2010 were placed and held by Lowe’s under the name “Lachman”, not “Kofman”.

[157] In his affidavit, Mihail, testifies that he returned to the Belleville Lowe’s location from Toronto on March 11, 2010, again on the instruction of Kofman and accompanied by his son Alexei. He picked up merchandise for Kofman and on their return to Toronto he called Kofman to determine the drop-off location for the merchandise. Kofman again instructed him to drop off the merchandise at the cul-de-sac dead-end of Torresdale. In his cross-examination, Mihail states that on March 11, 2010, he received information that the people picking up the merchandise from him would be late. Accordingly, he sent Alexei home and waited for them alone. The merchandise was then delivered to the back of a second vehicle at the dead-end of Torresdale, late in the evening on March 11, 2010.

[158] During his Examination for Discovery, Michail testified to these events in somewhat more detail. Specifically, on March 10 or 11, 2010, he received a telephone call from “David Kofman”, who retained him to attend at the Belleville Lowe’s location to pick up merchandise held under his name that had already been purchased. On March 11, 2010, Mihail and Alexei drove from Toronto to the Belleville Lowe’s store, where either Mihail or Alexei told a Lowe’s employee that they were there to pick up an order for Kofman. They were provided with merchandise that included a shower panel, furniture, an antique mirror, and a Weber barbeque, among other things. The items were loaded into Mihail’s cube van by Lowe’s employees.

[159] Mihail and Alexei transported the merchandise from Belleville to the GTA where they delivered it to the same location to which Mihail had delivered merchandise the previous day. Once there, the merchandise was transferred on the street, to the back of a second vehicle, and received by the same individuals as those who received the merchandise on March 10, 2010. No paperwork was exchanged on the delivery and Mihail was paid in cash.

[160] In his affidavit, Mihail testifies that he has no recollection of ever signing any documentation prior to receiving merchandise from the Belleville Lowe’s. He states that Lowe’s employees did not request any identification from him on either March 10 or 11, 2010, nor did they request his name or address. However, in cross-examination, Mihail confirmed an aspect of the evidence he gave at his Examination for Discovery, namely that the signature on a loading ticket from the Belleville Lowe’s location, dated March 10, 2010, relating to merchandise ordered by “Mark Lachman” appeared to be [his] signature.

[161] During his cross-examination, Mihail further confirmed that he was also retained by a customer who called himself “Cofman” (different spelling than the Kofman that ostensibly retained Mihail a few days later) on March 6, 2010 (before the subject Belleville Lowe’s pickups), in order to pick up previously purchased merchandise at a retail store in Barrie, Ontario. On that day, Mihail and his son Alexei had moved the household contents of a female customer from Toronto to a residence in Barrie. Mihail testified in cross-examination that while he was still in Barrie, he received telephone calls from a “Gery Cofman” who retained him over the phone to attend at a retail location in Barrie known as “End of the Roll” to pick up unspecified merchandise that had previously been purchased. Mihail agreed. He and Alexei subsequently attended the store. Mihail did not know what he was picking up. He called Cofman and advised him that he had arrived at the store. He then advised staff that he was picking up Cofman’s order. He recalls that he was not asked to show any identification and he “probably” did not sign anything when he picked up the merchandise. He did not expect that he would be required to show identification because he is “almost never asked to do so” when he engages in retail pickups.

[162] As Mihail and Alexei returned to Toronto with the merchandise on March 6, 2010, Mihail contacted Cofman to obtain a delivery address. Cofman was not able to take delivery of the goods that day and asked that they be stored in Mihail’s truck. Ultimately, the goods were picked up from Mihail a day or two days later and he was paid in cash.

[163] Despite Mihail’s evidence that he was already in Barrie when he was first contacted by Cofman, his phone records, which have been adduced in evidence on the motions, indicate that it was Mihail that called the number he identified as “Cofman’s number” four times on March 6, 2010: once from Toronto at 1:30 p.m. and three times from Barrie between 4:40 and 4:45 p.m. Coincidentally, the same phone number that Mihail called on March 6, 2010 was provided to PC Khoury and PC Brnardic by Mr. Findlay on March 13, 2010. Mr. Findlay identified the phone number as being associated with the fraudulent credit card orders placed by “Joseph Lachman” through the Windsor Lowe’s location.

(ii) Andrei’s Evidence Concerning the Belleville Lowe’s Pickup on March 10, 2010

[164] In his affidavit, Andrei confirms that he attended with his father at the Belleville Lowe’s location on March 10, 2010. On arrival, they went to the customer service desk, where Mihail advised a Lowe’s employee that he was there to pick up goods that were already purchased. Mihail then called “Kofman” and handed the phone to the clerk. Andrei states that Lowe’s employees did not ask either him or Mihail to produce identification or credit cards, nor did they request their names, addresses or their relationship to the customer that placed the order. Andrei did not sign any documents or loading tickets provided by Lowe’s. Eventually, merchandise was brought out and loaded into Mihail’s cube van by Lowe’s employees. Mihail and Andrei left Lowe’s and Mihail called Kofman to ask where he wanted the goods delivered. Kofman instructed him to bring them to 120 Torresdale, which Andrei describes as an area next to a popular park and immediately in front of a large apartment building.

[165] Andrei appends to his affidavit a series of Google Street View images of the subject portion of Torresdale and its surrounding areas that were taken in daylight conditions. The images depict an apartment building in the general vicinity of the paved surface of the Torresdale cul-de-sac, although the two are separated by a sidewalk, a grassed area, a relatively densely treed berm, a further grass area, a chain link fence, and the apartment building’s large paved parking area. Treed parkland lies to the other side of Torresdale. In cross-examination, Mihail confirms that a cemetery is also located adjacent to the area of Torresdale where the vehicle to vehicle merchandise transfers took place on March 10 and 11, 2010. Mihail’s residence was located approximately 200 metres away from the drop-off point designated by Kofman.

[166] In his affidavit, Andrei testifies that on March 10, 2010, he and Mihail travelled to the drop-off location assigned by Kofman. Another truck pulled up and two individuals exited and stated that Kofman had sent them. They loaded the Lowe’s merchandise into their truck and paid Mihail $400 in cash. Mihail and Andrei then returned home.

i) The Plaintiffs’ Evidence About the Events of March 13, 2010

(i) Mihail’s Evidence

[167] In his affidavit, Mihail testifies that he and Andrei attended the Lowe’s store in Windsor on March 13, 2010, to pick up more merchandise for Kofman. Once there, they spoke with a customer service representative, with Andrei acting as a translator. They indicated that they were there to pick up an order for “Kofman”. Mihail called Kofman on his cell phone and eventually handed it to the Lowe’s representative. She briefly spoke to Kofman in English. Mihail did not understand what she said. Andrei told Mihail that the Lowe’s representative said they needed to wait for about 20 minutes. During that time, Mihail and Andrei browsed the store and then returned to the customer service representative and inquired about the delay. She advised them that she was having difficulty finding the order. Mihail called Kofman again and provided his phone to the customer service representative so that she could speak with Kofman and clear up any confusion. At approximately the same time, they were approached by two police officers.

[168] A female officer asked them what they were doing at Lowe’s. Mihail testifies that he took his phone back from the Lowe’s representative and handed it to the female police officer, while also advising her that the owner of the goods was on the phone. He expected that Kofman would confirm that he had hired Mihail to pick up and deliver the merchandise that he purchased. The female officer engaged in a brief conversation with Kofman. Mihail is uncertain what the officer said. The officer then returned his phone to him.

[169] On request, Mihail and Andrei provided the female officer with their identification. In response to her inquiry, they, through Andrei, informed her that: they operated a moving company; they advertised in local Russian newspapers in Toronto; and they had been hired by the owner of the goods to transport them back to Toronto for delivery. The officer inquired about the location where the goods were to be delivered. Through Andrei, they advised her that they did not yet have a delivery address. Instead, they were supposed to call Kofman after they received the goods, who would then provide delivery instructions.

(ii) Andrei’s Evidence

[170] In his affidavit, Andrei testifies that he was advised by Mihail and he believes that Kofman called Mihail on March 12 or 13, 2010, and retained him to travel from Toronto to the Windsor Lowe’s store, in order to pick up pre-purchased merchandise at that location. They negotiated a price and Mihail agreed.

[171] On March 13, 2010, Andrei accompanied Mihail to Windsor from Toronto. When they arrived at the Windsor Lowe’s store, they attended at the customer service desk and reported that they were there to pick up an order for “Kofman”. After several attempts, the Lowe’s employee advised them that she could not find the order. Mihail called Kofman and handed his cell phone to the Lowe’s employee. She spoke briefly with Kofman and hung up. She told them that she would try to find the order and asked Mihail and Andrei to wait. After a short time, they attended at the customer service desk again and were advised that the order still could not be located. Mihail called Kofman a second time and handed his phone to the employee. She spoke with Kofman and again stated that she could not find the order. She requested a receipt or a pickup number for the order, which Mihail and Andrei did not have.

[172] Police arrived while the customer service representative was on the phone with Kofman. Two officers approached Mihail and Andrei and asked for their identification, which they provided. A female police officer questioned them about their purpose for attending at the store. Andrei translated for Mihail. He informed the officers that: his father operated a moving company; they advertised in Russian newspapers; and they had been hired to pick up an order and deliver it to Toronto. The female officer asked for their paperwork in that regard. Andrei advised her that the customer did not provide them with any documents or paperwork. Instead, they were instructed to attend at the store and provide the customer’s name and phone number. Andrei further volunteered that the same customer had previously retained Mihail to pick up an order in Belleville, using the same method, and they had no issues doing so. The female officer continued to ask questions about the order and how it was purchased. Andrei advised her that they were not involved in placing the order and that Kofman was responsible for its purchase and payment.

[173] Andrei also suggested that police follow them back to the drop-off location in Toronto once specified and question Kofman directly. Police declined to do so. Andrei testifies that the female officer “suggested” that Mihail and Andrei attend at the police station so they could “talk to detectives”. Andrei testifies that he was under the impression that he and his father needed to go to the police station and clear up any misunderstandings, and after doing so they would be free to go.

[174] At all times, Mihail and Andrei denied any involvement with the stolen goods and stated that they did not know that the goods that they had picked up and the goods that they were attempting to pick up, were fraudulently purchased.

[175] The female police officer handcuffed Andrei and Mihail and told them that they “had to go speak with detectives”. Andrei asserts that he did not know that he had been charged with attempted fraud exceeding $5,000 until he was advised of that fact several days later by his criminal defence counsel. He does not recall whether he was provided with his rights at the time he was handcuffed.

[176] Andrei testifies that after they arrived at the police station, he and Mihail eventually participated in a remote remand hearing, which is when he realized they were going to be incarcerated. Until that point, he thought that once the detectives arrived, he could explain what happened and clear up the misunderstanding. Andrei and Mihail were never interviewed by detectives.

[177] At his Examination for Discovery, Andrei testified that during initial police questioning at the Windsor Lowe’s location, a Lowe’s customer service representative was talking to Kofman on Mihail’s phone. Andrei did not ask for the opportunity to speak to Kofman in the presence of police to confirm, for their benefit, that Kofman had placed the order.

[178] Further, in his affidavit, Andrei does not depose that PC Khoury spoke with Kofman on Mihail’s cell phone. During the course of his cross-examination, Andrei adopted the evidence that he gave at his Examination for Discovery in which he testified that he “did not know why the police did not pick up [Mihail’s] phone and speak with their client.” In my view, this evidence supports PC Khoury’s evidence that she did not speak to Kofman on Mihail’s phone (or at all). That proposition finds further support in the evidence of Carrie Fox on her cross-examination, in which she confirms that her second March 13, 2010 call with Kofman was completed before the WPS officers initially interacted with Mihail and Andrei.

j) The Plaintiffs’ Post-Arrest Detention

[179] Subsequent to their arrest, Mihail and Andrei were initially held in custody at the detention centre in Windsor pending further investigation. Unfortunately, Alena was visiting in Belarus at the time. With Alena out of the country, Mihail and Andrei were unable to post the cash deposits necessary to secure their judicial interim release. On news of their arrests, Alena returned to Canada but was unable to secure a return flight until April 2, 2010. After she returned, she borrowed $4,000 in cash, which was deposited with the bailiff on April 9, 2010 (a $2,000 deposit for each accused), in order to secure Andrei and Mihail’s release. Andrei and Mihail were released on bail conditions on April 10, 2010 and almost immediately thereafter, they were arrested by the BPS’ PC Ling pursuant to valid arrest warrants, on charges laid by the BPS. They were transported to Belleville, held in custody for a show cause hearing, and were eventually released on bail, two days later.

[180] The evidence with respect to Mihail and Andrei’s relatively prolonged period of pre-trial custody is somewhat murky. In cross-examination, Ms. Avery indicates that she appeared as an agent for Mihail and Andrei at a March 15, 2010 court appearance, and she was formally retained by them on March 16, 2010. The Crown requested a show cause hearing.

[181] In his evidence, former Assistant Crown Attorney Mr. Cornett testifies that the plaintiffs’ bail hearing was adjourned a number of times at Ms. Avery’s request. She unsuccessfully engaged in efforts to have Mihail and Andrei released prior to April 9, 2010, by engaging in bail condition negotiations with the Crown. The Crown insisted that cash deposits had to be made in respect of the accuseds in the total amount of $5,000. Ultimately, on behalf of the accuseds, Ms. Avery agreed to terms of a recognizance for each of them that required a $2,000 deposit ($4,000 total). Funding the deposits was problematic because Alena was out of the country and Alexei had no money.

[182] There were also difficulties in identifying adequate sureties. Ms. Avery intended to meet with Alexei in Windsor to discuss his suitability as a surety, but he ultimately did not attend their planned meeting. Ms. Avery does not know if Alexei had a criminal record at the time or not. As of April 1, 2010, Ms. Avery was still investigating possible sureties, having left messages with four potential sureties on March 18, 2010. As of April 3, 2010, she was aware that the BPS intended to arrest Mihail and Andrei once they were released from custody in Windsor.

k) The WPS Post-Arrest Investigation

[183] After arresting Mihail and Andrei, PC Khoury contacted CIBC fraud investigator Morgan, directly and confirmed that the three Kofman orders that Mihail and Andrei attempted to pick up on March 13, 2010, were purchased through the fraudulent use of credit card information. The matter was then transferred to the WPS Financial Crimes/Fraud Unit for further investigation and, as of March 15, 2010, DC McCann was assigned to do so. He was investigating two other substantial fraud cases at that time and, as a result, he did not begin active investigation of the charges against the plaintiffs until March 17, 2010.

[184] At his Examination for Discovery, DC McCann testified that had Mihail and Andrei been arrested on March 15, 2010, he would have attempted to conduct video recorded interviews of them that day. However, by the time he was assigned to the investigation, they had already been taken to the “county jail”. He did not attempt to interview them thereafter. He explains that as of 2010, the jail facility did not have the necessary equipment on its premises to video record suspect interviews, so DC McCann would not have been able to interview them there. Instead, in order to interview the plaintiffs, a judicial order would have been required to remand them to police custody from the custody of the jail. Further, DC McCann had no indication that Andrei and Mihail wanted to talk to him. He was aware that the plaintiffs had retained criminal counsel. He did not receive any indication from their counsel that the plaintiffs wanted to talk to him. He agrees that had Andrei and Mihail (or their counsel) requested an opportunity to talk to him, he would have done so, but he was never made aware of such a request. In her evidence on this motion, Ms. Avery does not indicate that she requested that either the WPS or the Windsor Crown facilitate a police interview of the plaintiffs.

[185] In detailing the events of his investigation, DC McCann testifies that on March 17, 2010, he received a telephone message from Casey Findlay indicating that the Lowe’s Sudbury location “got hit” for $12,000 in appliances. The person that ostensibly made the impugned Sudbury purchase was “Merrick Swalowski”. The Sudbury transaction was determined to be “unrelated” to the subject matter of the WPS investigation.

[186] DC McCann also received a separate telephone message from Mr. Findlay on March 17, 2010, in which he provided the telephone number associated with the pseudonym “Joseph Lachman”, that was used to place certain of the fraudulent orders. DC McCann subsequently determined that all of the phone numbers used to place the fraudulently purchased Lowe’s orders, including the above referred number, were associated with “pay as you go” Fido phones. He personally called each of the telephone numbers that had been provided by Lowe’s, including those identified in PC Khoury’s report, and confirmed that they were “dead numbers”. During his Examination for Discovery, DC McCann testified that “pay as you go” numbers cannot be tracked to a specific individual. In his experience, “pay as you go phones” that are used in association with the commission of financial crimes typically remain operable “until the offenders realize that the police are onto the compromised cards...and at the same time those compromised cards don’t get used anymore either”.

[187] On March 17, 2010, DC McCann also received a telephone call from Alexei Kolosov. In response to Alexei’s inquiries about Mihail and Andrei’s incarceration, DC McCann explained the nature of the Lowe’s frauds, and specifically that Andrei and Mihail were picking up appliances that were purchased on stolen credit cards. Alexei told him that Mihail and Andrei were just “movers for other people”. Alexei acknowledged his own involvement in one of the Belleville pickups and stated that he did not know who his father’s customer was in relation to that pickup. He advised DC McCann that his father delivered the merchandise to the customer the morning after they picked it up from the Belleville Lowe’s, but he did not know where it was delivered. However, during his evidence in cross-examination, Mihail expressly rejected the suggestion that he delivered the merchandise he picked up from Lowe’s on March 11, 2010, the following morning. Instead, he is clear that he delivered that merchandise to another vehicle at the dead end of Torresdale, late in the evening on March 11, 2010.

[188] During his conversation with Alexei, DC McCann confirmed Alexei’s willingness to act as a surety for his father and brother. Alexei also confirmed that he would attend Mihail and Andrei’s bail hearing scheduled in Windsor on March 19, 2010. Ultimately, he did not.

[189] DC McCann also spoke with DC Josefik of the BPS on March 17, 2010. During their conversation, DC Josefik advised him that he intended to charge Mihail and Andrei with possession of property obtained by crime, in relation to the orders that they picked up from the Belleville Lowe’s location on March 10, 2010. DC Josefik also indicated that he would send officers to Windsor to arrest Mihail and Andrei in respect of that charge on March 19, 2010 (the date of Andrei and Mihail’s scheduled bail hearing).

[190] On March 18, 2010, DC McCann was advised by DC Josefik that he was assigned to a murder or attempted murder investigation late on March 17, 2010 and, as a result, he was placing the BPS Kolosov investigation on hold. DC Josefik confirmed that he now intended to charge Mihail, Andrei and Alexei the following week.

[191] Alexei did not attend in Windsor on March 19, 2010. Mihail and Andrei were not released. On March 23, 2010, DC McCann spoke to Alexei again regarding bail for Mihail and Andrei. Alexei advised him that his mother was in Belarus and would not arrive in Canada until April 2, 2010.

[192] On April 9, 2010, DC McCann received immigration information with respect to the Kolosov family. On April 10, 2010, the Kolosovs were released from custody in Windsor. They were immediately arrested by a member of the BPS and transferred to Belleville.

[193] On May 13, 2010, DC McCann received a “Crown follow-up request” in relation to the charges against Mihail and Andrei, stating:

“Det McCann the crown is requesting the following:

This investigation is no where near complete

1. are names of accused spelled correctly?

2. did we get video surveillance to determine id of party picking up orders March 11, 2010?

3. do we have statements from the cardholders?

4. Pc Khoury’s report refers to 2 orders placed under the name “Mark Levi” – who’s card was used?

5. where are the invoices for the orders from March 13? i.e.: the ones alleged in the attempt found [sic] charged?

[194] Through his same day response to the Crown’s inquiries, it appears that DC McCann’s investigation to date was more robust than the foregoing evidence suggests. Specifically, DC McCann agreed that the investigation was not complete and confirmed that was the reason he was assigned to follow it up, but he also explained that “information is not received quickly when dealing with financial institutions, so unfortunately I am at their mercy.” DC McCann then responded to each of the questions posed to him, generally, as follows:

a) he advised the Crown that Andrei’s surname is “Kolasau”, which he confirmed both through Alexei and through CPIC and immigration inquiries;

b) he confirmed that on May 3, 2010, he received a copy of the video surveillance of the March 11, 2010 pickup of the Kofman orders in Windsor. He reviewed the video and confirmed that the individuals who picked up the orders on that date were not Mihail and Andrei and as of May 13, 2010, the identity of those individuals remained unknown;

c) he advised that the financial institutions associated with the credit cards used in the fraud would not provide him with cardholder contact information directly. Instead, the financial institutions contacted all of the cardholders affected by the fraudulent Windsor Lowe’s orders and requested that they contact DC McCann personally. As of May 13, 2010, he had been contacted by four cardholders and he obtained statements from each of them, which he included in his response to the Crown;

d) he confirmed the identity of the specific cardholder whose information was used in relation to the Levi orders. He had already obtained a statement from that individual, which he provided to the Crown;

e) the receipts for the property that Mihail and Andrei attempted to pick up on March 13, 2010 had been copied, and the originals were stored in the WPS property retention.

[195] DC McCann’s supplemental report in response to the Crown’s inquiry was contemporaneously provided to Ms. Avery, as continuing disclosure.

[196] A supplemental report from DC McCann to the Crown, dated June 24, 2010, evidences that he received additional documentation in the course of his investigation after May 13, 2010. Specifically, the Crown requested:

All telephone records, officer notes, investigative reports, and/or other documents, videos, audio recordings, including but not limited to: as between Windsor Police Services, OPP, RCMP, Toronto Police, Belleville Police and/or private investigators touching upon the charges and/or investigations of Andrei Kolosov and/or Mihail Kolosov.

[197] In his response, DC McCann confirmed that: there were no phone records available from the WPS or BPS; the OPP, RCMP and Toronto Police were not involved with the case; Mr. Findlay had already requested phone records from Lowe’s head office and indicated that he would provide those records to police if/when they became available [as will be set out later, Mr. Findlay testifies that such telephone records were ultimately not available]; the patrol officer’s notes were submitted with the original court folder; his reports constituted his own notes; Mr. Findlay’s notes consisted of his report and his statement to police; he had obtained a copy of DC Josefik’s notes and related BPS reports (which he forwarded to the Crown in his response); all reports from the WPS and all documentation received from Lowe’s had already been submitted and disclosed to Ms. Avery; all other supporting documentation was included in his response; the Lowe’s video surveillance had previously been copied and provided to the Crown; and there were no audio recordings.

[198] Finally, DC McCann received a witness statement from a fifth credit cardholder in September 2010, confirming that that person did not place the Lowe’s telephone orders that were otherwise associated with their credit card information.

[199] In his affidavit, DC McCann testifies that throughout his investigation he held reasonable and probable grounds to believe that Mihail and Andrei committed the offence with which they were charged and his investigation did not uncover any further exculpatory evidence in that regard.

[200] In cross-examination, DC McCann confirms that he did not receive a copy of the statement made, at Mr. Findlay’s request, by Carrie Fox on March 24, 2010 (the Lowe’s customer service representative who interacted with Mihail and Andrei on March 13, 2010). Her statement is generally consistent with her affidavit evidence in the Lowe’s defendants’ motion.

[201] During his cross-examination, all of the particulars of Ms. Fox’s statement were put to DC McCann. He agreed that according to Ms. Fox, the person that she spoke to over the phone on March 13, 2010 identified himself as “Kofman” and as the person who placed the orders that the plaintiffs were attempting to pick up. He also agreed that the statement evidenced that Mihail and Andrei told Ms. Fox that they did not know what merchandise they were picking up. Ultimately, however, DC McCann testified that the Fox statement would not have held any significance to him in his investigation and it would not have changed his mind with respect to the adequacy of the grounds relied on to arrest and charge Mihail and Andrei.

[202] DC McCann was also cross-examined on the nature and extent of the evidence of which he was aware, that established that Mihail and Andrei actually “knew” that the orders they were picking up from the Windsor Lowe’s store were fraudulently placed. He testified that the entirety of the evidence (as well as Ms. Fox’s statement) was consistent with an “operation” in which there was a “mastermind” and “the flunkies that go to do whatever he says to go to do” ... “go to Windsor and pick up some stuff; go to Belleville and pick up some stuff”. He testified further that his belief in that regard was informed by his experience as a detective engaged in investigating fraudulent activity. DC McCann also rhetorically questioned how Mihail and Andrei would know what kind of truck to bring to the Windsor Lowe’s if they did not know what merchandise they were picking up.

[203] In cross-examination, DC McCann agreed that he spoke to Mr. Findlay relatively frequently in 2010, because he was involved in other financial crime investigations involving the Windsor Lowe’s store. During their interactions, they would periodically discuss this matter. He testified further that:

a) he has no reason to dispute Mr. Findlay’s evidence that telephone records from Lowe’s were ultimately not available;

b) the information with respect to the Sudbury Lowe’s incident on March 15, 2013, did not form part of his investigation of the offences for which Mihail and Andrei were charged, and it did not form part of his reasonable and probable grounds with respect to same;

c) “Kofman”, “Lachman” and “Levi” were all identified as suspects in PC Khoury’s initial report and particulars with respect to the orders placed under each name formed part of the information received by WPS early in this matter, which was all disclosed to the Kolosovs’ criminal counsel on March 16, 2010;

d) he was not aware of any other fraudulent orders placed by anyone using the pseudonyms “Kofman”, “Lachman” or “Levi”, other than those disclosed to the plaintiffs’ criminal counsel through timely disclosure in the criminal proceedings; and

e) throughout his interactions with Mr. Findlay, he found him to be honest, truthful and willing to provide whatever information he could to assist the police. He had no reason to doubt the accuracy of any information that Mr. Findlay (or anyone else at Lowe’s) provided him in the course of his investigation.

l) The Crown Believed That There was a Reasonable Prospect of Convicting Mihail and Andrei

[204] Former Assistant Crown Attorney Russell Cornett had carriage of the prosecution of the WPS charges against Mihail and Andrei at the time that those charges were withdrawn. Mr. Cornett did not have the opportunity to consult the Crown file prior to swearing his affidavit in support of the WPS defendants’ motion on October 28, 2015 (approximately five years after the charges were withdrawn). He offers narrative evidence with respect to: his involvement in the plaintiffs’ prosecution; his views with respect to the prospect of conviction; and the reasoning that lead to the withdrawal of the charges.

[205] Mr. Cornett appeared as Crown counsel at Mihail and Andrei’s first court appearance post-arrest. He requested a show cause hearing, based on the primary and secondary ground concerns he held as a result of the following: the plaintiffs were from Toronto; they lacked sufficient ties to the jurisdiction (Windsor); and there was an apparent pattern of behaviour in which the then accuseds received property obtained through fraudulent means both in Windsor and in Belleville. The bail hearing was scheduled and adjourned several times in March and April 2010. After reviewing the bail hearing adjournment endorsements that were made on the Information, Mr. Cornett testifies that: all of the adjournments were made at the request of the defence counsel (Ms. Avery); the Crown was prepared to proceed with a Show Cause Hearing with respect to the accuseds’ detention at any time after March 15, 2010; and he specifically asked the plaintiffs’ defence counsel why she was not advancing the bail hearing. In response she explained that she was engaged in a dispute with the BPS.

[206] Mr. Cornett explains that throughout his involvement in the prosecution, he never believed there was “no reasonable prospect of convicting” Mihail and Andrei. If he did, he would have withdrawn the charges against them on that basis. Further to that point, he appends to his affidavit an Ontario Ministry of the Attorney General Practice Memorandum directed to counsel of its Criminal Law Division, dated October 1, 2002, regarding “charge screening”. Among other things, the Memorandum directs that “if the Crown determines there is no reasonable prospect of conviction at any stage of the proceeding, the prosecution of that charge must be discontinued”, and related commentary. The Practice Memorandum contains additional commentary related to the discontinuance of a prosecution on the basis that it is in the public interest to do so.

[207] Within the context of the Practice Memorandum directives, Mr. Cornett indicates that as soon as the charges against the plaintiffs arrived at the Crown’s office, a screening Crown would have assessed the charges from both a “reasonable prospect of conviction” perspective and a “public interest” perspective. Thereafter, several reassessments in that regard would have been undertaken, including: prior to the judicial pre-trial conference that was held in the Ontario Court of Justice; prior to the scheduling of the preliminary hearing date; and prior to August 19, 2010, when he extended a plea bargain offer to Ms. Avery.

[208] In his evidence, Mr. Cornett confirms that throughout his involvement in the criminal proceeding, he was aware of the plaintiffs’ position that they were, in effect, innocent dupes. In his view, in the totality of the circumstances of which he was aware, that explanation did not ring true. He further explains that the Crown’s file indicated how proof of the offence would proceed at trial and that there would have been an opportunity to assemble all of the required documents, once the matter was set down for trial.

[209] Nonetheless, circumstances developed that led Mr. Cornett to conclude that continuing with the prosecution against Mihail and Andrei was no longer in the public interest. In that regard, he testifies that: Ms. Avery was successful in having the Crown Attorney’s office in Belleville withdraw the charges against Mihail and Andrei relating to the two Belleville Lowe’s pickups in which they, or one of them, were involved (in his view, those incidents were part of the relevant sequence of events leading up to their attempted pickup in Windsor on March 13, 2010); the Windsor charges were the only remaining charges; Andrei and Mihail did not have criminal records; the goods they attempted to pick up did not actually leave the Lowe’s store; Andrei and Mihail had already spent time in custody prior to their pre-trial release; a Russian interpreter would have been required for one of the accused, which would have increased the expense of the trial; and the anticipated trial would have substantially inconvenienced various witnesses including cardholders, Belleville Lowe’s staff, and representatives of financial institutions who would have been required to attend in Windsor to give evidence. Based on all of those factors, he concluded that it was no longer in the public interest to pursue the Windsor charges against Mihail and Andrei. On November 3, 2010, he asked the court to withdraw the charges on that basis.

[210] Mr. Cornett testifies that at the time he requested that the charges be withdrawn, he was still of the view that there was a reasonable prospect of convicting Andrei and Mihail on the evidence available to the Crown. Finally, he testifies that the charges against Mihail and Andrei were not withdrawn because he became aware of: a major defect in the case; or any exculpatory evidence with respect to the two accused.

m) The Fraudulent Lowe’s Transactions and the Particulars of Its Internal Investigation and Disclosure to Police

[211] The plaintiffs correctly contend that the scope of the fraud committed against Lowe’s extended beyond the orders that they picked up. Documentary evidence produced by the Lowe’s defendants demonstrates that the Lowe’s stores in Belleville and Windsor received a combined total of 15 fraudulent telephone credit card orders between those two locations over the course of nine days in March 2010. Members of the Kolosov family were responsible for picking up (or attempting to pick up) eight of the 15 orders on three separate attendances at Lowe’s stores (i.e. they picked up more than one order at a time). There were seven orders placed under the names of “Kofman” or “Lachman” that were either picked up by individuals other than the plaintiffs or were not picked up at all.

[212] On March 11, 2010, while Mihail and Alexei were picking up “Kofman” orders at the Belleville Lowe’s store, a different order placed under the name “Kofman” was picked up in Windsor by individuals other than the plaintiffs, as evidence by surveillance video from that store. Those individuals have never been identified. Ultimately, no charges were laid against any individuals in relation to the subject fraudulent orders, other than Mihail and Andrei.

[213] Lowe’s written policy for telephone orders and subsequent pickups has been adduced in evidence in the context of these motions. Based on the content of that documentation, it appears that some Lowe’s employees failed to follow Lowe’s policies and/or specific instructions from management in respect of some of the subject fraudulent orders and in the related pickup of merchandise (to the extent that a pickup was actually made). In particular, contrary to Lowe’s policies, there is no evidence that Lowe’s employees called back the “ordering customer” to verify that they were authorizing the order, after it was placed. In addition, on pickup, Lowe’s employees did not request identification nor record on a loading ticket, the name and address of the individuals picking up the merchandise (although signatures were obtained); and they did not identify the relationship between the persons picking up the merchandise and the ostensible purchaser.

[214] The plaintiffs further assert that the failure to follow Lowe’s policies and management directives is exemplified by the conduct of named defendants Boyle and Howard. Specifically, Mr. Boyle, who was employed as a customer service agent with Lowe’s at its Belleville location, took some of the telephone orders that were placed by “Kofman” at that location. He indicates that over the course of two days, he was provided with eight different credit card numbers by “Kofman”, many of which were rejected, before the orders were finally purchased. He was instructed by Lowe’s management to place a “validate credit card” notation on the orders, meaning the credit card had to be physically presented to Lowe’s personnel at the time the merchandise was picked up. Yet, the order was picked up without credit card validation.

[215] The defendant Mr. Howard, also took a telephone order from “Kofman” who, over the course of two separate telephone calls, provided Mr. Howard with four different credit card numbers which were “declined” before a fifth credit card number was accepted and used to purchase the order. Mr. Howard then advised Kofman that the merchandise would be waiting for pickup.

[216] Although not a named defendant, Robert Bruce, another Lowe’s employee at its Belleville location, also dealt with “Kofman” over the telephone. In a statement he prepared at the request of Mr. Fralick, he indicates that on March 11, 2010, he received a call from “Kofman” who wanted to place a telephone order. After consulting with management, he explained to Kofman that he would have to bring the credit card used to purchase the order and two forms of identification with him when he picked up the order. Mihail states that to the extent that that order was picked up by him, he was not asked to show identification or to present the credit card used in the transaction, at the time of pickup.

[217] The plaintiffs reason that had Lowe’s employees followed Lowe’s policies: Lowe’s would not have been defrauded, at all; Mihail and Andrei would never have been able to obtain the merchandise associated with the fraudulent orders; and Mihail and Andrei would never have been exposed to wrongful allegations of criminal conduct and arrest and prosecution in the absence of reasonable and probable grounds.

[218] The plaintiffs are also critical of Lowe’s own investigation into its fraudulent losses and the information that they claim Lowe’s withheld from police. In evaluating their criticism, it is helpful to review the extent of Lowe’s documentary disclosure to police.

[219] As set out above, when Mr. Fralick, received Mr. Findlay’s e-mail correspondence on March 13, 2010, he conducted a relatively exhaustive search of the Belleville store’s records and found nine transactions involving the identified pseudonyms. He gathered the relevant documentation, including receipts and loading tickets, as well as, in-store surveillance into a package of materials that he eventually provided to police in Belleville. Mr. Fralick reported his initial findings to police on the morning of March 13, 2010. He contacted several credit card companies that had issued the credit cards related to the questionable transactions that he discovered. The CIBC confirmed that the cardholder information given to Lowe’s by the person(s) providing CIBC issued credit card numbers to fund some of the transactions identified by Mr. Fralick did not match actual credit cardholder information and those purchases were presumably fraudulent. Mr. Fralick also engaged in a number of conversations with Mr. Findlay on the morning of March 13, 2010, with respect to his findings.

[220] Late in the morning on March 13, 2010, Mr. Fralick spoke with PC Kanyo of the BPS. He testifies that he provided PC Kanyo with all of the information that he had discovered to date. He also told him that there were possibly two other male suspects involved in the fraudulent purchases other than the two individuals that Mr. Fralick had observed in the March 11, 2010 video surveillance.

[221] Between March 13 and March 18, 2010, Mr. Fralick collected further documentation associated with the possible frauds against the Belleville Lowe’s where the names “Kofman”, “Lachman”, and “Levi” were used. In doing so, he determined:

1. On March 5, 2010, an order placed by “Mark Lachman” on March 4, 2010 was picked up at 6:55 p.m. He observed video surveillance of the pickup and made written observations of same. He obtained the associated record of the purchase, receipt and loading ticket, which bore the signature of whomever picked up the goods (not identified). He was subsequently informed that the credit card used in relation to the transaction was fraudulent. He prepared three still photographs from the surveillance video. He did not represent to anyone, including the BPS that any person depicted in the March 5, 2010 surveillance was Mihail or Andrei.

2. On March 9, 2010, merchandise from a telephone order placed by David Kofman was picked up at the Belleville store. Mr. Fralick obtained a copy of the corresponding receipt and pickup ticket. He observed video surveillance of the pickup, made notes of his observations, and obtained five still photographs showing two men picking up the goods. They did not appear to be the same people he had seen in the March 10 or March 11, 2010 surveillance. Subsequently, he received confirmation from the associated credit card company that this was a fraudulent transaction.

3. On March 10, 2010, an order placed by a “Mark Lachman” on March 9, 2010 was picked up. Mr. Fralick obtained copies of the corresponding receipt and loading ticket which bore the illegible signature of the recipient of the goods. That order was picked up together with an order that had been placed on March 9, 2010 by a “Joseph Lachman”. Both orders were placed from the same telephone number. He obtained a copy of the receipt and loading ticket related to the Joseph Lachman order, the latter of which bore the illegible signature of the recipient of the merchandise. Both orders were confirmed to be fraudulent. He reviewed the in-store surveillance of the pickup of the Lachman orders. He made detailed descriptions of the individuals involved and a white cube truck that they used. [These “Lachman” orders were, in fact, picked up by Mihail and Andrei. On their evidence, they say they picked up “Kofman” orders from the Belleville Lowe’s, not Lachman orders, on this date. There is no record of Kofman orders being picked up from the Belleville Lowe’s on March 10, 2010].

4. On March 11, 2010, at approximately 2:40 p.m., two individuals picked up three orders placed by “David Kofman” over the telephone on March 11, 2010. Mr. Fralick received confirmation from the associated credit card company that the purchases were fraudulent. He obtained the loading tickets associated with each transaction, which bore the same illegible signature. A third order made by a “Gery Koffman” on March 10, 2010, was also picked up with the Joseph Kofman orders. [These are the “Kofman” orders that Mihail and Alexei picked up on March 11, 2010].

In reviewing the surveillance video with respect to this pickup, Mr. Fralick was able to identify a Ford cube truck used in the pickup. He also developed descriptions of the individuals picking up the orders. He was able to determine that the older of the two individuals was the same person who picked up the “Joseph Lachman” and “Mark Lachman” orders on March 10, 2010. He prepared several still images from the video.

5. A final order made on March 12, 2010, under the name “Joseph Lachman”, was never picked up. Mr. Findlay received information from the CIBC fraud department that “Joseph Lachman” and the address provided with that name when the order was placed did not match the actual cardholder’s name. The purchase was reversed. Mr. Fralick obtained a copy of both the receipt of the original transaction and the receipt showing the reversal of the transaction. He was informed by the credit card issuer that this was a fraudulent transaction.

[222] Mr. Fralick compiled all of the documentation referred to above into a package, without any further commentary and delivered it to DC Josefik of the BPS, within a day of learning that he was the investigating officer. Several days later, DC Josefik attended at the Belleville Lowe’s store and reviewed all of the video surveillance outlined above with Mr. Fralick (i.e. not just the surveillance related to Mihail and Andrei). Mr. Fralick also provided DC Josefik with all of the documentation that he received from the associated credit card companies evidencing charge backs, and reversals of the fraudulent credit card purchasers, together with confirmation that all of the identified transactions were fraudulent (not just those involving Mihail and Andrei).

[223] Mr. Fralick testifies that he has no reason to doubt the accuracy, completeness, or any other material matter concerning the information he provided to the BPS. He did so without making any representations that the plaintiffs had committed any wrong doing. He did not consult with the police or the prosecution with respect to any decisions related to charging or prosecuting the plaintiffs or any other matter involving the criminal proceedings brought against the plaintiffs and he is not aware of any other Lowe’s employee or representative who did so. Mr. Fralick did not request that the plaintiffs be charged with any offences related to the fraudulent orders or their related pickups and, to the best of his knowledge, no other employee or representative of Lowe’s did so.

[224] As part of his internal loss prevention investigation, he took statements from Lowe’s employees involved in taking the impugned Belleville orders (namely: Boyle; Howard; Bruce; Verner-Prokop; and Laidman) which he then provided to police.

[225] Mr. Findlay’s evidence with respect to the steps that he took on March 12 and the morning of March 13, 2010, after he originally discovery potentially fraudulent credit card orders, is set out above. Notably, before Mihail and Andrei attended the Windsor Lowe’s store on March 13, 2010, Mr. Findlay had already received confirmation from a CIBC fraud investigator that the credit cards associated with the Kofman orders to be picked up that day had been fraudulently used. At the urging of a CIBC fraud investigator, Mr. Findlay contacted police when two individuals (later identified as Mihail and Andrei) attempted to pick up the Kofman orders.

[226] Mr. Findlay spoke with police upon their arrival and provided details of the background and particulars of all the suspected fraudulent transactions that he discovered. He did not limit his disclosure of the details of fraudulent credit card orders to those involving Kofman or to those that Andrei and Mihail attempted to pick up on March 13, 2010. Mr. Findlay was not in the presence of police when they questioned Mihail and Andrei, nor when they provided police with their explanation for attempting to pick up the Kofman orders. He was not in the presence of PC Khoury when she arrested Mihail and Andrei, and he did not direct her or request her to do so.

[227] Mr. Findlay never had direct dealings with Mihail and Andrei. He cooperated with the WPS in its investigation. He never had contact with members of the BPS. He responded to requests by the WPS during the course of their investigation and he always attempted to provide officers with accurate information. He did not offer any input to police or the Crown with respect to laying charges against Mihail and Andrei or the conduct of the subsequent criminal proceedings.

[228] Mr. Findlay provided police with copies of the documentation related to the “Kofman” orders that were picked up in Windsor on March 11, 2010 by persons other than Mihail and Andrei. He confirms that Windsor Lowe’s employees did not validate the identification of the persons who picked up the merchandise associated with fraudulent telephone orders on March 11, 2010. He subsequently provided police with the receipts for the merchandise ostensibly purchased by “Kofman” that Mihail and Andrei attempted to pick up on March 13, 2010.

[229] The WPS asked Mr. Findlay to obtain from Lowe’s headquarters, any phone records related to the telephone calls in which fraudulent orders were placed. Mr. Findlay was unable to do so. In cross-examination, he explains that Lowe’s does not internally log or record telephone numbers related to calls to and from the store. Further, he believed that Lowe’s telephone service was not provided through a third party provider. Instead, it operated through a “Wi-Fi type thing”, and as a result the requested telephone records did not exist.

[230] As part of his internal investigation, Mr. Findlay requested that the two employees who interacted with Mihail and Andrei on March 13, 2010 (Carrie Fox and Jenelle Rinkel), complete “incident witness statements” which they did on March 23, 2010 and March 20, 2010 respectively. Ms. Fox’s statement is consistent with the affidavit that she has sworn in this proceeding and detailed earlier. In her brief statement, Ms. Rinkel states that on March 13, 2010, two unidentified men approached her at the Lowe’s customer service desk. One of them presented a small black agenda with the last name of “Kofman” printed inside and said that he was there to pick up merchandise for “Kofman”. The other individual asked her to specify the products that they were picking up. She advised them that she would check on the order and “a loader” would bring out the products. The second individual again asked her what items they were picking up. She advised them that someone else was checking the order. She had no further dealings with Mihail and Andrei. Mr. Findlay did not provide the Fox and Rinkel statements to police.

[231] Within the context of the foregoing evidence, I will now determine the motions before me, beginning with the motion for summary judgment brought by the WPS Defendants.

X) Reasons for Disposition of the WPS Motion for Summary Judgment

a) Executive Summary

[232] For the reasons set out below, I find that summary judgment dismissing the action against the Windsor Police Service Board, Detective Kevin McCann, Police Constable Steven Brnardic and Police Constable Jacqueline Khoury must be granted. The moving parties have established that the evidentiary record does not disclose any genuine issues requiring a trial with respect to their liability, as alleged.

[233] While I will specifically address each relevant aspect of the motion below, in general, I conclude that:

1. The plaintiffs’ claims against the WPS defendants for false arrest, false imprisonment and violations of their Charter rights were discovered at the time of their arrest and detention on March 13, 2010. The action was commenced after the second anniversary of the discovery date. As a result, those claims are statute barred pursuant to the provisions of the Limitations Act, 2002;

2. In the circumstances that confronted her on March 13, 2010, including the information she received from Mihail and Andrei, PC Khoury subjectively and objectively held reasonable and probable grounds to believe that Mihail and Andrei were committing or were about to commit an indictable offence, or in the process of committing a criminal offence. In accordance with s. 495(1)(a) and (b) of the Criminal Code, she had lawful authority to arrest them without a warrant.

3. PC Brnardic was not the arresting officer or the primary officer in response to the March 13, 2010 call to the Windsor Lowe’s store. He did not assume custody of Mihail and Andrei and he did not transport them to WPS headquarters. There is no evidence that he engaged in any actionable wrongdoing in respect of the plaintiffs, whatsoever.

4. The plaintiffs’ claims founded in negligent investigation were discovered on November 3, 2010, when the charges laid by the WPS were withdrawn. That aspect of their action was commenced within the applicable limitation period. However, the totality of the evidence does not establish a genuine issue requiring a trial to determine whether the WPS defendants, or any of them, failed to act in accordance with the requisite standard of care when investigating Mihail and Andrei’s March 13, 2010 attempt to pick up merchandise that had been previously purchased through the fraudulent use of credit card information. The plaintiffs have failed to adduce any expert evidence with respect to the parameters of the standard of care applicable to a police officer investigating a financial crime, in this case fraud, in 2010, in circumstances similar to those with which DC McCann was confronted. Expert evidence is required in this instance. The available evidence does not disclose that DC McCann’s conduct of the investigation was “so egregious” that he obviously breached the standard of care, whatever its precise parameters may have been. Further, the appropriate standard of care of a detective investigating financial criminality in the context of what DC McCann perceived to be a “mastermind and flunkie” operation, is not a non-technical matter. Finally, the plaintiffs identify a number of investigatory steps that they assert DC McCann unreasonably failed to take. However, the identification of an enumerated list of actions that a detective could potentially undertake in the course of an investigation, without something more, does not lead to the inescapable inference that the detective was required to do so, in order to meet the requisite standard of care. In this instance, there is no evidence establishing that had DC McCann engaged in the additional investigatory steps that the plaintiffs identify, the result of his investigation would have been appreciably altered.

5. The plaintiffs’ claim for malicious prosecution fails for two reasons. First, malice, an essential element of the tort of malicious prosecution is not properly pleaded against the WPS defendants in the statement of claim, nor is it evidenced on the record. Second, to establish the tort of malicious prosecution a plaintiff must, among other things, demonstrate that there was an absence of reasonable and probable cause to commence the prosecution. Since I have found that police had adequate grounds to arrest and charge Mihail and Andrei and that those grounds were not displaced at any time before the charges were withdrawn, there is no genuine issue requiring a trial with respect to the tort of malicious prosecution, in any event of its deficient pleading.

6. Since I have concluded that Mihail and Andrei’s claims must be dismissed against the WPS defendants, Alena’s derivative Family Law Act claim must also be dismissed. Additionally, I conclude that there is no evidence that the WPS defendants engaged in any negligent acts or omissions as it relates to the arrest and investigation of Mihail and Andrei and, as a result, there is no factual basis for Alena’s claim for infliction of nervous shock.

7. After their arrest, Mihail and Andrei spent a relatively lengthy period of time in pre-trial custody. However, there is no evidence indicating that the 72 hour hold initially requested by non-party Det. Verkoeyen was negligent in all of the circumstances, which included: the geographic scope of the overall fraud scheme (orders from Toronto and pickups in Windsor and Belleville) the plaintiffs’ involvement in pickups at both locations; the pending fraudulently placed orders at the Windsor Lowe’s store; and the plaintiffs’ residence more than 200 kilometres away from Windsor. Beyond that, the decision to hold Mihail and Andrei for a show cause hearing was made by the Crown and specifically not the WPS defendants. Thereafter, the delay in the plaintiffs’ release from custody was the result of their inability to post the total $4,000 deposit required pursuant to the judicial interim release conditions agreed to by their defence counsel and the apparent lack of available and/or adequate sureties, until Alena returned from Belarus in early April 2010.

[234] I will explain my findings below.

b) The Plaintiffs’ Claims for False Arrest, False Imprisonment and Related Charter Breaches

[235] False arrest and false imprisonment are actions in trespass. To establish a false arrest, the plaintiff must only prove that the defendant caused the plaintiff to be arrested. Once that is done, the onus shifts to the arresting party to justify his or her actions as lawful. Where the arrest is made without a warrant, a defendant can prove justification by showing that, objectively, there were reasonable and probable grounds for the arrest and that he or she subjectively believed that there were reasonable and probable grounds to make the arrest: see Lloyd v. Toronto (City) Police Services Board, [2003] O.T.C. 19, 2003 15846, at paras. 36-37.

[236] In order to establish the tort of false imprisonment, the plaintiffs must initially demonstrate that they were completely deprived of their liberty by the defendants, against their will. Once that is demonstrated the onus then shifts to the defendants to show that the detention was justified at law: see Lloyd, at para. 37; Wong v. Toronto Police Services Board, 2009 66385 (Ont. S.C.), at para. 74.

[237] Unquestionably, Mihail and Andrei were arrested by PC Khoury, and after the arrest they suffered a total depravation of their liberty when they were detained and ultimately held in police custody. Accordingly, the onus shifts to the WPS defendants to justify the detention.

[238] The plaintiffs were arrested without a warrant. Nonetheless, the WPS defendants contend that the arrest was lawful pursuant to s. 495(1)(a) and (b) of the Criminal Code, which authorizes a peace officer to arrest, without warrant, a person who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; or a person he finds committing a criminal offence. There is no dispute that PC Khoury was a “peace officer” at the time she arrested Mihail and Andrei. From there, the parties’ positions diverge.

[239] The plaintiffs submit that the evidence related to their claims for false imprisonment, false arrest and related Charter breaches raise genuine issues requiring trial, and in particular the issue of whether the evidence available to PC Khoury at the time of their arrests was capable of supporting “reasonable and probable grounds” to believe that they had committed or were about to commit an indictable offence or that they were committing a criminal offence. They contend it was not. They suggest the evidence supported that they were innocent and there was no evidence or information available to PC Khoury to objectively support reasonable and probable grounds to believe that Mihail and Andrei possessed the requisite knowledge to make out a charge of fraud over $5,000. Specifically, there was no basis upon which to conclude that there were reasonable and probable grounds to believe that they “knew” that the merchandise they were attempting to pick up had been purchased through fraudulent means. For the following reasons, I do not accept the plaintiffs’ position.

[240] First, the plaintiffs’ claims for false arrest, false imprisonment and related Charter breaches are statute barred pursuant to the Limitations Act, 2002. They did not bring their actions within two years of their arrest and detention. They were arrested on March 13, 2010. They were initially detained on March 13, 2010. They were released from custody on April 10, 2010. The vast majority of the time they spent in custody resulted from: the Crown’s decision to request a show cause hearing; their counsel’s adjournment requests; their own inability to fund cash deposits that were associated with their terms of release; and their inability to find suitable sureties during the time that Alena was in Belarus. Their action against the WPS defendants was commenced more than two years after the second anniversary of their arrests and initial detention and their ultimate release on bail on April 10, 2010. In my view, their action was commenced more than two years after they discovered their “claims” against the WPS defendants in respect of the torts and Charter breaches referred to above, I will explain.

[241] Section 1 of the Limitations Act, 2002, defines “claim” to mean: “A claim to remedy an injury, loss, or damage that occurred as a result of an act or omission.” Section 4 of the Limitations Act, 2002, requires a plaintiff to bring a proceeding in respect of a “claim” no later than the second anniversary of the day on which the claim was discovered.

[242] The determination of whether a person has discovered a claim is a fact-based analysis that has been codified in s. 5 of the Limitations Act, 2002:

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.

[243] When a limitation period defence is raised, the onus is on the plaintiff to show that its claim is not statute barred. That approach accords with the presumption created by s. 5(2) of the Act, specifically that a person with a claim is presumed to have discovered the claim on the day the act or omission on which the claim is based took place, unless the contrary is proved: see Pepper v. Sanmina-Sci Systems (Canada) Inc., 2017 ONSC 1516, at para. 59.

[244] Section 5(1)(a)(iv) of the Limitations Act, 2002, can operate to delay the commencement of the limitation period, even where the plaintiff has knowledge of the elements set out in s. 5(1)(a)(i), (ii), and (iii). The delaying effect remains operable until the day when the plaintiff knows (or a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known) that a proceeding would be an appropriate means to remedy the harm, having regard to the nature of the injury, loss, or damage. There must be a juridical reason for the person to delay the commencement of a proceeding on the basis that the proceeding is not yet “appropriate”: see Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34. Nonetheless, it remains that the determination of the date upon which resort to litigation would be an appropriate means to seek to remedy loss or damage depends on the specific factual or statutory setting of each individual case, including a consideration of the particular interests and circumstances of the plaintiffs: see 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, at para. 34.

[245] Generally, causes of action for false arrest, false imprisonment and breaches of Charter rights arising therefrom, crystalize on the date of the arrest or detention and not on the date of the conclusion of any prosecution that arose from the same facts: see Kolosov (ONCA), at para. 11; Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581, at para. 16; and Wong, at para. 75.

[246] Since Andrei and Mihail were arrested and detained on March 13, 2010, any cause of action for wrongful arrest, wrongful imprisonment/detention and any related Charter breaches, presumptively arose on that date. The available record does not raise an issue that requires a trial with respect to whether or not Mihail and Andrei had subjective knowledge of the facts upon which their claims for false arrest, false imprisonment, and related Charter breaches are based, either on the date of their arrests or shortly thereafter. Specifically, subject to Andrei’s evidence that he did not appreciate that he had been charged with “attempted fraud over $5,000” until Ms. Avery informed him of the charge on March 16, 2010, the evidence conclusively establishes that on March 13, 2010 Mihail and Andrei were subjectively aware of: the fact of their arrests and detention; that charges had been laid by the WPS; their unequivocal belief in their absolute innocence; and the fact that they had provided an innocent explanation to members of the WPS for their involvement in actual and attempted pickups of merchandise from the Windsor and Belleville stores. Therefore, as of March 13, 2010, the plaintiffs knew that: they had suffered injury, loss, or damage as a result of their arrest and detention for what they perceived to be their completely innocent conduct; the injury loss or damage was caused by the acts of arresting and detaining them; and, the relevant acts were those of a WPS police officer, against whom their claim was ultimately brought.

[247] In concluding that there is no genuine issue requiring a trial with respect to whether the applicable limitation period expired before the plaintiffs commenced their proceeding in respect of their claims for false imprisonment, false arrest and related breaches of Charter rights, I have remained mindful that s. 5(1)(a)(iv) of the Limitations Act, 2002, may in the factual circumstances of a particular case, delay the commencement of the running of a limitation period. Indeed, in Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, 138 O.R. (3d) 641, leave to appeal refused, [2018] S.C.C.A. No. 39, the application of that section justified delaying the commencement of the running of a limitation period applicable to a claim sounding in battery, abuse of authority, and negligence in the discharge of police duties advanced by an individual who was injured in the course of an arrest by police.

[248] In Winmill, the claims asserted by the plaintiff arose in the context of a police response to a reported domestic altercation, during which police ultimately arrested the plaintiff and charged him with assaulting a police officer and resisting arrest. The plaintiff was not charged with an offence related to the underlying alleged domestic altercation. According to the plaintiff, the police initiated unnecessary and aggressive physical contact with him. Eventually, the plaintiff was acquitted of the charges. He subsequently commenced a proceeding more than two years after the alleged battery was committed against him by police officers. On a motion for summary judgment, the motion judge dismissed the intentional tort claims (including battery) against the police defendants on the basis that the limitation period had expired.

[249] On appeal, MacPherson J.A., writing for the majority, found in the circumstances of the case, and in particular because the criminal charges of assault and resisting arrest against the appellant (plaintiff) and his tort claim of battery against the respondents (police officers) were very close to being two sides of the same coin or mirror images of each other, it made sense for the appellant to focus on his criminal charges before making a final decision about a civil action against the police: see Winmill, at para. 33.

[250] The majority determined that it was obvious that the verdict in the criminal trial, especially on the assault charge, would be a crucial, bordering on determinative, factor in the appellant’s calculation of whether to proceed with a civil action in battery against the police: see Winmill, at para. 31. As a result, the majority concluded that the plaintiff did not know that a proceeding would be “an appropriate means” to seek a remedy to the injury, loss, or damage he had sustained until the date of his acquittal on the criminal charges: see Winmill, at para. 34.

[251] In this case, the subject matter of the attempted fraud charges brought against the plaintiffs by the WPS defendants are not the “mirror image” of the subject matter of the plaintiffs’ current action. The false arrest/false imprisonment claims (and related Charter breach claims) are not dependent on whether the plaintiffs were ultimately guilty or innocent of the alleged fraudulent activity. Rather, their claims invoke a date specific inquiry: as of March 13, 2010, did PC Khoury have lawful grounds to arrest the plaintiffs.

[252] The basis upon which the plaintiffs contend the arrests were unlawful were known to them on March 13, 2010. The plaintiffs forcefully submit that they maintained their innocence before they were arrested and at all times thereafter, and that the WPS had no lawful basis to arrest them on March 13, 2010. That was their position dating back to March 13, 2010. By March 16, 2010, Mihail and Andrei’s criminal counsel had full disclosure of PC Khoury’s detailed report, together with her notes and those of PC Brnardic and Mr. Findlay’s statement, all of which the plaintiffs now say evidence the absence of lawful grounds to arrest them.

[253] Further, neither the plaintiffs nor Ms. Avery offer any evidence that the plaintiffs were not subjectively aware on the date that the WPS defendants’ alleged wrongful acts took place, that a proceeding would not be an appropriate means to seek a remedy in consequence of the WPS defendants’ alleged tortious and Charter infringing conduct. In the absence of such evidence, the statutory presumption set out in s. 5(2) of the Limitations Act, 2002 remains operable. Therefore, the plaintiffs are deemed to have known that a proceeding was an appropriate means to remedy the harm having regard to the nature of the injury, loss, or damage as of the date of the alleged wrongful acts, specifically March 13, 2010.

[254] In reaching that conclusion, I remain mindful that the plaintiffs submit in their factum that the claims against the WPS defendants were not “discoverable” until their counsel received the full Crown disclosure brief in relation to the charges brought against the plaintiffs by the Belleville police. The plaintiffs do not explain through: the evidence they have adduced; their factum; or their submissions, why that disclosure was necessary in order to discover their “claims” against the WPS defendants, particularly since a substantial amount of disclosure related to the WPS charges was made to plaintiffs’ criminal counsel on March 16, 2010 (three days after the plaintiffs’ arrest). Finally, full disclosure by either the Windsor or Belleville Crown Attorney was not necessary for the plaintiffs to discover their claims for false arrest, false imprisonment and related Charter breaches. While full disclosure may have informed the strength of their cases, the plaintiffs’ knowledge of their claims existed on the date of arrest and imprisonment based on their subjective knowledge of the relevant facts set out above: see Fournier-McGarry, at paras. 19-20.

[255] There is no evidence that either Mihail or Andrei suffered from a disability or incapacity in March 2010, or at any time thereafter, that impacted their respective abilities to appreciate the matters set out in s. 5(1)(a) of the Limitations Act, 2002. Finally, the plaintiffs have not adduced any evidence that rebuts the presumption set out in s. 5(2) of the Act.

[256] As a result of the foregoing, I conclude that Andrei and Mihail’s claims for false arrest, false imprisonment and related Charter violations were discovered on March 13, 2010. Since their proceeding was not commenced until June 5, 2012, their claims in that regard are statute barred pursuant to the provisions of the Limitations Act, 2002.

c) PC Khoury Had Adequate Grounds to Make the Arrests

[257] Since Mihail and Andrei were arrested without a warrant and thereafter detained, the onus shifts to the WPS defendants to establish that the arrest and detention were lawful. In my view, there is no genuine issue requiring a trial in that regard. The evidence overwhelmingly supports that PC Khoury had adequate lawful grounds to arrest Mihail and Andrei on charges of fraud over $5,000. I will explain.

[258] For a warrantless arrest to be valid on the basis of “reasonable and probable grounds to believe”, it is not sufficient for a police officer to subjectively believe that he or she has the necessary grounds to make an arrest. The evidence must also establish that a reasonable person, standing in the stead of the officer, would have believed that reasonable and probable grounds existed for the arrest. Once the requisite grounds for an arrest exist, police are not required to go further and establish a prima facie case against the suspects. In addition, an arrest which is lawfully made does not become unlawful because the police intended to continue their investigation after the arrest, and an arrest made in those circumstances does not constitute a violation of s. 9 of the Charter: see R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51.

[259] A peace officer’s subjective belief of the existence of reasonable and probable grounds is a question of fact. Whether the officer’s subjective belief is objectively reasonable is a question of law: see Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 74.

[260] In Wiles v. Ontario (Police Complaints Commissioner), [1997] O.J. No. 6274, 1997 CarswellOnt 6039 (Ont. C.J. (Div. Ct.)), at para. 47, the Divisional Court held that in forming “reasonable and probable grounds” for an arrest, a police officer is not required:

i. to establish a prima facie case for conviction before making an arrest;

ii. to establish that the charge would succeed at trial; or

iii. to establish that the accused has no valid defence to the charge.

[261] Similarly, the police are not required to guarantee the conviction of a person placed under arrest: see Magiskan v. Thunder Bay (City) Police Services Board, 2011 ONSC 7334, at para. 32.

[262] Although police officers are not entitled to ignore exculpatory evidence in determining whether reasonable and probable grounds to arrest or lay charges exist, they are not obligated to weigh and determine the validity of various versions of events and render judgment before arresting or charging the accused: see Kellman v. Iverson, 2012 ONSC 3244, at para. 18; Wiles, at para. 50.

[263] Police are not required to independently confirm civilian information in order to have reasonable and probable grounds to arrest a suspect. However, police must conduct the level of inquiry reasonably permitted by the prevailing circumstances in order to determine whether there are reasonable and probable grounds to effect an arrest. In doing so, the officer must take into account all information available to him or her and is only entitled to disregard information that he or she has good reason to believe is unreliable: see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743, (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 51.

[264] In this instance, PC Khoury provides unchallenged and uncontradicted evidence that subjectively she believed that she had reasonable and probable grounds to arrest Mihail and Andrei. The plaintiffs main contention is that based on all of the information available to her, from an objective perspective, PC Khoury lacked any evidence of mens rea, and, as a result, she lacked reasonable and probable grounds to arrest them for fraud over $5,000.

[265] In determining this aspect of the parties’ dispute, it is helpful to review the nature of the offence for which the plaintiffs were arrested. Pursuant to s. 380(1) of the Criminal Code, “everyone who, by deceit, falsehood or other fraudulent means, defrauds...any person, whether ascertained or not, of any property...(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years where...the value of the subject matter of the offence exceeds $5,000...”.

[266] In R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, at pp. 15-16, the Supreme Court reiterates that two essential elements comprise the actus reus of the subject offence: (i) a “dishonest act” and (ii) deprivation. The element of “dishonest act” is established by proof of deceit, falsehood or “other fraudulent means”. The element of “deprivation” is established by proof of detriment, prejudice or risk of prejudice to the complainant’s economic interests that is caused by the dishonest act. Essentially, the dishonest act is the means by which the deprivation is achieved. Deprivation includes, but does not require, actual economic loss suffered by the complainant. It is enough that the complainant’s economic interests be put at risk by the dishonest act. The complainant need not lose anything of value as a result of the accuseds’ conduct in order to complete the commission of the offence.

[267] For the purpose of the “dishonest act” element, “deceit” is an untrue statement made by a person who knows that it is untrue or has reason to believe that it is untrue but makes it, despite that risk, in order to induce another person to detrimentally act on it, as if it were true. A “falsehood” is a deliberate lie. “Other fraudulent means” includes any other means that is not otherwise deceit or falsehood, and is properly regarded as dishonest according to the standards of reasonable people (i.e. an objective assessment).

[268] In Théroux, the Court instructs that the mens rea of the subject offence consists of the accused’s subjective awareness that he or she is undertaking a prohibited act (i.e. deceit, falsehood or other dishonest act) which could cause deprivation (in the sense of depriving another of property or putting that property at risk). The Court further instructs that the appropriate inquiry in determining the mens rea of fraud is directed at whether the accused intentionally committed a prohibited act (deceit, falsehood or other dishonest act) knowing or desiring the consequence proscribed by the offence (deprivation, including the risk of deprivation). It is unnecessary to establish that an accused subjectively believed his or her conduct to be dishonest in circumstances in which that conduct is otherwise found to be “objectively dishonest” means. If the “means” by which deprivation occurs is determined to be objectively dishonest, then the appropriate inquiry is whether the accused, who knowingly undertook the acts in question, was aware that the likely consequence of his or her conduct was deprivation or risk of deprivation.

[269] Direct evidence of mens rea is not required to establish the subject offence. In Théroux, at p. 18, the Court writes:

The second collateral point is the oft-made observation that the Crown need not, in every case, show precisely what thought was in the accused’s mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference. The fact that such an inference is made does not detract from the subjectivity of the test.

Of course, the determination of whether doubt is cast on the inference of knowledge is properly an issue for the trier of fact, at trial.

[270] The legal principles set out above, provide the necessary context in which to evaluate PC Khoury’s evidence concerning her grounds for arrest. In her affidavit, PC Khoury testifies to the specific factors that led her to form reasonable and probable grounds to arrest Mihail and Andrei for fraud over $5,000, which were principally based on information that she had gathered from Mr. Findlay (and indirectly from Mr. Fralick), together with the information she obtained directly from Mihail and Andrei themselves. She testifies that, as of March 13, 2010:

a) There was clear evidence that a significant credit card fraud was being perpetrated against Lowe’s and/or credit cardholders;

b) The fraud was clearly planned and organized;

c) The credit card orders were placed from Toronto;

d) The Kolosovs were from Toronto;

e) The Kolosovs attended in Belleville and in Windsor to pick up orders at Lowe’s stores to bring them to Toronto;

f) Picking up goods at Lowe’s stores in both Windsor and Belleville to take them back to Toronto is inherently suspicious;

g) There must have been some link between the person placing the fraudulent orders and the Kolosovs because the Kolosovs were, in fact, picking up some of the fraudulent orders. The link could have ranged from the Kolosovs being the perpetrators; the Kolosovs being known participants in the fraudulent scheme; or the Kolosovs being innocent movers as they claimed;

h) The Kolosovs are the people who would have taken possession of the fraudulently purchased merchandise had the pickup transaction been completed on March 13, 2010; and

i) The informal nature of the Kolosovs’ business operation was suspicious, including their lack of any paperwork and their stated lack of knowledge of the location where they would deliver the goods in Toronto after the pickup in Windsor.

[271] PC Khoury’s evidence establishes that she appreciated and considered Mihail and Andrei’s innocent explanation when she formed her grounds. However, that information alone was not determinative of whether there were adequate grounds to arrest Mihail and Andrei without a warrant. PC Khoury specifically deposes that in her experience, it is common for persons that she investigates to deny any wrongdoing.

[272] The plaintiffs assert that PC Khoury (among other WPS defendants) “utterly failed to investigate the issue of guilty intent, and in fact could not objectively have had any basis for reasonably believing that Mihail and Andrei were probably guilty of intending to defraud Lowes”. They further submit that there is a paucity of evidence indicating that Mihail and Andrei “knew” that the goods they were picking up were fraudulently purchased, apart from “improper inferences”. Instead, they submit that all of the evidence supported the conclusion that Mihail and Andrei did not know they were picking up fraudulently purchased merchandise, including:

a) Mihail has never assisted his customers in paying for procuring the goods he moves;

b) Mihail advised Lowe’s employees and WPS officers that he was attending in Windsor to pick up an order for “Kofman”. He did not hold himself to be “Kofman” or otherwise to be the person who placed the order;

c) The Lowe’s customer service representatives confirmed that Mihail and Andrei did not know what goods they were picking up from Lowe’s [In my view that proposition is a misapprehension of the evidence. More accurately stated, the Lowe’s customer service representatives confirm that Mihail and Andrei told them that they did not know what goods they were picking up. There is no evidence that Ms. Fox or Ms. Rinkel had any independent knowledge of the truth of the plaintiffs’ statements in that regard];

d) Customer service representative Fox confirmed that Mihail had no receipt or pickup number with respect to the orders he attempted to pick up;

e) PC Khoury recorded Andrei’s explanation that his father operated a small moving company and advertised in Russian newspapers, through which they came into contact with “Kofman”. Andrei told PC Khoury that they did not know what they were picking up at the store until employees contacted Kofman about the order; and

f) PC Khoury records that Andrei and Mihail denied having any involvement with the stolen goods and denied knowing that they were purchased fraudulently with credit cards.

[273] In my view, the available evidence conclusively establishes that PC Khoury reasonably relied on information that was provided to her by Mr. Findlay regarding the scope and particulars of the suspected and, in some instances, confirmed fraudulent purchases made under various pseudonyms, including “Kofman” (all of the formerly suspected orders were eventually confirmed as fraudulent). She also reasonably relied on Mr. Findlay’s information with respect to the total value of the merchandise (i.e. over $5,000) that Mihail and Andrei were attempting to pick up under the name Kofman on March 13, 2010. The available evidence does not disclose any information that reasonably ought to have led PC Khoury to be concerned with the veracity or accuracy of the information that she received from Mr. Findlay with respect to the foregoing matters. There is no genuine issue requiring a trial in that regard.

[274] The information PC Khoury received from Mr. Findlay was also reasonably capable of supporting a view that the “fraud” being perpetrated or attempting to be perpetrated against Lowe’s involved: multiple orders over the course of several days; two geographically diverse target locations (Belleville and Windsor); three known pseudonyms (Lachman, Kofman, and Levi); the use of information associated with a significant number of differing credit cards; merchandise cumulatively totalling over $40,000 in value; and a common location (Toronto) from which all of the impugned orders were placed. Mr. Findlay advised PC Khoury that prior to contacting police, he received confirmation from a credit card issuer that the orders that Mihail and Andrei were attempting to pick up on March 13, 2010 were, in fact, funded through the fraudulent use of credit card information. He also told her that one of the individuals at the Windsor store had picked up orders from the Belleville Lowe’s location on March 11, 2010, that were associated with one of the pseudonyms ostensibly used in the fraudulent and suspected fraudulent credit card purchases. She was shown a photograph taken from a surveillance camera at the Belleville store’s location and she was informed that it was taken during the pickup of the March 11, 2010 Belleville orders. She independently satisfied herself that the individual in the photograph was one of the people attempting to make the Windsor pickup on March 13, 2010.

[275] She made inquiries of Mihail and Andrei and considered their explanation of their innocence, which was anchored in the nature of Mihail’s business and the manner in which “Kofman” was said to have contacted Mihail. The plaintiffs also disclosed that: they had no documentation with respect to the merchandise they were trying to obtain; they did not know what the merchandise was; and they did not know the location that they were to deliver the merchandise once they obtained it from Lowe’s, (other than it was somewhere in the GTA).

[276] In my view, the totality of the information and circumstances with which PC Khoury was faced, objectively supported the existence of reasonable and probable grounds to arrest Mihail and Andrei on March 13, 2010. Contextually, PC Khoury was responding to a call involving a “real-time” act in furtherance of the commission of a fraud against Lowe’s, specifically the act of depriving Lowe’s of valuable property. That remains so, in any event of whether Mihail and Andrei were knowing participants in the commission of the fraud.

[277] The plaintiffs suggest that PC Khoury’s arrest was not lawful because she was not subjectively aware of any evidence to establish that Mihail and Andrei knowingly intended to defraud Lowe’s, and the only evidence available to her on that point was their statements denying such knowledge. I do not accept that position. In my view, the circumstances with which PC Khoury was confronted did not so overwhelmingly point to Mihail and Andrei’s innocence that no reasonable person could have believed in their guilt: see Cellini v. Ontario (Attorney General), 2000 O.J. No. 180 (S.C.), at para. 25.

[278] The subject matter of PC Khoury’s arrests was restricted to the factual transactions that the plaintiffs were engaged in on March 13, 2010, at the Windsor Lowe’s location. Clearly, the plaintiffs were attempting to pick up merchandise that had, in fact, been purchased through the fraudulent use of credit card information (whether they knew the means of purchase or not). There is no dispute that PC Khoury was not aware of “direct evidence” establishing the knowledge required to make out an offence under s. 380 of the Code, but that does not lead to the inescapable conclusion that there was “no evidence” available to her on that issue, as the plaintiffs submit. To the contrary, in my view, there was evidence available to PC Khoury from which the “state of mind” required for an offence pursuant to s. 380(1) of the Code was capable of being reasonably inferred for the purpose of forming reasonable and probable grounds to arrest Mihail and Andrei. I will explain.

[279] The issue of whether the plaintiffs specifically “knew” that the subject property was purchased through the fraudulent use of credit card information, or more generally, through deceit, falsehood, or other fraudulent means, requires a determination of their respective states of mind. At trial, the Crown would have had the onus to prove that the plaintiffs “actually knew” that the deprivation of Lowe’s property (or the risk of deprivation of that property) arose directly or indirectly through deceit, falsehood, or other fraudulent means, or that they were wilfully blind to that fact. The requisite state of mind for the offence is a matter that may be established indirectly through inferences arising from the circumstances surrounding the factual transaction(s) from which the offence is said to arise. When determining whether the Crown met its onus to prove, beyond a reasonable doubt, that Mihail and Andrei possessed the requisite knowledge to make out the offence, the trier of fact would have been entitled to consider their words and conduct before and at the time that they were attempting to obtain the subject property from Lowe’s. Indeed, in Théroux, the Court confirms that the requisite subjective knowledge required to prove the offence beyond a reasonable doubt at trial may, in certain instances, be inferred from the circumstances surrounding the commission of the actus reus of the offence.

[280] Similarly, as a matter of logic, a peace officer ought to be able to rely on reasonable inferences of the existence of the requisite mental element of an offence that arise from the circumstances surrounding the commission of its prohibited conduct. Where “knowledge of a fact” is an essential element of an offence, it is often difficult to establish that element through direct evidence at the investigatory stage of a proceeding. In the absence of a voluntary inculpatory confession of knowledge from the suspect or evidence of an admission of guilty knowledge made to a third party, the police (and ultimately triers of fact) are often left to evaluate a suspect’s or accused’s “knowledge” through the existence of permissible inferences arising from the available circumstantial evidence.

[281] In this instance, subject to the evidence of the other transaction or transactions at the Belleville Lowe’s location in which Andrei and Mihail, respectively, were involved, being admitted as evidence in the trial of the charges laid by the WPS, the following circumstances reasonably had the potential to inform the trier of fact’s determination of the plaintiffs’ respective states of mind: the evidence of Mihail and Andrei’s involvement in more than one pickup or attempted pickup of property of which Lowe’s was at risk of being deprived; their receipt or attempted receipt of such property in different parts of the province; the consistent fraudulent mode by which the various orders that they picked up, were placed; and, the common customer name used to obtain merchandise from different Lowe’s locations that ultimately Mihail, in fact, received from Lowe’s. Those were all matters of which PC Khoury was aware at the time of arrest, and in my view, the circumstances reasonably permitted PC Khoury to infer the requisite knowledge and intent for the purpose of arresting and charging Mihail and Andrei, as she did.

[282] As a result, I find that there was “some evidence” supporting the “knowledge element” of the s. 380(1) offences at the time that Mihail and Andrei were arrested by PC Khoury on March 13, 2010. Whether all aspects of that evidence would ultimately be ruled admissible at trial and otherwise found to be sufficient to allow a trier of fact to find that the Crown had proven the essential elements of the offences with which the plaintiffs were ultimately charged (attempted fraud over $5,000), were not matters for PC Khoury to conclude. In order to form reasonable and probable grounds to arrest Mihail and Andrei, she was not required: to evaluate the evidence available to her according to legal standards; to make legal judgments; or, to establish an inevitable conviction,

[283] While under no obligation to do so, PC Khoury obtained Mihail and Andrei’s version of events before she arrested them. Clearly, when PC Khoury formed her grounds for arrest she appreciated and considered Mihail and Andrei’s innocent explanation for driving from the GTA to the Windsor Lowe’s location without any paperwork, to pick up merchandise (the specifics of which they said were unknown to them) that, in fact, was purchased through the unauthorized use of credit card information. She also documented and considered their stated intent to return to a point of delivery in Toronto that was still unknown to them at the time of their attempted Windsor pickup. Although PC Khoury dutifully documented and considered the plaintiff’s explanation for their attendance at the Windsor Lowe’s stores, she was not obliged to unequivocally accept their explanation as true. Whether the explanation given by Mihail and Andrei, if provided in evidence at trial, would either be accepted or leave the trier of fact with reasonable doubt, were issues for the trier of fact. PC Khoury was not required to determine those legal issues as a pre-requisite to forming adequate grounds for arrest.

[284] As a result of the foregoing, I find that on the information available to her PC Khoury’s belief that there were sufficient grounds to arrest Mihail and Andrei was reasonable and that she exercised her discretion as a peace officer in a reasonable manner in so doing.

[285] Turning to a related issue, the plaintiffs criticize the individual WPS defendants that remain in this action, including PC Khoury, for failing to interview or take statements from the Lowe’s customer service employees who interacted with Mihail and Andrei on March 13, 2010 (Ms. Fox and Ms. Rinkel). They claim that these people were witnesses with “important exculpatory evidence”. The plaintiffs’ criticism in that regard does not result in a genuine issue requiring a trial with respect to either the reasonable and probable grounds that PC Khoury had at the time she arrested Mihail and Andrei or whether the WPS investigation thereafter, was conducted in accordance with a reasonable standard of care, the latter of which I will address later in these reasons.

[286] With respect to PC Khoury, the law is clear that a police officer is not required to: exhaust all possible routes of investigation or inquiry; interview all potential witnesses prior to arrest; obtain the suspect’s version of events; or otherwise establish that there is no valid defence before being able to form reasonable and probable grounds to arrest: see 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, at para. 52.

[287] PC Khoury’s post-arrest report records that as she approached Mihail and Andrei in the Lowe’s store, she observed them talking to an employee. That observation supports that she was aware that they had interacted with one or more Lowe’s employees in relation to their attempted pickup. Nonetheless, she was not under an obligation to seek out and interview all potential witnesses, including every or any employee that may have interacted with Mihail and Andrei before she made the arrests. After obtaining information from Mr. Findlay, viewing Mihail’s photograph from Belleville and speaking with Mihail and Andrei, she held reasonable and probable grounds to arrest them, and did so.

[288] Moreover, the “exculpatory” information that the plaintiffs assert was held by Ms. Fox and Ms. Rinkel was already known to PC Khoury before she arrested Mihail and Andrei. I will explain.

[289] Through her affidavit, Ms. Fox testifies that:

a) Mihail and Andrei told her that they were picking up an order under the name of “Kofman”. The same information is contained at page two of PC Khoury’s March 13, 2010 post-arrest occurrence summary report [Ms. Fox’s evidence adds nothing more to the information that PC Khoury was already aware of, in that regard];

b) she was advised by Mihail and Andrei that: they did not have a receipt or pickup number for the order(s) they were attempting to pick up; they were told by “Kofman” to attend the store and “pick up his stuff”; and they did not know what products they were picking up. Similarly, at page three of her report, PC Khoury records that Andrei advised her that Kofman did not give them any paperwork and told them they just had to provide his name and an order would be on the Lowe’s computer. Andrei also told PC Khoury that he and Mihail did not know what merchandise they were picking up at the store until they contacted “Kofman” [Ms. Fox’s evidence adds nothing more to the information that PC Khoury was already aware of, in that regard];

c) while in Ms. Fox’s presence, Mihail spoke to an individual in an different language and then gave her the phone, at which time “Kofman” advised Ms. Fox of the particulars of the merchandise he had ordered. Similarly, at page three of her occurrence report, PC Khoury records that Andrei stated her that they did not know what they were picking up until the Lowe’s store contacted Kofman about the order when they arrived (i.e. evidence that there was another individual holding himself out as “Kofman” over the phone while Mihail and Andrei were physically present in the Windsor Lowe’s store) [Ms. Fox’s evidence adds nothing more to the information that PC Khoury was already aware of, in that regard]; and

d) Mihail contacted “Kofman” a second time and again gave Ms. Fox the phone. “Kofman” again described the items that he had purchased and disclosed the first names of people he had dealt with when so doing. Ms. Fox advised him that she would call back when she found the order. Subsequently, as she was looking in the computer, the police arrived and took over. In her report, PC Khoury records that Andrei did not know what they were picking up until the store contacted Kofman about the order [Ms. Fox’s evidence adds nothing more to the information that PC Khoury was already aware of, in that regard].

[290] In the result, even without interviewing Ms. Fox and before Mihail and Andrei were arrested, PC Khoury was aware of all of the aspects of Ms. Fox’s evidence that the plaintiffs characterizes as being exculpatory. Similar to the evidence of Ms. Fox, the content of Ms. Rinkel’s witness statement is generally comprised of information that was known to and considered by PC Khoury when she formed her grounds for arrest.

[291] There is no evidence that PC Khoury’s grounds for arrest would have or ought to have been vitiated through the information that was available through Ms. Fox. The fraud offence for which the plaintiffs were arrested was not dependent on one or both of the plaintiffs being identified as the person or persons who posed as “Kofman”, when the fraudulent orders were placed, nor did it depend on the plaintiffs knowing the particulars of the merchandise they were to pick up on behalf of “Kofman” from the Windsor Lowe’s location. Based on the information available to PC Khoury, the fact that another individual identified himself as “Kofman” over the phone to a Lowe’s employee while Mihail and Andrei were in the store did not serve as overwhelming evidence of their innocence. PC Khoury was aware of information, provided to her by Andrei, that Kofman spoke to a Lowe’s employee while the plaintiffs were in the store. From an objective perspective, the fact that a person identified himself over the phone as “Kofman” on March 13, 2010, while Mihail and Andrei were in the store, did not preclude the possibility that another person posed as Kofman earlier when the orders were placed or the possibility that the individuals attempting to pick up the orders knew of the fraudulent means by which they were purchased.

[292] The fact that Mihail and Andrei provided similar information to both Ms. Fox and PC Khoury does not evidence that the information that they provided was any more or less true. One can have knowledge and claim, even repeatedly, to be ignorant.

[293] In the result, there is no evidence that the objective existence of lawful grounds to arrest Mihail and Andrei or PC Khoury’s subjective belief in those grounds, would have been materially affected had she “interviewed” Ms. Fox and Ms. Rinkel prior to doing so.

[294] The plaintiffs raise a final issue with respect to PC Khoury’s evidence, which they characterize as a significant discord in the record concerning whether PC Khoury personally spoke to “Kofman” on March 13, 2010. They assert that a trial is required to resolve the conflicting evidence on that point. I do not agree. I will explain.

[295] Even if PC Khoury spoke with “Kofman” briefly, as Mihail testifies, it would not appreciably alter the circumstances giving rise to the existence of her lawful grounds to make the arrests. Mihail says that owing to a language barrier, he does not know what PC Khoury said to Kofman during their brief call. Consequently, on the available evidence, if the phone call occurred as Mihail describes, at best PC Khoury would have had direct knowledge that a person other than the plaintiffs was holding himself out as “Kofman”, while the plaintiffs were in the Windsor store. Yet, PC Khoury was already aware of that information at the time she arrested Mihail and Andrei. Her grounds to arrest the plaintiffs were not dependent on her belief that either Mihail or Andrei were posing as “Kofman”, while in the Windsor store. Therefore, even if the call occurred, it would not vitiate the objectively reasonable and lawful grounds to arrest that PC Khoury held. As a result, the determination of the conflict in the evidence concerning whether PC Khoury spoke momentarily to Kofman does not appreciably inform the issues in the action, and it does not render a trial necessary.

[296] Further, if it was necessary to resolve the conflicting evidence on whether PC Khoury spoke to Kofman, in order to fairly and justly adjudicate the liability issues related to the WPS defendants, I would conclude that it would be in the interests of justice to use the fact-finding powers available pursuant to r. 20.04(2.1) of the Rules to do so. In so doing, I would find that PC Khoury did not speak with “Kofman” over the phone, prior to arresting Mihail and Andrei. I will explain.

[297] The only evidence supporting that PC Khoury spoke over the phone to Kofman comes from Mihail. Conversely, there is a robust body of evidence to the contrary, which is sourced to every other individual in the immediate proximity of PC Khoury when she is alleged to have engaged in the call. PC Khoury does not recall doing so. Had she done so, she would have recorded that event in her notes and report. She did not. Similarly, PC Brnardic testifies to certain pointed details with respect to the interaction between police and Mihail and Andrei prior to their arrest. He testifies that he has no recollection of PC Khoury engaging in the alleged Kofman call. The plaintiffs do not identify any aspect of either officer’s notebook entries that supports Mihail’s evidence on the point.

[298] Further, Ms. Fox testifies that she has no recollection of such a call taking place. Instead, she testifies that her second call with Kofman ended before police arrived at the customer service area. Ms. Fox’s evidence does not support Mihail’s assertion that he took his phone from Ms. Fox and handed it to PC Khoury. Finally, even Andrei has no recollection of PC Khoury speaking to Kofman on Mihail’s phone. In cross-examination, he adopted portions of his evidence at his Examination for Discovery that establish that he did not recall the alleged call occurring.

[299] In the result, four out of the five witnesses who were present when the alleged call took place do not recall it. Two out of those five witnesses, PC Brnardic and PC Khoury made contemporaneous notes of the events of their investigation, including their interactions with Mihail and Andrei. Their notes do not record that the call occurred. In the context of the totality of the evidence, I find with confidence that such a call did not take place.

[300] For all of the reasons set out above, I find that PC Khoury’s belief that there were adequate and lawful grounds to arrest Mihail and Andrei without a warrant was reasonable, in all of the circumstances.

d) No Genuine Issue With Respect to the Liability of PC Brnardic

[301] The allegations of liability against PC Brnardic can be disposed of readily without a trial. The issue of whether he engaged in any tortious or other actionable misconduct in respect of the plaintiffs is not a genuine one. He did not. His role was limited to attending the Windsor Lowe’s location in response to its initial “complaint”.

[302] His active involvement was limited to: receiving information from Mr. Findlay; his presence when Mihail and Andrei were questioned and subsequently arrested by PC Khoury; and, his completion of the ancillary functions assigned to him by PC Khoury (taking a statement from Mr. Findlay and awaiting the tow of Mihail’s vehicle). He was not the arresting officer nor was he a primary investigating officer with respect to the fraud committed against Lowe’s. His interaction with the plaintiffs was relatively limited and subsumed by the primary actions of PC Khoury.

[303] There is no evidence that a reasonable police officer, in circumstances similar to those of PC Brnardic, would have acted any differently than he did. There is no evidence that PC Brnardic was in a position to halt the arrests of Mihail and Andrei and even then, he was correctly of the view that reasonable and probable grounds existed for PC Khoury to arrest them, as she did. He was not tasked with, or involved in, the post-arrest investigation of the Lowe’s complaint.

[304] Finally, PC Brnardic confirms that prior to his arrest, Andrei proposed that police follow him and Mihail back to the GTA, to the yet to be disclosed location where the Lowe’s merchandise would be transferred to, or on behalf of, “Kofman”. The officers declined to pursue that proposal. There is no evidence suggesting that a reasonable police officer in similar circumstances to those of PC Brnardic and PC Khoury would have done otherwise. PC Brnardic explains the proposed action was contrary to a written directive governing WPS officers’ use of informants and agents. His evidence in that regard is uncontradicted.

[305] As a result of the foregoing, there is no evidence that PC Brnardic is liable to the plaintiffs, at all. A trial is not required in that regard.

e) The Allegations of Negligent Investigation Against the WPS Defendants

[306] In this aspect of their claim, the plaintiffs again rely on the assertion that the WPS defendants “utterly failed” to investigate the mens rea element of the offence with which they were charged. They suggest that PC Khoury’s original failure in that regard tainted her investigation and prevented her from objectively forming reasonable and probable grounds to arrest Mihail and Andrei. For reasons that are set out above, that submission fails.

[307] The plaintiffs further posit that even if PC Khoury had adequate grounds to arrest Mihail and Andrei, those grounds were vitiated by information that subsequently came to DC McCann’s attention. In addition, his investigation was replete with periods of inexplicable delay and a consistent failure to engage in reasonable investigatory steps that would have uncovered further exculpatory evidence.

[308] Finally, the plaintiffs submit that the conduct of DC McCann’s investigation and his omissions therein, were both “egregious”, and “non-technical”. As a result, the plaintiffs submit that expert evidence is not required to establish the parameters of the standard of care applicable to DC McCann’s investigation.

[309] Through their factum, the plaintiffs particularize the conduct that they submit evidences that DC McCann’s conduct of the post-arrest investigation fell below a reasonable standard of care, as follows:

1. DC McCann failed to appreciate that there were no longer reasonable and probable grounds to suspect that Mihail and Andrei were guilty of attempted fraud over $5,000 in respect of the March 13, 2010 Windsor “Kofman” orders because:

i) there were a total of four sets of Kofman orders that were successfully picked up at either the Windsor or Belleville Lowe’s locations before Mihail and Andrei attempted to pick up the Kofman order from Windsor on March 13, 2010. However, Mihail was only involved in two of the four prior successful pickups;

ii) the video surveillance from the Windsor Lowe’s location, taken on March 11, 2010, evidenced that two individuals other than Mihail and Andrei picked up a “Kofman” order from that location on that day (which occurred on the same day that Mihail was involved in picking up a fraudulent “Kofman” order from the Belleville Lowe’s location);

iii) the plaintiffs interpret DC McCann’s answers to certain questions posed at his Examination for Discovery as evidencing that he had an investigative “concern” that the Windsor Lowe’s March 11, 2010 surveillance depicted two individuals other than Andrei and Mihail successfully picking up a “Kofman” order;

iv) the plaintiffs interpret DC McCann’s evidence in cross-examination to indicate that the only indicia of mens rea for the attempted fraud over $5,000 charges, of which he was aware, was that Mihail and Andrei knew the appropriate sized truck to bring to Windsor on March 13, 2010; and

v) a fraudulent order was placed and picked up from a Sudbury Lowe’s location, using a name other than Lachman, Kofman or Levi, on March 17, 2010, while Mihail and Andrei were in custody.

2. DC McCann’s investigation was unreasonably limited to: viewing what the plaintiffs characterize as the exculpatory March 11, 2010 Windsor surveillance; confirming the plaintiffs’ immigration status; and, confirming that certain credit card purchases were, in fact, fraudulent.

3. DC McCann failed to engage in investigatory steps that an “ordinary and reasonable person” would expect a detective to engage in, specifically:

i) questioning the accuseds;

ii) attending at the Windsor Lowe’s to interview the employees that actually dealt with Mihail and Andrei (i.e. Ms. Fox and Ms. Rinkel); and

iii) developing evidence of mens rea beyond “knowing what truck to bring”.

[310] The determination of whether a genuine issue requiring a trial exists with respect to the plaintiffs’ claims against the WPS defendants in negligent investigation must be made in the context of the principles articulated in Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129.

[311] In Hill, the Court concluded that there are some circumstances in which police officers owe a duty of care to the subjects of a criminal investigation. Generally, a police officer owes a duty of care to suspects such that the officer will be liable for negligence if he or she fails to meet the standard of care of a “reasonable police officer in similar circumstances”. The applicable standard of care does not demand perfection or even optimum police conduct judged from the vantage of hindsight. The standard is that of a reasonable officer judged in the circumstances prevailing at the time the decision was made, which may include urgency and deficiencies of information (para. 73).

[312] The conduct of a police officer must be evaluated in accordance with the requisite standard of care that existed at the time of the investigation and not at the time of the evaluation of the reasonableness of the investigation by a trier of fact (para. 80).

[313] The standard of care of “a reasonable police officer in similar circumstances” should be applied in a manner that recognizes the discretion inherent in police investigation. The requisite standard of care is not breached because a police officer exercises his or her discretion in a manner that is viewed as less than optimal by the reviewing court. Police officers are entitled to exercise their discretion as they see fit, provided they stay within the bounds of “reasonableness” (para. 73).

[314] Police officers may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care (para. 73).

[315] The recognition of a duty of care owed by police to suspects does not elevate the standard required of police from “reasonable and probable grounds” to some higher standard. The requirement of reasonable and probable grounds for arrest and prosecution informs the standard of care applicable to those specific aspects of police work (para. 55).

[316] 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 police to make judgments as to “legal guilt or innocence” before proceeding against a suspect. While police are required to weigh evidence, to some extent, in the course of an investigation they are not required to evaluate evidence according to legal standards or to make legal judgments. Rather, that is the task of prosecutors, defence attorneys and judges (paras. 49 and 50).

[317] Police officers must approach their duties with an open mind, and must be willing to re-investigate matters when circumstances warrant such action. When new information emerges that could be relevant to the suspect’s innocence, “reasonable police conduct” may require the file to be reopened and the matter re-investigated. The requirements imposed by the “duty to re-investigate” vary depending on the nature of the evidence which later emerges. In some cases, an examination of the evidence and a determination that it does not warrant further action may be enough. In others, reasonable prudence may require the police to re-examine prior theories of the case, test the credibility of new evidence and engage in further investigation based on the new evidence. However, police investigations are not never ending processes extending indefinitely past the point of arrest. Police officers acting reasonably may, at some point, close their case against a suspect and move on to other matters. The question is always what a reasonable officer, in like circumstances, would have done to fulfill the duty to re-investigate and to respond to new evidence (para. 84).

[318] Generally, the determination of the parameters of the standard of care applicable to a professional such as a police officer, requires expert evidence: see Central Auto Parts, at para. 75; and Fragomeni v. Greater Sudbury (City) Police Service, 2015 ONSC 3937, at paras. 91-92. There are two identified exceptions to the general rule that it is not possible to determine professional negligence without the benefit of expert evidence. First, expert evidence is not required for non-technical matters or those of which an ordinary person may be expected to have knowledge. In that respect, the determination of whether expert evidence as to the standard of care of a police officer is required, is a function of the nature of the issues and the facts of each case with particular regard to any specialized aspect or technical nature of the prevailing case-specific circumstances and their impact on the trier of fact’s ability to rely on its own knowledge and experience to determine the appropriate standard of care (and whether it was met). The second exception is rendered operative when the impugned misfeasance is so “egregious” that it is obvious that the defendant’s conduct has fallen short of the applicable standard of care, even without knowing its precise parameters: see Central Auto Parts, at paras. 53-57.

[319] In a negligent investigation claim, the onus is on the plaintiff to demonstrate that the facts known to a police officer point so overwhelmingly to the plaintiff’s innocence that no reasonable person could have believed in the plaintiff’s guilt. For a claim for negligent investigation to succeed, the plaintiff must establish that the negligence caused the charges to be laid in circumstances where reasonable and probable grounds did not exist. Failure by the plaintiff to establish an absence of reasonable and probable grounds is fatal to a claim for negligent investigation: see Kellman, at paras. 17 and 23. In determining that issue in this instance, the appropriate inquiry is not whether police could prove that Mihail and Andrei knew that the March 13, 2010 Kofman orders were purchased through fraudulent means, but rather whether PC Khoury and later DC McCann had reasonable and probable grounds to believe that an offence had been committed: see Central Auto Parts, at para. 97. Further, when evaluating the plaintiffs’ criticisms of DC McCann’s investigation, this court must remain mindful that the decided cases hold that police are not required to: exhaust all avenues of investigation; establish that an accused has no defence; or even obtain an accused’s version of events: see Central Auto Parts, at para. 84.

[320] In the context of the foregoing principles and the available evidence, I find that the WPS defendants have met their onus to demonstrate that there is no genuine issue that requires a trial to determine whether DC McCann’s conduct breached the applicable standard of care. I will explain.

[321] The plaintiffs are required to put their best evidentiary foot forward in the context of the WPS defendants’ summary judgment motion. They have elected not to adduce any expert evidence on the standard of care applicable to an officer in similar circumstances as those that faced DC McCann in 2010. DC McCann assumed the post-arrest investigation of an attempt to commit fraud over $5,000 charge against two accused who attempted to pick up merchandise (with a value over $5,000) that was purchased over the phone through the fraudulent use of credit card information. That conduct took place in the larger context (whether known or unknown to the accuseds) of a relatively organized fraudulent credit card purchasing scheme involving: multiple credit card numbers; multiple telephone purchases placed from the GTA on varying dates; orders placed through at least three aliases; the use of burner phones which could not be traced to a specific user; various target locations (Windsor and Belleville); and multiple people involved in obtaining the merchandise from the target locations (including Mihail, Andrei and Alexei). The plaintiffs contend that the scope of the standard of care applicable to the conduct of such an investigation, in 2010, is a non-technical matter that does not require expert evidence. I do not agree.

[322] The conduct of a reasonable police officer assigned to conduct further investigation of a financial crime almost a decade ago, that takes place in the context of a wider ongoing fraud operation as DC McCann describes, is not something that falls within the ordinary experience of a trier of fact. Below, I will detail and dispose of the issues arising out of what the plaintiffs describe as DC McCann’s unreasonable conduct. However, in the absence of evidence from a properly qualified expert on the parameters of the applicable standard of care, their submissions in that regard are more consistent with complaints about the permissible choices that DC McCann made in the exercise of his investigatory discretion than they are with the identification of conduct that breached the applicable standard of care.

[323] On the available evidence, it is apparent that further investigation was required after Mihail and Andrei were charged (but not necessarily on the issues that the plaintiffs assert), which is why the matter came to DC McCann at first instance.

[324] As the Court observes in Hill, police are primarily concerned with gathering and evaluating evidence. Through his ongoing investigation, DC McCann engaged in those functions, principally by developing direct evidence to support the information that was originally provided to PC Khoury. For example, the information that PC Khoury received from Mr. Findlay regarding the fraudulent means used to purchase the merchandise that Mihail and Andrei were attempting to pick up on March 13, 2010, contained hearsay in the form of Mr. Morgan’s statements and double hearsay with respect to confirmation of actual cardholders indicating that they did not make or authorize the subject purchases. While Mr. Findlay’s information was adequate to inform the issue of whether there were reasonable and probable grounds to believe that Mihail and Andrei committed or were committing a criminal offence, such evidence was not trial worthy. Instead, direct evidence from credit cardholders confirming the unauthorized use of their credit card information would be necessary at trial, in part, to establish the requisite fraudulent means associated with the offences with which the accuseds were charged. However, apart from taking steps to develop and secure admissible evidence that directly proves the acts in furtherance of the fraud, I am unable to accept that an ordinary person would hold a clear and firm appreciation of how a police officer in 2010, ought to have conducted an attempted fraud investigation, in circumstances similar to those which DC McCann faced, or at all.

[325] Further, the plaintiffs’ submissions with respect to the alleged negligent acts and omissions embedded in DC McCann’s investigation, also underscores the need for expert evidence with respect to the standard of care. Clearly, through their particularized allegations of investigatory misfeasance, the plaintiffs suggest that the parameters of the standard of care applicable to DC McCann’s investigation required him to engage in investigative activities that the law generally recognizes police are not required to engage in. For example, the plaintiffs submit in their factum that a “reasonable person” would have expected DC McCann to interview the accuseds. However, the plaintiffs’ asserted “reasonably held expectation” in that regard, is contrary to the weight of the jurisprudence establishing that a police officer is not required to interview an accused during the course of an investigation. The plaintiffs offer no evidence or even an explanation as to why the standard of care in this instance compelled DC McCann to interview Mihail and Andrei, when the law does not. The justification for such a dichotomy is not self-evident nor is it a matter within the ken of an ordinary person. The plaintiffs’ submission that DC McCann was required to interview Mihail and Andrei ought to have been anchored in the evidence of a properly qualified expert opining on the parameters of applicable standard of care. It was not. Since police are under no obligation to interview a suspect or accused, I am unable to conclude that there is a genuine issue requiring a trial to determine that DC McCann’s failure to do so was so egregious that it breached the standard of care without knowing its parameters.

[326] In addition, there is no evidence establishing that suspect interviews would have appreciably altered the outcome in this case. Recall that even without personally questioning the accuseds, DC McCann was aware of the “innocent explanation” offered by Mihail and Andrei to PC Khoury. He considered that explanation together with all other relevant information, during his investigation. The plaintiffs’ submission that DC McCann was reasonably obligated to do something more in that regard, in the context of his financial crime investigation, is not a non-technical matter within the anticipated knowledge of an ordinary person.

[327] In addition, there is no evidence that had DC McCann interviewed Mihail and Andrei he would have uncovered overwhelming evidence of their innocence such that no reasonable person could believe in their guilt. To the contrary, in my view, had Andrei and Mihail provided the same information to DC McCann in the course of his investigation that they testified to in their respective Examinations for Discovery, that information would have been capable of supporting reasonable grounds to believe that the plaintiffs were wilfully blind to the unlawful means that were used to obtain the Lowe’s merchandise that they had picked up from Belleville and were attempting to pick up from Windsor on March 13, 2010. I will explain.

[328] Wilful blindness is the equivalent of knowledge and operates to impute knowledge to a person who suspected the truth, knew of its probability, but deliberately refrained from making inquiries that would have confirmed his suspicion because he wished to avoid actual knowledge. Where wilful blindness is an issue, the question is not whether the accused should have been suspicious but whether the accused was, in fact, suspicious to the point where he or she saw the need for further inquiries but deliberately chose not to make those inquiries: see R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 21-23.

[329] Had Mihail and Andrei been questioned by DC McCann and provided information consistent with the evidence they gave at their respective Examinations for Discovery (and during Mihail’s cross-examination), DC McCann would have learned about the circumstances of Mihail’s pickup of merchandise from the Barrie “End of the Roll” store on behalf of “Gery Cofman” on March 6, 2010. He also would have received information that: on March 9 or 10, 2010, Mihail was retained by a Russian-speaking individual, who Mihail says identified himself as Kofman or one of Kofman’s employees, to pick up unspecified goods from a Lowe’s store in Belleville and deliver them to Toronto; Mihail never met personally with the customer; Mihail was not provided with a delivery address or an address for his customer at the time he was retained; Mihail and Andrei attended in Belleville and picked up the merchandise from Lowe’s as directed (which was ordered and held under the name Lachman); at the time of the pickup, they did not know where the merchandise was to be delivered; as they returned to the GTA, they received telephone instructions from Kofman or one of his employees to deliver the merchandise to a specific street address located approximately 200 metres from Mihail’s residence; the delivery address was not a job site, it was a cul-de-sac at the end of a dead-end street; Mihail found the delivery location to be strange; once there, they transferred merchandise from their vehicle onto the street and into a second vehicle operated by two individuals whom they were told were authorized to receive the goods; no documentation was exchanged on delivery and Mihail was paid in cash.

[330] DC McCann also would have learned that: on March 11, 2010, Mihail received another call from an individual identifying himself as Kofman, who retained Mihail to pick up merchandise at the Belleville Lowe’s location and deliver it to an undisclosed location in the GTA; Mihail and Alexei travelled from the GTA to the Belleville Lowe’s location and picked up Kofman’s orders; at the time they did so, they did not know the specific location where the property was to be delivered; as they returned to the GTA, they were instructed by phone to deliver the goods to the same dead-end street as the day before; Mihail attended the drop-off alone; once at the drop-off location, Mihail transferred the property onto the street and to a second vehicle; no documentation was exchanged on delivery and Mihail was paid in cash.

[331] That information added context to the information of which DC McCann was already aware from the content of PC Khoury’s report concerning the circumstances of the Windsor Lowe’s “Kofman” order that Mihail and Andrei attempted to pick up on March 13, 2010.

[332] The additional information in the plaintiffs’ narratives concerning the circumstances both prior to and subsequent to Mihail’s successive acts of possessing and delivering property from the Belleville Lowe’s store to the back of a second vehicle on a dead-end street in the GTA, without any documentation, for cash, appears to be more inculpatory than exculpatory on the issue of the plaintiffs’ respective states of mind and specifically, the subjectively perceived need to make further inquiries about the method of acquisition of the property being transported.

[333] Although it would have eventually been for the Crown to establish beyond a reasonable doubt that the plaintiffs had knowledge of the fraudulent means through which the goods had been acquired at the time they attempted to pick them up on March 13, 2010, or were wilfully blind to the manner in which the property was purchased or acquired, that is not the standard that DC McCann was required to apply. In my view, had DC McCann been provided with the foregoing information through suspect questioning, after arrest, there still would have been reasonable and probable grounds to believe that on March 13, 2010, Andrei and Mihail had or were committing the offence with which they were charged.

[334] In the result, the available evidence does not establish a genuine issue requiring a trial to determine whether DC McCann’s decision not to interview Mihail and Andrei failed to accord with the requisite standard of care. As a matter of law, he was not required to do so. There is no evidence that his decision not to pursue suspect questioning fell outside the reasonable exercise of his discretion as a police officer. Further, there is no evidence that had he interviewed them, the plaintiffs’ information surrounding the circumstances of the pickup and drop-off of Lowe’s property and the circumstances of Mihail’s retention to do so, would have vitiated DC McCann’s reasonable and probable grounds with respect to the charges against the plaintiffs.

[335] Turning to another aspect of the plaintiffs’ allegations of DC McCann’s investigatory misfeasance, there is no evidence establishing that DC McCann’s conduct fell below a reasonable standard of care because he did not directly interview the Lowe’s employees who interacted with Mihail and Andrei on March 13, 2010 (Ms. Fox and Ms. Rinkel). As a matter of law, police are not required to interview every possible witness or take every possible investigatory action to establish the innocence of a suspect. To the extent that the plaintiffs posit that the parameters of the standard of care applicable to DC McCann’s investigation differed, or otherwise required him to take statements from Ms. Fox and Ms. Rinkel, that position ought to have been anchored by the evidence of a properly qualified expert opining on the scope of the applicable standard of care.

[336] Without the requisite expert evidence on the point, there is no evidence before me that establishes a genuine issue requiring a trial to determine whether a police officer investigating financial crime in the same circumstances as DC McCann in 2010, would reasonably anticipate that witness interviews of the customer service representatives who interacted with the plaintiffs when they attempted to pick up the merchandise on March 13, 2010, would have resulted in additional relevant and material evidence on the issue of the plaintiffs’ respective states of mind at that time, or at all.

[337] Finally, in any event of the parameters of the standard of care, there is no evidence that the witness interviews the plaintiffs submit reasonably ought to have been undertaken, would have resulted in further exculpatory evidence. For reasons set out previously, I find that all of the exculpatory information that the plaintiffs suggest Ms. Fox and Ms. Rinkel possessed was known to PC Khoury prior to arrest and recorded in her post-arrest report. Further, DC McCann testifies that the information contained in Ms. Fox’s incident statement would have operated to confirm his view that the ongoing credit card fraud against Lowe’s was consistent with an “operation” with a “mastermind” and the “flunkies who do what they are told to do”. He did not characterize Ms. Fox’s information as exculpatory and his evidence in that regard was not contradicted by any other material evidence on the point. On the available evidence, there is no genuine issue requiring a trial on this point.

[338] I also find that, there is no genuine issue that requires a trial to determine the plaintiffs’ allegation that DC McCann was negligent because he failed to “appreciate” that any reasonable and probable grounds with respect to Mihail and Andrei were vitiated by available evidence that established that other people besides Mihail and Andrei also picked up some of the identified fraudulent orders from Lowe’s, including: other people picked up the March 5, 2010 orders from Belleville; other people picked up the March 11, 2010 Kofman orders from Windsor; a third party other than the plaintiffs identified himself as Kofman to Ms. Fox, over the phone on March 13, 2010; and, the Sudbury Lowe’s suffered a loss through the fraudulent use of credit card information on March 17, 2010, when Mihail and Andrei were in custody. The plaintiffs’ allegation in that regard fails owing to the absence of supportive expert evidence on the point, as well as, the actual circumstances that it discloses. I will explain.

[339] The evidence of both DC McCann and Mr. Findlay establishes that the Sudbury Lowe’s order did not involve one of the pseudonyms used in the identified Windsor and Belleville fraudulent orders and was viewed as unrelated to the fraud at the Belleville and Windsor Lowe’s stores.

[340] More fundamentally, the subject matter of the WPS charges against the plaintiffs was limited to their conduct in relation to the specific factual transaction in which they were involved on March 13, 2010. The fact that others were involved in similar conduct on different days does not, in my view, amount to overwhelming evidence of the plaintiffs’ innocence in the impugned transaction on March 13, 2010, such that no reasonable person could believe in their guilt, when considered with the balance of the circumstances.

[341] In arriving at the finding above, I remain mindful that the plaintiffs contend that in his evidence, DC McCann expressed “concern” that other people picked up other orders on different days and that he viewed those circumstances as exculpatory in respect of Mihail and Andrei. In my view, the plaintiffs’ position is founded on a misapprehension of DC McCann’s evidence. During the course his Examination for Discovery, DC McCann confirmed that in the course of his investigation, he reviewed video surveillance of the pickup of fraudulently obtained merchandise from the Windsor Lowe’s location on March 11, 2010. He testifies that he looked for the same suspects [Andrei and Mihail] in the video footage but he did not see anybody that he “recognized, especially not these two, which was my concern in this case”. The plaintiffs’ interpret that aspect of DC McCann’s evidence as an admission that he was “concerned” because Mihail and Andrei were not the persons who picked up the March 11, 2010 Kofman order. He was not questioned further on the point.

[342] In my view, when considered in the context of the totality of his evidence, including his affidavit and related cross-examination, it is clear that through his response upon which the plaintiffs heavily rely, DC McCann conveyed that the focus of his investigation was concerned with the identified suspects, Mihail and Andrei, and not the unidentified individuals who picked up the March 11, 2010 Kofman order. He is clear in his evidence that he believed reasonable and probable grounds existed throughout his investigation, and that his investigation did not uncover any further exculpatory evidence with respect to Mihail and Andrei.

[343] Similar to their approach to the foregoing aspect of DC McCann’s evidence, the plaintiffs also place heavy reliance on a portion of his evidence in cross-examination, which they interpret to be an admission that the only basis DC McCann had for concluding that Mihail and Andrei had the requisite knowledge for the offence of attempted fraud was that they “knew what kind of truck to bring [to Windsor]”. Their conclusion in that regard is primarily anchored in the following exchange, which took place immediately after counsel put the entire content of Ms. Fox’s statement to DC McCann, in detail and questioned him about its exculpatory value:

113. Q. Now [Ms. Fox’s statement] would tend to indicate that this—a person, who identified himself as Mr. Kofman, fictional or otherwise—

A. Yes.

114. Q. There was a person on the phone?

A. Yes.

115. Q. Who said that he was the person who placed the order?

A. Yes.

116. Q. And this Kofman on the telephone, or whoever he was, said he had been dealing with two other Lowe’s employees to place the order?

A. Right.

117. Q. And this witness statement would also indicate that the Kolosovs told the clerk they had no knowledge of what was in the order or what goods they were picking up?

A. That’s right.

118. Q. And did you have any evidence in all the steps of the investigation that we’ve gone through and all the things that we’ve looked at, that would show that the Kolosovs actually knew that the orders were placed with a fraudulent credit card?

A. From my—from my experience, taking this statement, you know, in its entirety, it just tells me that it’s a—it’s an operation. There’s—there’s the mastermind and then there’s the flunkies that go do whatever he says to do.

119. Q. Right.

A. Go to Windsor and pick up some stuff; go to Belleville and pick up some stuff.

120. Q. Right, and the flunkies in this case were—it’s consistent with their story that they’re a small time moving company, they get orders through an advertisement in, a Russian newspaper, and they were just told to come and transport the goods.

A. I don’t know how they would know what kind of truck to bring down if they don’t know what they’re picking up. I think they did know what they were picking because they have to know what kind of truck to come with.

121. Q. Alright.

A. Really.

122. Q. Alright. So what you’re relying on is kind of your subjective—based on your experience, your subjective experience here?

A. Right, because this isn’t the first kind of fraud that I’ve dealt with.

123. Q. Right.

A. In this—in this manner. Or since.

See: Cross-Examination of DC McCann at Examination for Discovery on December 19, 2017, at pp. 25-27, Q. 113 – 123.

[344] In my view, a careful review of DC McCann’s evidence does not support the conclusion that the plaintiffs draw. DC McCann’s response to counsel’s inquiry about “all steps in the investigation” that he had undertaken, was directed at the content of the Fox statement, which counsel had just exhaustively detailed through the course of the preceding 31 questions: see Cross-Examination of DC McCann at Examination for Discovery on December 19, 2017, at pp. 18-25, Q. 81 – 112.

[345] Prior to giving the answer upon which the plaintiffs place significant reliance (Q. 120), DC McCann testified that the content of the Fox statement was consistent with a “mastermind and flunkie operation”. Counsel then suggested that the Fox statement was consistent with Mihail and Andrei’s innocent explanation for their involvement in the pickup of fraudulent Kofman orders, including that they did not know what merchandise they were picking up. It is in response to that specific suggestion that DC McCann questioned how the plaintiffs would have known what type of truck to bring to the Windsor Lowe’s store if they did not know what they were picking up. Contextually, his answer in that regard was not a direct response to the question counsel posed at Q. 118, p. 26 of the transcript. Instead, the focus of that question was diverted by an exchange between counsel and DC McCann on the existence of a “mastermind operation” and whether the Fox statement was consistent with Mihail and Andrei’s innocent explanation. In considering the entirety of DC McCann’s affidavit and cross-examination evidence, it is clear that he was never shaken in his evidence that he believed there were reasonable and probable grounds to support the charges against Mihail and Andrei throughout his investigation. The totality of the circumstances supported that his belief in that regard was reasonable, for the reasons previously set out in the determination of the objective adequacy of PC Khoury’s grounds.

[346] Finally, the plaintiffs suggest that the negligence with which DC McCann conducted the investigation is evidenced, in part, by the Crown’s May 13, 2010 follow-up e-mail correspondence to him stating, in part, “this investigation is nowhere near complete” and setting out five specific inquiries, thereafter. The plaintiffs’ characterize the Crown’s comment as a criticism of the manner in which DC McCann conducted the investigation. In my view, the Crown’s inquiries ought not to be confused with an expression of concern by the Crown over the grounds for arrest or the grounds for charges against the plaintiffs. Further, its inquiries ought not to be conflated with evidence of negligence, particularly given their nature and DC McCann’s responses thereto, which I will review below.

[347] In the context of the plaintiffs’ position on this aspect of the motion, it is notable that none of the Crown’s inquiries were directed at developing further or better evidence establishing the mens rea of the attempted fraud offence with which the plaintiffs were charged. Instead, its inquiries primarily concerned the status of efforts to evidence an element of the actus reus of the offence, namely, the requisite fraudulent means by which the orders were placed.

[348] Specifically, the Crown’s first inquiry was directed at confirming the spelling of Mihail and Andrei’s surnames. The second inquiry was directed at whether the March 11, 2010 surveillance from Windsor had been reviewed. DC McCann confirmed that it had been reviewed and Mihail and Andrei were not identified in it. A third inquiry was directed to the status of witness statements from credit cardholders. DC McCann indicated he had been contacted by some cardholders and he provided copies of their statements. He also identified the difficulty associated with obtaining cardholder statements owing to the issuing financial institutions’ reluctance to disclose to police, the identities of the cardholders or their contact information. The fourth inquiry related to the identity of the actual cardholders associated with the fraudulent Levi orders. DC McCann immediately provided the requested information and a statement from that cardholder. Finally, the Crown requested the invoices from the March 13, 2010 Kofman orders that Mihail and Andrei were attempting to pick up. DC McCann confirmed that the original invoices for the orders were held by the WPS and had been copied to the Crown.

[349] DC McCann was in a position to answer all of the Crown’s inquiries on May 13, 2010, as a result of the investigation that had already been conducted. In that context, the fact that the Crown made investigative inquiries does not evidence that the WPS investigation was not reasonably conducted.

[350] Further, the Crown did not make any inquiries about, or identify the need for further investigatory steps with respect to: securing witness statements from Lowe’s employees who dealt with Mihail and Andrei on March 13, 2010; conducting suspect interviews of Mihail and Andrei; developing further information with respect to the Belleville Lowe’s fraudulent orders; determining the identity of “Kofman”, “Lachman” and/or “Levi”; or conducting further investigation with respect to Mihail and Andrei’s knowledge of the fraudulent means by which the March 13, 2010 orders were purchased. There is also no evidence that the Crown expressed any concern about the prospect of convicting Mihail and Andrei after it received DC McCann’s confirmation that the March 11, 2010 Windsor surveillance showed individuals other than the plaintiffs picking up merchandise from a Kofman order.

[351] There is no evidence that the Crown advised any member of the WPS, at any time, that the evidence of, or investigation with respect to, the “mens rea” element of the offences with which the plaintiffs were charged: was a concern; was lacking; or was a subject that required further investigation. Finally, there is no evidence that the Crown ever expressed a concern that there was no reasonable prospect of convicting the plaintiffs on the charges laid by the WPS defendants.

[352] In the result, I find that the Crown’s May 13, 2010 e-mail does not evidence that DC McCann’s investigatory conduct fell below the applicable standard of care.

[353] More fundamentally, the totality of the evidence does not disclose a genuine issue requiring a trial in order to determine whether the investigatory conduct of the WPS defendants breached the applicable standard of care. Despite the plaintiffs’ identification of a number of things they suggest ought to have been done by DC McCann, there is no evidence that establishes that as part of his or her investigation, a reasonable police officer in similar circumstances would have taken additional steps beyond those taken by DC McCann. There is also no evidence from a qualified expert that identifies any specific additional steps that a reasonable police officer would have taken. Finally, there is no evidence that demonstrates that there was a reasonable prospect that additional steps beyond those taken by DC McCann, would have resulted in further and otherwise unknown exculpatory evidence with respect to the offence with which the plaintiffs were charged.

[354] In accordance with the foregoing findings, a trial is not required to determine the issue of whether DC McCann was negligent in the conduct of his post-arrest investigation. I am satisfied, as a matter of fact, that he held reasonable and probable grounds with respect to the charges against Mihail and Andrei throughout his investigation and, as a matter of law, I conclude that from an objective perspective, his subjective belief was reasonable in all the circumstances. There is no evidence establishing that the manner in which DC McCann conducted his investigation was inconsistent with the reasonable exercise of his investigatory discretion. This aspect of the plaintiffs’ claim fails.

f) Claims For Alleged Charter Breaches

[355] Since I have concluded that Mihail and Andrei were lawfully arrested and detained by the WPS and the charges against them did not result from, nor were they followed by, a negligent investigation, I find that their rights under ss. 7, 8, 9 and 11 of the Charter of Rights and Freedoms were not infringed by any of the WPS defendants, at any time.

g) The Plaintiffs’ Claim for Malicious Prosecution

[356] The plaintiffs made no submissions with respect to their claim for malicious prosecution other than to refer the court to the content of their factum in that regard. In my view, the available evidence fails to establish a genuine issue requiring a trial in relation to this aspect of their claim. I will explain.

[357] In order to establish liability for malicious prosecution, a plaintiff must prove, on a balance of probabilities, the following:

a) the proceeding was initiated by the defendant;

b) the proceeding was terminated in favour of the plaintiff;

c) the absence of reasonable and probable cause to commence the prosecution; and

d) malice, or a primary purpose other than carrying the law into effect: see Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at pp. 192-93.

[358] In their factum, the plaintiffs assert that malice can be inferred from certain circumstances, including police conduct which is recklessly indifferent to the truth, or to the guilt or innocence of the accused. They submit that malice should be inferred in this instance because the WPS defendants instituted and maintained a prosecution in the absence of reasonable and probable grounds to do so: see Simon v. Toronto Police Services Board, [2002] O.J. No. 5933 (S.C.), at para. 110 and 113; and Dix v. Canada, 2002 ABQB 580, at para. 525-29.

[359] I accept the WPS defendants’ position that malicious prosecution has not been properly pleaded in the statement of claim and, as a result, the proposed cause of action could not properly form the basis of a liability finding at trial. Pursuant to r. 25.06(8) of the Rules, where malice is alleged, full particulars must be pleaded. The plaintiffs do not allege malice, or identify full particulars of malice in the statement of claim.

[360] Beyond the pleadings, the absence of reasonable and probable grounds is a requisite element of the tort of malicious prosecution. I have already determined that PC Khoury had reasonable and probable grounds to arrest Mihail and Andrei on March 13, 2010. The reasonableness of those grounds was not vitiated through DC McCann’s follow-up investigation. There is no genuine issue requiring a trial in that regard. As a result, the claim in malicious prosecution fails.

h) Alena’s Claims Pursuant to [s. 61](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) of the [Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) and

“For Nervous Shock”

[361] For the following reasons, I find there is no genuine issue requiring a trial with respect to the issue of liability between Alena and the WPS defendants.

[362] First, there is no evidence of direct dealings between Alena and the WPS defendants. She was not arrested, detained, or the subject of investigation by the WPS defendants. As a result, Alena has failed to establish a factual basis for her claim for damages for breach of her Charter rights, as alleged in paragraph 1(iii)(e) of the statement of claim.

[363] Second, Alena’s claim pursuant to s. 61 of the Family Law Act is derivative in nature. Her entitlement to recover damages pursuant to that section is premised on her status as a “spouse” and as a “parent” of persons who were allegedly “injured” by the fault or neglect of another, in circumstances where those injured persons are entitled to recover damages. Since, I have determined that neither Mihail nor Andrei were “injured” as a result of the “fault or neglect” of the WPS defendants, or any of them, they are not entitled to recover damages from those defendants. As a result, Alena is not entitled to recover damages from the WPS defendants, or any of them, through her derivative Family Law Act claim.

[364] Third, Alena’s claim for “negligent infliction of nervous shock” is premised on the allegation that Mihail and Andrei were falsely arrested and imprisoned as a result of the WPS defendants’ negligent investigation. Based on my findings that the WPS defendants did not engage in actionable misconduct with respect to the arrest, detention or investigation of Mihail and Andrei, her claim in that regard must fail.

i) Liability of Windsor Police Service Board

[365] The plaintiffs’ claim against the Windsor Police Service Board is solely founded in its vicarious liability for the alleged negligence and other tortious conduct of its members. Since I have concluded that none of the individual members of the Windsor Police Service Board are liable to the plaintiffs on account of any of the causes of action asserted against them, there is no basis for a vicarious liability claim against the Windsor Police Service Board. Consequently, I find there is no genuine issue requiring a trial in relation to its liability.

j) Conclusion on the WPS Defendants’ Motion for Summary Judgment

[366] For all of the foregoing reasons, the WPS defendants have met their onus to demonstrate that there is no genuine issue that requires a trial to fairly and justly adjudicate the bases of liability alleged against them in the statement of claim. The fulsome evidentiary record available on the motion adequately permits the court to make the necessary findings of fact and to apply the law to the facts as found in order, to determine those issues. In doing so, I have concluded that each of the plaintiffs’ claims against the WPS defendants must fail. As a result, the WPS defendants’ motion for summary judgment is granted and the action is dismissed against each of them.

XI) Reasons for Disposition of the Lowe’s Defendants’ Motion for Summary

Judgment

a) Executive Summary of the Disposition of the Lowe’s Defendants Motion for Summary Judgment

[367] For the reasons set out below, I conclude that summary judgment dismissing the action against all Lowe’s defendants must be granted. The moving parties have established that the evidentiary record does not disclose any genuine issue requiring a trial with respect to their liability, as alleged.

[368] While I will specifically address each relevant aspect of the motion below, in general, I conclude:

1. The plaintiffs’ claim against the Lowe’s defendants for negligent investigation fails for several reasons. First, the nature of the Lowe’s defendants’ investigation into the manner and extent of the fraudulent conduct committed against it, in all of the surrounding circumstances, does not give rise to a prima facie duty of care in respect of the plaintiffs. The actions of the Lowe’s defendants were consistent with those a private citizen detecting apparent criminality and thereafter, reporting the suspected criminality to the police. Lowe’s was not engaged in the business of investigation. It did not purport to pass off a completed criminal investigation to police. The Lowe’s defendants reasonably expected police would conduct their own investigation and make their own independent determination concerning what arrests and charges, if any, should be made, which is precisely what occurred in both Windsor and Belleville. The Lowe’s defendants did not insist, request or suggest that the plaintiffs be arrested, charged and/or held for a show cause hearing. The duty of care proposed by the plaintiffs in respect of their negligent investigation claim fails at the first stage of the Anns/Cooper analysis on the issue of foreseeability. From the perspective of the Lowe’s defendants, it was not reasonably foreseeable that once called, police would fail to discharge their duties and/or arrest and charge the plaintiffs without lawful grounds to do so. The proposed duty of care fails at the second stage of the Anns/Cooper inquiry because in circumstances similar to those in this instance, the law favours protecting individuals that honestly report suspected criminality to police.

2. The Lowe’s defendants did not withhold exculpatory evidence from police and they did not tailor the information they provided to police in an effort to implicate the plaintiffs in a crime, or at all.

3. If a duty of care was owed to the plaintiffs, it remains that the totality of the evidence fails to disclose a genuine issue requiring a trial to determine whether Lowe’s breached the applicable standard of care. The plaintiffs have failed to adduce any expert evidence concerning the parameters of the standard of care applicable, in 2010, to an employee of a retail store investigating the details of suspected fraudulent activity committed against the store, who turns over the results of that effort to police for further investigation. In my view, such evidence is required. The parameters of the applicable standard of care are not within the knowledge of an ordinary person and the alleged misfeasance is not so egregious that it renders proof of the bounds of the standard unnecessary. Further, many of the plaintiffs’ factual assertions supporting their position that the standard of care was breached are not supported by the available evidence or have no causal connection to the plaintiffs’ ultimate arrest.

4. Lowe’s did not owe the plaintiffs a prima facie duty of care that required the Lowe’s defendants to follow Lowe’s internal policies with respect to telephone credit card orders and related pickups. That proposed duty of care fails at the first stage of the Anns/Cooper analysis on both foreseeability and proximity grounds. It also fails at the second stage of the Anns/Cooper analysis because it raises the spectre of indeterminate liability to an indeterminate class of persons and its recognition holds the potential of discouraging the reporting of suspected criminal activity.

5. The claims for false arrest and false imprisonment fail against the Lowe’s defendants because none of the Lowe’s defendants arrested or detained the plaintiffs against their will; none of the Lowe’s defendants requested police to arrest or detain the plaintiffs; and the plaintiffs’ claims in that regard are statute barred pursuant to the Limitations Act, 2002.

6. The plaintiffs confirm that no allegation of malice is made or pursued against the Lowe’s defendants. In the circumstances, that admission conclusively answers the claim asserted in malicious prosecution and any potential claim in defamation.

b) The Alleged Negligent Investigation by Lowe’s Defendants

i. The Parties’ Positions - Overview

[369] The plaintiffs’ claim against the Lowe’s defendants is primarily founded in their allegations of negligent investigation against Mr. Findlay and Mr. Fralick, which the plaintiffs claim caused them to suffer loss, injury, and damages. In response, the Lowe’s defendants submit that in the circumstances of this case, they did not owe a duty of care to the plaintiffs because their investigatory actions were relatively limited and consistent with Lowe’s status as the victim of apparent criminal activity, engaged in reporting the suspected criminality to police. In addition, the Lowe’s defendants submit that in the event that any of them are found to have owed the plaintiffs a duty of care, the plaintiffs have failed to produce any expert evidence establishing the parameters of the standard of care applicable to them. As a result, there is no evidence that the conduct of the Lowe’s defendants breached the parameters of the applicable standard of care.

[370] In response, the plaintiffs submit that Lowe’s, “as an entity conducting a private investigation that it knew would be relied on by police to lay criminal charges”, clearly owed a duty to those whom it implicated, to take reasonable care in its investigation. The plaintiffs assert that their position in that regard is not novel. To the contrary, they submit that an analogous duty to the one they propose has previously been recognized in Correia v. Canac Kitchens, 2008 ONCA 506, 294 D.L.R. (4th) 525.

[371] The plaintiffs also submit that expert evidence on the standard of care is not required because the bounds of reasonableness in an investigation similar to the one conducted by the Lowe’s defendants falls within the knowledge of an ordinary person. Further, Lowe’s conduct was so egregious that a trier of fact will be well positioned to determine if it breached the standard of care without knowing the precise parameters of that standard.

[372] I will determine those aspects of the parties’ dispute below, beginning with the determination of whether the proposed duty of care ought to be recognized.

ii. Executive Summary of the Findings on the Existence and Recognition of a

Prima Facie Duty of Care

[373] I do not accept the plaintiffs’ position that a duty of care has been recognized in circumstances similar to those in this instance and in particular, in the context of conduct similar to that of the Lowe’s defendants. As detailed below, the Lowe’s defendants: were not in the business of conducting private investigations; did not pass off a completed investigation to police with an expectation that the police would not conduct their own independent investigation; and were not involved in and did not provide, any input to police concerning the arrest, detention, charges and prosecution of the plaintiffs. Instead, police exercised their own autonomous discretion in respect to all of those activities.

[374] Clearly, Lowe’s was the victim of a fraud scheme. Its employees gathered information with respect to the nature and extent of the fraud and reported the criminality to police. Prior decided cases have held that reasons founded in lack of foreseeability, as well as, broader policy considerations militate against the recognition of a duty of care in circumstances similar to those in this instance.

[375] Below, I will also explain the reasons why the evidence does not reveal a genuine issue requiring a trial to determine that a new duty of care, as advocated by the plaintiffs, ought not to be recognized, in the circumstances of this case.

iii. The Applicable Legal Principles

[376] The existence of a private law duty of care is generally determined by applying the analytical framework set out in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as adopted in Kamploops (City) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, and refined in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 and its companion case Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562. Generally, the requisite analysis contemplates a two-stage inquiry, the essential elements of which are succinctly expressed at paras. 8-10 of Edwards as follows:

[8] The companion case of Cooper outlines the approach in assessing whether a duty of care will be recognized in a given case. Specifically, Cooper revisits the Anns test and clarifies the express policy components to be considered at each stage.

[9] At the first stage of the Anns test, the question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The focus at this stage is on factors arising from the relationship between the plaintiff and the defendant, including broad considerations of policy. The starting point for this analysis is to determine whether there are analogous categories of cases in which proximity has previously been recognized. If no such cases exist, the question then becomes whether a new duty of care should be recognized in the circumstances. Mere foreseeability is not enough to establish a prima facie duty of care. The plaintiff must also show proximity – that the defendant was in a close and direct relationship to him or her such that it is just to impose a duty of care in the circumstances. Factors giving rise to proximity must be grounded in the governing statute when there is one, as in the present case.

[10] If the plaintiff is successful at the first stage of Anns, such that a prima facie duty of care has been established (despite the fact that the proposed duty does not fall within an already recognized category of recovery), the second stage of the Anns test must be addressed. That question is whether there exists residual policy considerations which justify denying liability. Residual policy considerations include, among other things, the effect of recognizing that duty of care on other legal obligations, its impact on the legal system and, in a less precise but important consideration, the effect of imposing liability on society in general.

[377] A full “Anns/Cooper” analysis is not required in every case. The requisite “close and direct relationship” between the parties can be established if the subject of the analysis falls within a previously established and recognized category of a duty of care or is shown to be analogous to one. In such circumstances a duty of care will exist: see Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 26.

iv. The Nature of the Proposed Duty of Care

[378] The Lowe’s defendants submit that the issue of whether the duty of care proposed by the plaintiffs should be recognized is appropriately framed as whether “a victim of fraud” owes a duty of care “to at least some of those persons involved in the fraud against it, whether wittingly or unwittingly”.

[379] Conversely, according to the plaintiffs, the essence of the duty they assert is properly stated as: “When a business embarks on a private investigation that it knows or ought to have known will result in the laying of criminal charges, [it] owe[s] a duty of care to the accused to ensure [it does] not incriminate an innocent third party.” [Emphasis added.] The plaintiffs submit that an analogous duty to the one they propose has previously been recognized in Correia.

v. The Result and Reasoning in Correia v. Canac Kitchens Inc.

[380] Based on the import of the result in Correia to the plaintiffs’ position, a review of the operable circumstances of that case is warranted.

[381] In Correia, the plaintiffs appealed, in part, from the motions judge’s partial summary judgment that dismissed aspects of their claims owing to the absence of a duty of care owed by the moving defendants. Contextually, Correia was an employee of the defendant Canac Kitchens (“Canac”). Canac and its parent company (“Kholer”), suspected that ongoing acts of theft and drug trafficking were being committed at its plant by Canac employees. Based on their suspicions, they retained a private investigation firm, Aston Associates Investigations Limited (“Aston”) to conduct an investigation into the suspected criminality. Aston deployed an undercover agent at the Canac plant, who subsequently identified a number of employees allegedly engaged in acts of theft and drug trafficking. Aston kept the local police force appraised of its ongoing investigatory efforts, but the police did little else to independently investigate the alleged crimes.

[382] During the preparation of interim reports related to its investigation, Aston erroneously identified the plaintiff Correia, a 62 year old long-term employee of Canac, as a suspect in the alleged criminality, among others. The name of the actual suspect was Corriero, who was described in the narrative of the investigation reports as being in his mid-20’s. The motions judge determined that had members of Canac and Kholer carefully read the content of the Aston reports, it would have been apparent to them that the suspect, as described therein, was not the plaintiff Correia. They did not do so.

[383] Instead, based on Aston’s conclusions, Canac terminated Correia who was then immediately arrested while he was still at Canac’s premises. A member of the York Regional Police carried out the arrest. Police had specifically requested that Aston’s undercover operative be present when arrests were made. Aston refused that request.

[384] Further, although pictures of all of the employees that Aston identified as “suspects” in the alleged criminality were contained in Canac’s file, Aston’s undercover operative did not review them before they were actually arrested. Nonetheless, Aston and Canac represented to police that they would “arrange for the right persons to be available for arrest as suspects”. The investigation by police was limited to reading the Aston reports. Based only on the content of those reports, police concluded that there were grounds to arrest the plaintiff. Police denied receiving any surveillance, photographs, or identification badge numbers with respect to any suspects that Aston identified for arrest, prior to arrests actually being made, and despite that evidence being otherwise available.

[385] After his arrest, Correia spent three hours in jail. Four months later, the Crown withdrew the charges against him, after his criminal counsel was able to demonstrate that he had been misidentified as a suspect.

[386] In his action against his employer Canac (and related defendants), Aston (and related defendants) and the York Regional Police (and related defendants), the plaintiff advanced causes of action in negligent investigation, intentional infliction of mental distress, intentional interference with economic relations and inducement of breach of contract, false arrest and false imprisonment, malicious prosecution, and wrongful dismissal. Summary judgment motions were brought by all defendants excepting the police. The portion of the appeal related to the dismissal of the negligent investigation claims against the employer and Aston (the private investigator) are relevant to the Lowe’s defendants’ motion for summary judgment.

[387] In Correia, the motions judge determined that none of the defendants who moved for summary judgment owed a duty of care to the plaintiff with respect to the investigation leading to the plaintiffs’ misidentification as a suspect and his subsequent arrest. She determined that the requisite proximity and foreseeability to find such a duty were lacking and there was a compelling policy reason to negate any such duty, if it was otherwise so found.

[388] On the issue of proximity, she reasoned that the Aston defendants were strangers to the plaintiff. Further, although an employment contract existed between the plaintiff and Canac, that relationship did not found the duty contemplated by the plaintiffs’ claim in negligent investigation. On the issue of foreseeability, the motions judge reasoned that despite Aston and Canac’s assurances to police that they would arrange for the right persons to be identified as suspects for arrest, it was not reasonably foreseeable that the arresting police force would undertake no investigation of its own.

[389] Finally, the motions judge held that there was a compelling policy reason not to impose on “private amateur informants” or, in the case of Aston, “professional informants”, a duty of care to conduct investigations in accordance with a reasonable standard of care. She reasoned that the imposition of such a duty could have a chilling effect on the willingness of private citizens to report criminal behaviour. She also found that there were adequate alternative remedies available to Correia through claims in defamation and wrongful dismissal, which provided him with a method of redress to seek damages for the harm that he alleged was caused by the conduct of the Aston and Canac defendants.

[390] In determining the appeal, the court ultimately concluded that the operable circumstances supported the existence of a prima facie duty of care owed by a private investigation firm retained by an employer to investigate criminal wrongdoing in the specific context of the relationship that is created between a private investigator hired by an employer and a specific employee who is being investigated. The court reasoned that the issue of whether such a duty existed on the facts of the case before it was an issue that was appropriately determined after a trial: see Correia, at para. 69. Indeed, the court found that the circumstances of an investigation conducted by a private investigation firm are roughly analogous to the police investigation in Hill, in which the court recognized a duty of care: see Correia, at para. 68.

[391] However, the court did not disturb the motion judge’s dismissal of the negligent investigation claim against the Canac defendants. It found that unlike Aston, Canac was “not in the business of investigation” or performing functions analogous to police (which was found to be one of the strongest considerations favouring the existence of a prima facie duty of care on the part of private investigation firms): see Correia, at para. 71. The court also found that there were two policy reasons that favoured not recognizing a duty of care to conduct reasonable investigations, owed to an employee by an employer. First, the court reasoned that the recognition of such a duty could result in legal incoherence with respect to the law applicable to wrongful dismissal. Second, the court determined that finding that a duty of care was owed by a private actor other than one that is “in the business of investigation” carried with it the potential of a chilling effect on the reporting of criminal behaviour by honest citizens to police: see Correia, at para. 74. The court found that someone who is not in the business of private investigation but honestly and even mistakenly reports criminal activity should be protected: see Correia, at para. 74.

[392] In arriving at its findings of “foreseeability” in the context of the Anns/Cooper framework, the court observed that rather than passing off an “incomplete investigation” to police (circumstances in which the court considered that it may not be reasonably foreseeable that police would not conduct a proper investigation), the non-police defendants in Correia “handed a completed case to the police” knowing that the police did not intend to do any further investigation: see Correia, at para. 25. It was the non-police defendants who determined the identities of the employees who would be dismissed from their employment and immediately turned over to police for arrest. In those circumstances, the court reasoned that it would be open to a trier of fact, at trial, to determine that the non-police defendants knew that the police had “limited (if any) ability to conduct a further investigation”. In the result, the court concluded that a trial court could potentially find that it was reasonably foreseeable in the circumstances, that negligence by the non-police defendants would cause harm to the plaintiff: see Correia, at para. 25.

[393] On the issue of proximity, the court made clear that the nature of the relationship in which the prima facie duty of care was found, did not extend to “all persons who may provide information to police or who may be investigated by the authorities”. Rather, it specified that the determinations it made with respect to the recognition of a prima facie duty of care were made in the context of the relationship between an employer and its employee and the nature of the relationship between a professional investigator hired by that employer and a specified employee under investigation.

[394] In addressing residual policy considerations applicable to the determination of whether a private investigation firm owes a duty of care to the person being investigated (i.e. its client’s employees), the court found that: private security firms are not engaged in quasi-judicial work; there is no conflict between the proposed duty of care in negligence and any other duties that the firm may owe to the public; and the lack of applicability, in the context of private investigation firms, of other factors considered in Hill, such as the impact of a recognition of a duty of care on the exercise of police discretion and the standard of reasonable and probable grounds. The court also considered a report made by the Law Commission of Canada on the role and proliferation of private agencies engaged in functions that were once the exclusive dominion of public police forces: see Correia, at para. 44. Further, private security firms and their clients were found to operate in a largely unregulated sphere and were not subject to the same constraints as public police: see Correia, at para. 45. The court concluded that there were strong grounds to extend tort liability to private investigation firms that performed public policing functions with otherwise limited oversight, and the absence of a clear line of redress for those injured by their activities.

[395] Any prospect of a chilling effect with respect to the flow of information from private investigators to police about an identified employee’s involvement in suspected criminality would be greatly outweighed by the advantage of ensuring greater care in the investigatory activities engaged in by private investigation firms: see Correia, at para. 43.

vi. The Prima Facie Duty of Care Found in Correia is not Analogous

to the Duty Alleged to be Owed by the Lowe’s Defendants

[396] In my view, the existence of the duty of care that the plaintiffs suggest was owed to them by the Lowe’s defendants is not established, by analogy, to the duty of care recognized on a prima facie basis in Correia for a number of reasons, which I will explain below.

[397] Unlike the private investigation firm in Correia, the available evidence in this instance does not establish that: the Lowe’s defendants were in the “business of investigation” performing functions analogous to those performed by the police” (Correia, at para. 71); the Lowe’s defendants were professional investigators (Correia, at para. 43); the Lowe’s defendants arrested, detained and searched individuals on a regular basis (Correia, at para. 45); or that the Lowe’s defendants were engaged in performing public policing functions with limited oversight (Correia, at para. 47). Further, the available evidence does not disclose a genuine issue requiring a trial with respect to any aspect of the foregoing.

[398] The evidence establishes that Lowe’s was not a private enterprise engaged in the business of investigation and the Lowe’s defendants did not engage in the functional equivalent of public policing duties. Instead, Lowe’s was a retail commercial enterprise that was the target of a partially successful multi-transactional, multi-location fraud scheme. Clearly, through Mr. Findlay and Mr. Fralick, Lowe’s conducted an internal investigation into the nature and scope of the losses that Lowe’s suffered as a result of the implementation of that fraudulent scheme and an investigation into the operational circumstances of the fraud (telephone orders placed under specified pseudonyms or aliases – “Lachman”, “Kofman”, and “Levi” – facilitated through the unauthorized use of credit card information belonging to other persons, with the subject merchandise being picked up at a later date).

[399] Mr. Findlay and Mr. Fralich reacted immediately to the discovery of the potential fraud by identifying and obtaining Lowe’s internal records, relevant documentation and in-store surveillance related to identified suspected fraudulent transactions. The suspected fraudulent transactions were identified solely by reference to the known aliases that were used to place suspected fraudulent credit card orders (Kofman, Lachman, Levi). The identification of such transactions was not dependent on any information about, or considerations related to, Mihail or Andrei.

[400] On March 12 and 13, 2010, Mr. Findlay and Mr. Fralick reviewed Lowe’s own in-store surveillance associated with the suspected fraudulent orders and they contacted credit card issuers to determine whether potentially fraudulent orders were, in fact, fraudulently placed. They did so without any specific reference to Mihail and Andrei and without any knowledge of Mihail and Andrei’s identity or their potential involvement in any aspect of the fraudulent orders or the pickup of merchandise associated with those orders (whether wittingly or unwittingly).

[401] Further, there is no evidence that establishes that Lowe’s acted or has ever acted as a professional private investigator or that it is ever engaged in the “business” of investigation. Lowe’s own internal investigation with respect to the detection, confirmation and quantification of the losses it suffered as a result of fraudulent activity is not, in my view, consistent with a private investigation firm offering its investigative services to the public, such as Aston in Correia. Instead, the actions of Mr. Findlay and Mr. Fralick on behalf of Lowe’s in the relatively short period of March 12 and 13, 2010, are akin to any other commercial actor that uncovers information that indicates it may have been victimized by a financial crime, who thereafter, takes immediate internal steps to determine if it was, in fact, so victimized and if so, to what extent, and then calls the police to report the suspected crime.

[402] I am mindful that the plaintiffs seek to draw a distinction in this instance because the Windsor and Belleville Lowe’s internal investigations of Lowe’s losses were headed by “loss prevention and safety managers” Findlay and Fralick, both of whom the plaintiffs seek to characterize as, in effect, “professional investigators”. I do not find support for that characterization in the evidence, nor is there a genuine issue requiring a trial in that regard.

[403] Mr. Findlay and Mr. Fralick’s efforts to detect and define Lowe’s losses were not akin to public policing work. Instead, their actions were internalized to Lowe’s and primarily related to searching and collecting documentation and information that was in Lowe’s possession and control. Indeed, the investigatory actions of Mr. Findlay and Mr. Fralick in relation to the fraudulent credit card scheme were confined to reporting suspected criminal activity to police, gathering the information and documentation that Lowe’s had with respect to the fraudulent orders, and passing it along to police. Apart from gathering accurate surveillance of all of the actual successful pickups of past Lachman and Kofman orders (and not just those involving Mihail), the Lowe’s defendants did not conduct any investigation into the identity of any of the persons involved (whether knowingly or unknowingly) in the fraudulent transactions.

[404] Moreover, the available evidence establishes (and there is no genuine issue requiring a trial necessary to determine) that the Lowe’s defendants left it to police to investigate the criminality they reported and they left it to police to make all decisions with respect to whether arrests should be made and charges should be laid (and if so, against whom). Notably, Mr. Findlay refused to personally arrest Mihail and Andrei on March 13, 2010, when requested to do so by CIBC Fraud Investigator Morgan. Instead, he contacted police and reported “a fraud in progress” at the Windsor Lowe’s store. His report in that regard was accurate both to the best of his knowledge and in fact.

[405] Prior to contacting police, Mr. Findlay received confirmation that the particular Kofman orders that were scheduled to be picked up that day (and ultimately the orders Mihail and Andrei attempted to pick up) were not placed or authorized by the owners of the credit cards used in the purchases (“the other fraudulent means” element of the offence of fraud). There is no dispute that Mihail and Andrei were the instrumentality through which Lowe’s was to be deprived of the property that was the subject of the March 13, 2010 Kofman pickup. In any event of Mihail and Andrei’s knowledge concerning the manner or legitimacy of the purchase of the goods that they were attempting to pick up, it remains that if they had successfully completed the pickup, actual deprivation for the purpose of the offence of fraud would have been completed, in fact. The risk posed by that mode of deprivation was operable when Mihail and Andrei attempted to secure possession of the subject property at the Windsor Lowe’s store. Accordingly, when Mr. Findlay called police shortly after their initial attempt to do so, the offence of fraud was, in fact, “in progress”, whether Mihail and Andrei knew so or not.

[406] When police arrived, Mr. Findlay provided officers with the information about the fraudulent transactions that had been uncovered to date. He accurately advised police that: the Lowe’s investigation had only started the day before (i.e. March 12, 2010); there had been previous pickups of fraudulently purchased merchandise from both the Windsor and Belleville Lowes; and one of the men who was attempting to pick up the March 13, 2010 Kofman orders matched the description of one of the individuals who had previously picked up a fraudulently purchased order under the name Kofman from the Belleville Lowe’s store. A short time later, Mr. Findlay provided police with a still image taken from Belleville video surveillance in that regard.

[407] There is no evidence that Mr. Findlay advised police that: the individuals attempting to pick up the Kofman orders on March 13, 2010 knew the fraudulent means by which the orders were placed; the two individuals that were at the Windsor store on that date were, in fact, responsible for picking up all of the prior fraudulent orders; the two individuals who were at the Windsor store on March 13, 2010 when police arrived, should be arrested or charged with any offence; or the two men at the Windsor store were guilty of any offence. Instead, he provided police with accurate information that the two men in the Windsor store were attempting to pick up a fraudulently purchased order. He did not hold out to police that he had interacted with the two men in the store in any way, nor did he attribute any statements, knowledge or motivation to them.

[408] In arriving at the foregoing findings, I remain mindful that the plaintiffs take some issue with the accuracy of Mr. Findlay’s disclosure to police because PC Khoury recorded that police dispatch broadcasted that two men were attempting to pick up over $40,000 worth of merchandise, on March 13, 2010. The available evidence indicates that the actual value of the merchandise that Mihail and Andrei attempted to pick up on that date was $20,563.65. In my view, and for the following reasons, that asserted discrepancy has no probative impact on the issues in this action.

[409] First, the relevant “threshold of value” with respect to PC Khoury’s arrests and the subsequent charges against the plaintiffs was $5,000. Clearly, the subject mercandise had a value of more than $5,000. Second, there is no evidence that PC Khoury would not have had grounds to arrest the plaintiffs or that they would not have been arrested or charged if she was initially advised by dispatch that the value of the goods that were the subject of the attempted pickup was in excess of $20,000 but less than $40,000. Third, it is clear in the statement that Mr. Findlay gave to police on March 13, 2010, that he identified that the nine orders placed under the names of Lachman, Kofman and Levi for pickup on three distinct days – March 11, 13 and some time after March 13, 2010, cumulatively totalled over $40,000 in value. Further, PC Khoury’s own notes record that the value of the March 13, 2010 Kofman orders was over $20,000 (i.e. she had accurate information in that regard). The foregoing circumstances do not result in a genuine issue requiring a trial to determine the plaintiffs’ claim against Lowe’s in negligent investigation.

[410] Further, the totality of the evidence, including Mr. Findlay’s evidence and the evidence of Mihail and Andrei, indicates that Mr. Findlay had no direct interactions with Mihail and Andrei before or after police arrived. The evidence conclusively establishes that Mr. Findlay clearly deferred to the police to: conduct whatever investigation they deemed necessary in the circumstances; interact with Mihail and Andrei, to the extent that police deemed it necessary to do so; and, arrive at their own determination as to whether there were sufficient grounds to arrest Mihail and Andrei and/or charge them with an offence. Mr. Findlay did not advocate any position in that regard to police.

[411] Finally, the still image from the March 11, 2010 Belleville surveillance allowed police to arrive at their own determination of whether the man in the Belleville surveillance was the same man that was present in the Windsor Lowe’s on March 13, 2010. Police did not rely on Mr. Findlay’s observations in that regard.

[412] In the result, unlike the circumstances in Correia, the plaintiffs’ arrest by PC Khoury and the charges laid by the WPS were the result of independent police investigation and the independent exercise of police discretion in response to a report of suspected criminality and not the pre-ordained result of a private investigation, in which assurances were made to police that “appropriate persons would be identified for arrest”.

[413] Similar to Mr. Findlay, the evidence conclusively establishes that Mr. Fralick also conducted an investigation that was largely comprised of gathering the information that was necessary to determine whether and to what extent the Belleville Lowe’s had been defrauded through the unauthorized use of credit card information by persons using the names “Lachman”, “Levi”, and “Kofman”. Similar to Mr. Findlay, Mr. Fralick’s investigation was “loss” specific, as opposed to “law enforcement” specific. He contacted credit card companies to determine if the Belleville Lowe’s orders associated with the foregoing names, which he had discovered on the morning of March 13, 2010, were in fact fraudulent. He received confirmation that credit card information used to purchase merchandise that was picked up at the Belleville Lowe’s store on March 11, 2010 was not authorized by the credit card owner. He then reviewed the surveillance associated with the pickup of those orders and provided a description of those individuals to Mr. Findlay.

[414] Mr. Fralick also contacted police in Belleville on the morning of March 13, 2010 and reported: the results of his investigation into the nature and extent of the Belleville Lowe’s store’s losses resulting from the suspected fraud; the content of the March 11, 2010 Belleville surveillance; and, that there were possibly two other individuals involved in the purchases other than the two men depicted in the March 11, 2010 surveillance.

[415] In my reasons for judgment dismissing this action against the Belleville defendants, I chronicled the course of the BPS investigation after it received Mr. Fralick’s initial complaint, including DC Josefik’s decision to seek warrants for the arrest of Mihail and Andrei, which he eventually obtained on his own information. Mr. Fralick’s uncontradicted evidence establishes that he was not involved in, nor was he consulted with respect to, any decisions made by the BPS to obtain or execute arrest warrants for Mihail and Andrei.

[416] Mr. Findlay eventually provided the BPS with a package of material containing all of the documentation and video surveillance related to all of the fraudulent purchases at the Belleville Lowe’s location, not just those involving Mihail and Andrei, which included documentation and surveillance of the pick up of a fraudulent order on March 5, 2010 (not involving Mihail or Andrei) and documentation relating to pending orders that had not been picked up as of March 13, 2010. His investigation and his disclosure to police were not limited to transactions involving Mihail and Andrei.

[417] Mr. Fralick’s uncontradicted evidence establishes that he had no reason to doubt the accuracy or completeness of the information that he provided to the BPS. There is no evidence that establishes that the information and documentation he provided to them was inaccurate and/or incomplete. His uncontradicted evidence also establishes that he did not make any representations to police with respect to whether the plaintiffs engaged in any criminal wrongdoing and he was not consulted and did not provide input to the police or the Crown with respect to whether the plaintiffs should be arrested, charged, or held for a show cause hearing, or any other matter related to the conduct of the criminal proceedings against them.

[418] Similar to Mr. Findlay, Mr. Fralick: gathered information; contacted police to report the fraudulent activity (the same morning he discovered it); gave the police the information that he developed; and left it to police to conduct their own investigation into the subject criminality and any individuals that the police suspected may be responsible. He also left it to the police to make their own decisions whether to make arrests or lay charges and if so, against whom.

[419] In the context of the foregoing, I am satisfied that the available evidence is adequate to support a finding that through its employees, Lowe’s conducted itself as a citizen documenting and reporting suspected criminality to the police rather than a private entity engaged in public policing functions, and I do so find.

[420] There are further differentiating distinctions between the circumstances of this case and those in Correia. In the latter, the Aston and Canac defendants handed off a “completed investigation” to police and assured police that they would arrange for the appropriate suspects to be available for arrest. They expected police would do little, if anything, to further investigate the matter. Conversely in this case, the Lowe’s defendants, the WPS defendants, and the former BPS defendants were all patently aware that the Windsor and Belleville Lowe’s investigations into Lowe’s potential losses did not purport to be a completed investigation with respect to the underlying criminality that resulted in those losses.

[421] When Mr. Findlay commenced his investigation on March 12, 2010, he sent e-mail correspondence to other Lowe’s employees and among other things cautioned them that the investigation was “in its infancy”. In her report, PC Khoury recorded that Mr. Findlay’s investigation started the day before her attendance at Lowe’s. Mr. Fralick contacted the BPS when he initially received confirmation that the March 11, 2010 Lachman orders at the Belleville store were fraudulently purchased. His investigation into Lowe’s losses started that morning and was ongoing when he made initial contact with police. He subsequently provided a complete package of Lowe’s internal documentation related to its losses and the surveillance associated with the pickups. He did not pass off any investigation into who may be responsible for the underlying criminality. Like Mr. Findlay, he left that “police work” to the police who did, in fact, conduct their own investigations.

[422] Indeed, unlike the police in Correia, PC Khoury conducted her own field investigation prior to arresting Mihail and Andrei, which included questioning them and confirming for herself that the individual in the March 11, 2010 Belleville surveillance was Mihail. Post-arrest, the WPS recognized that further police investigation was required and DC McCann was assigned to do just that. In Belleville, PC Kanyo responded to Lowe’s initial complaint. Thereafter the BPS assigned DC Josefik to investigate the criminality arising from that complaint. He did just that. Again, Lowe’s left the “police work” to the police.

[423] In my view, the foregoing further illustrates that Lowe’s operative role in the events relevant to this action was that of an entity reporting crime to police with an expectation that the police would conduct their own independent investigations in relation to the matters reported and make their own independent determinations as to whether arrests and charges were justified and, if so, against whom.

[424] As a result of the foregoing, the available evidence is adequate to allow me to find and I do so find, that based on the circumstances disclosed by the record, the duty of care that the plaintiffs advocate in this instance is not analogous to the duty of care recognized in Correia. That does not mean that the jurisprudence does not offer an apt set of analogous circumstances in determining whether a duty of care ought to be found. It does, but the analogy does not favour the plaintiffs. I will explain below.

[425] In my view, the circumstances in this instance are much closer to those in Ebagua v. National Rent-A-Car, 2015 ONSC 979 than the circumstances in Correia. In Ebagua, the plaintiff was arrested after National Rent-A-Car (“National”) reported, as stolen, a car which the plaintiff maintained he had validly rented. The plaintiff asserted a claim against National in malicious prosecution, defamation and negligence in the manner in which it investigated or failed to investigate the loss of the car, prior to and subsequent to reporting it stolen. The plaintiff also suggested that National’s “inventory controls” were negligent, at best.

[426] Meyers J. determined, that National did not owe the plaintiff a duty of care in respect of the tort of negligent investigation, notwithstanding the plaintiffs’ reliance on Correira. He observed that in Correia, the Court of Appeal held that a duty of care to avoid negligent investigations applied to private investigation firms, but it came to the opposite conclusion with respect people who were not in the business of investigation. He quoted the portion of the court’s reasons in Correia, set out at paragraph 74, which in my view, has equal application in this instance:

The second reason that we would not recognize a duty of care on Canac lies in the potential chilling effect on reports of criminality by honest citizens to the police. Unlike Aston, Canac was not in the business of investigation. It was in many ways in the same position as any other citizen who reports criminal activity to the police. Public policy favours encouraging the reporting of criminality to the police. Someone not in the business of private investigation who honestly, even if mistakenly, provides information of criminal activity should be protected: see Mirra v. Toronto-Dominion Bank, [2004] O.J. No. 1804, [2004] O.T.C. 365 (S.C.J.). [Emphasis added.]

[427] Below, I will explain why that reasoning, together with issues related to foreseeability, militate against a finding that the duty of care that the plaintiffs assert ought to be recognized in the circumstances of this case.

vii. Application of the Anns/Cooper Analysis to the Duty of Care

Proposed by the Plaintiffs

[428] My finding that the duty of care advocated by the plaintiffs in this instance has not been previously recognized does not end the inquiry. This court must still conduct the two-stage Anns/Cooper analysis to determine whether a prima facie duty of care ought to be recognized in the circumstances of this case. The first stage involves an inquiry into whether there is reasonable foreseeability of harm together with a sufficiently close and direct relationship between the plaintiff and defendant (proximity), such that it is just to impose a duty of care in the circumstances. The second stage of the analysis is concerned with the effect of recognizing the proposed duty of care on other legal obligations, the legal system, and society more generally: see Cooper, at para. 37 (i.e. whether the nature of the particular relationship is such that for policy reasons the duty of care should be recognized or should not recognized).

[429] In my view, the duty of care that the plaintiffs assert the Lowe’s defendants owed to them fails at both stages of the analysis. I will explain.

[430] First, the evidence does not establish the premise upon which the plaintiffs assert that the Lowe’s defendants owed them a duty of care. Specifically, the plaintiffs contend that the duty of care that they propose is owed when a business embarks on a private investigation that it knows or ought to have known will result in the laying of criminal charges. There is no evidence that those circumstances existed in this instance. Instead, both Mr. Findlay and Mr. Fralick called police in response to the fraudulent activity they uncovered, with an expectation that police would conduct their own investigation. There is no evidence that either of them knew or ought to have known what the result of the independent police investigations would be, and specifically that such investigations would necessarily result in the laying of charges against anyone. Neither Mr. Findlay nor Mr. Fralick knew the extent of Mihail and Andrei’s involvement in the fraudulent scheme, including whether they knowingly participated in it or were wilfully blind to the fraudulent manner in which the orders that they picked up (or attempted to pick up) were obtained. Indeed, neither of them made any representations in that regard to police. Neither of them interacted with, or otherwise obtained (or attempted to obtain) information from, Mihail and Andrei. They left it to police to determine whether and to what extent that ought to be done.

[431] Second, with respect to the first stage of the Anns/Cooper analysis, I find that there is no genuine issue requiring a trial to determine whether it was reasonably foreseeable that the Lowe’s defendants’ actions would cause harm to Mihail and Andrei. The available record adequately permits the fair and just adjudication of that issue in the context of this motion. Through its employees, Lowe’s gathered information and internal documentation including surveillance video associated with a series of fraudulent transactions committed against it, and provided all of that documentation to police. It reasonably expected that police would conduct a proper investigation into the suspected criminality. Lowe’s was not involved in decisions with respect to the arrests of, and charges against, Mihail and Andrei. Those events were the result of the independent exercise of discretion by police. In those circumstances, from the perspective of the Lowe’s defendants, it was not reasonably foreseeable that either of the police forces involved would fail to conduct a reasonable investigation or would arrest and charge Mihail and Andrei without lawful grounds to do so.

[432] In arriving at the finding above, I have remained mindful of the court’s reasoning in BMG Canada Inc. v. Antek Madison Plastics Recycling Corp., 2006 CanLII 38552 (Ont. C.A.). In that case, the appellant, Angelopoulous, appealed from an order dismissing his action pursuant to r. 21 of the Rules, on the basis that it was plain and obvious that no duty of care was owed to him, in the context of a claim in negligent investigation that he pleaded in a counterclaim. Specifically, he alleged that after commencing but not completing an investigation into misappropriation and fraud against it, BMG Canada Inc. wrongfully alleged that he was the perpetrator. BMG then reported the fraud to police together with an allegation that it was committed by Angelopoulous and Antek Madison Plastics Recycling Corp. (“Antek”). In his pleadings, Angelopoulous alleged that BMG’s assertion that he was the perpetrator of the fraud was based on its incomplete, inaccurate, and misleading investigation. He also alleged that police then received additional false information from a source who actively misled police and caused them to prosecute criminal charges against him.

[433] In a brief endorsement dismissing Angelopoulous’ appeal, the court held, at paras. 1-4:

1. The appellant claims that the respondent’s negligent investigation caused him to be wrongly arrested by the police, then detained, charged and proceeded against.

2. For the police to arrest someone, they are, as a matter of law, required to determine for themselves that reasonable and probable grounds exist to do so.

3. In our view it cannot be said to be reasonably foreseeable that the police would take the information supplied to them by the respondent, however false or sloppily prepared, and proceed to charge the appellant without doing the job required of them by law.

4. On this basis alone we agree with the conclusion of the motion judge that it is plain and obvious that no duty exists on these facts and that the claim will fail.

[434] The Court of Appeal’s reasoning in BMG has direct application to the determination of whether the duty of care that the plaintiffs assert against the Lowe’s defendants ought to be recognized. In this instance, I find that it was not reasonably foreseeable that police would take information supplied by the Lowe’s defendants and proceed to charge the plaintiffs without discharging the duties imposed on them by law. I am mindful that the result in BMG was distinguished in Correia. However, the operable distinguishing factors in Correia are not present in this instance. Lowe’s was not in the business of investigation; it did not purport to pass off a completed investigation to police or make assurances that the proper suspects would be presented for arrest; and it reasonably expected that police would conduct their own investigation.

[435] As a result of the foregoing, the duty of care fails at the foreseeability inquiry in the first stage of the Anns/Cooper analysis.

[436] The proposed duty also fails at the second stage of the analysis. There are two compelling policy reasons that militate against finding that Lowe’s owed the asserted duty of care to the plaintiffs in this instance. The first is the potential chilling effect on citizens reporting criminality that may result from the recognition of a duty of care in the contextual circumstances of this case. The second consideration is grounded in the availability of redress through the laws of malicious prosecution and defamation for those who are targeted for arrest and prosecution by private actors who act without honesty, including providing false information to police. In that regard, the reasoning expressed in Ebagua, at para. 14, applies equally in this instance:

The plaintiff points to a number of things that National and Ms. Gomes might have done to perform a better investigation before reporting the car stolen. Given that the law does not recognize a duty of care, the fact that they did not do what the plaintiff says they ought to have done, does not give him a right to sue for negligent investigation. Rather, the law errs on the side of favouring reporting of criminal behaviour by protecting informants even if they are mistaken. However, if a person strays too far from propriety in dealing with the police then he or she will be subject to the laws of malicious prosecution and defamation as discussed below and perhaps also the tort of false arrest that is not raised in this action. It is those torts, and not the tort of negligent investigation, that define the balance between actionable and acceptable behaviour for private people and businesses that are not in the business of investigating crime.

[437] For the foregoing reasons, I find that the Lowe’s defendants have met their onus to establish that there is no genuine issue requiring a trial to determine the existence of a duty of care in this instance. The record allows me to find with confidence that the duty proposed by the plaintiffs ought not to be recognized in the circumstances of this case. The proposed duty fails at the first stage of the Anns/Cooper analysis based on lack of reasonable foreseeability and at the second stage for the reasons set out above.

[438] Below, I will explain the reasons for my determination that in the event that such a duty ought to be recognized, there is no genuine issue requiring a trial to determine whether any of the Lowe’s defendants breached the applicable standard of care.

viii. There is No Genuine Issue With Respect Whether Lowe’s

Breached the Applicable Standard of Care

[439] To the extent that I have erred in my determination that the record discloses no genuine issue that requires a trial to determine that Lowe’s did not owe the plaintiffs the duty of care that they assert, I would conclude that the Lowe’s defendants have met their onus to demonstrate that there is no genuine issue requiring a trial to determine whether Lowe’s breached the applicable standard of care required by that duty. I will explain.

[440] Despite being obligated to put their best evidentiary foot forward in the context of Lowe’s motion for summary judgment, the plaintiffs have failed to adduce any expert evidence to address the parameters of the duty of care that they assert Lowe’s owed them, in the context of what they characterize as its “professional investigation”. In my view, such evidence is required in this instance.

[441] The standard of care applicable to a commercial actor carrying out an investigation into suspected fraud or financial crimes committed against it by third parties not in its employ, is not a matter of common or ordinary experience nor a “non-technical matter”. Further, I find that the available evidence does not disclose conduct by Lowe’s or its employees that was so egregious that it can be found to have breached the standard of care despite its precise parameters not being defined. I will explain.

[442] Through their factum and submissions, the plaintiffs assert that Lowe’s engaged in unreasonable conduct because:

a) PC Khoury and PC Brnardic were dispatched to respond to a “fraud in progress” call;

b) PC Khoury received information from WPS dispatch that two men were attempting to pick up over $40,000 worth of merchandise fraudulently purchased by a credit card;

c) PC Khoury received a further update from WPS dispatch that two parties matched the description of “perpetrators who committed a fraud in Belleville and they were picking up an order placed by David Kofman”;

d) Lowe’s tailored the evidence they provided to police by limiting the information and documentation provided to only those orders picked up (or attempted to be picked up) by Mihail and either Andrei or Alexei; and

e) Lowe’s did not provide WPS with the witness statements prepared by Ms. Fox and Ms. Rinkel, both of whom interacted with Mihail and Andrei on March 13, 2010.

[443] As a result of the foregoing assertions, the plaintiffs conclude that the WPS received information from Mr. Findlay on behalf of Lowe’s that the plaintiffs had previously committed a fraud in Belleville and that a fraud was currently in progress at the Windsor Lowe’s store.

[444] The propositions set out above, which the plaintiffs assert establish the Lowe’s defendants’ negligence, are generally not borne out by the evidence. I will explain.

[445] A careful examination of the totality of the evidence reveals that the information provided by Mr. Findlay to WPS officers who responded to the March 13, 2010 call, did not include an allegation that Mihail and Andrei perpetrated a fraud in Belleville or that the value of goods involved in the March 13, 2010 pickup totalled over $40,000. In any event, neither of the impugned statements that the plaintiffs attribute to Mr. Findlay, formed part of PC Khoury’s grounds to arrest Mihail and Andrei, as she deposes them to have been, in her affidavit.

[446] Further, the available evidence conclusively establishes that despite the plaintiffs’ suggestion to the contrary, information and particulars with respect to all suspected fraudulent credit card orders placed at the Windsor Lowe’s store (March 11, March 13 and scheduled pickup post-March 13) were provided to police on March 13, 2010 and disclosed to Andrei and Mihail’s defence counsel on March 16, 2010. The evidence also conclusively establishes that Mr. Fralick provided BPS with full particulars, and all associated documentation and surveillance related to all suspected fraudulent credit card orders and pickups, including the March 5, 2010 pickup, in which neither Mihail nor Andrei were involved. There is no evidence to the contrary. I will explain my reasons for the foregoing findings below.

[447] First, with respect to the assertion that Lowe’s withheld or tailored evidence, Ms. Avery, in her affidavit, provides evidence that Mr. Findlay did not provide police with any information about the use of the pseudonym “Levi” in relation to certain fraudulent orders, or the particulars of orders placed under that name. However, the disclosure which she received on March 16, 2010, in her capacity as the plaintiffs’ criminal counsel, conclusively evidences that the opposite was true. The disclosure of “Levi” and the particulars of the “Levi” orders were provided to the WPS by Mr. Findlay on March 13, 2010 and included in the disclosure Ms. Avery received on March 16, 2010. In cross-examination, she admits she reviewed that disclosure including its content in respect of the “Levi” orders, contemporaneous to her receipt of same. During the course of submissions, plaintiffs’ counsel conceded that point.

[448] Second, with respect to the assertion that Mr. Findlay advised police that Mihail and Andrei had previously committed a fraud in Belleville, the plaintiffs rely on PC Khoury’s evidence, in which she indicates that en route to the Lowe’s store she received an update from dispatch, indicating that “two individuals attempting to pick up the March 13, 2010 Windsor Kofman order matched the description of perpetrators who committed a fraud” against the Belleville Lowe’s store. They assert her evidence proves that Mr. Findlay reported that they had previously committed a crime. However, there is no evidence that establishes that that was the specific information conveyed by Mr. Findlay through his 9-1-1 report. Indeed, the dispatcher’s statement that is evidenced by PC Khoury is not the same as the plaintiffs’ allegation that Mr. Findlay reported to police that the plaintiffs “committed a fraud in Belleville”. The plaintiffs infer that the information broadcast by WPS dispatch must have come from Mr. Findlay in that form. However, the direct evidence about what Mr. Findlay actually said to the WPS officers who attended at the Lowe’s store does not disclose that he identified Mihail and Andrei as perpetrators of a fraud in Belleville, or perpetrators of a fraud at all.

[449] In her affidavit, PC Khoury provides a detailed account of the information she received from Mr. Findlay, including that one of the individuals attempting to pick up the March 13, 2010 Windsor pickup matched the description of an individual who picked up a fraudulent order in Belleville under the name Kofman on March 11, 2010. That information is accurate. Later, she states that Mr. Findlay showed her a photo from the Belleville Lowe’s store that showed the plaintiff, Mihail, picking up goods that Lowe’s had subsequently confirmed were purchased with a fraudulently obtained credit card. She does not depose to receiving information from Mr. Findlay indicating that either of the plaintiffs “perpetrated a fraud in Belleville”. Her notes from March 13, 2010 have been produced and they do not record that Mr. Findlay identified Mihail or Andrei as the perpetrators of a fraud in Belleville, nor do PC Brnardic’s notes. The information that she actually received from Mr. Findlay was, in fact, accurate.

[450] In his affidavit, PC Brnardic states that Mr. Findlay provided police with information consistent with his statement, the content of which does not reflect that he reported that Mihail and Andrei committed a fraud in Belleville. PC Khoury’s detailed report with respect to the events of the Lowe’s call does not indicate that she received direct information from Mr. Findlay that the plaintiffs had perpetrated a fraud in Belleville.

[451] Finally, post-arrest, Det. Verkoeyen prepared a charge sheet in which he correctly indicated that Mr. Findlay had indicated that he received advice from Mr. Fralick that an order had been placed and received in the name of Kofman at the Belleville Lowe’s store and a description of the person who picked up the order matched one of the persons who was in the Windsor Lowe’s store on March 13, 2010. That information was accurate. The charge summary does not reflect that Mr. Findlay advised police that Mihail and Andrei were the perpetrators of a fraud in Belleville, at any time.

[452] The plaintiffs also contend that Mr. Findlay overstated the value of goods involved in the March 13, 2010 pickups as $40,000. The totality of the evidence suggests he did not. His statement taken by PC Brnardic evidences that Mr. Findlay reported that the total value of all orders placed through the Windsor Lowe’s store was in excess of $40,000 (as opposed to only the orders being picked up on March 13, 2010). Further, PC Khoury’s notes and her affidavit evidence confirm that she was advised that the March 13, 2010 orders for Kofman totalled over $20,000.

[453] Further, even in the event that Mr. Findlay had made the statements that the plaintiffs allege, there is no evidence that those statements contributed to the plaintiffs’ arrest in Windsor. PC Khoury’s affidavit evidence discloses that her grounds to arrest Mihail and Andrei were not dependent on, or the result of, receiving information that the value of the goods they were attempting to pick up on March 13, 2010 totalled over $40,000 and/or that they perpetrated a prior fraud in Belleville. Instead, her grounds were formed, in part, by the fact that Mihail and Andrei had attended in Belleville and in Windsor to pick up orders at Lowe’s stores to bring them to the GTA. That proposition was an accurate statement of fact and it was consistent with information provided to PC Khoury directly by Mihail and Andrei, before they were arrested. In addition, in any event of the information she received from Mr. Findlay or what may have been reported by Lowe’s, PC Khoury remained mindful that the plaintiffs may not have been the perpetrators of any fraud. Specifically, in describing the formation of her grounds, PC Khoury testifies:

Because the Kolosovs were picking up the orders, there must have been some link between the person placing the orders and the Kolosovs, which could have ranged from the Kolosovs being the perpetrators, to knowing participants along with others, to innocent movers, as they claimed.

[454] Finally, Mr. Findlay agrees that he may have reported a “fraud in progress”, when he contacted police on March 13, 2010. For reasons which I have previously set out, that information was accurate, in any event of Mihail and Andrei’s knowledge that they were participants in the method by which the fraud was committed. Beyond that, PC Khoury’s evidence about her grounds to arrest discloses that her grounds were not in any way based on the fact that police received a report of “fraud in progress”. Instead, she independently determined that grounds existed without relying on the initial information reported to 9-1-1, whatever it may have been.

[455] The final aspect of Lowe’s alleged breach of the standard of care is Mr. Findlay’s asserted failure to provide copies of Ms. Fox and Ms. Rinkel’s statements (made some time after March 13, 2010) to police. The plaintiffs assert that aspects of their statements were exculpatory. Yet, as I previously found in determining the WPS defendants’ motion, even before Mihail and Andrei were arrested, police were aware of and considered the asserted exculpatory aspects of those statements. Prior to their arrest, police were also aware of the plaintiffs’ exculpatory explanation that they were merely innocent movers who advertised in Russian newspapers. That information was all contained in PC Khoury’s report. DC McCann testifies that the information in the Fox statement would not have influenced his view on the charges. Assistant Crown Attorney Cornett confirms in his cross-examination, that he was otherwise aware of the asserted exculpatory information in the statements together with Andrei and Mihail’s innocent explanation for their involvement in picking up the merchandise when he had carriage of the prosecution. However, he did not believe, in all of the circumstances, that their explanation carried with it a ring of truth.

[456] Apart from the absence of any evidence establishing that the conduct or result of DC McCann’s investigation would have been influenced in favour of the plaintiffs if the Fox and Rinkel statements were provided to him, there is no evidence that, in all the circumstances, the mere fact that Lowe’s did not provide the statements to police amounted to unreasonable conduct. Through her report and her evidence, it is clear that PC Khoury was aware that Mihail and Andrei interacted with a Lowe’s employee on March 13, 2010. There is no evidence establishing that it was unreasonable for Lowe’s to expect that if PC Khoury, or any subsequent investigator, believed there was investigatory value to securing statements from the employees who interacted with Mihail and Andrei that the police would independently do so. They did not.

[457] In the result, there is no evidence establishing that the Lowe’s defendants breached the applicable standard of care (assuming a duty of care was owed by it to the plaintiffs) or even the specific parameters of the applicable standard of care. Without any evidence of a breach of the standard of care, a trial is not required to determine that the plaintiffs’ claim in negligent investigation fails.

ix. The Other Bases of Liability Asserted Against Lowes

[458] Although the plaintiffs’ claim against the Lowe’s defendants is primarily founded in their allegations of negligent investigation, it remains that there is no genuine issue requiring a trial with respect to the other bases of liability asserted against them in the statement of claim.

[459] First, there is no genuine issue requiring a trial to determine that any cause of action founded in false arrest, false imprisonment, malicious prosecution, or defamation (if it had been pleaded) cannot succeed against the Lowe’s defendants.

[460] None of the Lowe’s defendants arrested the plaintiffs and they did not direct or cause the plaintiffs to be detained or imprisoned. The plaintiffs were arrested by the WPS after PC Khoury determined that she had adequate grounds to do so and subsequently, by the BPS pursuant to valid arrest warrants. Police exercised their independent discretion to arrest or seek a warrant for the arrest of Mihail and Andrei and to detain them, thereafter. The police were not requested or instructed to do so by Lowe’s or its employees. Finally, for reasons which I have expressed previously, the limitation period with respect to those torts expired prior to the commencement of the plaintiffs’ action.

[461] Second, during the course of Mihail’s Examination for Discovery, plaintiffs’ counsel confirmed that the plaintiffs were not alleging or asserting malice on the part of any of the Lowe’s defendants. That concession conclusively answers any claim for malicious prosecution or defamation against the Lowe’s defendants. Malice is an essential element of the tort of malicious prosecution. Apart from the malice issue, the Lowe’s defendants were not a “prosecutor” with respect to either the Windsor or Belleville criminal proceeding against Mihail and Andrei. The Lowe’s defendants did not initiate those proceedings and there is no evidence that the Lowe’s defendants knowingly gave false incriminating information against the plaintiffs to police that police then acted on. The malicious prosecution claim must be dismissed.

[462] While a case for defamation is not expressly pleaded in the statement of claim, during the course of Mihail’s Examination for Discovery, plaintiffs’ counsel characterized the claim advanced against the Lowe’s defendants as being, effectively, that Lowe’s and/or its employees negligently gave false information to police which resulted in the plaintiffs’ arrest, detention, and consequential damages, with “the gist” of the claim against the Lowe’s defendants being negligence and negligent investigation. The Lowe’s defendants posit that the essence of the plaintiffs’ action against them is a claim for defamation, made in the absence of an allegation of, or any evidence of, malice.

[463] In a claim framed in defamation, a person making a statement or complaint to police about suspected criminal activity is protected by a qualified privilege. An informant who makes a statement to police is discharging a social duty to assist in the detection of criminal activity. The police officer receiving the report has an interest in receiving the information because he or she can investigate it: see Gittens v. Brown, 2003 40565 (Ont. S.C.), at para. 30. In those circumstances, if the statement made to police is in fact false, it is only actionable if it was made with malice or generally, with knowledge that the statement was untrue or with recklessness as to its truth or falsity. Here, the absence of malice alone is fatal to any claim in defamation. Moreover, there is an absence of evidence establishing the Lowe’s defendants made false statements about the plaintiffs to police.

[464] Finally, in their submissions, the plaintiffs appear to suggest that the Lowe’s defendants breached a duty of care owed to them, by failing to follow Lowe’s internal policies and procedures concerning credit card orders placed over the telephone and the subsequent pickup of related merchandise. The plaintiffs posit that had Lowe’s followed its own policies, Mihail and Andrei never would have been able to pick up goods that had been fraudulently purchased. In that regard, they have named as defendants in this proceeding, Mr. Boyle and Mr. Howard, former employees at the Belleville Lowe’s location, each of whom received and processed telephone credit card orders in March 2010, that were part of the subject fraudulent scheme.

[465] This aspect of the plaintiffs’ theory of liability against the Lowe’s defendants finds little support in the evidence. Further, it does not survive an inquiry into whether the Lowe’s defendants owed the plaintiffs a duty of care to follow its own internal policies. I will explain.

[466] The available evidence establishes that Lowe’s internal policies and procedures are designed to protect itself and its customers against fraud and financial losses. There is no evidence that the purpose of Lowe’s internal policies includes preventing persons, who knowingly or unknowingly participate in a fraudulent scheme designed to deprive Lowe’s of its property, from being criminally implicated as a result of that participation. In addition, there is no evidence establishing that Mr. Boyle or Mr. Howard directly or indirectly interacted with Mihail and Andrei, at any point in time, ever. There is no evidence that Mr. Boyle or Mr. Howard ever identified Mihail and Andrei as being involved in any criminality at any point in time. There is no evidence that Lowe’s had any pre-existing relationship with Mihail and Andrei at all, prior to their March 10, 2010 Belleville pickup. Finally, there is no evidence that any of the Lowe’s defendants ever had a contractual relationship with Mihail or Andrei. When the plaintiffs attended at Lowe’s locations they did so simply to pick up orders for their own alleged customer Kofman. There is no evidence that the plaintiffs themselves were customers of Lowe’s.

[467] The plaintiffs have not identified any authority or principled basis to conclude that in the circumstances of this case, Lowe’s as a retail commercial actor, was under a duty of care to follow, through the conduct of its employees, its own internal policies aimed at protecting itself and its customers from credit card fraud, with such a duty being owed to unknown and unidentified third parties with whom Lowe’s had no pre-existing relationship, who may otherwise eventually become unknowing participants in a fraudulent transaction committed against Lowe’s and thereafter, be wrongfully arrested, as a result of such participation.

[468] In my view, such a proposed duty of care fails at the first stage of the Anns/Cooper analysis owing to the lack of reasonable foreseeability of harm and based on the complete absence of proximity between the relevant parties.

[469] On the issue of proximity, the proposed duty is said to be owed by employees of a commercial enterprise who fail to follow internal loss prevention policies and it is said to be owed to otherwise complete strangers without any pre-existing relationship to the commercial enterprise, who may become unwitting participants in criminal acts against the commercial enterprise. In that context, not only is there an absence of the “requisite sufficiently close and direct relationship” between the parties necessary to recognize the proposed duty, there is a complete absence of any relationship between the parties.

[470] On the issue of foreseeability, in my view, it is not reasonably foreseeable that the actions of a store employee failing to follow his or her employers internal credit card purchase policies would result in harm to an unidentified and otherwise unascertainable person who may somehow become the unwitting participant in a fraud against the employer and thereafter, be the subject of a negligent police investigation resulting in police unlawfully arresting that person, in the absence of lawful grounds to do so. It is not reasonably foreseeable that police would charge such a person without first doing the job required of them by law: see BMG, at para. 3.

[471] At the second stage of the Anns/Cooper analysis, the prospect of indeterminate liability to an indeterminate class of persons that is inherent in the proposed duty would militate against its existence.

[472] Further, the plaintiffs’ proposed duty of care in this aspect of its claim, would serve to render commercial actors who do not follow their own policies with respect to fraud protection that are subsequently victimized by fraud, liable in negligence to the extent they report the criminality to police and an unknowing participant in the fraud is then arrested, detained and/or prosecuted. The existence of such a duty could very well operate to discourage commercial victims of fraud from reporting such criminality, in circumstances in which they have not optimally complied with their own policies designed to protect themselves from financial criminality. Such a result would generally be inconsistent with the social benefits derived from private citizens making honest reports of suspected criminal conduct to public police for the purpose of investigation.

[473] Indeed, in the course of submissions, plaintiffs’ counsel conceded that the plaintiffs do not submit that the victim of a crime owes a duty of care not to be defrauded. That concession alone is a sufficient basis to conclude that the duty of care proposed by the plaintiffs with respect to Lowe’s following its own policies ought not to be recognized.

[474] Finally, Alena’s claims against the Lowe’s defendants must be dismissed for the following reasons. First, her Family Law Act claim is derivative in nature. Since Andrei and Mihail’s claims against the Lowe’s defendants fail, so too does Alena’s derivative claim. Second, since the Lowe’s defendants did not engage in actionable misconduct, at all, there is no basis for Alena’s negligent infliction of mental suffering claim against them.

XII) Summary With Respect to the Disposition of Lowe’s Motion

[475] Based on the evidence before me, I am satisfied there is no genuine issue with respect to the liability of the Lowe’s defendants that requires a trial in order to achieve a fair and just determination of the action against them on the merits. The available evidence allows me to find the necessary facts and apply the relevant law to those facts as found and in doing so, I conclude that the plaintiffs’ claims against the Lowe’s defendants must fail. The Lowe’s defendants’ motion for summary judgment is granted and the action is dismissed against all of them.

XIII) Nature of the Orders

[476] In the context of the summary judgment motion brought by the WPS defendants, an order will go allowing the motion and dismissing the action against the defendants, Windsor Police Service Board, Detective Kevin McCann, Police Constable Steven Brnardic and Police Constable Jacqueline Khoury.

[477] In the context of the summary judgment motion brought by the Lowe’s defendants, an order will go allowing the motion and dismissing the action against Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle, and Casey Findlay.

XIV) Costs

[478] Each set of moving parties may deliver costs submissions of no more than eight pages in length, double spaced, 12 point font, within 45 days of the date of these reasons. The plaintiffs may deliver submissions of no more than 15 pages in length, double spaced, 12 point font, responding to any costs submissions that are made by both the WPS defendants and the Lowe’s defendants within 45 days of the last date upon which they are served with costs submissions by either set of moving parties. Each set of moving parties may deliver reply submissions of a maximum of three pages, double spaced, 12 point font, within 20 days of the date of service of the plaintiffs’ submissions. Each of the parties shall include, with their original submissions, a costs outline and copies of any relevant offers to settle.

[479] Judgment to go in accordance with the foregoing.

“original document signed by Justice Gregory J. Verbeem”

Gregory J. Verbeem

Justice

Released: December 18, 2018

COURT FILE NO.: CV-12-17981

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mihail Kolosov, Andrei Kolosov also known as Andrei Kolasau, and Alena Kolasava

Plaintiffs

– and –

Lowe’s Companies Inc., Lowe’s Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas Gerald Howard, Steven S. Boyle, Casey Findlay, Windsor Police Services Board, Gary Smith, Former Chief of Windsor Police Services, Detective Kevin McCann, Police Constable Steven Brnardic, Police Constable Jacqueline Khoury, Staff Sgt. Alan Brown, Belleville Police Service Board, Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo, Constable Jeff Ling, Detective Constable Paul Josefik and Her Majesty the Queen in Right of the Province of Ontario as Represented by the Attorney General of Ontario

Defendants

RULING ON SUMMARY JUDGMENT MOTION

Verbeem J.

Released: December 18, 2018