COURT FILE NO.: CV-16-554369
DATE: 2019-10-22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: P.Y. and A.Y., Plaintiffs
AND:
THE ATTORNEY GENERAL OF ONTARIO
THE TORONTO POLICE SERVICES BOARD
THE POLICE CHIEF WILLIAM BLAIR
POLICE CONSTABLE LEE ANN WEST
POLICE CONSTABLE SARBJEET DHUGHA
LAURIE GONET, Defendants
BEFORE: Sossin J.
COUNSEL: P.Y. and A.Y., for themselves
Graham Thomson, Counsel for the Toronto Police Services Board
Domenico Polla, Counsel for the Attorney General for Ontario
HEARD: August 19, 2019
REASONS FOR JUDGMENT
OVERVIEW
[1] This case involves a civil action by parents who were charged criminally with abusing their children and who now have brought claims against the police and Crown officials responsible for those charges. The question before me is whether those claims should be dismissed or sustained on summary judgment, or whether those claims are justified in moving forward to a trial, based on the evidence in the record.
[2] The plaintiffs, P.Y. and A.Y. (The Y.”), were investigated by police and charged by the Crown with serious criminal offences involving the alleged abuse of their four children, YNY, who was 13 years old at the time of the investigation in 2011, MLY who was 10 years old, SCHY who was six years old and MKY who was three years old.
[3] In March of 2011, a Catholic Children’s Aid Society (“CCAS”) worker reported a possible case of child abuse to Constable Sarbjeet Dhuga (“Officer Dhuga”). Constable Lee Ann West (“Officer West”) accompanied Officer Dhuga and attended at The Y. home in April, 2011, to gather further information. At that point, no charges were laid, and the investigation ceased.
[4] The investigation was reopened in November, 2011, following another contract from a CCAS worker to Officer West, after MLY told a friend after school that she was been punished for speaking with the CCAS worker and was afraid to go home. Numerous allegations of other abuse followed in interviews with the Y. children, resulting in the arrest of A.Y. and P.Y. on November 16, 2011.
[5] The police continued interviewing the Y. children, arranging for medical examinations and obtaining other evidence.
[6] On November 25, 2011, The Y. were released on bail.
[7] The police lay 13 charges against The Y. over the course of the December, 2011 and January, 2012, including being subjected to cold baths, beatings with a belt and shoe horn, and having hot pepper sauce placed in MLY’s vagina.
[8] In early 2012, Laurie Gonet (“Gonet”), an Assistant Crown Attorney, was assigned to prosecute the charges.
[9] After a preliminary inquiry concluded, in April 2013, Justice Barnes held that Y.s should stand trial on seven of the thirteen charges, including separate charges for P.Y. and A.Y. of assault and assault with a weapon.
[10] The children were removed from The Y. custody by order of Justice Curtis of the Ontario Court of Justice, dated October 7, 2013, and declared Crown wards (the “child protection proceeding”). This order was unsuccessfully appealed to the Superior Court of Justice (Catholic Children’s Aid Society of Toronto v. A.M.Y., 2014 ONSC 6526), the Ontario Court of Appeal (Catholic Children’s Aid Society of Toronto v. A.M.Y., 2015 ONCA 493) and the Supreme Court of Canada (A.Y. v. Catholic Children’s Aid Society of Toronto., [2015] SCCA No. 415 (S.C.C.)).
[11] Ultimately, by the time the case reached trial in June, 2014, a different Crown Attorney then assigned to the case withdrew the changes.
[12] The Y. issued a statement of claim on June 8, 2016, suing for damages for $2,000,000 for improper arrest and improper charges, false imprisonment, malicious prosecution, negligence and negligent investigation, obstruction of justice, defamation, breach of statutory duty and misfeasance in public office. The Y. also seek $1,000,000 in exemplary damages, an amount for special damages to be determined with particulars to be provided prior to trial, as well as a further $1,000,000 for “general, aggravated and responsibility” damages.
[13] While The Y. at one time had legal representation, they are now representing themselves in this civil action.
[14] The defendants, the Attorney General of Ontario (“AG”) and Gonet, bring this motion for summary judgment to dismiss this action against them pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules of Civil Procedure”). Additionally, the Toronto Police Services Board (“TPSB”), former Police Chief William Blair, Officer West and Officer Dhuga (collectively, “the police defendants”), move for summary judgment to dismiss this action against them under Rule 20 as well.
[15] With respect to the AG and Gonet, their grounds for summary judgment are that (1) Gonet is absolutely immune from being named personally in an action for damages under the Crown Attorneys Act and section 8 of the Ministry of the Attorney General Act, and therefore only the AG can be a proper defendant in such an action; (2) Gonet discharged her responsibilities in “professional, fair and prudent fashion” based on reasonable and probable grounds; (3) Gonet acted in good faith and for no improper purpose; and (4) none of the other causes of action can succeed against the AG as there are no material facts pled to support them or they give rise to immunity in the AG.
[16] With respect to the police defendants, their grounds for the summary judgment motion are that (1) the claims of The Y. are statute barred by the two-year limitation period for civil actions in the Limitations Act, 2002, S.O. 2002, c.24 (the “Limitations Act”); (2) the evidence demonstrates that at all material times the police acted on reasonable and probable grounds, and (3) there are no other causes of action alleged in the amended statement of claim which can succeed.
[17] The Y. oppose the motions by the defendants for summary judgment and bring their own motion for summary judgment.
[18] For the reasons that follow, I grant the defendants’ motions for summary judgment, and dismiss The Y.’ motion for summary judgment.
Preliminary Issues
[19] This summary judgment motion was scheduled over two days. The first portion of the hearing was spend addressing challenges to a number of summonses issued by The Y. to various witnesses who were part of the original investigation into the conduct of The Y., including representatives of the school board that the children attended, social workers who worked with the CCAS who investigated complaints about the children, a psychologist who assessed one of the children and others.
[20] All of these summonses were improper under the Rules and were quashed.
[21] The summonses reflect a basic misunderstanding by The Y. of a summary judgment motion. From the outset, The Y. approached this motion as a trial, where they would have the opportunity to call witnesses, and present their evidence as to why they should not have been investigated or charged with crimes, and why their children should not have been removed from their care in the child protection proceeding.
[22] The summary judgment motion, however, is not a trial. While the expanded powers of the Court on summary judgment motions can involve viva voce testimony from witnesses, this may only occur where ordered by the Court, because it is deemed necessary to determine the issues on a summary judgment motion; see ThyssenKrupp Elevator (Canada) Limited v. Amos, 2014 ONSC 3910, at para 40.
[23] In part because The Y. viewed this motion as their sole opportunity to marshal all of their evidence to prove their claim, they objected to the two-day time limit on the motion. They had sought ten days in which to argue the motion.
[24] At the end of the two days, The Y. insisted they had additional evidence to present and asked for additional time to do so. I declined this request.
[25] I acknowledge the frustration of The Y., and the difficulty of navigating the Rules of Civil Procedure, and a voluminous record, in a limited time-frame, without the benefit of counsel. That said, I found The Y. to be strong advocates for their position, and with the benefit of their written and oral submissions, I am satisfied that I obtained a sufficient understanding of their position on the motion to decide the issues in dispute.
ANALYSIS
[26] Summary judgment is governed by Rule 20.01 of the Rules of Civil Procedure which provides:
20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (1).
(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just. R.R.O. 1990, Reg. 194, r. 20.01 (2).
To Defendant
(3) 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. R.R.O. 1990, Reg. 194, r. 20.01 (3).
[27] On a motion for summary judgment, the Court must determine if there is a genuine issue for trial. In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court set out the test to be applied on a summary judgment motion (at paras. 49-50):
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. 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. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure 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.
[28] Additionally, on a motion for summary judgment, the parties must put their best foot forward. It is not enough for a party to indicate what evidence they may adduce or challenge at trial; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32.
The Defendants’ Motion for Summary Judgment
[29] As the positions of the police and Crown differ somewhat on the grounds for the summary judgment motion, I will deal with each in turn.
The claims against the police defendants for false arrest, false imprisonment, negligence, negligent investigation and breaches of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[30] First, the police defendants take the position first that the TPSB has been improperly added to the suit. No liability flows to the TPSB based on the actions of individual police officers; see Odhavji Estate v. Woodhouse, 2003 SCC 69 (“Odhavji”) at paras. 64-67. For this reason, the claim against the TPSB is dismissed.
[31] Second, the police defendants submit that then Police Chief Blair cannot be personally liable for the actions of individual police officers, nor is there evidence that the Chief of Police failed to supervise the officers involved in this case; see Odhavji at paras. 53-61; and Romagnuolo v. Hoskin, 2001 CarswellOnt 3183 at paras. 54-61. For this reason, the claim against former Chief Blair is dismissed.
Are the claims against the police defendants barred by the Limitations Act?
[32] The police defendants argue that the claims by The Y. against them are all statute barred by the Limitations Act. The police investigations which led to the criminal charges being filed took place between 2011 and 2013.
[33] The Y. argue that they could not have brought the claim prior to the criminal charges being withdrawn, which occurred on June 9, 2014. The Y. claim was issued on June 8, 2016, within the two-year limitation period of the date the criminal charges were withdrawn.
[34] The specific claims against the police defendants include false arrest, false imprisonment, negligence, negligent investigation and related breaches of sections 7, 9, 10(b) and 15(1) of the Charter of Rights and Freedoms.
[35] Section 4 of the Limitations Act provides that, "Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered."
[36] The threshold under s.5(1)(a) of the Limitations Act for the discoverability of a claim is as follows:
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).
[37] The police defendants argue that once The Y. were released on bail in 2011, their arrest and imprisonment ended, and the limitation period for a civil action for false arrest and false imprisonment commenced; Ferri v. Root, 2007 ONCA 79.
[38] The Y. argue that the civil action could not have been started as long as their case was before the criminal courts. However, The Y. have raised no additional facts about the police investigation which they were not aware of at the time of their arrest or at the time charges were brought. In other words, The Y. have not shown that they could not have discovered their claims with reasonable diligence at that time; Alexis v. Darnley, 2009 ONCA 847.
[39] In Nicely v. Basse et al, 1991 CanLII 7338 (ON SC), 1991 CarswellOnt 410, [1991] O.J. No. 460, the Ontario Divisional Court considered a similar case involving a party bringing a civil action for damages for false arrest, false imprisonment, and related torts arising out of criminal charges. The plaintiff in Nicely was acquitted of certain charges and others were withdrawn by the Crown. The issue before the Divisional Court was whether the claim was statute barred by a limitation period. Rosenberg J. (as he then was) held for the Court (at para. 15):
[15] In relation to a cause of action for false imprisonment or false arrest, dismissal of the charges may be evidence in support of the contention that there was not reasonable and probable cause at the time of the arrest or imprisonment. Similarly, if there is a conviction, that fact may be evidence that there was reasonable and probable cause. However, the test is as of the date of the arrest and imprisonment. It is conceivable that the arrest may be made without reasonable and probable cause but the conviction based on matters that are later discovered that were not in the minds and known to the persons arresting and imprisoning. Similarly, the acquittal may be based on technicalities or other matters that do not reflect on the reasonable and probable cause that the arresting officers had at the time of making the arrest. (Emphasis added.)
[40] In Nicely, the Court dismissed the action against the police as statute barred, and specifically rejected the argument that in claims of false arrest and false imprisonment, the injury and damage to the plaintiff from the arrest and imprisonment continued until the conclusion of the criminal process.
[41] Similarly, in this case, the fact that the Crown withdrew the charges in June, 2014 does not shed light on whether The Y. were falsely arrested or falsely imprisoned in 2011. The Crown did not indicate that the charges were being withdrawn because there was not evidence to support the prosecution, or because of any problems with the evidence gathered by the police. Rather, the position of the Crown is that the charges were withdrawn so as not to put the children through the potentially harmful experience of testifying and because of potential inconsistencies in the testimony of the children.
[42] Therefore, in these circumstances, the point at which the claims for false arrest and false imprisonment by The Y. were discoverable within the meaning of the Limitations Act was at the time of their arrest and imprisonment by the police in November, 2011, and for negligence and/or negligent investigation, the latest date of discoverability would be when the last charge against them was added, following the preliminary inquiry, in April, 2013.
[43] As The Y.’ claim was not issued until June, 2016, I find that the police have defendants have established that claims against them are statute barred under the two-year limitation period in the Limitations Act.
[44] The same limitation period applies to the Charter claims against the police defendants; F. v Greater Sudbury (Police Service), 2015 ONSC 3937 at para. 63.
Have The Y. established that there were not reasonable and probable grounds for the police actions?
[45] Even if the claims against the police were not barred, I find that The Y. have not established that there is a genuine issue for trial with respect to the absence of reasonable and probable grounds for the police’s conduct.
[46] A necessary element for The Y. to prevail in the claims against the police defendants is that the police did not have reasonable and probable grounds for investigating, arresting and charging The Y.. The police defendants must show they had reasonable and probable grounds for their actions both from an objective and subjective perspective. In Bilich v. Toronto Police Services Board, 2013 ONSC 1445, Frank J. applied this standard in somewhat analogous circumstances:
[13] The defendants submit that the claims of false arrest and imprisonment must fail because the statement of claim does not plead any facts to support the claim that the officers did not have reasonable and probable grounds to arrest the plaintiff.
[14] In order to succeed in a claim for unlawful or false arrest, the plaintiff must prove that he was arrested or detained and that the defendants caused the arrest or detention. The onus then shifts to the defendants to establish that the arrest was justifiable. This requires that the officers demonstrate that they had reasonable and probably grounds to arrest. If the arrest is justifiable, there can be no false arrest or imprisonment.
[15] Although the statement of claim alleges that the officers did not have reasonable and probable grounds, this allegation is unsupported by any pleading that suggests that the officers did not have the subjective belief that they had reasonable and probable grounds or that their belief was not objectively reasonable. A speculative allegation such as this is inadequate as a basis for a necessary element of a cause of action. The facts supporting the allegation must be pleaded.
[47] A similar standard of reasonable and probable grounds applies for negligent investigation, where a plaintiff must show proceedings were terminated in favour of the plaintiff, in circumstances where there was no reasonable or probable grounds for the defendant to have initiated the investigation; Bilich, at para. 49.
[48] The Officers involved (Dhuga and West) stated in their affidavit evidence that they had reasonable and probable grounds for arresting The Y., on which they were not cross-examined. This evidence is sufficient to satisfy the subjective element of the reasonable and probable grounds standard.
[49] The objective element of the reasonable and probable grounds standard must be established on an objective assessment of the evidence on which the police defendants relied. In this case, Officers Dhuga and West based their decision to arrest A.Y. and P.Y. for assault on November 16, 2011, on the information provided by MLY that she was afraid to go home because she did not want to be hit anymore, that her mother had whipped her, pushed her off a chair and stepped on her stomach and throat, and that her father had hit her with a belt and shoe-horn. MLY also disclosed that she and her brother YNY had been repeatedly assaulted by The Y. over the course of the previous three years, and that beatings had occurred as recently as the several days leading up to the arrest of The Y..
[50] With respect to the arrest of A.Y., Officer Dhuga stated, “Officer West and I determined that based on the what we had heard so far, there were reasonable and probable grounds on which to arrest A.Y. for assault. (at para. 42 of Officer Dhuga’s affidavit, sworn December 18, 2018)
[51] With respect to the arrest of P.Y., Officer West stated, “Based on MLY’s disclosures during the interview, I determined that there were reasonable grounds to arrest MLY’s father, P.Y., and lay assault charges against him.” (at para. 64 of Officer West’s affidavit, sworn December 19, 2018)
[52] Officers Dhuga and West’s actions in November, 2011, occurred against the backdrop of an earlier investigation in March and April, 2011, in response to concerns raised by an CCAS about YNY. After an interview with YNY and SCHY, Officers West and Dhuga attended The Y. home and interviewed A.Y. about the concerns. On that occasion, Officer Dhuga concluded that, “There was no information disclosed at that time that would have supported criminal charges. I determined that there were insufficient grounds to support any further criminal investigation.” (at para. 27 of Officer Dhuga’s affidavit, sworn December 18, 2018) This earlier incident lends credence to the argument by the police defendants that they only pursued the criminal investigation to the point of charges and arrests when there were reasonable and probable grounds to do so.
[53] Taken as a whole, and in light of the evidence available to them at the time, the record demonstrates that Officers Dhuga and West had reasonable and probable grounds for the investigation and arrest of The Y. in November, 2011, viewed against both an objective and subjective standard.
[54] Additionally, after assessing the evidence on which the arrests were based, Gonet concluded that this evidence was sufficient to justify a range of serious charges.
[55] Further, a number of the charges which Gonet determined should be prosecuted subsequently were confirmed by the preliminary inquiry. As Justice Thorburn (as she then was) stated in Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC) at para. 60, “A committal for trial after a preliminary hearing is strong evidence supporting the existence of reasonable grounds. The withdrawal of charges or the absence of a criminal conviction does not lead to the conclusion that reasonable grounds did not exist for an accused’s arrest.”
[56] The Y. do not deny that the police obtained the evidence in question, but argue that they should have concluded that the evidence was not sufficient to justify charges against them and their arrest. For example, The Y. claim that if the beatings had occurred as alleged, there would have been complaints from neighbours about the noise, or visible marks which would have led to complaints from teachers or given rise to unequivocal evidence apparent on medical examinations of their children. They argue that the record discloses none of these expected consequences to alleged criminal acts occurred.
[57] The Y. argue that in the absence of such corroborating evidence, the police failed to revise their position and cease the investigation and prosecution. Further, The Y. submit that the police defendants acted in a manner that reflects the improper influence of CCAS, and an underlying motivation to support the removal of the Y. children from their custody. The Y. state (at paras. 33-34 of their factum):
The Police officers and the crown attorney have a duty to reassess their investigation and prosecution as circumstances/evidences warrant over time, but in our case the defendants Police Officers Lee Ann West and Sarbjeet Dhuga and the Defendant Crown attorney Gonet, persisted to maintain the prosecution on charges they knew with assurance have no reasonable prospect of conviction, in order to prevent us from suing the CCAS for the unlawful apprehension of out two children YNY and SCHY on March 31, 2011. They missed many opportunities to drop all charges and stop the prosecution …
By December 2011, the Police and Crown had all the necessary evidences that our children were not abused, nor neglected or maltreated and that all our children were in good health conditions and in good spirit, but instead of seeking a determination that is in the best interests of the children, the Police and Crown persisted to maintain the prosecution on charges they knew with assurance have no reasonable prospect of conviction, helping in this way the CCAS to win the Plaintiff’s children before the Family Court.
[58] While the police did receive information from CCAS workers as part of their investigation, there is no evidence of improper influence by the CCAS.
[59] The Y. have not adduced any expert evidence that Officers Dhuga and West did not meet their standard of care of a reasonable police officer in the circumstances.
[60] In J.H. v. Windsor Police Services Board et al., 2017 ONSC 6507, Leach J. considered a summary judgment motion by the police seeking to have a claim for negligent investigation by an accused who had been acquitted dismissed. Leach J. held (at para. 6):
Police are not required to make judgments as to legal guilt or innocence before proceeding against a suspect. In particular, although they 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 make legal judgments, which is the task of prosecutors, defence lawyers and judges. Investigating police will not be held liable for failing to perform such functions, or for the unreasonable conduct of other actors in the criminal justice system.
In establishing reasonable and probable grounds, investigating officers must take into account all information available to them, and are only allowed to disregard information which they have good reason to believe is unreliable. However, despite possible frailties in credibility or reliability, (including passage of time, inconsistencies, motive for concoction and/or mental illness), the uncorroborated testimony of a single witness, (including a child witness), may be a sufficient basis upon which to convict, and therefore provide reasonable and probable grounds for an arrest or charge. (Footnotes omitted.) (Emphasis added.)
[61] Therefore, even if the only evidence were the interview statements of MLY, this would have been sufficient to meet the objective standard of reasonable and probable grounds. In this case, however, there was additional physical evidence (such as the shoehorn and the hot sauce referred to in the alleged assaults described by the Y. children) as well as additional witnesses on which the police relied. For example, the physical examination of MLY by the Suspected Child Abuse and Neglect program at the Hospital for Sick Children disclosed numerous areas of hyperpigmentation of her skin and marks on her skin, which appeared to be consistent with some of the injuries alleged by MLY.
[62] Based on the record in this case, I find that the Officers Dhuga and West had reasonable and probable grounds for their investigation and arrest of The Y. in November, 2011, and that there is no genuine issue for trial on this issue.
[63] Therefore, the claims against the police defendants for false arrest, false imprisonment, negligent investigation must be dismissed.
The Claims against the AG for malicious prosecution and misfeasance in public office
[64] First, the AG submits that Goney cannot personally be the subject of a civil suit pursuant to section 8 of the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17. This provision gives Crown Attorneys full immunity from being named personally in an action for damages alleging prosecutorial misconduct, and in such circumstances, the AG is the proper defendant; Kukemueller v. Ontario (Ministry of Community Safety and Correctional Services), 2016 ONCA 451. Therefore, the claim against Gonet personally is dismissed.
[65] With respect to the remaining claims against the AG, in Miazga, Charron J. set out the test for malicious prosecution (at para. 3): “To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect.”
[66] Under this test, in other words, malicious prosecution can arise only where a Crown prosecutor acts outside the role of a prosecutor and perpetrates a fraud on her office by conducting a prosecution without reasonable and probable grounds and for improper purposes.
[67] The analysis of reasonable and probable grounds in the context of the conduct of the Crown prosecutor differs from that of the police, in that the standard is solely an objective one; Miazga at paras. 63-76. The existence of reasonable and probable grounds is a question of law and must be established on objective assessment and evidence in the record.
[68] The AG relies principally on the fact that all the actions of Gonet as the Crown prosecutor were taken in good faith, and on reasonable and probable grounds given what the police investigation uncovered, including the statements given by the Y. children.
[69] In her affidavit (at paras. 10, 35), Gonet reviews the evidence that formed the basis for her view that the prosecution was justified The evidence included the statements of the two complainant Y. children, MLY and YNY, the physical evidence recovered in The Y. home, the medical evidence of MLY and YNY which revealed skin marks and hyperpigmentation consistent with the injuries alleged by the children. As the AG states in its factum (at para. 68), “There was never any reason to doubt the truth or veracity of the complainants’ allegations and never anything that discredited them.”
[70] Gonet’s assessment of the evidence was confirmed by the preliminary inquiry which resulted in The Y. committal to stand trial on six of the original charges and a seventh, added charge. The committal to trial following a preliminary inquiry is a relevant factor in determining the existence of reasonable grounds for a prosecution; Miazga, at para. 97.
[71] In their submissions, The Y. focused on the improper influence of the CCAS on the police and the prosecution. For example, they allege that a video of the police questioning their youngest child, MKY. The Y. suggest that their child was coached and pressured to give evidence against them. This evidence, however, does not establish that the interviewers acted with any agenda other than attempting to gather information to determine if wrongdoing had occurred. There is no evidence linking the actions of Gonet as a prosecutor to any improper purpose.
[72] The Y. appear understandably committed to vindicating their view of their prosecution, but many of their submissions appear more aimed as a collateral attack on the removal of their children than on establishing the liability of the Crown for malicious prosecution.
[73] Even if Y.s could show that, in retrospect, they should not have been prosecuted on some or all of the charges brought, this does not address whether Gonet had reasonable and probable grounds at the time to pursue the prosecution of The Y., based on the evidence in the record.
[74] Given the presence of reasonable and probable grounds for the prosecution, in light of an objective assessment of the record, and the absence of evidence of any improper motive, The Y.’ claim for malicious prosecution cannot succeed.
[75] The Y. also claim the AG is liable for misfeasance in public office. This allegation, however, is based on the same foundation as the claim for malicious prosecution. While Crown prosecutors are not immune from misfeasance in public office, a plaintiff is required to show that the Crown prosecutor was both aware that the conduct was illegal and likely to injure the plaintiff (Odhavji, at para.23). The record does not disclose any basis for a claim in misfeasance in public office.
[76] I find that the AG has met the burden of establishing that, based on the evidence in this case, there is no basis for liability on the claims of The Y., and there are no genuine issues for trial.
The Other Claims
[77] The Y.’ claim includes other allegations against the defendants but these are based on bald assertions that are not supported by the record. In such circumstances, summary judgment dismissing these claims will be appropriate. As Justice Thorburn (as she then was) stated in Wong (at para. 47):
Bald assertions will not constitute genuine issues for trial. As stated by the Court of Appeal in Goldman v. Devine, “Self-serving evidence that merely asserts a defence or a claim without providing some detail or supporting evidence is not sufficient to create a genuine issue for trial…” There must be some meaningful support for the representations made. (Footnote omitted)
[78] The Y. allege that the defendants are liable in defamation. The statement of claim, however, does not set out what any of the defendants published that is alleged to be defamatory.
[79] The Y. allege that the defendants engaged in conduct which constitutes an obstruction of justice. The Y. outline a range of documents which they believe have been withheld. To the extent that The Y. seek to demonstrate their Charter rights were infringed by this non-disclosure, the basis for the claim, and the required notice, are not part of the record. The AG argues that many of the documents mentioned by The Y. were privileged items of the Crown’s work product, or did not exist or were not relevant. The AG asserts (at para. 91 of its factum):
There is no evidence that Ms. Gonet was in possession of evidence that she knew or ought to have known was material to the criminal case and failed to disclose it. Ms. Gonet worked with A.Y.’s lawyer and fully responded to the allegations made at the time. That correspondence reveals, again, that the alleged missing items either did not exist or were in the possession of third parties. Further the plaintiffs, represented by counsel at all times, did not bring any applications of any kind seeking further disclosure during the criminal proceedings.
[80] In these circumstances, The Y. have not established a genuine issue for trial based on obstruction of justice.
[81] Finally, The Y. allege that the defendants engaged in a “breach of statutory duty.” A breach of a statutory duty is not in itself a basis for civil liability.
The Y. Motion for Summary Judgment
[82] In this case, there is an extensive record of the criminal investigation and prosecution of The Y.. The Y. take the position that the record is sufficient to show that judgment should be granted in their favour against all of the defendants.
[83] For the reasons set out above, however, I find that the evidence in the record does not establish that any of the defendants are liable for any of the claims brought by The Y..
CONCLUSION
[84] For the reasons given above, I find the defendants have met the burden of establishing that there is no basis for civil liability in this action, and that there are no genuine issues for trial.
[85] The AG has established that Gonet cannot be sued personally, and that her actions as the Crown prosecutor responsible for bringing charges against The Y. was based on reasonable and probable grounds.
[86] The police defendants have established that the TPSB and Chief Blair cannot be defendants in the suit, and the remaining claims against Officers Dhuga and West are barred by the Limitations Act and in any event cannot succeed because the officers had reasonable and probable grounds for their actions.
[87] The Y. have failed to establish liability on their claims against the defendants, or that there are genuine issues for trial.
[88] Therefore, The Y. action against the defendants is dismissed.
[89] Written submissions on costs (of no more than two pages) may be provided by the parties within 30 days of this judgment.
Sossin J.
Released: October 22, 2019