Court File and Parties

COURT FILE NO.: CV-18-00026295

DATE: 2019-11-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Diana Al Masalkhi Plaintiff

AND:

The Attorney General of Canada Defendant

BEFORE: Regional Senior Justice B. G. Thomas

COUNSEL: Kenneth W. Golish, Counsel for the Plaintiff Melanie Toolsie, Counsel for the Defendant

HEARD: In writing.

COSTS ENDORSEMENT

[1] This action was commenced by the plaintiff claiming negligent investigation and malicious prosecution. The plaintiff had been acquitted after a trial regarding criminal allegations, including the fabrication of a fraudulent claim for refugee status.

[2] I dismissed the action in its entirety on a motion for summary judgment. My reasons were delivered on October 17, 2019. In paras. 32 to 35 and 51, I said the following:

[32] Justice Pomerance, having seen and heard the evidence in the criminal trial was obviously entitled to come to the conclusions she did regarding the culpability of Al Masalkhi. I would suggest, however, that her acquittal was a close call. Focussing only now on the evidence available to the investigators, there can be no question that they possessed reasonable and probable grounds for her arrest.

[33] Al Masalkhi’s continued use of the terms “tips”, creating a “story” and the need to do “research” as well as her suggestion that she would make Gill’s friend the “driver” and not just a friend, all potentially place her in the midst of the fraudulent and false immigration claim. The investigators here acted reasonably, and in fact, were duty bound to make the arrests they did.

[34] The acquittal of the plaintiff does not allow for a retrospective recalculation of the evidence that confronted the officers.

The Law – Malicious Prosecution

[35] The plaintiff, in her materials, chooses to found her claim in what she terms “wrongful prosecution” but clearly what is alleged is that police and prosecutors continued to subject her to the criminal process maliciously.

[51] It is abundantly clear the reasonable and probable grounds existed for the arrest of the plaintiff. Further, these grounds dictated her continued prosecution. Her ultimate acquittal does not affect the sound reasoning applied by investigators regarding her complicity in the fraudulent claim for refugee protection. That determination dictates that her malicious prosecution claim must fail as well.

[3] I am now dealing with the issue of costs. Costs are in my discretion. (Section 131 of the Courts of Justice Act). In exercising that discretion, I have considered the factors enumerated in r. 57.01(1) of the Rules of Civil Procedure.

[4] Importantly here, I have concentrated on r. 57.01(1) (O.a) and (O.b). There is a need that the defendant be indemnified. That need is not diminished by the fact that the defendant is a Minister of the Federal Government. Funds to support this defence came from the public purse.

[5] Having considered that, the plaintiff must be bound to a sum for the costs that could have reasonably been expected in relation to this stage of the proceeding (Boucher v. Public Accounts Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.)).

[6] In this case, this step of the proceeding took into account all prior work done on the action since the action was dismissed. Additionally, the defendant was not reacting to an insignificant claim. The sum sought was $2,000,000. While not wanting to discourage litigants of limited means, an award of costs needs to promote responsibility in litigation.

[7] This litigation was ill-advised and had no chance of success.

[8] I have considered the plaintiff’s concerns as raised in her written submissions. The defendant cannot be faulted for filing a complete record. Just because there was no reference made to much of the material in the argument of this motion, does not mean it was not of assistance to the court in directing the argument.

[9] The uniqueness of the argument advanced by the plaintiff brought with it litigation risks, and that must be accepted by this plaintiff. The plaintiff’s submissions regarding the travel costs for counsel for the Attorney General of Canada, the value of this matter as a precedent, and the comparison of the prospect of conviction to the prospect of success in the civil action, are each without merit.

[10] After receiving counsels’ written submissions, I have received an affidavit from the plaintiff. My direction regarding the argument on costs did not include the production of further sworn evidence. I have not considered this affidavit.

[11] I have examined the Bill of Costs of the defendant. The hours devoted to this action and the summary judgment motion are reasonable, as is the hourly rate on a partial indemnity basis. The amount sought should have reasonably been expected by the unsuccessful plaintiff. I have, however, reduced the amount sought to recognize the effect of this order on the plaintiff.

[12] The plaintiff is ordered to pay the all-inclusive sum of $15,000. to the defendant.

“Regional Senior Justice B. G. Thomas”

Regional Senior Justice B. G. Thomas

Date: November 22, 2019.