COURT FILE NO.: CV-11-423910
DATE: 2020/03/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRIAN FULOP
Plaintiff
- and -
KATHLEEN ANN CORRIGAN, MICHAEL SILLS and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
Hedy L. Epstein for the Plaintiff
Jeremy Glick and Roopa Mann for the Defendants
HEARD: March 12, 2020
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] The Plaintiff Brian Fulop sues the Defendants Kathleen Ann Corrigan, who is a detective of the Ontario Provincial Police (“OPP”), Michael Sills, another OPP detective, and Her Majesty the Queen in Right of Ontario, who collectively shall be referred to as the Crown.
[2] Mr. Fulop sues the Crown for general, special, and punitive damages totaling $2.5 million for: (a) negligent investigation; (b) wrongful arrest; (c) unlawful detention; (d) malicious prosecution; (e) breach of his Charter rights; and (f) infliction of mental and/or emotional distress.
[3] Pursuant to Rule 56.01 of the Rules of Civil Procedure[^1] and s. 10 of the Public Authorities Protection Act,[^2] the Crown brought a motion for security for costs. The Crown’s motion was brought after Mr. Fulop’s action had been sent down for trial.
[4] By Reasons for Decision and Order dated September 6, 2019, Master McGraw granted the Crown’s motion for security for costs.[^3]
[5] This is an appeal from the Master’s Order. Mr. Fulop submits that Master McGraw erred in granting leave for the motion to be heard. Mr. Fulop submits that the Master then erred by granting the Crown’s request for security for costs.
[6] For the reasons that follow, Mr. Fulup’s appeal is dismissed.
B. Procedural Background
[7] On April 7, 2011 Mr. Fulop commenced an action against the Crown for general, special, and punitive damages totaling $2.5 million. He advanced claims for: (a) negligent investigation; (b) wrongful arrest; (c) unlawful detention; (d) malicious prosecution; (e) breach of his Charter rights; and, (f) infliction of mental and/or emotional distress. As part of his damages claim, he pleaded that he had incurred legal costs of $100,000 for his criminal trial.
[8] On July 14, 2011, the Crown delivered its Statement of Defence. It pleads that Detective Corrigan had reasonable and probable grounds to arrest and to charge Mr. Fulop and that she discharged her duties under the Police Services Act[^4] reasonably, diligently and in good faith and for no other purpose than the proper administration of justice.
[9] On May 7, 2012, Joseph Kerlow, who was a co-accused in some of the criminal proceedings involving Mr. Fulop and who also had been acquitted, commenced his own civil action against the Crown advancing similar causes of action.
[10] In the Fulup action, examinations for discovery took place on September 24 and 25, 2013.
[11] In March 2015, there was a mandatory mediation session.
[12] On April 20, 2016, Master McAfee ordered that Mr. Kerlow’s civil action against the Crown be tried together with Mr. Fulop’s civil action or that the actions be tried one after the other.
[13] In September 2017, the parties to the Fulop action attended trial scheduling court, and the action was set down for trial. The parties’ experts reports were due in December 2018. A pre-trial was scheduled for June 4, 2019.
[14] Mr. Fulop did not deliver any expert report as required. It has yet to be delivered.
[15] Without waiting for Mr. Fulop delivering his expert’s report, on December 18, 2018, the Crown served Mr. Fulop with the export report of Pamela Bruce. Ms. Bruce is a retired member of the Toronto Police Service. She retired after a thirty-one- year career. For ten years of her career, she was an investigator on the Sex Crimes Unit and an instructor at the Sexual Assault and Child Abuse Investigative Course.
[16] It was Ms. Bruce’s opinion that there were reasonable and probable grounds to arrest Mr. Fulop and that Detective Corrigan’s investigation met the standard of care of a police detective.
[17] After the delivery of Ms. Bruce’s report, Mr. Kerlow and Mr. Fulop requested access to the audio-visual materials relied upon by the OPP in laying the charges against them.
[18] On consent, the Crown brought a motion to allow the disclosure of the materials requested by Mr. Kerlow and Mr. Fulop. A motion was required because child pornography cannot be shared without a court order and BT, one of the complainants, was a minor at the time of the alleged sexual assault that was filmed.
[19] On April 19, 2019, the Crown brought its motion for security for costs in this action and also in an action brought by Mr. Kerlow. The Crown sought $55,000 in security for costs from each of Mr. Kerlow and Mr. Fulop. The motions for security for costs were originally returnable on June 10, 2019, but the motions were adjourned for cross-examinations.
[20] On May 23, 2019, the court ordered the disclosure of the audio-visual materials requested by Mr. Kerlow and Mr. Fulop.
[21] On June 4, 2019, the scheduled pre-trial conference in the Fulop action proceeded before Justice Cavanagh. Mr. Kerlow’s and Mr. Fulop’s civil actions were scheduled to commence on November 11, 2019.
[22] On June 4, 2019, Mr. Fulop was cross-examined on his affidavit delivered in response to the Crown’s motion for security for costs.
[23] On August 8, 2019, Master McGraw heard the Crown’s motions for security for costs. At the time of the motion, Mr. Fulop had retained an expert to prepare a report, but the expert’s report was not yet available.
[24] Master McGraw reserved judgment, and on September 6, 2019, he released his Reasons for Decision.
[25] The Master granted the Crown’s motions. With respect to Mr. Fulop, he was ordered to pay $30,000 in security for costs in two tranches of $15,000. Mr. Fulop had thirty days to pay the first tranche, failing which his action would be ordered stayed. Mr. Fulop was also ordered to pay costs of the motion in the amount of $5,000.
[26] On September 13, 2019, Justice Glustein adjourned both trials because Mr. Fulop and Mr. Kerlow had not served their expert reports.
[27] Mr. Kerlow’s action was subsequently dismissed on consent on a without costs basis.
[28] On September 17, 2020, Mr. Fulup delivered a Notice of Appeal
[29] Save for this appeal, Mr. Fulop’s action has been stayed.
C. Facts
1. The Investigation, the Arrest, the Trial, and the Acquittal.
[30] On May 23, 2007, N.D. attended at the Quinte West Detachment of the OPP and reported that Mr. Kerlow and another person had administered a date rape drug, had sexually assaulted her, and had recorded the assault on videotape without her consent or knowledge.
[31] Detective Corrigan was assigned to investigate N.D.’s complaint.
[32] Detective Corrigan obtained a warrant, and a search of Mr. Kerlow’s residence was executed. A consent search of the other person’s residence was also executed. Computers, cell phones, and media storage devices were seized. The items seized contained pornographic images and videos of sexual acts. The women filmed appeared to be to be unconscious during the sexual acts.
[33] One of the apparently unconscious women, who was later identified as B.T., was in a video along with Mr. Kerlow and two other men.
[34] Detective Corrigan made inquiries and received information that one of the other two men in the video of the unconscious woman later identified as B.T. was Mr. Fulop, who was a close friend of Mr. Kerlow. Detective Corrigan was advised by a witness that Mr. Fulop was one of the men performing sexual acts on the woman later identified as B.T.
[35] Detective Corrigan interviewed two other women who reported that they also had been sexually assaulted by Mr. Kerlow and without consent videotaped.
[36] On April 10, 2009, Detectives Corrigan and Sills arrested Mr. Fulop in relation to an alleged sexual assault of B.T, who at that time of the arrest of Mr. Fulop had not been identified.
[37] Mr. Fulop was handcuffed, taken to the OPP Detachment. detained for approximately three and one quarter hours and then released on an undertaking. While in a cell at the OPP Detachment, Mr. Fulop identified BT in a photograph that was shown to him.
[38] Mr. Fulop was charged with: (a) sexual assault contrary to s. 271 of the Criminal Code; (b) surreptitiously observing and recording contrary to s. 162 (1) of the Criminal Code; and (c) intent to enable the commission of the offence of a stupefying substance contrary to s. 246(b) of the Criminal Code. The three counts were with respect to the alleged sexual assault of B.T.
[39] With BT having been identified by Mr. Fulop himself, Detective Corrigan was able to locate her. Detective Corrigan interviewed B.T. She said that she had no recollection of the sexual encounter with Mr. Kerlow or the other two men. She said that she did not consent to the sexual activity shown in the video or to the videotaping of the activity. She said she had visited Mr. Kerlow’s house to watch a movie, had had a drink, and then woke up the next morning with no memory of what had taken place. B.T. was 17 years old at the time of the events.
[40] Mr. Fulop has admitted that he knew BT before the alleged sexual assault. They had communicated by telephone and social media. He said that he had had sexual relations with BT on a consensual basis. Mr. Fulop said that on the night of the incident at Mr. Kerlow’s residence, while he was having consensual sexual relations with BT, Mr. Kerlow and another individual came into the room and started filming. He said that he left the room after Mr. Kerlow began having sexual relations with BT.
[41] Mr. Fulop said that BT was aware that she was being filmed.
[42] Mr. Kerlow was charged with the same offences in relation to B.T. He was also charged with sexual assault related offences in respect to three other women.
[43] On September 16, 2009, after a preliminary inquiry hearing, the preliminary inquiry judge committed Mr. Fulop and Mr. Kerlow and a third man to a trial with respect to the various sexual assaults
[44] The committal of Mr. Fulop was with respect to the alleged assault of B.T. Mr. Kerlow was also committed to trial with respect to the sexual assault of B.T. and with respect to two other complainants. Mr. Furlow also faced a second separate trial with respect to a fourth complaint.
[45] The Crown proceeded by indictment. There was a joint trial. Mr. Fulop and Mr. Kerlow elected to be tried by judge alone.
[46] After an eight-day trial, on June 18, 2010, Mr. Kerlow and Mr. Fulop were acquitted of all charges.
2. Mr. Fulop’s Financial Circumstances
[47] Mr. Fulop graduated from high school in 2002. He did not go on to a post-secondary school education.
[48] The incident at Mr. Kerlow’s house occurred seven years after his graduation from high school.
[49] Between 2009 and 2014, Mr. Fulop’s gross income was: (a) 2009 - $27,881.92; (b) 2010- $27,884.96; (c) 2011 - $23,670.24; (d) 2012 - $28,246.24; (e) 2013 - $25, 043.19; and (f) 2014 - $32,887.09.
[50] Mr. Fulop borrowed $100,000 to pay for his criminal defence. He obtained a $15,000 bank loan, a line of credit, and borrowed $85,000 from his parents, who sold their home to finance the loan.
[51] His parents subsequently separated, and Mr. Fulop blames the financial burden he placed on his parents as the cause of his parent’s separation. Mr. Fulop’s father, who was a retired OPP officer was forced to return to work as a bus driver as a result of the financial burden of supporting Mr. Fulop. Mr. Fulop intends to repay the money lent to him by his parents.
[52] In 2017, Mr. Fulop moved to Cochrane Alberta, where his common-law partner had employment as a teacher. They purchased a house together for approximately $315,000, most of the price (i.e., $299,000) paid by mortgage financing.
[53] In June 2017, Mr. Fulop was hired as a countertop installer in residential and commercial properties. He works approximately 35 hours a week. In 2018, he earned $51,565.38 and has medical and dental benefits and a small RRSP contribution benefit.
[54] Mr. Fulop leases a truck to commute to Calgary for work. The lease payments are $281.00 a month. He owns a motorcycle that he purchased in 2017 for $5,800 after selling his old motorcycle for $5,000.
[55] Mr. Fulop did not disclose the financial circumstances of his common-law partner and any information as to whether they shared expenses. It is known that she owns a vehicle, a 2012 Kia Sportage, and owns a motorcycle that she purchased for $4,200.
[56] Mr. Fulop conceded that he had insufficient assets to satisfy a costs award.
[57] Mr. Fulop says that he is unable to pay any amount for security for costs. His lawyer in this action is representing him on a contingency basis and he is only responsible for disbursements.
[58] Mr. Fulop says that if the Order requiring security for costs is not set aside, he will not be able to pursue his action against the Crown.
D. Master McGraw’s Reasons for Decision
[59] In his Reasons for Decision, Master McGraw found that because the action had been set down for trial, the Crown required leave to bring the motions for security for costs.
[60] The Master adopted a flexible approach as to whether leave should be granted and granted leave.
[61] Although Mr. Fulop’s action had been commenced in 2011 and the Crown’s motion for security for costs was not brought until 2019, the Master found that it was reasonable for the Crown to have waited to see if Mr. Fulop would deliver an expert’s opinion, and when he did not, it was appropriate for the Crown to bring a motion for security for costs.
[62] The Master accepted the Crown’s argument that the Court of Appeal’s decision in 495793 Ontario Ltd. v. Barclay,[^5] which was a negligent investigation claim against a police office, supported the approach that the Crown wait until Mr. Fulop delivered his expert’s report before bringing its motion for security for costs. In 495793 Ontario Ltd., the Court of Appeal held that it is generally not possible to determine professional negligence claims, including claims against police officers, without the benefit of expert evidence as to the standard of care of the professional.[^6]
[63] Having granted leave for the motion to be heard, Master McGraw considered the merits of the motion for security for costs.
[64] The Master concluded that pursuant to s. 10 of the Public Authorities Protection Act, the Crown was entitled to bring a motion for security for costs. He concluded that the Crown had shown that Mr. Fulop was not possessed of property sufficient to answer the costs of the action if judgment was given in favour of the Crown, which was a point conceded by Mr. Fulop (but not Mr. Kerlow).
[65] The Master found that the Crown has a good defence upon the merits. The Master found that the motion was not a litigation tactic and that Mr. Fulop would not be prevented from proceeding to trial by virtue of an order for security for costs.
[66] In his consideration of the merits, Master McGraw noted that s. 10 of the Public Authorities Protection Act elevates the importance of the merits on a motion for security for costs. Then, after noting that a motion for security for costs is not akin to a motion for summary judgment, the Master informed himself about the case law on police negligence that would underlie the merits of Mr. Fulop’s case against the police officers.
[67] In paragraph 46 of his Reasons for Decision, the Master noted that the conduct of a police officer during an investigation should be measured against the standard of how a reasonable police officer in like circumstances would have acted. The Master noted that this is a flexible standard based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later.[^7]
[68] Also in paragraph 46 and in subsequent paragraphs, the Master noted that in considering whether the officer’s conduct met the applicable standard of care, the analysis was informed by the legal requirement that the officer have reasonable and probable grounds to make the arrest and to lay charges. The Master noted that with respect to the tort of negligent investigation, the standard of care relating to an investigation focuses on whether the investigating officer has reasonable and probable grounds to believe that the suspect is guilty.[^8]
[69] The critical paragraphs in the Master’s reasons about the merits of Mr. Fulop’s case and the merits of the Crown’s defence are paragraphs 48 and 49, where he states:
In order to prove negligence, the Plaintiffs must establish the absence of reasonable and probable grounds, which underlies all of their claims. Therefore, determining if the Defendants' have a good defence on the merits turns largely on whether they are likely to succeed in refuting the Plaintiffs' allegations that the Defendants did not have reasonable and probable grounds to charge the Plaintiffs. Consistent with [J.H. v. Windsor Police Services Board, 2017 ONSC 6507], the fact that the Plaintiffs were committed to trial on all charges after a preliminary inquiry is strong evidence of reasonable and probable grounds. Placing significant weight on this factor, I conclude that the Defendants will likely be able to establish that there were reasonable and probable grounds such that their defence is likely to succeed and is a good defence on its merits. This conclusion is supported by the Plaintiffs' admissions that all of the complainants told Detective Corrigan that they did not consent to the sexual activity or videotaping which were the subject and basis of the charges. I place some, but less emphasis on Ms. Bruce's opinion in the Defence Report that Detective Corrigan had reasonable and probable grounds to charge the Plaintiffs and that there was overwhelming evidence to support the charges.
While both parties, particularly the Plaintiffs, urge me to delve further into the merits, the evidence and the criminal case law, in my view it is unnecessary and inappropriate to do so. My conclusions above are sufficient to establish that the Defendants have satisfied the test that they have a good defence on the merits and any further consideration of the merits is more properly left to the trial Judge.
[70] The Master then turned to whether it would be just for security for costs to be ordered. In this regard, he returned to the matter of the timing of the motion for security for costs and considered again the Crown’s explanation for the timing of the motions. The Master noted that Mr. Fulop had missed two deadlines for the delivery of his expert’s report notwithstanding that the Crown had attempted to facilitate the delivery of that report by providing the information requested for the expert. He observed that Mr. Fulop made his request late in the proceedings and that late request contributed to the delay.
[71] In considering whether it was fair and just and in the interests of justice to require the Mr. Fulop to pay security for costs, he did not accept Mr. Fulop’s evidence that he would be unable to proceed to trial if ordered to pay security for costs. The key paragraphs in the Master’s Reasons for Decision about whether it was fair and just to require the posting of security for costs are paragraphs 58-60, where he states:
58 With respect to Mr. Fulop, while he concedes that he does not have sufficient assets to pay a costs award, similarly, I am not convinced that an order for security for costs in an amount in the range of or lower than that now sought by the Defendants would prevent him from proceeding to trial. In drawing this conclusion, I rely on his available assets, the fact that he did not provide sufficient disclosure of his assets including the assets of his partner, was not forthcoming in his affidavit until cross-examined and the fact that he has a contingency fee arrangement and will only have to pay disbursements through trial. Mr. Fulop's submission that the reason he has insufficient assets is a result of the criminal proceedings is contradicted by his own admissions.
59 My conclusions with respect to both Plaintiffs are premised on the fact that any amounts ordered at or below the range now sought by the Defendants would necessarily take into account the assets which they have available to pay security for costs to arrive at a fair, reasonable and just amount to strike the appropriate balancing of the parties' rights. Given that the Plaintiffs have some available assets, it is fair and just in the circumstances to require them to risk some assets in the event that they are unsuccessful. This is even more pronounced in the present case where I have concluded that the Defendants have a good defence on the merits (and the corresponding conclusion from [Rackley v. Rice (1992), 1992 CanLII 7717 (ON SC), 8 O.R. (3d) 105 at para. (Div. Ct.)] that the grounds of the actions are trivial and frivolous). Further, both Plaintiffs are in a better position that the plaintiff in [Rosin v. Dubic, 2016 ONSC 6441], who was ordered to post security even though he was impecunious, receiving disability payments, living with his parents and his action was being funded by family.
60 Having considered all of the relevant factors and balanced the interests of the Plaintiffs to have their claims decided on the merits and the Defendants to have some protection against an unenforceable costs award, applying a holistic approach, I conclude that it is just in the circumstances that security for costs be ordered. In arriving at this conclusion, I am satisfied that these motions are not a litigation tactic and that the Plaintiffs would not be prevented from proceeding to trial if security for costs is awarded. This conclusion is supported by my previous finding that the Defendants have a good defence on the merits, the amounts sought by the Plaintiffs in their actions, and the fact that this is private litigation with no public interest considerations.
[72] The Master concluded his reasons by addressing the quantum of the costs and by making his Order.
E. Discussion and Analysis
1. Standard of Appellate Review
[73] A Master's decision should not be interfered with unless the Master made an error of law, exercised his or her discretion on the wrong principles, or misapprehended the evidence such that there was a palpable and overriding error.[^9] A palpable error is one that is obvious and noticeable. Examples of palpable factual errors include findings unsupported by any evidence, findings inconsistent with the accepted evidence, findings based on misunderstanding the evidence, and findings that are speculative and cannot be inferred from the primary facts.[^10] An overriding error means that the error was determinative and substantial in the sense that the error affected the result or outcome.[^11]
[74] On an appeal from a Master's Order that is a matter of discretion, the court will only interfere if the Master was clearly wrong or if he or she exercised discretion based on wrong principles or under a misapprehension of the facts.[^12] When the Master has decided a matter of law, which includes determinations of whether a question is relevant or whether evidence is privileged, the standard of review is correctness.[^13]
2. Did the Master Err in Granting Leave to Bring the Motion?
[75] Rule 48.04 (1) provides that any party who has set an action down for trial or who has consented to the action being placed on a trial list shall not initiate any motion … without leave of the court.
[76] Once a party has set an action down for trial, it is a matter of discretion in the particular circumstances of the case whether the court will grant leave to initiate or continue a motion or form of discovery. However, the setting down for trial is not a mere technicality, and there must be a justification for permitting further discovery or any other interlocutory step such as a substantial or unexpected change in circumstances or the necessity of the step in the interests of justice.[^14]
[77] The predominant contemporary approach to whether leave should be granted is a flexible approach that recognizes that there may be no single test for leave to initiate or continue a motion or form of discovery, and the weight to be given the various discretionary factors will depend upon the circumstances of the particular case.[^15] In considering whether there is justification for granting leave, the court may consider a variety of factors including: (1) what the party seeking leave knew at the time of the passing of the trial record; (2) whether there has been a substantial or unexpected changed in the circumstances since the action was set down for trial; (3) the purpose of the request for leave; (4) the nature of the relief being requested; (5) whether the party opposing the relief would suffer any prejudice; and (6) whether the relief sought would likely be granted if leave were given to bring the motion notwithstanding the filing of the trial record.[^16]
[78] In the immediate case, the Master required the Crown to justify the granting of leave. He rejected the Crown’s argument that leave was not required because s. 10 of the Public Authorities Protection Act stipulated that the motion could be brought at any time after the commencement of the action.
[79] Mr. Fulop argues that the Master erred in granting leave for the motion for security for costs to be brought. His essential argument is threefold. First, he argues that the Crown did not provide an adequate explanation for waiting to bring its motion in April 2019 just after the eighth anniversary of the commencement of the office. Second, he argues that having regard to all of the relevant factors and circumstances, it was not reasonable, appropriate and just to grant leave to the Crown to bring its motion for security for costs. Third, because he will not be able to proceed with his action against the Crown if ordered to pay security of costs, he argued that he will be prejudiced by the Order and therefore it is not just for the Order to be made.
[80] All of these of these arguments against the Master’s Order, however, fail. The explanation for this result may begin by noting that there is no suggestion that the Master erred in his understanding of the law that applies to whether leave should be granted pursuant to rule 48.04 (1). I have outlined that law above, and the Master correctly employed it in arriving at his decision. Mr. Fulop has not shown an error in principle or in the exercise in what ultimately is a discretionary decision for which considerable appellate deference is owed.
[81] Next, it may be noted that the Master did probe and consider whether the Crown had provided an explanation for the timing of the motions for security for costs which were made pursuant to s. 10 of the Public Authorities Protection Act.
[82] As the discussion below will elucidate, a critical issue on a motion pursuant to s. 10 of the Public Authorities Protection Act is whether the defendant has a good defence upon the merits or that the plaintiff’s grounds of action are trivial or frivolous. In other words, the merits of the plaintiff’s action against the public authority and the merits of the public authority’s defence are central to the motion for security for costs. The Master accepted the Crown’s explanation that it was appropriate for it to wait until Mr. Fulop delivered his expert’s report showing the merits of his claim before it would bring a motion for security for costs. When Mr. Fulop, however, did not deliver a report, the Crown delivered its own expert’s report and moved for security for costs. Had Mr. Fulop delivered his expert’s report before the motion was brought, he certainly would have been in a far stronger position in forestalling or resisting the motion.
[83] If there was any prejudice here it was self-inflicted prejudice, especially in circumstances in which the Crown was co-operative in assisting Mr. Fulop to obtain the material that he needed for his own expert to prepare a report. And it is to be observed that Mr. Fulop’s expert would have gained the tactical advantage or seeing the Crown’s expert’s report before delivering his or her report. The Master was alert to the fact that in this case, the prejudice, if any, was self-inflicted.
[84] I see no error in legal principle nor any palpable or overriding error nor any error in the exercise in the Master’s discretion in concluding that the Crown sufficiently explained the timing of the motion for security for costs. I agree with and see no error in the Master’s reasoning in para. 36 of his Reasons for Decision, where he stated:
- In granting leave I adopt the reasoning in [855191 Ontario Ltd. v. Turner, 2011 ONSC 918]. However, I am also satisfied that the Defendants have sufficiently explained the timing of these motions including any delay and that the motions are necessary in the interests of justice. In my view, since the timing of the Defendants' motions will be more fully considered under the test for security for costs, it does not require a comprehensive analysis here. For the purposes of granting leave, it is sufficient that I conclude that it was reasonable for the Defendants to bring this motion after receiving the Defence Report and that granting leave at this time will cause no prejudice to the Plaintiffs. In considering the timing of the Defendants' motion and any prejudice, it is also relevant that the Defendants accommodated the Plaintiffs' late request for production of the audio-visual evidence and brought the motion to facilitate its production. Further, the Plaintiffs have missed numerous deadlines for the delivery of the Plaintiffs' Report and still cannot estimate when it may be delivered which may result in an adjournment of the trial date. In addition, as set out below, I am satisfied that there is merit to the Defendants' security for costs motions.
[85] In short, the Master did not err in granting leave to the Crown to bring its motion for security for costs.
G. Did the Master Err in Granting Security for Costs?
1. The Public Authorities Protection Act and Security for Costs
[86] The Crown’s motion for security for costs is brought pursuant to s. 10 of the Public Authorities Protection Act and Rule 56.01 of the Rules of Civil Procedure.
[87] Section 10 of the Public Authorities Protection Act states:
Security for costs
- Where an action is brought against a justice of the peace or against any person for any act done in pursuance or execution or intended execution of any public duty, statutory or otherwise, or authority, or in respect of any alleged neglect or default in the execution of any statute, duty or authority, the defendant may, at any time after the service of the writ, make a motion for security for costs if it is shown that the plaintiff is not possessed of property sufficient to answer the costs of the action in case a judgment is given in favour of the defendant, and that the defendant has a good defence upon the merits, or that the grounds of action are trivial or frivolous.
[88] Rule 56.01 of the Rules of Civil Procedure states:
RULE 56 SECURITY FOR COSTS
Where Available
56.01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(f) a statute entitles the defendant or respondent to security for costs.
[89] On a motion for an order for security for costs, the initial onus is on the party moving for security to show that the other party falls within one of the circumstances for which an order may be made; then the responding party may avoid the order by showing that security is unnecessary because it has sufficient exigible assets in Ontario[^17] or that it should be permitted to proceed to trial despite its inability to pay costs.[^18]
[90] In determining whether to order security for costs, the overarching principle is whether in all the circumstances, the order is in the interests of justice and even if the requirements of the rule have been met, the court has discretion to refuse to make the order.[^19] The rule is not to be used as a litigation tactic to prevent a case from being heard on its merits.[^20] The correct approach is for the court to consider the justness of the order holistically, examining all the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made.[^21]
[91] If the plaintiff does not have sufficient assets to meet a costs order but cannot establish that he or she is impecunious, then the plaintiff must satisfy the court that his or her claim has a good chance of success on the merits.[^22]
[92] On a motion for security for costs, in considering the merits of the plaintiff’s claim, the court on a security for costs motion is not required to embark on an analysis such as in a motion for summary judgment. The analysis is primarily on the pleadings with recourse to evidence filed on the motion, and in appropriate cases, to selective references to excerpts of the examination for discovery where it is available.[^23]
[93] On a motion for security for costs, the court has a broad discretion in deciding whether ordering security for costs is just in the circumstances.[^24] The court will carefully scrutinize the quality and the sufficiency of the plaintiff’s assets and whether they are genuine assets.[^25]
[94] There are three major elements to a motion for security for costs brought pursuant to s. 10 of the Public Authorities Protection Act and rule 56.01 (1)(f).
[95] The first element is that the defendant must show that the plaintiff is not possessed of property sufficient to answer the costs of the action in case a judgment is given in favour of the defendant.
[96] The second element is that the defendant has a good defence upon the merits or that the grounds of action are trivial or frivolous. In Rackley v. Rice,[^26] the Divisional Court held that where the Public Authorities Protection Act refers to a good defence on the merits, it means a defence that is likely to succeed, which is another way of saying the plaintiff’s grounds of action are trivial and frivolous.
[97] The third element is the overarching principle of whether in all the circumstances an order for security for costs is in the interests of justice.[^27]
2. Discussion and Analysis
[98] As noted above, there are three main elements to a motion for security for costs brought pursuant to s. 10 of the Public Authorities Protection Act and rule 56.01 (1)(f).
[99] The first element is that the defendant must show that the plaintiff is not possessed of property sufficient to answer the costs of the action in case a judgment is given in favour of the defendant. This element was conceded by Mr. Fulop.
[100] The second element is that the defendant has a good defence upon the merits or that the grounds of action are trivial or frivolous.
[101] In the immediate case, with respect to the second element, to evaluate the merits of the claim and defence, it is necessary to consider what the plaintiff must prove in an action against a police detective conducting a police investigating, making an arrest, and laying charges that result in a prosecution. In this regard, the following the following principles apply:
a. The conduct of a police officer during an investigation is measured against the standard of how a reasonable police officer in like circumstances would a have acted. This is a flexible standard based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later.[^28]
b. To make out a claim for wrongful arrest, negligent investigation, malicious prosecution, or contravention of the Charter, the plaintiff must show an absence of reasonable and probable grounds for the arrest, investigation, or prosecution.[^29]
c. To establish the tort of false imprisonment, a plaintiff must demonstrate that he or she was completely deprived of his liberty by the defendant officer against his will. If this can be demonstrated, a defendant can justify the detention by showing that there were reasonable and probable grounds for the arrest.[^30]
d. With respect to the claim of negligent police investigation, the plaintiff must prove:
d.(a) that the defendant initiated the proceedings; (b) that the proceedings were terminated in favour of the plaintiff; and (c) there was no reasonable or probable cause to commence or continue with the prosecution.[^31]
e. To establish the tort of malicious prosecution, a plaintiff must demonstrate that the proceedings: (a) were instituted or continued by the defendant; (b) were terminated in favour of the plaintiff; (c) were undertaken without reasonable and probable cause; and (d) were motivated by malice or a primary purpose other than carrying the law into effect.[^32]
f. In R. v. Storrey[^33] the Supreme Court of Canada defined the concept of reasonable grounds as follows:
... the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.
g. In P.H.E. v. Ottawa-Carleton (Region) Police Service,[^34] the court described the threshold to establish reasonable and probable grounds as follows: “The police need not demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making an arrest.”
h. A committal for trial after a preliminary hearing is strong evidence supporting the existence of reasonable grounds.[^35]
i. In order to recover damages for an alleged breach of Charter rights, a plaintiff must demonstrate a breach of a protected right and that the defendant acted in bad faith.[^36]
[102] These are the principles that the Master applied to the circumstances of the immediate case, and I see no error in the Master’s application of the principles.
[103] Mr. Fulop’s essential submission and what he expresses as his strongest argument is with respect to the initial arrest and detention at the OPP Detachment. Mr. Fulop makes the categorical assertion that Constable Corrigan had absolutely no reasonable grounds to arrest and detain Mr. Fulop. This assertion is built on the premise that at the time of the arrest and detention, BT had not been identified, had not made any compliant, and had not been interviewed.
[104] The obvious problem with Mr. Fulop’s categorical assertion is that it ignores, amongst other things, that: (a) the Crown had an expert’s opinion that there were reasonable and probable grounds to investigate, arrest, and prosecute Mr. Fulop and Mr. Fulop did not have an expert report to the contrary; (b) Mr. Fulop was identified in incriminating videos and photographs along with Mr. Kerlow; (c) there was a developing similar fact pattern case against Mr. Kerlow; (d) Mr. Fulop was a friend or associate of Mr. Kerlow; and (e) both Mr. Kerlow and Mr. Fulop were implicated by the videos of what appeared to be an assault on an unconscious woman who was later identified as the minor BT.
[105] Thus, the Master made no error in legal principle and made no palpable or overriding error in fact in concluding that the Crown was likely to succeed in refuting Mr. Fulop’s categorical assertion that the Crown did not have reasonable and probable grounds to investigate, arrest, detain, charge, and prosecute Mr. Fulop.
[106] Thus, the Master was correct in concluding that the Crown had satisfied the first two of the three main elements of a motion for security for costs brought pursuant to s. 10 of the Public Authorities Protection Act.
[107] In my opinion, the Master also did not err in his treatment of the third and largely discretionary element, which is the overarching principle of whether in all the circumstances an order for security for costs is in the interests of justice. This is a balancing exercise, and Mr. Fulop has not identified an error in principle or any palpable or overriding factual error. In this last regard, the Master was entitled to reject Mr. Fulop’s self-serving assertion that although he was not impecunious an order for security for costs would prevent him from proceeding to trial.
[108] I, therefore, conclude that the Master made no error in ordering security for costs in the circumstances of the immediate case and that Mr. Fulop’s appeal should be dismissed.
H. Conclusion
[109] For the above reasons, the appeal is dismissed.
[110] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of the Crown within twenty days of the release of these Reasons for Decision followed by Mr. Fullop’s submissions within a further twenty days.
[111] In the circumstances of the Covid-19 emergency, these Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.
[112] The parties may submit formal orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release.
Perell, J.
Released: March 20, 2020
COURT FILE NO.: CV-11-423910
DATE: 2020/03/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRIAN FULOP
Plaintiffs
- and -
KATHLEEN ANN CORRIGAN, MICHAEL SILLS and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendant
REASONS FOR DECISION
PERELL J.
Released: March 20, 2020
[^1]: R.R.O. 1990, Reg. 194. [^2]: R.S.O. 1990, c. P.38 [^3]: Kerlow v. Corrigan 2019 ONSC 5181 (Master) [^4]: R.S.O. 1990, c. P.15. [^5]: 2016 ONCA 656. [^6]: See also J.H. v. Windsor Police Services Board, 2017 ONSC 6507. [^7]: Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41 at para. 3; Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. No. 5067 at para. 61. [^8]: Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41 at para. 68. J.H. v. Windsor Police Services Board, 2017 ONSC 6507. [^9]: Zeitoun v. Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), affd (2009), 2009 ONCA 415, 96 O.R. (3d) 639 (C.A.). [^10]: Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765 at paras. 296-297 (C.A.). [^11]: L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 55; Schwartz v. Canada 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at para. 35. [^12]: Fotwe v. Citadel General Assurance Co., 2005 CanLII 5470 (ON SCDC), [2005] O.J. No. 827 (Div. Ct.); Bank of Nova Scotia v. Liberty Mutual Insurance Co. (2003), 2003 CanLII 35171 (ON SCDC), 67 O.R. (3d) 699 (Div. Ct.); Woodheath Developments Ltd. v. Goldman (2003), 2003 CanLII 46735 (ON SCDC), 66 O.R. (3d) 731 (Div. Ct.); Marleen Investments Ltd. v. McBride (1979), 1979 CanLII 1895 (ON SC), 23 O.R. (2d) 125 (H.C.J.). [^13]: Leadbeater v. Ontario (2004), 2004 CanLII 14107 (ON SC), 70 O.R. (3d) 224 (S.C.J.) at para. 29; Kennedy v. McKenzie, [2005] O.J. No. 2060, (S.C.J.) at para. 15. [^14]: Grainger (Litigation Guardian of) v. Grainger, [2009] O.J. No. 1497 at paras. 25-28 (S.C.J.); Fleming v. Cantech Solutions Ltd., [2008] O.J. 3540 (S.C.J.); LML Investments Inc. v. Choi (2007), 2007 CanLII 8926 (ON SC), 85 O.R. (3d) 351 (S.C.J.); Abu-Yousef v. Foster, [2006] O.J. No. 4102 (S.C.J.); Cook v. Toronto (City) Police Services Board., [2006] O.J. No. 2420 (Master); Tanner v. Clark, [1999] O.J. No. 581 (Gen. Div.). [^15]: Kaur v. Blue Cross Insurance Co. of Canada, 2018 ONSC 3303 at para. 23; 855191 Ontario Inc. v. Aplus General Contractors, 2016 ONSC 2175; BNL Entertainment v. Rickets, 2015 ONSC 1737 (Master); A.G.C. Mechanical Structural Security Inc. v. Rizzo, 2013 ONSC 1316 at para. 24; 855191 Ontario Ltd. v. Turner, 2011 ONSC 918 at paras 14-15; Adrian Peel Architect Inc. v. Soorty, 2003 ONSC 6183 at para. 19; Tanner v. Clark, [1999] O.J. No. 581 (Gen. Div.); Gloucester Organization Inc. v. Canadian Newsletter Management Inc. (1995), 1995 CanLII 7144 (ON SC), 21 O.R. (3d) 753 (Gen. Div.). [^16]: Isacov v. Schwarzberg, 2018 ONSC 5933 (Master); Asrat v. 1438305 Ontario Inc. (c.o.b. Elemental Embrace Wellness Spa), 2015 ONSC 4208 (Master); 2247267 Ontario Inc. v. 2038697 Ontario Ltd., 2014 ONSC 2717 (S.C.J.); Tanner v. Clark, [1999] O.J. No. 581. [^17]: Mazzika Arbika Lounge Ltd. v. Aviva Insurance Company of Canada 2017 ONSC 6801 (Master); AAD Investments Inc. v. Casboro Industries Ltd., 2017 ONSC 3041 (Master); 2179548 Ont. Inc. v. 2467925 Ontario Inc., 2017 ONSC 469 (Master); Coastline Corp. v. Canaccord Capital Corp., 2009 CanLII 21758 (ON SC), [2009] O.J. No. 1790 (Master); Printing Circles Inc. v. Compass Group Canada Ltd., (2007), 2007 CanLII 57095 (ON SC), 88 O.R. (3d) 685 (S.C.J.); Smith Bus Lines Ltd. v. Bank of Montreal (1987), 1987 CanLII 4190 (ON SC), 61 O.R. (2d) 688 (H.C.J.), leave to appeal refused (1987), 61 O.R. (2d) 688 (H.C.J.); John Wink Ltd. v. Sico Inc., (1987), 1987 CanLII 4299 (ON SC), 57 O.R. (2d) 705 (H.C.J.). [^18]: Canadian Metal Buildings Inc. v. 1467344 Ontario Ltd., 2019 ONSC 566 (Master); Baca v. Tatarinov, 2018 ONSC 1307 (Master); Coastline Corp. v. Canaccord Capital Corp., 2009 CanLII 21758 (ON SC), [2009] O.J. No. 1790 (Master); Montrose Hammond & Co. v. CIBC World Markets Inc., 2012 ONSC 4869, affg 2012 ONSC 591 (Master). [^19]: Yaiguaje v. Cheveron Corporation, 2017 ONCA 827; Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2017 ONCA 556; Pickard v. London (City) Police Services Board, 2010 ONCA 643. [^20]: Yaiguaje v. Cheveron Corporation, 2017 ONCA 827 at para. 23. [^21]: Yaiguaje v. Cheveron Corporation, 2017 ONCA 827 at para. 25. [^22]: Canadian Metal Buildings Inc. v. 1467344 Ontario Ltd., 2019 ONSC 566; (Master); 2179548 Ontario Inc. v. 2467925 Ontario Inc., 2017 ONSC 469 (Master); Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP, [2012] O.J. No. 3620 at paras. 41-46; Coastline Corp. v. Canaccord Capital Corp., 2009 CanLII 21758 (ON SC), [2009] O.J. No. 1790 (Master) [^23]: 2179548 Ontario Inc. v. 2467925 Ontario Inc., 2017 ONSC 469 (Master); Coastline Corp. v. Canaccord Capital Corp., 2009 CanLII 21758 (ON SC), [2009] O.J. No. 1790 (Master); Padnos v. Luminart Inc., 1996 CanLII 11781 (ON SC), [1996] O.J. No. 4549 (Gen. Div.). [^24]: Crudo Creative Inc. v. Marin (2007), 2007 CanLII 60834 (ON SCDC), 90 O.R. (3d) 213 (Div. Ct.). [^25]: MGM Productions Group Inc. v. Bank of Montreal, [2008] O.J. No. 878 (Master); Liu v. Daniel Executive (Canada) Holdings Corp., [2006] O.J. No. 5048 (Master); Uribe v. Sanchez, [2006] O.J. No. 2370 (Master); Cinevisions v. Fireworks Entertainment, Inc., [2005] O.J. No. 3679 (S.C.J.); Pharand v. Middlebrook, [1998] O.J. No. 889 (Gen. Div.); 671122 Ontario Ltd. v. Canadian Tire Corp. (1993), 1993 CanLII 8606 (ON CA), 15 O.R. (3d) 65 (C.A.). [^26]: (1992), 1992 CanLII 7717 (ON SC), 8 O.R. (3d) 105 at para. (Div. Ct.) [^27]: Yaiguaje v. Cheveron Corporation, 2017 ONCA 827 (Ont. C.A.); Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2017 ONCA 556; Pickard v. London (City) Police Services Board, 2010 ONCA 643. [^28]: Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41 at para. 3; Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. No. 5067 at para. 61. [^29]: Parsaei v. Toronto (Police Services Board), 2017 ONCA 512 at para. 7; Diaz v. Tossa, 2017 ONSC 54 at paras. 19, 28. [^30]: Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. 5067 (S.C.J.); Moak v. Ontario (Provincial Police), 2008 CanLII 65 (ON SC), [2008] O.J. No. 8 (S.C.J.) [^31]: Rosin v. Dubic, 2016 ONSC 6441 at para. 26. [^32]: Miazga v. Kvello Estate, 2009 SCC 51; Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170; Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. 5067 (S.C.J.). [^33]: 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at page 250-251; Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. 5067 (S.C.J.) [^34]: [2003] O.J. No. 3512 at para. 54 (S.C.J.); Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. 5067 (S.C.J.). [^35]: Temilini v. Ontario Provincial Police (Commissioner) (1990), 1990 CanLII 7000 (ON CA), 73 O.R. (2d) 664 (C.A.), leave to appeal to S.C.C. refused, [1990] S.C.C.A. No 364; Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. 5067 (S.C.J.). [^36]: Hawley v. Bapoo, 2007 ONCA 503 at paras. 8-9; Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. 5067 (S.C.J.).