COURT FILE NO.: CV-15-537901
DATE: 20201106
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Lap Wah Ng and Amelia Ng, Plaintiffs
AND:
C.G., Defendant
BEFORE: Mr. Justice Chalmers
COUNSEL: M. Klaiman and J. Lo, for the Plaintiffs
J. Birenbaum, for the Defendant
HEARD: August 17, 2020, by videoconference
ENDORSEMENT
OVERVIEW
[1] The Defendant, C.G. brings this motion pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, for an order dismissing the action on the basis that it unduly limits expression on a matter in the public interest. In the alternative, C.G. seeks summary judgment dismissing the action.
[2] In October 2013, C.G., who was then 17 years of age, stated to her guidance counsellor that she had been sexually assaulted by her former piano teacher, Lap Wah Ng between the years 2009 and 2012. Although C.G. did not want to make a report to the police, the guidance counsellor felt she was under a positive duty to report the matter to the authorities. The police were contacted and took a statement from C.G. Following an investigation, the police charged Mr. Ng with sexual assault and sexual interference. The matter was committed to trial following a preliminary inquiry. The charges were stayed on the eve of the criminal trial at the request of C.G.. Mr. Ng and his wife, Amelia bring this action against C.G. for malicious prosecution.
[3] The Defendant takes the position that the disclosure and reporting of sexual assault is an expression in the public interest and this action attempts to unduly limit that expression. The Plaintiffs argue that they have a valid claim in malicious prosecution which should not be summarily dismissed without a full evidentiary record. The Plaintiffs argue that the action involves issues of credibility and factual disputes which require a trial.
[4] For the reasons set out below, I allow the Defendant’s motion and dismiss the action.
THE ISSUES
[5] The following issues will be addressed in this endorsement:
A. Should the Claim be dismissed pursuant to s. 137.1 of the Act?
B. In the alternative, should summary judgment be granted dismissing the Claim?
ANALYSIS
A. Should the Claim be dismissed pursuant to s. 137.1 of the Act?
i) The purpose clause of s. 137.1
[6] C.G. brings this motion to strike the action pursuant to s. 137.1 of the Act. The purpose clause of that section provides:
The purposes of this section and sections 137.2 to 137.5 are:
(a) To encourage individuals to express themselves on matters of public interest;
(b) To promote broad participation in debates on matters of public interest;
(c) To discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and,
(d) To reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action: Courts of Justice Act, s. 137.1(1).
[7] The legislation included the purpose clause for the benefit of judicial interpretation. The purpose clause is to have “considerable interpretative authority”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 11.
ii) The test for a motion brought under s. 137.1 of the Act
[8] Section 137.1 sets out a two-part test. The first part of the test places the onus on the moving party to satisfy the judge that:
(a) The proceedings arise from an expression made by the defendant; and
(b) The expression relates to a matter of public interest.
[9] If the moving party satisfies the first part of the test, the action is to be dismissed unless the responding party satisfies the judge that:
(a) There are grounds to believe,
i) The proceeding has substantial merit;
ii) The moving party has no valid defence in the proceedings, and,
(b) The harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
iii) Does the action arise from an expression made by the defendant and does the expression relate to a matter of public interest?
[10] Not all expressions will be subject to s. 137.1; only expressions that relate to a matter of public interest. Here, the expression made by C.G. was the statement first to her guidance counsellor and then to the police alleging a sexual assault committed by Mr. Ng. The Defendant argues that reports of sexual assault, particularly by children, are expressions in the public interest. The Plaintiffs concede that the expression is on a matter of public interest. I agree.
[11] The proceeding must “arise from” an expression made by the defendant. Expression is defined in s. 137.1(2) as follows:
“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
[12] The definition is broad and includes any communication. As noted by Côté, J.:
What is crucial is that many different types of proceedings can arise from an expression, and the legislative background of s. 137.1 indicates that a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework. This means that proceedings arising from an expression are not limited to those directly concerned with expression, such as defamation suits: Pointes, at para. 24.
[13] In determining whether the expression relates to a matter of public interest, the expression is to be assessed as a whole, to determine whether some segment of the community would have a genuine interest in receiving information on the subject: Pointes, at paras. 26, 27.
[14] The Supreme Court of Canada has affirmed that the reporting of sexual assaults is a matter within the public interest. In A. (L.L.) v. B. (A.), the Court stated that “the legal system has a direct and vital interest in promoting the reporting of sexual assaults”: A. (L.L.) v. B. (A.), 1995 52 (SCC), [1995] 4 SCR 536, at para. 60. In R. v. Barton, the Court held that “eliminating … sexual violence against women is one of the more pressing challenges we face as a society”: R. v. Barton, 2019 SCC 33, at para. 1.
[15] I conclude that the Defendant has satisfied the onus of showing that the statement made by C.G. to her guidance counsellor and police alleging a sexual assault is an expression that relates to a matter of public interest.
iv) Merits-Based Hurdle — Does the claim have substantial merit and there are no valid defences?
a) Statutory Framework
[16] Once the defendant establishes that the expression relates to a matter of public interest, the onus shifts to the plaintiff to satisfy the judge hearing the motion that there is a basis in the record and the law to support a finding that the action has substantial merit and that there are no valid defences. This is known as the merits-based hurdle: Pointes, at para. 42.
[17] The legislation includes the term “substantial” to qualify “merit”. Therefore, the plaintiff must do more than show that there is some chance of success. The plaintiff must show that the claim has a real prospect of success. This does not require the plaintiff to demonstrate that success is likely, only that the likelihood of success tends to weigh more in favour of the plaintiff and that success is more than a possibility: Pointes, at paras. 49, 50 and 54.
[18] In addition to showing that the claim has substantial merit, the plaintiff must satisfy the judge hearing the motion that there are grounds to believe that the defendant has no valid defence to the underlying proceeding. This does not require the plaintiff to anticipate every defence that the defendant may raise and then rebut each defence. However, once the defendant has put a defence in play, it is up to the plaintiff to demonstrate that the defences put in play are not legally tenable or supported by evidence that is reasonably capable of belief. The plaintiff must show that none of the defences in play have a reasonable prospect of success. If any of the defences are valid, the plaintiff has not met its burden: Pointes, at paras. 58, 59.
[19] In determining whether the action has substantial merit and there are no valid defences, it is necessary for the motions judge to engage in a limited weighing and assessment of the evidence. The motions court judge must be conscious of the stage of the litigation when the motion is brought. Motions brought pursuant to s. 137.1 are expected to be brought at an early stage of the litigation process and therefore the evidence may be limited. There are time restrictions on cross-examinations which may affect the motion judge’s ability to assess credibility. As a result, the Judge is to be wary of turning his or her assessment into a de facto summary judgment motion: Pointes, at para. 52.
b) Application of the Evidence
[20] In this case, the motion was not brought at an early stage in the proceeding, and as a result the evidentiary record is more complete than on a s. 137.1 motion brought shortly after the claim is issued. I am of the view that the evidentiary record in this case allows for a thorough consideration of the merits of the case. The written record includes the following:
a) Affidavits of Detective Constable Pritchard, and the Plaintiffs, Lap Wah Ng, and Amelia Ng,
b) Transcripts of the cross-examinations of Detective Constable Pritchard, and Mr. and Mrs. Ng,
c) The police file including the transcript of the interview between Detective Constable Pritchard and C.G..
[21] The Plaintiffs bring this action against C.G. in malicious prosecution. The parties agree that there are four elements to the tort of malicious prosecution:
a) the proceedings must be initiated by the defendant;
b) the proceedings must be terminated in favour of the plaintiff;
c) there is an absence of reasonable and probable cause; and,
d) there is malice, or a primary purpose other than the carrying of the law into effect: Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, at p. 193.
[22] The Defendant argues that the Plaintiffs’ action fails on the first ground of malicious prosecution in that the criminal proceedings were not initiated by C.G..
[23] As a general rule, the police officer who lays the charge is the person who initiates the criminal proceedings. There is a high bar for finding a private citizen liable in malicious prosecution. As stated by the Court of Appeal in Curley v. Taafe, 2019 ONCA 368, at para. 20:
The bar for a successful malicious prosecution action is deliberately set high, to avoid unduly chilling the willingness of individuals to seek recourse from the police. As Low J. observed in Correia v. Canac Kitchens (2007), 2007 691 (ON SC), 56 C.C.E.L. (3d) 209 (Ont. S.C.), at para.75, rev’d on other grounds 2008 ONCA 506, 91 O.R. (3d) 353:
It is often observed that the bar is set very high in a claim of malicious prosecution and that a plaintiff has a very difficult burden to meet to make out the claim. It is in the public interest that this be the case because criminal prosecutions are brought not for the benefit of the prosecutor nor for the benefit of the complainant but rather for the common welfare of society. Second, because the standard of proof is very high in a criminal prosecution, there will be many prosecutions brought that do not succeed not because the charge is unfounded but because the standard of proof has not been met. That the threshold for success is high in an action of malicious prosecution therefore balances the public interest in bringing to justice persons who may have broken the law against the private interest of persons who have been wrongfully prosecuted without reasonable grounds and for oblique or improper motives.
[24] A private individual may be found to have initiated the proceedings if the plaintiff establishes the following:
(a) the complainant desired and intended that the plaintiff be prosecuted;
(b) the facts were so peculiarly within the knowledge of the complainant that it was virtually impossible for the prosecutor to exercise any independent judgment or discretion; and
(c) the complainant procured the initiation of the prosecution either by furnishing information which he or she knew to be false or by withholding information which he or she knew to be true, or both: Kefeli v. Centennial College of Applied Arts and Technology, [2002] OJ No. 3023 (C.A.), at para. 24.
[25] Here, there is no evidence that C.G. desired and intended that Mr. Ng be prosecuted. In fact, the evidence is to the contrary. She did not contact the police to make a complaint or take an active role in the prosecution of the charges.
[26] On October 1, 2013, C.G. met with her guidance counsellor, Daniel Lawrence. The purpose of the meeting was to discuss her progress at school. C.G. told the guidance counsellor that she had been sexually assaulted by her piano teacher, Mr. Ng. She said that she did not want to report the assault to the police because she feared the impact it would have on her family. At the time of the meeting, C.G. was over 16 years of age and believed that her statement to the guidance counsellor was confidential.
[27] The guidance counsellor spoke to the school’s social worker and was told that despite C.G.’s request for confidentiality, there was a duty to report the allegations to the authorities. The guidance counsellor reported the matter to the police without first advising C.G. On October 3, 2013, C.G. was brought to the school office to meet with the vice principal, a social worker and the police. She once again stated that she did not want to report the incident. She was reluctant to tell her parents. The police encouraged her to provide a statement.
[28] On October 3, 2014, C.G. and her mother went to 32 Division where C.G. gave a videotaped statement to the police. She stated that she was afraid of the Plaintiffs and expressed concern about having to go to court to testify. In her statement, she reported that Mr. Ng would rub her back. He would kiss and hug her. On one occasion, he put his hand under her clothing and touched her buttocks. C.G. stated that the lessons were videotaped.
[29] The officer in charge was Detective Constable Pritchard. He was assigned to the Youth Bureau and had received training in investigating sexual assault and child abuse cases. In his affidavit, he stated that based on his experience in interviewing young persons, he found C.G. credible. He stated that the day of the interview or the next day, he conducted a police records database search of Mr. Ng. He learned that in 2007 Mr. Ng was charged after a student stated that he sexually assaulted her. The alleged assault in the earlier case was similar to the conduct described by C.G.
[30] Following the interview with C.G. and after conducting the database search, Detective Constable Pritchard was of the view that there were reasonable and probable grounds to charge Mr. Ng with sexual assault. After consultation with his supervisor, he laid charges of sexual assault and sexual interference against Mr. Ng on October 4, 2014. Detective Constable Pritchard deposed that he did not automatically lay charges against Mr. Ng simply because a complaint had been made by C.G. He deposed that before making the decision to lay charges, he carried out an investigation and exercised his own independent judgment.
[31] Detective Constable Pritchard was cross-examined on his affidavit. He was asked if he was aware that Mr. Ng had been acquitted of the earlier charges. Detective Constable Pritchard stated that at the time he charged Mr. Ng, he was not aware that the prior charges had ended in an acquittal. He stated that if he was aware of the acquittal it would not have changed his decision to charge Mr. Ng. Based on his interview with C.G. and the prior charges, he was of the view that he had reasonable and probable grounds to charge Mr. Ng.
[32] After learning of the prior charges, the police issued a press release with respect to the charges against Mr. Ng. Detective Constable Pritchard stated that the press release was issued because of a concern that there may be other victims. C.G. was not involved in the decision to issue the press release.
[33] After the charges were laid against Mr. Ng, Detective Constable Pritchard obtained a search warrant to seize the videotapes of the lessons. The tapes did not reveal any wrongdoing. He believed the sexual assaults occurred after the camera was turned off. Detective Constable Pritchard interviewed another former student of Mr. Ng, identified as “X”. She provided a sworn statement to the police in which she stated that Mr. Ng would kiss her on the cheek, hug her and place his hands on her stomach. X stated that she did not consider the touching to be sexual. Mr. Ng was not charged as a result of X’s statement.
[34] The Plaintiffs argue that Detective Constable Pritchard did not exercise any independent discretion because he was under an obligation to charge Mr. Ng once C.G. made a complaint of sexual misconduct. In support of this position, the Plaintiffs sought to introduce into evidence the report of Police Constable Sean McGuinness. Police Constable McGuinness is a retired police officer with 29 years of experience. He was tendered as an expert with respect to the prosecution of sexual assault cases.
[35] Police Constable McGuinness’ curriculum vitae was attached to his report. He investigated complaints of sexual assault when attached to the Youth Bureau and Major Crime Unit between January 1995 and September 1998. He stated that he was involved in 20-30 sexual assault cases. He does not provide a breakdown as to the number of investigations he carried out involving minors and adults. It is unclear as to whether he has had any involvement in sexual assault cases in the past 20 years. I have some concerns as to whether Police Constable McGuinness has the necessary expertise to assist the court with respect to the manner in which investigations of sexual assault are conducted. In any event, I find that his evidence does not assist the Plaintiffs.
[36] Police Constable McGuinness referred to a report of the Toronto Police Services which was prepared in 2002. The report was prepared after he stopped working at the Major Crime Unit. Police Constable McGuinness provides the opinion that the policy “translates” to the practice of the “almost automatic” laying of charges against the accused only on the basis of the complainant’s statement. He stated that based on the policy set out in the 2002 report, Detective Constable Pritchard had no choice but to charge Mr. Ng with sexual assault after the complaint was made by C.G.
[37] I reviewed the 2002 report relied on by Police Constable McGuinness. There is no statement in the report that police officers are required to charge an accused with sexual assault based only on a complainant’s statement. The report is focused on the fact that it may be emotionally difficult for a victim of sexual assault to provide a statement to the police.
[38] The specific facts of this case also do not support Police Constable McGuinness’ opinion. Detective Constable Pritchard testified that he did not charge Mr. Ng on the basis of C.G.’s statement alone. He charged Mr. Ng only after he determined that C.G. was credible, and after he conducted a search on the police database and learned of the prior charges. Although X provided a statement which set out allegations of inappropriate touching, Detective Constable Pritchard did not “automatically” charge Mr. Ng based on her allegations.
[39] The Plaintiffs argue that C.G. provided a statement which she knew was false or she withheld information which she knew was true, or both. The Plaintiffs state that there are inconsistencies in C.G.’s statement and interview with the police which demonstrate that her evidence was not truthful.
[40] In her statement, C.G. said that Mr. Ng kissed her and touched her after every class since she turned 13 years old. Mr. Ng had video-recordings of all the lessons. The videotapes do not record any incidents of assault. There was very little time from the end of C.G.’s lesson and the next student’s lesson, which makes it unlikely Mr. Ng would have had the time to commit the assaults. C.G. stated that the door separating the piano room and the rest of the house was a heavy sound proof door, when she knew it was a thin bi-fold door.
[41] In her video statement, C.G.’s evidence was that Mr. Ng started holding her face and then kissing her and then touching her bare back. At the preliminary inquiry, she stated that it started with hugging, then kissing and then hugging with contact to her buttocks. At the inquiry, she stated that when he was kissing her, Mr. Ng told her to be quiet, which is a detail she did not tell the detectives.
[42] In support of their position that a defendant may be found liable in malicious prosecution for making a false statement to the police, the Plaintiffs rely on Wood v. Kennedy (1998), 165 DLR (4th) 542, 1998 14927 (Ont. S.C.). The complainant was the accused’s 13-year-old niece. The plaintiff argued that the nature of the allegations was such that the facts of the offence could only be within the knowledge of the complainant. The court found that in those circumstances it becomes “virtually impossible” for the police officer to exercise any independent discretion or judgment. The complainant was found liable in malicious prosecution.
[43] The Defendant argues that Wood is distinguishable. In Wood, the parties conceded that the complainant initiated the prosecution. As a result, there may not have been a full consideration of this issue. In addition, there was no evidence from the police officers as to the investigation they conducted or whether they were able to exercise their independent judgment and discretion to charge the plaintiff. Here, Detective Constable Pritchard gave evidence that he carried out an investigation and exercised his independent discretion when he decided to charge Mr. Ng.
[44] I also note that Wood was decided before the decision of the Ontario Court of Appeal in D’Addario v. Smith, 2018 ONCA 163. In D’Addario the police officer testified that she concluded that there were reasonable and probable grounds to charge the plaintiff after conducting her investigation. She testified that the decision to charge was hers alone and she exercised that discretion after conferring with her supervising officer: at paras. 27-28. The Court rejected the argument that providing a false statement was sufficient to meet the test of initiating a prosecution. The Court noted that, “a false statement may cause the police to investigate, but there was no evidence from which it could reasonably be inferred that Constable McRoberts did not exercise her discretion independently”: D’Addario, at para. 26.
c) Summary
[45] The record establishes that the police initiated the criminal proceeding. Detective Constable Pritchard conducted an investigation into the complaint. He interviewed C.G. and based on his experience as a sexual assault investigator, found her credible. He did not charge Mr. Ng on the basis of her statement alone. He conducted a search of the police database and determined that Mr. Ng had been charged with respect to similar conduct in 2007. He formed the belief that there were reasonable and probable grounds to charge Mr. Ng. He deposed that he exercised his independent discretion to charge Mr. Ng and that the decision to charge Mr. Ng was his alone.
[46] The Plaintiffs have the onus of establishing that the claim has substantial merit and the defendant has no valid defence. On a review of the evidentiary record, I conclude that the claim in malicious prosecution does not have substantial merit. The evidence does not establish that C.G. initiated the criminal proceeding and as a result, the Plaintiffs are unable to establish the first element of the tort of malicious prosecution.
[47] The Plaintiffs’ failure to establish that the proceeding has substantial merit and that there are no valid defences is fatal to the claim: Pointes, para. 33. Although a finding that the Plaintiffs failed to satisfy the merits-based hurdle results in the dismissal of the Plaintiffs’ action, I will go on to consider the public interest hurdle and the Defendant’s alternative summary judgment motion.
v) Public Interest Hurdle — Does the interest in allowing the plaintiffs’ action to proceed outweigh the public interest in protecting the expression?
[48] If the Plaintiffs had satisfied the merits-based hurdle, they would then be required to establish that the harm caused to them is “sufficiently serious” that the public interest in allowing the action to proceed outweighs the public interest in protecting the expression: Courts of Justice Act, s. 137.1(4)(b). This is known as the public interest hurdle.
[49] The public interest hurdle has been described as the “core” of s. 137.1. Its purpose is described as follows:
In this way, s. 137.1(4)(b) is the key portion of the s. 137.1 analysis, as it serves as a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue: Pointes, at para. 62.
a) Harm to the Plaintiff
[50] The public interest hurdle requires a consideration of the harm that the responding party has suffered or is likely to suffer as a result of the moving party’s expression. The plaintiffs must establish both the existence of harm and that the harm was suffered as a result of the moving party’s expression. There is no minimum harm that must be established. The magnitude of the harm is relevant when the motion judge is required to weigh the harm to the plaintiff against the public interest in protecting the expression: Pointes, para. 70.
[51] The test is whether harm is likely to have been suffered. The plaintiff need not prove harm or causation on a balance of probabilities but must provide evidence to allow the motions court judge to draw an inference of likelihood with respect of the existence of harm and the relevant causal link. The issue of causation is especially important where there may be sources other than the defendant’s expression that may have caused the harm: Pointes, paras. 71, 72.
[52] Here, the Plaintiffs seek damages in the amount of $1,000,000. On the cross-examination of his affidavit, Mr. Ng testified that he is seeking compensation for the time lost from work, the loss of his reputation and the legal fees he had to pay to defend the criminal proceeding.
[53] The Plaintiffs put forward very little evidence with respect to the harm they allegedly suffered as a result of the Defendant’s expression. The Plaintiffs did not provide evidence as to the amount spent on legal fees defending the criminal charges. Although the Plaintiffs state that the business suffered, no specifics are provided, and no supporting documentation was filed. Mr. Ng stated that he suffered from depression and stress as a result of the criminal charges. He also states that he had a heart attack which he believes was a result of the stress. He did not file any medical documentation in support of these claims. The Plaintiffs claim that they experienced a loss of their reputation. No evidence was introduced to support the claim for a loss of reputation.
[54] The Defendant argues that there is no causal link between C.G.’s expression and the alleged harm. It is the Defendant’s position that Mr. Ng’s reputation was impacted by the press release. The press release was issued by the police officer after he learned of the prior charges against Mr. Ng. C.G. was not involved in the decision to issue the press release.
[55] The Plaintiffs are not required to file a fully developed damages brief. The Plaintiffs are only required to provide sufficient evidence to allow the motion judge to draw an inference of the likely existence of harm and the causal link. I am satisfied that there is sufficient evidence to allow me to draw the necessary inference that the Plaintiffs were harmed and that the harm was caused by C.G.’s expression. C.G.’s expression to the police with respect to the alleged sexual assault was a factor that went into Mr. Ng being charged. Once charged, Mr. Ng was required to incur costs to defend the criminal proceeding and would have missed time from work while in court.
b) Weighing the Public Interest
[56] Once an inference is drawn with respect to the likely existence of harm and that the harm is causally related to the expression, the next step is to weigh the harm and corresponding public interest in permitting the proceeding to continue, against the public interest in protecting the expression.
[57] The weighing exercise is dependent upon the factual circumstances of the case. The court may consider a number of factors, some of which include the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression, any disproportion between the resources being used in the lawsuit and the damage caused or the expected damages award: Pointes, at para. 80.
[58] The court is to scrutinize “what is really going on” in the particular case. The public interest hurdle allows the judge to assess how allowing individuals to vindicate their rights through a lawsuit affects the expression in issue: Pointes, at para. 81.
[59] The expression in this case is C.G.’s statement to her guidance counsellor and the police that she was sexually assaulted by Mr. Ng. The public has a strong interest in persons, who believe they have been sexually assaulted, making reports to the police. This is particularly the case when the person alleged to have committed the sexual assault is a teacher who continues to be in close contact with young people. Both parties agree that a report of sexual assault is an expression in the public interest.
[60] The Defendant argues that the action was brought to punish C.G. and to have a chilling effect on other students who may consider making sexual assault allegations against Mr. Ng. The Defendant notes that the claim is in the amount of $1,000,000 and is brought against a young woman who is going to university and has limited assets. The Defendant argues that it is therefore reasonable to infer that the action is not primarily for monetary compensation.
[61] The Defendant also argues that the purpose of the lawsuit is to create a “chilling effect” on future lawsuits. On her cross-examination, Ms. Ng testified:
Q. 236 And what I'm saying to you is you want others
to know, too, that if a student makes a lie and that
results in a criminal charge against someone, that they should know that there could be serious consequences; right?
A. If they make a mistake, yes, correct.
The Plaintiffs argue that there is no evidence that they have a history of bringing this type of lawsuit and deny the action was brought to silence critics.
[62] The Defendant also argues that in weighing the public interest, it is relevant to consider the broader effects on expressions on matters of public interest and the potential chilling effect on future expressions by other members of society. The Defendant argues that it is in the public interest to not discourage victims of sexual assault from making disclosure to the police. There is a concern that if victims of sexual assault are required to defend a lengthy and expensive malicious prosecution action, it may have a chilling effect on individuals reporting the crime to the police: Curley, at para. 20.
[63] The Plaintiffs argue that in this case, C.G.’s statement contained deliberate falsehoods and therefore is not an expression that relates to the public interest. The Plaintiffs also argue there is a broader competing public interest in malicious prosecution cases. They argue that if s. 137.1 can be used to summarily dismiss malicious prosecution claims, persons could make false reports to the police with impunity. It is the Plaintiffs’ position that although the reporting of real sexual assaults is an important matter in the public interest, the false reporting of sexual assaults is also a matter in the public interest and should be discouraged. The early dismissal of malicious prosecution actions through the application of s. 137.1 may have the unintended consequence of encouraging false reports.
[64] I agree that there are important competing public interests in cases involving malicious prosecution, particularly in sexual assault cases. In weighing the competing public interests, the court must take care to scrutinize “what is really going on” in each case.
[65] Here, the Plaintiffs are unable to establish that the claim has substantial merit, or that there are no valid defences. It is my view, “what is really going on” in this particular case, is that the Plaintiffs are pursuing a questionable case against a young person against whom they have little or no expectation of recovering damages. The claim requires C.G. to defend expensive litigation. The action may have been brought to punish C.G. for making the allegations. The claim may also have been brought to send a message to other students who may consider making a report against Mr. Ng.
[66] In weighing the competing public interests, I must consider the harm to the Plaintiffs and whether the public interest in allowing the Plaintiffs’ claim to continue outweighs the public interest of protecting C.G.’s expression of reporting this incident to the police. Based on the unique facts of this case, I conclude that the harm in preventing the claim to continue does not outweigh the public interest in protecting C.G.’s expression.
vi) Is the Defendant entitled to damages pursuant to s.137.1(9)
[67] Section 137.1(9) provides that if the proceeding is dismissed under this section and the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose the judge may award the moving party such damages as the judge considers appropriate. In argument the Defendant sought damages in the amount of $5,000.
[68] The Defendant did not specifically seek damages under s. 137.1(9) in either the Statement of Defence and Counterclaim, or in the Notice of Motion. In my view this is fatal to the Defendant’s claim for damages. Even if she had sought damages in her pleading, there is insufficient evidence to support an award of damages under s. 137.1(9) in this case. I decline to award damages to the Defendant.
B. In the alternative, should summary judgment be granted dismissing the Claim?
[69] In the alternative, the Defendant brings this motion for summary judgment seeking a dismissal of the action. If I was not prepared to grant the Defendant’s motion pursuant to s. 137.1, I would grant the Defendant’s motion for summary judgment.
[70] Summary judgment is appropriate if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. There will be no genuine issue requiring a trial if the summary judgment process:
(a) allows the judge to make the necessary findings of fact;
(b) allows the judge to apply the law to the facts; and
(c) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para. 49.
[71] On a motion for summary judgment, the motions judge must first determine if there is a genuine issue requiring a trial on the written record, without using the additional fact-finding powers available under R. 20.04(2.1) and (2.2). The judge may weigh evidence, evaluate credibility and draw reasonable inferences from the evidence: Hryniak, at para. 66.
[72] The Plaintiffs argue that the written record does not allow for a full appreciation of the evidence. It is the Plaintiffs’ position that C.G. is liable in malicious prosecution because she provided a false statement to the police. C.G. did not provide an affidavit on the motion, and as a result she has not been subject to cross-examination. She did not give evidence at the criminal trial. The Plaintiffs argue that C.G.’s credibility is an issue in this case and a trial is necessary to properly evaluate her evidence.
[73] It is the Plaintiffs’ position that an issue in dispute is whether the sexual assault took place. The only evidence on the motion is from Mr. Ng who denies that the sexual assault occurred. I take a different view. The primary issue is whether C.G. initiated the prosecution. I am satisfied that this issue can be decided on the written record.
[74] The Plaintiffs argue that the Defendant knowingly made a false statement to the police which resulted in the police laying the charges. Even if the Plaintiffs could prove that C.G. made a false statement, this will not result in a finding that C.G. initiated the proceedings. I find that the police initiated the criminal proceedings. The police investigated the allegations and, following the investigation, the police officer determined that he had reasonable and probable grounds to charge Mr. Ng. The police officer deposed that he exercised his independent discretion to charge Mr. Ng.
[75] The credibility of C.G. is not a genuine issue requiring a trial. In D’Addario, the Court of Appeal held that the mere provision of a false statement is not sufficient to meet the test of initiating a prosecution: D’Addario, at para. 26. As in D’Addario, Detective Constable Pritchard conducted an investigation and exercised his independent discretion in determining there were reasonable and probable grounds to charge Mr. Ng.
[76] On the written record before me, I am satisfied that C.G. did not initiate the criminal proceedings against Mr. Ng and as a result, the claim in malicious prosecution must fail. There is no genuine issue requiring a trial, and the Defendant is entitled to summary judgment dismissing the Plaintiffs’ action.
DISPOSITION
[77] The motion brought by the Defendant pursuant to s. 137.1 of the Act is granted. I dismiss the Plaintiffs’ action in its entirety.
[78] The Defendant is presumptively entitled to her costs of the action. If the parties are unable to agree on costs, the Defendant may deliver written costs submissions of no more than five pages in length excluding the Bill of Costs and caselaw, within 20 days of the date of this endorsement. The Plaintiffs may file their costs submissions in response, on the same basis, within 20 days of receiving the Defendant’s submissions.
___________________________ Chalmers J
DATE: November 6, 2020