COURT FILE NO.: CV-18-10 and CV-17-90 (Walkerton)

DATE: 20210527

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ENOS MARTIN

Plaintiff

and

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, WEST GREY POLICE SERVICES BOARD, DETECTIVE CONSTABLE KENNETH MACPHERSON, GLEN JARVIE, CONSTABLE STEVE PADDON, CONSTABLE JILLIAN SERKOWNEY and CONSTABLE IAN NOBLE

Defendants

Tamar Friedman and Davin Charney for the plaintiffs/responding parties.

Heather McIvor for the defendants/moving parties Her Majesty the Queen in Right of Ontario, Jarvie, Paddon, Serkowney and Noble.

Nolan Downer and Stephen Brogden for the defendants West Grey Police Services Board and MacPherson.

Heard: February 18, 2021 by video conference.

Before: Chown J.

REASONS FOR DECISION

[1] This matter arises from the alleged wrongful arrests of the plaintiff. The defendants brought motions to strike parts of the two statements of claim. The motion brought by defendants represented by Mr. Brogden resolved. The motion by the other defendants partially resolved.

[2] The following issues were argued:

a. Whether the claim should be struck against the defendants Paddon and Serkowsky on the basis that it is statute barred.

b. Whether the claims against Jarvie should be struck for failing to disclose a reasonable cause of action.

Background

[3] It is necessary to set out the allegations in some detail to give necessary context. Before doing so, I will recite what Justice Phillips said in Creppin v. University of Ottawa, 2015 ONSC 4449 at para. 8, which also applies to the allegations here:

…I should make clear that just because they are in the statement of claim does not mean in any ultimate sense that they are accurate, reasonable or fair. In this sort of motion, the Plaintiffs’ case is taken at face value − all assertions made in the statement of claim are deemed to be true. Obviously, there are two sides to every story. This motion proceeds on only one side’s version of events and its selections and characterizations of potential evidence. As such, the facts outlined [below] must be understood as uncontradicted assertions made by the plaintiffs, which have not been tested in any meaningful way.

[4] For the purposes of this motion, the parties agreed to work from the most recent draft of the proposed amended statements of claim. I understand that the plaintiff has delivered several drafts in an effort to satisfy the defendants and that the defendants would consent to the amendments if it is found that the proposed amended claims disclose a cause of action. I will collectively refer to the most recent draft of the proposed amended statements of claim as “the proposed amended claim.”

[5] The allegations in the proposed amended claim include:

a. “On October 2, 2015 investigators with several provincial ministries” searched “a farm.” I don’t know whose farm, but it is clear from the pleading that the plaintiff is connected with the farm. It was a search for “evidence showing the operation of a milk plant without a licence.” The defendant Jarvie is an investigator with the Ministry of Natural Resources and is alleged to have been “the lead investigator.”

b. “The search was part of a continuing and extensive multi-year investigation and campaign by the Crown to stop the consumption of unpasteurized milk.”

c. The plaintiff was charged with obstructing a peace officer. The charges came later but the obstruction was alleged to have occurred during the search.

d. “The plaintiff was charged because Jarvie alleged that he made observations of the plaintiff obstructing investigators at the farm.”

e. Jarvie exaggerated or fabricated these allegations which he provided to the defendant MacPherson, who is a Detective Constable with the defendant the West Grey Police Service (WGPS).

f. MacPherson obtained an arrest warrant based on false information including, in part, Jarvie’s information.

g. “On December 14, 2015 Det. MacPherson produced a Wanted Person Alert (Alert) for the plaintiff. Det. MacPherson deliberately included false information in the Alert including that the plaintiff was violent, had weapons, and was an associate with Freemen of the Land movement. Det. MacPherson obtained photographs of the plaintiff from Jarvie, which were used for the Alert.”

h. MacPherson and Jarvie both acted to have the plaintiff falsely arrested.

i. “Jarvie and MacPherson acted unlawfully with an improper purpose, which was, without limiting the foregoing, to damage the reputations of persons associated with the farm by defaming and criminalizing them.”

j. The plaintiff was arrested three times based on the wanted person alert:

#1. On December 14, 2015 by OPP officers, at which time he was turned over the WGPS, charged with obstructing a peace officer, fingerprinted and released.

#2. Later the same day by the defendants Paddon and Serkowney (who are also OPP officers), at which time he was detained in a police vehicle and then released.

#3. On June 30, 2016 by the defendant Noble (also an OPP officer), at which time he was detained and released after a short time.

k. The charge against the plaintiff was withdrawn by the Crown on September 20, 2016.

[6] A 2019 arrest (not based on the alert) is the subject of further allegations against WGPS and others that I understand will be added to the claim on consent.

[7] The claim against Jarvie is now framed only in malicious prosecution, misfeasance in public office, and malicious performance of duties. Allegations of negligence were made against Jarvie in the as-issued claims. However, these have been dropped from the proposed amended claim. Similarly, all allegations of conspiracy have been dropped.

Limitations issue

[8] The plaintiff sued WGPS, MacPherson, Jarvie, Paddon, Serkowney and Noble in an action commenced by notice of action issued on December 1, 2017 under court file number CV-17-90. The plaintiff filed the statement of claim within 30 days as required by rule 14.03(3). Therefore, CV-17-90 was issued and filed within the limitation period applicable to all these defendants.

[9] On December 1, 2017, the plaintiff also served the Crown with a notice of claim pursuant to section 7(1) of the Proceedings Against the Crown Act, RSO 1990, c P. 27 (“PACA”). Under that section, a claimant must, at least sixty days before the commencement of an action, serve on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose. Under s. 7(2) of PACA:

Where a notice of a claim is served … before the expiration of the limitation period … and the sixty-day period referred to in subsection (1) expires after the expiration of the limitation period, the limitation period is extended to the end of seven days after the expiration of the sixty-day period.

[10] The plaintiff issued a second statement of claim on February 2, 2018 under court file CV-18-10. That statement of claim names all the same persons as were sued in CV-17-90 and also names Her Majesty the Queen in right of Ontario. That claim was therefore issued after the mandatory notice period under s. 7(1) of PACA and within 7 days after the expiry of the notice period. Therefore, CV-18-10 was issued within the limitation period applicable to the Crown. However, it was issued more than two years after arrests #1 and #2.

[11] The motion materials do not comprehensively state who was served when. However, WGPS and MacPherson were apparently served immediately after CV-17-90 was issued as they delivered a notice of intent to defend on January 24, 2018. The plaintiff did not serve CV-17-90 on the other defendants named in it.

[12] The defendants the Crown, Paddon, Serkowney, Noble and Jarvie jointly delivered a notice of intent to defend in CV-18-10 on March 7, 2018, so presumably that claim was served on them almost immediately after it was issued.

[13] As indicated, the statements of claim in CV-17-90 and CV-18-10 were very similar. They alleged the same torts and pled the same material facts. The major difference was that CV-17-90 did not include the Crown and CV-18-10 did.

[14] Ms. McIvor and Mr. Brogden were not immediately aware that there were separate claims. Mr. Brogden had responded to CV-17-90 and Ms. McIvor had responded to CV-18-10. The fact that there were two separate claims was brought to light to all counsel in an email exchange on May 16, 2018. In a response to an inquiry from Mr. Brogden, Mr. Charney wrote to Mr. Brogden and Ms. McIvor:

… my apologies, I understood that both claims were served on all parties. There are 2 actions, but they are essentially identical. The reason for filing 2 claims was to preserve the limitation period against all parties. I could not file a claim against the Crown without 60 days notice, but if I had waited, the limitation against your client and the individual defendants would have expired. I will seek to join the 2 claims pursuant to s. 107 of the Courts of Justice Act by a motion (presumably on consent). I've attached both statements of claim. Will you require formal service?

[15] On July 4, 2018, Ms. McIvor emailed back to say “the personally-named defendants were not served with the statement of claim for file no. CV-17-90” and she was not authorized to accept service of the claim.

[16] The plaintiff did not arrange for personal service of CV-17-90 on Serkowney and Paddon. It is unclear from the materials whether the claim was personally served on Noble but the Crown does not assert the claim against Noble is statute barred, presumably on the basis that the arrest by Noble, arrest #3, did not take place until June 30, 2016.

[17] The claims were consolidated by order of Justice Woollcombe on August 7, 2018. The notice of motion for consolidation said that the motion was made without prejudice to the defendants’ right to advance any limitation issue. The consolidation order granted on consent did not say this. In oral argument, Ms. McIvor said that it was never the intention of the Crown to waive the limitation period by agreeing to consolidation.

[18] It would have been preferable if the consent order addressed whether it was made without prejudice to a limitation defence being pleaded and raised at trial. However, “where this is not done, it does not automatically follow that the limitation defence has been finally disposed of”: Sirotek v. O’Dea, 2021 ONSC 1223 at para. 10.

[19] The consent consolidation order also did not specify that the pleadings shall be amended into a single, consolidated set of pleadings. Consolidated pleadings have not been prepared.

[20] The Crown’s motion is styled only in CV-18-10. Having been brought after the actions were consolidated, it must be considered to apply to the consolidated action.

[21] In its notice of motion the Crown seeks “An Order striking out the statement of claim in its entirety as against defendants Steve Paddon and Jillian Serkowney given that it is statute-barred, without leave to amend, and dismissing the action against them.”

[22] In its factum, the Crown requests “An order removing Jillian Serkowney and Steve Paddon as personally-named defendants to the action.”

[23] In oral argument, Ms. McIvor argued that CV-17-90 should be struck as it was not served in time, and that CV-18-10 may proceed but it is statute barred as against Serkowney and Paddon.

[24] The Crown’s position is unsustainable.

[25] On July 4, 2018, the Crown insisted that Serkowney and Paddon be personally served with CV-17-90. As Crown counsel was already acting for Serkowney and Paddon in what was a nearly identical claim, the Crown’s position was formalistic.

[26] Then, later in July of 2018, the Crown consented to consolidation of the two actions. Consent of all the parties in both actions was required for the consolidation order. In giving its consent, the Crown implicitly confirmed that it was acting for Serkowny, Paddon and Noble in both actions and that CV-17-90 had come to the attention of these defendants. It confirmed the consent of these defendants qua defendants in CV-17-90 and qua defendants in CV-18-10. There being no evidence to the contrary, the court must assume that Crown counsel would not have given consent on behalf of Serkowney, Paddon and Noble if it did not have their authority to do so. The Crown cannot claim it has not been acting in both actions for Serkowney, Paddon and Noble since at least July of 2018.

[27] The Crown has not alleged that it has suffered any prejudice as a result of the failure to serve Serkowney and Paddon.

[28] As is apparent, it is not the case that the plaintiff missed the limitation period to sue the individual defendants. Rather, he missed the time limit for serving CV-17-090, the claim that was issued in time. Only CV-18-20 was issued out of time against Serkowney and Paddon, and even then it was only issued out of time if you say the two years starts on the arrest date for arrest #2 and not from the date the charges were withdrawn. I recognize that the different causes of action may have different presumptive limitation dates. Nevertheless, it is undeniable that CV-17-90 was issued in time against Serkowney and Paddon but not personally served in time. It would therefore be improper to strike the claim that was commenced by CV-17-90 on the basis that it was not commenced within the limitation period because it was commenced within the limitation period.

[29] Late service of CV-17-90 is something that the court can relieve against. It has long been the case that the court can make an after-the-fact order validating substitutional service: Consiglio, [1971] 3 O.R. 798, 1971 CanLII 392 (Master). Personal service of a document occurs when actual notice of it is received. It does not matter how the document reached the party: Post v. Alberta (Occupational Health and Safety Council), [2005] A.J. No. 1499 at para. 5 to 6.

[30] At this point, it would be redundant to order that a further copy of CV-17-90 be served. I would be inclined to validate service of the claim and extend service of the claim in CV-17-90. However, there has been no motion brought by the plaintiff to do so, and before I were to make such an order, I would want to hear the parties’ positions and submissions. If the parties feel it is necessary and if they can reach an agreement on this, they may write me with a draft order. If not, and if the plaintiff intends to seek such an order, the plaintiff is to bring the motion before me to be heard at a 9:00 AM video conference hearing to be arranged through my judicial assistant.

Rule 21

[31] I turn now to the question of whether the proposed amended claim should be struck as against the defendant Jarvie for failing to disclose a reasonable cause of action against him.

[32] The parties agree that the test on a motion to strike for not disclosing a reasonable cause of action is described in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17:

A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial. [Citations omitted.]

[33] And at para. 22:

A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven. No evidence is admissible on such a motion. It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. [Citations omitted.]

[34] The Crown also relies on the following passage in Metz v. Tremblay-Hall, 2006 CanLII 34443 (ON SC), [2006] O.J. No. 4134 at para. 10:

If at the time of pleading, a party does not have knowledge of the facts that support a cause of action, then it is inappropriate to make those allegations. It is not sufficient for a party to allege that the material facts are peculiarly within the knowledge of the opposing party or that it will determine facts as a result of examinations for discovery or in some other way that will support the allegations. [Citations omitted.]

[35] The Crown’s approach to this motion was to take me through each element of the cause of action for the various torts pleaded by the plaintiff, and to point out those elements that the Crown says were not adequately pleaded. I will follow the same approach. Before doing so, I wish to note that it is an error in principle for a judge hearing a rule 21 motion to, in effect, try the case or deal with it as if it were a summary judgment motion. It is improper to do a “meticulous analysis and weighing of the allegations in the pleading amongst themselves and compared with … external evidence”: Miguna v. Toronto Police Services Board, 2008 ONCA 799 at para. 16. See also Addison Chevrolet Buick GMC Limited v. General Motors of Canada Limited, 2016 ONCA 324 at para. 49 and McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830 at para. 20.

Malicious Prosecution

[36] There are four elements of the tort of malicious prosecution: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at p. 192-193:

a. The proceedings must have been initiated by the defendant;

b. The proceedings must have 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.

Initiated by the defendant

[37] Ms. McIvor referred me to D'Addario v. Smith, 2018 ONCA 163, where the Court of Appeal at para. 15 seemingly approved of the following statement by the trial judge:

Even if it were accepted that the defendant[s’] statements to Constable McRoberts were false, that fact alone is not enough for a jury to conclude that they initiated the prosecution. Much more was required to meet the high bar of malicious prosecution. There has to be evidence that the defendants withheld exculpatory evidence; that they pressured the police in laying the charges or somehow compromised the independence of the prosecution.

[38] Although helpful, the D’Addario case was an appeal of a trial decision, not a Rule 21 motion.

[39] Ms. McIvor further referred me to McNeil v. Brewers Retail Inc., 2008 ONCA 405, also an appeal from a trial decision. In result that case is not helpful to the Crown’s position, but it is cited as an example of the high bar required for a complainant to be found to be an initiator of proceedings. The police and the Crown relied wholly on the complainant, “which actively and deliberately misled them” (para. 53). It is important to point out, though, that the court said at para. 52:

[T]his is not a case in which we must decide all the factors that could, in any particular case, satisfy the element of initiation.

[40] The Crown also referred me to Kefeli v. Centennial College of Applied Arts and Technology, 2002 CanLII 45008 (ONCA), where Justice Simmons said at para. 25 that the complainant could be treated as the “prosecutor” of the proceedings in exceptional circumstances, including if:

a. “the facts were so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment”; or

b. “the complainant procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both” (para. 25).

Another avenue would be if “the defendant was actively instrumental in putting the law in force” or “had caused everything to be done which could be done wrongfully to set the law in motion against the [plaintiff] on a criminal charge” (para. 26).

[41] Justice Simmons held at para. 27 that there were no allegations in the statement of claim that “even approached” this requirement.

[42] In the case before me, the Crown argued that Jarvie cannot be held to be the initiator of the prosecution because the case does not fall within exceptional circumstances enumerated in D’Addario , McNeil or Kefeli which permit a court to treat a non-police defendant as initiating the prosecution. More than just an inaccurate statement to the police is necessary. There needs to be an impact on the charging officer’s discretion or a limitation on the officer’s ability to investigate such as where the complainant provide inculpatory information, is aware of exculpatory information, and is aware that the police may not be able to access the exculpatory information. The information from the complainant must compromise the discretion that can be employed in the investigation. The Crown argues that high bar is not reached in the proposed amended claim.

[43] However, unlike in D’Addario, McNeil and Kefeli where the complainants were private individuals, or an employer in the case of Kefeli, Jarvie was a government investigator. The claim alleges that Jarvie was the lead investigator during the search. It says Jarvie fabricated allegations that he saw the plaintiff obstructing investigators. It says Jarvie had input on who MacPherson charged. And it says Jarvie initiated the prosecution by making a false statement about the plaintiff. The alleged facts describe a circumstance which may be found to fit within the scope of “initiating the proceeding.” Alternatively, the trial judge may find the facts here distinguish this case from those where complainants, rather than a government investigator, were alleged to have initiated the proceedings. “[M]atters of law that have not been fully settled in the jurisprudence should not be disposed of pursuant to rule 21.01(1)(b)”: Folland v. Ontario, 2003 CanLII 52139, 64 O.R. (3d) 89 (C.A.), at para. 11, leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 249. “Where the scope of a legal duty has not been fully settled in the jurisprudence, an allegation that the duty has been breached should not be dismissed on a Rule 21 motion”: Kang v. Sun Life Assurance Company of Canada, 2013 ONCA 118 at para. 39, citing Folland.

[44] I conclude that it would not be appropriate to strike the malicious prosecution claim here, at the pleadings stage, where it is alleged that Jarvie initiated the prosecution.

[45] The Crown also argues that the pleadings relating to initiating the prosecution are conclusory statements, and the detailed particulars required in these cases have not been pleaded. There is always a tension between providing a “short statement of the material facts” and “pleading evidence.” In my view, the proposed amended claim provides adequate particularity.

Terminated in favour of the plaintiff

[46] The Crown acknowledges that this element of the tort of malicious prosecution is adequately pleaded.

Absence of reasonable and probable cause

[47] The Supreme Court in Nelles, supra, said at p. 193 that the test for reasonable and probable cause, “contains both a subjective and objective element. There must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances.” The court then said at p. 194:

a plaintiff bringing a claim for malicious prosecution has no easy task. Not only does the plaintiff have the notoriously difficult task of establishing a negative, that is the absence of reasonable and probable cause, but he is held to a very high standard of proof to avoid a non-suit or directed verdict.

[48] The Crown argues that no facts are pleaded about the plaintiff’s behaviour while at the farm, other than a conclusory denial that his conduct did not constitute obstruction. However, it is difficult to go beyond a conclusory statement when pleading something did not happen. The claim does say:

a. “There were no reasonable grounds to arrest the plaintiff, nor were there grounds to issue an arrest warrant for the plaintiff.”

b. “During the search various items were seized. Neighbours and residents living in the area attended at the farm. Five people including the plaintiff were alleged to have obstructed investigators. The plaintiff denies that he obstructed investigators in any way.”

c. “Jarvie alleged that he made observations of the plaintiff at the farm. Jarvie exaggerated and/or fabricated evidence. Specifically, Jarvie alleged that that the plaintiff had obstructed investigators. The plaintiff did no such thing.”

[49] The claim also provides, to some extent, the alleged motive for the malicious prosecution, saying that it was part of a “continuing and extensive multi-year investigation and campaign” which was “centered on the allegation that unpasteurized milk produced at the farm was being distributed and consumed without proper licence.”

[50] The Crown correctly notes that the claim does not assert that Jarvie lacked actual belief in the plaintiff’s guilt and that this is a required element of for a lack of reasonable and probable grounds. Lack of reasonable and probable grounds has otherwise been adequately pleaded. The plaintiff shall have leave to amend the claim to add this particular, failing which this element of the claim shall be struck.

Malice

[51] The parties agree that malice in the context of malicious prosecution involves “improper purpose.” The Crown cited Miazga v. Kvello Estate, 2009 SCC 51 at para. 78 to 79 and said in its factum that it must be shown that the prosecution was “motivated by an improper purpose or a primary purpose other than carrying the law into effect.” The plaintiff cited Oniel v. Marks, 2001 CanLII 24091, [2001] O.J. No 90 (CA) at para. 49 and acknowledged in his factum that “the core meaning of malice in the tort of malicious prosecution is the use of the criminal justice system for an improper purpose.” This requirement comes from Nelles, supra, where the fourth element of the tort was described as “malice, or a primary purpose other than the carrying of the law into effect.”

[52] I found para. 78 to 90 of Miazga and para. 62 to 68 and para. 43 to 47 of Oniel to be instructive in understanding what may constitute malice in the context of malicious prosecution. I have also reviewed and found instructive: para. 27 to 34 of Miguna, supra; para. 41 to 44 of McCreight v. Canada (Attorney General), 2013 ONCA 483; and para. 44 of Proulx v. Quebec (Attorney General), 2001 SCC 66. McCreight and Miguna were rule 21 cases. The others were appeals from trial decisions. In all these cases, except Oniel, the malicious prosecution claims were made only against prosecutors. In Oniel, the malicious prosecution claim was made against police.

[53] Miazga uses the most restrictive language in describing what constitutes malice.

[54] The plaintiff submits that the following allegations in the pleading are a sufficient basis for the malice element of malicious prosecution:

a. Jarvie fabricated allegations that he saw the plaintiff obstructing investigators on October 2, 2015 and relayed those false allegations to MacPherson.

b. Jarvie was acting as part of a coordinated campaign by the Crown to damage the reputations of certain people, and to prevent like-minded people from consuming unpasteurized milk.

c. Jarvie alleged the plaintiff had obstructed police when he did not.

d. Jarvie knowingly shared false information about the plaintiff.

e. Jarvie knowingly caused the plaintiff to be falsely arrested.

f. Jarvie acted with an improper purpose, which was to damage the reputations of persons associated with the farm by defaming and criminalizing them.

g. Jarvie knew that his conduct was unlawful.

Of these, a., b. and g. are factual allegations which support the claim of malice. The others can be criticized as conclusory allegations.

[55] The Crown argues in its factum that the facts pleaded:

do not support a malicious or improper ongoing campaign. Although the campaign is stated to be one that involved past legal action, including civil and administrative proceedings and provincial prosecutions, it is not alleged that any of those proceedings constituted an abuse of process or were otherwise vexatious or unjustified. It is also not alleged that Jarvie or the plaintiff were involved with those actions.

[56] The Crown also argues that “A provincial investigator acting to further a campaign to curb illegal milk production, and enforce a provincial statutory regime under which he operates, does not constitute malice.” The allegations also provide little factual support for what may have motivated Jarvie to allegedly act maliciously towards the plaintiff.

[57] I find these arguments alluring. But acting on them would lead into the trap of “weighing the allegations.” The plaintiff has pleaded that Jarvie fabricated allegations for the improper purpose of damaging the reputations of persons associated with the farm. This could be found to constitute malice. To put it differently using the awkward but instructive double negative, it is not plain and obvious that this is not malice.

[58] I also note that the Court of Appeal in Oniel said at para. 62: “…the failure of a police officer to make adequate inquiries before charging a person, or continuing a prosecution, may constitute malice.” This seems a much lower bar than described at para. 78 to 90 of Miazga, which is a Supreme Court of Canada case and more recent than Oniel. However, the facts of the two cases are different. One potentially important distinguishing feature is that the defendants in Oniel were police and the defendant in Miazga was a Crown prosecutor. Jarvie is neither but more akin to a police officer than a prosecutor.

[59] I again conclude that it would be wrong to strike the claim at the pleadings stage given the unique circumstance that Jarvie was a provincial investigator and not simply a complainant. I refer again to the Court of Appeal’s decision in Miguna, supra, at para. 34: “The test remains: is it plain and obvious that the claim cannot succeed? The test is not whether it is unlikely the claim will succeed.” Here, when it is assumed that the allegations in the statements of claim are true, it is not plain and obvious that this cause of action has no reasonable chance of success as against Jarvie.

Misfeasance in Public Office / Malicious Performance of Duties

[60] The plaintiff asserts that there are separate torts, one being misfeasance in public office and one being malicious performance of duties. The Crown argues they are one and the same thing.

[61] The parties agree that Odhavji Estate v. Woodhouse, 2003 SCC 69 is the seminal case setting forth the elements of misfeasance in public office, and para. 23 and 24 are key to understanding these elements. Those elements are:

First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff.

[62] Of course, compensable damages and causation must also be proven.

[63] For malicious performance of duties, the plaintiff relies on the following statement from Gershman v. Manitoba Vegetable Producers' Marketing Board, 1976 CanLII 1093, 69 D.L.R. (3d) 114 (MBCA) at p. 123 as a description of the elements of the tort:

a citizen who suffers damages as a result of flagrant abuse of public power aimed at him has the right to an award of damages in a civil action in tort.

[64] The plaintiff argues that this description of the tort flows from Roncarelli v. Duplessis, [1959] S.C.R. 121, 1959 CanLII 50 (SCC).

[65] I do not need to resolve whether these are separate torts. If there are two separate torts, the elements of each are similar enough that the distinction does not matter for purposes of this motion.

[66] The Crown argues in its factum that there is:

no factual support in the Claim to find that Jarvie had any significant knowledge of the WGPS investigation, that he knew that criminal charges would be laid, that he provided information for the purpose of securing criminal charges (rather than simply to cooperate with the police), that he knew that the plaintiff’s behaviours met the threshold for criminal obstruction (or that he asserted as much), or that he had any knowledge of the appearance before the Justice of the Peace and the process employed to secure charges.

[67] The Crown further argues that:

Jarvie was one of many individuals at the farm on October 2, 2015. He provided information to WGPS as a witness that had been present at the farm. Jarvie is a provincial investigator who did not exercise his discretion to pursue any of the enforcement mechanisms within his bailiwick, and he is not charged with conducting criminal investigations or criminal prosecutions.

[68] However, as the plaintiff notes, the claim alleges that Jarvie was the lead investigator for the search. It alleges that Jarvie was acting as part of a coordinated campaign to damage the reputations of certain people, and to prevent like-minded people from consuming unpasteurized milk; that Jarvie fabricated allegations that he saw the plaintiff obstructing investigators; and that he knowingly caused the plaintiff to be falsely arrested. This adequately alleges the required elements of the tort of misfeasance in public office.

[69] The Crown also argues that “There is no factual support on which to find that Jarvie would have or should have been aware that his conduct was likely to harm the plaintiff by leading to a ‘false arrest’.” Since individualized knowledge of likely harm is required, and since this is not supported by particulars in the claim, the cause of action must be struck.

[70] Fabricating allegations is a grave claim to advance against an investigator, and the plaintiff has advanced it. It is unnecessary for the plaintiff specifically state that fabricating allegations would be likely to harm him, or that Jarvie was aware this would harm him. Something so obvious need not be specifically added to the pleading. The further problem with the Crown’s submission is that it again invites me to act as a trial judge or summary judgment motion judge which, as discussed above, is something Court of Appeal has said I must be careful not to do. This is a pleadings motion.

[71] The claim here has reached an adequate level of particularity. What the plaintiff said in Miguna, at para. 14, is applicable here: there is no way the plaintiff can prepare a claim the defendants will approve of.

[72] As a final comment, Justice Weiler’s statement in Folland, supra, at para. 23 applies here, where she said:

[T]he purpose of a Rule 21 motion is to bring finality to litigation that does not disclose a cause of action at an early stage of the proceedings. Here, the actions of malicious prosecution and for breach of Charter rights have not been struck and will be going on to trial in any event.

[73] This was part of her logic in allowing the appeal from an order which struck claims of abuse of process, conspiracy to injure, and intentional infliction of harm.

Consolidated Pleadings

[74] Going forward it would benefit the parties and the court to have a single set of consolidated pleadings. As amendments are being made to the statement of claim, now would be a good time to require consolidated pleadings. Court file number CV-18-90 shall be used going forward. The plaintiff shall deliver a consolidated statement of claim. The defendants may rely on their existing defences or deliver defences to the consolidated claim as they see fit.

Costs

[75] I note that the parties each submitted costs outlines which claimed similar amounts so I would encourage the parties to resolve costs on their own. If the parties cannot resolve costs, they should contact my assistant Linda Thompson within 14 days to arrange a brief 9:00 AM videoconference to resolve the costs issue.

“Justice R. Chown”

Released: May 27, 2021