COURT FILE NO.: CV-20-00650942
DATE: 20211025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Christopher Goulbourne
Plaintiff
– and –
Her Majesty the Queen in Right of Ontario, The Attorney General and The Toronto Police Services Board
Defendants
John D. Ekpenyong for the Plaintiff
Daniel Mayer, for Her Majesty the Queen in Right of Ontario and the Attorney General for Ontario
Matthew Cornett and Rali Anguelova, for the Toronto Police Services Board
HEARD: October 20, 2021
M. D. Sharma J.
JUDGMENT
[1] The plaintiff brings a motion for leave, under section 17 of the Crown Liability and Proceedings Act, 2019, to continue his claim of malicious prosecution.
[2] The defendant, Her Majesty the Queen in Right of Ontario (the “Crown”) and the Attorney General of Ontario (“Attorney General”) (collectively, the “Crown Defendants”), oppose this motion. They bring a cross motion to dismiss the plaintiff’s claim, including his claims under the Charter of Rights and Freedoms (“Charter”), under rule 21.01(1)(a) and (b) of the Rules of Civil Procedure and in reliance upon the Limitations Act, 2002.
[3] The defendant, the Toronto Police Services Board (the “Board”) brings a summary judgment motion to dismiss the plaintiff’s claim relying on the Limitations Act, 2002.
I. Facts
[4] On November 6, 2020, the plaintiff, Mr. Christopher Goulbourne, initiated this action by way of Statement of Claim. It seeks damages against the defendants for malicious prosecution, breach of s. 7 of the Charter, abuse of power or abuse of statutory power, intentional or negligent infliction of harm, conspiracy to injure, and false imprisonment.
[5] The Statement of Claim alleges the following facts: On April 24, 2013, Toronto police officers executed a search warrant of a person that was not the plaintiff at a residence in Toronto. It was executed at night, beyond the hours authorized by the search warrant. The plaintiff was asleep or unconscious at the residence at the time the officers gained entry. One of the officers placed a plexiglass shield on the plaintiff and a struggle ensued, resulting in the plaintiff being shot by the officer. The plaintiff was charged with assault and resisting arrest.
[6] The plaintiff pleads that the police knew or ought to have known the plaintiff was not the target of their investigation, and that his arrest and prosecution was actuated by malice. He further asserts the defendants owed a duty of care to the plaintiff under s. 7 and 11(d) of the Charter and he was deprived of his protections under the Charter. He further claims the defendants did not have reasonable and probable grounds to prosecute the plaintiff, that the police were negligent, that the defendants conspired to obtain a wrongful criminal conviction, and that they intended to inflict harm upon the plaintiff.
[7] The evidence on this motion reveals that the plaintiff, following this incident, was charged with eight offences. He stood trial in the Ontario Court of Justice before Justice MacLeod on two of the charges – assault with intent to resist arrest and attempt to disarm a peace officer – on May 8, 2014. The presiding judge, however, acquitted the plaintiff of both counts. The remaining charges were withdrawn at the request of the Crown.
[8] The plaintiff states in his own affidavit, and without a copy of the warrant attached, that the warrant stipulated that the search was to be conducted during the daytime, which was defined as between 8 a.m. and 8 p.m.
[9] However, the telewarrant, upon which the police executed their search of the residence, was tendered into evidence on this motion by the Board. It shows the warrant was issued on April 24, 2013 at 9:36 pm. It authorized the police to search the premises between the hours of “April 24/13 9:30 pm to April 24/13 (sic) 6:59 am”. There is an obvious typographical error with respect to the second reference of “April 24/13”, which ought to read “April 25/13”. The Board acknowledges that the warrant was executed at approximately 11:22 pm on April 24, 2013.
[10] What happened thereafter is disputed, but there is agreement that there was a physical struggle between the plaintiff and one or more officers. This resulted in the plaintiff being shot in the leg/ankle area. He was taken to hospital, treated and released.
[11] The Special Investigations Unit (SIU) investigated. On July 5, 2013, the SIU released a news release indicating that there were no grounds to believe that the subject officer committed a criminal offence in relation to the firearm injury.
II. Issues
[12] Where a plaintiff seeks to pursue torts alleging bad faith against the Crown or an employee of the Crown, leave of the Court is required under s. 17 of the Crown Liability and Proceedings Act, 2019 (“CLPA”). Hence, the plaintiff’s motion for leave.
[13] On November 6, 2020, more than seven years after the incident in which the warrant was executed and the plaintiff injured, and more than six years after the trial of the plaintiff concluded, the plaintiff commenced this action. Hence, the Board brought a motion for summary judgment claiming the action is statute-barred by the Limitations Act, 2002.
[14] The Crown Defendants similarly seek a dismissal of the plaintiff’s remaining Charter claims under rule 21 arguing that there is no basis in law for this action.
[15] In response, the plaintiff says he was not aware that he could commence this action until he met with his lawyer in January of 2019.
III. Analysis
a. Leave Under the CLPA
[16] The Crown Defendants argue that the plaintiff has not met the test for leave under s. 17(7) of the CLPA, namely that the claim was commenced in good faith and that there is a “reasonable possibility that the claim will be resolved in the claimant’s favour.”
[17] Section 17(1) of the CLPA states that unless and until leave is granted, the action is deemed stayed.
[18] The Crown Defendants challenge the sufficiency of the plaintiff’s affidavits, required under s. 17(3) of the CLPA, and the fact that those “affidavits” are not sworn. I use the term “affidavit” recognizing that an unsworn document is not an affidavit.
[19] The plaintiff filed two affidavits by Mr. Goulborne. The first was not sworn, but simply signed by Mr. Goulborne on what appears to be December 7, 2020. The supplementary affidavit was properly sworn on October 8, 2021. Each affidavit is brief. The first is eight paragraphs. The second is 18 paragraphs. Neither appends any exhibits.
[20] The statements in the affidavits allege that the police and the Crown failed to disclose the search warrant to the plaintiff during the trial. There are also assertions that the police did not produce the search warrant at trial. He further states that “the Crown and Crown officers were actuated by malice.”
[21] The Crown Defendants argue that this claim was not commenced in good faith because it was commenced more than six years after the plaintiff was acquitted. His only explanation for the delay is in his unsworn “affidavit” which states he was unaware of any valid claim until he met [his lawyer] in the year of 2019 January.” The Crown Defendants argue that this is insufficient to demonstrate good faith because a person aggrieved to the point of alleging malice would not wait that long to seek legal advice or commence an action.
[22] Plaintiff’s counsel argues there is evidence that the plaintiff is acting in good faith. The only statement in evidence that speaks to the plaintiff’s intention of pursuing this claim against the Crown defendants is the following: “I was unaware that I had any claims against the Crown or the police officers until I met John David Ekpenyong in January, 2019.”
[23] Slightly weighing in the plaintiff’s favour on a balance of probabilities, I am satisfied that the plaintiff has an honest belief that he has an arguable claim and a genuine intention to prosecute this claim if leave is granted. Whether he, in fact, has an arguable claim is a different issue.
[24] With respect to the second prong of the leave test, the Crown Defendants argue that there is no possibility that this claim will succeed because actions in respect of criminal prosecutions should only be brought against the Attorney General (not the Crown) pursuant to s. 8(1) of the Ministry of the Attorney General Act. They further state that the Crown Defendants were not involved in the execution of the warrant and they did not lay charges. The only Crown officer involved was the Crown Attorney who prosecuted the charges.
[25] The Attorney General further argues that among all the torts alleged, the Attorney General enjoys prosecutorial immunity in favour of accused persons, save and except malicious prosecution (which is pled in this case) and wrongful non-disclosure (which is not pled) (see Ontario Attorney General) v. Clark, 2021 SCC 18 at para 63).
[26] The Attorney General argues that there is no reasonable possibility that the four part test for malicious prosecution can be met, namely that the prosecution was (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect (see Miazga v. Kvello Estate, 2009 SCC 51 at para 3).
[27] The Attorney General concedes the first two parts of the test are met. However, it states there is no evidence to support the third and fourth parts.
[28] The Attorney General points to the transcript of a motion brought by the plaintiff for a directed verdict in the criminal trial before Justice MacLeod on May 8, 2014. Justice MacLeod dismissed the plaintiff’s motion and ruled,
“I would have to conclude that there was some evidence of an assault, some evidence of an assault on police officers, and some evidence of an attempt to disarm. …Based on the evidence, there is sufficient to get past a motion for non-suit. Motion dismissed.”
[29] On this leave motion, this judicial finding by Justice MacLeod, who had the benefit of hearing the evidence in this case, strongly suggests the plaintiff will be unable to meet the burden of establishing the Crown attorney undertook the prosecution of this case “without reasonable and probable cause.” Justice MacLeod’s conclusions reveal there was some evidence to support the prosecution of this case by the Crown. As such, it is highly unlikely that the plaintiff could establish the Crown undertook this prosecution without reasonable and probable cause, which is the third prong of the test for malicious prosecution.
[30] I consider the fourth element of the test for malicious prosecution (i.e., whether the Crown was motivated by malice or a primary purpose other than that of carrying the law into effect). The plaintiff has not adduced any evidence to suggest that the Crown attorney has engaged in conduct that would meet this high test, other than an unsworn statement by him alleging that the Crown “acted intentionally or recklessly when they launched prosecution against me, knowing that I was absolutely innocent”. It is a bald unsworn allegation with nothing to support it. His subsequent sworn affidavit states the Crown was “actuated by malice” and that the defendants did not produce the search warrant at trial. These statements, without anything further, are insufficient to support an allegation that the Crown was motivated by malice. There is nothing in the record which would suggest otherwise.
[31] I also find that because of the Limitations Act, 2002, which I discuss next, there is no possibility that the plaintiff’s claim would be resolved in the plaintiff’s favour.
[32] For these reasons, I am unable to conclude there is a reasonable possibility that the claim will be resolved in the plaintiff’s favour. Accordingly, leave under s. 17 of the CLPA is denied.
b. Board’s Motion for Summary Judgment & the Limitations Act, 2002
[33] On a summary judgment motion, the moving party has the onus of establishing there is no genuine issue requiring a trial: Rule 20.04, Rules of Civil Procedure.
[34] A motion judge must first determine if there is a genuine issue requiring a trial based only on the evidence before the Court, without using the fact finding powers in rule 20.04 (2.1) and (2.2). If the Court is satisfied the evidence exists to fairly and justly determine there is no genuine issue requiring a trial, summary judgment may issue. However, if there appears to be a genuine issue requiring a trial, the judge may then determine if the need for a trial can be avoided by using the fact finding powers in rule 20.04(2.1) and (2.2): Hryniak v. Mauldin, 2014 SCC 7 ("Hryniak") at para 66.
[35] Parties are required to put their best foot forward on a summary judgment motion. The court is entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial (see Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras 26 and 27).
[36] Section 4 of the Limitations Act, 2002 prescribes a basic two-year limitation period in respect of most civil claims. Section 5 sets out when a claim is discovered. It reads:
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
(3) For the purposes of subclause (1) (a) (i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made.
(4) Subsection (3) applies in respect of every demand obligation created on or after January 1, 2004.
[37] There is no dispute that this action was commenced more than two years after the incident involving the plaintiff in April of 2013, and his acquittal of charges in May of 2014.
[38] It is also clear that that the plaintiff’s Charter claims would also be subject to a two-year limitation period. As explained by Rouleau J.A. in Alexis v. Darnley, 2009 ONCA 847 at para 21:
[21] A plain reading of the Limitations Act makes it apparent that, in adopting the new Limitations Act, the legislature intended that the two-year limitation would apply to claims brought as an individual for personal remedy under s. 24(1). Section 4 states that "Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered." The exclusions set out in the Act are listed in ss. 2 and 16. Among the exceptions is a class of constitutional claims. Section 2(1)(e) excludes claims based on aboriginal and treaty rights recognized and affirmed in s. 35 of the Constitution Act, 1982. There is however no exclusion for claims brought under s. 24(1) of the Charter, and certainly none such as the one brought by the appellant as an individual claim for a personal remedy. It is apparent in my view that, at a minimum, the Act was intended to apply to such claims. Nothing in the statute or in the legislative debates surrounding the adoption of the Act suggests otherwise.
[39] The plaintiff, however, argues that it was not until January 2019, when he met with his lawyer, that he discovered a legal proceeding could be commenced to seek remedies. He argues that this should be the date on which the claim was discovered for the purpose of calculating the limitation period. He further argues in his factum that there is a “genuine issue for trial” with respect to the limitation period.
[40] As I pointed out to plaintiff’s counsel during the motion, it would appear that the plaintiff’s factum has failed to appreciate the significant shift that has occurred with respect to summary judgment motions since the Supreme Court of Canada’s decision in Hyrniak, supra. The test is “whether or not there is a genuine issue requiring a trial”: see rule 20.04, Rules of Civil Procedure. Much of the caselaw on which the plaintiff relied was outdated in his factum.
[41] The only relevant evidence that the plaintiff has properly adduced on this summary judgment is one sentence in his affidavit which reads: “I was unaware that I had any claims against the Crown or the police officers until I met John David Epkenyong in January, 2019.” In my view, this is insufficient to defend a summary judgment motion where the moving party is alleging a limitations defence. The plaintiff has failed to adduce any evidence to explain why he did not consult a lawyer within two years after his arrest or acquittal. He did not offer any evidence of his personal circumstances that might lead the Court to apply s. 5(1)(b) of the Limitations Act, 2002, namely, whether “a reasonable person with the abilities and in the circumstances” of the plaintiff first ought to have known of the claim.
[42] The onus was on the plaintiff to put his best foot forward and adduce all the evidence that he would present at trial. Without evidence of his abilities, circumstances, and any other limitations, I am left without a basis to entertain an analysis under s. 5(1)(b) of the Limitations Act, 2002. Accordingly, in the absence of such evidence, I must apply the presumption of discoverability in s. 5(2) and conclude that that the plaintiff knew or ought to have known that he had two years in which to commence his action.
[43] The plaintiff has pointed to authority in his factum, in addition to paragraph 12 of the Alexis decision, supra, for the proposition that discoverability is a factual analysis that should not be determined on a summary judgment motion and that a trial is required. That may well be the case where a plaintiff has put his best evidence forward and the motions judge determines that a trial is required to determine when the plaintiff discovered his claim. However, in this case, the plaintiff has not adduced any evidence to lead me to conclude a trial is required with respect the plaintiff’s discoverability of his claim.
[44] Therefore, I grant the Board’s motion for summary judgment dismissing the plaintiff’s claim against it.
c. Crown Defendants’ Rule 21 cross-motion
[45] The Crown Defendants note that if leave is denied to continue the plaintiff’s malicious prosecution claim, the plaintiff’s Charter claims against them would remain. The requirement to obtain leave under the CLPA does not apply to the plaintiff’s claims under the Charter. As such, the Crown Defendants bring this cross-motion under rules 21(1)(a) and 21(1)(b) to strike the Charter claims.
[46] The Crown Defendants argue that the Charter claims cannot stand if leave to pursue the malicious prosecution claims is denied. They rely on the following authorities in their factum.
[47] In Fitzpatrick v. Durham Regional Police Services Board, 2005 CanLII 63808 (Ont. S.C.) Justice MacDougall held at para 34:
[34] As stated in Scott v Ontario, [2002] O.J. No. 4111, [2002] O.T.C. 832 (S.C.J.) [affirmed] by the Ontario Court of Appeal, [2003] O.J. No. 4407, the Charter claims stand or fall with the claim based on malicious prosecution. (See: Bond v. Ontario, [2002] O.J. No. 3499, [2002] O.T.C. 658 (S.C.J.) and the cases therein referred to.) As the claims [for] malicious prosecution are struck, para. 82 of the plaintiff's claim is also to be struck.
[48] In Biladeau v. Ontario (Attorney General), 2014 ONCA 848 at paras 41-42, the Ontario Court of Appeal held that the threshold to be met to bring a claim for Charter damages is at least as high as the one for a malicious prosecution tort action:
[41] Although authority on awarding Charter damages is relatively recent, it seems clear that when it comes to malicious prosecution, there is a high degree of overlap between the elements of the tort and a corresponding claim for Charter damages. The precise extent of the overlap is unclear; however, malice appears to be an integral component of both actions. Accordingly, the facts alleged by the appellant in regard to the tort of malicious prosecution appear to be equally applicable to the appellant’s corresponding claim for Charter damages: see Forrest v. Kirkland, 2012 ONSC 429, 296 O.A.C. 244 (Div. Ct.) at para. 62; see also Henry v. British Columbia (Attorney General), 2014 BCCA 15; 370 D.L.R. (4th) 742, leave to appeal to S.C.C. granted, 35745 (May 15, 2014).
[42] Therefore, the bar that the appellant will have to overcome for his Charter damages claim is at least as high as the bar he must surmount for a private law malicious prosecution action. However, as with his claim for malicious prosecution, the appellant is merely at the pleadings stage and is only required to plead facts sufficient to show that it is not plain and obvious that no reasonable cause of action is disclosed.
[49] On a rule 21(1)(b) motion the test is whether it is “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action, assuming that the facts as stated in the statement of claim can be proved: see Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), (1990) 2 SCR 959, para 46.
[50] Given my finding on the plaintiff’s leave motion under the CLPA that there is no reasonable possibility that the plaintiff’s malicious prosecution claim will be resolved in the plaintiff’s favour, and for the same reasons on which I made that finding, I conclude that it is plain and obvious that the plaintiff cannot succeed on his Charter claims. In my view, even allowing for drafting deficiencies and assuming the allegations as pled were true, the plaintiff must confront the prior judicial finding by Justice MacLeod that there was evidence to support his prosecution by the Crown. For this reason, I strike the Charter claims against the Crown Defendants as disclosing no reasonable cause of action.
[51] The Crown Defendants did not argue the expiration of a limitation period as a further basis to conclude that it is plain and obvious that the plaintiff’s Charter claim discloses no reasonable cause of action. Counsel for the Crown Defendants explained during oral argument that they did not do so because they had not yet filed a statement of defence. In Beardsley v Ontario Provincial Police, 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (ONCA) at para 21, the Court of Appeal held that a defendant could not bring a motion under rule 21.01(1)(a) for the determination of a question of law based on the expiry of a limitation period until it had filed its statement of defence. Accordingly, I make no findings on this issue.
[52] Therefore, the Crown Defendants motion to strike the plaintiff’s Charter claims is granted.
Costs
[53] Pursuant to s. 131(1) of the Courts of Justice Act, the Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors to be considered by the Court when fixing costs.
[54] The overall objective of fixing costs is to determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v Public Accountants Counsel for Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ. No. 2634 (C.A.). In determining costs, I must consider the factors set out in rule 57.01(1), as well as the principle of proportionality set out in rule 1.04(1.1). I keep in mind the Court should seek to balance the indemnity principle with the fundamental objective of access to justice.
[55] The defendants were successful in their respective motions, and the Crown Defendants were successful in responding to the plaintiff’s leave motion. The Crown Defendants seek no costs. The Board seeks $16,640.10 in partial indemnity costs.
[56] Having regard to s. 131 of the Courts of Justice Act, rule 57.01(1), the indemnity principle and access to justice, I order the plaintiff to pay the Board defendant costs fixed in the amount of $7,000.
Justice Mohan D. Sharma
Released: October 25, 2021
COURT FILE NO.: CV-20-00650942
DATE: 20211025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Christopher Goulbourne
Plaintiff
– and –
Her Majesty the Queen in Right of Ontario, The Attorney General and The Toronto Police Services Board
Defendants
REASONS FOR JUDGMENT
M. D. Sharma
Released: October 25, 2021