COURT FILE NO.: 17-4031-00
DATE: 2021 02 02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Przemyslaw Bobel
Self-Represented
Plaintiff
- and -
Edyta Maria Humecka and Raymond Alexander Patten
Alexander Boissonneau-Lehner, for the Defendants
Defendants
HEARD: January 11-15, 18-20, 2021.
REASONS FOR JUDGMENT
LEMAY J
[1] The Plaintiff, Przemyslaw Bobel has brought this action against the Defendants alleging malicious prosecution, false imprisonment, negligence and nervous shock. The Defendant Edyta Humecka was in a relationship with the Plaintiff for several years from 2011 to 2015. The Defendant Raymond Patten is Ms. Humecka’s current partner.
[2] The claims arise out of an incident that took place in the late evening hours of September 26th, 2015 and the early morning hours of September 27th, 2015. The parties agree that the romantic relationship between Ms. Humecka and the Plaintiff ended by around this time. There is evidence that suggested that the romantic relationship was over (except for one brief interlude) by early May of 2015.
[3] Ms. Humecka called police as a result of the events on September 26th – 27th, 2015. Cst. Roger Lee Hoy of the Peel Police ultimately made a decision to arrest Mr. Bobel and charge him with forcible confinement as a result of the information that he had obtained from Ms. Humecka and the interview he conducted with Mr. Bobel. This charge was subsequently dropped.
[4] Mr. Bobel has now brought this action against both Defendants. He is seeking damages, including punitive damages and loss of income as a result of these alleged torts. Mr. Bobel is also seeking a payment of $5,000.00 from when Ms. Humecka sold her condominium (which Mr. Bobel owned 1% of) as well as the return of a television that he gave Ms. Humecka.
[5] The Defendants argue that the evidence does not support the claims that Mr. Bobel is advancing in this case, and that the action should be dismissed. In the alternative, the Defendants argue that the damages that Mr. Bobel is seeking are too remote even if the Defendants committed a tort against Mr. Bobel.
[6] For the reasons that follow, Mr. Bobel’s claims are all dismissed. Neither of the Defendants engaged in any tortious conduct against Mr. Bobel. In any event, his pecuniary damages claims are too remote to be sustained even if the Defendants had engaged in tortious conduct.
The Evidence
[7] The parties filed a joint book of documents. In accordance with the decision in Girao v. Cunningham 2020 ONCA 260, the parties answered a series of questions about the use of that evidence. Those answers were recorded and included in a document marked as Exhibit “A”.
[8] The parties agree on the authenticity of most of the documents and other information but did not agree that the documents were before me for the truth of their contents. However, this was an electronic trial conducted remotely. As a result, we marked the entirety of the joint book of documents as a numbered exhibit. Then, as testimony was provided about each document or video/audiotape, I noted that each document was part of the record that I would consider and confirmed this fact for the parties as we went through the evidence.
[9] As part of the book of documents, there were a series of videotapes and audiotapes. These all appeared as links in the joint book of documents. However, for ease of reference, I have had a USB key prepared and marked with the video and audiotapes. The joint book of documents is also on a USB. The links to all of these documents are also in the electronic document book that was filed with the Court office. However, to ensure that these documents are preserved and available, I have taken these extra steps.
[10] In addition to the joint book of documents, I received documentation from Mr. Bobel that was not included in the joint book of documents. These documents were marked as separate exhibits as Mr. Bobel testified about these documents and/or put them to other witnesses who could identify them.
[11] I also heard testimony from all three of the parties, as well as Mr. Bobel’s brother, his cousin and one of his friends. I also heard testimony from some of the officers who arrested Mr. Bobel on September 29th, 2015 and some officers who were involved in another incident between the parties on March 1st – 2nd, 2016.
[12] Finally, the parties provided me with an Agreed Statement of Fact (“ASF”), which was also marked as a numbered Exhibit. I have taken the ASF into account in my factual findings. However, it covers numerous topics, so I have integrated parts of the ASF into my factual findings at the appropriate points.
Preliminary Matters
[13] At the outset of trial, the following preliminary matters were addressed:
a) Whether certain subpoenas should be quashed or otherwise not executed.
b) What should be done about the fact that Ms. Humecka’s cousin, Ms. Areta Chodek (Rusyn) had not been served with a subpoena in spite of Mr. Bobel’s efforts to summons her to trial.
c) Whether documents prepared by Mr. Patten’s ex-wife, Ms. Casey Ferguson, should be read into the record.
[14] The issues in dispute between the parties were also canvassed as part of my review of the preliminary matters on the first day of hearing and informed my rulings on these three questions. I will now briefly set out those rulings, and my reasons for them.
a) Whether Certain Subpoenas Should Be Quashed
[15] Mr. Bobel served eight summonses upon various employees of Peel Police, including a civilian employee and one of Peel Police’s in-house legal counsel. Counsel for the Peel Police sought to quash all of these summonses except for the one for Officer Roger Lee Hoy. After discussion with Mr. Bobel and counsel for the Peel Police, I determined that only four of these summonses should be allowed to stand.
[16] The four summonses I quashed, and my reasons for quashing them, were as follows:
a) Officer Macej Necka. Mr. Bobel started his summary of this witness’s proposed evidence by saying “It is not clear who this is.” Cst. Necka may have been involved in the arrest of Mr. Bobel on September 29th, 2015, but it is not clear what role he actually played in the arrest. He was also not involved at all in the interview of Mr. Bobel. As a result, I was of the view that his evidence was not materially relevant to the issues in the litigation.
b) An individual identified as Officer Thompson. Mr. Bobel did not know who this officer was. Counsel for the Peel Police identified her as a civilian employee who had inputted information relating to this case into the records system. She had no contact with Mr. Bobel. As a result, I was of the view that her evidence was not materially relevant.
c) Officer Li, who apparently spoke to Mr. Patten about his section 810 filing. There was no explanation as to how his evidence would assist me in resolving the issues in this case, and his involvement in the case was quite peripheral. Mr. Bobel did not contest this view of the relevance (or lack thereof) of Officer Li’s evidence. As a result, I was of the view that his evidence was not material.
d) Ms. Jovanna Orabovic, an in-house lawyer with the Peel Police. Mr. Bobel had originally wanted Ms. Orabovic to testify about why there were missing documents and the efforts she made to find those documents. Mr. Bobel withdrew the request for this witness to testify.
[17] In addition to these witnesses, there were other subpoenas that were quashed and/or not proceeded with. Mr. Bobel had wanted to call an Assistant Crown Attorney to describe the handling of Mr. Bobel’s criminal case. The transcripts from the various Court proceedings were available. As a result, evidence from the Assistant Crown Attorney would not have been of assistance, and Mr. Bobel did not pursue this summons.
[18] In addition, Mr. Bobel wanted to call Mr. Russell Alexander, a family law lawyer who had no direct connection to this case. Mr. Bobel wanted to question Mr. Alexander about a posting he had made in respect of this proceeding. Ultimately, Mr. Bobel did not proceed with seeking a ruling on this subpoena.
[19] Finally, Mr. Bobel had wanted to call Mr. Joshua David and Mr. Alexander Boissoneau-Lehner, who are the Defendants’ past and current lawyers. There were two considerable problems with this request. First, much of the evidence that these lawyers would have to offer would be privileged. Second, calling Mr. Boissoneau-Lehner in particular would interfere with the ability of the Defendants to present their case.
[20] The Court of Appeal has made it clear that one party can only call the other party’s counsel as a witness in the rarest of circumstances. Leonard v. Leonard [1999] O.J. No. 2181 (C.A.). On the first day of hearing, I explored with Mr. Bobel the reasons that he wanted to call the Defendants’ counsel. Mr. Bobel was seeking evidence about costs submissions and pleadings amendments. Neither of these issues justifies a departure from the principle that generally opposing counsel should not be called as a witness.
b) Areta Chodak (Rusyn)
[21] Ms. Chodak is Ms. Humecka’s cousin. Mr. Bobel sought to subpoena her to give evidence about Ms. Humecka’s statement to police in September of 2015. Apparently, Ms. Chodak was in Ms. Humecka’s apartment when that statement was made. Therefore, it is possible that Ms. Chodak would have relevant evidence.
[22] However, Mr. Bobel advised that he had only sent Ms. Chodak a subpoena by mail to the last address he had. Mr. Bobel argued that, because we were under quarantine, he should not have been required to use a process server or a skip tracer to find Ms. Chodak. I disagree. A subpoena requires someone to attend a hearing in person. This hearing was originally scheduled to proceed in-person. Generally, therefore, a subpoena requires personal service. It was incumbent upon Mr. Bobel to take additional steps to find and serve Ms. Chodak or to seek relief from the Court before the trial had actually started. There was no good explanation as to why these steps had not been taken and no guarantee that the summons had come to Ms. Chodak’s attention.
[23] However, Ms. Chodak may have relevant evidence, Mr. Bobel is self-represented and Ms. Chodak is Ms. Humecka’s cousin. As a result, I provided the following directions on the first day of hearing:
a) To the extent that it is available, the Defendants are to provide contact information for Ms. Chodak to the Plaintiff forthwith.
b) The Plaintiff is required to serve Ms. Chodak by personal service. E‑mail service for a subpoena is not, at this point, sufficient.
c) The Plaintiff may call Ms. Chodak at any point during the trial, even if his case has otherwise been completed and the Defendants are giving evidence.
d) The trial will not be adjourned to permit Ms. Chodak to attend at a later date.
[24] This ruling was made to balance the interests of the Plaintiff in having potentially relevant evidence heard against the interests of the Defendants of having this matter disposed of in the time allocated by the Court. It was also designed to take into account the fact that Mr. Bobel is self-represented. Finally, it takes into account my conclusion that Mr. Bobel did not take sufficient steps to serve Ms. Chodak.
[25] On the second day of hearing, Mr. Bobel confirmed that he had received the required information from Defendants’ counsel and that he had determined that he was not going to proceed with serving Ms. Chodak with a summons. As a result, Mr. Bobel confirmed that he was not seeking to call Ms. Chodak as a witness.
c) Documents Prepared by Casey Ferguson
[26] Ms. Casey Ferguson is, I understand, Mr. Patten’s ex-wife. They were involved in matrimonial litigation. Mr. Bobel was originally seeking to call Ms. Ferguson as a witness in this case. He had decided not to call her as a witness, but was seeking to have portions of documents prepared by Ms. Ferguson read into the record.
[27] After some discussion, Mr. Bobel advised me that the documents were briefs and pleadings. As a result, there are three significant problems with this evidence. First, there is no opportunity to cross-examine Ms. Ferguson on the evidence if she is not called as a witness. As a result, permitting this evidence to be led would be prejudicial to the Defendants. This is particularly true since some of this evidence might very well be in the form of unsworn statements.
[28] Second, some of this evidence might be privileged. In particular, if these documents were from case conferences, then there would be an expectation that these briefs were covered by settlement privilege. The privilege of actual settlement discussions belongs to both Mr. Patten and Ms. Ferguson. That privilege cannot be waived by Ms. Ferguson alone.
[29] Third, it is not at all clear how the evidence from Ms. Ferguson would be relevant in any event. Mr. Bobel argued that the briefs would demonstrate that Mr. Patten was aware of how the police manage domestic violence in Ontario. The connection between Mr. Patten’s matrimonial litigation and this case is tenuous at best. It would certainly require viva voce evidence to explain the connection more fully.
[30] For all of the foregoing reasons, I ruled that I was not prepared to have documents prepared by (or on behalf of) Ms. Ferguson read into evidence as part of this case.
Credibility and Reliability
[31] Credibility and reliability are related concepts. Credibility is the question of whether the witness is being truthful. Reliability is the question of whether, even if the witness is attempting to be truthful, their memory of the events they are testifying about is accurate. Given that the primary disputes in this case are factual, I will set out my general views about the credibility and reliability of the witnesses at this point.
[32] In terms of Mr. Bobel, I am not persuaded that his evidence is either credible or reliable for a number of reasons, including the following:
a) Mr. Bobel changed his story about a critical event in this case, being his memory of the night of September 26 – 27, 2015. When he gave his statement to Officer Lee Hoy about these events on September 29th, 2015, Mr. Bobel told Officer Lee Hoy that he did not remember much of what happened that night. When he testified before me five years later, Mr. Bobel had a much clearer memory of what had happened that night. I have concerns about Mr. Bobel’s returning memory.
b) Mr. Bobel is very focused on the wrongs that he believes have been done to him by the Defendants. This focus suggests to me that Mr. Bobel’s memories may be of reduced reliability and credibility because he is focusing on the issues that he wants to focus on rather than focusing on what actually happened.
c) As I will discuss in the damages section at the end, Mr. Bobel’s evidence is internally inconsistent. As an example, he argues that the allegedly wrongful arrest caused his mental state to decline precipitously. However, the very limited documentation that was filed, together with the evidence from Mr. Bobel’s relatives and friends, suggests that Mr. Bobel was already emotionally quite distraught before the arrest took place.
[33] As a result, I am of the view that Mr. Bobel’s evidence must be approached with considerable caution, as there are frailties in it. I will set out other reasons why I have generally rejected Mr. Bobel’s evidence as I come to specific issues. Where I have accepted Mr. Bobel’s evidence, I will specifically say so.
[34] Ms. Humecka’s evidence is generally more credible and reliable than Mr. Bobel’s evidence. Mr. Bobel argued that Ms. Humecka hates him, and that this colours her evidence. I accept that Ms. Humecka now hates Mr. Bobel, and that she was unhappy with his behavior. For example, Ms. Humecka referred to the trespass notice that Mr. Bobel issued against Mr. Patten and sent to her by e-mail in February of 2016 as being “a piece of paper from a crazy ex-boyfriend”. However, Ms. Humecka was quite clear in her dislike of Mr. Bobel, and was generally able to separate that dislike from the facts.
[35] Finally, there is Mr. Patten’s evidence. Mr. Patten provided his evidence in a dispassionate and analytical manner. He was clear that he was “terrible” with dates, and did not remember them without prompting from the documents. Other than that shortcoming, Mr. Patten’s evidence was clear, fair-minded, and consistent both internally and with the documents that had been filed. I generally accept Mr. Patten’s evidence. I acknowledge that Mr. Patten did not have a high regard for Mr. Bobel. However, that did not affect the quality of Mr. Patten’s evidence.
[36] In addition to the three principals, I heard evidence from Mr. Bobel’s friends and relatives. I found their evidence to be generally credible, and I found that they were prepared to freely acknowledge both their friendship with Mr. Bobel and their dislike for Ms. Humecka. This willingness to acknowledge both of these facts enhanced their credibility. However, there were frailties in this evidence which I will come to in my analysis.
[37] I also heard evidence from a number of police officers. I will address that evidence as I come to it.
Background Facts
a) The Parties
[38] The parties were all born in 1984. Mr. Bobel and Ms. Humecka attended Ryerson University at the same time, and they met there. They both graduated from Ryerson in 2007. Mr. Bobel obtained a degree in Electrical Engineering. Mr. Bobel also completed an MBA at some point in 2015.
[39] Mr. Patten first met Ms. Humecka in 2010 when he was visiting his sister, Christine Patten, in China. Mr. Patten may have seen Ms. Humecka in 2013 at his “Stag and Doe” prior to his marriage to Ms. Ferguson, but he did not interact with Ms. Humecka again until 2015. He and Ms. Humecka started a relationship sometime in or after May of 2015.
[40] Mr. Bobel and Ms. Humecka owned a condominium at 1306-1 Elm Drive in Mississauga. That property was originally purchased by Ms. Humecka, and she owned a 99% interest in the property. Mr. Bobel owned a 1% interest in the property. Mr. Bobel paid nothing for this interest, and did not contribute to the carrying costs of the condominium other than when he lived there. Mr. Bobel held this 1% interest in order to assist Ms. Humecka with the purchase of the condo.
[41] Ms. Humecka and Mr. Bobel only lived together in this property between June and September of 2014, and then for the month of September of 2015. The rest of the time, Mr. Bobel either lived in his current house or was away in France studying.
[42] The Elm Drive property was ultimately sold in March of 2016, and Mr. Bobel was paid 1% of the proceeds, which amounted to $489.84. Mr. Bobel provided evidence that he had an agreement with Ms. Humecka that he would receive $5,000.00 from the proceeds of the sale of the home. I will return to that issue below.
b) The Relationship Between Mr. Bobel and Ms. Humecka
[43] Mr. Bobel and Ms. Humecka were involved in a romantic relationship, beginning in about September of 2011. The relationship had become turbulent by May of 2015, when Mr. Bobel returned to Canada after completing his MBA. Although the relationship was mostly over by early May of 2015, Ms. Humecka continued to have unresolved feelings for Mr. Bobel, and the parties continued to communicate with each other regularly.
[44] The romantic part of the relationship between Mr. Bobel and Ms. Humecka had clearly ended for the final time at the end of September 2015, although they continued to have contact with each other well into 2016.
[45] Ms. Humecka was also involved in a relationship of some description with Mr. Patten. That relationship started in or after May of 2015, and was on and off over the summer. By the end of 2015, Ms. Humecka and Mr. Patten were in a relationship, and they were living together by 2016. They are currently married.
[46] As Mr. Bobel described it in his evidence, the relationship between himself and Ms. Humecka was complicated. Those complications were the cause of some specific incidents of conflict between the parties, and I turn to those issues now.
c) Mr. Bobel’s Communications with Mr. Patten in June of 2015
[47] Prior to completing his M.B.A., Mr. Bobel had worked for Telus. As a result, he had provided Ms. Humecka with a cell phone as part of his plan. Mr. Bobel had access to the cell phone records and discovered that Ms. Humecka was in regular contact with Mr. Patten.
[48] On the evening of June 19th, 2015, Mr. Bobel called Mr. Patten on several occasions. Mr. Bobel also left three voice mail messages for Mr. Patten, in which Mr. Bobel threatened to “knock [Mr. Patten] the fuck out” because Mr. Patten was having intimate relations with “Mr. Bobel’s girl”.
[49] Mr. Bobel also sent a series of text messages that same evening. The following excerpts are illustrative of the overall content of these messages:
Jun 19, 2015 8:07:18 PM
Hey bro be honest did u fuck my girl Edyta?
Jun 19, 2015 8:13:06 P.M.
Bro if I value ur piece of whit life
June 19, 2015 8:13:17 p.m.
U better call the cops or I will fuck u up.
Jun 19 2015 8:13:24 p.m.
Stay the fuck away from my girl and my life
[50] There were also text messages sent that evening telling Mr. Patten to “be a man” and answer his phone. Mr. Patten did not respond to either the voice mail messages or the text messages. The text messages continued the next day.
[51] It is clear from these text messages that Mr. Bobel was not happy that Mr. Patten was involved with Ms. Humecka, and it was clear that Mr. Bobel viewed Ms. Humecka as “his” girl. Mr. Bobel wanted Mr. Patten to stay away from Ms. Humecka. This brings me to the next incident between the parties.
d) The June 22nd, 2015 Door Incident
[52] At around 11:00 p.m. on June 22nd, 2015, Mr. Bobel attended at the condominium. He had not been invited. Mr. Bobel testified that he had been asked to visit the condominium by Ms. Humecka’s mother. Even if that evidence were true, it does not change the fact that Mr. Bobel had not been invited by Ms. Humecka and he was visiting her apartment at a very late hour. At this point, Ms. Humecka and Mr. Patten were in bed either going to sleep or already asleep.
[53] The parties were able to agree on some of the facts in relation to this incident, as follows:
a) Mr. Bobel showed up at the Property and proceeded to knock on the door to the Property requesting to be let into the Property.
b) Ms. Humecka was in the Property with Mr. Patten at the time.
c) Mr. Bobel advised he would break down the door if he was not let into the Property.
d) Ms. Humecka called the Property’s security.
e) Mr. Bobel forced the Property’s locked door open, causing damage to the door.
[54] In addition, I was provided with photographs of the damaged door. It was splintered from about the peephole down past where the lock was. From the photograph, the damage appeared to be relatively significant From this photo and the description of how Mr. Bobel was forcefully hitting the door from the outside, I infer that the force Mr. Bobel used to break down the door was significant and that it would have appeared to be quite significant to Ms. Humecka and Mr. Patten.
[55] I specifically reject Mr. Bobel’s evidence that the door was relatively easy to force open for three reasons. First, it is not supported by the photograph, which is objective and contemporaneous evidence. Second, Ms. Humecka and Mr. Patten have provided different evidence that I accept as it fits with the photographic evidence, and the fact that security was called. Third, in a voice mail message that Mr. Bobel left for Ms. Humecka, Mr. Bobel told her, among other things, that he would break the door down if he was not let in. It is clear from this message that Mr. Bobel was insistent on talking to Ms. Humecka that evening.
[56] The parties also do not agree on what happened when Mr. Bobel entered the condominium unit. Again, I reject Mr. Bobel’s evidence on this point. As I have noted, his story on this evening already significantly underemphasized the amount of force he used to get into the condominium. As a result, I infer that Mr. Bobel was prepared to continue using force to get his way once he got into the unit.
[57] Mr. Bobel entered the condominium, pushed Ms. Humecka out of the way and lunged towards Mr. Patten. Mr. Bobel acknowledges grabbing Mr. Patten’s shirt. Mr. Bobel claims that he did not punch Mr. Patten. Mr. Patten claims that he was punched, but that it was not a full force punch. Given Mr. Bobel’s use of force to enter the condominium and his previous threats to punch Mr. Patten out (see paragraph 48), I find that Mr. Bobel did punch Mr. Patten and that Ms. Humecka had to pull Mr. Bobel off of Mr. Patten. Mr. Bobel acknowledged that the stove got broken during this interaction.
[58] After that, Mr. Bobel calmed down. He then talked to both Ms. Humecka and to Mr. Patten. Mr. Bobel made it clear that he was not prepared to leave the condominium until and unless Mr. Patten left the condominium. Mr. Patten, wanting to de-escalate the situation, left the condominium as did Mr. Bobel. However, Mr. Bobel returned to the condo later that same evening.
[59] At the end of October, 2015, Mr. Bobel paid Ms. Humecka $1,700.00 on account of the broken door.
e) Events Between June 22, 2015 and the end of August, 2015
[60] During the time between June 22nd, 2015 and the end of August, 2015, Mr. Bobel obtained substantial information about Mr. Patten. Mr. Bobel also attempted to initiate contact with Ms. Ferguson, although she did not immediately reply to Mr. Bobel’s inquiries.
[61] During the summer of 2015, Mr. Patten was living with his mother. In addition, Ms. Christina Patten, Mr. Patten’s sister, was a friend of Ms. Humecka’s. As a result, Mr. Bobel had been to Mr. Patten’s mother’s house on at least one occasion while he was dating Ms. Humecka. As a result, Mr. Bobel knew where Mr. Patten lived.
[62] One evening in early July 2015, Mr. Patten saw a Chevy Cavalier outside of his mother’s house, which is on a short cul-de-sac. Mr. Patten approached the car and determined that Mr. Bobel was inside the car. Mr. Patten motioned to Mr. Bobel not to get out of the car. However, Mr. Bobel got out of the car and the two of them had a discussion.
[63] During this conversation, Mr. Bobel told Mr. Patten that things would not work out between Mr. Patten and Ms. Humecka. Mr. Bobel also told Mr. Patten that he wanted Mr. Patten to step out of Ms. Humecka’s life so that Mr. Bobel could rekindle his relationship with Ms. Humecka. Mr. Bobel also told Mr. Patten that Ms. Humecka would not want to be a step-mother to his children.
[64] After this conversation, Mr. Patten testified that, on several occasions, he saw a Chevy Cavalier driving very slowly past the cul-de-sac where his mother’s house was. Mr. Patten also testified that he saw this same vehicle driving slowly through the parking lot at Ms. Humecka’s condominium. When pressed on cross-examination, Mr. Patten pointed out that this Chevy Cavalier was an older model and was less common at the time of the incidents.
[65] As a result of this incident, Mr. Patten made a complaint to the police about Mr. Bobel on August 25th, 2015. No charges were forthcoming as a result of this complaint. On August 27th, 2015, Mr. Patten sought a peace bond against Mr. Bobel.
[66] The peace bond process went through the Courts and was delayed as a result of disclosure issues. Ultimately, in early 2016 Mr. Patten acceded to Ms. Humecka’s request that he not proceed with the peace bond. Mr. Patten failed to appear at the last Court appearance and his application was dismissed.
[67] In addition, during the course of the summer, Mr. Bobel was texting Ms. Humecka on a very regular basis, as well as sending her gifts of flowers and turning up at both her workplace and her apartment from time to time. Mr. Bobel did not really deny that he was engaged in this behavior. Mr. Patten was also aware of Mr. Bobel’s behavior, which was conduct that would also have supported the peace bond application.
f) The September 26th – 27th 2015 Incident
[68] At the end of August, 2015, Ms. Humecka and Mr. Bobel agreed that they would attempt to reconcile their romantic relationship. To that end, Ms. Humecka agreed that Mr. Bobel could live in the condominium with her for the month of September 2015 and they would see how it went.
[69] At about the same time, Ms. Humecka told Mr. Patten that she wanted some space to figure things out. Mr. Patten respected that decision, and did not contact Ms. Humecka until she contacted him first several days into September. The phone records that Mr. Bobel provided support this conclusion.
[70] Very early in September, Ms. Humecka concluded that a relationship with Mr. Bobel would not work out. Indeed, on the evidence I have, it is quite possible that Ms. Humecka had simply agreed to having Mr. Bobel live with her for a month so that she could be done with him and have him out of her life at the end of the month. I do not have to decide that question.
[71] In any event, on the afternoon of September 26th, 2015, while they were out walking Ms. Humecka’s dog, Ms. Humecka told Mr. Bobel that she wanted him to move out. Ms. Humecka also told Mr. Bobel that she was going to go up north and visit Mr. Patten’s sister Christina at her trailer.
[72] Mr. Bobel was not happy with this decision, and asked Ms. Humecka if she had been in contact with Mr. Patten. Mr. Bobel then checked Ms. Humecka’s cell phone records and determined that there had been significant contact between the two of them for at least part of September. There was then an incident in the evening of September 26th – 27th, 2015.
[73] The parties were able to agree on some facts relating to this incident, as follows:
a) On September 26, 2015, prior to attending work at Union Social Eatery, Ms. Humecka advised Mr. Bobel that she had decided that she would like him to move out of the Property at the end of the month.
b) During the evening of September 26, 2015, Mr. Bobel was at the Property with three of his cousins. They were drinking.
c) Ms. Humecka returned to the Property during the evening of September 26, 2015.
d) Mr. Bobel left the Property with his cousins to attend a bar. Mr. Bobel returned to the Property during the early morning of September 27, 2015.
e) Subsequent to Mr. Bobel’s return to the Property, Ms. Humecka left the Property in the early morning of September 27th, 2015.
f) Ms. Humecka had her phone on her person after she left the Property in the early morning of September 27th, 2015.
g) While she was away from the Property, Ms. Humecka called her cousin Areta Chodak (“Chodak”) at approximately 3:41 a.m.
h) Ms. Humecka returned to the Property after her call with Ms. Chodak.
i) Ms. Humecka and Mr. Bobel both went to sleep, in the same bed, at the Property at some point after Ms. Humecka’s return to the Property in the early morning of September 27th, 2015.
j) Ms. Humecka left the Property in the morning of September 27th, 2015.
[74] At this point, I will set out a more detailed version of the events of that evening. Ms. Humecka went to work in the late afternoon. Mr. Bobel, in the meantime, met up with his cousin Tomas Krzywosz, Mr. Krzywosz’s sister and her husband. Mr. Krzywosz was the only one who testified. The four of them went to a Polish eatery in Etobicoke, where Mr. Bobel consumed significant amounts of alcohol.
[75] The four of them then purchased some spirits and went back to Ms. Humecka’s condominium, where they continued to drink.
[76] Ms. Humecka returned home sometime near midnight. Ms. Humecka was not clear on the time. Mr. Bobel testified that the time could be determined from the text messages and other documents as being sometime after midnight. Having reviewed those text messages, I accept Mr. Bobel’s evidence on this point.
[77] As I have noted at paragraph 32(a), I have concerns about Mr. Bobel’s evidence about this night more generally. He gave a statement to the police less than a week after the fact in which he could not remember any of the details of that evening. However, at trial five years later, he provided a detailed recitation of the facts. Mr. Bobel’s improving memory is of concern to me.
[78] However, that is not the only concern I have with Mr. Bobel’s testimony about these events. My other concerns include:
a) Mr. Bobel consumed a significant amount of alcohol on the evening in question. It is, therefore, not unreasonable to infer that his memory was affected by that alcohol consumption.
b) Mr. Bobel’s conduct throughout the summer of 2015 suggests that he was trying to control Ms. Humecka and prevent her from seeing Mr. Patten. When Ms. Humecka announced that she was not interested in a relationship with Mr. Bobel and was going to visit Mr. Patten’s sister up north, it would not be a surprise if Mr. Bobel had a significantly negative reaction. From this, I infer that Mr. Bobel would not have wanted to let Ms. Humecka leave and go to visit Ms. Patten.
c) The fact that Mr. Bobel understated the force he used with respect to the June 22nd, 2015 incident also suggests that he might have understated the force he used and/or the conduct that he engaged in with respect to this incident.
d) Mr. Bobel’s decision to photograph Ms. Humecka asleep the next morning suggests that he might have known that his conduct the previous night had been problematic.
e) Mr. Bobel’s evidence about whether he knew that Ms. Humecka was going to go to the police was also (as discussed below at para 96) untrue. Given my findings on that issue, it is likely that Mr. Bobel’s evidence on what happened on this evening understated both his responsibility and the level of his misconduct on that evening.
[79] I find that Mr. Bobel’s current recollection of the events of September 26th – 27th are based on his review of cell phone and other records and on what evidence would portray him in the best light. To put it more clearly, Mr. Bobel’s memories of that evening are not based in fact. They are based in what would help him with his case and what he believes would be consistent with the documents.
[80] This brings me to Ms. Humecka’s evidence about this incident. It also has a few problems, although substantially fewer than Mr. Bobel’s evidence. The key problem, which I will address below (at para. 99), is that Ms. Humecka did not provide Officer Lee Hoy with a complete description of what happened this evening. However, as I will explain below, this problem is not nearly as significant a concern once the whole interview with Officer Lee Hoy is considered.
[81] As a result, I prefer Ms. Humecka’s description of what happened during this incident. I will now set out my factual findings in this regard.
[82] When Ms. Humecka returned, she and Mr. Bobel got into an argument. This argument started immediately after Ms. Humecka got back to the property. When Ms. Humecka came into the condo, Mr. Bobel confronted her. Ms. Humecka attempted to avoid Mr. Bobel as she moved around the condo but he continued to confront her and be physically aggressive.
[83] Mr. Bobel wanted Ms. Humecka to leave the condo that evening, and asked her to leave. However, he also impeded her from leaving by hiding some cream that she needed to treat a vaginal condition. During the course of this argument, Ms. Humecka was asking (in Polish) for help from Mr. Bobel’s relatives.
[84] Eventually, Mr. Bobel’s relatives persuaded him to leave the condominium and go to a bar. Mr. Bobel says that they went to the Bier Market. I find that the decision to leave was made in part because Mr. Bobel’s relatives were uncomfortable with his conduct. When his relatives left, Ms. Humecka asked them to make sure that Mr. Bobel did not return to the condo.
[85] After Mr. Bobel departed, Ms. Humecka was attempting to gather things together to leave. However, she could not find the cream that she needed for her medical treatments. On her evidence, Mr. Bobel returned shortly after he had left. Ms. Humecka testified that it was approximately twenty minutes later that Mr. Bobel returned. On the totality of the evidence, I conclude that it was longer than Ms. Humecka testified, but shorter than Mr. Bobel testified.
[86] In that regard, I note that, given the lateness of the hour, it was unlikely that Mr. Bobel and his relatives would have been able to linger for a long period of time in a bar. As a result, it is likely that Mr. Bobel returned to the condo less than an hour after he had departed.
[87] After he returned, Mr. Bobel continued the argument with Ms. Humecka. Ms. Humecka testified that Mr. Bobel taunted her with the various things that she needed to leave the condo for the night. I accept that evidence, as it fits with the controlling manner in which Mr. Bobel had been behaving towards Ms. Humecka all summer.
[88] Ms. Humecka testified that she had left her keys on either the kitchen island or on a table. Mr. Bobel confronted her with the inconsistencies in this evidence. In my view, this is not a significant inconsistency. Both locations are on Ms. Humecka’s path into the condo as seen from the photos of the condo, and it would be natural for her to leave the keys in either place.
[89] Ms. Humecka testified that she could not find her keys that evening, and that Mr. Bobel had taken them. I accept this evidence, and conclude that Mr. Bobel had taken Ms. Humecka’s keys to prevent her from leaving to go and visit Christina Patten. Ms. Humecka was able to leave the condo, and did so with her dog and her cell phone around 3:30 a.m. She did not have her keys.
[90] While she was outside, Ms. Humecka called her cousin Areta Chodak. Ms. Chodak had small children at the time, and was unable to come and assist Ms. Humecka. In cross-examination, Mr. Bobel suggested that Ms. Humecka could have called another friend of hers who lived in the building if she was afraid. I would not give effect to this suggestion. It is not reasonable to expect Ms. Humecka to call all of her friends to try and deal with this problem, particularly in the middle of the night.
[91] Ms. Humecka went back upstairs. She had to get security to let her back into the building because she did not have her keys. The argument with Mr. Bobel continued, and they eventually went to sleep.
[92] The next morning, Ms. Humecka was able to leave the condo. She went up north to visit Ms. Christina Patten, and returned home on the evening of September 28th, 2015.
g) The Charges and Their Withdrawal
[93] On the evening of September 28th, 2015, Ms. Humecka returned to the condo. Mr. Bobel arrived at the property shortly after Ms. Humecka, obstensibly to retrieve some belongings. There is some suggestion that Mr. Bobel was monitoring Ms. Humecka’s movements through her cell phone and computer use. I do not have sufficient evidence before me to resolve that issue either way.
[94] Mr. Bobel alleges that, in this conversation, he told Ms. Humecka that he would be going to the police about Mr. Patten and his alleged cocaine habit. Mr. Bobel had surreptitiously taken a photograph from Ms. Humecka’s computer that apparently showed Mr. Patten using cocaine. Having reviewed that photograph, it is not as clear to me as it was to Mr. Bobel that Mr. Patten was using cocaine in this photograph and I make no finding in that regard. I acknowledge Ms. Humecka’s uncontradicted testimony that all three parties had previously used cocaine, but that it was Mr. Bobel who used it most often.
[95] In the course of their conversation on the evening of September 28th, 2015, Ms. Humecka repeatedly asked for the keys to her condo back. Mr. Bobel refused to provide the keys back, and told Ms. Humecka that they had an agreement that he would be living with her until October 1st, 2015.
[96] Ms. Humecka testified that she told Mr. Bobel that, if she did not get the keys back, she would contact the police. Mr. Bobel disputes this evidence. However, in a subsequent text message Mr. Bobel stated that he knew that Ms. Humecka was going to the police because he “could see it in her eyes”. It is far more likely that Mr. Bobel knew that Ms. Humecka was going to the police because he had heard it in Ms. Humecka’s words.
[97] Mr. Bobel testified that he had told Ms. Humecka that he was going to the courthouse on the morning of September 29th, 2015 in order to see a Justice of the Peace about his concerns respecting Mr. Patten. Mr. Bobel did go to the courthouse on the morning of September 29th, 2015 to try and lay a complaint against Mr. Patten and prevent him from having access to Ms. Humecka’s condominium.
[98] However, I conclude that it is unlikely that Mr. Bobel would have told Ms. Humecka that this was his intent. Mr. Bobel was engaged in this complaint against Mr. Patten for two reasons. First, Mr. Bobel wanted to prevent Ms. Humecka from having anything to do with Mr. Patten, and a criminal complaint would assist him in this goal. Second, Mr. Bobel was well aware that his conduct on the night of September 26th – 27th was conduct that might attract a criminal complaint. Indeed, he had been warned by Ms. Humecka that, if he did not return the keys to the condo, she would go to the police. As a result, I find that Mr. Bobel engaged in a pre-emptive strike by going to the courthouse on the morning of September 29th, 2015. It is unlikely he would have warned Ms. Humecka that he was going to engage in this pre-emptive strike.
[99] In any event, after Mr. Bobel left the condo on the night of September 28th, 2015, Ms. Humecka called Mr. Patten and asked him to be moral support while she went to the police. Ms. Humecka went to the police to make a report, but no one was available. As a result, she went to Mr. Patten’s house and waited for the police to call.
[100] It was not until the next morning that the police were available to see Ms. Humecka. They went to visit her at her condo just after 9:00 a.m. Ms. Humecka testified that she told Officer Lee-Hoy that she wanted her keys back. Officer Lee-Hoy interviewed Ms. Humecka and probed for additional information. Based on the description that Officer Lee-Hoy received, he determined that he had reasonable and probable grounds to believe that Mr. Bobel had forcibly confined Ms. Humecka. As a result, Officer Lee-Hoy advised Ms. Humecka that Mr. Bobel would be charged. Ms. Humecka asked Officer Lee-Hoy not to charge Mr. Bobel, and then became uncooperative with the police when Officer Lee-Hoy said that this was not her decision.
[101] At approximately 10:30 a.m. on September 29th, 2015, Mr. Bobel was charged with forcible confinement contrary to section 279(2) of the Criminal Code of Canada. He was held overnight and was granted bail in bail court the next day. The evidence from Ms. Humecka and from Mr. Luke Bobel (Mr. Bobel’s brother) made it clear that Ms. Humecka made considerable efforts to assist the Bobels in trying to obtain information about Mr. Bobel.
[102] Very shortly after he was released from jail, Mr. Bobel made contact with Ms. Humecka, even though his bail conditions did not permit him to contact her. Mr. Bobel asked Ms. Humecka to go to a lawyer and swear an Affidavit so his record could be cleared. Ms. Humecka agreed to do this. It was clear from Ms. Humecka’s testimony that she had significant feelings of guilt because Mr. Bobel had been charged and held in prison, if only overnight.
[103] On November 3rd, 2015, Ms. Humecka swore an Affidavit. This Affidavit stated, in part:
Roughly half an hour later, around 1:15 a.m. Bobel and his cousins left the residence to go to nearby [sic] club. Bobel returned alone roughly an hour later. Bobel still seemed angry with me and kept telling me to leave the residence as he did not want to see me.
At some point during that time, likely around 2:30 a.m., Bobel took my keys off the kitchen counter. I believe he did this so I would feel compelled to talk to him rather leave [sic]. I found this strange as he had just been telling me to leave, but when I began to leave he took my keys and urged that we talk. Again, I did not feel “forced” to talk to him or stay in the residence, I could have left at any time had I so desired.
After talking to Bobel for roughly an 45 minutes [sic], I grew frustrated as he was intoxicated and making little sense. For this reason, I left the residence to take my dog for a walk. By this time, I believe that Bobel had returned my keys to me.
When I returned from walking my dog, Bobel was still acting rudely, though nothing of any real significance ensued and we went to sleep….
[104] In her testimony before me, Ms. Humecka acknowledged that significant portions of this Affidavit were not true. She testified that she had sworn this Affidavit to help out someone who she viewed as a friend. I accept Ms. Humecka’s evidence in this regard.
[105] In any event, the Affidavit served its purpose. On November 24th, 2015, the Assistant Crown Attorney withdrew the charges on the basis that it was not in the public interest to proceed with the charges and that there was no reasonable prospect of conviction. A significant reason for the Crown Attorney’s position was Ms. Humecka’s Affidavit and her position on the charges.
h) Subsequent Events
[106] After the charges were dropped, the next significant interaction between Mr. Bobel and Ms. Humecka was in December of 2015. At that time, Mr. Bobel emailed Ms. Humecka a list of items that he believed were his. Ms. Humecka simply returned all of the items on the list, as she wanted Mr. Bobel to stop contacting her. In this action, Mr. Bobel has alleged that there was an agreement that the television he gave to Ms. Humecka would be returned to him. However, that television was not on the list of items Mr. Bobel submitted to Ms. Humecka in December of 2015. I will return to this issue below.
[107] Early in 2016, Ms. Humecka decided to sell the condominium because of her view that Mr. Bobel owned 1% of it, and was using that ownership interest as a way to maintain contact with her. The property was listed for sale.
[108] In February of 2016, Mr. Bobel e-mailed Ms. Humecka a “trespass notice” in which Mr. Bobel stated that he was issuing a notice to Mr. Patten under the Trespass to Property Act, and that the Peel Police would be called if Mr. Patten entered the property. The basis for this trespass notice was alleged drug use.
[109] In the evening of March 1st, 2016, Mr. Patten was assisting Ms. Humecka in cleaning out her storage locker in preparation for the sale of the condominium. The two of them rode upstairs in the elevator and saw Mr. Bobel waiting outside of the unit. They immediately went back down in the elevator, but Mr. Bobel joined them. A verbal altercation ensued.
[110] The altercation took place next to the security desk. During the course of the altercation, security asked Ms. Humecka if they should call the police. She said no. Instead, she telephoned Mr. Bobel’s brother, Luke Bobel, and told him to come and get Mr. Bobel or the police would be called. Luke Bobel came and got Mr. Bobel and took him away.
[111] In the meantime, security had telephoned police, who attended at the condominium after Mr. Bobel left. I heard testimony from both of the officers who attended, but that testimony was of limited value as neither officer had an independent recollection of the events. They relied on their notes.
[112] All I can conclude from the evidence I heard is that Ms. Humecka and Mr. Patten did not allege any physical assault by Mr. Bobel and the police did not have any reason to believe that a crime had been committed that evening.
[113] The condominium was eventually sold. Mr. Bobel received 1% of the proceeds from the condominium. Mr. Bobel alleges that there was an agreement that Ms. Humecka would pay him $5,000.00 as a result of the sale of the condo. I will return to that issue below.
[114] The only other interaction between the parties was on March 20th, 2017, when Mr. Bobel and his cousin arrived at the Defendants’ house in Georgetown and left a legal document for them. There was no personal interaction between the parties on this occasion. After that point, this litigation began.
Issues
[115] The original Statement of Claim in this case was very broad and covered significant and diverse allegations. It was the subject of a motion to strike the pleadings brought by the Defendants and heard by Fowler Byrne J. Her reasons, set out at 2019 ONSC 1876, struck a number of allegations either with (or without) leave to amend.
[116] Based on that decision, and on the submissions of the parties at the outset of trial, I determined that the following issues were outstanding:
a) Whether the Defendants engaged in the tort of malicious prosecution against Mr. Bobel as a result of the charges on September 29th, 2020.
b) Whether Mr. Bobel suffered nervous shock as a result of the conduct of the Defendants.
c) Whether Mr. Bobel was falsely imprisoned as a result of the conduct of the Defendants.
d) Whether the Defendants were negligent in their conduct towards Mr. Bobel.
e) Whether Ms. Humecka is required to either pay Mr. Bobel $5,000.00 for the sale of the condominium or return the television.
f) Damages.
[117] As will be seen, I have determined that none of these claims can succeed.
Issue #1 – Malicious Prosecution
[118] The conditions that must be met in order to establish a claim for malicious prosecution are set out in many decisions, including Miazga v. Kvello Estate 2009 SCC 51. The four requirements are that the prosecution must have been:
a) Initiated by the Defendant.
b) Terminated in favour of the Plaintiff.
c) Undertaken without reasonable and probable cause.
d) Motivated by malice or by a primary purpose other than carrying the law into effect.
[119] The second factor is not in issue in this case as the Defendants concede it is made out. The remaining three factors are in issue. I will address each in turn.
[120] Before turning to these factors, however, I should also note that the test the Plaintiff must meet to establish malicious prosecution is a high one. Further, the Plaintiff must establish all four elements of the test in order to succeed on this claim. D’Addario v. Smith 2015 ONSC 6652, aff’d 2018 ONCA 163.
a) Initiated by the Defendant
[121] The charges in this case were laid by Officer Lee Hoy. As a result, there are only very narrow circumstances in which a private citizen could be found to be the person initiating the prosecution. Those circumstances were described by Simmons J.A. in Kefeli v. Centennial College of Applied Arts and Technology 2002 45008 (ON CA), 2002 45008 (Ont. C.A.) as follows (paras 24 and 25):
[24] I specifically reject the moving party’s submission that the issue of whether Mr. White and Centennial were responsible for setting the prosecution in motion should have been left for trial. The moving party acknowledges that a claim for malicious prosecution requires that the defendant must have initiated the prosecution or set it in motion, and that, ordinarily, the court will view the police officer who laid the charge as being the person who set the prosecution in motion. However, he also submits, correctly, that the complainant may be treated as the prosecutor in exceptional circumstances, including the following:
▪ the complainant desired and intended that the plaintiff be prosecuted;
▪ 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; and
▪ 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. [3] [3]
[25] In addition, the moving party submits that the courts will consider other circumstances in determining whether a particular defendant set a prosecution in motion, and that the core issue is whether there is any evidence to show that “the defendant was actively instrumental in putting the law in force”. [4] [4] Put another way, the issue is whether the defendant “had caused everything to be done which could be done wrongfully to set the law in motion against the [plaintiff] on a criminal charge”[5] [5] . [emphasis added]
[122] As this passage makes clear, there are circumstances in which the person initiating the prosecution will be found to be someone other than the police officer who actually lays the charges. See Pate Estate v. Galway-Cavendish and Harvey (Township) 2013 ONCA 669 (paras 31 and following) and Pate Estate v. Galway-Cavendish and Harvey (Township) 2011 ONCA 329 (paras 46 and following).
[123] The list of factors set out in Kefeli is not exhaustive. McNeil v. Brewers Retail 2008 ONCA 405 at paras. 47-52. Other factors in which the person initiating the prosecution will be found to be someone other than the police officer include situations where the Defendant knowingly withheld exculpatory information from the police (e.g. Pate Estate), or where the Defendant undermined the independence of the decision making process to lay charges and prosecute. Curley v. Taafe 2019 ONCA 368 at para. 14. I have considered the discussion in these cases as a whole in coming to my conclusions.
[124] In this case, Mr. Bobel argues that there is no discretion for a police officer in Ontario in a case of domestic violence. According to Mr. Bobel, since this was a “he said-she said” situation, that the police had no discretion but to charge him. At first blush, there is some support for that position in the case law. For example, in D’Addario, supra Beaudoin J. discusses (at paras. 25-33) the types of cases in which there will be no discretion for a police officer to lay charges. Those cases can include a sexual assault where there are no other witnesses.
[125] However, the Court of Appeal in D’Addario, supra noted (at para 24-26) that the test to establish that a prosecution has been initiated by an individual is a high one. It is also dependent on the facts of each case.
[126] When the facts of this case are considered, there are a number of problems with Mr. Bobel’s argument. I start with the evidence. Officer Lee Hoy, who laid the charge, confirmed that if he believed that Mr. Bobel had unlawfully confined Ms. Humecka then he had no choice but to lay charges. This evidence suggests that Officer Lee Hoy was conducting an independent weighing of Ms. Humecka’s statement to him.
[127] This brings me to what Officer Lee Hoy believed. His initial information came out of an interview with Ms. Humecka. She was reluctant to provide information in that interview, and only outlined the facts after she had been questioned by Officer Lee Hoy. This fact also suggests that Officer Lee Hoy was conducting an investigation and forming his own views.
[128] Based on what he learned from Ms. Humecka, Officer Lee Hoy decided to charge Mr. Bobel. Ultimately, it was Officer Lee Hoy’s decision, and not Ms. Humecka’s decision. However, Officer Lee Hoy testified that he considered both the information he received from Ms. Humecka and the information he received from Mr. Bobel in the interview in deciding to charge Mr. Bobel. In particular, Officer Lee Hoy was concerned that Mr. Bobel could not remember the events of that evening.
[129] Finally, there is Ms. Humecka’s evidence, which I accept, that she was surprised that Officer Lee Hoy charged Mr. Bobel. I accept that evidence for the following reasons:
a) As I have set out above, I found Ms. Humecka to be a more credible and reliable witness than Mr. Bobel.
b) Ms. Humecka’s evidence that she was surprised that Mr. Bobel was going to be arrested was supported by Officer Lee Hoy’s evidence.
c) Ms. Humecka took steps to try and get the charges against Mr. Bobel dropped. Those charges included, on Officer Lee Hoy’s evidence, a lack of cooperation with the Peel Police. They also included Ms. Humecka’s calls to Luke Bobel the day of the arrest and her willingness to swear an Affidavit that was not truthful in order to assist Mr. Bobel.
[130] As a result, when the test is considered, I am of the view that Ms. Humecka was not the person who initiated the charges in this case. As a result, the claim against her fails.
[131] There is even less evidence that Mr. Patten initiated the charges in this case. The only way that Mr. Patten could have initiated the charges is by counselling Ms. Humecka to move forward with the charges. Having concluded that Ms. Humecka was not the one responsible for laying the charges, it is impossible to conclude that Mr. Patten was responsible for laying the charges.
[132] Mr. Patten had no direct contact with Officer Lee Hoy. Mr. Patten was not present for the incident on September 27th – 28th, 2015. Mr. Patten did not provide a witness statement to the police around these events. As a result, Mr. Patten could not possibly have been involved in bringing these charges against Mr. Bobel.
[133] Mr. Bobel argues that Mr. Patten demonstrated a desire to prosecute Mr. Bobel by filing a peace bond. Regardless of whether that argument might be true, Mr. Patten’s application for a peace bond was both objectively and subjectively justified on the basis of Mr. Bobel’s conduct in the summer of 2015, as described at paragraph 139, infra.
b) Undertaken Without Reasonable and Probable Cause
[134] This element of the test comprises both a subjective element and an objective element. The prosecutor must have a reasonable belief that there is reasonable and probable cause, and that belief must be reasonable. See Miazga v. Kvello Estate 2009 SCC 51 (at para. 58) and Nelles v. Ontario [1989] 2 S.C.R. 170 at 193.
[135] To analyze this part of the test, I must consider what actually happened in Ms. Humecka’s condo on the night of September 26th – 27th, 2015 and put it in the context of the events of that summer. As I have noted above, where there is a dispute between the parties, I prefer the evidence of Ms. Humecka over that of Mr. Bobel.
[136] Ms. Humecka and Mr. Bobel had discussed a parting of the ways earlier in the day. Ms. Humecka then went to work at Union Social Eatery. There is no dispute that Mr. Bobel was in the condominium with his cousins when Ms. Humecka returned from work. There is also no dispute that there was an argument between Ms. Humecka and Mr. Bobel at this time.
[137] The rest of the events of that evening are described above at paras. 173 and following. When I review these events along with the totality of the relationship between Ms. Humecka and Mr. Bobel, I am of the view that Ms. Humecka had reasonable and probable grounds to go to the police on the evening of September 28th, 2015 when she contacted them.
[138] I start by observing that Ms. Humecka testified that she had gone to the police because she did not feel safe with Mr. Bobel having the keys to her condo. While Mr. Bobel testified that he was going to return the keys on October 1st, 2015 as per their agreement, Ms. Humecka asked for them back on September 28th, 2015 and did not get them back. On her evidence, this made her feel subjectively unsafe and, in Ms. Humecka’s mind, justified contacting the police to assist with the return of the keys. This evidence satisfies the subjective element of the test.
[139] This subjective feeling was also objectively supported. In other words, I find that Ms. Humecka had objectively reasonable grounds for viewing Mr. Bobel as a potential threat, and for feeling unsafe if he had unrestricted access to her condo. I reach that conclusion for the following reasons:
a) Mr. Bobel was regularly appearing at Ms. Humecka’s workplace and her condominium uninvited and unannounced.
b) Mr. Bobel was regularly texting Ms. Humecka. I have reviewed the hundreds of pages of text messages that were filed by the parties. Although some of these communications were two-way, by the beginning of August most of the communications were being initiated by Mr. Bobel.
c) Mr. Bobel was researching Mr. Patten and letting Ms. Humecka know what his research showed.
d) Mr. Bobel had visited Mr. Patten and communicated with him in an effort to get Mr. Patten to stop seeing Ms. Humecka.
e) More significantly, Mr. Bobel had threatened Mr. Patten earlier in the summer because of his relationship with Ms. Humecka. In addition, as described at paragraphs 56 and 57 above, Mr. Bobel actually engaged in violence against Mr. Patten and, arguably, Ms. Humecka as well earlier in the summer.
[140] Finally, Mr. Bobel’s conduct on the night of September 26th – 27th, 2015, combined with his refusal to return the keys to Ms. Humecka on the night of September 28th, 2015, would have reasonably left Ms. Humecka with concerns for her safety. As a result, based on Mr. Bobel’s conduct on the night of September 26th-27th, 2015 alone, Ms. Humecka acted reasonably in going to the police. Her conduct is made even more reasonable given the history of Mr. Bobel’s conduct throughout the summer of 2015 which, in Ms. Humecka’s words, was “stalker like”.
[141] For the foregoing reasons, Ms. Humecka had reasonable and probable grounds to go to the police. The action for malicious prosecution also fails on the second branch of the test. This conclusion applies equally to Mr. Patten, as the only way Mr. Patten could have been responsible for the malicious prosecution would be by counselling Ms. Humecka to go to the police. Given that she had reasonable grounds to go to the police, counselling her to do so would also, on the facts of this case, be based on reasonable and probable grounds.
c) Motivated by Malice
[142] Malice is a question of fact. It requires the Court to determine whether someone was motivated by malice, or by a primary purpose other than carrying the law into effect. Pate Estate #1, supra at para.
[143] There is an interesting issue of whether the standard for malice is easier to make out when dealing with charges by a private citizen rather than charges by a police officer or a Crown Prosecutor. I am of the view that a lower test for what is malice is appropriate in a case where the charges are initiated by a private citizen.
[144] I reach this conclusion in light of the discussion in Miazga, supra on the issue of the independent role of the Attorney General. That independent role is something that must be jealously guarded in a democracy and is worthy of higher protection than would attach to a private person bringing a prosecution. In the case of a private person bringing a prosecution, malice can be inferred from the surrounding circumstances. See Miazga, supra at paras. 86-87.
[145] Regardless of which test I use, the test for malice is NOT met in this case. Much of the reasoning supporting my conclusion in this regard is set out in the previous section on the reasonability of Ms. Humecka’s decision to go to the police and I adopt that reasoning here as well. I should address some of Mr. Bobel’s specific arguments.
[146] First, in his written argument on the issue of malice, Mr. Bobel submitted that he “has never demonstrated any violent behaviour toward Humecka.” I reject this statement. Mr. Bobel engaged in violent behaviour towards Ms. Humecka on the evening of June 22nd, 2015 when he broke her door down. Mr. Bobel’s submission that this was not violent behaviour towards Ms. Humecka is, at best, disingenuous. Mr. Bobel threatened to break the door down if Ms. Humecka did not follow his instructions and either let him into the unit or come out and talk to him. When Ms. Humecka did not do either, Mr. Bobel then broke the door down.
[147] In addition, throughout the summer of 2015, Mr. Bobel engaged in behaviour that Ms. Humecka aptly described as “stalker-like”, and that made her nervous. An objective view of Mr. Bobel’s behaviour during the summer of 2015 supports Ms. Humecka’s concerns for the reasons set out at paragraph 139, above.
[148] This brings me to two more of Mr. Bobel’s submissions on this issue. First, Ms. Humecka was quite clear, both in her evidence before me and in her report to Officer Lee Hoy that she simply wanted her keys back because she felt unsafe. Mr. Bobel says that Ms. Humecka’s purpose was a purpose other than to report a crime. That may be true. However, Ms. Humecka was justifiably engaging the police because of a concern for her safety. This argument does not assist Mr. Bobel.
[149] Second, Mr. Bobel argues that because of the parties agreement, he was not required to return the keys until October 1st, 2015. That may very well have been the agreement at the beginning of September. Mr. Bobel may even have been within his rights to try and insist on the letter of that agreement.
[150] However, even if this agreement was enforceable, it should not preclude Ms. Humecka from protecting herself from someone who she reasonably viewed as a threat to her safety. Given Mr. Bobel’s conduct throughout the summer of 2015 combined with the incident on June 22nd, 2015 and the incident on the night of September 26th – 27th, 2015, Ms. Humecka’s decision to go to the police was reasonable.
[151] Third, at paragraph 49 of his written argument, Mr. Bobel states:
- Next, Humecka was angry with the plaintiff. She waited four years for an engagement ring; which was not forthcoming. The allegations were made at a time of turmoil in Humeck’s [sic] life. She had family issues. She was regularly heavily drinking, and engaging in other dangerous behaviours. She also wanted to keep the jointly owned condo to herself while enjoying her new relationship and the positives from her old one.
[152] There are two problems with this passage. First, there is no evidence to support that Ms. Humecka was angry with the plaintiff because she did not get an engagement ring, and most of the other allegations in this passage are not proven either. Second, even if these facts were proven, they do not, on their own, demonstrate malice.
[153] Finally, I should deal with the issue of the fact that Ms. Humecka was able to leave the condominium out of her own free will, but that she told the police that she was unable to leave. Mr. Bobel says that this represents a misrepresentation to the police that resulted in him being charged. I disagree for two reasons.
[154] First, forcible confinement is not time-dependent. The fact that Ms. Humecka was not confined for eight hours does not mean that Mr. Bobel did not confine her. This one fact alone does not make the reporting to the police malicious.
[155] Second, the context of the interview with Officer Lee Hoy must be remembered. Ms. Humecka had simply wanted her keys back. It was Officer Lee Hoy who probed about the incident. Further, the interview was not lengthy. Officer Lee Hoy asked some questions, but he testified in cross-examination that his notes were not clear about when the confinement ended.
[156] Given all of these facts, it cannot be said that Ms. Humecka acted maliciously, and Mr. Bobel’s claim fails this branch of the test as well.
Issue #2 – Nervous Shock
[157] The test for intentional infliction of mental stress was set out by our Court of Appeal in Prinzo v. Baycrest Geriatric Centre (2002) 2002 45005 (ON CA), 60 O.R. (3d) 474. This decision was referenced by Fowler Byrne J. in her discussion of the isse of nervous shock.
[158] Based on my review of the positions of the parties, I asked Mr. Bobel, both in the middle of the trial and at the end of it, whether he was making a claim for intentional infliction of mental stress. Mr. Bobel confirmed that he was not advancing a claim for intentional infliction of mental stress but was, instead, advancing a claim for nervous shock.
[159] In support of his claim for damages for nervous shock, Mr. Bobel references the Supreme Court of Canada’s decisions in Mustapha v. Culligan of Canada Ltd. 2008 SCC 27 and Saadati v. Moorhead 2017 SCC 28.
[160] In the Mustapha decision, Mr. Bobel points to the fact that psychological disturbance can rise to the level of a psychological injury. Mr. Bobel also points to the decision of Saadati as demonstrating that there is no requirement to demonstrate a recognizable psychiatric illness in order to be compensated for mental injury.
[161] Mr. Bobel’s submission on this point is correct, but it is incomplete. In both Saadati and Mustapha, there was underlying negligence on the part of the tortfeasor that gave rise to an entitlement to claim damages for a psychiatric illness. I do not see anything in either decision that would give rise to a free-standing claim for nervous shock in the absence of tortious conduct on the part of a defendant. Indeed, paragraph 2 of Saadati specifically acknowledges that the elements of the cause of action of negligence protect defendants from these claims unless they are warranted.
[162] In this case, for the reasons given elsewhere in this judgment, there is no actionable wrong committed by either of the defendants. Therefore, the claim of nervous shock is dismissed.
Issue #3 – False Imprisonment
[163] Mr. Bobel must prove three elements to establish the tort of false imprisonment:
a) He must have been totally deprived of his liberty;
b) This deprivation must have been against his or her will; and
c) The deprivation of liberty must be caused by the Defendant.
[164] Once these three elements are established, the onus then shifts to the Defendant to justify the detention based on either common law or statute.
[165] In this case, the dispute is over the third element of the test and, if that element is met, then whether the detention is justified based on either common law or statute. The third element of the test is very similar, from both a factual and a legal perspective to the first element of the test for malicious prosecution. That element requires the Plaintiff to demonstrate that the prosecution was initiated by the Defendant or Defendants.
[166] I have set out at paragraphs 121 and following the basis for my conclusions that neither Ms. Humecka nor Mr. Patten initiated the prosecution against him. For the same reasons, I conclude that neither of them were responsible for the deprivation of Mr. Bobel’s liberty. The decision to detain Mr. Bobel was made by Officer Lee Hoy, and was done in accordance with the law. Further, the decision to release Mr. Bobel was made by the presiding Justice of the Peace.
[167] Having determined that neither of the Defendants were responsible for detaining Mr. Bobel, it follows that his claim of false imprisonment must fail.
[168] In any event, however, even if the third branch of the test for false imprisonment was met, the Defendants would have met their burden under the common law to support the imprisonment. As I have noted elsewhere, Ms. Humecka’s decision to go to the police was reasonable, and was reasonably justified on the facts as she knew them.
Issue #4 – Negligence
[169] In her reasons, Fowler Byrne J. stated the following about Mr. Bobel’s claim of negligence, and negligent investigation:
[37] While Bobel has pleaded the essential elements of negligence, he has not pleaded any facts that support these elements. For example, there are no facts alleged that would support the position that the defendants owed a duty of care to Bobel. If there is no duty of care, there is no negligence. This is fatal to his claim. There are no facts alleged that would support his position that the defendants fell below the standard of care of whatever duty they are found to have to Bobel. These are bare allegations with no supporting facts, and are therefore scandalous and shall be struck.
[38] With respect to negligent investigation, neither Bobel nor the defendants have provided me for any legal basis for this cause of action. According to the facts alleged by Bobel, the police arrested Bobel based on a report by Humecka and Patten. There is no allegation that the defendants failed to investigate the matter. There is no allegation against the police that they failed to investigate properly. In fact, in paragraph 15 of the Reply and Defence to Counterclaim, Bobel pleads that the police are not permitted to apply any discretion and must arrest and lay charges.
[170] This pleading has re-surfaced. Mr. Bobel’s argument on negligence is set out at paragraphs 55 and 56 of his written closing argument, which state:
Humecka grossly misrepresented the facts when presenting them to the police on September 29, 2015 with regards to the alleged confinement on September 27, 2015, thus setting the law into motion. She owned Bobel a duty of care not to make false allegations against him. She further falsely alleged she was assaulted on the Statement of Defence which was made public record due to Justice Fowler’s judgement and further perpetuated via Russel Alexander and possibly Zagazeta Garcia.
The defendants conduct did not only materially contribute to the risk of plaintiff’s injury, this conduct is solely responsible for the injury, having withheld material Facts and falsifying the true events of September 27, 2015, while laying the information on September 29, 2015. The plaintiff would not have been arrested but for the information laid by Humecka with Patten acting in a role as an accessory.
[171] As counsel for the Defendants correctly points out, this argument is simply the malicious prosecution argument in a different form.
[172] In essence, Mr. Bobel is asking this Court to impose a duty on a third party (Ms. Humecka) to accurately report facts to the police. No authority for the existence of this proposed duty of care is cited by Mr. Bobel, and I am not aware of any such authority.
[173] The categories of negligence are not closed. However, where a new category of negligence is proposed, the Court considers the test set out in Anns v. Merton London Borough Council [1978] A.C. 768 (H.L. (Eng.)). That two part test requires consideration of the following:
a) Was the harm that occurred the reasonably foreseeable consequence of the Defendants’ act?
b) Are there reasons, notwithstanding the proximity between the parties, why the tort liability should not be recognized?
[174] Mr. Bobel’s proposed claim of negligence does not appear to satisfy either element of the Anns test. On the first branch, it is only the police who could arrest Mr. Bobel. It is not the Defendants who could make that decision. As a result, it is arguable as to whether any harm caused to the Plaintiff in being arrested was a reasonably foreseeable consequence of the Defendant Humecka reporting her concerns to the police. However, it is not necessary to finally decide that question.
[175] On the second branch of the test, it is in the public interest to encourage victims to report criminal acts and cooperate with the police in the investigation of those acts. Imposing a test of negligence upon people who report crimes to the police would have a significant chilling effect on people reporting their concerns to the police, particularly in cases of domestic violence. This type of chilling effect is good reason, under the Anns test, why tort liability should not be recognized.
[176] As noted by Wilton-Siegel J. in Mirra v. Toronto-Dominion Bank [2004] O.J. No. 1804 (S.C.J.) (at paras 48-51), there is a clear public policy against allowing claims of negligence against members of the public as long as mistakes in reporting were honest mistakes. If the mistakes in reporting were not honest mistakes and were instead malicious, then the proper action lies for malicious prosecution and not negligence.
[177] As a result, Mr. Bobel’s claim of negligence is also dismissed.
Issue #5 – Ancillary Claims
[178] Mr. Bobel claims for the payment of $5,000.00 in relation to the sale of the condo, and for the return of a television that was a gift to Ms. Humecka. Both claims are without merit for the reasons that follow.
a) The $5000.00
[179] Mr. Bobel argues that he came to an agreement with Ms. Humecka that she would pay him $5,000.00. In support of this claim, Mr. Bobel points to a series of text messages that were sent on February 29th, 2016 as follows:
Ms. Humecka - Ask him for ur 1 percent
Mr. Bobel - U said 5K
Ms. Humecka - Yeah but ur legally entitled to 1 percent
I’ll send u the difference
Mr. Bobel - Man thats not how it works he can cut a cheque for whatever Anyways I kk take care of it
Eventually lol
Ms. Humecka - Sure u don’t want more?
Maybe 10k?
Or 20?
Mr. Bobel - Give me the whole thing
[180] In addition to this exchange, there was a further text message that came as part of another exchange on the same day where Ms. Humecka said “$5k is enough”.
[181] Mr. Bobel testified that he had an agreement to be paid $5,000.00 in place. However, Mr. Bobel also testified that he came to see Ms. Humecka on March 1st, 2016 in order to get this monetary agreement in place and sign the documents. These two statements appear to be internally inconsistent.
[182] In addition, Ms. Humecka testified that she has no understanding of why Mr. Bobel was seeking $5,000.00 or where he got the idea that the payment of this money had been agreed to. I do not see any basis, either legal or factual, for this alleged agreement in the evidence that Mr. Bobel gave.
[183] I reject Mr. Bobel’s claim with respect to the $5,000.00 for the following reasons:
a) The text messages that Mr. Bobel relies upon to support an agreement are ambiguous at best.
b) Mr. Bobel’s evidence that there was an agreement is contradicted by his evidence that he came to the condo the night of March 1st, 2016 in order to get the agreement in place.
c) There is no legal or factual explanation as to how this agreement came about, why it was entered into or why it was necessary or desirable for Ms. Humecka to enter into this agreement.
b) The Television
[184] Mr. Bobel seeks the return of the Television that he gave to Ms. Humecka when she bought the condo. In support of this claim, Mr. Bobel testified that he had given the television to Ms. Humecka because she could not afford it. In exchange, she gave him a set of sheets for his house, which ended up in her possession. As a result, Mr. Bobel alleges that there was an agreement to return the television to him.
[185] The only basis for this agreement is an exchange of text messages on December 29th, 2015. In reviewing those text messages, it is clear that Ms. Humecka has the television and that she says “u can have it’. However, in that same text message exchange, Ms. Humecka offers to send her phone and jewelry as well.
[186] On a review of these text messages and of the evidence of the parties, it is clear that Ms. Humecka was being sarcastic and did not intend to return the television. In addition, as I noted at paragraph 106, Mr. Bobel did not include the television on the list of items he was seeking to have returned. Mr. Bobel had provided the first list to Ms. Humecka at the beginning of December. There was no explanation for why the television was omitted from the list of belongings that Mr. Bobel was seeking to have returned.
[187] Given the lack of evidence to support any formal agreement on the television, Mr. Bobel’s claim fails.
Issue #6 – Damages
[188] Given that I have found that the Defendants did not engage in tortious conduct, there is no basis for concluding that Mr. Bobel is entitled to any damages on this case. However, given that I heard the evidence on pecuniary damages, I will set out my conclusions about that evidence for the assistance of the parties. Punitive damages would only arise if I concluded that there was tortious conduct, and I have not made such a finding in this case.
[189] Based on the evidence and arguments that were presented, Mr. Bobel appears to be advancing three discrete pecuniary damage claims as follows:
a) Damages for loss of income as a result of a poor mark he received in his MBA program.
b) Damages for a lost opportunity to invest that was allegedly lost because the $5,000.00 from the condominium was not paid to him.
c) Damages for mental distress and other medical conditions on the basis that the Defendants’ conduct adversely affected his mental state.
[190] I will deal with each area in turn.
a) Damages for Loss of Income
[191] In evidence, Mr. Bobel provided a great deal of information about his MBA program, as well as a detailed spreadsheet relating to loss of income.
[192] The evidence that Mr. Bobel provided about his MBA program generally suggested that he had done very well in the MBA courses. Mr. Bobel asserted that, until his final assignment, he was likely to finish first in his class.
[193] However, his final assignment was a write-up of a project. Mr. Bobel had done very well on the project part of the work but the write-up, which was completed shortly after Mr. Bobel was charged in September of 2015, was given a grade of 50%.
[194] Mr. Bobel testified that this poor mark was as a result of the charges he was facing. He further testified that, but for this poor mark, he would likely have earned more income. In support of this testimony, Mr. Bobel provided some financial records, including records of his trading and investment accounts. Mr. Bobel also provided some information about his income in the relevant time periods. Finally, Mr. Bobel provided a sensitivity analysis which shows the net lost money if his income had been between $1.00 and $15.00 per hour higher, as applied to his career.
[195] There are three problems with all of this evidence:
a) There is no evidence that Mr. Bobel lost out on job opportunities in the 2015 to 2016 time period. Specifically, there is no evidence of what jobs he applied for that he was either not interviewed for or was not successful in being hired for.
b) Mr. Bobel’s spreadsheet about what money he could have earned is, as counsel for the Defendants put it in cross examination, an “aspirational” document. It shows what might have been lost. It does not prove that there was anything that was actually lost.
c) In any event, even if Mr. Bobel suffered a wage loss, there is no evidence (other than the lower MBA grade which may, or may not, be connected to his arrest) that this wage loss was related to the charges brought against Mr. Bobel.
[196] As a result, there is no evidence to support Mr. Bobel’s claim for lost income. Even if Mr. Bobel did suffer these losses, which is not substantiated on the evidence that he has provided, he has failed to causally connect these losses to the actions of the Defendant. Therefore, even if Mr. Bobel had succeeded on his tort claims, these damages would still not be recoverable.
b) Lost Investment Opportunities
[197] Mr. Bobel claims to have lost out on two types of investment opportunities. First, he claims that his investment portfolio suffered in 2015 as a result of his issues with Ms. Humecka. Second, he claims to have lost out on an opportunity to purchase an investment property because the $5000.00 that Ms. Humecka promised to pay to him was not actually paid to him.
[198] Neither of these claims can succeed, even if Mr. Bobel could prove that the Defendants engaged in tortious conduct. I start with the losses to the investment portfolio. Even though I accept that Mr. Bobel made more money in other years, there is no evidence to demonstrate what investment decisions he made or how those investment decisions could possibly be related to any tortious conduct that the Defendants might have engaged in. In the absence of this evidence, Mr. Bobel’s claim fails.
[199] Second, there is the $5,000.00 that Mr. Bobel claims was allegedly owing from Ms. Humecka on account of the condominium. Even if Mr. Bobel was owed this money, he would still have to demonstrate that the failure to pay the money caused him to lose out on the investment opportunity. Mr. Bobel testified that he had an “800” credit rating. He could have borrowed this $5000.00 to purchase the investment property. As a result, even if the monies were owed by Ms. Humecka, Mr. Bobel’s claimed losses from Ms. Humecka’s alleged failure to pay the $5,000.00 are too remote.
c) The Medical Conditions
[200] Mr. Bobel argues that the arrest caused a significant deterioration in his relationships with his family and his mental condition. In terms of the relationships with his family, I would note that the time between when Mr. Bobel was charged and when the charges were withdrawn was quite short, being less than two months. As a result, any damage to Mr. Bobel’s relationship with his family would have been quite limited.
[201] Mr. Bobel’s brother testified that Mr. Bobel has not been the same for a number of years since the incident. Mr. Bobel’s best friend, Ms. Marie Makinano, testified to much the same evidence. While I appreciate that they have observed negative changes in Mr. Bobel in the past few years, it is quite possible that these changes flowed from the end of Mr. Bobel’s relationship with Ms. Humecka and his pursuit of this lawsuit rather than from the charges that he faced in the fall of 2015.
[202] Indeed, Ms. Makinano’s evidence was that Mr. Bobel was unhappy and focused on himself and the turbulence of his relationship with Ms. Humecka in the summer of 2015, before the arrest. As a result, even if Mr. Bobel was able to substantiate tortiouis conduct on the part of the Defendants as a result of his arrest, Mr. Bobel was already experiencing mental distress.
[203] This conclusion is supported by the very limited medical evidence that was filed. I did not hear any testimony from a doctor or other medical professional who had treated Mr. Bobel. I did have one medical note from a Dr. Konieczna. That note was prepared at Mr. Bobel’s behest, and was dated in early July of 2015. The note states:
This is to confirm that Przemyslaw was suffering from emotional distress on July 2, 2015 and advised to start psychotherapy and medication.
[204] There was no evidence that Mr. Bobel received any of this treatment. There is also no evidence that Mr. Bobel’s condition got worse after the arrest. As a result, there is no basis to conclude that Mr. Bobel suffered from any mental condition relating to the arrest, even if the events leading to that arrest were somehow tortious.
[205] This brings me to Mr. Bobel’s claims that he was drinking more heavily as a result of the arrest. In support of that position, Mr. Bobel tendered a blood test from July of 2015 showing that he had elevated liver enzymes. Mr. Bobel alleged that this report showed that these elevated enzymes were as a result of the fact that he was drinking too much. Putting aside the fact that Mr. Bobel is not a doctor and therefore not qualified to provide this conclusion, this document pre-dates the arrest. As a result, it cannot (on its own) support the existence of any medical condition caused by Mr. Bobel’s arrest.
[206] Mr. Bobel also tendered a 2018 blood test that he says shows that he is pre-diabetic. The document, on face, does not support this conclusion. It shows that Mr. Bobel’s blood sugar was 5.5% and that less than 6% is non-diabetic. Even if this document showed that Mr. Bobel was pre-diabetic, there is no evidence from which I could possibly infer a connection between Mr. Bobel’s arrest and any alleged pre-diabetic condition three years later.
Conclusion
[207] For the foregoing reasons, Mr. Bobel’s claims are all dismissed.
[208] The parties are strongly encouraged to agree on the costs for this litigation. In the event that they are unable to agree, then the Defendants may provide written costs submissions of no more than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law. Those submissions are due within fourteen (14) calendar days of the release of these reasons.
[209] The Plaintiff will have fourteen (14) calendar days thereafter to provide his written costs submissions. Again, those submissions are to be no more than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.
[210] Submissions are to be filed through the electronic portal. However, a copy must be provided to my judicial assistant by e-mail. The submissions must be filed by both methods.
[211] The deadline for costs submissions may not be extended, even on consent, without my leave. If I do not receive costs submissions in accordance with the timetable set out above, then there will be no costs.
[212] As a final matter, while the parties may communicate with my judicial assistant to provide a copy of the costs decision, they may not communicate with her for any other purpose.
LEMAY J
Released: February 2nd, 2021
COURT FILE NO.: 17-4031-00
DATE: 2021 02 02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Przemyslaw Bobel
Plaintiff
- and -
Edyta Maria Humecka and Raymond Alexander Patten
Defendants
REASONS FOR JUDGMENT
LEMAY J
Released: February 2nd, 2021