COURT FILE NO.: CV-22-00000101-00 and CV-22-00001214-00 DATE: 2023 09 20
SUPERIOR COURT OF JUSTICE – ONTARIO
7755 Hurontario Street, Brampton ON L6W 4T6
RE:
CV-22-00000101-00
YADETA, Banti
AND:
THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD
HIS MAJESTY THE KING IN RIGHT OF ONTARIO
THE ATTORNEY GENERAL OF ONTARIO
MAPLEHURST CORRECTIONAL COMPLEX
JANE DOE
JOHN DOE
ABC COMPANY
CV-22-00001214-00
YADETA, Banti
AND:
HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO
BEFORE:
Regional Senior Justice Ricchetti
COUNSEL:
YADETA, Banti, the Plaintiff, Self-Represented
FERGUSON, G. for the Defendant THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD (“Peel Police”)
SAAD, M. for the Defendants HIS MAJESTY THE KING IN RIGHT OF ONTARIO, THE ATTORNEY GENERAL OF ONTARIO and MAPLEHURST CORRECTIONAL COMPLEX (“Crown”)
HEARD:
September 13, 2023, In person.
THE MOTIONS
[1] There are two motions to be decided today.
[2] The first is a motion by Mr. Yadeta to obtain leave under s. 17 of the Crown Liability Proceedings Act (CLPA).
[3] The second is a motion by the Defendants to dismiss Mr. Yadeta’s actions.
[4] At the conclusion of the submissions on Mr. Yadeta’s motion, I dismissed his motion (I refused to grant leave under s. 17). I indicated I would provide written reasons. These are those reasons.
[5] Thereafter, I proceeded to hear the Defence motions to dismiss. For the reasons that follow, the motions are granted and Mr. Yadeta’s actions are dismissed without leave to amend.
[6] To be fair to Mr. Yadeta, as he is self-represented, I agreed to use his evidence in the Motion for Leave and his Responding materials on both the motions.
PROCEDURAL HISTORY
[7] Mr. Yadeta issued a Statement of Claim on January 10, 2022, bearing court file number CV-22-101.
[8] CV-22-101 was a nullity as Mr. Yadeta had not given the notice required under s. 18 of the CLPA. A new claim had to be issued by Mr. Yadeta.
[9] Mr. Yadeta issued a Statement of Claim bearing court file number CV-22-1214. At Mr. Yadeta’s request, both actions were ordered to be tried together. Then at Mr. Yadeta’s request, the two actions were consolidated.
[10] Mr. Yadeta delivered an Amended Statement of Claim on August 3, 2022.
[11] Statements of Defence were delivered shortly thereafter. Mr. Yadeta delivered an Amended Statement of Claim on October 20, 2022. Amended defences were delivered shortly thereafter. Mr. Yadeta delivered an Amended Rely on November 30, 2022.
[12] The Defendants brought their motions to dismiss.
[13] After the Court of Appeal in April 2023 overturned a lower court decision striking s. 17 of the CLPA, Mr. Yadeta was required to seek leave to bring his claims for misfeasance and bad faith. Hence, Mr. Yadeta’s motion for leave.
[14] Just before the hearing, Mr. Yadeta uploaded another Amended Statement of Claim dated September 12, 2023. It does not appear to be issued. Upon being advised that amending the pleadings just before the hearing might result in a delay in the hearings involved, and potentially a consideration of costs thrown away, Mr. Yadeta decided not to pursue filing this further Amended Statement of Claim. So, this further Amended Statement of Claim was not considered in the determination of these motions. However, given that Mr. Yadeta is self-represented, the court did review the further Amended Statement of Claim just to ensure that Mr. Yadeta not be deprived of the benefits of any additional material facts he may have pleaded. In fact, the further Amended Statement of Claim underscored the fundamental speculative nature of the claim advanced. Some examples set out in the proposed further Amended Statement of Claim:
The following reasons are examples of how parties to this proceeding have acted maliciously/negligently. I am unable to confirm these things due to lack/denial of disclosure/documentation:
a. Perhaps, in absence of a conviction toward said person, I was targeted for the purposes of pursuing a criminal matter in absence of a conviction against another party.
b. Perhaps despite the 4 sworn oath statements completely contradictory to themselves, and the lack/absence of evidence against me (xxxxxxxx being caught with another person at a hotel I assume she was working at)…
c. Parties to this proceeding could of dropped charges before trial, or at any time in the criminal proceeding in their capacity.
[15] There is simply nothing else in the further Amended Statement of Claim that could have assisted Mr. Yadeta in these motions.
THE FACTS
[16] Mr. Yadeta’s girlfriend, xxxxxxxx xxxxxxxx, was a sex worker. She was underage.
[17] xxxxxxxxxx, after being found in a hotel with a man, gave a number of statements regarding Mr. Yadeta’s involvement in her prostitution.
[18] Mr. Yadeta was arrested on March 24, 2015.
[19] Mr. Yadeta was represented throughout by counsel, Ms. Perchenok.
[20] He was charged with various offences related to pimping of a young person, making or publishing child pornography and uttering threats.
[21] Mr. Yadeta was held in Maplehurst Correctional Complex until April 1, 2015 before being granted bail. Mr. Yadeta’s mother was his surety.
[22] Approximately in June 2015, a number of additional charges were added relating to child pornography, arranging to commit a sexual offence against a minor, threat, and receiving a material benefit from sexual services provided by a minor.
[23] In October 2015, Mr. Yadeta’s mother sought to be released as his surety as she was leaving the country. As a result, on October 16, 2015, Mr. Yadeta returned to custody.
[24] Mr. Yadeta was granted bail again on January 20, 2016 on a new bail.
[25] The charges went to trial on February 28 and March 2, 2016. As stated above, Mr. Yadeta was represented at trial by counsel. During the cross examination of xxxxxxxxxxx, she “declined to answer the questions after stuttering, not making sense, and lying on the stand, given the previous 4 sworn oath statements,” (Mr. Yadeta’s language). A break in the trial was granted.
[26] After a break in the trial, next day on May 3, 2016, a resolution was arrived at: Mr. Yadeta would enter into a peace bond, the child pornography materials related to the underage prostitution were forfeited, and then the Crown would withdraw the charges. The charges were resolved on this basis that day.
MR. YADETA’S POSITION
[27] Mr. Yadeta says he didn’t commit the offences.
[28] Mr. Yadeta refers to the charges as “being withdrawn”, which is correct, but avoids the fact that there was a resolution of the charges, something he agreed to with the benefit of counsel, where after he agreed to a peace bond and a forfeiture order, the charges were withdrawn.
[29] Mr. Yadeta’s position is that he should never have been charged and the prosecution against him was without merit, malicious and in bad faith.
[30] Mr. Yadeta specifically states in his pleading that the grounds for the charges were “minimal, nonexistent or irrelevant”; the arrest and prosecution “was undertaken without reasonable or probable cause” and the defendants should “not have executed their duties in the matter that the police and crown have in my criminal proceeding”.
[31] Mr. Yadeta, relies heavily on the fact that xxxxxxxxx had given four statements, which he alleges were inconsistent, were unreasonable as a basis for him to be arrested, charged and prosecuted. However, when read in its entirety, it is clear that Mr. Yadeta accepts that some of the statements by xxxxxxxxx implicated him in the offences as Mr. Yadeta blames xxxxxxxxx for making such statements because of their breakup several months earlier.
[32] Mr. Yadeta describes his claim as:
My entire claim is as follows: I was charged arrested, imprisoned and assaulted, and prosecuted for a frivolous criminal matter where I was negligently/maliciously charged for whatever reason.
[33] Mr. Yadeta admits that he currently has no other material facts to support his various claims that he could plead:
- “once discovery is made or documents/disclosure pertaining to my claim are released, I will be able to provide further detail such as what evidence was weighed against me and other suspects, reasonable belief”.
- requesting “any and all documents pertaining to or related to the police reports, events, circumstances, leading up to arrest, being charged, in detention and being prosecuted”.
- “If parties are willing to provide full disclosure as requested above and evidence as to why I was arrested, charged, detained, and prosecuted, I will gladly draft an appropriate amended claim based on those documents (strictly based on charter claims), and/or even discontinue my claim in its entirety if necessary.”
[34] Mr. Yadeta states that while he was in Maplehurst, he was assaulted. However, Mr. Yadeta includes no further details of the assault arising from the charges or prosecution. The detention was pursuant to court orders. Absent some specific misconduct by employees of Maplehurst, no liability could be based on the fact of custody alone.
[35] Mr. Yadeta states that he has suffered a variety of illnesses arising because of the arrest, incarceration, and prosecution.
THE MOTION FOR LEAVE UNDER s. 17 of the CPLA
[36] The relevant portions of s. 17 of CPLA are as follows:
17 (1) This section applies to proceedings brought against the Crown or an officer or employee of the Crown that include a claim in respect of a tort of misfeasance in public office or a tort based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee’s powers or the performance or intended performance of the officer or employee’s duties or functions.
(3) On a motion for leave under subsection (2), the claimant shall, in accordance with section 15 if applicable, serve on the defendant and file with the court,
(a) an affidavit, or such other document as may be prescribed, setting out a concise statement of the material facts on which the claimant intends to rely; and
(b) an affidavit of documents, or such other document as may be prescribed, disclosing, to the full extent of the claimant’s knowledge, information and belief, all documents relevant to any matter in issue in the proceeding that are or have been in the claimant’s possession, control or power.
(7) The court shall not grant leave unless it is satisfied that,
(a) the proceeding is being brought in good faith; and
(b) there is a reasonable possibility that the claim described in subsection (1) would be resolved in the claimant’s favour.
[37] Mr. Yadeta was required to deliver an affidavit setting out a concise statement of the material facts on which he intends to rely and an affidavit of documents.
[38] In my view, he has not complied with either of these requirements by continuing to advance claims in his pleading and affidavit without setting out the material facts upon which he will rely to advance those claims.
[39] In these applications, I must and do start with the acceptance of Mr. Yadeta’s factual allegations in his Amended Statement of Claim. In this case, given that Mr. Yadeta is self-represented, I also accept any material facts in his affidavit, as they could easily be put into a pleading by way of amendment.
[40] The essential question, related in both the leave motion or the motion to strike, is whether based and accepting on the material facts in Mr. Yadeta’s pleading and affidavit: is there is a reasonable prospect (or possibility in the leave motion) of success at trial?
[41] Bald allegations of bad faith, malice, or advancing various torts (known in law and unknown in law) are not sufficient to support or establish a reasonable prospect or possibility of success. Material facts, sufficient to support the essential elements of these torts, must be pleaded in the motion to strike (and in the affidavit in the leave motion).
[42] The Crown did not file a responding affidavit on the motion for leave, taking the position that Mr. Yadeta failed to plead or include in his affidavit sufficient material facts to support the claims advanced. The Crown submits there is insufficient evidence put before this court to establish that there is a “reasonable possibility” Mr. Yadeta will succeed in his claims.
[43] Mr. Yadeta admits that, despite attempts to obtain the documents through FIPA and other sources, he has pleaded all the facts that he knows.
Analysis
[44] Given the provisions of s. 17 of the CLPA, it is obvious that the Plaintiff must provide a concise statement of material facts relied on by the Plaintiff to satisfy the court that there is a reasonable possibility the Plaintiff’s claim could succeed.
[45] As Justice Copeland (as she then was) in Prince v Attorney General of Ontario, 2018 ONSC 750 at para. 23, held in a malicious prosecution claim against the Attorney General, stated it is improper for a plaintiff to rely on the discovery process to uncover new facts. This would constitute nothing more than a “fishing expedition to find the basis for their claim”. The Crown is entitled to sufficient notice of the material facts to support allegations in a claim.
[46] Reviewing all of Mr. Yadeta’s pleadings and Mr. Yadeta’s affidavit in support of the motion for leave, I am satisfied Mr. Yadeta has not set out the material facts supporting his claim for misfeasance or bad faith by the Crown, nor why there is a reasonable possibility that his claims of misfeasance or bad faith will be decided in his favour against the Crown.
[47] Let me deal with the specific Crown claims advanced by Mr. Yadeta.
Maplehurst
[48] Maplehurst is not a legal entity.
[49] Hence, an action cannot be maintained against it. As such, there is no possibility that the action can succeed against Maplehurst.
[50] Leave is denied.
Attorney General
[51] The Attorney General for Ontario is the proper defendant in an action for damages alleging prosecutorial misconduct as the Attorney General for Ontario stands in place of any Crown Attorney sued in an action for damages.
[52] Mr. Yadeta’s claim is essentially for misfeasance. Even if bad faith were considered as pled, there are no facts pled for the court to conclude that Mr. Yadeta’s claim has a possibility to succeed because the Crown acted in bad faith.
[53] The Supreme Court in Ontario (Attorney General) v. Clark, 2021 SCC 18 descried the of misfeasance:
[22] The elements and proper scope of the tort of misfeasance are not disputed in this appeal. A successful misfeasance claim requires the plaintiff to establish that the public official engaged in deliberate and unlawful conduct in his or her capacity as a public official, and that the official was aware that the conduct was unlawful and likely to harm the plaintiff (Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23, per Iacobucci J.).
[23] The unlawful conduct anchoring a misfeasance claim typically falls into one of three categories, namely an act in excess of the public official’s powers, an exercise of a power for an improper purpose, or a breach of a statutory duty (Odhavji, at para. 24)….
[54] In this case, Mr. Yadeta has not and cannot point to any material facts which support the tort that the Crown(s) involved engaged in deliberate and unlawful conduct in their capacity as a public official.
[55] All that Mr. Yadeta continually points to is that the charges against him were withdrawn, without acknowledging that part way through the trial, there was a resolution. This is why he says there was no reasonable basis that he was charged, no reasonable basis that he be put into custody and no reasonable basis that he be prosecuted. Withdrawal of the charges, by itself, even if that happened without it being part of an overall resolution, falls well short of meeting Mr. Yadeta’s onus.
[56] In any event, the Attorney General enjoys a qualified immunity. This qualified immunity also prevents claims for misfeasance but permits a claim for malicious prosecution where there is a factual basis to support such a claim. The standard of proof required is high for such a claim to succeed.
[57] For the tort of malicious prosecution, Mr. Yadeta has not provided any material facts that there was an absence of reasonable cause to charge him or to continue with the prosecution, let alone facts that would support a finding that it was a deliberate and unlawful conduct to harm Mr. Yadeta. Mr. Yadeta has not pled or advanced any facts that the charges or prosecution were done due to allege malice or for another purpose contrary to law.
[58] As stated above, Mr. Yadeta was represented by counsel throughout the prosecution. The matter went to trial. Mr. Yadeta, again represented by counsel, negotiated a resolution to the charges.
[59] There is another fatal error in establishing this tort – failing to establish that the proceeding was resolved in Mr. Yadeta’s favour. There was no acquittal. There was a mutually agreed upon resolution of the charges.
[60] I am satisfied that Mr. Yadeta has not met the test for leave to be granted in his claim against the Attorney General.
[61] Leave denied.
The Crown
[62] There is no direct liability in tort against the Crown. The nature of the Crown’s liability is vicarious.
[63] Section 8 of the CLPA sets out the scope of the Crown’s liability. The Crown’s liability in tort extends only to acts or omissions attributable to an employee, officer or agent of the Crown. As a result, if a tort such as malicious prosecution cannot be established, or some other tort where immunity due to prosecutorial discretion is engaged against the individuals involved, then liability cannot be made out against the Crown.
[64] Furthermore, the Crown is liable in tort for an act or omission, only if a proceeding in tort in respect of that act or omission could be brought against an employee, officer or agent of the Crown.
[65] For this motion the issue is whether there are material facts pleaded regarding misfeasance or bad faith against the employees, officers or agents of the Crown and, even if so, whether they establish that there is a reasonable possibility of such claims succeeding.
[66] No such material facts have been pleaded nor does Mr. Yadeta’s motion establish a reasonable possibility of his claim succeeding against any employee, officer or agent of the Crown.
[67] As for Maplehurst, while it is a Crown institution owned and managed by the Crown (the Ministry of the Solicitor General), there are no material facts alleged that would establish that any of the officers/employees at Maplehurst did anything improper or committed a tort. While Mr. Yadeta alleges he was assaulted in Maplehurst, the details of the assault, who, when, what circumstances and what/why Maplehurst’s employees are liable in law is not set out anywhere in the pleadings or materials.
[68] Leave under s. 17 of the CLPA is hereby denied. The claims based on misfeasance and bad faith against the Crown are permanently stayed.
THE Rule 21.01(1)(b) MOTIONS TO DISMISS
Charter and Ontario Human Right’s Claims
[69] I start by granting the Defence motions with regard to the dismissal of Mr. Yadeta’s claims for breach of the Charter and the Ontario Human Rights Code as being nothing more than mere bald statements without any material facts to support them.
[70] All Mr. Yadeta’s pleading alleges is that the Defendants didn’t comply with their obligations under the Charter or Human Right’s Code. He does not say in what way or how they constitute a claim against the Defendants.
[71] These claims are dismissed.
TEST ON MOTION TO STRIKE
[72] Under Rule 21.01(1)(b) of the Rules of Civil Procedure, the Court may strike out a pleading that discloses no reasonable cause of action.
[73] The motion judge assumes that the allegations in the pleading are true unless they are “patently ridiculous” or “incapable of proof.”
[74] Rule 25.06 reinforces the requirement to set out all material elements of a claim, including full particulars of malice where it is alleged. A proper pleading of bad faith requires a high degree of particularity.
[75] Bald or unparticularized allegations will not suffice to meet the obligation to plead material facts to support the underlying allegation or claim. McCreight v. Canada (Attorney General) 2013 ONCA 483 at para. 39.
[76] The Supreme Court in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 22 stated, in a Rule 21 motion, a plaintiff is not entitled to rely on a deficient pleading in the hope of information becoming available at a later stage in the litigation:
[…] It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.
[77] Let me now deal with the specific Defendants against whom claims have been made.
Maplehurst
[78] As Maplehurst is not a legal entity capable of being sued, the claim against Maplehurst is dismissed.
The Peel Police Services Board
[79] There is a distinct separation and independence between the police and the Crown, who prosecute.
[80] Absent some specific and discrete police misconduct during a prosecution of charges (such as the police officer deliberately withholding disclosure), there can be no claim against the Peel Police. But no such allegations are set out in the pleadings or the materials.
[81] The Peel Police Services Board is vicariously liable for the actions of its officers.
[82] Mr. Yadeta’s claim against the Peel Police advances allegations of malicious prosecution, negligent investigation, wrongful arrest/false imprisonment, misfeasance in public office, negligence, “nonfeasance”, “breach of duty” and breaches of s. 7-12 and 15 of the Charter of Rights and Freedoms and unspecified provisions of the Ontario Human Rights Code. These are pleaded against Peel Police BOARD directly as part of the “prosecution” and not vicariously for any identified or specific action or misconduct of any officer. As stated above, the Peel Police is not liable for any actions involving the prosecution and such claims cannot succeed.
[83] The claim against Peel Police for malicious prosecution has no merit. There are no material facts that allege the Peel Police did not have reasonable grounds to arrest Mr. Yadeta. Even Mr. Yadeta admits there were a number of statements made, some inculpating him, although he alleges these were inconsistent.
[84] Even so, the charges were not resolved in Mr. Yadeta’s favour – the matter was resolved by way of settlement.
[85] The claim against the Peel Police is limited to their interactions with Mr. Yadeta. There is nothing alleged that the police did improperly after the arrest.
[86] After the arrest, the charges, custody and prosecution are properly conducted by the Crown, through its Crown attorneys and its custodial facilities, all of which are independent of the Peel Police.
[87] The Peel Police’s stated involvement ended upon arrest on March 24, 2015.
[88] Turning to the arrest, simply saying “I didn’t do it” and “I shouldn’t have been arrested” or charged is not sufficient. Mr. Yadeta’s bald statement that the Peel Police did not have reasonable grounds for arresting him is not a sufficient pleading of a material fact.
[89] Mr. Yadeta has not made a specific allegation as to malice or breach of law – all he says is that he shouldn’t have been arrested for these charges. A bald statement that he was arrested for “improper purpose” does not amount to material facts to support the alleged misconduct by the Peel Police.
[90] I note that Mr. Yadeta was represented by counsel throughout. No habeus corpus application was brought. No Charter applications were brought. No exclusion of evidence applications were brought. The matter proceeded to trial. And during the trial, Mr. Yadeta agreed to a Peace Bond AND a forfeiture order of materials seized from him and ONLY THEN were the charges withdrawn.
[91] The other significant issue Mr. Yadeta faces is Mr. Yadeta in his Reply at paras. 14, 15, 16 and 17 sets out considerable evidentiary basis, known to the police, including evidence from xxxxxxxxx. Mr. Yadeta alleges xxxxxxxxx’s statement implicating him, was motivated by their prior relationship. But it was still information upon which the police could rely on to form reasonable ground for the arrest. The test of s. 495(1) of the Criminal Code of Canada for an arrest only requires the officers to have reasonable grounds to believe Mr. Yadeta had committed the offences.
[92] While Mr. Yadeta seeks to challenge the veracity and sufficiency of the evidence on the basis the statements were inconsistent or that “I believe that there is exonerating evidence in the missing persons reports that would of relieved me from criminal proceedings and police investigation”. That is not a sufficient pleading of material facts to support his claims against the Peel Police.
[93] There are simply no material facts pleaded which would lead this court to conclude there was a reasonable prospect of Mr. Yadeta’s claim from which a determination can be made that the Peel Police officers did not have reasonable grounds to believe Mr. Yadeta had committed the offences and therefore reasonable grounds to arrest him.
[94] The only other torts pleaded against the Peel Police are negligence, “nonfeasance” and “breach of duty”, though the specifics of these alleged torts have not been pleaded in regard to further or specific actions.
[95] I have not ignored that the claim is against the Peel Police Board. Specifically, s. 5(9) of the Police Services Act protects the Peel Police Board from any proceeding for damages “for any act done in good faith in the execution or intended execution of a duty or for any alleged neglect or default in the execution in good faith of a duty. There are no facts alleged which would overcome this immunity for actions in good faith. In other words, Mr. Yadeta has not pleaded material facts as to how the officers acted in bad faith or with malice.
[96] There is simply no reasonable basis Mr. Yadeta’s claim pleads sufficient materials facts of the claims advanced which has a reasonable prospect of succeeding against the Peel Police Board.
[97] The claims against the Peel Police Board are hereby dismissed.
THE CROWN
[98] Section 9(2) of the CLPA provides that:
Nothing in this Act subjects the Crown to a proceeding in respect of,
(a) anything done in good faith in the enforcement of the criminal law or of the penal provisions of an Act; or
(b) anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in the person or responsibilities that the person has in connection with the execution of judicial process.
[99] Mr. Yadeta’s claims against the Crown defendants arise from his prosecution between March 24, 2015 and May 3, 2016 where he was charged with offences related to pimping of a young person, making or publishing child pornography, and uttering threats.
[100] Mr. Yadeta advances claims of malicious prosecution, negligent investigation, wrongful arrest/false imprisonment, misfeasance in public office, negligence, “nonfeasance”, “breach of duty” and breaches of sections 7-12 and 15 Charter and unspecified provisions of the Ontario Human Rights Code.
[101] All the facts and circumstances pleaded by Mr. Yadeta relate to the enforcement of criminal law – the charges and the prosecution.
Attorney General
[102] The Attorney General for Ontario is the proper defendant in an action for damages alleging prosecutorial misconduct. The Attorney General for Ontario stands in place of any Crown Attorney sued in an action for damages and may be held liable in their stead.
[103] The Attorney General now enjoys a qualified immunity. The only possible cause of action in this case against the Attorney General is (in respect of the conduct of a prosecution) is for the tort of malicious prosecution.
[104] The Supreme Court of Canada has stated explicitly that it is only when a Crown prosecutor “steps out of his or her role as ‘minister of justice’ that immunity is no longer justified”. See Miazga v. Kvello 2009 SCC 51 at paras. 7 and 43.
[105] As such, any other claim against the Attorney General for Ontario, including claims of negligence, misfeasance in public office, “nonfeasance” and “breach of duty” are plainly and obviously barred by prosecutorial immunity. Prosecutorial immunity protects against claims from actions that might be a result of “inexperience, incompetence, negligence or even gross negligence, none of which is actionable”. See Miazga at para. 80.
[106] Turning to the tort of malicious prosecution, there are four elements which must be proved by the plaintiff to succeed with a claim for malicious prosecution:
(i) The proceeding must have been initiated or continued by the defendant;
(ii) The proceeding must have terminated in favour of the plaintiff;
(iii) Absence of reasonable and probable cause to commence or continue the proceeding; and
(iv) Malice, or a primary purpose other than that of carrying the law into effect.
[107] As stated above, there is no material fact pleaded or in the materials that the prosecution in this case was actuated by malice or carried out for an improper purpose other than carrying the law into effect.
[108] As stated above, pleadings where there are allegations of malice must contain full particulars.
[109] Here there are no material facts, only bald allegations.
[110] There is no reasonable prospect that the claim against the Attorney General could succeed.
[111] The motion to dismiss the claim against the Attorney General is granted.
The Crown
[112] Given that I have determined there is no reasonable prospect that the claim against the Attorney General or the Peel Police can succeed, and have dismissed the claims against them, it is unclear how and whether Mr. Yadeta’s claim can succeed against the Crown.
[113] In any event, Section 8 of the CLPA sets out the scope of the Crown’s liability. The Crown’s liability in tort extends only to acts or omissions attributable to an employee, officer or agent of the Crown. The liability is vicarious in nature.
[114] Mr. Yadeta has not pleaded any material facts to suggest that identifies or described the actions by any specific Crown’s employee, officer or agent in his Claim.
[115] For example, Mr. Yadeta pleads negligence, but does not identify which employee, officer or agent was negligent, what duty of care was owed, what the standard of care is, what conduct constituted negligence and what damages were suffered as a result of that conduct. These are material facts that need to be pleaded.
[116] There is simply no described tortious conduct that the Crown can or needs to respond to.
[117] I note, although not necessary for the determination in this motion, Mr. Yadeta’s custody was ordered by the court and therefor, s. 142 of the Courts of Justice Act would also provide immunity to all persons acting in good faith and there is no allegation of bad faith made.
[118] I am satisfied there is no reasonable prospect of this claim against the Crown succeeding. It is dismissed.
Should Leave to Amend be Granted?
[119] There are a number of factors in favour of not permitting any further amendments to the pleading:
a) The events which are the subject matter of the claim took place in 2015 and early 2016. The Claim was advanced in 2022, some 6 years later. The limitation, which has been pleaded for some of the claims is an issue. Further, after all this time, Mr. Yadeta still does not have any material facts to support the various claims made.
b) Mr. Yadeta has twice amended his Claim and a further proposed amendment, all of which fail to show the required material facts to support the various claims made.
c) Mr. Yadeta has acknowledged that he requires further disclosure to determine WHETHER he has a claim.
d) Mr. Yadeta was asked numerous times during the hearing by this court to tell me what the factual basis for his claims was, whether in his pleading or not. And each time, Mr. Yadeta could not do so.
e) When looking at all the circumstances, Mr. Yadeta is upset that he was charged and held in custody. But nothing in the facts pleaded (nor the evidence suggest) that there was any lack of bona fides by all the persons involved. Mr. Yadeta feels he was vindicated when the charges were withdrawn and therefore has a valid claim but fails to understand that the charges were resolved, and PART of the resolution was the withdrawal. The claims of bad faith, misfeasance, negligence and so forth are difficult to overcome this critical piece of information that Mr. Yadeta fails to recognize or accept.
[120] I am satisfied that leave should not be granted to amend in these circumstances.
SUMMARY OF DECISIONS
[121] This court orders:
- Leave to proceed with the misfeasance and bad faith claims under s. 17 of the CLPA is denied, and
- The Defence motions to dismiss Mr. Yadeta’s claims against them are granted.
COSTS
[122] Any party seeking costs may deliver written submissions on costs, limited to 5 pages of submissions, plus any attached Offers and authorities. This must be done within 2 weeks of the release of these reasons.
[123] Any party against whom costs are sought, may deliver responding written submissions on costs, limited to 5 pages of submissions, plus any attached Offers and authorities. This must be done within 2 weeks after receipt of the cost submission.
[124] There will be no reply submissions.
Released: September 20, 2023 RSJ L. Ricchetti
COURT FILE NO.: CV-22-00000101-00 and CV-22-00001214-00 DATE: 2023 09 20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CV-22-00000101-00
YADETA, Banti
-and-
THE REGIONAL MUNICIPALITYT OF PEEL POLICE SERVICES BOARD, HIS MAJESTY THE KING IN RIGHT OF ONTARIO, THE ATTORNEY GENERAL OF CANADA, MAPLEHURT CORRECTIONAL COMPLEX, JANE DOE, JOHN DOE and ABC COMPANY
CV-22-00001214-00
YADETA, Banti
-and-
HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO
COUNSEL: YADETA, Banti, Self-Represented, for the Plaintiff
FERGUSON, G., for the Defendant, The Regional Municipality of Peel Police Services Board
SAAD, M., for the Defendants, His Majesty the King in Right of Ontario, The Attorney General of Ontario, and Maplehurst Correctional Complex (“Crown”)
ENDORSEMENT
RSJ RICCHETTI
Released: September 20, 2023