Court File and Parties
COURT FILE NO.: CV-18-455-00 and CV-18-457-00 DATE: 2023 12 18 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
F.M., T.F. -M., "S.M.", a minor under the age of 18 years, by his Litigation Guardian F.M. Plaintiffs – and – His Majesty the King in right of Ontario ("HMK") OPP, Dufferin-Peel Catholic District School Board, Principal Kelly Barton, Officer Christina Sanghera, and Officer Gillian Sinclair Defendants
– and –
BETWEEN:
"D.B.", "B.B.", "T.B.", a minor under the age of 18 years, by his litigation Guardian "B.B." Plaintiffs – and – His Majesty the King in right of Ontario ("HMK") OPP, Dufferin-Peel Catholic District School Board, Principal Kelly Barton, Officer Christina Sanghera, and Officer Gillian Sinclair Defendants
Counsel: Daniel Mayer and Kristina Yeretsian for the Moving Parties, the Defendants, His Majesty the King in right of Ontario, Christina Sanghera, and Gillian Sinclair J. Bogle and M. Singh, for the Responding Parties, the Plaintiffs
ENDORSEMENT
Bloom J
I. INTRODUCTION
1The Moving Parties seek on summary judgment in both proceedings orders dismissing the actions and related crossclaims as against them.
2The proceedings have been brought by the Plaintiffs seeking damages for negligent investigation, intentional infliction of mental harm, and civil conspiracy.
II. UNDISPUTED FACTS
3The two individual defendants are police officers. They were involved in an investigation of alleged sexual assaults by the minor Plaintiffs.
4The investigations culminated in the laying of sexual assault charges in relation to those Plaintiffs.
5Those charges were stayed at the request of the Crown on August 29, 2017 on the understanding that the two Plaintiffs would complete counselling for healthy relationships. That counselling was completed.
6Subsequently the two actions were commenced.
III. ARGUMENTS OF THE PARTIES
A. Arguments of the Moving Parties
7The Moving Parties argue that there is no genuine issue requiring a trial with respect to the three causes of action subject of each proceeding.
8More specifically regarding the tort of negligent investigation the Moving Parties submit that the criminal proceedings were not terminated favourably to either minor Plaintiff, and that, in any event, there were reasonable and probable grounds to charge them.
9Finally, the Moving Parties argue that there is no issue arising from the existence of crossclaims as between them and the other Defendants which would prevent summary judgment on the basis of the inappropriateness of partial summary judgment. They argue that the order they seek in each proceeding would simply dismiss it as against them; and that in each proceeding the crossclaims as between them and the other Defendants would be subject to a consent order discontinuing them without costs, in view of the consents filed on behalf of all Defendants.
B. Arguments of the Responding Parties
10The Responding Parties argue that there is a genuine issue requiring a trial on all three causes of action in both proceedings.
11The Responding Parties argue that the elements of the three torts alleged are supported by evidence in the record. They submit in that regard that there is evidence, inter alia, that Sanghera, although a police officer, knowingly exceeded her authority to investigate the cases of the two minor Plaintiffs; that there were no reasonable and probable grounds for the charges; that the two Defendant police officers acted in bad faith in ignoring material evidence; and that they also acted in bad faith in concert with the Defendant Barton to secure a suspension of the two minor Plaintiffs from school.
12The Responding Parties further contend that the existence of crossclaims as between the Moving Parties and the other Defendants renders the granting of the relief sought by the Moving Parties inappropriate partial summary judgment.
IV. GOVERNING PRINCIPLES
A. Summary Judgment
13In Yamada v. Joseph-Walker, [2023] O. J. No. 1341 (Ont. Sup. Ct.) at paras. 18 to 21 Justice Emery set out the principles governing whether a case is an appropriate one to be decided on a motion for summary judgment:
18 The Supreme Court of Canada set out the principles the court is to apply on motions for summary judgment in Hryniak v. Mauldin, 2014 SCC 7. In Mayers v. Khan, 2017 ONSC 200 (aff'd at 2017 ONCA 524), Glustein J. summarized the Hryniak principles as follows:
Summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It is no longer merely a means to weed out unmeritorious claims but rather a "legitimate alternative means for adjudicating and resolving legal disputes" (Hryniak, at paras. 5 and 36);
An issue should be resolved on a motion for summary judgment if the motion affords a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial (Hryniak, at paras. 4 and 49);
On a motion for summary judgment, the judge must first determine if there is a genuine issue requiring a trial based only on the evidence before the judge and without using the judge's fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2) (Hryniak, at para. 66); and
The standard for determining whether summary judgment will provide a fair and just adjudication is not whether the procedure is as exhaustive as a trial, but rather "whether it gives the judge confidence that [the judge] can find the necessary facts and apply the relevant legal principles so as to resolve the dispute" (Hryniak, at para. 50). A judge must be confident that he or she can fairly resolve the dispute (Hryniak, at para. 57).
19 On a motion for summary judgment, each party is required to put their best foot forward. A self-serving affidavit is not sufficient to create a genuine issue for trial in the absence of detailed facts and supporting evidence. See Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC) at para. 31, and Grewal v. Khaira et al., 2021 ONSC 4908, at para 25.
20 The Court of Appeal explained in Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438 that on a summary judgment motion, the court will assume that all necessary evidence has been tendered. A motions judge is entitled to presume that the evidentiary record is complete and there will be no further evidence at trial. A motions judge is not required to resort to the enhanced powers provided by subrules 20.04(2.1) and (2.2) to backfill a party's evidentiary shortcomings.
21 The anticipation of a party to have better evidence at trial will not defeat a motion for summary judgment: Van Nispen v. McCarron & Chobotiuk Financial Services Inc., 2020 ONCA 146, at para. 4.
14In Learmont Roofing Ltd. v. Learmont Construction Ltd., [2022] O.J. No. 5763 (Ont. C.A.) at paras. 19 and 21 to 23 the Court confirmed that partial summary judgment can be available where there is no risk of inconsistent findings of fact arising from the presence of counterclaims:
19 Partial summary judgment is a "rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner": Butera v. Chown, Cairns LLP, 2017 ONCA 783, 418 D.L.R. (4th) 657, at para. 34. The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a partial summary judgment basis: Cook v. Joyce, 2017 ONCA 49, at para. 92.
21 In our view, the motion judge demonstrated a proper appreciation for the legal principles governing partial summary judgments. We see no error in her decision to grant it in the present case. We agree that the appellants raised no genuine issues requiring a trial. Further, after reviewing the evidentiary record, the motion judge concluded that it did not give rise to any credibility problems. We see no palpable and overriding error justifying appellate interference with the motion judge's findings.
22 We also find that the motion judge properly considered and rejected the risk of inconsistent factual findings. The motion judge recognized that the appellants have "a myriad of counterclaims" against the respondent, including allegations of fraud, misrepresentation, and conversion. However, these did not "prevent the plaintiff from moving forward to recover the outstanding amount owing to it on invoice #4" through a partial summary judgment motion. The motion judge's reasons referenced an earlier case management endorsement by Nicholson J., on August 4, 2021, who observed that "the counterclaims appear to involve entirely separate claims from the claim being made by [Roofing]."
23 We agree with the motion judge's assessment. The counterclaims are not intertwined with Roofing's trust claim in a manner which would lead to factual inconsistencies. Consequently, we find that, on the facts of the present case, it was appropriate for the motion judge to grant partial summary judgment.
B. Negligent Investigation
15In G.S. v. Toronto Police Services Board, 2022 ONSC 3621 (Div. Ct.) at para. 24 the Court set out the four-part test to determine whether the tort of negligent investigation has been proven:
[24] The motion judge recited the four-part test set out by this court on Romanic v. Michael Johnson, 2012 ONSC 3449, at para. 9 (aff’d 2013 ONCA 23), which requires the plaintiff to establish, in cases where an investigation has resulted in criminal charges, that:
(1) the proceedings were initiated by the defendant;
(2) the proceedings were terminated in favour of the plaintiff;
(3) there was an absence of reasonable and probable grounds to commence the proceedings against the plaintiff; and
(4) in conducting the investigation the defendant owed a duty of care to the plaintiff, and did not meet the objective standard of a reasonable police officer in similar circumstances.
C. Intentional Infliction of Mental Harm
16The parties accept that the elements of the tort of intentional infliction of mental harm are: (1) flagrant or outrageous conduct by the defendant; (2) that conduct is intended to cause harm or takes place in circumstances where the defendant knows that harm will ensue; and (3) there is actual damage to the plaintiff as a result of the conduct.
D. Civil Conspiracy
17In Canada Cement LaForge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452 Justice Estey for the Court set out the elements of the tort of civil conspiracy:
Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if:
(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,
(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.
In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff.
V. ANALYSIS
A. The Claim of Negligent Investigation
18Regarding the claim of negligent investigation, the positions taken by the parties in their arguments put in issue on this motion whether there is a genuine issue requiring a trial with respect to three elements of the tort: (a) Were criminal proceedings terminated in favour of the Plaintiffs? If so, (b) was there an absence of reasonable and probable grounds to commence the criminal proceedings against the Plaintiffs and (c) did the police officers meet the objective standard of a reasonable police officer in similar circumstances?
(i) The Issue of Favourable Termination
19The legal principles governing whether the criminal proceedings were terminated in favour of the Plaintiffs are discussed in the reasons of Justice K.L. Campbell in Romanic v. Johnson, 2012 ONSC 3449, [2012] O.J. No. 2642 at paras. 11 to 35 and 55 (Ont. Sup. Ct.); his decision was affirmed by the Ontario Court of Appeal at 2013 ONCA 23, [2013] O.J. No. 229.
20Justice Campbell held that, in cases like the one at bar, where there has been an arrangement to settle the proceeding without a finding of guilt, the court must examine the underlying reasons for the settlement to determine whether:
(a) there has been a state effort to pervert justice such as by avoiding court scrutiny of the police investigation;
(b) the police and/or the Crown seriously abused their position of strength in negotiating the settlement with the accused, thereby compelling them to accept the settlement, for example, only to save the costs of a trial; or
(c) there has been a good faith compromise settlement, including, for example, a quid pro quo from the accused such as a payment of restitution to a victim.
21The first two categories are to be regarded as termination in favour of the accused; the third is to be regarded as termination not in favour of the accused.
22The Moving Parties contend that on the facts before me the matter falls into the third category; the Responding Parties argue that it falls into the first.
23The facts related to the issue of favourable termination are not in dispute.
24On June 29, 2017 T.B. was charged with one count of sexual assault against V.F. On the same day S.M. was charged with 2 counts of sexual assault against N.Z. and N.G.
25On August 29, 2017 as confirmed in the court transcript of the Youth Court proceeding before Justice B.E. Pugsley the following occurred: Justice Pugsley stated that there had been a very productive pre-trial; Defense counsel for the Accused, T.B. and S.M., confirmed that point; each of the Accused was present and accompanied by at least one parent; Defense counsel stated that the Crown would be staying the charges on the understanding that within the following 3 months Defense Counsel would be sending to the Crown’s office confirmation that the families of the Accused had reviewed with them material relating to a healthy youth relationship; Justice Pugsley commented that he and the parties had discussed the resolution for a long time and looked at all of the facts, and that he found the resolution to be very appropriate; and at the direction of the Crown the charges were stayed.
26On November 27, 2017, Defense counsel confirmed by e-mail to the Crown that the undertaking to have the healthy youth relationship material reviewed with the 2 former Accused had been carried out.
27In my view in the face of those facts and no evidence from the Plaintiffs that there has been an effort by the Defendants to pervert the course of justice, there is no genuine issue requiring a trial on the issue of favourable termination, and, therefore, on the tort of negligent investigation.
28Because, as stated above, counsel have provided full argument on two other elements of the tort of negligent investigation, I will address those points in my analysis. I will do so together, as the parties made their arguments in that manner.
(ii) The Alleged Absence of Reasonable and Probable Grounds to Lay Charges and the Alleged Failure to Adhere to the Standard of Care of a Reasonable Police Officer in Similar Circumstances
1. Principles regarding the Presence of Reasonable and Probable Grounds to Commence a Proceeding
29In R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 at paras. 23, 25, and 26 Justice Major set out the elements of sexual assault:
23 A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
(1) Actus Reus
25 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, and R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293.
26 The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 1996 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff'd 1997 CanLII 368 (SCC), [1997] 1 S.C.R. 304, R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836, at p. 850, per L'Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.
30In B.K. v. Chatham-Kent Children’s Services C c.o.b. Children’s Aid Society of the Municipality of Chatham-Kent), [2019] O.J. No. 4251 (Ont. Sup. Ct.) at paras 32 to 34 Justice J.C. George discusses the concept of reasonable and probable grounds to commence a criminal proceeding:
32 The negligence claim and alleged Charter violation clearly lie for the most part in this question: Did Oriet have sufficient grounds to arrest and charge B.K.? The legal standard of 'reasonable grounds' is the threshold that an officer must meet in order to perform some of their duties, including arrest. It is less than proof beyond a reasonable doubt, and less than proof on a balance of probabilities. An officer does not need to be satisfied that a prima facie case could be met. It is merely the point at which "credibility-based probability replaces suspicion", suspicion of course being simply a feeling, belief or hunch; see Hunter v. Southam 1984 33 (SCC), [1984] 2 SCR 145, R. v. Phung, 2013 ABCA 63, and R. v. Hosie 1996 450 (ON CA), [1996] O.J. No 2175 (ONCA).
33 A credibility-based probability is not a highly technical term. It is a practical and common-sense assessment of the totality of the circumstances; R. v. Ballendine, 2011 BCCA 221. The Plaintiffs argue that Oriet failed to look at and consider the totality of the circumstances and therefore could not have reasonably formed sufficient grounds.
34 There is an objective component to this as well. A reasonable person placed in the position of the officer must be able to find that the grounds exist. In my view everything rises and falls on this question: Did Oriet have reasonable and probable grounds to believe that B.K. committed the offence alleged? Or better put, on the basis of the record before me can I determine, in a way that is just and fair, whether Oriet had reasonable grounds to arrest and charge B.K.? Or is a trial necessary in order to answer that question?
2. The Standard of Care by the Investigating Police
31In J. H. v. Windsor (City) Police Services Board, [2017] O.J. No. 5597 at para. 6 (Ont. Sup. Ct.) Justice I. F. Leach helpfully and comprehensively discusses the standard of care to be exercised by police. His consideration of the point includes setting out principles regarding appropriate police conduct relative to assessment of credibility of a complainant and seeking an explanation from a suspect:
6 As for the law relating to the tort of "negligent investigation", relevant principles include the following:
Police are not immune from liability under the law of negligence. Specifically, the "tort of negligent investigation" exists in Canada, and investigating police officers owe suspects a duty of care, requiring police investigations to be conducted in a competent, non-negligent manner.5
A plaintiff advancing a claim for negligent investigation has the burden of proving every element of his or her case, including a failure by police to meet the applicable standard of care, and that the relevant failure caused harm compensable at law.6
In relation to the applicable standard of care for the tort of negligent investigation:
The conduct of investigating officers is measured against a "flexible overarching standard" of how a reasonable officer in like circumstances would have acted; i.e., the applicable standard is that of a reasonable police officer in like circumstances, having regard to all the circumstances prevailing at the time, including the state of knowledge then prevailing and the information available at the time the decision was made.7
The general rule is that the content of the standard of care of a professional, such as a police officer, will require expert evidence; i.e., that it generally is not possible to determine professional negligence without the benefit of expert evidence. However, that general rule is subject to exceptions. In particular:
no such expert evidence is required in cases involving matters that are nontechnical, or which are otherwise within the knowledge and experience of the trier of fact;
no such expert evidence is required in cases where the impugned actions are so egregious that it is obvious a defendant's conduct has fallen short of the standard of care, even without knowing precisely the parameters of that standard of care; and
whether expert evidence as to the standard of care of a police officer is required therefore turns on the nature of the issues and the facts of each case, with particular regard to the specialized or technical nature of the circumstances, and whether a trier of fact can rely on its own knowledge and experience to determine the appropriate standard of care.8
The law does not demand a perfect or optimum police investigation; only that police conducting an investigation act reasonably.9
Police are not required to make judgments as to legal guilt or innocence before proceeding against a suspect. In particular, although they are required to weigh evidence to some extent in the course of an investigation, they are not required to evaluate evidence according to legal standards or make legal judgments, which is the task of prosecutors, defence lawyers and judges. Investigating police will not be held liable for failing to perform such functions, or for the unreasonable conduct of other actors in the criminal justice system.10
Investigating police officers, like other trained professionals, also are permitted to exercise discretion as they see it, without incurring liability, so long as that discretion is not exercised unreasonably. Courts are not in the business of second-guessing reasonable exercises of discretion by trained professionals; i.e., professionals making choices which may fall within the range of reasonableness. Moreover, it is recognized that, for good reason, arresting officers have significant discretion in how they conduct investigations, which are frequently carried out in dynamic and changing circumstances. The standard of care accordingly is not breached simply because another police officer would have proceeded differently, or because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court.11
The particular conduct required by the applicable standard of care is informed by the stage of the investigation and applicable legal considerations. In relation to arrests and laying of charges by the police, the standard of care applicable to negligent investigation claims is informed by the requirement of "reasonable and probable grounds", and does not rise higher than that criminal law standard.12 Where reasonable and probable grounds exist for an arrest and/or laying of charges, the applicable duty of care is met and there will be no police negligence in that regard.13 In cases based on alleged police negligence in making an arrest or laying charges, the plaintiff accordingly must establish an absence of reasonable and probable grounds as an essential element of the tort, and the existence of reasonable and probable grounds will be fatal to the claim.14 In that regard, principles relating to "reasonable and probable grounds" include the following:
The officer making an arrest or laying charges must subjectively believe he or she has reasonable and probable grounds on which to base an arrest or charge. Those grounds must, in addition, be justifiable from an objective point of view; i.e., a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest or charge.15
On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction, or that a charge would succeed at trial, before making an arrest or charge.16
Where an officer provides sworn evidence that he or she subjectively had reasonable and probable grounds, and is not cross-examined on that belief, the court is entitled to accept that evidence.17
The determination as to whether there were reasonable and probable grounds is based upon an analysis of the circumstances apparent to the officer at the time of the officer's decision to make an arrest or lay charges, and not upon what the officer or anyone else may have learned later. In particular, if reasonable and probable grounds existed at the relevant time, they still exist in the sense required even where the information relied upon changes at a later date, or otherwise turns out to be deficient or inaccurate.18
Police also are not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses, obtain or accept a suspect's version of events, or otherwise establish there is no valid defence, before being able to form reasonable and probable grounds.19 More generally, an arresting officer does not have to complete an investigation before being able to lawfully arrest a suspect or lay charges; nor does an intention to conduct further investigation after an arrest or laying of charges undermine the formation of reasonable and probable grounds.20
In establishing reasonable and probable grounds, investigating officers must take into account all information available to them, and are only allowed to disregard information which they have good reason to believe is unreliable.21 However, despite possible frailties in credibility or reliability, (including passage of time, inconsistencies, motive for concoction and/or mental illness)22, the uncorroborated testimony of a single witness, (including a child witness), may be a sufficient basis upon which to convict, and therefore provide reasonable and probable grounds for an arrest or charge.23 Moreover, in cases that turn on the credibility of an allegedly unbelievable complainant, (e.g., where a complainant has limitations and a conviction is not guaranteed, but guilt may be proved depending on the trier's assessment of credibility), our courts have held that the complainant's credibility is best determined after the complainant has testified and, if he or she so chooses, after an accused also has testified.24 There is no obligation on arresting officer to weigh and determine the validity of various versions of events and render judgment before being able to form reasonable and probable grounds.25 They are not seized with the responsibility of deciding guilt or innocence, or required to determine whether a suspect would likely be found guilty of an offence.26 It is up to the court trying the charges to evaluate witnesses, and police generally are not required to weigh and assess the evidence.27 When police act on the evidence of a victim that could, if believed, justify a charge and conviction, they accordingly act on a reasonable and probable grounds even if that evidence ultimately proves insufficient to persuade the trier beyond a reasonable doubt.28 Where reasonable grounds are based on the evidence of a witness, establishing a breach of the standard of care in a negligent investigation claim requires a plaintiff to demonstrate that the police defendants had "overwhelming" evidence discrediting that witness.29
It is up to Crown counsel to make an independent determination as to whether or not there are sufficient grounds upon which to proceed to trial with a charge in any particular case, and the discretionary decision to continue or terminate a prosecution, according to mandated objective screening processes, (and a duty to act fairly without any notion of "winning" or "losing"), lies squarely within the exclusive province of the Crown Attorney.30 A determination by Crown counsel that there is a reasonable prospect of conviction, (a conclusion which at law subsumes reasonable and probable cause), supports a finding that there were reasonable grounds to charge an accused.31
A preliminary inquiry is not a trial, but another pre-trial screening procedure aimed at filtering out weak cases that do not merit trial; its paramount purpose is to protect an accused from a needless and improper exposure to public trial where the enforcement agency is not in possession of evidence to warrant continuation of the proceeding.32 The presiding justice is required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.33 A committal for trial after a preliminary inquiry therefore also provides strong evidence supporting the existence of reasonable and probable grounds,34 and failure to place weight on a committal for trial is an error in law.35
Later withdrawal of charges, or the absence of a criminal conviction, does not warrant an automatic conclusion that reasonable grounds for an arrest or laying of charges did not exist when an officer made his or her earlier decisions in that regard.36 To the contrary, by its nature, our criminal justice system assumes that police will arrest people, some of whom subsequently may be acquitted. Termination of criminal proceedings in favour of the plaintiff therefore is a necessary but not sufficient condition for a successful negligent supervision claim.37
Where a negligent investigation case does not involve technical matters, and a required determination concerning the existence of reasonable and probable grounds is an issue a court routinely deals with in criminal cases, (such that it lies within the standard knowledge and experience of a superior court judge), no expert evidence is required to make that determination.38
Again, the applicable standard of care, (including that informed by the standard of reasonable and probable grounds), denies liability for minor errors in judgment or mistakes, and rejects liability by hindsight. Again, the standard is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made; circumstances which may include urgency and deficiencies of information. The standard is not perfection, or even the optimum, judged from the vantage of hindsight.39
When police fail to meet the standard of reasonableness, they may be accountable for harm resulting to a suspect.40 However, as a plaintiff, the suspect must establish compensable harm or injury caused by a negligent investigation; i.e., damage which would not have occurred "but for" the relevant negligence on the part of the police. Compensable harm or injury may include a prosecution, conviction, imprisonment and/ or a ruined reputation, but not all damage will justify recovery in negligence. Recovery will be denied if the alleged damage is not wrongful; i.e., no more than a criminal's just deserts. In that regard, an acquittal may or may not be conclusive proof of innocence in the context of such a civil action.41
32In David Paciocco, Getting Away with Murder: the Canadian Criminal Justice System (Toronto: Irwin Law, 1999), at 362 Mr. Paciocco, as he then was, stated the principle that, while a prosecutor will normally consider a victim’s wishes in deciding whether to proceed with a prosecution, the prosecutor’s decision is based on the greater public interest.
3. Application of the Governing Principles regarding Reasonable and Probable Grounds and Standard of Care
33Police Officer Gillian Sinclair laid the charges against both T.B. and S.M.
34In her affidavit evidence of October 1, 2021 she testified about the charges against both.
35According to that evidence on June 28, 2017 she interviewed V.F. V.F. told her that she was covering her buttocks with her hands and T.B., contrary to her wishes, touched her breasts. This incident occurred at a school in Bolton.
36Based on the totality of the information gathered during the investigation including evidence of victims and witnesses, Sinclair believed that there were reasonable and probable grounds to lay a charge of sexual assault against T.B. for his touching of V.F.’s breasts without her consent.
37Sinclair charged him on June 29, 2017.
38The Responding Parties called no evidence, and put forward none in cross-examination of Sinclair, which weakened the fundamental objective and subjective elements of reasonable and probable grounds set out in relation to T.B. in Sinclair’s affidavit evidence.
39Similarly, in her affidavit evidence of October 1, 2021, Sinclair addressed the case of S.M.
40She interviewed N.Z. on June 21, 2017. N.Z. told her that at school in Bolton S.M. without her consent put his hand down her shirt and touched her breast over her bra; and the next day grabbed her vagina.
41On June 23, 2017, Sinclair interviewed N.G. N.G. told her that S.M. touched her breasts over her shirt at school in Bolton. She said that the touching was without her consent and made her feel violated.
42Sinclair testified in her affidavit evidence that she interviewed the principal of the school; considered the evidence of the complainants and other witnesses; and believed the evidence of the complainants that S.M. had touched them without their consent as they had described.
43On June 29, 2017, she charged S.M. with sexual assault against N.Z. and N.G.
44The Responding Parties called no evidence, and put forward none in cross-examination of Sinclair, which weakened the fundamental objective and subjective elements of reasonable and probable grounds set out in relation to S.M. in Sinclair’s affidavit evidence.
45The written and oral submissions of the Plaintiffs joined their arguments on reasonable and probable grounds with those on standard of care; those submissions contained points to which principles I have set out above are applicable.
46I turn now to those points.
47The Plaintiffs relied heavily on the analysis of LaForme in Mammoliti v. Niagara Regional Police Service, 2007 ONCA 79 in relation to the tort of negligent investigation.
48Justice LaForme summarized at paras 5 to 19 the background facts relating to the charges laid:
BACKGROUND
(i)The Criminal Proceedings.
5 Ferri is the President of Universal Management Consultants Inc. On March 12, 1997, on behalf of his company, he proposed an Agreement of Purchase and Sale with the TD Bank to purchase 55-57 East Main Street, in Welland, Ontario. The Agreement of Purchase and Sale contained the following clause: "The Vendor agrees to remove all bank records and files stored in the building prior to closing".
6 This clause was subsequently crossed out by the TD Bank and the following clause was inserted: "The Purchaser accepts the building in an 'as-is' condition". The transaction was scheduled to close on May 30, 1997.
7 There appears to be some disagreement about whether the transaction actually closed on Friday, May 30, 1997, or on Monday, June 2. Whichever it is, it is of no legal significance to this appeal.
8 Sometime in April 1997, Ferri retained the services of Mammoliti to enter the building and remove approximately 2,000 banker boxes that had been left there by the TD Bank. Mammoliti removed the boxes one to two weeks later, over the course of two to three visits to the premises.
9 On May 13, 1997, the TD Bank became aware that bank files had been taken out of the building by Ferri in advance of the closing date. Contact was then made by the bank to Ferri in connection with the bank files.
10 On or about May 15, 1997, the TD Bank and Ferri discussed the return of the files in exchange for compensation to Ferri for his labour and storage costs in an amount around $500 and a release from the TD Bank protecting him from lawsuits or damages. The TD Bank agreed in principle to Ferri's request, and completed the real estate transaction on June 2, 1997, notwithstanding that compensation and a release were not complete, and that the bank files had not yet been returned.
11 Until June 6, 1997, Ferri and the TD Bank, through their respective lawyers, continued to negotiate the issues of compensation and release for the bank files. However, on June 6, 1997, Ferri's lawyer advised the TD Bank that they should now deal directly with Mammoliti, who had possession of the bank files.
12 The TD Bank then contacted Mammoliti and requested the return of its files. Conversation ensued about how much the bank would pay for the return of the files, resulting in Mammoliti asking for $500,000. Following this phone conversation, the TD Bank contacted the Niagara Regional Police Service.
13 From June 11 through June 16, 1997, conversation occurred between Mammoliti or his lawyer, representatives of the TD Bank and the Niagara Regional Police regarding the bank files. Mammoliti's lawyer informed the bank that Mammoliti was treating the situation as an abandonment of the files and that the bank should negotiate on this basis.
14 On June 13, 1997, the TD Bank learned that Mammoliti allegedly told a customer that he had read the customer's file. Mammoliti's lawyer advised the TD Bank that Mammoliti was in possession of the files and would not return them unless the bank purchased them from him. In response, the TD Bank advised that Ferri and Mammoliti would be responsible for any damages the bank suffered as a result of the alleged breach of confidentiality. The TD Bank also spoke with the Fraud Office of the Welland Police detachment and subsequently met with them.
15 On June 19, 1997, the investigation of the TD Bank's complaint was assigned to the respondents, Detective Greg MacDonald and Detective Louann Schenck, of the Niagara Regional Police Service. That same day, they met with the branch manager of the TD Bank to discuss the matter.
16 On June 23, 1997, the respondent, Crown Attorney Allan Root and Detectives Schenck and MacDonald agreed that Ferri should be charged with theft and possibly conspiracy, and that Mammoliti should be charged with extortion and possession of property obtained by crime.
17 On June 26, 1997, Detectives Schenck and MacDonald placed Mammoliti under arrest for extortion and possession of property obtained by crime, with a value exceeding $5,000.
18 On July 3, 1997, during a meeting with Detectives MacDonald and Schenck, Ferri's lawyer produced the entire real estate file. Ferri was charged on July 9, 1997, with attempted extortion and theft over $5,000.
19 Sometime in January 1998, Crown Attorney Root assigned the matter to the respondent, Assistant Crown Attorney Patricia Vaddacchino. On February 11, 1998, Ferri was charged jointly with Mammoliti with attempted extortion and theft over $5,000. At the time the police charged Ferri and Mammoliti, Root was aware that Ferri had not demanded $500,000 and that Mammoliti had possession of the documents.
49Justice LaForme in his analysis commented on the issues of reasonable grounds and standard of care at paragraphs 62, 74, and 105 to 106:
Reasonable and probable cause is defined in Nelles, supra, at 193, citing Hicks v. Faulkner (1878), 8 Q.B.D. 167 at 171, Hawkins J., as:
[A]n honest belief in the guilt of the accused based upon a full conviction, founded [upon] reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
74 When the totality of the facts is considered, this evidence suggests that the constituent elements of the offences contemplated, and with which Mammoliti was subsequently charged, were almost entirely absent. Nevertheless, it appears that the NRPD failed to take, or even consider taking, reasonable steps to ensure that the necessary components of the offences existed. Indeed, there is a virtual absence of evidence that the NRPD made any attempt to interview either Mammoliti or his legal counsel. In my view, this operates against both a subjective and objective belief of reasonable and probable cause.
105 Pursuant to this court's decision in Hill v. Hamilton-Wentworth Regional Police Services Board (2005), 2005 34230 (ON CA), 76 O.R. (3d) 481 (C.A.), leave to appeal granted, [2005] S.C.C.A. No. 511, the standard of care issue which underpins the tort of negligent investigation by police in Ontario is defined as whether the NRPD conducted their investigation in the same manner that would be undertaken by a reasonable police officer in the same circumstances.
106 An analysis of this tort involves two aspects related to police conduct, with the second aspect bearing particular importance in this case. First, did the NRPD initially have reasonable and probable grounds to believe that Ferri and Mammoliti committed the offences for which they were charged? Second, did the NRPD continue to have reasonable and probable grounds to believe that Ferri and Mammoliti committed the offences for which they continued to be charged? See Hill, supra, at para. 132.
50I do not read Justice LaForme’s analysis as requiring the police to hear a suspect’s response or his lawyer’s response to allegations of an offense as a precondition to the presence of reasonable and probable grounds or the carrying out of an appropriate standard of care, as submitted by the Plaintiffs. On the facts before him Justice LaForme emphasized that the evidence of the elements of the offenses charged against Mammoliti was “almost entirely absent” and was not pursued by police. Moreover, in the context of the investigation of a commercial contractual case he commented on the failure of the police to seek out the position of the suspect and his lawyer.
51In the case at bar, involving as it did alleged sexual assaults, the police had evidence of the elements of the offenses charged, particularly from the key witnesses, the complainants. They had no duty in law to interview T.B. or S.M. or their lawyers, nor did Justice LaForme affirm the existence of such a duty.
52The Plaintiffs are also unable to point to overwhelming evidence discrediting the evidence of the complainants.
53The Plaintiffs also rely upon evidence, accepted by the Moving Parties, that, after T.B. was charged on June 29, 2017, on July 6, 2017 V.F. gave a statement to police withdrawing her prior statement and stating that she may have embellished her story. The Plaintiffs further allege that that second statement was not disclosed to the Crown Prosecutor in the case. The Moving Parties respond with the evidence of Officer Sinclair in cross-examination that the second statement was given to the disclosure clerk on July 25, 2017 to be sent to the prosecutor, and the evidence of the clerk, Aimee Chabot, in her affidavit sworn September 29, 2021, that it was part of the electronic disclosure package and received by the prosecutor. That evidence of the Moving Parties was unanswered, except by the evidence of an affiant adduced by the Responding Parties that Defense counsel at the judicial pre-trial in the prosecution had told the affiant that the prosecutor said there that she had not seen V.F.’s second statement. I rely upon Rule 20.02(1), and draw the adverse inference that, if the second statement had not been received by the prosecutor, evidence would have been called by the Responding Parties from a witness with personal knowledge to establish that point.
54Lack of disclosure of the statement, therefore, is not a basis for finding a genuine issue requiring a trial respecting the question of the presence of reasonable and probable grounds or the question of standard of care.
55Further, the Plaintiffs’ argument that V.F.’s retraction created a genuine issue requiring a trial respecting those two questions is not supported by the legal principles set above. The police, having both the objective and subjective bases for reasonable and probable grounds when the charge was laid, were entitled to leave the decision on whether to proceed with the charge to the Crown Prosecutor, provided that they had given the evidence collected in the investigation to the Crown, as they had.
56As stated in the above summary of the Plaintiffs’ arguments, they contend that the police investigation improperly gave a prominent role to Officer Christina Sanghera.
57It is clear that Officer Sanghera was a police officer who played a significant role in the investigation which led to the charges against T.B. and S.M.
58She gave evidence which forms part of the record before me. I will now review parts of it.
59She is an officer with the Ontario Provincial Police (“OPP”); I note that the other police officers who participated in the investigation were also members of that force.
60Officer Sanghera was assigned as a school officer to the school where the alleged offenses occurred. School officers did community outreach and were the point-persons when an occurrence arose in a school. If an offense was a benchmark offense, as a matter of OPP policy it was handled by the OPP Major Crimes Unit under the direction of a detective sergeant.
61Officer Sanghera was contacted by other officers about the occurrences later the subject of the charges, because she was school officer for the school involved.
62On June 4, 2017 she reported to Acting Sergeant Dwayne Smith to update him, because sexual assaults are benchmark offenses and their investigation had to be reported up the chain of command.
63Acting Sergeant Smith authorized her to proceed with the investigation.
64Later on June 8, 2017 she spoke with Detective Sergeant Morgado of the Major Crimes Unit who said that the case would be handed over to that unit if diversion were refused by the suspects.
65On June 13, 2017, Officer Sanghera spoke with Morgado whom she updated on the decision of the families of the suspects to refuse diversion. Morgado said that he would ask Officer Sinclair to take over the case. Officer Sanghera told Morgado that she could assist if help was needed.
66After June 13, 2017, Officer Sanghera assisted Officer Sinclair in the investigation.
67I further note that the relevant OPP manual which was placed into evidence was consistent with the involvement of Officers Sanghera and Sinclair in the investigation.
68No evidence was adduced by the Plaintiffs to contradict the evidence of Sanghera or the manual, nor was her evidence undermined by cross-examination.
69Accordingly, the argument of the Plaintiffs as to an alleged lack of authorization of the investigative actions of Sanghera fails as a matter of fact. That contention generates no genuine issue requiring a trial.
70The Plaintiffs have also, as previously noted, argued that Officer Sanghera improperly worked together with the principal of the school involved, Kelly Barton, to secure the latter’s objective of suspending T.B. and S.M.
71In testimony from her examination for discovery, which is part of the record, Sanghera stated that she told Barton that Barton had a legal obligation to take reasonable steps to make sure that the victims were safe during the investigation and any subsequent steps; and that the issue of suspension of T.B. and S.M. was one for Barton to discuss with her Superintendent.
72That testimony was not weakened by other evidence. I find that neither factually nor as a matter of law is there any genuine issue requiring a trial raised by the argument under discussion.
73Finally, the Plaintiffs have argued that the existence of crossclaims as between the Moving Parties and the other Defendants renders summary judgment as inappropriate partial summary judgment. I accept the answer of the Moving Parties; they have filed consents in both actions as between themselves and the other Defendants agreeing to discontinuance of all crossclaims on a without costs basis if the motion for summary judgment is granted. In view of those consents, I see no dangers in the matter before me such as inconsistent findings with those at trial, which underlie the principles which bar partial summary judgment in many situations.
B. The Claims of Intentional Infliction of Mental Harm and Civil Conspiracy
74Rule 20.02(2) states:
(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. O. Reg. 438/08, s. 12.
75No such evidence has been adduced by the Responding Parties in respect of the claims for intentional infliction of mental harm and civil conspiracy. Moreover, the analysis as to partial summary judgment set out above in relation to the claim for negligent investigation applies in respect of these two claims. Accordingly, in my view there is no genuine issue requiring a trial in respect of these two claims.
C. Order
76In sum I find that there is no genuine issue requiring a trial in respect of the claims against the Moving Parties, and, therefore, I grant an order for summary judgment dismissing those claims. On consent, I also order that all crossclaims as between the Defendants are discontinued without costs.
VI. Costs
77I will receive written submissions as to costs of no more than 4 pages, excluding a bill of costs. The Moving Parties are to serve and file their submissions by January 12, 2024; and the Responding Parties are to serve and file their submissions by February 5, 2024. There shall be no reply.
BLOOM, J.
Released: December 18, 2023
COURT FILE NO.: CV-18-455-00 and CV-18-457-00 DATE: 2023 12 18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
F.M., T.F. -M., "S.M.", A minor under the age of 18 years, by his Litigation Guardian F.M. – and – His Majesty the King in right of Ontario ("HMK") OPP, Dufferin-Peel Catholic District School Board, Principal Kelly Barton, Officer Christina Sanghera, and Officer Gillian Sinclair
– and –
BETWEEN:
"D.B.", "B.B.", "T.B.", a minor under the age of 18 years, by his litigation Guardian "B.B." – and – His Majesty the King in right of Ontario ("HMK") OPP, Dufferin-Peel Catholic District School Board, Principal Kelly Barton, Officer Christina Sanghera, and Officer Gillian Sinclair
ENDORSEMENT
BLOOM J
Released: December 18, 2023