Court File and Parties

COURT FILE NO.: CV-18-00602817-0000 DATE: 2024-10-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

BRANT COOK and LEANDRA RUTTAN Plaintiffs – and – THE CORPORATION OF THE TOWNSHIP OF STRONG Defendant

Counsel: Adrienne Zaya, for the Plaintiffs Michael F. Sirdevan, for the Defendant

HEARD: September 10, 2024

Papageorgiou J.

Overview

[1] The Corporation of the Township of Strong (the “Township”) brings a motion to dismiss the Plaintiffs’ claim for defamation, malicious prosecution and misfeasance in public office.

Decision

[2] For the reasons that follow I am dismissing this motion.

Issues

Issue 1: Is there a genuine issue in respect of the Plaintiffs’ claim for defamation?

Issue 2: If there is a genuine issue in respect of the defamation claim, would it be appropriate to grant partial summary judgment in respect of the other causes of action?

Issue 3: Is there a genuine issue in respect of the Plaintiffs’ claim for malicious prosecution?

Issue 4: Is there a genuine issue in respect of the Plaintiffs’ claim for misfeasance in public office?

Analysis

The Summary Judgment Test

[3] The summary judgment test is set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.

Background Facts

[4] The Plaintiffs, Mr. Cook and Ms. Ruttan, are the registered owners of 963 South Lake Bernard Road (“the Cook Lands”), which property they purchased from Mr. Cook’s grandmother in 2002.

[5] There is a lane that runs across the Cook Lands (the “Lane”) used to access a public boat launch, dock, and beach area. The Plaintiffs say that their belief, and their families’ belief, is that the Lane was theirs and this fact had been unchallenged for decades.

[6] The Plaintiffs say that after they began complaining about and, ultimately, sued the Township over flooding caused by the Township’s replacement of culverts, the Township began asserting ownership of the Lane and began acting in a vindictive and retaliatory manner to intimidate them. This involved making allegedly defamatory statements to the Ontario Provincial Police (the “OPP”), which resulted in a criminal charge being made against Ms. Ruttan for public mischief. The charge was eventually withdrawn.

[7] Ultimately, the parties’ dispute over ownership of the Lane was resolved in proceedings brought before the Surveyor General, who determined, in June 2019, that the Lane was owned by the Township; the Plaintiffs have been abiding by this decision ever since. The Township says that the Surveyor General’s determination is essentially the end of the matter and the decision means that the Plaintiffs cannot succeed in this proceeding.

[8] However, in my view, the Surveyor General’s decision does not resolve the causes of action alleged, because the issue in this case is not who owned the Lane.

[9] The Plaintiffs say that they understood that both sides were asserting ownership of the Lane, that during such time they obtained a survey confirming their belief, and that at no material time did the Township show them any survey confirming its belief. They say that instead of simply allowing the matter to be resolved through the Surveyor General proceeding in a civilized manner, the Township used its power and influence to sway the OPP, gain leverage, and intimidate them.

[10] They say that the Township’s actions constitute the torts of defamation, malicious prosecution and misfeasance in public office.

[11] They also point out that the relief sought on this motion is significant, yet the Township only filed an eight-page affidavit, and a three-page reply affidavit by someone who concedes that she has no personal involvement in the events in question.

[12] I agree that the Township has failed to put its best foot forward.

Issue 1: Is there a genuine issue in respect of the Plaintiffs’ claim for defamation?

[13] In order to establish that statements are defamatory, a plaintiff must prove: i) that the words referred to the plaintiff; ii) that the words published were communicated to at least one person other than the plaintiff; and iii) that the impugned words were defamatory, in the sense that they would tend to lower a plaintiff’s reputation in the eyes of a reasonable person with ordinary intelligence: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

The Alleged Defamatory Communications

[14] I agree that the following statements made by the Township would tend to lower the Plaintiffs’ reputation in the eyes of a reasonable person. Indeed, the issue was not even seriously contested by the Township and there is no issue that the statements referenced the Plaintiffs and were communicated to at least one person:

• On August 10, 2016, Linda Mauer (then Clerk Treasurer) sent a letter to Ms. Ruttan, and copied to OPP officer Staff Sgt. Stacey Whaley, and By-law officer, Chris Fraser. The letter said that it had come to Clerk Treasurer Mauer’s attention that Ms. Ruttan had been “verbally assaulting” individuals accessing the public dock through the Lane, that Ms. Ruttan and her family were well aware that this was public land, that it was not owned by the Plaintiffs, and that if this behaviour continued, they would have her charged with mischief and trespassing.
• Emails dated August 10, 2016 from Clerk Treasurer Mauer to the OPP referenced previous discussions regarding Ms. Ruttan’s behaviour towards those attending the boat launch area, which had escalated and which the Township felt it had to do something about. The emails said that the Township’s By-law officer sent one letter advising that this behaviour must stop, that Ms. Ruttan was becoming more and more aggressive towards those using the Lane, and that Clerk Treasurer Mauer was afraid that Ms. Ruttan was “going to stop the wrong person and that injuries may occur.”
• A further email from Clerk Treasurer Mauer, also sent to the OPP on August 10, 2016, read: Something has to be done about this woman who is verbally assaulting people who are going on public land and if I have to come to the OPP station and talk to every Sergent on duty to explain to them this is harassment and that this is public land then give me a date and time and I will be there.
• On July 11, 2017, then Deputy Clerk Kim Dunnet sent an email to cottagers David and Sandra Hannaford suggesting that the Plaintiffs were threatening or harassing members of the public and that the OPP was aware of "the situation". Ms. Dunnett stated that the Plaintiffs were "being dealt with through the OPP and our lawyers, if you have any issues (i.e. threatened or harassed) at the [Lane] you are to call the OPP immediately."

The Defence of Justification

[15] The Township argues that even if the statements were defamatory, they were true and that therefore, the defence of justification applies. To succeed in this defence, a defendant must prove the substantial truth of the “sting,” or the main thrust, of the defamation: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 107.

[16] The sting in this case is that the Plaintiffs were verbally threatening and harassing cottagers and behaving in an unlawful manner. However, the Township has not adduced sufficient evidence of truth and the Plaintiffs’ evidence is to the contrary.

[17] When asked to produce comment forms that substantiate the allegations that the Plaintiffs were verbally threatening and harassing people, the Township did not produce any. The only evidence proffered by the Township is unauthenticated handwritten notes that the Township suggests were authored by Clerk Treasurer Mauer. The notes say: “Gravelle, Paiement, Wilf, Stefano Antoine, Diane Starr, Chris Fraser, All kicked off the dock & harassed, Wilf’s son in law was confronted by Mrs. Ruttan Cook while he was on the dock three weeks ago.”

[18] The Township did not call any of the above individuals as witnesses, with the exception of Mr. Paiement who was examined as a witness. As will be seen, he did not say he was threatened or harassed. The Township also did not call Clerk Treasurer Mauer as a witness.

[19] The Plaintiffs’ evidence is that they were not verbally threatening or harassing anyone, and that they merely advised people politely from a distance that they were trespassing. They never stopped anyone from using the Lane. There were some interactions with local cottagers and the Plaintiffs, two of which involved two local cottagers, Dianne Starr and Cody McCormick, taking photographs of the Plaintiffs’ underaged nephew and daughter without consent. However, none of the interactions involved verbal assaults or aggressive conduct.

[20] When examined, Mr. Paiement testified that he wanted to use the dock to go fishing, and he had encounters with the Plaintiffs where he was told the Lane was private property. He said they were 100 feet apart and never said Ms. Ruttan or Mr. Cook verbally threatened or harassed him. He also said that he was extremely hard of hearing and that he probably could not even hear what Ms. Ruttan was saying. There is also video footage of him at a distance that does not show aggressive interaction by the Plaintiffs.

[21] Thus, given the absence of evidence supporting the Township’s claims, and the Plaintiffs’ contradictory evidence, the Township has failed to prove the substantial truth of the sting of the allegedly defamatory statements.

The Defence of Qualified Privilege

[22] The Township also relies upon the defence of qualified privilege. This defence protects otherwise defamatory statements where there is a special relationship between the publisher and the recipients of the communication, such that the defendant had an interest or duty (legal, social, moral, or personal) to publish the information to the person to whom it was published, and the recipient had a corresponding interest or duty to receive it: Bent, at para. 121; Torstar, at para. 34.

[23] As stated in Gittens v. Brown (2003), at para. 30:

Someone who makes a statement to the police about a suspected crime is protected by qualified privilege; he or she is discharging a social duty to help in the detection of criminal activity. The police officer receiving the report has an interest in receiving the information because he or she can investigate it.

[24] Even if the Township is protected by qualified privilege, it can be defeated by malice. Malice is generally considered to mean ill will or spite: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 100. Malice can also be established if a defendant spoke dishonestly when making the statement or where the defendant spoke with reckless disregard for the truth: Bent, at para. 136; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R., at para. 145; and Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 79; Foulidis v. Baker, 2014 ONCA 529, 323 O.A.C. 258, at para. 51. The more serious an allegation, the more weight the court will give to evidence of the defendant’s failure to verify it before publication: Bent, at para. 136.

[25] In the context of the defence of qualified privilege, it can also mean that the statements were made with a dominant subjective motive that conflicts with the sense of duty or the mutual interest that the occasion giving rise to qualified privilege created: Hill, at para. 147; Sun Life Assurance Co. of Canada et al. v. Dalrymple, [1965] S.C.R. 302, at p. 310; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1099; and Foulidis, at para. 56.

[26] On the basis of this record, there is a genuine issue as to whether the Township was actuated by the dominant motive of malice in making the impugned communications to the OPP.

[27] There is evidence supporting the Plaintiffs’ position that Clerk Treasurer Mauer’s communication relating to the Plaintiffs’ knowledge that the Lane was owned by the Township, as opposed to knowing that the Township had made a recent claim to the Lane, were not truthful or that the Township exhibited a reckless disregard for the truth of such statements.

[28] The uncontested evidence is that Mr. Cook’s grandfather installed a gravel road (the Lane) in 1950. Since that time, the Cook family spent time and money maintaining it.

[29] The Plaintiffs provided evidence of a letter, written by a lawyer retained by Mr. Cook’s grandmother, sent to the Township in March 1995 in response to a map the Township circulated that contained road names to rate payers in the Township. On this map, the Lane is shown as “Cooks Lane.” In the letter, the Cook’s lawyer strenuously objected to showing this road as a public road.

[30] The lawyer said that he was unaware of any survey of the Lane, that he had done his own research, and that it appeared to him that the Lane was not located on a public road allowance. If the Township took a different position, he asked for the basis. He cited the longstanding arrangement that the Cook family had with some property owners to use the Lane, and that none of these individuals wanted to encourage public use. He noted that the year before, the Cook family had placed private property signs and were considering placing a gate across the Lane to further discourage any misuse.

[31] In response, in May 1995, Diana Georgie (then Clerk Treasurer) replied:

Please find enclosed the final version of the road naming map. You will find that Mrs. Fred Cook’s request to not name the laneway at her property has been considered by council and deleted from the mapping.

[32] Ms. Georgie’s letter did not take the position that the Lane was Township property. The letter did not tell the Cooks to take down the “private property” signs and did not tell them that they could not put up a gate. The uncontradicted evidence is that in 1995, Mrs. Cook subsequently put up a gate with an additional “private property” sign on it. These remained in place until approximately 2011 when the Township removed them without notice to the Cooks.

[33] There is also an issue as to the truth or recklessness of Clerk Treasurer Mauer’s assertion to the OPP that the Township had completed its own survey that showed the Lane was theirs. When asked on cross-examination to produce correspondence between the Township and any licensed surveyor for the purpose of obtaining a survey, the Township refused and even refused to advise whether any such correspondence existed.

[34] As noted above, the Plaintiffs have provided evidence that they were not verbally threatening or harassing other cottagers. In the circumstances, there is a genuine issue as to whether or not Clerk Treasurer Mauer’s communications about the Plaintiffs in this regard were truthful or whether she exhibited a reckless disregard for the truth of such statements.

[35] Given the fact that the Township did not call Clerk Treasurer Mauer to address any issues of her motivation for her communications with the OPP, what evidence or information she relied upon in support of her statements to the OPP, there is evidence from which a court could infer that the Township engaged in untruthful or reckless communications with the OPP to enlist the OPP in support of the Township’s ownership claim over the Lane.

Issue 2: Given the finding that there is a genuine issue in respect of defamation, would it be appropriate to grant partial summary judgment in respect of the other causes of action?

[36] As set out in Truscott v. Co-Operators General Insurance, 2023 ONCA 267, at para. 54:

Partial summary judgment is a rare procedure, reserved for an issue or issues that may readily be bifurcated from those in the main action, and that may be dealt with expeditiously in a cost-effective manner… It should only be granted in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings. [Internal citations omitted.]

[37] In my view, the issues in respect of defamation, malicious prosecution, and misfeasance in public office are intertwined factually and legally. Bifurcating the issues will give rise to associated risks of delay, expense, inefficiency, and inconsistency.

[38] In any event, I am satisfied that the Plaintiffs have established a genuine issue in respect of the other causes of action.

Issue 3: Is there a genuine issue in respect of the Plaintiffs’ claim for malicious prosecution?

[39] To establish a claim of malicious prosecution, the Plaintiffs must prove the following elements: (1) the Township initiated the prosecution, which means they were actively instrumental in setting it in motion; (2) the prosecution ended in the person's favor, such as charges being withdrawn or a conviction set aside; (3) there was no reasonable and probable cause for the municipality to commence or continue the prosecution; (4) the municipality acted with malice, intending to subvert or abuse the criminal justice system; and (5) the person suffered actual damage as a result of the prosecution, such as loss of reputation, loss of liberty, or financial loss: Nelles v. Ontario, [1989] 2 S.C.R. 170, at para. 42; Teskey v. Toronto Transit Commission (2003), 29 C.C.E.L. (3d) 217 (Ont. S.C.J.), at paras. 47-51.

[40] After the Plaintiffs received the August 10, 2016 letter from Clerk Treasurer Mauer advising that the Lane was deemed municipally owned, and that Ms. Ruttan could be charged with public mischief, the Plaintiffs retained a licensed surveyor, Mr. Raikes, who prepared a survey (the “Raikes Survey”) which supported the Plaintiffs’ ownership claim. The Plaintiffs gave a copy of the Raikes Survey to the Township on September 14, 2016. At this stage, there is no evidence that the Township had provided any survey to contradict the Plaintiffs’ views.

[41] On April 7, 2017, Clerk Treasurer Mauer wrote to the OPP advising that the Township had completed its own survey and were in the process of securing original surveys from the 1800s, which she claimed would clearly show the Township’s road allowance. There is no evidence produced in the record that shows that the Township had indeed prepared its own survey at that time. Eventually, the Township found an old 1969 survey which they disclosed at some point, though this timeline is not clear on this record.

[42] On April 26, 2017, Mr. Paiement attempted to use the Lane again. The Plaintiffs’ evidence is that he was on his ATV on the Lane and on his way back, stopped on the Cook Lands to monitor their bedroom windows. The Cooks went out to notify him that he was trespassing and politely asked him to leave.

[43] There is a videotape where Ms. Ruttan tells Mr. Paiement that he is trespassing. The videotape shows Mr. Cook giving Mr. Paiement a copy of a trespass notice, together with a copy of the Raikes Survey. The videotaped encounter does not support the conclusion that the Plaintiffs were verbally threatening Mr. Paiement or obstructing him in any way. The video merely shows that they were telling him of their position.

[44] There is also a police occurrence report, but it does not say that Mr. Paiement said that he was verbally threatened or harassed or obstructed. The report just says that he was given the notice and the Raikes Survey.

[45] That same day, April 26, 2017, the OPP charged Ms. Ruttan with willfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property contrary to s. 430(1)(d) of the Criminal Code.

Element 1: Did the Township initiate the prosecution?

[46] In McNeil v. Brewers Retail Inc., 2008 ONCA 405, 66 C.C.E.L. (3d) 238, at para. 50, the court held that the first part of the test for malicious prosecution could be met in circumstances falling short of the target of the lawsuit actually initiating the prosecution:

[A] person may be regarded as the prosecutor or the individual who initiated the action if “he puts the police in possession of information which virtually compels an officer to lay an information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withheld information in the knowledge of which the police would not prosecute.” [Internal citations omitted.]

[47] The question is whether through knowingly supplying misinformation or withholding evidence, or through other wrongful conduct, the complainant compromised the police investigation and/or the independence of the decision by the police to lay charges: Konstan v. Berkovits, 2024 ONCA 510, at paras. 32-33.

[48] There is a great deal of evidence in the record from members of the OPP involved in the laying of the charge, particularly from Staff Sergeant Stacy Whaley, Constable Hailey Bender, Constable Michael O’Grady, and Constable Chris McCabe. In summary, the OPP members say they laid the charge on their own as a result of complaints they received from members of the public.

[49] However, there is also evidence that the Township supplied misinformation or withheld information and/or compromised the police investigation.

[50] To consider this issue, the offence Ms. Ruttan was charged with is important. The offence of mischief to property in s. 430(1)(d) of the Criminal Code involves willful obstruction or interference with the lawful use, enjoyment, or operation of property.

[51] Constable Luckasavitch said that he based the decision to charge Ms. Ruttan on communications that the OPP had received from the Township related to ownership of the Lane. As noted, those communications included statements that the Plaintiffs knew that the Lane was not theirs, but in circumstances where the Plaintiffs had the Raikes’ Survey supporting their position, and in circumstances where the evidence before me is that the Township had not yet provided the Plaintiffs with a copy of any survey supporting the Township’s position.

[52] As well, at the time when Clerk Treasurer Mauer was communicating with the police, the Township had in its files the 1995 communications between Mr. Cook’s grandmother and Clerk Treasurer Diana Georgie, which appeared to confirm the Cooks’ beliefs. As well, as noted above the Township had not taken steps to assert this claim for decades.

[53] If the Plaintiffs honestly believed it was their property and had no evidence to the contrary from the Township, the element of willfulness is arguably absent and so the communications to the contrary from the Township are important. There is a genuine issue as to whether these statements influenced the OPP and/or compromised their investigation.

[54] As well, there is evidence that Officer McCabe said the Township’s By-Law officer was calling him non-stop. As well, Mr. Paiement’s statement indicates that he went to file a complaint with the Township and was directed by the Township to report the incident to the OPP. Constable MacMillan’s General Report and Constable Luckasavitch’s handwritten notes also state that Mr. Paiement was directed to call the OPP.

[55] Further, Constable Luckasavitch’s notes say that he requested a letter from Clerk Treasurer Mauer supporting a mischief charge. In response, she provided a letter that said that the Township’s records indicated that the Township owned the Lane. The Township did not provide any evidence as to when it came into possession of the historical surveys that it eventually relied upon.

[56] As also noted above, in 2016, Clerk Treasurer Mauer had specifically advised the Plaintiffs that the Township would have them charged with public mischief. This is exactly what Ms. Ruttan was charged with a year later.

[57] Additionally, the OPP charged Ms. Ruttan in 2017, even though it was Mr. Cook who gave Mr. Paiement the trespass notice. This suggests that they were influenced by past reports about Ms. Ruttan from Clerk Treasurer Mauer where she said that something had to be done about this woman who was verbally threatening and harassing the public.

[58] As such, I agree that there is a genuine issue as to whether or not the OPP would have charged Ms. Ruttan but for some of the allegedly false information provided by Clerk Treasurer Mauer.

[59] Therefore, there is a genuine issue as to Element 1.

Element 2: Did the prosecution end in the Plaintiffs’ favour?

[60] The charge was withdrawn, so there is no dispute that Element 2 is satisfied.

Element 3: Were there reasonable and probable grounds for the commencement of the prosecution?

[61] This element is both objective and subjective, in that there must be an actual belief on the part of the prosecutor and the belief must be reasonable in the circumstances: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 73.

[62] As noted above, a charge of public mischief to property requires proof that a party willfully obstructs, interferes with, or interrupts the lawful use of the property.

[63] Here, the following facts show there is a genuine issue:

• Again, there is evidence that the Township knew the Plaintiffs believed the Lane was theirs as well as evidence that the Township had not provided the Plaintiffs with any survey supporting its position and that the Township had not asserted any claim for decades.
• There is insufficient evidence at this motion to support the Township’s position that the Plaintiffs were verbally threatening or harassing the public. As well, Mr. Paiement’s own evidence does not support the conclusion that Ms. Ruttan was willfully obstructing or interfering with his use of the Lane. The Plaintiffs’ evidence and the videotaped evidence show them simply advising Mr. Paiement of their position that he was trespassing. They did not threaten him. The Township provided no caselaw that would support the position that merely advising someone of the Cooks’ position that this was their private property would constitute obstruction, interference or interruption.

Element 4: Did the Township act with malice?

[64] In order to prove malice, a plaintiff must prove that the defendant was acting pursuant to an improper purpose. If the court concludes that the prosecutor initiated or continued the prosecution based on an honest, albeit mistaken, professional belief that reasonable and probable cause did in fact exist, he or she will have acted for the proper purpose of carrying the law into effect and the action must fail: Miazga, at para. 79.

[65] For the same reasons I outlined above in the section on malice for the defamation claim, there is a genuine issue as to whether the Township acted with malice in pursuing a public mischief charge.

Element 5: Damages

[66] When Ms. Ruttan was charged, she was photographed and fingerprinted. She says it was a humiliating and frightening experience that she will never forget. She says that she has been ostracized, stalked, and continually accused, which has caused her to be fearful when at home. She continues to suffer mental distress, anxiety, fear, and public humiliation. As well, she and Mr. Cook now face harassment from other local cottagers, and all of this has affected their business.

[67] The Township agrees that the Plaintiffs incurred legal expenses in defence of the prosecution and as such, if they are successful, they will be able to prove some damages.

Issue 4: Is there a genuine issue in respect of the claim for misfeasance in public office?

[68] Of the three causes of action, this is the most difficult one for the Plaintiffs to prove because as set out below, it requires proof that the public official in question knows that their conduct is unlawful.

[69] There may also be a legal issue as to whether the Township can be liable for this tort or whether committing a tort constitutes the exercise of a power. However, the Township did not provide any compelling arguments or case law on these issues and it was their motion to prove.

[70] The tort of misfeasance in public office is an intentional tort rooted in the principle that “those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen”: Freeman-Maloy v. Marsden et al. (2006), 79 O.R. (3d) 401 (Ont. C.A.), at para. 10.

[71] In its earliest formulation, the tort was limited to situations in which the public office holder abused a power the officer actually possessed. In Canada, the tort was expanded, beginning with the formative decision in Roncarelli v. Duplessis, [1959] S.C.R. 121. In that case, the Premier of Québec was found liable for directing the liquor licensing regulator to revoke Mr. Roncarelli's liquor licence, even though the premier had no statutory authority in the decision-making process. In light of Roncarelli, the tort was broadened beyond allegations of abuse of a statutory or prerogative power, to situations “where a public officer with actual knowledge of his lack of statutory power or authority acted in a manner that he knew would probably harm the plaintiff”: Philip H. Osborne, The Law of Torts, 6th ed. (Toronto: Irwin Law, 2020) at 224.

[72] The Supreme Court revisited this tort in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263. Iacobucci J. concluded that the “ambit of the tort is not restricted” to situations where the public officer is engaged in the unlawful exercise of a statutory or prerogative power: para. 19. The class of conduct to which the tort applies is “more broadly based on unlawful conduct in the exercise of public functions generally”: para. 17.

[73] The focus on the alleged misconduct demands an examination of whether it was deliberate and unlawful:

Insofar as the nature of the misconduct is concerned, the essential question to be determined is not whether the officer has unlawfully exercised a power actually possessed, but whether the alleged misconduct is deliberate and unlawful. As Lord Hobhouse wrote in Three Rivers, supra, at p. 1269:

the relevant act (or omission, in the sense described) must be unlawful. This may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose. [Emphasis added.]: para 24.

[74] Academics argue that the broadened ambit of this tort, as set out in Odhavji, now means that it can apply to situations “where the public officer willfully injures a member of the public by: an abuse of power possessed; intentionally exceeding powers possessed; or the deliberate failure to discharge a public duty”: Lisa Mrozinski, “Monetary Remedies for Administrative Law Errors” (2009) 22 Can. J. Admin L. & Prac. 133 at 138.

[75] In Odhavji, Iacobucci J. set out the elements of the tort of misfeasance in public office as being the following: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff: para. 32. Plaintiffs must also “prove that the tortious conduct was the legal cause of their injuries, and that the injuries suffered are compensable in tort law”: para. 32.

[76] The Township submits that a municipality, in general, cannot commit the tort of misfeasance in public office and that only an individual acting in the exercise of their public function can be found to have committed this tort. The Township does not have any authority for this proposition. Indeed, the Township barely referenced law on this issue and made few submissions on it. It is unclear to me on this record why the Township would not be vicariously liable for Clerk Treasurer Mauer’s conduct, as her employer, if her conduct constituted misfeasance in public office.

[77] In view of the record and arguments before me, I am satisfied that there is a genuine issue in respect of misfeasance in public office, if the Plaintiffs are able to prove their defamation and malicious prosecution claims. In any event, since this issue is so intertwined with the defamation and malicious prosecution claims, it should not be determined on its own by way of partial summary judgment.

[78] Thus, the motion for summary judgment is dismissed. The parties have conducted their discovery and this matter should be directed to a trial on all issues. As I have already reviewed the materials, it should be scheduled before me subject to my availability.

Costs

[79] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court. Rule 57 of the Rules sets out the factors that courts should consider when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26; see also Zesta Engineering Ltd. V. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4; Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 52; and G.C. v. Ontario (Attorney General), 2014 ONSC 1191, at para. 5.

[80] The summary judgment rule specifically provides that the court may order substantial indemnity costs if the party acted unreasonably by making the motion.

[81] I am satisfied that it was unreasonable for the Township to bring the motion without obtaining Clerk Treasurer Mauer’s evidence, since she was a principal actor for the Township and the issues of what she knew and did (as well as her motivations) are central to the dispute. It was also unreasonable to bring the motion without corroborating evidence from anyone as to the alleged verbal threats and harassment.

[82] In terms of quantum, the parties have both provided Bills of Costs. They are similar in terms of the number of hours and amount charged for partial indemnity costs. Therefore, overall, the number of hours should have been within the Township’s reasonable contemplation. Additionally, the rates charged are appropriate.

[83] As such, I award the Plaintiffs substantial indemnity costs in the amount of $71,344.

Papageorgiou J. Released: October 21, 2024