Ontario Superior Court of Justice

Court File No.: CV-20-74337
Date: 2025-05-23

BETWEEN:
Anthony Falasca, Jeannine Falasca, Myles Falasca, and Arianna Falasca
Plaintiffs
— and —
Paul Mazza, Tasha Mazza, Mary Ann Ley, Lawyer X, X Law Firm, The City of Hamilton Police Services Board, Hamilton Police Service, City of Hamilton, Chief Eric Girt, Detective Andrew Dunlop (#681), and Officer L. Beaulne
Defendants

Heard: December 3, 2024

Counsel:
M. A. Swadron and Sarah M. Latimer, for the Plaintiffs
H. W. Reininger, for the Defendants Paul Mazza and Tasha Mazza
Patricia D’Souza, for the Defendants Hamilton Police Services Board and Detective Andrew Dunlop

Reasons for Judgment
S. Antoniani

Overview

[1] Paul Mazza and Tasha Mazza (the “Mazza Defendants”) are embroiled in a number of lawsuits with the plaintiff Anthony Falasca. The lawsuits arise out of the parties’ involvement in joint business ventures. In 2017, on a complaint brought by the Mazza Defendants, Detective Andrew Dunlop of the Hamilton Police Service (“HPS”) commenced an investigation into the activities of Anthony Falasca for possible fraud. In February 2017, Detective Dunlop concluded that reasonable and probable grounds existed, and Anthony Falasca was charged with fraudulent conversion over $5,000 pursuant to ss. 322(1)(a) and 334(a) of the Criminal Code, RSC 1985, c C-46.

[2] In 2018, the prosecution of Anthony Falasca was underway. Crown attorney Craig Fraser was assigned to review the prosecution file, and to determine whether there was a reasonable prospect of conviction. Craig Fraser concluded that there was no reasonable prospect of conviction, and that the charge should be withdrawn.

[3] Anthony Falasca was advised of this decision, in writing through his counsel, on April 5, 2018 and the charge was withdrawn on May 1, 2018.

[4] On November 4, 2020, the within action was initiated by notice of action, claiming malicious prosecution, negligent investigation, misfeasance, failure to withdraw charge, and abuse of process – all in relation to the criminal charge. As against the Mazza Defendants only, the claim also included an additional factual allegation of abuse of process, alleging that they wrongly caused a bankruptcy proceeding to be initiated against Anthony Falasca on or about June 2, 2018.

[5] The plaintiff Jeannine Falasca and the plaintiffs Myles Falasca and Arianna Falasca are Anthony Falasca’s wife and children, respectively.

[6] The Hamilton Police Services Board and Detective Dunlop (collectively the “Police Defendants”) and the Mazza Defendants bring this motion for summary judgment in relation to those parts of the claim that relate to the criminal prosecution. They seek an order dismissing this action against them on the basis that it is statute-barred by operation of the Limitations Act, 2002, SO 2002, c 24, Sch B, having been commenced six days after the expiry of the limitation period.

[7] The Mazza Defendants also bring a motion for summary judgment with respect to the abuse of process claim relating to the bankruptcy proceeding commenced on June 2, 2018, arguing that the claim be struck as an abuse of process itself due to the multiplicity of other proceedings already underway, which they argue address the same issue. This additional claim for relief was not set out in the Mazza Defendants’ notice of motion. It was first raised after examinations for discovery were completed, in their reply factum.

[8] Finally, the Mazza Defendants seek an order striking out paragraphs 14, 61-66 and 95 of the affidavit of Anthony Falasca, sworn in support of the motion for summary judgment, on August 16, 2022.

[9] The action was previously discontinued as against the remaining defendants.

Issues

1. Is the motion to strike the abuse of process claim against the Mazza Defendants only, properly before me and, if so, should the claim be struck as an abuse of process itself, due to a multiplicity of other proceedings which address the same issue?
2. Is this an appropriate case for summary judgment in respect of the claims related to the criminal prosecution of Anthony Falasca, on the issue of whether it is statute barred?
3. If the claims related to the criminal prosecution are appropriate for summary judgment, are those claims statute barred, having been commenced outside the limitation period?
4. Should paragraphs 14, 61-66 and 95 of the affidavit of Anthony Falasca, sworn August 16, 2022, be struck out?

Decision

[10] For the reasons that follow, I find that the plaintiffs’ claims in relation to the criminal prosecution of Anthony Falasca, including the abuse of process allegations which relate to that prosecution, are statute barred and are dismissed against all defendants.

[11] The plaintiffs’ claim of abuse of process as against the Mazza Defendants only, in relation to the bankruptcy proceeding commenced on or about June 2, 2018, is not properly before me and is not decided or affected by this decision.

[12] Given this result, it is unnecessary to address the issues raised in relation to paragraphs 14, 61-66 and 95 of the affidavit of Anthony Falasca, sworn August 16, 2022 in support of this motion for summary judgment.

The Law

The Test on a Motion for Summary Judgment

[13] In accordance with r. 20.04(2) of the Rules of Civil Procedure, RRO 1990, Reg 194, the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial.

[14] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and a judge may exercise any of the following powers under r. 20.04(2.1): (1) weighing the evidence; (2) evaluating the credibility of a deponent; and (3) drawing any reasonable inference from the evidence.

[15] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, para 49, succinctly explained when there will be no genuine issue for trial:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[16] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. Indeed, each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, para 9. Furthermore, “[a] summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial”: Diao v. Zhao, 2017 ONSC 5511, para 18.

Statute of Limitations

[17] The parties agree that if the action, or any part of it, is statute barred, there is no genuine issue for trial in relation to that part which is statute barred.

[18] Pursuant to s. 4 of the Limitations Act, 2002, a proceeding shall not be commenced “after the second anniversary of the day on which the claim was discovered.”

[19] Section 5 of the Act sets out the principles which govern discovery:

Discovery

5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[20] A typical summary judgment motion involving the basic limitation period requires the court to determine whether the record enables it to make findings of fact on the following:

a. The day on which the act or omission on which the claim is based occurred (i.e., the presumptive date);
b. The date of actual knowledge under s. 5(1)(a), if the plaintiffs’ evidence proves the contrary of the presumptive date;
c. The s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances; and
d. Which of the actual knowledge and objective knowledge dates is earlier, for the earlier date will be the day on which the plaintiff discovered the claim for the purposes of applying the basic limitation period of two years.

See Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, paras 34-35; Morrison v. Barzo, 2018 ONCA 979, para 29.

However, even when the elements of ss. 5(1)(a)(i)-(iii) are satisfied, s. 5(1)(a)(iv) provides that a claim is not discovered until the plaintiff first knows that “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”.

[21] In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, paras 42-46, the Supreme Court indicated that a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the part of the defendant can be drawn. A plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence.

[22] The analysis pursuant to s. 5(1)(b) is based upon what “a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known”: Presidential MSH Corporation v. Marr, Forster & Co. LLP, 2017 ONCA 325, para 18.

[23] A plaintiff is not required to possess a comprehensive understanding of his/her potential claim in order for the limitation period to commence. As held by the Court of Appeal for Ontario in Lawless v. Anderson, 2011 ONCA 102, “[t]he question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant.”

[24] Discoverability is a fact-based analysis. The discovery of a claim does not depend upon a plaintiffs’ knowledge that his/her claim is likely to succeed, or on knowledge of the totality of a defendant’s wrongdoing. Only knowledge of the material facts is required, and not the elements of a cause of action.

[25] Whether a plaintiff has the requisite knowledge of the three material elements of s. 5(1)(a)(i)-(iii) can be assessed using direct and circumstantial evidence and includes a consideration as to whether the exercise of due diligence would have enabled the plaintiff to discover these material facts sooner, on a modified objective standard: Grant Thornton LLP, para 44; Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16, para 42.

[26] The presumptive date on which a limitation period starts to run in a claim involving prosecutorial torts, including malicious prosecution and negligent investigation, is the date on which the charge was terminated in favour of the plaintiff: MacKinnon v. Halton Regional Police Services Board, 2020 ONSC 6908, para 14; MacNeil v. Master Corporal Brown, 2018 ONSC 5760, paras 66-67.

[27] In order to assess whether the plaintiffs have overcome the rebuttable presumption that the limitation period began to run on May 1, 2018, when the charge against Anthony Falasca was withdrawn, it may assist to review the elements of the two torts relied upon: malicious prosecution and abuse of process.

Malicious Prosecution

[28] To establish malicious prosecution, four elements must be satisfied, as follows: (1) the impugned prosecution was initiated or continued by the defendant; (2) the proceedings were terminated in favour of the plaintiff; (3) the proceedings were instituted without reasonable and probable grounds; and (4) the defendant must have acted out of malice for a primary purpose other than that of carrying the law into effect: Mammoliti v. Niagara Regional Police Service; Ferri v. Root, 2007 ONCA 79, para 39.

Abuse of Process

[29] A plaintiff alleging abuse of process must prove that: (1) the plaintiff was a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) the plaintiff suffered special damages as a result: Harris v. Glaxosmithkline Inc., 2010 ONCA 872, paras 27-28.

The Positions of the Parties

The Abuse of Process Claim Related to the Bankruptcy Proceeding

[30] As indicated, the statement of claim includes a claim of abuse of process as against the Mazza Defendants only, in relation to bankruptcy proceeding initiated on or about June 2, 2018.

[31] The claim alleges that the bankruptcy proceeding was initiated by a corporation controlled by the Mazza Defendants. In bringing this motion for summary judgment in their favour, the Mazza Defendants did not include any reference to this separate abuse of process claim in their notice of motion, nor did they raise it in their factum. The basis for seeking summary judgment in relation to this abuse of process claim is not a limitation period issue, but based on whether it is abusive due to the existence of a multiplicity of proceedings.

[32] The Mazza Defendants first raised the abuse of process claim relating to the bankruptcy proceeding after examinations for discovery were completed on this motion, in their reply factum.

[33] The plaintiffs argue that the present motion can only be considered a partial summary judgment motion in relation to the claims surrounding the limitation period issue regarding the criminal prosecution (including the related claim that the prosecution was an abuse of process), and cannot include a consideration of the separate abuse of process claim which relates to the bankruptcy proceeding.

[34] The plaintiffs argue that because the bankruptcy related abuse of process claim was not included in the notice of motion for summary judgment, or in the factum in support of the motion, it is not properly before me. They argue that the failure to give proper notice is prejudicial to the plaintiffs, as they had no opportunity to properly respond.

[35] Most persuasively, the plaintiffs argue that the conduct of the Mazza Defendants leading up to the argument of this motion was in conflict with their position during the hearing. At the hearing, the Mazza Defendants maintained that the motion was intended to address the entire statement of claim. My attention was directed to the transcripts of the cross examination of Paul Mazza on this motion. The plaintiffs attempted to cross examine Paul Mazza on facts which form the basis for the claim that the June 2, 2018 bankruptcy proceeding is an abuse of process.

[36] In an exchange on the record during the attempted cross examination, counsel for the Mazza Defendants, Mr. Reininger, refused to permit cross examination in relation to the bankruptcy proceeding. Counsel clearly objected on the basis that the present motion is only in relation to the criminal prosecution. Specifically, Mr. Reininger stated as follows, at p. 36 of the transcript:

That’s exactly what the motion record says. It doesn’t say anything about the rest of the action. The motion record is the claim for malicious prosecution and to cause malicious prosecution. Page two of my motion, two grounds for the motion one and two strictly relate to the malicious prosecution action and the limitation period. It’s not a motion for summary judgment on the merits of the entire action. [Emphasis added.]

Despite this position taken at that time, the Mazza Defendants now argue that the present motion does in fact include a request that the court dismiss the additional abuse of process claim. They now complain that the plaintiffs did not warn them of their intention to object to the inclusion of the abuse of process claim in this motion.

While it may have been preferable that the plaintiffs indicated their intention to object to inclusion of the abuse of process claim relating to the bankruptcy proceeding in the present motion for summary judgment, I agree with the plaintiffs on this issue. Counsel for the Mazza Defendants was very clear – he prevented cross examination on the bankruptcy on the basis that the present motion is only intended to address the limitation period issue and the criminal prosecution-related claims. To allow the additional abuse of process claim to be considered as part of this motion would be unfair to the plaintiffs, who had no reasonable notice, and who were prevented from cross examining on the issue.

[37] I decline to consider the claim of abuse of process in relation to the bankruptcy proceeding on this summary judgment motion. That claim will continue as against the Mazza Defendants only (the claim is not relevant to the other defendants).

The Malicious Prosecution Claim

Can the Malicious Prosecution Claim Be Dealt With by Summary Judgment?

[38] The plaintiffs took no firm position as to whether this claim is appropriate for summary judgment. They suggested that while it may be possible that the matter be determined on this motion, it may also be necessary to make findings of fact as to whether the newly discovered evidence was exculpatory, or whether the police investigation was adequate. Those findings would require viva voce evidence.

[39] In my view, the answers to these questions do not need to be resolved for the purpose of this motion. I am satisfied that the record is sufficient to determine the limitation period issue, which is dispositive of the matter.

The Limitation Period in Respect of the Malicious Prosecution Claim

[40] There is no dispute that the presumptive date that the limitation period started to run was the date that the charge was withdrawn, on May 1, 2018. The parties agree that if the presumptive date applies, then the claim was commenced six days beyond the two-year anniversary of the presumptive date, on November 4, 2020, and is statute barred.

[41] The parties agree that limitation periods in Ontario were suspended pursuant to the Limitation Periods, O. Reg. 73/20 for 183 days or 26 weeks from March 16, 2020 to September 14, 2020, as part of the province’s response to the COVID-19 pandemic. This had the effect of extending the limitation period for any claims in this action from May 1, 2020, to October 30, 2020.

[42] The onus is on the plaintiffs to rebut the presumptive date.

Analysis

The Theory of the Prosecution and the “New Information” Learned on June 20, 2018

[43] The police theory of the case is described in the notes from the January 17, 2017 interview of Anthony Falasca, and in the evidence of Detective Dunlop. Those notes were provided to Anthony Falasca in April 2017 as part of disclosure of the Crown’s case. Also included in that disclosure was information that Detective Dunlop had met with two Crown attorneys to discuss his investigation, and that each of the Crown attorneys had expressed the opinion that there was sufficient evidence to support the laying of a charge.

[44] The plaintiffs argue that the presumptive date should not be applied in this case. They argue that the presumption was displaced when the plaintiff Anthony Falasca had an encounter with prospective witness Marco Coccia on June 20, 2018.

[45] It is the plaintiffs’ evidence that, during the encounter, Anthony Falasca first learned information which was crucial to his understanding of the nature of the injury and that a proceeding would be an appropriate way to remedy it. As such, the plaintiffs argue that the limitation period began on June 20, 2018.

[46] The specific information Anthony Falasca claims he learned was that the Police Defendants failed to pick up documents from Marco Coccia. The police had interviewed Marco Coccia and Liz Coccia, Marco’s sister-in-law, and both indicated that they had provided loans to Anthony Falasca at various times. They offered to provide documents that would corroborate their information. As of the date the charge was withdrawn, the police had not picked up those documents. Anthony Falasca argues that he was not aware of this fact, which he now refers to as his evidence of negligence and malice on the part of police.

[47] The amended statement of claim seeks general damages against the Police Defendants for “malicious prosecution, conspiracy to cause or effect a malicious prosecution, negligent investigation, misfeasance, abuse of process and failure to withdraw the charge as soon as it was apparent, or ought to have been apparent, that it was unfounded” as well as punitive, aggravated and exemplary damages for physical injury and mental distress and related claims under the Family Law Act, RSO 1990, c F.3 against all defendants.

[48] The plaintiffs also claim against the Mazza Defendants for general and special damages for malicious prosecution, and for conspiracy to cause or effect a malicious prosecution.

[49] The question is whether the plaintiffs had knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the part of the defendants can be drawn. Did the plaintiffs have knowledge on May 1, 2018, of enough facts upon which to base the allegations?

The Criminal Complaint and the Laying of the Charge

[50] Anthony Falasca first met with Detective Dunlop on December 6, 2016. At that time, he became aware that the Mazza Defendants had made a complaint of fraud against him. Detective Dunlop’s notes from that meeting, and his evidence in cross examination, indicate that he and Anthony Falasca discussed the allegations in great detail. Detective Dunlop indicates that Anthony Falasca was told that the Coccias had been interviewed, and that they offered to provide corroborative documents.

[51] The general allegation upon which Detective Dunlop proceeded was that the Mazza Defendants, via a corporation, had a contract with Anthony Falasca to provide concrete and other services. Anthony Falasca hired others to complete the contract. In total, the Mazza Defendants (through a corporation) paid out some $2 million to Anthony Falasca. The payments were made to him on an expectation that the money would be used for the express purpose of use in fulfillment of the contract, but when they investigated, and compared the monies paid to Falasca with the services and materials invoiced, the Mazza Defendants found that there was only support for some $1.2 million. The Mazza Defendants alleged that over $800,000 of the money paid to Anthony Falasca was unaccounted for, and they accused him of fraud. Upon Detective Dunlop’s investigation, he concluded that the unaccounted funds were converted by Anthony Falasca for his personal use, and therefore those funds were obtained fraudulently. As the corporation controlled by the Mazza Defendants had paid out the money, that corporation was an alleged primary victim of the fraud.

[52] In his objection filed in a separate bankruptcy proceeding, which forms part of the record on this motion, Anthony Falasca described the fraud charge as being laid as a result of Paul Mazza’s false claim that he had used far less gravel than he charged for in a building project.

[53] In the months leading up to charge being laid, Anthony Falasca was very involved with the police investigation. He was interviewed on multiple occasions, each time audio recorded. During these interviews, Anthony Falasca provided information, names and documents, and offered to provide more documentation. Among his explanations for the unaccounted-for funds was that he paid many contractors who did work for contract in “cash” and then he transferred funds paid by the Mazza corporation into his own personal account to “pay himself back”. Anthony Falasca was challenged about his access to sufficient funds, given that his family income during this period fell well below the quantum in issue. He explained that some of the cash came from loans he took from various people, including Marco and Liz Coccia. He converted their loans to cash, which he kept in his house. He claimed to have had as much as $350,000 in cash at one time, as he was saving it to build his dream house.

[54] On January 17, 2017, Anthony Falasca and his lawyer met with Detective Dunlop for a second meeting. Again, the meeting was recorded. Detective Dunlop’s notes from that meeting, later disclosed to the plaintiffs, and Detective Dunlop’s evidence in cross examination for this motion, indicate that during this meeting the allegations were discussed in great detail for a second time. The notes also indicate that Anthony Falasca was made aware again of who had been interviewed, and of what information the various witnesses had provided to police.

[55] In the December 2016 and January 2017 meeting, before he was charged criminally, Anthony Falasca was made aware that each of Marco Coccia and Liz Coccia, in addition to numerous other witnesses, had been interviewed by the Detective Dunlop. The Coccia statements were in relation to loans they made to Anthony Falasca over the years. In the two meetings, Anthony Falasca was made aware that the police had not picked up any documents from the Coccia witnesses.

[56] I note that the police had the evidence of the Coccia witnesses by way of their statements, and that the documents referred to were cancelled cheques and invoices that, if and when they were found, produced, and picked up by police, may have served to corroborate their evidence of the loans they told Detective Dunlop that they had made to Anthony Falasca. I note that the evidence the Coccias had to offer that they did in fact make loans was already in the possession of police via their statements, and therefore in the possession of Anthony Falasca via disclosure.

[57] Further, the plaintiffs’ own motion record contains a portion of the disclosure it received on April 6, 2017. Specifically, Detective Dunlop’s summary of the investigation, which states the following: “Dunlop advised that Marco Coccia has provided information to Dunlop and that his records that he has are going to be provided however they had not met up due to other circumstances.”

[58] The plaintiffs’ motion record also includes a number of disclosure requests made by counsel for Anthony Falasca, after the charge was laid, and after receipt of the initial disclosure. The record shows that additional disclosure continued to be made. There is no reason that the plaintiffs could have reasonably held a belief that the police were in possession of this specific disclosure and that it had not been turned over to them. I conclude that the plaintiffs knew early on that the Coccia witnesses had been interviewed, and they knew that the police had not picked up corroborative documents from them.

[59] The plaintiffs argue that they had no access to the Coccia witnesses because the police had interviewed them and therefore they avoided them, and as such were unable to confirm this information prior to the withdrawal of the charge. There is no property in witnesses, and the record shows that the plaintiffs did in fact access other witnesses. Anthony Falasca obtained and presented Detective Dunlop with an affidavit from another witness, Tony Coccia. I consider also that Anthony Falasca was represented by criminal defence counsel.

[60] In Detective Dunlop’s cross examination on the affidavit he swore in support of this motion, he testified that he was advised by the Crown attorneys that the corroborating documents which were available from the Coccias were not necessary evidence, that they were “moot to the point” because the evidence of loans made by those witnesses did not matter in light of the fact that the Crown’s main theory of the case was that Anthony Falasca took money that was provided to him to acquire concrete, and that he converted that money to his personal account and for his personal use. In Anthony Falasca’s interview, he admitted to borrowing the money that was paid by the Mazza Defendants for the contract and using it to pay personal debts.

[61] The record also shows that Detective Dunlop did in fact consider that there may have been loans from Marco Coccia in his assessment of the case, by relying on Marco Coccia’s statement. The summary notes from the recorded interview of Anthony Falasca in January 2017, indicate the following discussion between Detective Dunlop (“AD”) and Anthony Falasca (“Falasca”). The exchange begins with Detective Dunlop’s explanation of his conclusions that there is money unaccounted for:

AD says it’s based on the accounting through their invoicing, compared to Falasca’s financial records which they had. They compared and what AD is basing it on is the money AD cannot locate. What he can locate was the money paid out – Marco Coccia loans that Falasca took privately.
AD confirms that Coccia was paid $350,000 by 570 [570 is a reference to Falasca’s account] – $50,000-55,000 that he invoiced for the project, the rest was personal loans to Falasca. It’s written down that way and that’s what he’s comparing.

[62] I note the words in square parenthesis added by me to provide context to the excerpt.

[63] As such, Detective Dunlop appeared to be taking the Marco Coccia loan evidence at its highest when assessing the evidence. More to the point in this analysis, Anthony Falasca appears to have been advised specifically that Detective Dunlop was relying on Marco Coccia’s evidence to assess the case, even before he received the cancelled cheques which would have corroborated that statement.

[64] On the date of Anthony Falasca’s arrest on February 2, 2017, there is another recorded conversation between Detective Dunlop and Anthony Falasca. On this occasion, the summary states:

AD noticed that he’s taking loans from Marco Coccia and asks if they were personal loans.
Falasca - they were personal loans
AD confirms amounts from $1,000 to $30,000
Falasca - but some of that money I used because, keep in mind he gave me some of that money, some of that cash money that I had already was from Marco Coccia.
AD says Falasca would take loan from Marco Coccia and have cash money
Falasca - Exactly. I’d pull it out in cash. Like I said to you, I was saving up to build a house - my dream home. That’s why I had all that cash.

[65] Again, this excerpt suggests that Anthony Falasca was made aware that the Coccia evidence was known by police, and considered, even before the charge was laid.

[66] Anthony Falasca provided Detective Dunlop with documents which he claimed had forgeries of his signature on them. He believed that his signature had been forged by Paul Mazza, and he wanted the police to have the signatures examined at the Centre of Forensic Science (“CFS”). On April 11, 2017, Anthony Falasca was advised in writing that the police did not intend to send the documents to CFS, and on May 1, 2017, those original documents were returned to him. If this factored into the allegation of an incomplete investigation, all of the material facts were known before the presumptive date of May 1, 2018.

[67] There is no suggestion that the police failed to provide what they did accumulate.

[68] The argument that the limitation period did not start on the presumptive May 1, 2018 date is strictly that Anthony Falasca alleged he learned in June that the additional documents were not picked up from the Coccias. The plaintiffs’ position is that this information triggered their appreciation of the plausible liability of the defendants.

[69] Well ahead of May 1, 2018, the date that the charge was withdrawn, Anthony Falasca had received a DVD copy of Detective Dunlop’s interview with Liz Coccia, as well as the notes of the interviews of Tony Coccia, and all other witnesses.

[70] On February 2, 2017, Anthony Falasca was arrested and charged. It is not contested that on that date, Detective Dunlop explained to Anthony Falasca that the decision to lay the charge was based on conversations with the Mazza’s bookkeeper and the evidence of other complainants. Anthony Falasca was told that police had reasonable and probable grounds to believe that he had taken money from the complainants for one purpose and then converted the funds to pay personal bills. It is apparent that the explanation provided took into account the possibility that Anthony Falasca had received loans from the Coccias.

[71] Anthony Falasca was active in contributing information and documentation to police during the investigation.

[72] I have reviewed the statement of claim with a view to assessing what material facts were known to the plaintiffs as of May 1, 2018 when the charge was withdrawn, and to assess the claims.

[73] The statement of claim pleads the following facts:

i. Paul Mazza sought the assistance of his close friend or associate, former HPS Officer George Giacinti, who introduced him to Detective Dunlop. Detective Dunlop agreed to assist Paul Mazza.
ii. Paul Mazza persuaded Detective Dunlop to charge Anthony Falasca with fraud, without conducting a proper investigation. Paul Mazza procured Detective Dunlop’s cooperation through means currently unknown to Anthony Falasca.
iii. Detective Dunlop violated his obligation to act fairly, honestly, thoroughly, and dispassionately in laying such a charge.
iv. Detective Dunlop deliberately maintained a closed mind and ignored Anthony Falasca’s exculpatory evidence.
v. Detective Dunlop chose not to interview relevant witnesses, or Anthony Falasca, before or after arresting Anthony Falasca.
vi. Detective Dunlop’s investigation was intentionally incomplete and was done in a cursory and negligent fashion.
vii. Detective Dunlop, at Mazza's behest, caused Anthony Falasca to be charged on or about February 2, 2017, with fraudulent conversion over $5,000, under ss. 322(1)(a) and 334(a) of the Criminal Code.
viii. The charge was laid without proper grounds.
ix. Paul Mazza pressed the Crown attorney to aggressively prosecute the false charge.

It is undisputed by the plaintiffs that all of these material facts were known to them prior to May 1, 2018.

On this motion, the plaintiffs argue that “[w]hen the Charge was withdrawn by the Crown 15 months later on May 1, 2018, on the basis that there was no reasonable prospect of conviction, Tony had no reason to suspect that the police investigation itself was inadequate or negligent.” I note that this statement is in conflict with all of the other facts pled.

Most of the facts pled are allegations that relate to the conduct of the allegation prior to the laying of the charge. The allegations that Detective Dunlop violated his obligation to act fairly, honestly, thoroughly, and dispassionately in laying such a charge, refused to interview witnesses, ignored Anthony Falasca’s exculpatory evidence, that he refused to interview Anthony Falasca prior to laying the charge, and that the charge was laid without proper grounds – all relate to actions taken by the detective prior to the laying of the charge. The allegation that he refused to interview Anthony Falasca appears obviously untrue, but the other claims were facts clearly known on or before the date of receipt of disclosure, in April 2017.

In fact, the statement of claim does not rely on any material facts Anthony Falasca may have learned after May 1, 2018, in particular in relation to the claim of police negligence in the conduct of the investigation.

The facts actually pled were all known to the plaintiffs before May 1, and represent the plaintiff’s theory of how the police investigation was negligent and the prosecution malicious. The pleadings disclose that the plaintiffs had knowledge, actual or constructive, of sufficient material facts upon which a plausible inference of liability could be drawn.

It is evident from Anthony Falasca’s interviews with Detective Dunlop that Anthony Falasca’s position was that the Mazza Defendants were presenting false evidence and trying to get him charged. Anthony Falasca knew what was being alleged, and he offered to provide evidence to rebut the allegations. There is no doubt that he was fully apprised of the information upon which Detective Dunlop formed his grounds for the laying of the charge, as of the date of his arrest, including his having taken the Coccia loan evidence into account.

The charge was laid on information known to Detective Dunlop in February 2017. The existence of reasonable and probable grounds to lay the charge crystallized on that date. The plaintiffs’ position that they discovered that there “never were reasonable and probable grounds for the charge” months after the withdrawal of the charge is not supported by the record.

Detective Dunlop’s notes and his evidence in cross examination include the specific grounds he relied upon and reference the fact that he met with the Crown attorney to discuss the sufficiency of those grounds before laying the charge.

In relation to the final element of malicious prosecution, Anthony Falasca alleged malice toward him as the motive of the Mazza Defendants in his first meeting with Detective Dunlop, even before the charge was laid, and maintained that position thereafter. The claim alleges that Detective Dunlop’s motive for malice was yet unknown at the time of the issuance of the claim. The alleged meeting with Marco Coccia in June did not impact this allegation.

In considering the plaintiffs’ knowledge of material facts upon which they base their claim for malicious prosecution, and the elements of malicious prosecution, I note that all of allegations rely upon information known prior to May 1, 2018. The plaintiffs knew that (1) the impugned prosecution had been initiated or continued by the defendants; (2) that the proceedings were terminated in favour of Anthony Falasca; (3) on the basis of the facts pleaded, it is clear that the plaintiffs were possessed of the only facts upon which they could allege that the proceedings were instituted without reasonable and probable grounds; and (4) the plaintiffs alleged from the outset, and prior to being charged, that the defendants must have acted out of malice for a primary purpose other than that of carrying the law into effect.

The singular piece of evidence relied upon to extend the limitation period is a fact which is not referenced in the claim: the alleged meeting with Marco Coccia and the information that the cancelled cheques and other documents which would have corroborated Marco Coccia’s evidence about his loans to Anthony Falasca had not been picked up by Detective Dunlop by the date of the withdrawal of the charge.

I reject the argument that the fact that some supporting evidence had not been picked up before May 1, 2018, vested the plaintiffs, on June 20, 2018, for the first time, with a plausible inference of the defendants’ liability, especially since the statements of those witnesses were already in police possession and were taken into account by Detective Dunlop.

Further, the alleged new information, the “failure to pick up documents”, if it could have triggered their understanding of liability, which argument I reject, could only have plausible relevance to the allegation of negligent investigation. The primary object of the complaint is the allegation of malicious prosecution. That and the other torts are focused on the commencement of the investigation on false allegations from the Mazza Defendants and on the laying of the charge without reasonable and probable grounds – all facts which relate to dates leading up to the laying of the charge, long before the May 1, 2018 date on which the charge was withdrawn.

The June 20, 2018 Information and the Mazza Defendants

I have already rejected the plaintiffs’ claim that the June 20, 2018, encounter extended the presumptive date on which the limitation period began to run.

[74] I note that, even had I found that the June 2018 meeting was material to the plaintiffs’ understanding of their claims, which argument I have rejected, any alleged failure to retrieve that evidence could only demonstrate possible police negligence, or intentional wrongdoing by the police. The alleged failure of the police to pick up further evidence is irrelevant to the claims against the Mazza Defendants, and the discovery could never have impacted the plaintiffs’ understanding of their claims against those defendants.

[75] The factual allegations against Paul Mazza and Tasha Mazza are that these defendants used their friendship and influence to obtain an introduction to Detective Dunlop, and that they presented and pursued false claims of criminal fraud and pressed the police to lay the charge. There is no allegation that the Mazza Defendants were actively involved in the police investigation other than as complainants. Specifically, there is no allegation that the Mazza Defendants were responsible for collecting evidence, such that a failure to collect evidence is irrelevant to any action against them.

[76] I find that the information learned by Anthony Falasca on June 20, 2018, even if it had triggered his appreciation of the potential liability of the Police Defendants, which position I have rejected, could have had no impact on the claims against the Mazza Defendants, and therefore could not have worked to extend the limitation period against them.

Conclusions

[77] In summary, I find that the material facts which the plaintiffs plead to make out the plausible liability of the defendants, and the constituent elements of the torts of malicious prosecution, negligence, and the elements of the related claims, were all known to the plaintiffs by May 1, 2018.

[78] I find that learning of any failure to collect corroborative evidence was at best a detail which, if accepted to be relevant, might corroborate the allegations, but was a minor detail in the factual matrix of these events. I am satisfied, on a balance of probabilities, that it could not have been the singular piece of information that triggered the plaintiffs’ appreciation of the plausible liability of any of the defendants.

The plaintiffs have not presented evidence to displace, on a balance of probabilities, the presumptive date on which the limitation period started to run.

Order

[79] The claims relating to the criminal prosecution of Anthony Falasca, including the allegation that the prosecution was an abuse of process, are statute barred, having been commenced outside of the limitation period.

[80] The motion for summary judgment is granted, in part. The claims as against all defendants in relation to the prosecution of Anthony Falasca for fraudulent conversion are dismissed.

[81] The abuse of process claim against the Mazza Defendants relating to the bankruptcy proceeding commenced on or about June 2, 2018, is not affected by this order.

Costs

[82] I would urge the parties to agree on costs. If the parties are unable to agree, then costs submissions may be made as follows:

a. Within 15 calendar days of the distribution of these reasons to counsel, the defendants shall serve and file their written costs submissions, not to exceed three pages, double-spaced in 12-point font, together with a draft bill of costs and copies of any pertinent offers;
b. The plaintiffs shall serve and file their responding costs submissions of no more than three pages, double-spaced in 12-point font, together with a draft bill of costs and copies of any pertinent offers, within 25 calendar days of the distribution of these reasons;
c. The defendants’ reply submissions, if any, are to be served and filed within 30 calendar days of the distribution of these reasons, and are not to exceed two pages;
d. If no submissions are received from a party within the time allocated, said party shall be deemed to have no submissions; and
e. If no submissions are received from either party, the parties will be deemed to have resolved the issue of the costs, and costs will not be determined by me.

S. Antoniani

Released: May 23, 2025