D.M. v. M.C.B., 2026 ONSC 1349

Court File and Parties

Citation: D.M. v. M.C.B., 2026 ONSC 1349 Court File No.: CV-25-00000256-0000 Date: 2026-03-05

Superior Court of Justice – Ontario

Re: D.M., Plaintiff And: M.C.B., Defendant

Before: Justice Mandhane

Counsel: Self-Represented, for the Plaintiff Self-Represented, for the Defendant

Heard: February 5, 2026

Endorsement

PUBLICATION BAN

The identity of the defendant and information that could disclose such identity shall not be published, broadcast or transmitted in any way, pursuant to previous court orders.¹

INTRODUCTION

1The parties met on a dating app and had a brief intimate partner relationship in or around February 2021. On April 17, 2021, the defendant reported to police that she had consensual sexual intercourse with the plaintiff, but that the plaintiff continued to have sexual intercourse with her after she revoked her consent by saying "no" and "stop", and she suffered injuries as a result.

2On April 19, 2021, the police charged the plaintiff with aggravated sexual assault contrary to s. 272(1)(c) of the Criminal Code. Between January 16 and 23, 2023, the matter proceeded to trial. The plaintiff pleaded not guilty. The Crown prosecuted the case and called the complainant as its only witness. At the close of its case, the Crown asked the trial judge to convict the plaintiff on the lessor included offence of sexual assault. The plaintiff was represented by defence counsel and did not take the stand.

3On January 23, 2023, the trial judge acquitted the plaintiff, stating that:

Bearing in mind the presumption of innocence and the onerous burden of proof on the Crown, and some of the frailties of the testimony of the [defendant] who was the only witness at trial, I cannot find beyond a reasonable doubt on the record before me that the sexual activity did not stop virtually immediately after consent was revoked.

In terms of the frailties, first, the trial judge noted that "there were a number of lapses in [the defendant's] memory in terms of details of that particular afternoon", such that "it seemed the only clear recollections that [the defendant] had of that afternoon were the some 60 to 70 seconds which involved intercourse and her revoking her consent". Second, the trial judge found that the defendant's testimony was equivocal as to how long the plaintiff continued to have sexual intercourse with her after she said "stop" and froze. For example, under cross-examination, the defendant testified that the plaintiff stopped "shortly after", agreed that the plaintiff "went limp immediately" after she froze, and also admitted that he might have stopped because she told him to.

4On January 16, 2025, the plaintiff brought a civil claim against the defendant for defamation and malicious prosecution, claiming over $460,000 in damages. He says that the defendant made false allegations to the police that resulted in his prosecution, damaged his reputation, caused him mental distress, and interfered with his employment and relationships.

5The defendant now brings a motion to have the plaintiff's Statement of Claim struck without leave to amend. She says that it is an abuse of process because the plaintiff is trying to relitigate matters that were decided at the criminal trial: r. 25.11(c). In the alternative, she says that I should strike the claim because it is time barred, or because it does not disclose any reasonable cause of action: r. 21.01(1)(a)(b). She says that the plaintiff should have launched his claim within two years of the charges against him being laid. In any event, based on the findings at the criminal trial, she says that it is plain and obvious that the defendant will not be able to prove that she initiated the prosecution against him, or that she defamed him by going to the police to complain about the alleged sexual assault.

6The plaintiff opposes the motion; he says that his action has sufficient merit to proceed to a hearing on the merits. He says that his claim is not abusive because he is entitled to try to prove his version of events on a civil standard, and that it is not time-barred because it was launched within two years of his acquittal.

7Both parties filed affidavit evidence in support of their positions.

[8] The issues I must decide are:

• What evidence is admissible on a pleadings motion?
• Is the plaintiff's claim an abuse of process?
• Is the plaintiff's claim time-barred?
• Is it plain and obvious that the plaintiff's claim will fail?

9Based on my answers to these questions, I would allow the defendant's motion and strike the plaintiff's pleadings without leave to amend.

ANALYSIS

What evidence is admissible on a pleadings motion?

10Rule 21 motions generally proceed based on pleadings alone, and I must take the facts pleaded as true or capable of proof unless they are patently ridiculous or incapable of proof: r. 21.01(2). I have no discretion to admit evidence where the defendant claims that the plaintiff's action should be struck because it discloses no reasonable cause of action: r. 21.01(2)(b). On that basis, I refuse to consider any of the affidavit evidence when determining whether the various aspects of the claim are abusive or have any reasonable prospect of success.

11That said, I have some residual discretion to admit evidence where the defendant asks me to strike a claim based on my answer to a question of law: r. 21.01(2)(a). Here, both parties proffered evidence and neither party objected to me considering it. Therefore, for the purpose of determining whether the plaintiff's claim is time barred, I am prepared to admit only the aspects of the affidavit evidence that are relevant and probative to that discrete issue (which I will discuss below).

12In any event, as it relates to both aspects of the motion to strike, I have considered the trial judge's reasons for judgement in the criminal matter because these were incorporated by reference into the plaintiff's pleadings: 2130679 Ontario Inc. v. The Cora Franchise Group Inc., 2013 ONSC 3099, at para. 8; White Point Capital Inc. v. Communitylend Holdings Inc., 2022 ONSC 5146, at para. 25. I also considered the plaintiff's reply to demand for particulars because his responses are considered an exception to the general rule: White Point Capital Inc., at para. 26.

Is the plaintiff's claim an abuse of process?

13The short answer is no. The criminal trial and the criminal proceedings involve different parties, answer different legal questions, and impose different burdens of proof, even if the proceedings revolve around the same set of facts. In the criminal trial, the Crown was required to prove beyond a reasonable doubt that the plaintiff knowingly touched the defendant in circumstances of a sexual nature without her consent. In the civil trial, the plaintiff will have to prove on a balance of probabilities that the defendant maliciously initiated a prosecution against him, defamed him, and intentionally inflicted emotional distress upon him. These factual and legal inquiries at play in the two proceedings are fundamentally different such that there is no risk of inconsistent verdicts. It is for the same reason that there is no bar on complainants in criminal cases seeking civil redress for conduct that was the subject of criminal charges.

Should the Plaintiff's claim be struck because it is time barred?

14The parties agree that the key issue here is whether the plaintiff launched his claim within two years of discovering it; if not, it must be struck: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., s. 4. Discoverability refers to the date on which a reasonable person in the same circumstances as the plaintiff first ought to have known that the injury, loss or damage had occurred: Limitations Act, 2002, at s. 5. A person with a claim is presumed to have known that the injury, loss, or damage occurred on the day the act or omission on which the claim is based took place, unless the contrary is proven: Limitations Act, 2002, s. 5(2).

[15] To decide this issue, I considered the following evidence because it was relevant and probative to the issue of discoverability:²

• The defendant's evidence that she reported to the police on April 17, 2021, that the plaintiff was charged on April 19, 2021, that his criminal trial commenced on January 16, 2023, and that he was acquitted the same day.
• The investigating police officer's evidence that the plaintiff was arrested on April 19, 2021.
• The plaintiff's evidence that the defendant called police on April 16, 2021, that she provided a statement to police on April 17, 2021, that he was arrested on April 19, 2021, that his criminal trial commenced on January 16, 2023, that the complainant was the only witness at trial, that he did not testify, and that he was acquitted on January 23, 2023.

16Turning now to the substance of this argument. The claim for malicious prosecution is not time-barred because the limitation period presumptively began to run after the plaintiff's acquittal: Falasca et al. v. Mazza et al., 2025 ONSC 1893, at para. 26, referring to Simanek v. Ontario. The plaintiff brought his claim for malicious prosecution within two years of being acquitted, which is within the presumptively applicable period.

17However, the claims for defamation and intentional infliction of emotional distress are time-barred. As a factual matter, the plaintiff's claims for defamation and intentional infliction of emotional distress are grounded in the defendant's allegedly false statements to police on April 17, 2021. In my view, the plaintiff would have been aware or "discovered" that the defendant had made this allegedly false statement on April 19, 2021—when he was arrested for sexual assault. Therefore, the limitation period on the plaintiff's defamation and intentional infliction of emotional distress claims started running on April 19, 2021, which is the date on which the plaintiff would have discovered that he had a claim based on the defendant's allegedly false statements to police. Put differently, there is no way that the criminal prosecution could remedy the harm that the plaintiff now complains of, as such it would make no sense for the limitation period to only start to run after his acquittal: Kulyk v. Guastella, 2021 ONSC 584, at para. 34; Brown v. Becks, 2017 ONSC 4218, 386 C.R.R. (2d) 1, at paras. 26-35.

Is it plain and obvious that the plaintiff's claim will fail?

18It is critical to the viability of the civil justice system that claims that are doomed to fail be disposed of at an early stage: Atlantic Lottery Corp Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420, at para. 19. To strike the plaintiff's claim for malicious prosecution, the defendant must satisfy me that it is "plain and obvious" and "beyond doubt" that the plaintiff's claim cannot succeed, or that it has "no reasonable prospect of success".

19The bar is set high because a successful r. 21 motion deprives the plaintiff of the opportunity to prove their claim in court. Since r. 21 motions are meant to dispose of cases at an early stage, I should not strike a claim simply because it raises novel issues or appears hopeless, nor should I do so simply because the defendant has a strong defence: Saygili v. Progressive Casualty Insurance Co., 46 O.R. (3d) 10 (S.C.), at para. 17, leave to appeal refused, [2000] O.J. No. 2017 (Ont. Div. Ct.). However, I can strike a claim that is subject to a "radical defect" meaning that "there is an existing bar in the form of a decided case directly on point from the same jurisdiction demonstrating that the very same issue has been squarely dealt with and rejected by our courts": Mathur v. Ontario, 2020 ONSC 6918, 471 C.R.R. (2d) 225, at para. 39, citing Dalex Co. v. Schwartz Levitsky Feldman (1994), 19 O.R. (3d) 463 (S.C.), at para. 6.

20To ground his claim for malicious prosecution, the plaintiff's Statement of Claim alleges that the defendant was instrumental in commencing criminal proceedings against him, that she commenced the proceedings "without reasonable and probable cause", that she acted with malice or for an improper purpose, that she provided misleading evidence and withheld exculpatory information, and that the facts were so peculiarly within her knowledge that it was impossible for the police or Crown to exercise any independent discretion in deciding whether or not to lay the charge.

21To make out a claim for malicious prosecution, the plaintiff must prove on a balance of probabilities that the proceedings were initiated by the defendant; that they were terminated in the plaintiff's favour; that there was an absence of reasonable and probable cause; and there was a presence of malice, or a primary purpose other than that of carrying the law into effect: Nelles v. Ontario, [1989] 2 S.C.R. 170, at para. 42. The bar is high to avoid creating a chill on individuals reporting crimes to police, which benefits society: Curley v. Taafe, 2019 ONCA 368, at para. 20.

22Given the test set out in Nelles, the police officer who lays the charge is generally the target of a claim for malicious prosecution. It is exceptional, but not impossible, for a plaintiff to bring a malicious prosecution claim against a complainant. The complainant may be treated as the prosecutor where the complainant desired and intended that the plaintiff be prosecuted; the facts were so peculiarly within the complainant's knowledge that it was virtually impossible for the prosecutor to exercise any independent discretion; and the complainant procured the prosecution either by furnishing false information, withholding truthful information, or both: Kefeli v. Centennial College of Applied Arts & Technology, at para. 24.

23The key question is whether it was the complainant—rather than the police or prosecutor—who wrongfully set in motion the criminal law against the plaintiff because of malice or some other 'improper purpose': Kefeli, para. 26; Pate v. Galway-Cavendish, 2011 ONCA 329, 342 D.L.R. (4th) 632, at para. 36. The plaintiff's pleadings must provide particulars that give rise to an inference of malice or improper purpose, though malice may sometimes be inferred from the surrounding circumstances: Kefeli, at paras. 28-29, referring to r. 25.06(8); Galway-Cavendish, at para. 32; Curley, at para. 14. Even where a complainant gives a false statement, the court should ask whether the police still exercised their independent discretion in laying charges and if the police exercised their discretion, the complainant cannot be found to have initiated the prosecution: D'Addario v. Smith, 2018 ONCA 163, at paras. 25-29.

24In my view, the plaintiff's claim of malicious prosecution has no reasonable prospect of success on the uncontroversial facts before me. Even if the facts pleaded in the statement of claim are true—and the defendant lied or misled the police—the plaintiff cannot and will not be able to establish that the defendant initiated the prosecution. As a general rule, a sexual assault complainant cannot be said to have put herself in the place of the prosecutor where the police investigate the complaint after it is made; the police exercise their discretion to lay criminal charges; the Crown exercises its discretion to proceed to trial; the Crown calls the defendant as a witness; and the trial judge acquits the accused without making any negative credibility findings against the complainant. This is different from situations where the complainant recants and the charges are withdrawn, or where the trial judge makes negative credibility findings against the complaint after trial: Sethi v. Kaur, 2025 ONSC 5760; Ramezani v. Najafi, 2021 ONSC 7638, at para. 333.

CONCLUSION

25The plaintiff's statement of claim is struck without leave to amend because it is fatally flawed and there is no reasonable prospect of success.

26The parties were self-represented and neither of them claimed any costs; therefore, no costs are awarded. I am not seized.

Mandhane J.

Footnotes

1. 1As of August 30, 2021, there has been a publication ban in place in relation to the criminal law proceedings: Criminal Code, R.S.C. 1985, c. C-46, ss. 486.4(1) and 486.6. That ban applies in relation to these proceedings: H.A. v. S.M., 2017 ONSC 5650, 140 O.R. (3d) 222, at paras. 12-18.
2. 2I did not consider evidence from the defendant's psychotherapist because it was irrelevant.