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Abuse of Process - Tort - 'Plaintiff a Party to Process Initiated by Defendant'. Konstan v. Berkovits
In Konstan v. Berkovits (Ont CA, 2024) the Ontario Court of Appeal sets out criteria for the tort of abuse of process, and then examines trial errors in the first element of that test ["plaintiff was a party to a legal process initiated by the defendant"]:[27] As held in Harris v. Glaxosmithkline Inc., 2010 ONCA 872, 106 O.R. (3d) 661, leave to appeal refused, [2011] S.C.C.A. No. 85, at paras. 27-28, 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 has suffered special damages as a result. [28] The trial judge found that Maria had “clearly satisfied” the first element of abuse of process but did not explain how he reached this conclusion. His finding is, however, consistent with his assessment of Maria’s malicious prosecution claim. The first element of that tort is that the criminal proceedings “were initiated by” the defendant: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 53. The trial judge held that Jack and Hosseini’s role in reporting the murder for hire plot to police satisfied this element, stating:As set out in Miazga, Maria must prove that Jack and Hosseini were “actively instrumental” in setting the law in motion against Maria. Without the participation of Jack and Hosseini (who were the only witnesses interviewed by the police), Maria would never have been arrested or charged.
The police’s entire investigation consisted of (a) Jack attending 13 Division to “have a file opened”, and (b) Jack and Hosseini providing their sworn statements to police. The criminal proceedings against Maria were clearly initiated by Jack and Hosseini. [29] In short, the trial judge found that Jack and Hosseini initiated the criminal prosecution because, but for their sworn statements to police, no investigation would have been undertaken and no charges would have been laid.[2] It follows that he would find, in the context of Maria’s abuse of process claim, that she “was a party to a legal process initiated by” Jack and Hosseini and that she therefore satisfied the first element of her abuse of process claim.
[30] In my view, the trial judge misapprehended the criteria for the first element of abuse of process by wrongly applying a “but for” test instead of more stringent criteria.
[31] The trial judge’s reliance on the language in Miazga was misplaced. The defendant in Miazga was not, as here, a complainant but a Crown prosecutor. It is in this context that the Supreme Court of Canada referred to the requirement that the defendant be “actively instrumental” in setting a prosecution in motion. Even in that context, however, the Supreme Court held that this element is satisfied only “where the defendant Crown makes the decision to commence or continue the prosecution of charges laid by police, or adopts proceedings started by another prosecutor”: Miazga, at para. 53.
[32] The determination of whether a private individual initiated a criminal proceeding involves different considerations. In Ontario, the police officer who laid the charge will generally be considered to have initiated a prosecution: Kefeli v. Centennial College of Applied Arts and Technology, 2002 CanLII 45008 (C.A.), at para. 24; D'Addario v. Smith, 2018 ONCA 163, at para 24. Exceptionally, a complainant will be held to have initiated a criminal prosecution if “the facts were so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment”: Kefeli, at para. 24; D’Addario, at paras. 24-25. In McNeil v. Brewers Retail Inc., 2008 ONCA 405, at para. 50, this court held that the first part of the test for malicious prosecution could also be met in circumstances falling short of the “virtually impossible” standard:[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 withholds information in the knowledge of which the police would not prosecute.” [Citations omitted.] [33] Although this passage suggests that a court could find that a private individual initiated a criminal prosecution by simply proving that a criminal complainant misled the police or withheld exculpatory information, this court in McNeil and in subsequent decisions has imposed a more rigorous standard.
[34] In McNeil, the court held that the first element of malicious prosecution was satisfied not only because the police and the Crown relied wholly on the appellant, which “actively and deliberately misled them”, but because the police were unable, despite diligent investigation, to uncover exculpatory evidence controlled by the appellant: McNeil, at para. 53.
[35] In D’Addario, the trial judge held that proof that the defendants’ statements to the police were false by itself was insufficient to establish that they, rather than the police, initiated the prosecution. He held that there would have to be “evidence that the defendants withheld exculpatory evidence; that they pressured the police in laying the charges or somehow compromised the independence of the prosecution”: D’Addario, at para. 15. The Court of Appeal upheld this decision, based on the trial judge’s assessment that the officer who laid the sex assault charge did so based on her own independent discretion: D’Addario, at paras. 25-26.
[36] Finally, in Pate v. Galway-Cavendish, 2011 ONCA 329, 342 D.L.R. (4th) 632, at paras. 51-53, this court held that, to find that the defendant employer had initiated a criminal complaint against a former employee, the employee would have to prove not only that the employer knowingly withheld exculpatory information from the police and misled the officers into not conducting their own search into relevant records, but that this conduct undermined the independence of the police investigation and the independence of the decision-making process concerning whether to lay charges and prosecute.
[37] The trial judge accordingly misapprehended when a complainant can be held to have initiated a criminal prosecution for the purpose of a subsequent tort action against them by the accused. The question is not whether criminal charges would have been laid in the absence of the complainant’s report to the police. Rather, 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 police to lay charges.
[38] Maria contends that the initiation requirement applicable in a malicious prosecution claim should be relaxed in the context of an abuse of process claim, because the two torts address different misconduct. Citing Tsiopoulos v. Commercial Union Assurance Co., (1986) 1986 CanLII 2531 (ON SC), 57 O.R. (2d) 117 (Ont. H.C.), at para. 13, and Bosada v. Pinos et al., (1984) 1984 CanLII 2096 (ON SC), 44 O.R. (2d) 789 (Ont. H.C.), at p. 8, she argues that malicious prosecution is concerned with the wrongful procurement of a legal process or the wrongful launching of criminal proceedings, whereas abuse of process concerns the misuse of process, even if properly obtained, for any other purpose but that which it was designed to serve. On this argument, not every individual who makes a police complaint would be liable for abuse of process. They would, however, be liable if their predominant purpose in making the complaint was to harm the accused or some other person.
[39] Tsiopoulos and Bosada predate Harris v. Glaxosmithkline Inc., which unequivocally requires that a plaintiff suing for abuse of process prove that they were a party to a legal process “initiated by the defendant”. I agree that abuse of process is a more flexible doctrine than malicious prosecution. There is a difference between relaxing the initiation requirement and eliminating it altogether, however. Maria’s argument effectively collapses the first two elements of abuse of process such that the sole or at least overriding consideration is a defendant’s predominant purpose.
[40] There is a sound policy rationale for a stringent initiation requirement in the context of an abuse of process claim arising from a criminal complaint. It ensures that individuals who genuinely believe they have information about a crime are not discouraged from reporting it to the police because they fear potential exposure to a tort claim by an accused (or some other person) if the information turns out to be inaccurate or incomplete and the prosecution does not result in a conviction.
[41] Applying the criteria in Harris v. Glaxosmithkline Inc., McNeil, D’Addario, and Pate to the trial judge’s findings of fact, Jack did not initiate the criminal prosecution against Maria in July 2010. Her arrest was not based solely or even primarily on the information he provided; his core allegation – that he believed that Maria had offered money to Hosseini to injure him and genuinely feared for his personal safety – was true; he did not have the means to determine whether Hosseini’s account to him of the murder for hire plot was true or false; and he did not obstruct the police investigation or interfere with their independent discretion to lay charges.
[42] The focus of the July 2010 investigation and the charges was the murder for hire plot. The primary source of the information that led the police to arrest Maria was provided by Hosseini. All of Jack’s knowledge of the plot was second hand. The lead investigator, Detective Fritz, testified that he placed little weight on the text messages from Harold produced by Jack.
[43] The trial judge rejected Maria’s argument that Jack’s statement to police about the existence of the murder for hire plot was knowingly false, and that Jack and Hosseini conspired, or acted in concert or with a common design when they made their statements to police. He found that:Jack exaggerated, took liberties, and tendered half-truths to the police when he gave his sworn statements. Those actions were undertaken maliciously to ultimately try to capture Harold in this murder for hire plot. Yet at that early state of this sordid series of events, Jack held a subjective belief that his life or health was in danger. That belief was not concocted. [44] The trial judge further found that Jack had no duty to investigate whether Hosseini was telling the truth about the murder for hire plot.
[45] Most critically, the evidence did not establish that Jack’s misrepresentations, exaggerations, and omissions compromised the police’s independent discretion in deciding to lay charges against Maria.
[46] This is not a situation like McNeil, where Jack had the ability to frustrate an effective police investigation by concealing exculpatory information. He had no direct insight into Maria’s conversations with Hosseini. He had a tape of at least two of his phone conversations with Hosseini, but their contents did not exculpate Maria. There were other sources of information that the police could have investigated prior to Maria’s arrest. For example, they could have sought to interview Maria or Harold, or to obtain the surveillance video from Harold’s store that was eventually produced at trial showing that a conversation between Hosseini, Maria and Harold did in fact take place on July 16, 2010. Beyond giving a statement, Jack took no steps to influence or undermine the investigation prior to Maria’s arrest.
[47] Jack likewise had no role in the decision to charge Maria. When asked who made the decision to arrest and charge her on July 21, 2010, Fritz stated: “That would have been me”. In response to questions about whether his decision would have been different had he known about evidence that later emerged at trial, Fritz either said it would not have necessarily affected his decision to arrest Maria or, more frequently, that he was not sure if it would have affected his decision. He testified that any single omission or misleading statement “would have been, obviously, taken into consideration but [he didn’t] know if any one or a combination of all these things may have made [him], obviously, impacted [his] decision to lay charges.”
[48] Fritz had been a police officer for decades and had taken hundreds of KGB statements. He was aware that the commercial rivalry between Harold and Jack had led to other police complaints. Notwithstanding this context and the extraordinary nature of the allegations by Hosseini and Jack, Fritz concluded that there were reasonable and probable grounds to arrest Maria in July 2010. Having reviewed the evidence, the trial judge agreed.
[49] Even if the initiation requirement were relaxed to allow for a tort based solely on what Jack did after Maria was arrested, there was no basis to find Jack liable for abuse of process. The trial judge found that Jack tried to convince the police to investigate Harold’s involvement in the murder for hire plot, and tried to delay the public disclosure of the decision to drop the original charges against Maria so that Jack could obtain a financial settlement from Harold. But none of these efforts succeeded. It follows that Maria could not have suffered any damages as a result of them.
[50] Jack actively took steps to bring about Maria’s second arrest in June 2011. When he saw her walking in front of one of his stores in violation of the terms of her recognizance, Jack sent his employees outside to talk to her so that she would remain there for more than a few seconds. He then provided the police with a copy of video surveillance showing that Maria had breached the requirement to keep a certain distance from his store. The judge found that Jack took these steps after learning that the original charges against Maria would be dropped, and that he acted maliciously and for a collateral purpose in bringing the video to the police so as to have Maria charged a second time. These findings, however, do not establish that Jack initiated the second prosecution. There was again a reasonable and valid basis to arrest Maria. There is again no evidence that she was charged in June 2011 because Jack misled the police, provided incomplete information, or impeded their investigation. He simply gave them videotape evidence on which she could be arrested. The surveillance tape showed that she had breached a term of her recognizance, whether she was in front of Jack’s store for five seconds or thirty.
[51] I conclude that the evidence does not support a finding that Maria was a party to a legal process initiated by Jack. His appeal should be granted on this basis alone.
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