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Crown and Government Liability - Malicious Prosecution (2). Curtis v. McCague Borlack LLP
In Curtis v. McCague Borlack LLP (Ont CA, 2024) the Ontario Court of Appeal considered an appeal, here involving a lawsuit brought against opposing counsel in a prior proceeding involving the appellants which was dismissed on grounds of 'absolute privilege'.
Here the court considers the interaction of absolute privilege [here an action against opposing counsel] and malicious prosecution, here while considering the issue of a pleading amendment:[13] We agree with the motion judge that there is no basis to conclude that an amendment could salvage the claim of Ms. Rebello. What might have some application in this case, but only in connection with one aspect of the claim advanced by Mr. Curtis, is the last sentence of the Halsbury’s excerpt quoted in Amato and by the motion judge at para. 34: “A separate action for malicious prosecution or the malicious institution or abuse of civil proceedings may lie independently of the law of defamation.” The Supreme Court noted in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at p. 199, that: “the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted.”
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[17] The statement of claim also includes the causes of action of negligence and/or gross negligence, conspiracy to injure by lawful and unlawful means, fraudulent misrepresentation, and negligent and/or intentional infliction of emotional distress, mental anguish, psychological suffering, injury to dignity, embarrassment, and humiliation. To be very clear, none of these can be pursued against the respondents in the face of absolute privilege. . Curtis v. McCague Borlack LLP
In Curtis v. McCague Borlack LLP (Ont CA, 2024) the Ontario Court of Appeal considered an appeal, here involving a lawsuit brought against opposing counsel in a prior proceeding involving the appellants which was dismissed on grounds of 'absolute privilege'.
Here the court considers the tort of malicious prosecution, here against a non-Crown party (ie. a non-police complainant):[14] Mr. Curtis did not sue Mr. Turkienicz in his malicious prosecution action. Further, Mr. Curtis’s allegations in the statement of claim are not presently sufficient to ground such a claim, which, according to Nelles, at pp. 192-93, has four necessary elements:(a) the proceedings must have been initiated by the defendant;
(b) the proceedings must have terminated in favour of the plaintiff;
(c) the absence of reasonable and probable cause;
(d) malice, or a primary purpose other than that of carrying the law into effect. [15] Each of these elements has been glossed in the jurisprudence. Plainly, Mr. Turkienicz did not initiate Mr. Curtis’s prosecution, but the test is more circumstantial, as this court noted in Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, 117 O.R. (3d) 481. In Curley v. Taafe, 2019 ONCA 368, 146 O.R. (3d) 575, this court qualified Pate Estate, noting, at para. 26: “while the prosecution would not have been initiated but for the appellant’s complaint to the police, ‘the evidence shows that the decision to initiate the prosecution was nonetheless within the discretion of, and exercised, by the police in this case,’” citing Chaudhry v. Khan, 2015 ONSC 1847, [2015] O.J. No. 1379, at para. 18. In that case, the initiation element was accordingly not met. But on a motion to strike, where the facts alleged (or which by amendment might be alleged) in the pleading must be accepted as true, we are not able to determine that Mr. Curtis’s possible malicious prosecution claim against Mr. Turkienicz would be doomed to fail because of this type of consideration. . R. v. Currado
In R. v. Currado (Ont CA, 2023) the Court of Appeal considers the torts of malicious prosecution and negligent investigation, here in the course of a defendant police officer's abuse of process application:[27] The duties and obligations of police investigators to persons under investigation are found primarily in the law pertaining to the torts of malicious prosecution and negligent investigation. As an investigator, LPS owed a duty to the appellant to investigate the allegations as a reasonable police officer would do in all the circumstances, taking into account all of the available evidence, both inculpatory and exculpatory: Hill v. Police Services of Hamilton-Wentworth, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73. There is no claim made on appeal that the LPS investigation was not full, objective and even-handed.
[28] In the context of an allegation that the continued investigation of the criminal allegation by the LPS constituted an abuse of process, even though it had no impact on the fairness of the process, the question becomes – would a reasonable person, fully informed of the particulars, and looking at the matter realistically and practically, come to the conclusion that the members of the LPS could not perform, or could not be seen to perform, their investigatory duties in a reasonable, objective, and even-handed manner: Lippé, at pp. 141-145.
[29] We were not referred to any case in which a court held that the failure of a police force to turn an investigation over to an outside police force on its own, and without regard to the actual fairness of the process, constituted an abuse of process.
[30] Perhaps R. v. Grant, 2020 ONSC 2423, provides the case closest on its facts to this case. In Grant, the trial judge found that the prosecution of a police officer, who was alleged to have committed an assault while on duty, amounted to an abuse of process. The trial judge gave many reasons for coming to that conclusion, including the failure of the police force to refer the investigation to an outside force. The other grounds relied on by the trial judge arose out of the specific circumstances of the case and the impact of the prosecution conduct on the fairness of the accused’s trial.
[31] On appeal, the Summary Conviction Appeal Court (“SCAC”) reversed and sent the matter back to the trial court. The SCAC found that the trial judge had made several errors. In respect of the failure to refer the matter to an outside police force, the SCAC said, at para. 54:There is no requirement for the [police force] to bring in an outside Police Service to conduct a criminal investigation of one of their own. That in itself does not demonstrate a bias. A review of the details of the investigation that was conducted is the most important consideration as to whether the [Police Service] conducted themselves in a manner that a reasonable person could conclude that their investigation was appropriate. [32] I do not suggest that Grant provides a full analysis of the submission advanced by the appellant. It does, however, offer support for the approach taken by the trial judge in this case. Like the trial judge, the SCAC in Grant proceeded on a case-by-case basis in which “a review of the details of the investigation that was conducted, is the most important consideration”.
[33] The other cases put before the court, while helpful, are not abuse of process cases. Some of them involve negligence or malicious prosecution allegations in which conflicts of interest particular to the circumstances, formed part of the evidentiary record relied on by the plaintiffs in support of their tort claims: see e.g. Johnson v. Coppaway, 2004 CanLII 9755 (ON SC), 238 D.L.R. (4th) 126 (Ont. S.C.) Those cases do not advance the appellant’s argument.
[34] The appellant also referred to Duff v. James, 2016 ONSC 3737, aff’d 2017 ONCA 606, 416 D.L.R. (4th) 645. In Duff, the motion judge exercised a statutory power to direct that the OPP, rather than the local police force, enforce a family law order the judge made. The motion judge directed the OPP to enforce the order because the subject of the order was a member of the local police force and there had been difficulties enforcing earlier orders. A judge’s exercise of a statutory power aimed at facilitating the effective enforcement of court orders does not engage any of the considerations relevant on the analysis of an abuse of process claim.
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[38] The appellant has failed to demonstrate any abuse of process. In so holding, I do not, however, diminish the care a police force must exercise in determining whether, in the circumstances of a particular case, the interests of justice would be better served by asking an outside police force to take over an investigation. Police services are alive to conflict concerns and most have written guidelines in place to structure their consideration if, and when, an outside force should be brought in to an investigation. An example of the guidelines is found in Grant, at para. 21.
[39] The LPS was alive to the potential risks associated with its conduct of the investigation. It chose to turn carriage of the matter over to the OPP before any charges were laid. It may be that the LPS should have sought the assistance of the OPP earlier than it did, and it may be that members of the LPS should have played a less active role after the OPP became involved. However, even if one assumes an error in judgment by the LPS, that error is not sufficiently serious to render the criminal prosecution of the appellant an abuse of process. . P.Y. v. Ontario (Attorney General)
In P.Y. v. Ontario (Attorney General) (Ont CA, 2021) the Court of Appeal considered the standard for malicious prosecution:[29] There is a high standard to find malicious prosecution: see Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 40. There must be no reasonable and probable cause for the prosecution and the prosecution must be motivated by malice: see Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para 3. Miazga, at para. 58 sets out the principle “that the reasonable and probable cause inquiry comprises both a subjective and an objective component” such that the prosecutors must have an actual belief that is reasonable in the circumstances. ... . Flood v. Boutette
In Flood v. Boutette (Ont CA, 2021) the Court of Appeal canvassed law on malicious prosecution:[97] The elements of malicious prosecution are (a) the initiation of a prosecution by the defendants; (b) termination of a prosecution in favour of the party prosecuted; (c) the absence of reasonable cause to commence the proceeding, and (d) a finding that the prosecutor acted with malice in setting the prosecution in motion: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 SCR 339, at paras. 53-56. Malice is the wilful perversion of abuse of office for an improper purpose: Miazga, at para. 80. It is an intentional or wilful state of mind and must be specifically pleaded.
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