Veeken v. Spratt, 2019 BCPC 204

Citation: Veeken v. Spratt 2019 BCPC 204 Date: 20190903 File No: 1650549 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: PAUL VEEKEN CLAIMANT AND: PRISCILLA SPRATT and THE MINISTER OF PUBLIC SAFETY AND SOLICITOR GENERAL DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. A. McDERMICK Appearing on his own behalf: P. Veeken Counsel for P. Spratt: H. Besuijan Counsel for the Minister of Public Safety and Solicitor General: A. Kemp Place of Hearing: Prince George, B.C.

Dates of Hearing: May 7, 8, 9, October 22 and 23, 2018 Date of Judgment: September 3, 2019 I Overview: [ 1 ] Mr. Veeken is suing the Minister of Public Safety and Solicitor General (the “Minister”), alleging a number of torts including negligent investigation and harassment by Officer McCreadie and any superiors that he may have consulted and/or taken direction from as a result of an investigation into breach allegations against Mr. Veeken that occurred in July 2014. The Minister is the government agency responsible for the conduct of the officers in question. Additionally, Mr. Veeken is suing his sister, Ms.

Priscilla Spratt, alleging the torts of harassment, conspiracy, and negligence as a result of what he submits is a pattern of historical persecution by her, involving the family cabin, family business and other disputes which, according to Mr. Veeken, culminated with her initiating the above-referenced false allegations. II. The Claim Against the Minister: A. Negligent Investigation - Overview: [ 2 ] Officer McCreadie received a complaint from Priscilla Spratt on July 21, 2014, that her brother, Paul Veeken, had been charged substantively and was on bail conditions to have no contact with children. Ms.

Spratt advised, among other things, that her nephew told her he was on Mr. Veeken’s boat with him and another boy and that apparently Michaela Veeken had photographs of Mr. Veeken on a boat with a boy. [ 3 ] An investigation ensued culminating with Officer McCreadie speaking with Michaela Veeken and taking a statement from her on December 12, 2014 (Exhibit 2). He also was provided with a number of photographs depicting aspects of the scenes in question (Exhibit 3). He confirmed that at the material time, Mr.

Veeken was on bail with the following condition: You shall have no contact or communication directly or indirectly with, nor be in the presence of, any person you know to be, or who reasonably appears to be, of the age of 16 years or less, except as follows: (

a) with the advance written notice of the Bail Supervisor; (

b) in the presence of an adult third party, with knowledge of this condition. [ 4 ] Generally speaking, Ms. Veeken asserted in her statement that Mr. Veeken was with a number of children while beached on shore at a part of the lake where adults were in the vicinity. Additionally, Ms. Veeken saw him drive his boat back towards a dock while a child kneeboarded behind his boat and another was in the boat with him where no adults were with or near him, thus allegedly breaching the condition in question.

Later, she also provided the officer with a text, narrating events and the photographs in question (Exhibit 27). [ 5 ] After her statement was concluded, Ms. Veeken expressed concern about “how far this police investigation” was going to go. She was concerned about police speaking with other resort customers as that might impact her “good name and resorts good name” and that she would lose business. Officer McCreadie spoke to his supervisors and advised them of Ms. Veeken’s concerns.

It was decided that based upon her statement and photographs, there was sufficient investigation and evidence to substantiate the breach charge. A Report to Crown Counsel (the “RCC”) was prepared and forwarded to Crown Counsel, resulting in breach allegations set out in an Information filed as Exhibit 5 in these proceedings. Mr. Veeken claims that this investigation was totally deficient and accordingly he sues, alleging the torts of negligent investigation and harassment. [ 6 ] The law with respect to negligent investigation is set out in Romanic v.

Michael Johnson , 2012 ONSC 3449 , at para. 9 ; aff’d 2013 ONCA 23 : a. the proceedings must have been initiated by the defendant; b. the proceedings must have been terminated in favour of the plaintiff; c. there must have been an absence of reasonable and probable grounds to commence the proceedings against the plaintiff; and d. in conducting the investigation, the defendant owed a duty of care to the plaintiff, and did not meet the objective standard of a reasonable police officer in similar circumstances. [ 7 ] Counsel for the Minister concedes that the breach charges were initiated by Officer McCreadie and that he owed a duty of care to the Claimant.

B. Standard of Care and Reasonable Grounds: [ 8 ] The onus is on the Claimant to establish that there was an absence of reasonable and probable grounds to commence the proceedings against him. [ 9 ] A basic understanding of British Columbia criminal procedure is useful in understanding the merits of the claim in question. Once Officer McCreadie has concluded his investigation and forwarded his RCC to the Crown, there are three additional safeguards in place that protect against wrongful conviction: First, it is the Crown, in their sole discretion, who ultimately decide whether to approve charges.

They only approve charges if, among other things, they are of the view there is a substantial likelihood of conviction (see evidence of Officer McCreadie). This basically means that they believe the case is strong. This is a higher standard than reasonable grounds. Then, a Court Liaison Officer attends to the office of the Justice of the Peace and must satisfy him or her that the offence is made out on reasonable grounds (see Exhibit 5). If this test is met, the Justice of the Peace swears the Information. This is set out in the jurat , or charging

section of such Information. Once charges are sworn, the matter ultimately goes before a judge for trial where rigorous evidentiary rules apply and the Crown must prove its case to the high criminal standard of proof beyond a reasonable doubt. I note that in

this specific case, the Crown must have concluded that there was a substantial likelihood of conviction since charges were sworn, andJustice of the Peace Redpath also must have concluded that there were reasonable grounds to believe the offence in question occurred,since he or she swore the Information in question. [10] Since British Columbia is a jurisdiction where it is the Crown who solely decides whether to approve charges on the basis ofthis elevated standard of substantial likelihood of conviction, one would expect that this additional safeguard might result locally in fewerclaims of negligent investigation, and at least anecdotally, it appears that the preponderance of jurisprudence on this tort, notsurprisingly, arises in jurisdictions where it is the police who decide whether to approve charges. [11] George v.

Guelph (City) Police Services, 2016 ONSC 4961, summarizes the applicable legal principles with respect to negligentpolice investigation at para. 8: [8] The following legal principles apply to negligent police investigation: 1. Police officers owe a duty of care to those the police investigate. The standard is that of a police officer in similar circumstances,acting reasonably, recognizing the discretion necessarily inherent in police investigations. The standard is not one of perfection or evenwhat is optimum when viewed from the vantage of hindsight.

The duty of care is met where there are reasonable and probable groundsto make an arrest (see Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 , [2007] 3S.C.R. 129 (S.C.C.), at para. 73; Roda v. Toronto Police Services Board, 2016 ONSC 743 (Ont. S.C.J.), at para. 71). 2. Police must show only that they had reasonable and probable grounds to lay the charges. They are not required to establish that thecharge would likely result in a conviction or that the accused's defence would fail.

They are not required to interview every possiblewitness, to evaluate or weigh evidence, or to accept the accused's version of events (see Grann v. Thunder Bay Police Services Board,2015 ONSC 438 (Ont. S.C.J.), at para. 24 and 62; Fragomeni v. Greater Sudbury Police Service, 2015 ONSC 3937 (Ont. S.C.J.), para.88; Wong v. Toronto Police Services Board, (ON SC), [2009] O.J. No. 5067 (Ont. S.C.J.) at para. 59). 3.

If the Police rely on uncorroborated testimony of a single witness and that testimony gives rise to reasonable and probable grounds forthe arrest, the onus shifts to the Plaintiff to show that the police had "overwhelming evidence" to discredit that uncorroborated witness'sevidence (see Wong, supra, para. 57; Moak v. Haggerty (ON SC), [2008 CarswellOnt 7 (Ont. S.C.J.)], supra, para. 47;Fragomeni, supra, para. 89). 4. The determination of whether the standard of care was met is made based on the evidence at the time the charge was laid. Laterevents and evidence cannot be considered.

For example, while the acquittal or withdrawal of charges may be a precondition to bringing aclaim, the fact of the acquittal is not relevant to whether the Police had reasonable and probable grounds to lay the charge (see Wong,supra, at para. 50; Grann, supra, para. 25). [12] The definition of reasonable and probable grounds is a well-trodden area of the law arising frequently in the context of a reviewof the sufficiency of an officer’s grounds for arrest. Reasonable and probable grounds are defined in R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241, at para. 17 as follows: [17] An arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, inaddition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds.

Specifically, they are not required to establish a prima facie case forconviction before making the arrest. [13] It requires something more than suspicion, but it is less onerous that proof on a balance of probabilities, see for example, R. v.Shinkewski, 2012 SKCA 63, at para. 13. It is a relatively low standard, lower than substantial likelihood of conviction and far lower thanproof beyond a reasonable doubt. [14] See also George v.

Guelph (City) Police Services, at para. 23: [23] Therefore, if there is negligence in the civil context, it must be with respect to whether the Police had reasonable and probablegrounds. This is a relatively low standard.

It is up to the Court trying the charges to evaluate the witnesses and make findings withrespect to the merit of the charges. [15] It is important to note also at the outset of the analysis of the conduct of Officer McCreadie that generally speaking, it is for thecourts and ultimate trial judge to make determinations and assessments with respect to the credibility and reliability of the witnesses. Seefor example, J.H. v. Windsor (City) Police Services Board, [2017] O.J.

No. 5597 (JH) at para. 6: [6] …Moreover, in cases that turn on the credibility of an allegedly unbelievable complainant, (e.g., where a complainant has limitationsand a conviction is not guaranteed, but guilt may be proved depending on the trier's assessment of credibility), our courts have held thatthe complainant's credibility is best determined after the complainant has testified and, if he or she so chooses, after an accused also hastestified.

There is no obligation on [sic] arresting officer to weigh and determine the validity of various versions of events and renderjudgment before being able to form reasonable and probable grounds. They are not seized with the responsibility of deciding guilt orinnocence, or required to determine whether a suspect would likely be found guilty of an offence. It is up to the court trying the chargesto evaluate witnesses, and police generally are not required to weigh and assess the evidence [emphasis added]. [16] The Uncorroborated Witness and Overwhelming Evidence: Among other submissions, Mr.

Veeken strenuously submits thatOfficer McCreadie should’ve done more and should have at the very least interviewed more witnesses, including Mr. Veeken to give hima chance to clear his name. The law is clear however, as set out above, that the police are not under an obligation to interview allwitnesses or the accused, see additionally J.H. v. Windsor (City) Police Services Board, at para. 6: [6] Police also are not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses, obtain or

accept a suspect's version of events, or otherwise establish there is no valid defence, before being able to form reasonable and probable grounds. More generally, an arresting officer does not have to complete an investigation before being able to lawfully arrest a suspect or lay charges; nor does an intention to conduct further investigation after an arrest or laying of charges undermine the formation of reasonable and probable grounds. [ 17 ] And in fact, police may proceed with charges on the basis of one witness’ uncorroborated account of events.

If they proceed in this fashion, however, the claimant must then demonstrate that there was “overwhelming evidence” discrediting that witness, all in a context where at least generally speaking, questions of credibility and reliability are not the purview of the investigating officer, see George v. Guelph (City) Police Services , at para. 8 . Likewise, the police are not under an obligation to take a statement from an accused.

The decision to not take, nor attempt to take, a statement from an accused is routine, and in fact, since the claimant enjoys a constitutionally enshrined right to silence, there are significant legal and procedural hurdles to the lawful taking of a statement from an accused. [ 18 ] Mr. Veeken also submits the police ought to have spoken to Ms. Spratt a second time before concluding his investigation. I summarily reject that contention. The law does not require it. Additionally, Ms.

Spratt was not an eyewitness to events and her evidence neither adds nor detracts from the police investigation of this straightforward breach allegation. [ 19 ] The Simplicity of This Investigation and the Basis for Moving Forward with Charges: Significant portions of the evidence of Mr. Veeken and Officer McCreadie dealt with the events at the far end of the lake, depicted in photographs A through E, Exhibit 3. Officer McCreadie responded firmly in his evidence that his decision making process with respect to whether to proceed with charges surrounded the portion of the allegation where Mr.

Veeken was out in the lake (not the beach nor the dock area) with two boys in his boat (one knee-boarding and one in the boat) where no other adults were around. Mr. Veeken, submits this is a convenient evolution in his testimony, crafting his evidence to conform with his “tunnel vision”. I accept Officer McCreadie’s evidence on this point. He initially gave evidence in direct examination with respect to Mr. Veeken being in a boat alone with two boys [Transcript of the Proceedings, October 22, 2018, pages 4-6]. His approach and perspective is also buttressed by a review of the transcript of his interview of Ms.

Veeken at the outset of this investigation, where he repeatedly comes back to the allegations that Mr. Veeken is in his boat on the lake with two boys and no adults. In other words, his in-court testimony is not the first time that he has honed in on this portion of the narrative. [ 20 ] For example, in Ms. Veeken’s statement, Exhibit 2, page 5, commencing at line 16, Ms. Veeken is editorializing with respect to Mr. Veeken sitting on a boat surrounded by children with adults in the water.

Officer McCreadie then directs the interview back to the events on the water as follows commencing at line 21: KM: Yeah, Okay so now you guys see Paul go by again……pulling one kid on a knee board and another one’s in the boat. You witness this through binoculars. Correct? MV: We could see if it…we…we confirmed our…what we saw with binoculars. Yeah. KM: Okay. Do you remember who was in the boat and who was knee boarding? MV: I’m….yeah. Well if I remember our conversation, it was E that was in the boat and D was knee boarding. KM: Okay.

So how long from the time you see them go by with E knee boarding until Paul docks that boat in front of your resort? MV: Not long. We had time to notice him coming. We had time to discuss briefly among ourselves is…is there…is there anybody else in the boat? Is there anybody else in the boat? No I don’t think so. “[sic] Kay, grab the binoculars. No. There’s nobody else in the boat.

It’s just E….and oh look they’re coming back. [ 21 ] And again after an exchange about whether other people were at the dock, page 6, commencing at line 5: KM: But there was definitely no one else in that boat other than Paul and the two kids? MV: Absolutely. KM: Was there any other boats beside him… MV: No. KM: following him… MV: No. KM: come and go with him? *** MV: But when he was in the middle of the lake there was no other boat with him. [ 22 ] Ultimately, this is a very straightforward breach allegation. If there’s no adult in his “presence”, he’s in breach. Ms.

Veeken’s statement, on its face, plainly supports this. [ 23 ] Officer McCreadie testified that he found Ms. Veeken to be a credible witness. Mr. Veeken strenuously demurs, submitting that her statement was fraught with inconsistencies and lies, and that this, at the very least, required the officer to investigate further. [ 24 ] I have carefully and reviewed and studied the submissions of Mr. Veeken with respect to what he submits are grave concerns

with respect to the calibre of Ms. Veeken’s statement. I have considered each submission specifically and in totality. I will comment on some of the points he raises. [ 25 ] Huge swaths of his submissions are devoted to parsing out details of references to the presence of adults when he was beached at the far end of the lake in the presence of both children and adults. He submits, accordingly, that Officer McCreadie should have conducted a much more fulsome investigation, including of course, interviewing such individuals.

Officer McCreadie testified that he didn’t rely upon this in reaching his conclusion to forward the matter to Crown for charge approval consideration. As previously indicated, I accept his evidence on this point. This part of Ms. Veeken’s statement obviously doesn’t in any way detract from her reliability and/or credibility. [ 26 ] The fact that Ms. Veeken cross references an earlier text from Mr. Veeken to her son, is of no moment. Officer McCreadie confirms he is not investigating that breach. He is focussing his efforts on the events at the lake supported by Ms. Veeken’s eyewitness testimony.

She said that had already been reported to the police. Officer McCreadie didn’t pursue it further. None of this particularly impacts her credibility or reliability as a witness. [ 27 ] Mr. Veeken is critical of Ms. Veeken’s use of the word “lured” in her statement, Exhibit 2, page 2, lines 35-36. Mr. Veeken blends his submissions and criticized Officer McCreadie for failing to follow up on this. Again, Officer McCreadie has focussed on the breach in question, which he is entitled to do. I do agree with Mr.

Veeken that “luring” has a strong and powerful connotation, but there are no other examples of inflammatory or sensationalist language on the part of Ms. Veeken. [ 28 ] Mr. Veeken cross references her statement, Exhibit 2, page 2, lines 26-27: “But they were gathering up all their wakeboarding and wakesurfing equipment to go in Alice’s boat and my husband witnessed this.” He refers to the absence of such equipment in Exhibit 3 and notes that one can’t wakeboard behind a pontoon boat. I agree with Mr. Kemp’s reply to this. There is a broader reference to this. Ms.

Veeken had already acknowledged that people don’t wakeboard behind Alice’s pontoon boat (Exhibit 2, page 2, lines 23-25). She was indicating that her husband anticipated that the children were riding in Alice’s boat to go meet with the Claimant, which is what occurred. This does not impact her credibility or reliability. [ 29 ] Again and in

summary, Officer McCreadie testified that Ms. Veeken seemed to him to be a credible witness. I generally agree with that characterization, and again, all in a context where there is no onus on the officer to rigorously conduct a nuanced analysis of the calibre of her testimony. That is for the ultimate trier of fact, the Judge. The law plainly and expressly sets out that police may proceed with charges on the basis of one witness’ uncorroborated account of events.

If they proceed in this fashion, however, the claimant must demonstrate that there was “overwhelming evidence” discrediting that witness, all in a context where at least generally speaking, questions of credibility and reliability are not the purview of the investigating officer. On any plain, common sense reading of Ms. Veeken’s statement, there is not “overwhelming evidence” (which is a high standard) discrediting that witness. That does not end the matter, however, as a witness for the defendant, Ms. Charlene Childs came forward and provided a statement, purportedly exonerating Mr. Veeken.

The Claimant’s counsel provided Crown Counsel with a letter dated March 10, 2015, from Charlene Childs (Exhibit 14). As a result of this, the breach trial was adjourned and Officer McCreadie was asked by Crown Counsel to interview Ms. Childs which he eventually did. The transcript of such statement has been filed as Exhibit 30 in these proceedings. At this point in the breach proceedings, the decision with respect to whether to proceed further with the charges is solely within the purview of Crown Counsel, nevertheless, Officer McCreadie confirmed in his testimony that Ms.

Childs’ statement did not abrogate his conclusion that the charge assessment standard was still met. [ 30 ] More or less, Ms. Childs’ statement sets out that she, an adult, was aware of Mr. Veeken’s conditions and that on the date in question she was in his presence. More specifically, she gave evidence that she was following the Claimant’s boat at a distance of about 150 to 200 yards and that she lost sight of the Claimant’s boat and the two boys for a couple of minutes when they rounded a point of land on the trip back from the beach to the dock. Officer McCreadie testified in

summary that he had concerns about her reliability. On a plain, face value reading of Ms. Childs’ statement there are obvious concerns: At the material time, Mr. Veeken was not to be in the presence of any person under the age of 16 unless “in the presence of” an adult with knowledge of this condition. On any common sense analysis, when she lost sight of the Claimant’s boat, she is obviously not in his “presence” and accordingly, on her own account he is breach of his conditions at that point.

Quaere whether when she was following behind him in a separate boat at a distance of 150 – 200 yards she is in his “presence”. That is a legal matter for a trial judge to determine, not a police officer. Notwithstanding these serious concerns, at best, Ms. Childs’ statement and anticipated testimony would give rise to a credibility and/or reliability contest as between Ms. Childs and Ms. Veeken, and as set out above, this is the purview of the trial judge, not the police officer.

Her evidence, in conjunction with all relevant facts, falls far short of “overwhelming evidence” discrediting the witness. [ 31 ] “Overwhelming evidence”, as a plain dictionary reading of such phrase suggests, is a very high standard. For example, in J.H. v. Windsor (City) Police Services Board, MOH alleged that her father, JH, perpetrated very serious sexual assaults against her. He was charged and acquitted after trial. He sued the defendant Windsor Police Services Board.

In that case, there were significant credibility and/or reliability problems with respect to MOH that were known to the police, but these concerns fell “far short” of the standard of overwhelming evidence. Specifically, this is set out and analyzed at para. 41: [41] At the time of the arrest and laying of charges, the information available to the police, detailing the complaints made by MOH, (to Tara Maznio, C.M. and Detective Levesque directly), contained evidence relating to the essential elements of each of the four offences for which the plaintiff was arrested and initially charged.

That information unquestionably also contained indications of possible credibility and reliability issues, as far as MOH was concerned.

For example, there was information indicating: • that MOH had a history of repeated lying and other troubled behaviour, prompting CAS involvement; • that there may have been limited or no opportunity for the alleged abuse to have been committed by the plaintiff, (e.g., if his visits were being supervised by others as promised, and those others always were present in the home); • that the details of abuse provided by MOH in her successive accounts contained variations and/or significant escalations in the

type of misconduct being described, (e.g., progressing from allegations of touching of breast and vaginal areas, to simulated intercourse, to actual repeated penetration by the plaintiff's penis), and where the abuse had occurred, (expanding beyond assertions that abuse had happened only in MOH's room to include complaints of misconduct having also taken place in a back yard tent); • that statements made by MOH to Detective Levesque included demonstrable inaccuracy, (e.g., in relation to the assertion by MOH that the plaintiff had gone to jail many times for such behaviour); and • that statements made by MOH concerning MAH repeatedly entering her room, and interrupting abuse of MOH by the plaintiff when clothing had been removed or displaced, did not accord with the information provided directly to Detective Levesque by MAH.

Despite such frailties, in my view Detective Levesque was not entitled to disregard the complaints by MOH. In particular, I think the circumstances fell far short of "overwhelming evidence" discrediting MOH. Detective Levesque was instead faced with a situation where one witness was presenting evidence, in relation to offences not requiring corroboration, where that evidence would justify charges and convictions if believed and accepted despite its frailties. As noted above, a child witness is no longer regarded as inherently unreliable.

Nor is a witness with credibility issues, mental health concerns and/or demonstrated inconsistencies a witness who necessarily will be disbelieved. A trial judge must consider such matters, but may still accept that the problematic witness is telling the truth about an important issue.

In the circumstances, Detective Levesque was not obliged or entitled to usurp the roles of the Crown attorney and the court; e.g., by weighing and assess the evidence of MOH, presuming that it would be disbelieved because of its apparent or possible frailties, and concluding that the plaintiff therefore would be found "not guilty" if the matter went to trial. [ 32 ] In

summary, concerns with respect to MOH’s account included known lying, a limited opportunity by JH to commit the offences in question, varying accounts and demonstrable inaccuracies. These are serious problems yet the court concluded such concerns “fell far short” of overwhelming evidence. Likewise, and a fortiori , Ms. Childs’ statement and any other concerns with respect to Ms. Veeken’s statement and any other facts adduced and/or known to the officer fall far short of overwhelming evidence. Officer McCreadie made a discretionary judgement call to honour Ms.

Veeken’s request not to interview customers of the resort. He made this decision after consulting with his superiors, to wit: Sergeant Conway. The police were lawfully entitled to rely upon the uncorroborated account of Ms. Veeken. There was not overwhelming evidence that discredited her account. Reasonable grounds is a modest standard and Officer McCreadie plainly had reasonable grounds to lay charges. The claim fails for these reasons alone. Since the claim fails as against Officer McCreadie, it must fail as well as against Sergeant Conway. Mr.

Veeken submits that Sergeant Conway’s involvement was insufficiently thorough. However, he provided advice and guidance to Officer McCreadie. He reviewed the RCC, all in a context, where this Court has found there was reasonable and probable grounds to swear charges. C. Were the Proceedings Terminated in Favour of the Claimant? [ 33 ] In order for his claim of negligent investigation to succeed, the Claimant must also demonstrate on balance that the proceedings in question were terminated in his favour. Romanic v.

Michael Johnson analyzes this element in detail culminating at paras. 34-35: [ 34 ] Where criminal charges are simply withdrawn or stayed by the Crown, either without explanation or because there was no reasonable prospect of conviction on the evidence, this type of unilateral termination of the criminal case is clearly a disposition in favor of the accused.

However, in cases where the parties have reached a negotiated resolution agreement, and the termination of some or all of the criminal charges by the Crown comes with some type of required remedial step or other quid pro quo from the accused, then the court must examine the underlying reasons for this settlement or compromise solution. [ 35 ] Moreover, from my review of the available jurisprudence, I draw the following conclusions as to when such compromise settlement agreements should be viewed (or not) as being in favour of the plaintiff/accused.

(1) State Efforts to Pervert Justice : Where the evidence establishes that the Crown agreed to resolve the criminal proceedings not in good faith compromise, but rather only to pervert justice by avoiding court scrutiny of the police investigation and/or Crown prosecution of the case, or to avoid a civil action for malicious prosecution and/or negligent investigation, the agreed disposition of the criminal proceedings will be viewed as a disposition in favour of the accused. See: Ferri v. Root , at para. 54-56; Holland v. Ontario (Ministry of the Attorney General ), at para. 18.

(2) Abuse of Negotiating Power : Where the evidence establishes that, in negotiating the settlement of the criminal case, the Crown and/or the police seriously abused their "position of strength" vis-à-vis the accused, and gained his or her concurrence in the settlement agreement only because he wanted to secure his or her liberty, avoid the stigma of a criminal conviction, avoid the costs of a trial, or by means of fraud, perjury or duress, the disposition will be viewed as one in favour of the accused. Ferri v. Root , at para. 54-56; Kahn v. Peel (Regional Municipality) Police Services Board , at para. 7.

(3) Good Faith Resolution Agreements : Where the evidence establishes that the Crown agreed to withdraw the criminal charges as part of a bona fide , good faith compromise settlement, and where there was some legitimate remedial step or other bona fide quid pro quo from the accused (e.g. plead guilty to some of the pending charges or included offences, enter a peace bond, make restitution to the victims, make a charitable contribution, etc.), the disposition will not be viewed as one made in favour of the accused. See: Beardsley v. Ontario; White v. Canada , at para. 35. [34] Mr. Veeken testified that the breach charges were stayed. He acknowledged in evidence that he agreed to enter into a

section 810 peace bond. It was his opinion that entering into the peace bond was separate and disconnected from the stay of proceedings. However, the record of proceedings does not support this contention. Mr. Veeken was charged with the breaches in question pursuant to Information 37730-3A (Exhibit 20). A

section 810 peace bond was sworn on January 11, 2016, Information 37730-5C (Exhibit 21), interconnected to the file number of the breach. On January 11, 2016, Mr. Veeken entered into the peace bond in question on a number of terms of conditions. During those same proceedings, as soon as that was concluded, in an obviously interconnected fashion, the Crown stayed the breach charges. Both Informations were on that particular court list, courtroom 101, on the date in question (see record of proceedings Exhibit 20 and 21). They were called and dealt with at the same time.

The transcript of such proceedings was filed as Exhibit 23 in these proceedings. The clerk called “the matters” of Paul Veeken, (page 1, line 4). Mr. Veeken was represented by senior counsel, Mr. Duncan. Mr. Duncan stated the following at page 1, lines 14-21:

Yes, we’re here today to deal with the outstanding matters before you, but for the -- a new Information that would be transferred to the JCM by way of the 5-C Information. Mr. Veeken specifically waives the time requirements for swearing the Information and is prepared to enter into this peace bond on the terms the Crown suggests. [35] Crown then referred to the 37730-3A Information at page 1, lines 26-32: And it is a bit confusing, because of the numbering, but because it’s an 810, they can’t give it the same type of numbering JUSTIN as a breach.

However, this is something related to the 37730-A-3 Information as it arises out of incidents that occurred at the Purden Ski Hill on those dates. [ 36 ] Mr. Duncan indicated this was by consent. The Court asked Mr. Veeken whether he was prepared to enter into the peace bond on those terms (all in a context of being represented by counsel). He stated “yes”. The Judge placed him on terms and conditions. The moment that was done, without anything further, the Crown stayed the proceedings on the breach charges.

On any common sense analysis, there was a direct quid pro quo connection between entering into the peace bond and the stay on the breach. [ 37 ] There is no evidence before this Court that the resolution between the parties was reached: (1) as a result of any attempt by the Crown to “pervert justice” by avoiding court scrutiny of the police investigation and/or Crown prosecution of the case, or to avoid a civil action for malicious prosecution and/or negligent investigation; (2) as a consequence of the Crown and/or the police abusing any “position of strength” in their negotiation with the accused or his counsel; and/or (3) through means of any type of fraud, perjury, dishonesty, or duress.

In fact, as set out above, the transcript clearly and plainly sets out a typical resolution, where an accused resolves a criminal charge in his favour by entering into a peace bond, in a quid pro quo fashion. There is no other rational way to construe the proceedings. [ 38 ] The Peace Bond Cases: Romanic v. Michael Johnson specifically addresses resolution by peace bond at length and concludes that this does not generally result in a “termination of the proceedings in favour of” the claimant, see paras. 23 and 24: 2.

The Peace Bond Cases: [23] There are a number of cases that make it clear that where the criminal proceedings against the accused are resolved or settled by the Crown withdrawing the charges in return for the accused entering into a peace bond, this result is not one that is in favour of the accused. Accordingly, in such circumstances this result prevents the accused from subsequently pursuing a malicious prosecution or negligent investigation action. This line of authority has continued after the Court of Appeal decision in Ferri v. Root . See: Lauber v. Atkinson , [2011] O.J. No. 3503 (Ont.

S.C.J.) at para. 4-9 . [24] For example, in Holland v. Ontario (Ministry of the Attorney General) , [2000] O.J. No. 566 (Ont. S.C.J.) , Ratushny J. considered the significance, in a malicious prosecution action, of the termination of the earlier criminal proceeding by way of a resolution wherein the charges were withdrawn with the accused entering into a peace bond. The court held that this was not a termination of the criminal case in favour of the accused.

More particularly, Ratushny J. stated, at para. 18: Whatever the reason for the agreed resolution of the matter, it is evident that the plaintiff had to agree to be bound by a peace bond before the Crown would withdraw the charges.

I understand, from the discussion of the policy considerations in Nelles ... that the rationale behind this and the other elements which must be proved in order to succeed in an action for malicious prosecution is that in combination, they are able to establish that the Crown has acted outside the scope of the duties of her office for some improper purpose involving an abuse or a perversion of the criminal justice system.

However when the facts as pleaded disclose that the charges were withdrawn only after the plaintiff entered into a peace bond, this is not, in my opinion, a termination of the prosecution in the plaintiff's favour, in the sense that this element is meant to serve as an indicator that there may have been a perversion of the criminal justice system . Accordingly, I conclude that the breach charges in question were not “terminated in favour” of the Claimant, and the claim fails on this basis alone. D.

Standard of Care Generally: [ 39 ] The appropriate standard of care for the tort of negligent investigation was established in Hill v. Hamilton-Wentworth , 2007 SCC 41 . The “flexible overarching standard” is that of “a reasonable police officer in all the circumstances” – para. 68. As explained at para. 73: [73] The standard is not perfection, or even the optimum, judged from the vantage point of hindsight.

It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made -- circumstances that may include urgency and deficiencies of information. [ 40 ] The standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty, see Hill v. Hamilton-Wentworth , at para. 55. [ 41 ] Mr. Kemp on behalf of the Minister previously pursued a no-evidence motion and argued at the conclusion of the Claimant’s case that there was no evidence adduced on the element of breach of standard of care since Mr.

Veeken did not call expert evidence with respect to such standard, and indeed, the general rule is that assessing the standard of care of a professional, such as a police officer, will require expert evidence, see for example, Meady v. Greyhound Canada Transportation Corp. , [2015] O.J. No. 55, 2015 ONCA 6 . [ 42 ] The no-evidence motion was dismissed on June 20, 2018, ( Veeken v.

Minister of Public Safety and Solicitor General and Priscilla Spratt , 2018 BCPC 150 ) as this Court concluded it fell under the exception for “non-technical matters or those of which an ordinary person may be expected to have knowledge”. This Court also noted however at para. 26, that expert evidence might assist significantly in terms of the ultimate question of negligent investigation and standard of care, and that is certainly the case. Mr. Veeken pointed to the evidence he adduced of Officer Trask.

Officer Trask testified as part of the Claimant’s case about his investigation of allegations that occurred on August 3, 2014. Mr. Veeken had called 911 with respect to an incident between him and Keith Buchanan (Ms. Veeken’s partner), allegedly involving a firearm. Officer Trask responded. The allegations included uttering threats, but no charges

were recommended. I would respectfully note that this testimony is of little assistance to the Court. First, he was not presented as anexpert. Typically, when adducing expert evidence, there is an initial voir dire to ascertain expertise. The witness’ particular expertqualifications are adduced and tendered into evidence, which typically include, training, qualifications, education, experience, acurriculum vitae, and/or list of publications - essentially, the basis upon which he or she is able to comment, top down, on the conduct ofanother professional.

Secondly, an expert witness would then be presented with a factually on point and specific hypothetical on all fourswith the facts to be determined, and would provide a specific opinion on such hypothetical. There is simply no body of such typicalevidence before this court. The file Officer Trask was investigating is totally unique and distinguishable from the facts at hand. Inconclusion, in order to give Mr. Veeken a chance to be fully heard in these proceedings, this Court entertained Officer Trask’s evidenceat some length, but ultimately it is of little to no value or assistance in resolving Mr.

Veeken’s claim. [43] As indicated above, this claim fails for the reasons already set out, but I would note further, as indicated in this Court’s rulingon the no-evidence motion, expert evidence may very well have been of assistance to this court in resolving these issues. It is theClaimant who must carry the day on a balance of probabilities. As indicated above, the claim fails for numerous reasons. I additionallynote that an absence of expert evidence further detracts from the potency of the claim.

In the absence of expert evidence, for example, itis difficult to determine the precise standard of care - the conduct of a reasonable officer in like circumstances. Expert evidence, forexample, may have been helpful on such issues as appropriate general investigatory and interview techniques, workload, training,timeliness of responses, appropriate file load, discretion, judgment and decision making, when to appeal to a superior officer, etc. To theextent this has not been established to any extent and/or degree, this further detracts from the claim. E. Specific Submissions: [44] Mr.

Veeken submits the officer should have conducted a forensic analysis of the photographs to determine whether they weredoctored or fabricated. There is no onus on the officer to conduct such an analysis in the absence of some indication they were fake.Generally speaking, at trial, photographs are adduced and authenticated by either the photographer or an individual depicted in the scenewho can lay the appropriate evidentiary foundation. If that is disputed, then, of course, further forensic analysis by either party may bewarranted and admissible to challenge or bolster the evidence.

There is absolutely no a priori requirement on an officer to forensicallyreview photographs prior to charge approval. [45] Mr. Veeken is critical of the 4.5 month delay and “diary extension” from commencement of the investigation to the interview ofMs. Veeken. The efforts made to contact Ms. Veeken over this time period are documented in a General Occurrence filed as Exhibit 1 inthese proceedings. Officer McCreadie addressed this delay during cross-examination, in part, by explaining that at any given time he hasapproximately 40 files he is actively working on, along with files that arise every day.

The attempts at contact per se, seem reasonableparticularly when coupled with this explanation regarding work load, all in a total absence of expert evidence setting out why this mightbe unreasonable. [46] Since Ms. Veeken alludes to possible other incidents, Mr. Veeken is broadly critical of Officer McCreadie’s absence of followup investigation of other incidents. Officer McCreadie confirmed he was focussing his efforts on that particular investigation. That is, ofcourse, within his discretion. I would note also, Mr.

Veeken has no standing to approach such issue: he is entitled, at best, solely todamages that pertain to him, not others. I would note also that no expert evidence was adduced challenging or addressing suchpermissible scope of police discretion. [47] As the foregoing analysis is dispositive of the claim for the reasons already set out, I decline to consider causality and damages.Mr. Veeken’s claim against the Minister for negligent investigation is dismissed. F. Harassment: [48] Mr.

Veeken also advances the tort of harassment against the Minister. [49] It is unclear whether the tort of harassment exists in British Columbia. Mainland Sawmills Ltd. V. IWA-Canada, Local I-3567Society, 2006 BCSC 1195 analyzed this issue and concluded at paras. 14 and 15: [14] The case law is divided. For example, some cases such Canadian Tire Bank v. Roach, 2006 BCPC 120 (B.C. Prov. Ct.); Toban v.Total Credit Recovery (B.C.) Ltd., 2001 BCPC 465 (B.C. Prov. Ct.); Jaremko v. Moro, [2003] O.J. No. 2028 (Ont. S.C.J.) and Garrett v.Mikalachki, [2000] O.J. No. 1326 (Ont.

S.C.J.) were decided on the assumption that the tort of harassment exists in Canada, whereascases such as 510267 B.C. Ltd. v. Gilmore, 2005 BCSC 756 (B.C. S.C.), Campbell v. Wellfund Audio-Visual Ltd. (1995), (BC SC), 14 C.C.E.L. (2d) 240 (B.C. S.C.) and Robertson v. Jones (2003), 13 R.P.R. (4th) 39 (Ont. S.C.J.) have specifically foundthat no such tort exists in Canada. The cases that have assumed that the tort of harassment exists do not set out the basis for thatassumption, nor do they set out the elements of the tort.

Rather, these decisions focus on whether a particular conduct constitutesharassment. [15] As was touched upon earlier, the Plaintiffs submit that if the tort of harassment has not been recognized in Canada the law hassufficiently evolved wherein it should be recognized, as has happened in such common law jurisdictions as the United States.

ThePlaintiffs contend that the tort of harassment is tantamount to the American tort of intentional infliction of emotional distress, and thatthe elements of the latter tort are outrageous conduct by the defendant, the defendant's intention of causing or reckless disregard ofcausing emotional distress, the plaintiff's suffering of severe or extreme emotional distress, and the actual and proximate causation of theemotional distress by the defendant's outrageous conduct: Moore v. Greene, 431 F.2d 584 (U.S. C.A. 9th Cir. 1970); U.S. ex rel. Benz v.Reddy, 42 Fed. Appx. 941 (U.S. C.A. 9th Cir. 2002); Canine v.

Liberty Mut. Ins., LEXIS 11073 (District Court 2006); and Graves v.

Cityof Stockton, LEXIS 13116 (District Court 2006). [50] The Court went on to consider what might be the requisite elements if such a tort did exist, at para. 17: [17] To determine the issues raised in this application, I decided rather than addressing the issues of whether the tort of harassment is arecognized cause of action in Canada or, if not, whether the law has developed to the point wherein it should be recognized at the outset,to first address whether the evidence of these Plaintiffs established the tort of harassment, the elements of that tort being as the Plaintiffs

claimed.

That is, I began my analysis of the issues raised in this application by assuming the tort of harassment does or should exist in Canada and that the elements of this tort are outrageous conduct by the defendant, the defendant's intention of causing or reckless disregard of causing emotional distress, the plaintiff's suffering of severe or extreme emotional distress, and the actual and proximate causation of the emotional distress by the defendant's outrageous conduct . [ 51 ] A number of other British Columbia cases, similarly do not decide whether harassment is a tort in Canada, but assume hypothetically that it exists and resolve the matter by finding there was no harassment.

One Ontario case, Merrifeld v. Canada (Attorney General), 2017 ONSC 1333 , has recognized that harassment is a tort in Canada. [ 52 ] Without determining the issue, I will proceed on the assumption that the tort of harassment exists in Canada, and more specifically, British Columbia. In

summary, the elements of the tort of harassment, if it exists, are as follows: 1. Outrageous conduct by the defendant; 2. The defendant’s intention of causing or reckless disregard of causing emotional distress; 3. The plaintiff’s suffering of severe or extreme emotional distress; and 4. That the actual and proximate cause of the plaintiff’s extreme emotional distress was the defendant’s outrageous conduct. [ 53 ] In Merrifield v.

Canada (Attorney General) , at para. 720, Justice Vallee examined the meaning of “outrageous” and concluded as follows: [720] The Canadian Oxford Dictionary defines outrageous as follows; 1. Deeply shocking and unacceptable; 2. Grossly cruel; 3. Immoral, offensive; and 4. Highly unusual or unconventional. [ 54 ] This is obviously a very high standard. This Court has already concluded that the Claimant has not established the tort of negligent investigation as against the Minister and has determined that Officer McCreadie had reasonable and probable grounds to conclude that the offence in question was established.

A fortiori , the claims of harassment likewise must fail: There is no commerce between the conduct of Officer McCreadie and/or Sergeant Conway and acts that are (

i) deeply shocking and unacceptable; (ii) grossly cruel; (iii) immoral, offensive; and (iv) highly unusual or unconventional. Since this is dispositive of the tort, I decline to consider the remaining elements. [ 55 ] In

summary, Mr. Veeken’s claims against the Minister are dismissed. III. The Claim Against Priscilla Spratt: [ 56 ] Mr. Veeken claims against Priscilla Spratt, alleging torts of conspiracy, harassment and negligence as a result of what he asserts is a pattern of persecution by her against him commencing approximately November 2013, involving the family cabin, business, and various family interrelationships, culminating with what he alleges is a false claim of breach of bail initiated by her and Michaela Veeken on or about July 2014. A. Background Evidence and the Calibre of the Evidence: [ 57 ] Mr.

Veeken asserts Ms. Spratt is an unreliable witness who lacks any credibility. Counsel for Ms. Spratt demurs. Mr. Veeken extensively attacked her reliability and credibility as a witness in his argument and submissions. In

summary and in general, I find Ms. Spratt to be a relatively reliable and credible witness who appeared to give her evidence in a forthright fashion. The points Mr. Veeken raises individually and in totality do not detract from the general calibre of her evidence. I have carefully reviewed and considered each of his points separately and in totality. [ 58 ] By way of example, I will refer to several instances where Mr. Veeken purports to undercut her credibility as a witness: He claims there is a discrepancy since the RCC states that Ms. Spratt called the Prince George RCMP from Alberta on July 21, 2014.

He pejoratively characterizes Ms. Spratt’s evidence that she called the RCMP on July 5, 2014 to be “new” evidence, and unsupported. But Ms. Spratt’s testimony accommodates this: She testified she called the RCMP twice, first on July 5 th to tell them about the incident involving B.B. She then testified as follows: Q: Was that the only occasion you spoke with the RCMP? A: No. As I mentioned earlier in that two –three week period we experienced the decline and death of my father.

His subsequent cremation and burial and when all of that settled in and I arrived back home the third week of July – ish by that time our sister Michaela had witnessed this happening on her lake as has been described already. And so I followed up with my original call to let the RCMP know that there were pictures that didn’t refer to B.B.’s confession. [Transcript of Proceedings, October 23, 2018, page 66, lines 11-22] [ 59 ] On any plain common sense review of this evidence, there is no inherent contradiction or reliability problem.

There is a first call on July 5, 2014, and a second on or about the “third week of July-ish” which of course is close in time to July 21, 2014. This simply doesn’t generate a concern with respect to the calibre of the witness’ testimony. [ 60 ] In submissions, Mr. Veeken noted that in Ms. Spratt’s evidence she stated that “we” found Emmaus (a senior care facility in Prince George) for their father. On cross-examination, Ms. Spratt conceded that it was Mr. Veeken who arranged for Emmaus house. He submits this discrepancy is an example of Ms.

Spratt “twisting” the evidence and he asserts that accordingly, she “was proven to be unquestionably not telling the whole truth.” [ 61 ] The evidence of this exchange in cross examination is as follows:

Q: I’m going to suggest to you, Ms. Spratt, that I was the one who made those arrangements to get him into Emmaus House? A: Thank you, Paul. That was awesome. Q: Would you agree with that? A: If you say so. Q: So it’s possible? A: Possible. [Transcript of Proceedings, October 23, 2018, page 108, lines 9-16] [ 62 ] On any plain reading of this passage, Ms. Spratt readily and in an unguarded fashion, agreed to Mr. Veeken’s suggestion, encouraging him in the process. There is simply nothing untoward in this exchange. [ 63 ] I note as an aside, Mr.

Veeken refers to an email in his closing submissions he characterizes as “Exhibit 29”. This is not in evidence and so this Court cannot consider it. [ 64 ] Mr. Veeken notes that Ms. Spratt gave evidence that she would pay $100 or $200 at each visit, “equivalent to what she said a ‘hotel’ would cost.” He submits, “I would hope that, without providing evidence, the court can accept that there is no hotel that would cost $100 or $200 for a family or eight [sic] (or even three) to stay a minimum of two nights….it points to another issue of her credibility and reliability.

Her evidence simply does not make sense.” [ 65 ] This was not quite her evidence on that point. It was as follows: A: And our

part in the expenses was more like a hotel. And as you will recall where – when we came at spring break I would leave you cash on the table to spend in whatever you thought was necessary similar to staying at a hotel…[Transcript of Proceedings, October 23, 2018, page 71, lines 16-20] Q: And what would that amount typically be? A: I would say probably between two and four hundred dollars.

A couple of hundred dollars comes to my mind. [Transcript of Proceedings, October 23, 2018, page 71, lines 42-45] [ 66 ] She testified to a range of 200 to 400 dollars, and then stated that “a couple of hundred dollars comes to my mind”. There is simply nothing cataclysmic or troubling about this exchange. She’s contributing to the expenses, and accordingly, likens it to paying for a hotel. She did not characterize it as fair market value, it’s a family cabin, and in any event, this Court does not have before it evidence of what a typical hotel in the Purden area costs for a weekend. [ 67 ] In

summary, Mr. Veeken points to what he asserts are material problems with her credibility and reliability as a witness. I have carefully reviewed each of his assertions and set out several examples above. They do not raise concerns individually or in totality in any material way with respect to her calibre as a witness. Again, I find her, generally speaking, to be a credible, reliable witness. B. The Tort of Conspiracy – Overview: [ 68 ] Mr. Veeken asserts that Michaela Veeken and Ms.

Spratt conspired to cause him harm by initiating a false police complaint with respect to the July 2014 investigation involving Officer McCreadie, to wit: breach of undertaking of his conditions. C. Characterizing Ms. Spratt’s Call to the Police: [ 69 ] As set out in Officer McCreadie’s Narrative Text Hardcopy (Exhibit 15), on July 21, 2014, Priscilla Spratt called to report her brother, Paul Veeken, had been charged with sexual interference, and has “no contact with children conditions”. Ms. Spratt said that her nephew, B.B., disclosed to her that he was on Mr. Veeken’s boat with him and another boy “last week”.

Officer McCreadie called and spoke to Ms. Spratt, who resided in Alberta at all material times. She stated that her sister, Michaela Veeken, “has photos of Paul on the boat with the boys”. Officer McCreadie then began the investigation in question by attempting to contact Ms. Veeken, and ultimately speaking to her on December 12, 2014. [ 70 ] Ms. Spratt gave evidence that on July 5, 2014, she called the RCMP. Her understanding was that Mr. Veeken was not to be alone around children. She relayed what B.B. had told her. She testified she had no reason to doubt what he had said to her.

Then, on or about the third week of July, 2014, she called the RCMP again. Her evidence is as follows: Q: Was that the only occasion you spoke with the RCMP? A: No, as I mentioned earlier in that two-three week period we experienced the decline and death of my father. His subsequent cremation and burial and when all of that settled in and I arrived back home the third week of July-ish by that time our sister Michaela had witnessed this happening on her lake as has been described already.

And so I followed up with my original call to let the RCMP know that there were pictures that didn’t refer to B.B.’s confession. His – his skiing with Paul was – he was referring to multiple events that had happened before the 5 th of July when I saw him, not on the 7 th as the – what has kind of come out in this trial. But that we did have pictures now and there was – there was proof. And I recall that conversation distinctly because it was a moment of commitment for me.

Someone on the other end of the line, I don’t know who it was at the RCMP, said to me “Do you want to make a complaint?” And I understood at that moment that I was committed to the formality of this process. And that gave me great pause, but I did decide in that moment to go ahead with the complaint. [Transcript of Proceedings, October 23, 2018, page 66, lines 13-35] [ 71 ] The quality of the ultimate investigation and strength of the charges have already been analyzed above. As a result of this call,

Officer McCreadie commenced an investigation. Among other things, he interviewed Michaela Veeken, received photographs, a text,and reviewed the bail conditions of Mr. Veeken. He concluded that his charge assessment standards were met. Other professionalsagreed with him: The Crown must have concluded there was a “substantial likelihood of conviction” since charges were forwarded bythem for swearing, and Justice of the Peace Redpath concluded the offence was at least established on reasonable grounds.

This Courthas also concluded that Officer McCreadie had reasonable grounds to conclude the offence in question was made out upon conclusion ofhis investigation. This is important in ascertaining the character and nature of Ms. Spratt’s evidence. This analysis can be summarilydealt with no matter what the nature of the relationship between the parties was: On any plain, common sense analysis, Priscilla Sprattwas in possession of information obtained from B.B. and Michaela Veeken. She called the police simply as a conduit and passed alongthat information. She lived extra-provincially.

She was not an eyewitness to any information. Whether her relationship with Mr. Veekenwas neutral, acrimonious or otherwise, she simply passed along information. Obviously, the police would then investigate the veracity ofsuch information, for better or for worse, and, as it turns out, there were at least reasonable grounds to conclude that the informationsupported the laying of criminal charges. [72] Irrespective of the nature of the relationship between the Claimant and Defendant, Ms.

Spratt simply relayed information in herpossession to the RCMP obviously for further investigation since she wasn’t an eyewitness to anything. This resulted in a policeinvestigation which at least had some merit: Michaela Veeken gave a statement and provided photographs, which although not directlyon point with respect to events in the middle of the lake, at least provide rough corroboration for her narrative. The officer believed hischarge approval standards were met, as did the Crown.

The information was properly sworn by the Justice of the Peace, and this courthas also concluded there were at least reasonable grounds supportive of charges. Without belabouring hypotheticals at length, if therewas ultimately absolutely no support for the claim, if the witness’ in question were plainly prevaricating, it might suggest the Defendanthad oblique, impure motives, but that is not the case. The relative strength of the charges supports the straightforward contention thatMs. Spratt was simply passing along information she had to the police for further investigation. D.

The Tort of Conspiracy – The Law:` [73] Soleil Hospitality Inc. v. Louie, 2011 BCCA 305, is a British Columbia Court of Appeal decision that summarizes the evolutionand elements of the tort of conspiracy, culminating at para. 111: [111] At para. 341 of her reasons, the judge cited the elements of the tort of conspiracy from the reasons of Chief Justice McEachern inCan-Dive Services Ltd. v. Pacific Coast Energy Corp. (1993), (BC CA), 96 B.C.L.R. (2d) 156 (B.C. C.A.) at para. 5,(1993), 26 C.P.C. (3d) 395 (B.C.

C.A.): Accordingly, the following elements must be proved: 1. an agreement between two or more persons; 2. concerted action taken pursuant to the agreement; 3. (

i) if the action is lawful, there must be evidence that the conspirators intended to cause damage to the plaintiff; (ii) if the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their action wouldinjure the plaintiff (i.e., constructive intent); 4. actual damage suffered by the plaintiff. [74] Chief Justice McEachern formulated these elements from the Supreme Court of Canada's decision in Canada Cement LaFargeLtd. v. British Columbia Lightweight Aggregate Ltd., (SCC), [1983] 1 S.C.R. 452, 145 D.L.R. (3d) 385 (S.C.C.), whereMr.

Justice Estey said the following at 471-72: [471] ... the law of torts does recognize a claim against them in combination as the tort of conspiracy if: 1. whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to causeinjury to the plaintiff; or, 2. where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and thedefendants should know in the circumstances that injury to the plaintiff is likely to and does result. [472] In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, inthe prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury tothe plaintiff would ensue.

In both situations, however, there must be actual damage suffered by the plaintiff. [75] Generally speaking, the tort of conspiracy is a business tort, and so its application to the facts at hand is relatively novel.However, this tort has been applied broadly to non-economic disputes such as labour relations: Gagnon v. Foundation Maritime Ltd.(1961), (SCC), 28 D.L.R. (2d) 174 (S.C.C.). See also for example, Hunt v. Carey Can.

Inc., (SCC),[1990] 6 W.W.R. 385 (S.C.C.), where an action for conspiracy was brought by a cancer victim against defendants who allegedlyconspired to conceal information respecting the dangers of asbestos exposure, and Helmy v.

Helmy (2000), 36 E.T.R. (2d) 100 (OntS.C.J.) where family members and the husband allegedly conspired to hide the fact of lottery winnings from his wife. [76] I note also at the outset of this analysis, that although the burden of proof on the Claimant remains at all times the traditionalcivil burden of proof on a balance of probabilities, courts have commented that with respect to this specific tort, compelling evidence isrequired, beyond “light conjecture”. For example, in Golden Capital Securities Ltd. V.

Holmes, 2004 BCCA 565 at paras. 46-47, theCourt stated: [46] It has long been recognized that liability in conspiracy requires proof by compelling evidence. In Sweeney v. Coote, [1907] A.C.

221 (U.K. H.L.), at 222, the Lord Chancellor said: In [an action for conspiracy] it is necessary for the plaintiff to prove a design, common to the defendant and to others, to damage the plaintiff, without just cause or excuse. That, at all events, it is necessary to prove. Now, a conclusion of that kind is not to be arrived at by a light conjecture; it must be plainly established.

It may, like other conclusions, be established by inference from proven facts, but the point is not whether you can draw that particular inference, but whether the facts are such that they cannot fairly admit of any other inference being drawn from them. [47] Thus, to prove a case in conspiracy, it is first necessary to plainly establish, directly or by inference, that there was an agreement between the defendant and one or more others. That does not mean an agreement in the contractual sense.

A defendant must be shown to have agreed in the sense of having combined or conspired with one or more others to carry out a common design or a means of achieving a common objective, which is then implemented with resulting injury to the plaintiff. E. Was There an Agreement and/or Concerted Action Between Michaela Veeken and Ms. Spratt? [ 77 ] Is there compelling evidence that Michaela Veeken and Priscilla Spratt came to an agreement and undertook concerted action to initiate specious breach charges in order to cause damage to the Claimant? The only direct evidence we have on this point comes from both Mr.

Veeken and Ms. Spratt. [ 78 ] There was a lengthy exchange between Mr. Veeken and counsel, Ms. Besuijan, on this issue during cross examination. Initially, Mr. Veeken, while conceding that of course he was not privy to any express agreement, repeatedly gave evidence and held his ground, testifying that he knew there must have been an agreement, a “common design”, and concerted action, by inference since these individuals were (

i) trying to remove him from title on the cabin, (ii) remove him from Hollandia Holdings (“Hollandia”), the parents’ family business, (iii) and pursuing breach charges against him which Mr. Veeken contends are specious. But in the end, quite fairly, Mr. Veeken conceded as follows: Q: Sir, my question to you is to confirm you agree with me that they never came to an agreement. And you keep saying common design, but in my mind they are the same.

So common design, agreement, did they sit down together and make an agreement, or a [sic] form a common design together, did they come together and form the intention of pursuing you to injure you? A: And so, so that’s where I think we’re getting our words a little bit mixed up. So when I look at the – Q: No, sir, I’m not – what I am asking you is you have no knowledge of whether or not that happened? A: I have no knowledge that they sat down and had, and made an agreement, no. [Transcript of Proceedings, May 9, 2018, page 66, lines 18-32] [ 79 ] Ms.

Spratt also directly addressed this in her evidence: Q: What agreements have you made with Michaela Veeken to act together so as to … cause financial loss to Paul Veeken? A: None. Q: What actions have you taken in pursuit of an agreement with Michaela Veeken for the purpose of causing financial loss, or any loss to Mr. Veeken? A: None. [Transcript of Proceedings, October 23, 2018, page 67, lines 32-39] [ 80 ] In

summary, the only direct evidence we have from Mr. Veeken is that he does not have direct knowledge of an agreement between the two parties. The only other direct evidence is a straight denial by Ms. Spratt of any such agreement, un-contradicted on cross-examination. In contradistinction to this direct evidence, Mr. Veeken urges this Court to infer such an agreement on the basis of what he says are specious breach charges, and various actions undertaken by Ms.

Spratt in the lead-up months, which he says were designed to dislodge him from the cabin, the family business and drive a wedge between him and his father. [ 81 ] I refer back to Golden Capital Securities Ltd. V. Holmes : the evidence in support of this tort must be real and compelling, not conjecture. As set out above, we have real evidence, un-contradicted, where Ms. Spratt denies any agreement. Mr. Veeken agrees he has no direct evidence of an agreement. The conjecture he invites the Court to participate in is exactly what Golden Capital Securities Ltd. V. Holmes warns against.

There is simply no compelling evidence that establishes the existence of an agreement to any degree, and certainly none that could stand against the actual direct evidence adduced. [ 82 ] Likewise, there is no evidence of “concerted action” by Ms. Spratt to further such hypothetical agreement. This Court has already analyzed and concluded that on any plain, common sense analysis of Ms. Spratt’s calls to the police, Ms.

Spratt is per se relaying barebones information to Officer McCreadie to initiate the genesis of an investigation, without apparent ulterior motive, in a context where this Court has already found there were ultimately reasonable and probable grounds supportive of charges. [ 83 ] Accordingly, elements 1 and 2 set out above are not established. That is summarily dispositive of the claim with respect to the tort of conspiracy. [ 84 ] The claim additionally fails with respect to element 3 of the tort of conspiracy, which requires the following: 3. (

i) if the action is lawful, there must be evidence that the conspirators intended to cause damage to the plaintiff; (ii) if the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their action would injure the plaintiff (i.e., constructive intent);

[ 85 ] Ms. Spratt testified she called the police because she was concerned for the wellbeing of B.B. I accept that evidence at face value. That is a lawful purpose. If the acts were lawful, then to succeed, among other things, the Claimant must show, the predominant purpose was to harm him, and there is no compelling evidence in support of this. The only direct, probative evidence of motive and intention comes from Ms. Spratt herself who testified she reported what she knew of the incident out of a concern for the wellbeing of B.B.

In her words, “B.B. deserved the first priority”. [ 86 ] The Claimant submits the charges were frivolous and false. If that were accepted, then the reporting of such false charges would potentially constitute the criminal offence of public mischief and accordingly would easily be considered an unlawful act. I have already determined that the charges were not false; there were at least reasonable and probable grounds establishing the offence in question, and hence any acts undertaken by Ms.

Spratt to initiate a police investigation were not unlawful. [ 87 ] Accordingly, the Claimant has not established element 3 and his claim with respect to the tort of conspiracy also fails for such reason. Since this is dispositive of the issue, I decline to consider the remaining elements of this tort. F. Harassment – Overview and Legal

Summary: [ 88 ] As analyzed already pursuant to the heading, “II The Claim Against the Minster”, it is unclear whether the tort of harassment exists in British Columbia. I will proceed on the basis that it does. As already analyzed, the elements of this tort, if it exists, are as follows: 1. Outrageous conduct by the defendant; 2. The defendant’s intention of causing or reckless disregard of causing emotional distress; 3. The plaintiff’s suffering of severe or extreme emotional distress; and 4.

That the actual and proximate cause of the plaintiff’s extreme emotional distress was the defendant’s outrageous conduct. [ 89 ] In Merrifield v. Canada (Attorney General) , at para. 720, Justice Vallee examined the meaning of “outrageous” and concluded as follows: [720] The Canadian Oxford Dictionary defines outrageous as follows; 1. Deeply shocking and unacceptable; 2. Grossly cruel; 3. Immoral, offensive; and 4. Highly unusual or unconventional. [ 90 ] This is obviously a very high standard. G. Was Ms. Spratt’s Conduct Outrageous? [ 91 ] I will divide Ms.

Spratt’s conduct into two categories: the ultimate calls to police and the “background” family history (the “Background Facts”). [ 92 ] Calls to Police: I have already concluded that Ms. Spratt was a relatively reliable and credible witness. She gave her evidence plainly that she called the police initially because she was concerned for the wellbeing of B.B. I accept that evidence. There is no other cogent, compelling evidence.

She was merely a conduit of information she received from others to police, where it would be expected that they would initiate and conduct their own formal investigation that would not involve her since she wasn’t an eyewitness, and that is exactly what happened. This Court has also concluded that Officer McCreadie legitimately had reasonable grounds to pursue charges; they were not specious. Obviously, this per se and in totality, has no commerce with the high standard of “outrageous conduct”. [ 93 ] Background Facts: On numerous occasions, Mr.

Veeken explained to the court that the Background Facts with respect to Ms. Spratt’s conduct from months earlier that he says were intended to dislodge him from the family cabin, drive a wedge between him and his father, and remove him from the family business, were just that: background facts, and indeed, this is consistent with his Notice of Claim where he alleges events in support of his claim strictly from July 2014 onwards. [ 94 ] In

summary, there was nothing untoward with respect to Ms. Spratt’s decision to call the police. This in conjunction with evidence that is strictly “background” in nature and outside the time frames set out in the Notice of Claim collectively have no commerce with “outrageous conduct” which is summarily dispositive of the tort of harassment. [ 95 ] However, since both Mr. Veeken and Ms. Spratt testified at length with respect to the Background Facts, I will address the evidence. [ 96 ] There was a family meeting on November 8, 2013, to discuss matters arising from their father’s ailing health.

This meeting is summarized in an email from their sister, Mary-Lou Veeken (Exhibit 8). They agreed upon certain resolutions which would be reviewed in 6 months. Their father’s health continued to sharply decline which, according to Ms. Spratt, required a revisitation of their father’s care and the 6 month review period, and indeed, he did pass away on July 4, 2014. [ 97 ] Ms. Spratt sent an email to her siblings on November 16, 2013, entitled “cabin reflections” filed as Exhibit 10 in these proceedings. More or less, it surrounds a family dispute with respect to the family cabin. From Ms.

Spratt’s point of view, the cabin had become an “unsafe” place for her children due to Mr. Veeken’s excessive drinking, among other things. Mr. Veeken strenuously denies any impropriety on his part. I need not resolve such discrepancy to adjudicate this matter. [ 98 ] Ms.

Spratt also testified that in January 2014, she travelled to Prince George and spent a week with her parents and attended a series of meetings with, inter alia , bankers, her parents’ lawyer, the accountant and a property management company, summarized in Exhibit 9 - essentially addressing her parents’ business affairs, reflecting their father’s increasing care needs, and the deterioration of his health. Mr. Veeken was not present for these various meetings. On any plain reading of Exhibit 9, Ms. Spratt is expressing love for her

parents, and the honour it was to be able to accompany them and be present with them in that process. Mr. Veeken characterizes herconduct in a negative light, but he wasn’t there. [99] She gave evidence she attended the family cabin in 2014 and broke the front door because she arrived late in the evening with anumber of her children and couldn’t gain access in a traditional fashion since the door code wasn’t working and the spare key could notbe located. [100] Mr. Veeken has a very different account and perspective with respect to these historical events. He submits that Ms.

Sprattengaged in a pattern of persecution of him, seeking to dislodge him from the cabin, alienate him from the family business and drive awedge between him and his father, all culminating with the initiation of false breach charges. [101] He gave evidence initially that Ms. Spratt had him removed as a director from Hollandia, but when pressed on this by this Court,he conceded there was no evidence of this, but asked this Court to infer it since he was, in fact, removed as a director on or about January2014, roughly coinciding with Ms. Spratt’s trip to Prince George. [102] Mr.

Veeken gave evidence that family members were pressing him to remove his name from the family cabin. He cites this asfurther evidence of persecution and harassment, since he was the one who had predominantly invested in and renovated it. He filed anemail from Ms. Spratt as Exhibit 11 in support of this. [103] He negatively characterizes the week Ms. Spratt spent in Prince George with her parents in January 2014, but he was not actuallypresent for any part of such trip. [104] In

summary, considering both Ms. Spratt’s and Mr. Veeken’s actual evidence and account of the Background Facts, assuming aninterpretation most favourable to the Claimant and on a high water mark analysis, these events collectively represent a family disputesurrounding the family business, usage of the family cabin in a context where values among users differ, in a context where interpersonalfrictions were perhaps enhanced by the sharp decline in their father’s health culminating with his passing in July 2014.

These events,when construed most favourably to the Claimant, fall far short of anything resembling “outrageous conduct” which is defined as: (i)deeply shocking and unacceptable; (ii) grossly cruel; (iii) immoral, offensive; and (iv) highly unusual or unconventional. Accordingly,the totality of the evidence, including the calls to police and the Background Facts, falls far short of establishing the tort of harassment, ifsuch tort even exists. Since this is dispositive of the claim with respect to this tort, a consideration of the other elements is moot, and Idecline to consider them. H.

Negligence – Overview: [105] Mr. Veeken also alleges the tort of negligence as against Ms. Spratt. In order to succeed in a claim of negligence, the Claimantmust establish, among other things that the Defendant (

i) owed the Claimant a duty of care; and (ii) breached the standard of care thatwas owed to him. I. Duty of care: [106] Mr. Veeken submits that Ms. Spratt owed him a duty of care, since she was his sister. In Cooper v. Hobart, 2001 SCC 79, theSupreme Court of Canada revisited the law of negligence and more specifically, addressed considerations with respect to determining thescope of liability for negligence.

The historical and traditional principles with respect the tort of negligence are analyzed at paras. 21-23: [21] Canadian courts have not thus far recognized the duty of care that the appellants allege in this case. The question is thereforewhether the law of negligence should be extended to reach this situation. While the particular extension sought is novel, the moregeneral issue of how far the principles of liability for negligence should be extended is a familiar

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