Barnett v. Ewatski et al., 2012 MBCA 113

Citation: Barnett v. Ewatski et al., 2012 MBCA 113 Date: 20121204 Docket: AI 12-30-07737 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN: ) R. I. HistedCOLLEEN LOUISE BARNETT ) for the Appellant ) (Plaintiff) Appellant ) D. A. M. Pambrun ) for the Respondents J. Ewatski,- and - ) L. Mandziak and A. Tittlemier ) JACK EWATSKI, GEORGE THOMAS ) G. T. ReznikREZNIK, L. MANDZIAK and ) on his own behalfA.

TITTLEMIER ) ) Appeal heard and (Defendants) Respondents ) Decision pronounced: ) December 4, 2012 CHARTIER J.A. (for the Court): 1 The plaintiff sued her ex-husband (Mr. Reznik) for malicious prosecution and members of the Winnipeg PoliceService for false imprisonment. The trial proceeded before a judge and jury. As is the custom in civil jury trials, the verdict wasachieved by first asking the jury a series of questions. All claims against the defendants were dismissed with costs. 2 As this court stated in Jensen v.

Stemmer et al., 2007 MBCA 42, 214 Man.R. (2d) 64, appellate courts are “topreserve, if possible, the jury verdict” (at para. 85). In other words, great deference is owed to the findings of the jury. In the context ofa civil jury trial, this means that appellate intervention is unjustified unless those findings are perverse in the sense of being “so plainlyunreasonable and unjust ... that no jury reviewing the evidence as a whole and acting judicially could have reached it” (see McCannell v.McLean, (SCC), [1937] S.C.R. 341 at 343 and Simao v.

Hankook Ilbo et al., 2012 ONCA 175 at para. 2, 289 O.A.C.109). 3 The plaintiff has been unable to persuade us that this case merits appellate intervention. It is our view that the jury’sfindings of fact were supported by the evidence and were certainly not plainly unreasonable and unjust. Moreover, we have not beenpersuaded that the judge erred in principle either in his instructions to the jury or in his application of the law to the facts as found by thejury.

He noted that this was not a case of forcible entry into a person’s home; that it was the plaintiff who had called the police inregards to an incident with her ex-husband; that the police attended the home and told the plaintiff that they were there to investigate theincident; and that the plaintiff allowed the police into her home to discuss that incident.

In essence, the judge found that the police wereat the home for a lawful purpose. 4 Key to the judge’s conclusions, with respect to the lawfulness of the arrest, were the jury’s findings that the decisionto arrest the plaintiff was not made by the police officers before they entered the dwelling house and that, at the time of the arrest, theyheld a reasonable belief that by arresting the plaintiff they were preventing the continuation or repetition of an offence. 5 With respect to the awards of costs, the applicable standard of review is a deferential one and we remain unconvincedthat appellate intervention is warranted. 6 In the result, the appeal is dismissed with costs.

J.A. J.A. J.A.