2020 MBCA 59, 2020 MBCA 59

Citation: Rebillard v Winnipeg (Police Service) et al, Date: 20200604 2020 MBCA 59 Docket: AI18-30-09138 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Lori T. Spivak BETWEEN : CYNTHIA LEE REBILLARD ) C. L. Rebillard ) on her own behalf (Plaintiff) Appellant ) ) W. R.

Gardner - and - ) for the Respondents ) (via videoconference) THE city of winnipeg POLICE ) SERVICE and DOUGLAS O’NAGI and ) Appeal heard and DERRICK SOMERVILLE and ) Decision pronounced: JONATHAN KIAZYK ) May 28, 2020 ) (Defendants) Respondents ) Written reasons: ) June 4, 2020 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R , all appeals are heard remotely by videoconferencing until further notice. cameron JA (for the Court) : [ 1 ] The plaintiff appeals an order of non-suit made in her jury trial and the consequent dismissal of her lawsuit against the defendants alleging false arrest, false imprisonment and malicious prosecution.

She also appeals an order of throwaway costs made against her for cancelling one day of trial. After the hearing of the appeal, we dismissed it, save for the order of throwaway costs, which we allowed. We indicated that reasons would follow.

These are those reasons. [ 2 ] By way of background, on October 13, 2011, members of the defendant the City of Winnipeg Police Service (the WPS) executed a warrant for arrest inside the plaintiff’s residence, resulting in her being charged with two counts of criminal harassment and one count of breach of recognizance. [ 3 ] The defendant police officer’s decision to apply for a warrant authorizing entry into a dwelling house to carry out an arrest and proceed with the charges arose as a result of a significant history of animosity between the plaintiff and her neighbour.

Between January 2010 and October 2011, the WPS received 24 complaints from the plaintiff and her neighbour. In October of 2010, at the suggestion of the defendant police officers, who were trying to mediate the situation, the plaintiff and her neighbour agreed to one- year mutual peace bonds. [ 4 ] Of the 24 complaints received, 19 originated from the plaintiff. Through investigations, the defendant police officers determined each of her complaints to be false, lacking in evidence or physically impossible. Her neighbour alleged that the plaintiff had threatened him and his partner with a gun.

On numerous occasions, the plaintiff tried to have the police falsely arrest her neighbour. At the time that the defendant police officers obtained the warrant for her arrest, they feared that the plaintiff’s behaviour was escalating. [ 5 ] The Crown stayed all of the charges on August 16, 2012. [ 6 ] Regarding the order of non-suit, the plaintiff raises six grounds of appeal addressing the following three issues:

i) that the trial judge erred in rejecting her argument that the defendants did not have reasonable and probable grounds to arrest and charge her; ii) that the trial judge erred in the evidentiary rulings that he made during the trial; and iii) that the trial judge failed to provide the appropriate assistance to her as a self-represented litigant and exhibited bias toward her during the proceedings. [ 7 ] In granting the motion for non-suit regarding the allegations of false arrest and false imprisonment, the trial judge found that the arrest came about as a direct result of the judicial process, that being the issuance of the arrest warrant by a judicial justice

of the peace. He quoted GHL Fridman, The Law of Torts in Canada , 2nd ed (Toronto: Carswell, 2002) at 80 to the effect that, once some intermediate person or body makes a decision that affects a plaintiff’s liberty (in this case the judicial justice of the peace who issued the warrant), the deprivation of liberty is not brought about by the defendant, but rather the intervening act of the third party who could and did exercise an independent judgment.

He relied on case law that establishes that no cause of action in false arrest or false imprisonment lies where the arrest comes about as a direct result of the judicial process. [ 8 ] We are not persuaded that the trial judge erred in stating the law on which he relied or his application of it. The result in this case is readily apparent. The defendant police officers arrested the plaintiff pursuant to a warrant issued by an independent judicial officer.

Consequently, the defendants are not liable for false imprisonment or false arrest (see Benedetto v Bunyan , 1981 CarswellAlta 273 at paras 34 , 38 (QB); Sil v Cardinal , 2009 SKQB 408 at paras 36-39 ; Diaz v Tossa , 2017 ONSC 54 at paras 20-21 ; and Thelwell v Toronto Police Services Board , 2020 ONSC 1803 at para 97 ). [ 9 ] Regarding the claim of malicious prosecution, the trial judge noted that section 64(4) of The Court of Queen’s Bench Act , CCSM c C280 provides that, in such an action, the trial judge shall determine the requirement of whether or not there has been reasonable and probable cause for instituting the prosecution.

He concluded that “there were ample if not overwhelming grounds to establish reasonable grounds” and that the plaintiff failed to demonstrate a lack of such grounds. In granting the motion for non-suit, he relied, in part, on the evidence of the defendants from their examinations for discovery that, despite his caution, the plaintiff insisted on reading in without calling any evidence to dispute their contents.

Contrary to the assertions of the plaintiff, he did not err in this regard (see Lebedynski v Westfair Foods Ltd , 2000 MBQB 144 at paras 35-42 ). [ 10 ] In our view, it was open for the trial judge to conclude that there was sufficient evidence of reasonable grounds to charge the plaintiff and a corresponding absence of evidence supporting her claim that the defendants lacked such grounds. [ 11 ] Regarding the evidentiary rulings complained of, even accepting that the trial judge erred in refusing to allow one of the plaintiff’s witnesses to testify about a conversation she had with one of the defendant police officers based on rule against hearsay, the error was harmless in light of all of the evidence.

It was a small piece of evidence remotely related to the claim of malice.

Furthermore, the issue of malice does not arise in this appeal in light of our ruling that the trial judge did not err in rejecting the plaintiff’s argument that there were no reasonable grounds to charge her. [ 12 ] As to the plaintiff’s arguments that the trial judge erred in refusing to admit evidence arising out of comments or actions of the defendants after the date of the claim, we agree with the trial judge that it was irrelevant in the circumstances of this case. [ 13 ] Regarding the plaintiff’s assertion that the trial judge failed to assist her as a self-represented litigant and that he showed bias, a review of the transcript shows that the trial judge repeatedly provided reasonable assistance and accommodation to the plaintiff in the presentation of her evidence and advised her of the potentially unfavourable consequences of the decisions she was making.

When the trial judge learned that the defendants did not intend to call any evidence, he offered that the Court would call the defendant police officers implicated in the lawsuit so that the plaintiff could cross-examine them, which she did. A review of the transcript satisfies us that the trial judge conducted the trial in a fair and balanced way and provided a reasonable opportunity for the plaintiff to present her case (see Dewing v Kostiuk et al , 2017 MBCA 22 at para 17 ).

We also see no merit to the allegation of bias against the trial judge. [ 14 ] The final ground of appeal, the alleged error in ordering throwaway costs, occurred when the trial judge ordered the defendant police officers to attend Court for the plaintiff to cross-examine.

Stating that she was ill, the plaintiff did not attend Court on the date scheduled for the cross-examinations. [ 15 ] After learning of the plaintiff’s intention not to attend, the trial judge told counsel for the defendants that he was inclined to order, against the plaintiff, the costs of the defendant police officers’ salaries for having attended court that day. He instructed counsel to inform the plaintiff (

i) of his concerns about the throwaway costs; (ii) that he had concerns she was not being truthful about her inability to attend Court due to illness; and (iii) that, if the trial was extended to the point that it caused a mistrial, there would be financial implications for her.

During this discussion, the trial judge repeatedly made clear that he intended to hear submissions from the plaintiff regarding the issue of costs and that he did not intend to make an order absent her submissions. [ 16 ] Unfortunately, when the plaintiff attended Court on the next scheduled trial date with what appeared to be a medical certificate, the trial judge refused her request to argue against an order of costs as her failure to attend was due to medical illness.

In his view, regardless of whether the absence was due to illness, the City of Winnipeg should not have had to bear the extra costs of having the witnesses unnecessarily appear. [ 17 ] An order of costs is discretionary and should only be set aside on appeal where there has been an error in principle or if the costs award is plainly wrong (see Hamilton v Open Window Bakery Ltd , 2004 SCC 9 at para 27 ). The order of costs materially affected the plaintiff’s rights.

In our view, the trial judge committed an error in principle in making the order absent the plaintiff’s submissions, despite his stated intention to do so (see Pollock et al v Human Rights Commission (Manitoba) et al , 2019 MBCA 110 at para 74 ). [ 18 ] In the result, we would dismiss the appeal save for the order of throwaway costs in the amounts of the defendant police officers’ salaries, which we would set aside. As the defendants were largely successful in the appeal, we would order one set of costs against the plaintiff in this Court on a Tariff “B” basis.

We would dismiss the plaintiff’s request for costs in this Court. JA

JA JA