Symington v. Halifax (Regional Municipality), 2011 NSSC 474

SUPREME COURT OF NOVA SCOTIA Citation: Symington v. Halifax (Regional Municipality) , 2011 NSSC 474 Date: 20111222 Docket: Hfx No. 214598 Registry: Halifax Between: James Symington Plaintiff/Respondent v. Halifax Regional Municipality and Halifax Regional Police Service Defendants/Applicants Judge: The Honourable Justice M. Heather Robertson Heard: October 12 and 13, 2010 and January 10 and 11, 2011, in Halifax, Nova Scotia Final Written Submissions: May 4 and May 11, 2011 Written Decision: December 22, 2011 Counsel: Stephen J. Moreau, for the plaintiff, respondent Daniel W. Ingersoll, Q.

C. and Sarah Drodge and Peter Zed, for the defendants, applicants Robertson J. : [ 1 ] The plaintiff James Symington commenced an action on January 27, 2004 against the Halifax Regional Municipality (HRM) and the Halifax Regional Police Service (HRP) (“the applicants”) herein and against Sergeant Tim Moser and Staff Sergeant Fred Sanford.

The plaintiff alleged malicious procurement of a search warrant, malicious prosecution, defamation, negligence and intentional infliction of mental suffering. [ 2 ] Following an exchange of information pursuant to a demand for particulars and the plaintiff’s amendments to the original statement of claim dated May 3, 2005, the applicants applied to the court to strike the plaintiff’s statement of claim on the basis that it disclosed no cause of action. Specifically they argued the court had no jurisdiction as the claim was properly required to be determined

under the provisions of the Police Act and the operative collective agreement affecting the plaintiff’s terms of employment. [ 3 ] The Supreme Court of Nova Scotia struck the plaintiff’s action in a decision rendered by Kennedy C.J.S.C. dated September 26, 2006. On appeal the Nova Scotia Court of Appeal ( 2007 NSCA 90 ) upheld Kennedy C.J.S.C.’s decision finding that the “essential character” of the matter was police discipline, within the exclusive jurisdiction of an arbitrator under the collective agreement.

However, the NSCA allowed the plaintiff to pursue his cause of action for “malicious prosecution resulting from alleged abuse of the criminal process.” 127 I would allow the appeal in part, to permit Cst. Symington to pursue in court his cause of action for malicious prosecution resulting from alleged abuse of the criminal process. In all other respects I would dismiss the appeal, and dismiss the grounds in the notice of contention.

Rather than parsing the pleadings to strike passages and retain only those that relate to the permitted cause of action, I prefer the remedy applied by the Alberta Court of Appeal in Edmonton Police , para. 29-30. I would retain the basic pleading of malicious prosecution for abuse of the criminal process to avoid a limitations issue, but would strike the rest of the amended statement of claim, with leave to Cst.

Symington to amend to support his claim for malicious prosecution for alleged abuse of the criminal process. [ 4 ] The plaintiff filed a second amended statement of claim (“2 nd ASC”) on October 28, 2009. It continues to allege that the defendant applicants committed malicious procurement of a search warrant, malicious prosecution, defamation and negligence and intentional infliction of mental suffering. [ 5 ] The applicants seek an order pursuant to Civil Procedure Rules 88, 13.03 and 13.04 striking out certain parts of the claim filed by the plaintiff as well as an order for

summary judgment. [ 6 ] Accompanying the motion are the affidavits of Sergeant Tim Moser and Inspector William Darnbrough. dated May 5, 2010. [ 7 ] The applicants also seek an order striking portions of the plaintiff’s affidavit. [ 8 ] Lastly, the plaintiff sought an order for disclosure of the full text of a legal opinion rendered by Mr.

Mark Scott a Crown Attorney and provided to Sergeant Moser of the HRP, decided by me in a preliminary ruling dated October 12, 2010, wherein determined that this letter was protected by solicitor-client privilege. [ 9 ] With respect to the plaintiff’s claim the applicants argue that the three references to defamation, negligence and intentional infliction of mental suffering go to the issue of damages arising from malicious prosecution. [ 10 ] The applicants’ position is that first these pleadings are contrary to Civil Procedure Rule 88 an abuse of process and an attempt to re-litigate matters that have been already determined by the Court.

They say: The only component of the plaintiff’s claim that may proceed to court is his cause of action for “malicious prosecution resulting from alleged abuse of the criminal process”. Accordingly, the defendants submit that the plaintiff is abusing the process of the court by refusing to remove from his claim all allegations that do not relate to malicious prosecution. [ 11 ] The applicants also rely on Rules 13.03 and 13.04. With respect to Rule 13.03 they say the statement of claim discloses no cause of action or otherwise makes a claim that is clearly unsustainable when the pleading is read on its own.

They say this is for four reasons. (

a) To prove malicious prosecution, a plaintiff must prove that proceedings were initiated by the defendant. The Plaintiff’s Claim is clearly unsustainable with respect to this element of malicious prosecution because no “proceedings” were initiated in this case.

(

b) To prove either malicious prosecution or malicious procurement of a search warrant, a plaintiff must prove the absence of reasonable and probable cause. However, assuming all of the facts in the Plaintiff’s Claim can be proven, this element cannot be established. (

c) To prove either malicious prosecution or malicious procurement of a search warrant, a plaintiff must prove the presence of malice. There is a very high threshold for malice, particularly in cases involving public defendants such as the police. Even assuming that all of the facts in the Plaintiff’s Claim can be proven, this element cannot be established. Further, the Plaintiff has filed Answers to Demand for Particulars and Supplementary Answers to Demand for Particulars, and has amended his Claim twice. However, his Claim still fails to provide “full particulars” of malice, as mandated by Rule 38.03(3). (

d) Finally, Rule 13.04 requires the Court to set aside a Statement of Claim that fails to raise a genuine issue for trial. Because of the high threshold of liability in malicious prosecution cases,

summary judgment plays a particularly important role in such cases, allowing courts to weed out unmeritorious claims before trial. In fact, courts have consistently acknowledged that it is important to “carefully examine the factual record and the case as pleaded” in malicious prosecution cases to determine whether

summary judgment should be granted. The Defendants submit that

summary judgment should be granted because there is absolutely no evidence to support the Plaintiff’s claims of malicious prosecution and malicious procurement of a search warrant. [ 12 ] In reply the plaintiff says that the 2 nd ASC and the evidence filed on the motion, the very extensive affidavit of James Symington dated September 7, 2010, can sustain the three torts on which the plaintiff relies – the torts of negligent investigation, malicious prosecution and misfeasance in public office, notwithstanding the narrowly worded single permitted cause of action allowed by the Nova Scotia Court of Appeal. [ 13 ] In my view the meaning of the Court of Appeal decision should first be addressed.

Fichaud J.A. stated that The issues are (1) whether this dispute is for the collective agreement's arbitration procedure or the Police Act's disciplinary process or a court's tort jurisdiction and, if the court may take jurisdiction, (2) whether his claims should be dismissed for issue estoppel or abuse of process. [ 14 ] The Court assumed the statement of claim’s allegations as the factual context that underpinned the dispute, essentially that of “sick leave entitlement” and his superior’s response to this claim. [ 15 ] The Court outlined the factual context of the dispute and then identified five causes of action, arising from the pleadings.

Fichaud J.A. at paras. 19-27: 19 First: Malicious prosecution for discipline. The Region tried to discipline Cst. Symington. As noted earlier (para. 13), on September 17, 2001, Staff Sergeant Sanford wrote a report to the Police Chief stating that Cst. Symington's efforts in New York City were inconsistent with sick leave status, and constituted deceit, disorderly conduct and neglect of duty. On September 21, 2001, the Region issued a general bulletin that Cst. Symington was suspended. Paragraph 34 of the ASC elaborates: 34. On September 24, 2001, Symington was finally advised of his suspension.

On the same date, he was also advised that he was the subject of further allegations made pursuant to the Police Act (Form 8). These allegations purported that he had been further neglecting his duties without an adequate reason and committing deceit when he was acting while on sick leave. Again HRP knew or ought to have known before making this allegation, that Symington's sick leave was based upon a stress-related illness directly related to his work place conditions. 20 On April 9, 2002, Cst. Symington was advised that his suspension under the Police Act was lifted.

But there followed another letter from Staff Sergeant Sanford, described in the amended statement of claim: 63. Within hours of receiving this news, Symington received a letter from Staff Sergeant Sanford instructing Symington that, if he did not return to work immediately, his sick leave benefits would be immediately terminated.

21 On October 31, 2001, Sergeant Moser initiated another Police Act allegation against Symington, that he engaged in corruptpractices by taking employment as an actor while he was on sick leave. To this, Cst. Symington's ASC says: 66. ... Again Moser and the HRP knew or ought to have known that this allegation was false. 22 With one exception, all the discipline initiated by the Region against Cst. Symington terminated in Cst. Symington's favour. Theexception is the Region's assertion that Cst. Symington took an acting job while on sick leave which was adjourned because: 64. ...

HRP have refused to accommodate Symington's medically recommended request to hold the hearing at a location offsite fromthe HRP station. The pleadings and record do not say what happened to the adjourned hearing. 23 Cst. Symington pleads that the Region's disciplinary measures are tortious as malicious prosecution (ASC para. 29-30, 70-71). Heclaims that the tort of malicious prosecution applies to professional discipline: Stoffman v. Ontario Veterinary Association (1990), (ON SC), 73 OR (2d) 737 (Div. Ct.) at para. 8, 14-20; Bainard v. Toronto Police Services Board, [2002] O.J.

No. 2765(Sup.Ct.) at para. 61. 24 Second: defamation. Cst. Symington pleads defamation. The key facts supporting this allegation appear in the following paragraphsof the ASC: 73. On June 15, 2001, Staff Sergeant Fox issued an "all points bulletin" directing all members of the HRP to be on the lookout forSymington. This "APB" was purportedly issued in order to get Symington to sign some routine medical consent to release informationforms. The purpose of the APB was not included in the issued bulletin. 77.

HRP and HRM, or their representatives, publicized the suspension and its cause, resulting in the publicization of Symington'scondition. This further poisoned the work environment and exacerbated Symington's work-related issues. 78. Following the termination of the criminal investigation, the HRP subsequently issued a statement that no charges were pending 'atthis time.' This misleading statement was reported in both print and broadcast media locally, nationally and internationally and impliedguilt and an investigation that may reopen in future.

However, the HRP finally conceded, in a hearing before the Nova Scotia SupremeCourt in January, 2002, that no charges were going to be laid and none were contemplated in the future. 79. Following publication of Symington's suspension and its cause by the HRP, the HRM and HRP released ongoing statements to themedia that were by their nature and the media environment in which they were released and publicized, meant to defame and cause harmto Symington locally, nationally and internationally. 25 Third: negligence. Cst.

Symington says the Region breached its duty of care by undertaking an inadequate investigation of theallegations that Cst. Symington had abused his sick leave (ASC para. 31-32, 80-81). 26 Fourth: Intentional infliction of (mental) harm. Cst. Symington sues for intentional infliction of mental harm, prefacing a list ofparticulars with the following: 90. At all material times, thereto, HRP knew that Symington was suffering from a stress-related and stress-induced illness. Knowingthis, HRP, through Symington's superiors and certain fellow officers, as well as HRM staff retained by HRP, as referred to above (and

below), took the following actions against Symington: ... This is followed by 15 allegations of invasion of privacy, instigation of criminal procedures and disciplinary complaints, harassment anddefamation. These particulars stemmed from the underlying dispute whether Cst. Symington had abused his sick leave. 27 Fifth: Malicious prosecution/abuse of criminal process. Cst. Symington pleads that the Region abused the criminal process bymaliciously obtaining a search warrant to investigate his sick leave. The ASC says: 38.

On or about September 24, 2001, Sergeant Tim Moser began an investigation of Symington based upon a suspicion thatSymington had defrauded his employer by taking sick leave though he was not physically disabled from working. 39.

Sergeant Tim Moser swore out Informations to Obtain Search Warrants and thereby obtained and subsequently executed foursearch warrants; two of them were dated October 12th, 2001, one was dated October 16th, 2001, and one was dated October 18th, 2001.The search warrants were directed to the Alliance of Canadian Cinema, Television and Radio Artists ("ACTRA"), Symington's familyphysician, Nova Scotia Medical Services Insurance, and his employer, HRM. 40.

Sergeant Moser failed to include in the affidavits supporting his application for the search warrants any information that wouldinform the issuing Judge that Symington's sick leave was based upon job-related stress, not physical disability. Sergeant Moser knew, orought to have known, of this information when he obtained the search warrants. Sergeant Moser also made manifestly false statements inhis sworn Informations upon which was based Sergeant Moser's applications for search warrants. 41.

Sergeant Moser intentionally or recklessly misled the Justice who issued the search warrants by leading the Justice to erroneouslybelieve that Symington's sick leave was based upon a physical illness or disability. This misrepresentation by commission and omission,permitted Sergeant Moser to allege that certain physical activities as having been performed by Symington raised a suspicion offraudulent behaviour. [16] With respect to the Weber v.

Ontario Hydro, (SCC), [1995] 2 S.C.R. 929 analysis and the essential characterof the dispute, the Court said at paras. 72 and 73: 72 The Chief Justice characterized the dispute as disciplinary. With respect, I disagree. The dispute, from its animating facts,essentially is whether Cst. Symington was truly entitled to sick leave. 73 I have set out earlier (para. 6 -17) Cst. Symington's pleading of the facts surrounding the dispute. The inescapable theme is Cst.Symington's assertion that his sick leave was caused by workplace stress, which the Region refused to acknowledge.

Because, he alleges,the stress was caused by his hostile working conditions at the Halifax Regional Police Service, he was not disabled from activitieselsewhere, in New York City or on the acting stage. Cst. Symington's ASC, para. 51 and 65 identifies this difference as "the gravamen"and "central allegation" of the Region's criminal and disciplinary measures. His pleaded causes of action reiterate the point (above para.19 - 29). The "main fact that animates the dispute" (Chief Justice McLachlin's phrase in Morin) was the fissure between Cst. Symington'sassertion, and the Region's denial, that Cst.

Symington suffered workplace related stress, entitling him to sick leave benefits under thecollective agreement but allowing him to pursue activities outside his workplace. The Region's conduct, characterized in the ASC asnegligence, defamation, intentional infliction of harm and malicious prosecution, stemmed from the Region's view that Cst. Symingtonhad abused his sick leave. [17] The Court went on to consider the ambit of the collective agreement and determined that the plaintiff’s claims arose under thecollective agreement, with one exception.

At para. 94, the Court stated: 94 There is one exception to my conclusion that Cst. Symington's claims arise under the collective agreement. Cst. Symington has suedfor malicious prosecution, based on the Region's institution of the criminal process to investigate and possibly prosecute Cst. Symington.The collective agreement neither incorporates the criminal regime into labour relations nor shelters the Region from the consequences ofabuse of the criminal process. I adopt the reasoning of Justice Laskin in Piko v.

Hudson's Bay Company (1998), (ONCA), 41 O.R. (3d) 729 (O.C.A.), leave to appeal denied [1999] S.C.C.A. No. 23, at pp. 735-736:

. . . See also Graham v. Strait Crossing Inc. (1999), (PE SCAD), 170 D.L.R. (4th) 152 (P.E.I.S.C. A.D.) at para. 19-20. Inmy view, Cst. Symington's action for malicious prosecution for the alleged abuse of the criminal process is not, in its essential character,a dispute arising from the collective agreement, and is not excluded from the court by the Weber principle. 95 There is no issue in this appeal as to the merits of Cst. Symington's claims, or whether the claim for malicious prosecution evendiscloses a cause of action on its face. I make no comment on those matters.

My reasons deal only with the jurisdictional question. [18] The Court reiterates that only a single cause of action may proceed in paras. 114 and 127 of the decision: 114 ... As discussed, in my view the only component of Cst. Symington's ASC that may proceed to court is his cause of action formalicious prosecution based on the alleged abuse of the criminal process. My comments related to the notice of contention are limited tothat cause of action. As the Chief Justice did not consider issue estoppel, there is no standard of review. I would allow the appeal in part, to permit Cst.

Symington to pursue in court his cause of action for malicious prosecution resulting fromalleged abuse of the criminal process. In all other respects I would dismiss the appeal, and dismiss the grounds in the notice ofcontention. Rather than parsing the pleadings to strike passages and retain only those that relate to the permitted cause of action, I preferthe remedy applied by the Alberta Court of Appeal in Edmonton Police, para. 29-30.

I would retain the basic pleading of maliciousprosecution for abuse of the criminal process to avoid a limitations issue, but would strike the rest of the amended statement of claim,with leave to Cst.

Symington to amend to support his claim for malicious prosecution for alleged abuse of the criminal process. [19] The applicants in this case concede that it is reasonable to infer that the plaintiff’s claim for malicious procurement of a searchwarrant is sufficiently related to the malicious prosecution claim, to allow these two causes to proceed subject to an examination of theirmerit pursuant to Rules 13.03 and 13.04. I agree. [20] I can place no other

interpretation on the Court of Appeal decision, than to recognize that the Court was very specific inprecluding four of the five causes of action.

The plaintiff can only proceed with the cause of action of malicious prosecution. [21] Having reviewed the 2nd ASC, I am in agreement with the applicants that the following paras. of the plaintiff’s claim should bestruck: Paragraphs 27, 33, 34, 36, 37, 68, and the second sentence of paragraph 92 (which contain allegations of malicious prosecution fordiscipline); Paragraphs 78 and 90 (which contain allegations of defamation); Paragraphs 80, 81, and 82 (which contain allegations of negligence); and Paragraphs 90, 91 and the second sentence of paragraph 92 (which contain allegations of intentional infliction of mental suffering,defamation and invasion of privacy). [22] These paragraphs attempt to re-litigate matters that have been determined by the Nova Scotia Court of Appeal, and thereforeamount to an abuse of process under Rule 88.

I will however consider the allegations relating to the conduct of the police officers duringthe investigation in examining the cause of malicious prosecution, although not as a separate tort of negligent investigation or

misfeasance. The real events complained of relate to an alleged wrongful “prosecution” and “procurement” between September 24 - October 30, 2001. The harm or damage done to the plaintiff would go to the issue of damages. [ 23 ] It is somewhat of a semantic argument for the inclusion of these two additional torts, which would fail in any event if the police officers’ conduct in their investigation could be characterized as meeting the reasonable and probable cause test. [ 24 ] The only matter that I will now consider in these

summary judgment proceedings under Rules 13.03 and 13.04 is that of the cause of action for malicious prosecution based on the alleged abuse of the criminal process. [ 25 ]

Summary judgment on pleadings is governed by Rule 13.03:

Summary judgment on pleadings 13.03

(1) A judge must set aside a statement of claim, or a statement of defence, that is deficient in any of the following ways: (

a) it discloses no cause of action or basis for a defence or contest; (

b) it makes a claim based on a cause of action in the exclusive jurisdiction of another court; (

c) it otherwise makes a claim, or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own.

(2) The judge must grant

summary judgment of one of the following kinds, when a pleading is set aside in the following circumstances: (

a) judgment for the plaintiff, when the statement of defence is set aside wholly; (

b) dismissal of the proceeding, when the statement of claim is set aside wholly; (

c) allowance of a claim, when all parts of the statement of defence pertaining to the claim are set aside; (

d) dismissal of a claim, when all parts of the statement of claim that pertain to the claim are set aside.

(3) A motion for

summary judgment on the pleadings must be determined only on the pleadings, and no affidavit may be filed in support of or opposition to the motion.

(4) A judge who hears a motion for

summary judgment on pleadings may adjourn the motion until after the judge hears a motion for an amendment to the pleadings.

(5) A judge who hears a motion for

summary judgment on pleadings, and who is satisfied on both of the following, may determine a question of law:

(

a) the allegations of material fact in the pleadings sought to be set aside provide, if assumed to be true, the entire facts necessary forthe determination; (

b) the outcome of the motion depends entirely on the answer to the question. [26] The applicants also rely on Rule 38.02 which reads as follows: General principles of pleading 38.02

(1) A party must, by the pleading the party files, provide notice to the other party of all claims, defences, or grounds to be raisedby the party signing the pleading.

(2) The pleading must be concise, but it must provide information sufficient to accomplish both of the following: (

a) the other party will know the case the party has to meet when preparing for, and participating in, the trial or hearing; (

b) the other party will not be surprised when the party signing the pleading seeks to prove a material fact.

(3) Material facts must be pleaded, but the evidence to prove a material fact must not be pleaded.

(4) A party may plead a point of law, if the material facts that make it applicable are also pleaded. The test for

summary judgment on pleadings is well established. [27] The test for

summary judgment on pleadings is described in Murphy v. Murphy, 2009 NSSC 138, 277 NSR (2d)(73) at para.26: 26 The test in new CPR 13.03 (old CPR 14.25) -

summary judgment on pleadings, is that the pleading discloses no cause of action[13.03(1)(a)], or the claim is clearly unsustainable when the pleading is read on its own [13.03(1)(c)]. In Hunt v. Carey Canada Inc. (SCC), [1990] 2 S.C.R. 959, the Supreme Court wrote that the question was: assuming the facts stated in the pleadingscan be proved, is it plain and obvious that the statement of claim disclosed no reasonable cause of action? Only if the action is certain tofail because it contains a radical defect should it be struck. [28] Counsel for both parties agree that the elements that must be proved to sustain an action in malicious prosecution are asfollows: (

a) the proceedings must have been initiated by the defendant; (

b) the proceedings must have terminated in favour of the plaintiff; (

c) the absence of reasonable and probable cause;

(

d) malice, or a primary purpose other than that of carrying the law into effect. (Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170 [Nelles] para. 42) [29] In Nelles, Lamer J. remarked: 43 The first two elements are straightforward and largely speak for themselves.

The latter two elements require explicit discussion.Reasonable and probable cause has been defined as "an honest belief in the guilt of the accused based upon a full conviction, founded onreasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarilyprudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of thecrime imputed" (Hicks v. Faulkner (1878), 8 Q.B.D. 167, at p. 171, Hawkins J.) 44 This test contains both a subjective and objective element.

There must be both actual belief on the part of the prosecutor and thatbelief must be reasonable in the circumstances. The existence of reasonable and probable cause is a matter for the judge to decide asopposed to the jury. 45 The required element of malice is for all intents, the equivalent of "improper purpose". It has according to Fleming, a "widermeaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateraladvantage" (Fleming, op. cit., at p. 609).

To succeed in an action for malicious prosecution against the Attorney General or CrownAttorney, the plaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, andmalice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with thestatus of "minister of justice".

In my view this burden on the plaintiff amounts to a requirement that the Attorney General or CrownAttorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process ofcriminal justice. In fact, in some cases this would seem to amount to criminal conduct. (See for example breach of trust, s. 122,conspiracy re: false prosecution s. 465(1)(b), obstructing justice s. 139(2) and (3) of the Criminal Code, R.S.C., 1985, c. C-46.) [30] It is the plaintiff’s contention that his clients task of staving off this motion for

summary judgment is not onerous, and that theapplicant’s have the high threshold to meet, but not the plaintiff, whom in his submission has a low threshold which is established by themere presence of some conflicting evidence. [31] In particular the plaintiff is of the view that the high bar malice test in the seminal decision Miazga v. Kvello Estate, 2009 SCC51 cannot apply where the defendants are not Crown counsel. The plaintiff relies on a recent decision Pate v.

Galway-Cavendish(Township), 2011 ONCA 329. [32] With respect to the tort of malicious procurement of a search warrant, the elements of that tort are described in Gibbs v. Rea[1998] 3 WLR 72 (PC) at p. 80: In essence the plaintiff must show: 1. That the defendant made or caused to be made a successful application for the search warrant. 2. That the defendant did not have reasonable and probable cause to make the application... 3. That the defendant acted with malice, and 4. That the damage resulted from the issue or execution of the warrant.

[33] I will now address the pleadings with respect to the four elements required to sustain an action for malicious prosecution.

a) The proceedings must have been initiated by the defendant. [34] The applicant says the plaintiff’s claim does not establish this first element as no “proceedings” were initiated by thedefendants, because the investigation was terminated and the plaintiff was never charged with an offence.

The applicants concede that itis not necessary for the plaintiff to be on trial for a malicious prosecution to occur, but say the plaintiff must show that the defendantswere actively instrumental in initiating the criminal process and must do everything in their power to charge the plaintiff with a criminaloffence. [35] It is important to note that the criminal investigation initiated by Sergeant Moser, commenced on September 24, 2001 andterminated on October 31, 2001, a mere five weeks later.

The search warrants in question were issued as follows: two were datedOctober 12, 2011, one dated October 16, 2001 and one dated October 18, 2001, in the middle of the investigative time frame. [36] The leading case on the point is Casey v. Automobiles Renault Canada Ltd. (SCC), [1965] S.C.R. 607. In thiscase the general sales manager of the defendant company was instructed to lay a charge of theft against the plaintiff, for thedisappearance of 26 Renaults.

Following the laying of the information on November 1960, the defendant subsequently requested thatthe charge be withdrawn, and the magistrate holding the information wrote on its face "Withdrawn Dec. 13/60 at request of informant". [37] In an action for damages for malicious prosecution, before judge and jury, judgment was subsequently given in favour of Mr.Casey for damages in the amount of $28,000. [38] This NSCA found that the prosecution upon which the action was based was never instituted or commenced.

The plaintiffappealed to the Supreme Court of Canada. [39] The Supreme Court of Canada concluded: That publicity attended the laying of the information in this case is clear. The evidence established that employees of the respondentwere not only aware of it, but passed the information on to others.

I am therefore of the opinion, with great respect to the views expressed in the Court below, that, as the respondent had causedeverything to be done which could be done wrongfully to set the law in motion against the appellant on a criminal charge, an action formalicious prosecution lay against the respondent, the other required elements of that tort being established. In my opinion the appeal should be allowed and the judgment at trial restored, with costs to the appellant in this Court and in theCourt below. [40] In Chopra v. T. Eaton Company 1999 ABQB 201, 70 Atla.

L.R. (3d) 90 (the police not the plaintiff swore the information). [41] Mr. Chopra had gone to an Eaton’s store to obtain a cash refund from a credit balance on his account. Discussions ensued, Mr.Chopra was being ejected from the store and a shoving match resulted in this detention in the store and his arrest. He successfullydefended charges of causing a public disturbance. He was injured during the disturbance and subsequently sued for the false arrest andmalicious prosecution. His action for malicious prosecution failed.

The Court stated: 173 The test to determine whether one initiated proceedings was discussed in Danby v. Beardsley (1880), 43 L.T. 603. Lopes J.

concluded that there was no authority outlining what constituted the prosecutor in an action for malicious prosecution, and then outlinedthe test himself as follows, at p.604: "is there any evidence to show that the defendant was actively instrumental in putting the law inforce?". 174 A similar general rule was described with different but consistent wording by the Supreme Court of Canada, in Casey v.Automobiles Renault Canada (1965), (SCC), 54 D.L.R. (2d) 600 (S.C.C.).

In concluding that the defendant in that casehad initiated the proceedings, Martland J. commented, at p.614: I am therefore of the opinion, with great respect to the views expressed in the Court below, that, as the respondent had caused everythingto be done which could be done wrongfully to set the law in motion against the appellant on a criminal charge, an action for maliciousprosecution lay against the respondent, the other required elements of that tort being established. [Emphasis added] 175 There is no doubt that if one swears an information against another person, they have initiated the prosecution.

This was thesituation before the Supreme Court in Casey, supra. Indeed, if one does not swear the information and lay the charge, it will be muchmore difficult to establish that they were "actively instrumental" in setting the law in motion. However, in my opinion it is not anabsolute requirement that the defendant swear the information to have initiated the proceedings. There are other ways that one can be"actively instrumental" in the decision to lay charges, and other ways that one can "cause everything to be done wrongfully to set the lawin motion" against another.

The real issue is this: in what circumstances is a person who has not sworn the information still considered tohave initiated the proceedings? 178 If the defendant has not sworn the information, he or she must have done more than merely provide information to the police. Thefollowing passage from Berman v. Jenson (1989), (SK KB), 77 Sask. R. 161 (Q.B.), is illustrative: To incur liability, the defendant must play an active role in the conduct of the proceedings, as by instigating or setting them in motion.The defendant must have been "actively instrumental" in setting the law in motion.

Simply giving a candid account, howeverincriminating, to the police is not the equivalent of launching a prosecution. The critical decision to prosecute is not that of the privateperson. It is important to draw a line between those authorities in which a defendant takes his information to a magistrate, and those inwhich a defendant takes his information to the police. It is important if the charge was laid at the discretion of the public authority - theprosecutor's office. [42] Citing Temilini v. Ontario Provincial Police (Commissioner) et al. (1990), (ON CA), 38 O.A.C. 270; Hindev.

Skibinski (1994) 21 C.C.L.T. (2d) 314 (Ont Gen. Div.); Quinn v. Morrison [1997] O.J. No. 2898 (Ont. Gen. Div.) and Petrovitch v.Campbell [1992] B.C.J. No. 20 (B.C.S.C.); Brooker J. concluded at paras. 184-186: 184 From these decisions I conclude that it is not an absolute requirement that the defendant swear the information or lay the charge tohave initiated the prosecution. The correct tests are the general ones outlined in Danby v. Beardsley, supra, and Casey, supra.

Whether adefendant has initiated the proceedings will be a matter for the trial judge to determine on a consideration of all of the circumstances ofthe case. 185 The strongest indicia that one has initiated proceedings will be if the defendant did in fact swear the information and lay thecharges; however, it is not the only indicia. For example, the defendant's involvement in the arrest, any detention or investigation, andthe ultimate decision to lay charges will all be relevant.

Some examples of relevant factors for a court to consider, in addition to whetherthe defendant swore the information, might be the degree to which the defendant or the police performed the investigation, enthusiasticor persuasive suggestions by the defendant that charges be laid, the degree to which the police's decision to prosecute is based ondeliberately false information provided by the defendant, whether the defendant or the police carried out the arrest or detention, or anyfactors suggesting that the police accepted without consideration the suggestion by the defendant that charges be laid.

This list is notexhaustive. In each case it will depend on all of the circumstances. 186 In the case at bar, the Defendants did not swear the information. There is no evidence that they misled the police with falseinformation that caused the police to, or affected their decision to, lay charges. There is no evidence that they pressured the police oractively engaged in persuading the police to lay the charges. I note that the Defendants performed most of the investigation of witnesses,all of whom were Eaton's employees, and filled out their incident report for the police officer's consideration.

However, on all theevidence it appears that they merely provided information to the police, and the police exercised their discretion and swore theinformation. I cannot conclude that any of the Defendants initiated the prosecution against Chopra, and he has therefore failed to prove

the first element of the action in malicious prosecution. [43] There are cases which distinguish between the private actor and the police officer. [44] The plaintiff has relied on five cases all involving private actors, not the actions of police officers. They are: Casey, supra;Miazga v. Kvello Estate, 2007 SKCA 57 , [2007] S.J. No. 247 and 2007 SKCA 57; Kefeli v. Centennial College of Applied Artsand Technology, [2002] O.J. No. 3023 (C.A.); Chopra v. T.

Eaton Co., 1999 ABQB 201, 70 Alta LR (3d); 90; and Mohammed Amin v.Bannerjee, [1947] A.C. 322 (P.C.). [45] The Court of Appeal in Saskatchewan in Miazga, supra, commented on the initiator of an action. Bunko-Ruys was a childtherapist whose position was that the trial judge erred in finding she was included as having “initiated proceedings”.

As paras. 36-39,Sherstobitoff J.A. commented: Did the trial judge err, when considering whether Bunko-Ruys initiated the action, in considering evidence of her conductsubsequent to the date of the laying of the charges? 37 Since Bunko-Ruys is neither a police officer nor a prosecuting lawyer, she must be sued in her capacity as an ordinary privatecitizen. Professor Klar, in his text Tort Law, 3d. ed. (Toronto: Carswell, 2003) at p. 65 says this: Private citizens also may be sued if they are responsible for having initiated the proceedings. ...

The proceedings must have beeninitiated, i.e., set in motion, by the defendant. The test is whether "the informant had done all he could do to launch criminal proceedingsagainst the accused." 38 The test referred to is derived from Casey v. Automobiles Renault Canada Ltd. (SCC), [1965] S.C.R. 607 at p. 613.In that case, an information was sworn and filed with a Magistrate who had jurisdiction, but was withdrawn at the request of thecomplainant before any action was taken.

In issue was whether a prosecution had been initiated in law when no steps other than theswearing and filing of the information had taken place. Martland J.A., writing for the majority, upheld a judgment for maliciousprosecution. 39 Bunko-Ruys cited this decision for the proposition, a valid one, that a prosecution was initiated when the information was swornand filed. . . . [46] Professor Klan in his text Tort Law, 3d. ed (Toronto: Carswell 2003) at p. 64 set fourth the view that: The action is brought against those responsible for initiating the proceedings.

Frequently the defendants are police officers, since theyare “actively instrumental in putting the law into force by advising on the swearing of the information and in instructing of the CrownAttorney.” Others acting in their official capacities can also be sued, such as a residential tenancies officer who swore an informationthat she had reasonable and probable grounds to believe that a statutory offence had been committed. and a prosecuting counsel in a taxevasion case. He referenced: See Carpenter v. MacDonald (1978), (ON SC), 6 C.C.L.T. 159 at 179 (Ont. Dist.

Ct), affirmed (1979), (ON CA), 19 C.R. (3d) 400 (Ont. C.A.). Other cases involving police officers as defendants are White-house v. Reimer,above, note216; Banks v. Bliefernich, above, note 216; Klein v. Sieferling, (SK KB), [1999] 10 W.W.R. 554 (Sask. Q.B.);

among others. [ 47 ] In the Carpenter case, an action brought against two police officers for false arrest and malicious prosecution Smith D.C.J., stated at para. 36: 36 The plaintiff Roland Carpenter has claimed against the defendant officers for malicious prosecution. The burden is on him to show that the defendants prosecuted him. Because they were actively instrumental in putting the law into force by advising on the swearing of the information and in the instructing of the Crown Attorney, I am satisfied that the plaintiff has discharged that onus. . . . [ 48 ] In Bainard v.

Toronto Police Service , the question was also address were proceedings initiated by two defendants defendant police officers. The Court answered the question at paras. 68-71: 68 In this case, there can bee no doubt that Dalziel initiated the proceedings against the defendants. Counsel for the defendants did not suggest otherwise. Although Dalziel did not issue the service notices personally, he reviewed the investigation done by Dixon, determined that the defendants had committed breaches of the code of conduct, decided that discipline charges should be laid, selected the precise charges and drafted them.

Dixon made no recommendation concerning the possible charges. Most significantly, he decided that the charges should be continued after the criminal charges were dismissed. 69 The question whether Dixon is sufficiently connected to the laying of the service charges or with the carriage of the service prosecution to be considered to have initiated the proceedings is far more difficult to answer. It is beyond dispute that she initiated the criminal proceedings. She investigated the defendants, reached the conclusion that they should be charged, and swore the information.

But her connection to the service prosecution is far more peripheral. It is of course true that the results of her investigation formed the basis for these charges. She prepared a package for the Professional Standards Review Committee prior to the laying of the criminal charges, but this document makes no recommendation about service charges. While that document and the Crown brief that Dixon prepared for the criminal prosecution provided the factual underpinning for Dalziel's decision to prosecute, she played no role in that decision.

She had no input into the decision, made no recommendation and provided no guidance. Nor was she consulted when Dalziel made the all-important decision to continue the prosecution after the criminal charges were stayed. She was completely outside the decision-making loop throughout. 70 In these circumstances, it cannot be said that she was "actively instrumental in putting the law into force by advising on the swearing of the information and in the instructing of the Crown Attorney".

Nor can it be said that she engaged in "affirmative action by way of advice, encouragement, pressure, etc., in the institution, or causing the institution, of the prosecution, or in affirmatively encouraging its continuance after it has been instituted". 71 Accordingly, I conclude that Dalziel initiated the proceedings against the defendants, and that Dixon did not. [ 49 ] The applicant also relies on Walsh v. Murray, 2007 NLTD 106 . After a fight between the plaintiff and his brother and two others the police intervened and charges were laid.

The charges against the Walsh brothers were later withdrawn, but the charges against the other two went to trial where both men were acquitted. The plaintiff sued for malicious prosecution and sought damages for legal costs and compensation for his injuries. [ 50 ] The plaintiff statement of claim was struck. Wells J. noted at para. 22: 22 Furthermore, there was no wrongful or malicious prosecution against the plaintiff, because when the available facts were evaluated, the charges against the plaintiff and his brother were withdrawn and the Crown proceeded to trial against Messrs.

Johnson and Vinnicombe. [ 51 ] The question in this case is whether “a proceeding was actually initiated by the defendants” and did they do “all they could” to launch criminal proceedings.

[52] The plaintiff says that Sergeant Moser’s actions reached that stage. They argue the criminal process was “out of his hands”when the Crown took over, he could thus have done nothing more to initiate a prosecution. [53] The plaintiff also argues that by the procurement of search warrants in mid October 2001, he did so maliciously and withoutprobable cause. [54] These two causes are linked and reflect on Sergeant Moser’s activities during the five-week investigation.

As the plaintiffargues “the indica of a defendant’s role as a malicious prosecutor include the degree to which the defendant performed the investigationor made enthusiastic or persuasive suggestions that charges be laid.” [55] Each of the cases cited rest on their facts in determining if “proceedings had been initiated.” In this case, I should like tofurther examine the conduct of the police during the investigative process, to inform this issue. [56] I agree with the applicants that Sergeant Moser’s investigation can be described in three distinct stages, each of which may beara different threshold for the reasonableness of his actions; the early stage September 24 - October 12, the search warrant stage October12-18, and the post search warrant stage October 18-30 when all the information was then in and Sergeant Moser had choices to make. [57] The applicants characterize Sergeant Moser’s activity as an “investigation only” case and points out that in all 22 cases reliedon by the plaintiff relating to malicious prosecution further steps were taken in each case, beyond the mere investigative process.

b) Reasonable and probable grounds [58] The absence of reasonable and probable cause in securing search warrants and continuing the investigation, would indicate anissue for trial. Plaintiff’s claim paras. 39-41. [59] In Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41 , [2007] 3 S.C.R. 129, the Courtaddressed the standard as follows: 67 Both the trial judge and the Court of Appeal adopted the standard of the reasonable police officer in like circumstances as thestandard that is generally appropriate in cases of alleged negligent investigation.

I agree that this is the correct standard. 68 A number of considerations support the conclusion that the standard of care is that of a reasonable police officer in all thecircumstances. First, the standard of a reasonable police officer in all the circumstances provides a flexible overarching standard thatcovers all aspects of investigatory police work and appropriately reflects its realities. The particular conduct required is informed by thestage of the investigation and applicable legal considerations. At the outset of an investigation, the police may have little more thanhearsay, suspicion and a hunch.

What is required is that they act as a reasonable investigating officer would in those circumstances.Later, in laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect isguilty; since the law requires such grounds, a police officer acting reasonably in the circumstances would insist on them. The reasonableofficer standard entails no conflict between criminal standards (Charron J., at para. 175).

Rather, it incorporates them, in the same way itincorporates an appropriate degree of judicial discretion, denies liability for minor errors or mistakes and rejects liability by hindsight. Inall these ways, it reflects the realities of police work. 73 I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances.This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation.

Like otherprofessionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds ofreasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than thatdeemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fallwithin the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached.

The standardis not perfection, or even the optimum, judged from the vantage 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.The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, itaccepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results,without breaching the standard of care.

The law distinguishes between unreasonable mistakes breaching the standard of care and mere"errors in judgment" which any reasonable professional might have made and therefore, which do not breach the standard of care. (SeeLapointe v. Hôpital Le Gardeur, (SCC), [1992] 1 S.C.R. 351; Folland v. Reardon (2005), (ON CA),74 O.R. (3d) 688 (C.A.); Klar, at p. 359.) [60] Moak v. Ontario (Provincial Police), (ON SC), [2008] O.J.

No. 8 (S.C.J.) described the duty at para. 55, asfollows: 55 Similar to the law about justifying an arrest, the test for reasonable and probable grounds for instituting or continuing a prosecutionis both subjective and objective. The defendant will not be liable for malicious prosecution, if he or she had an honest and objectivelyreasonable belief that the plaintiff is probably guilty. To be objectively reasonable, the evidence must be sufficient to lead a prudent andcautious person to the belief that the accused was probably guilty: Nelles v. Ontario, supra, at paras. 43-44; Proulx v.

Quebec (AttorneyGeneral), supra at para. 10; Gabadon v. Toronto Police Services Board (2003), (ON SC), 64 O.R. (3d) 726 (S.C.J.);H.S. v. P.S.M., [2002] O.J. No. 1255 (S.C.J.); Cellini v. Ontario (Attorney General), supra. [61] Sergeant Moser sought search warrants at the investigative stage of his work. In my view, all that was required of him was thathe “acted reasonably” in the circumstances. It is clear that the standard expected of him at the early stages of an investigation is lessonerous than what is expected at the subsequent stage of prosecution. This was recognized in Hill, as well as Wong v.

Kyriacou, (ON SC), [2009] O.J. No. 5067 (S.C.J.) and P.H.E. v. Ottawa-Carlton (Region) Police Service, [2003] O.J. No. 3512(S.C.J.): 54 From the review of the above noted case law, a number of principles emerge. The police need not demonstrate anything more thanreasonable and probable grounds. They are not required to establish a prima facie case for conviction before making an arrest.

It is clear,if one views the tests to be applied at the various stages of the criminal process (those being, for arrest - reasonable and probablegrounds, for prosecution - a reasonable prospect of conviction, at a preliminary hearing - evidence that, if believed, could lead toconviction, at trial - proof beyond a reasonable doubt) that a police officer exercises his or her discretion at the very lowest end of thiscontinuum. As was noted by Scott L.J. in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), as quoted by the Supreme Court of Canadain R. v.

Storrey, supra, "That requirement is very limited" (that is, the requirement that a police officer have reasonable and probablegrounds). [62] In Wong, the court held at paras. 84-85: 84 The plaintiff has the onus to demonstrate the absence of reasonable grounds. A plaintiff must demonstrate that the defendantofficers had before them facts pointing so overwhelmingly to the plaintiff's innocence that no reasonable person could have believed inthe plaintiff's guilt. 85 As noted above, there is no evidence of the absence of reasonable and probable grounds for the arrest and detention of Mr.

Wong.Even if there were evidence of the absence of reasonable and probable grounds, this alone does not constitute malice. In order to bemalicious, a prosecution must be fuelled by an improper purpose, and no such improper purpose was identified in the pleadings or attrial.

While it may be possible to infer malice from the absence of reasonable and probable cause to commence or to continue aprosecution, it is only appropriate to do so where the "circumstances [are] such that prosecution can only be accounted for by implyingsome wrong or indirect motive to the prosecutor, although it may be impossible to say what it was." [63] With respect to the search warrants the requirement for reasonable grounds is also stated in s. 487.(1) of the Criminal Code: 487.

(1) Information for search warrant — A justice who is satisfied by information on oath in Form 1 that there are reasonable groundsto believe that there is in a building, receptacle or place (

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have beencommitted,

(

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or ... [ 64 ] In Wilson v. Toronto Police Service , [2001] O.J. No. 2434 , the allegation was that a Crown and two police officers pursued a malicious prosecution.

The Court found however that the pleadings were inadequate. 55 The problem with the manner in which the plaintiff has pleaded his case, in my view, is that he never asserts that Barry knew most of the facts that could undermine the existence of reasonable and probable cause. He simply alleges that Barry "knew or ought to have known" these facts and that during the preliminary hearing, the weakness of the Crown's case and the unreliability of Keyes became obvious. But it is not enough to characterize the case as weak or the witness as unreliable.

Nor is it enough to claim that Barry negligently failed to learn facts that could have fixed him with knowledge that reasonable and probable cause did not exist. Barry would have to have known those particular facts before he could be said to be continuing the prosecution despite an absence of reasonable and probable cause. [ 65 ] Wong, supra, also addressed that a police officer’s requirement to have reasonable and probable grounds at paras. 59-61. 59 A police officer need not exhaust all possible avenues of investigation or inquiry, or interview all potential witnesses, prior to making an arrest.

Nor is a police officer required to obtain the accused's version of events or otherwise establish that the accused has no valid defence before being able to form reasonable and probable grounds. 60 A committal for trial after a preliminary hearing is strong evidence supporting the existence of reasonable grounds.

The withdrawal of charges or the absence of a criminal conviction does not lead to the conclusion that reasonable grounds did not exist for an accused's arrest. 61 The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate.

The requirement is that the information be reliable at the time the decision was made to arrest the accused. [ 66 ] It is an issue in this case, exactly when Sergeant Moser was aware that the plaintiff may also have had a stress-related illness, as well as the earlier claim of physical injury in June 2001.

The applicants argue that even if we assume facts that prove Sergeant Moser knew about the June 14, 2001 diagnosis of a stress-related illness this would not be enough to “overwhelmingly” prove the absence of probable cause, as require in Wong at para. 84 : . . . that the defendant officers had before them facts pointing so overwhelmingly to the plaintiff's innocence that no reasonable person could have believed in the plaintiff's guilt. [ 67 ] Paragraphs 20, 27 53 and 54 address the issue of the reasonableness of the investigation, but do not present facts that were before Sergeant Moser that “spoke overwhelmingly to innocence.” Indeed, the reference to providing medical reports that further addressed the plaintiff’s stress diagnosis were provided to the HRP sometime after October 11, 2001, well into the investigation.

The Moser affidavit addresses the time lines of his knowledge of stress-related illness.

c) Malice

[68] The defendants relies on Miazga v. Kvello Estate, 2009 SCC 51 , 2009 S.C.C. 51 at para. 78, submitting that there is ahigh threshold for malice saying that . . . the plaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, and malice inthe form of a deliberate and improper use of the office of the Attorney General or Crown Attorney . . . 79 In order to prove malice, a plaintiff must, in accordance with Nelles, bring evidence that the defendant Crown was acting pursuantto an improper purpose inconsistent with the office of the Crown attorney.

As we have seen, in deciding whether to initiate or continue aprosecution, the prosecutor must assess the legal strength of the case against the accused. The prosecutor should invoke the criminalprocess only where he or she believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be madeout in a court of law.

It follows that, if the court concludes that the prosecutor initiated or continued the prosecution based on an honest,albeit mistaken, professional belief that reasonable and probable cause did in fact exist, he or she will have acted for the proper purposeof carrying the law into effect and the action must fail. 80 The inverse proposition, however, is not true. The absence of a subjective belief in sufficient grounds, while a relevant factor, doesnot equate with malice. It will not always be possible for a plaintiff to adduce direct evidence of the prosecutor's lack of belief.

As isoften the case, a state of mind may be inferred from other facts.

In appropriate circumstances, for example when the existence ofobjective grounds is woefully inadequate, the absence of a subjective belief in the existence of sufficient grounds may well be inferred.However, even if the plaintiff should succeed in proving that the prosecutor did not have a subjective belief in the existence ofreasonable and probable cause, this does not suffice to prove malice, as the prosecutor's failure to fulfill his or her proper role may be theresult of inexperience, incompetence, negligence, or even gross negligence, none of which is actionable: Nelles, at p. 199; Proulx, atpara. 35.

Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or theprocess of criminal justice. The third and fourth elements of the tort must not be conflated. 81 As discussed earlier, a demonstrable "improper purpose" is the key to maintaining the balance struck in Nelles between the need toensure that the Attorney General and Crown prosecutors will not be hindered in the proper execution of their important public duties andthe need to provide a remedy to individuals who have been wrongly and maliciously prosecuted.

By requiring proof of an improperpurpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutorproceeds, absent reasonable and probable grounds, by reason of incompetence, inexperience, poor judgment, lack of professionalism,laziness, recklessness, honest mistake, negligence, or even gross negligence.

In Nelles, Lamer J. stated, at pp. 196-97: It should be noted that what is at issue here [in a suit for malicious prosecution] is not the exercise of a prosecutor's discretion within theproper sphere of prosecutorial activity as defined by his role as a "minister of justice". Rather, in cases of malicious prosecution we aredealing with allegations of misuse and abuse of the criminal process and of the office of the Crown Attorney.

We are not dealing withmerely second-guessing a Crown Attorney's judgment in the prosecution of a case but rather with the deliberate and malicious use of theoffice for ends that are improper and inconsistent with the traditional prosecutorial function. [69] In Pate, supra, the plaintiff was dismissed from his employment as a building inspector without notice and subsequentlycharged with the theft of building inspection fees for several properties said to have been his files. The police conducted an investigationrelying on information received from the defendant’s staff.

However, exculpatory information relating to missing files and filesprocessed in other offices if shared with the police would have resulted in the investigation being halted and charges never laid. After atrial and finding of not guilty Mr. Pate sued for malicious prosecution. The trial judge dismissed the claim for damages for maliciousprosecution for failure to satisfy that the township initiated the prosecution and that the town “intended to subvert or abuse the criminaljustice system”.

The trial judge did award aggravated damages in part due to his finding that the town failed to provide the police withthe exculpatory evidence once the investigation began. [70] The Court of Appeal adopted the Nelles four-part test and with respect to the threshold for proving malice stated at para. 31.: 31 The Supreme Court made it clear in Miazga that while the elements of the test for malicious prosecution remain the same whethera case involves private defendants or Crown defendants, "courts must take care not to simply transpose the principles established in suitsbetween private parties to cases involving Crown defendants without necessary modification".

That is because, in a case involvingCrown defendants, "the contours of the tort ... must be informed by the core constitutional principles governing that office." Those

principles led the Court in Nelles "to adopt a very high threshold for the tort of malicious prosecution in an action against a public prosecutor": Miazga at para. 44. 32 One of the issues in Miazga was whether an inference of malice can arise from the absence of reasonable and probable grounds.

Having regard to the fact that private parties involved in malicious prosecution suits often have a pre-existing relationship, the Supreme Court of Canada noted that in the context of private parties, malice had sometimes been inferred from the surrounding circumstances and the absence of reasonable and probable grounds alone: As a result, courts in early cases of malicious prosecution were prepared to infer malice from a finding that the prosecution was initiated absent reasonable and probable grounds.

Indeed, the circumstances of these cases easily gave rise to the question: why else would a private person initiate a prosecution based entirely on facts not believed to be true, or worse still, known to be false (emphasis added): Miazga at para. 87. 33 However, the same considerations do not apply to a Crown prosecution where, generally speaking, there is no such pre-existing relationship and, moreover, in making the decision to prosecute, Crown prosecutors are exercising their important role as a "minister of justice". 34 The Court concluded that in a case involving a Crown defendant, "a finding of absence of reasonable and probable grounds on the objective standard is entirely equivocal in terms of a Crown prosecutor's purpose": Miazga at para. 88. 35 The Court explained at para. 85 that "a demonstrable 'improper purpose' is the key to maintaining the balance struck in Nelles between the need to ensure that the Attorney General and Crown prosecutors will not be hindered in the proper execution of their important public duties and the need to provide a remedy to individuals who have been wrongfully and maliciously prosecuted." Moreover, "[b]y requiring proof of an improper purpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutor proceeds absent reasonable and probable grounds by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross negligence." As stated by Lamer J. in Nelles at pp. 196-97: It should be noted that what is at issue here [in a suit for malicious prosecution] is not the exercise of a prosecutor's discretion within the proper sphere of prosecutorial activity as defined by his role as a "minister of justice".

Rather, in cases of malicious prosecution we are dealing with allegations of misuse and abuse of the office of the Crown Attorney. We are not dealing with merely second-guessing a Crown Attorney's judgment in the prosecution of a case but rather with the deliberate and malicious misuse of the office for ends that are improper and inconsistent with the traditional prosecutorial function : [Emphasis added in Miazga. ]: Miazga at para. 81. 36 At para. 89 of Miazga , the Supreme Court summarized the requirements for proving malice against a Crown prosecutor: In

summary, the malice element of the test for malicious prosecution will be made out when a court is satisfied, on a balance of probabilities, that the defendant prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a "minister of justice".

The plaintiff must demonstrate on the totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice such that he or she exceeded the boundaries of the Office of the Attorney General. [Emphasis added.] 37 In this case, the trial judge incorporated some of the standards set out in Miazga for establishing malice by a Crown attorney into the requirements for establishing malice by a private individual.

In particular, he concluded that he could not simply draw an inference of malice from the surrounding circumstances and the absence of reasonable and probable cause, considered objectively. Rather, he also required Mr. Pate to establish that the Township intended "to subvert or abuse the criminal justice system" to establish malice.

The trial judge thus recast and narrowed the language of the malice element of the cause of action from motivated by "malice, or a primary purpose other than that of carrying the law into effect" to "intended to subvert or abuse the criminal justice system." 38 In my opinion, in doing so, the trial judge set the standard for proving malicious prosecution against a private individual too high.

39 The Supreme Court of Canada made it clear in Miazga that the standards for proving malicious prosecution against a Crownattorney are set at a very high threshold to ensure that courts do not engage in reviewing the prosecutorial discretion that rests,constitutionally, with Crown attorneys and to ensure that an action for malicious prosecution will lie against a Crown attorney only whenhe or she steps outside of his or her proper role as a minister of justice.

The same considerations simply do not apply where the action isagainst a private individual. [71] Accordingly in this case, the plaintiff says that malice can be proven by inference from the absence of reasonable and probablecause to prosecute and that the plaintiff need not show for non Crown defendants what precisely the improper purpose was. They arguethe lower threshold of Pate should apply to non Crown police officer defendants. [72] The problem in this case is the adequacy of the pleadings.

The plaintiff has not provided particulars of malice other than to allege that Deputy Chief McNeil and other senior officers “became hostile” or “exhibited hostility” para. 11 of the 2nd ASC. He furtheralleges hostility in paras. 14-19, paras. 22, 24 and 26.

However, while depicting a hostile work environment the plaintiff does not allegethat Deputy Chief McNeil in anyway influenced Inspector Darnbrough or Sergeant Moser in carrying out their duties nor that DeputyChief McNeil somehow caused Sergeant Moser to carry out an investigation for an improper purpose or to cause injury. [73] Wilson addresses the requirement of particulars with respect to the allegation of malice at paras. 64-68. 64 Having identified what I consider to be the meaning of malice in a claim against Crown counsel, I turn to the case at bar.

Withrespect to malice, in his Statement of Claim, the plaintiff says that Barry knew or ought to have known the "facts" about the eyewitnessthat I have outlined above. He then makes the allegation that Barry, together with two of the investigating officers, conspired to cause thecharge to be laid and for the prosecution to continue, "with the malicious intention of securing a conviction against the plaintiff,notwithstanding that there was an absence of any reasonable and probable grounds, for laying, prosecuting or continuing with theprosecution of the charge".

Finally, the plaintiff claims that in conducting himself in this manner, Barry abused his public office in thathe acted maliciously, with intent to injure the plaintiff. 65 I view this as nothing more than a bald allegation of malice. There is no pleading of the circumstances from which malice is to beinferred other than the information that Barry is said to have known, or ought to have known, about the eyewitness, which, as will beseen, I do not view as sufficient in this case to make the allegation of malice more than a bald one.

If there is nothing more than a baldallegation of malice, then what are the consequences for this motion? Does a bald allegation of malice in a Statement of Claim in amalicious prosecution action that is otherwise sufficiently pleaded suffice to permit a finding that the pleading discloses a reasonablecause of action and to permit the action to continue? This precise issue arose in Prete v. Ontario, supra. Carthy J.A., for the majority,stated, at p. 170: Do the pleadings disclose a reasonable cause of action?

To the extent that the allegations rely on malice, Rule 25.06(8) provides that thismay be alleged as a fact without pleading the circumstances from which it is to be inferred. This means that a court cannot treat this as abald allegation and must assume that there is substance behind the allegation for purposes of testing the pleading. The allegation that theprosecution was conducted arbitrarily, capriciously, and without reasonable and probable grounds, may want for particulars, but ifsupported by evidence, clearly presents a triable issue.

I would, therefore, not strike this pleading under Rule 21. 66 In my view, however, this state of affairs has been reversed by a 1996 amendment to Rule 25.06(8). Full particulars must now beprovided not only of fraud, misrepresentation and breach of trust, but also of malice and intent.

The rule now provides: Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge maybe alleged as a fact without pleading the circumstances from which it is to be inferred. 67 It is no longer sufficient to make a bald allegation of malice in a Statement of Claim. The extension of the rule is consistent with itspurpose.

When the process of the court is publicly invoked on the basis of serious allegations of intentional wrongdoing, it is importantthat the alleged wrongdoer be able to understand what is alleged against him or her with some precision, and be placed in a position thatallows a response. (See Sun Life v. 401700 Ontario Ltd. (1991), (ON SC), 3 O.R. (3d) 684 at 690 (Gen. Div.), LanaInternational Ltd. v. Menasco Aerospace Ltd. (1996), (ON SC), 28 O.R. (3d) 343 at 348-49 (Gen. Div.) and WebOffset Publications Ltd. v. Vickery (1998), (ON SC), 40 O.R. (3d) 526 at 538 (Gen.

Div.), aff'd (1999), (ON CA), 43 O.R. (3d) 802 (C.A.)). As I have noted, an allegation of malice against Crown counsel in a malicious prosecutionaction is an allegation of a deliberate and improper use of the office of the Attorney General or Crown Attorney by that prosecutor, in the

sense that the prosecutor "perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice." There is little that one could imagine that would be a more serious allegation against Crown counsel in his or her professional life. It is entirely appropriate, in my view, that more be required of a plaintiff than a bald allegation of malice. 68 Here, the plaintiff alleges as fact no more than that Barry knew or ought to have known facts that deprived the prosecution of reasonable and probable cause.

From this, he alleges that Barry had the malicious intention of securing a conviction against the plaintiff, notwithstanding that there was an absence of any reasonable and probable grounds, and abused his public office in that he acted maliciously with intent to injure the plaintiff. Even assuming that Barry knew all of the "facts" about the eyewitness (which I note, once again, is not actually alleged in the claim), the plaintiff is silent as to facts that could lead to the conclusion that Barry believed that this meant that there was an absence of reasonable and probable cause for the prosecution.

More importantly, he is silent as to facts that could lead to a conclusion that Barry's motive in continuing the prosecution was to secure a conviction against an innocent man, and cause him injury. [ 74 ] In examining the conduct of these police officers, the Court must be able to see or point to some of their actions during the investigation that points to this ill-will or improper motive.

The plaintiff asks the Court to guess that this is likely judging by his past experience with their superior officers, yet he offers no detail. [ 75 ] It is also important to note here that although non Crowns, Inspector Darnbrough and Sergeant Moser are not private parties either. They are members of the HRP who must in their daily work have latitude to exercise discretion in their investigations. Although I agree the standard or threshold is not as high as a Crown acting in right of the Attorney General, they too must be afforded some protection from unworthy suits, in carrying out their public duties.

There must be some factual basis for saying they carried out their duty for improper motive or purpose. [ 76 ] This was in fact the approach adopted by the Supreme Court of Canada, in Nelles , supra, at para. 52 . [ 77 ] Where the Court tempered the “chilling effect” and “flood gates” argument by recognizing that a built-in deterrent to bringing the claim was the onerous and strict burden on the plaintiff, to demonstrate an improper motive or purpose, the Court also noted that errors in the exercise of discretion and judgment are not actionable.

These remarks did not apply solely to Crown prosecutors but also police officers. [ 78 ] I have carefully examined the plaintiff’s pleadings. They are largely bare allegations unsupported by material facts. [ 79 ] When the pleadings are distilled, it is clear that the plaintiff takes issue with the defendants on the following points. [ 80 ] He says he was subjected to a hostile work environment by the late Chief of Police David McKinnon and the Deputy Chief Chris McNeil and other superior officers and that these conditions existed from 1997 onward.

He says that this hostile environment caused work-related stress. [ 81 ] He says that being entitled to sick leave benefits for this illness, he was not disabled from activities elsewhere, such as his acting work in June of 2001 or his role in performing rescue work in New York City during the 911 crisis of 2001. [ 82 ] He says that superior officers were determined to end his police career. [ 83 ] He says that the police investigation launched on September 24, 2001 was motivated by two factors, one, his superior officers wish to get rid of him, and two, Sergeant Moser’s misapprehension of the requirements of the Criminal Code of Canada relating to the elements necessary to establish that the plaintiff may have committed fraud by working while on sick leave from HRP.

[ 84 ] He says that Sergeant Moser misled the issuing judge in the information to obtain four search warrants by leading the justice to believe the plaintiff’s sick leave was based solely on a physical illness and that in pursuing other employment that involved physical activity (counsel both used the expression stunt man in relation to his acting career), this raised the suspicion of fraud. [ 85 ] He says that Sergeant Moser knew or ought to have known that due to the nature of the work-related stress illness, criminal fraud charges could not be sustained. [ 86 ] Further he says that this investigation was done with the intent to cause him harm. [ 87 ] Again, to succeed in an action for malicious prosecution the plaintiff must provide some particulars of how Sergeant Moser, failed in his duties. [ 88 ] No where in the pleadings does the plaintiff allege that either Inspector Darnbrough or Sergeant Moser were improperly influenced by the Chief or Deputy Chief, in carrying out their duties or asked to set a criminal proceeding into motion for the purpose of harming the plaintiff. [ 89 ] The plaintiff does not provide particulars of the “hostility” he alleges senior officers had toward him and none is alleged to have been shown by Sergeant Moser. [ 90 ] Despite repeated demands for particulars the plaintiff did not choose to provide further particulars or material facts, but rested on the pleadings of his 2 nd ASC, with respect to these issues. [ 91 ] With respect to “reasonable and probable cause” in issuing the search warrants, the

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