)) Sheridan Margaret Diaz Plaintiff – v. –, 2017 ONSC 54

CITATION : Diaz v. Tossa, 2017 ONSC 54 COURT FILE NO.: 14-61006 DATE: 2017/01/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) Sheridan Margaret Diaz Plaintiff – and – Gladys Tossa, Jane Doak, Lakeshore General Hospital, Mary Jane Randlett, Denise Paquette, Nicole Robert, Carefor Health and Community Services, Her Majesty the Queen in the Right of Ontario, and Detective Tracy Martel Defendants (moving parties) )))))))))))))))) Bruce F.

Simpson, for the Plaintiff Jacquie Dagher, for the Defendants, Gladys Tossa, Jane Doak, Denise Paquette, Lakeshore General Hospital and Carefor Health and Community Services Heather Mackay, for the Defendants, Her Majesty the Queen in the Right of Ontario, and Detective Tracy Martel HEARD: November 24, 2016 (Ottawa) REASONS FOR Decision R.

Smith J. [ 1 ] The plaintiff has sued a number of defendants including Denise Paquette, Nicole Robert, and Carefor Health and Community Services (hereinafter collectively referred to as “Paquette” or “Carefor”) and her Majesty the Queen in right of Ontario and Detective Tracy Martel (hereinafter collectively referred to as “Ontario”, “Martel” or the “Police”) for false arrest, false imprisonment, malicious prosecution, and for conversion.

In addition the plaintiff the claims for damages caused by a negligent investigation by the Police. [ 2 ] Paquette and Ontario are seeking an order dismissing the claims against them except for except for negligent investigation as disclosing no reasonable cause of action or for being scandalous, frivolous, vexatious, and an abuse of process of the Court under Rules 21 and 25.11 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [ 3 ] The plaintiff was arrested and charged with a single count of failure to provide the necessaries of life to her elderly spouse.

The criminal trial judge found that the plaintiff’s care of her spouse was wanting, but that her neglect did not rise to the level of criminal conduct and as a result she was acquitted. The plaintiff then commenced action against several defendants arising from her arrest and prosecution. [ 4 ] Ontario admits that the claim against it for negligent investigation has been adequately pleaded. Facts [ 5 ] Dr. Diaz is a physician licensed to practice medicine in the Province of Ontario. Her common law partner, Ms.

Bernstein, suffers from dementia. [ 6 ] The Defendant, Carefor, provides various health services to the community of Cornwall, Ontario. The defendant, Ms. Paquette, was at all material times the Elder Abuse Prevention Program Coordinator at Carefor. [ 7 ] Detective Tracy Martel was in charge of the criminal investigation of Ms. Diaz. The plaintiff was arrested on or about June 12, 2012 and remained in custody until June 27, 2012. Dr. Diaz was charged with failure to provide the necessaries of life to Ms. Bernstein.

She was acquitted after a trial ending on or about October 3, 2013. [ 8 ] On June 7, 2012, the defendant Paquette, a registered nurse employed by Carefor, was asked by the Cornwall Police Service to do a wellness check on Debbie Bernstein. Ms. Paquette arrived at Ms. Bernstein’s home and found her all alone. She noticed that Ms. Bernstein walked with the assistance of a walker, she was incontinent and there was an overwhelming smell of urine and feces in the cottage. She observed a cell phone, but it may have been dead and she did not find any food in the refrigerator. Ms.

Paquette called the OPP and advised them of the situation. Ms. Bernstein was taken the Cornwall Community Hospital. [ 9 ] The Cornwall Community Hospital found that Ms. Bernstein was in stable condition and was suffering from mild to

moderate dementia. Ms. Bernstein was initially seen by Dr. Wassef, a psychiatrist, and found to be mentally competent. The doctor whoexamined her and the hospital did not observe any signs of malnutrition or any evidence of bruises or abuse, such as restraints beingused. There was also no suggestion of malnutrition, dehydration, or any evidence of physical or emotional neglect. Ms.

Bernstein wasadmitted to the Cornwall Community Hospital with a diagnosis of “failure to thrive.” [10] The plaintiff alleges that, apart from any legitimately concerning matters which may have come to the attention of thedefendant Paquette when she arrived at the cottage and found Ms. Bernstein all alone, it should have been apparent to Paquette that Ms.Bernstein was otherwise well. [11] The plaintiff alleges in her Statement of Claim that Ms.

Paquette “made a complaint to the OPP, giving them conclusions of asupposedly expert nature from inadequate information, and which were contrary to the available evidence, so that the police would arrestthe plaintiff, thereby preventing her from taking Ms. Bernstein from the Cornwall Community Hospital.” It is further alleged that Ms.Paquette arranged for Nicole Robert to “do an assessment that would support her own position.” [12] The plaintiff states that she had deposited a substantial sum of money in a joint account with her spouse, Ms. Bernstein.

Theplaintiff alleges that some of the money in the joint account has disappeared and that the actions and statements of Detective Martelcaused this to happen. The plaintiff alleges that she was not given an opportunity to contest the removal of some of these funds. Analysis No reasonable cause of action under Rule 21.01(1)(b) [13] In the decision of Hunt v. Carey Canada Inc., (SCC), [1990], 2 S.C.R. 959, the Court stated that the test on amotion to strike out a claim pursuant to rule 21.01(1)(

b) was that, assuming that the facts as stated in the statement of claim can beproved, is it “plain and obvious” that the pleading discloses no reasonable cause of action. [14] In Aristocrat Restaurants Ltd (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331 at para. 3, the Court held that in such amotion the facts pleaded in the Statement of Claim are assumed to be true unless they are blatantly ridiculous or incapable of proof. However, bald allegations are insufficient for the purposes of pleading. This is particularly so where allegations of intentional ormalicious conduct are made.

A plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact toproperly infer intentional or malicious conduct. The court is not required to take allegations based on assumptions and speculations astrue, for the purpose of assessing the cause of action on that issue. [15] In the decision of Deep v. Ontario, [2005] O.J. No. 1294, the Ontario Court of Appeal, at para. 34, stated that the plaintiffmust at a minimum plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed.

The absence of a necessary element of the cause of action will constitute a radical defect and the basis on which it is plain and obvious ofthe Plaintiff cannot succeed, and accordingly the claim should be struck. A party may not supply a missing element in a cause of actionby pleading speculative allegations. Frivolous vexatious or abuse of process [16] Under Rules 21.01(3)(

d) and 25.11, a defendant may move to have an action stayed or dismissed on the grounds that it isfrivolous or vexatious or is otherwise an abuse of the process of the court. [17] In Lang Michener and Fabian, (ON SC), [1987] O.J. No. 355 (HCJ), the Court held that an action isvexatious where it is obvious that it cannot succeed, it would lead to no possible good, or if no reasonable person could reasonablyexpect to obtain relief. [18] In the Senechal v. Muskoka (District Municipality), [2003] O.J.

No. 885, the Court stated that a pleading that contains acomplete absence of material facts will be declared to be frivolous and vexatious and will be struck out. Pleadings that are irrelevant,argumentative, or inserted for colour or that constitute their allegations should be struck out as scandalous. The same applies to adocument that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculativeunsupported allegations of defamation. The offending statements will be struck out as being scandalous and vexatious.

False arrest/false imprisonment [19] In order to succeed in a claim for false arrest the plaintiff must prove that she was arrested or detained, and that the arrest ordetention was caused by the defendant. The onus then shifts to the defendant to establish that the arrest was justified. The onus issatisfied if a defendant can establish that there were reasonable and probable grounds for the arrest. See Fraser v. Purdy, (ON SC), [1991] O.J.

No. 2154. [20] The torts of false arrest and false imprisonment require “directness”, meaning that the defendant either personally detained theplaintiff or was directly responsible for his or her arrest and imprisonment.

Therefore, whether or not a claim lies against thesedefendants depends on the degree to which these defendants were directly responsible for the police to make the arrest. (See Klar, Lewis, Tort Law, Toronto: Carswell, 2012, 5th edition at page 61). [21] In the decision of Sil v Cardinal, 2009 SKQB 408, 181 ACWS (3d) 613, the Court stated that if there is some form of judicialintervention or discretion on the part of the arresting officer, the directness requirement will not be met for a defendant who may haveprovided information to the officer, and he or she cannot be held liable for false arrest.

In a case where a reward is offered, thecomplainant/informant cannot be sued for false arrest or false imprisonment. Even though the complainant/informant may have set the

arrest process in motion, the police and possibly the Crown Attorney would have exercised their discretion and authority in between thetwo events, and as a result, the directness component would not be met. 1. Claims against Paquette and Carefor under Rule 21.01(1)(

b) a) False Arrest and Imprisonment [22] In this case, Paquette was asked to attend at the plaintiff’s residence by the Cornwall Police to do a wellness check and assessthe condition of the plaintiff’s common-law partner as part of her employment duties as a nurse. The plaintiff does not allege that, evenif Paquette’s report to the police was inaccurate that this caused the wrongful arrest of the plaintiff.

Rather, the plaintiff submits andpleads at paras. 27 and 28 of her claim that “the defendant Paquette was simply unwilling to accept that diagnosis.” She therefore madea complaint to the Ontario Provincial Police, giving them conclusions of a supposedly expert nature from inadequate information andwhich were even contrary to the available evidence, so that the police would arrest the plaintiff, thereby preventing her from taking MissBernstein from the hospital.

The defendant Paquette then arranged for the defendant Robert to come from Ottawa to Cornwall to doanother assessment that would support the defendant Paquette’s position. [23] The allegations set forth in the plaintiff’s claim are deemed to be proven for purposes of this motion. The decision of Sil v.Cardinal held that if there is some form of discretion on the part of the arresting officer, the directness requirement will not be met for adefendant who provided information to the officer.

At its highest Paquette is alleged to have made a complaint containing inadequateinformation and that was contrary to the available evidence in order to cause the police to arrest the plaintiff. However, in this case,Detective Martel, attended and conducted her own investigation and exercised her discretion on whether to lay criminal charges andarrest the plaintiff. [24] Paquette attended at the plaintiff’s cottage on June 7, 2014 and reported her observations to the OPP. Detective Martelconducted her investigation and decided to charge and arrest the plaintiff. The plaintiff was arrested on June 13, 2014.

The police didnot charge the plaintiff only based on Paquette’s report to them, rather they conducted an investigation and 6 days later decided to chargeand arrest the plaintiff. Paquette’s report to the OPP may have set the process in motion but similar to the Sil v.

Cardinal decision, thepolice and possibly a Crown attorney exercised their discretion on whether or not to lay criminal charges and as a result, the “directness”element is not met. [25] The plaintiff’s pleading at paragraph 28 implies that Paquette acted maliciously in the sense that she prepared her report andsought a second assessment in order to cause the arrest of the plaintiff to prevent Ms. Bernstein from leaving the hospital and returning tolive with the plaintiff. Assuming that Paquette requested that a second assessment of Ms.

Bernstein be performed, I find that this did notcause the plaintiff to be arrested, because the police conducted their own independent investigation and decided to lay criminal chargesand arrest the plaintiff.

So at its highest, even if Paquette was acting for an improper purpose by requesting a second assessment, this didnot directly cause the arrest of the plaintiff, as the police conducted their own investigation and exercised their own independentdiscretion on whether to charge and arrest the plaintiff. [26] The plaintiff has failed to plead any material facts of an essential element of the tort of false arrest, namely that Paquettedirectly caused the arrest of the plaintiff. As a result, it is plain and obvious that the claim does not disclose a reasonable cause of actionagainst Paquette for false arrest.

b) False Imprisonment [27] The same reasoning applies to the tort of false imprisonment. The plaintiff has failed to plead any material facts to support anessential element of the tort of false imprisonment against Paquette, because the Police exercised their discretion to arrest and imprisonthe plaintiff. Paquette had no direct role in the Police or the Crown’s exercise of their discretion whether or not to imprison the plaintiff,or release her on a recognizance, or an undertaking to appear.

c) Malicious prosecution [28] In Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170 (S.C.C.), the Supreme Court stated that to succeed on aclaim for malicious prosecution the plaintiff must establish the following four elements and must plead material facts to support eachelement: (

a) the proceeding must have been initiated or continued by the defendant: (

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

c) there must have been an absence of reasonable and probable cause for the prosecution; and (

d) The proceeding must have been actuated by malice or a primary purpose other than that of enforcing the law. [29] It is conceded that the proceeding terminated in favour of the plaintiff as she was acquitted of the criminal charge. [30] However, the uncontested evidence is that the Police and Detective Martel conducted their own investigation and as a resultthey exercised their discretion to lay the criminal charge. The prosecution was initiated and continued solely by the Police. The plaintiffhas not pleaded any material facts to support the required element that Paquette initiated or continued the criminal proceeding directly. Paquette took no

part in the Police’s decision to initiate a criminal proceeding. As a result, I find that it is plain and obvious that the

plaintiff’s claim has no chance of success and does not disclose a reasonable cause of action against Paquette and Carefor for her claim ofmalicious prosecution, because no material facts are pleaded alleging that Paquette had any

part in making the decision to prosecute theplaintiff, nor was she involved in the actual prosecution of the plaintiff or initiating such a prosecution.

d) Defamation, libel/slander [31] The plaintiff did not allege that Paquette libeled or slandered her. This claim was made against a number of other defendants. However, the plaintiff’s position at this motion is that if the Paquette is not liable then the remaining defendants, other than Ontario,would not be liable either. As a result, I will not to consider this head of damage which was not pleaded against the defendants Paquette,Robert, or Carefor.

Disposition of the Rule 21 motion to dismiss the claims againstby Carefor and Paquette [32] For the above reasons, the pleadings in the Statement of Claim against the Carefor defendants related to false arrest, falseimprisonment and malicious prosecution and libel and slander are struck as disclosing no reasonable cause of action and for beingfrivolous and vexatious in nature without leave to amend. Claims against the Police [33] On June 7 2012, the police in Cornwall were contacted by Paquette, a registered nurse with experience in elder abuse.

Paquette had attended at the plaintiff’s Summerstown home where the plaintiff and her spouse Ms. Debbie Bernstein had been living. Paquette observed that Ms. Bernstein was alone in the house, suffered from dementia, the home had a strong odor of urine and feces andthere was no food in the refrigerator. The conditions she found caused her enough concern to call the police. [34] The police attended the plaintiff’s residence and conducted an investigation. Ms. Bernstein was transported to the hospital. Ms.

Bernstein was never returned to the plaintiff’s care because the Ontario Public Guardian and Trustee made an application to haveone of her children appointed as a guardian for her. [35] Detective Martel was assigned to investigate and determine whether any criminal charges were warranted as a result of theconditions in which Ms. Bernstein was found. After she conducted an investigation, Detective Martel determined the plaintiff should becharged with one count of failing to provide the necessaries of life. On June 12, 2012, the plaintiff and her counsel were advised that shewould be charged with this offence.

She surrendered herself to police on June 13, 2012 and was arrested and charged. She was releasedon bail on June 25, 2012. [36] On October 2, 2013, the plaintiff was acquitted after a trial. The trial Judge, found that while the plaintiff’s treatment of herspouse, Ms.

Bernstein fell “short of the mark”, was “imperfect” and that she could be faulted for failing to secure a situation in which Ms.Bernstein could be overseen at all times, he found that the plaintiff`s behaviour did not amount to criminal conduct. [37] On June 2, 2014, the plaintiff commenced an action against the defendants, other than Ontario and Detective Martel,including social workers who had worked with Ms. Bernstein in Ontario and Québec and the plaintiff’s former employer Dr.

Randlett. [38] On January 13, 2015, two years and seven months after her arrest and detention, the plaintiff issued an amended statement ofclaim which added Detective Martel and Ontario as defendants to the action. The plaintiff had given notice under s. 7 of the CrownLiability and Proceedings Act, R.S.C., 1985, c. C-50, in June of 2014, which extended the limitation period by 60 days. 2.

Analysis of the Claims against the Police [39] Ontario submits that the plaintiff’s allegations of false imprisonment and false arrest should be struck as being statute barredas the claim was commenced more than two years after her arrest and imprisonment, even accounting for the 60 day extension of thetime limit for giving notice to the Crown. Ontario also submits that the claim for malicious prosecution and conversion should be struckas only bald allegations have been pleaded without the required material facts to support this claim.

Ontario agrees that the plaintiff’sclaim for negligent investigation is properly pleaded. 2(

a) Limitations defence [40] The plaintiff submits that she did not discover her claim for wrongful arrest and false imprisonment until she was acquitted attrial. She commenced her claim within two years of her acquittal but not within two years from the date of her arrest and imprisonment. [41] Ontario submits that the law is clear that unless the plaintiff commenced her action within two years from the date of herarrest, her claim is statute barred. [42] In of Beardsley v. Ontario, [200] O.J. No. 4057 (S.C.J.) and E. B. F. v. Ontario, 2013 ONSC 2581 , [2013] O.J.

No.5330 (S.C.J.) the Court held that the limitation issue is a threshold issue in an action and that the Court may strike out a cause of actionwhere it has been brought beyond a limitation period pursuant to rule 21.01(1)(

a) provided a statement of defence has been filed and theplaintiff has had an opportunity to reply.

[43] In the decision of Tran v. University of Western Ontario 2016 ONCA 978, at para. 18, the Court of Appeal recently stated:"The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded." At para. 20, theCourt of Appeal quoted from Metropolitan Toronto Condominium Corporation No. 1352 v.

Newport Beach Development Inc., 2012ONCA 850, 113 O.R. (3d) 673, at para. 116: …Only in the rarest of cases - and this is not one of them - should this court entertain a defendant's motion to strike a claim based on thelimitation defence where the defendant has yet to deliver a statement of defence. [Emphasis added.] [44] In this case, Ontario has delivered a Statement of defence which is dated on July 15, 2015 and the time for any reply haspassed. Therefore, I will consider their motion to strike based on the limitation defence under R. 21.01(1)(a). [45] The Limitations Act, 2002, S.O. 2002, c. 24, Sched.

B came into force in Ontario on January 1, 2004 and instituted a basictwo-year limitation period for all actions commenced after January 1, 2004. [46] Section 5(2) of the Limitations Act states that a claim is presumed to be discoverable on the day the alleged act or omissionoccurred unless the contrary is proven by the claimant. [47] Ontario relies on the cases of Nicely v. Waterloo Regional Police [1990] O.J. No. 1442 rev’d (ON SC),[1991] O.J. No. 460 (Div. Crt.), Ferri v. Ontario (Attorney General) 2007 ONCA 79, and Jordain v. Ontario (ONSC), [2008] O.J.

No. 2788 (SCJ) which have all held that a claim for the torts of false arrest and false imprisonment crystallizes on thedate of the arrest and/or the detention and not on the date of the conclusion of any prosecution that may arise from the same facts. Thisis unlike the torts of malicious prosecution and negligent investigation which commence on the date of the acquittal. Ontario thereforeargues, based on these cases, that the plaintiff’s claim for false arrest and imprisonment crystallized on the date of her arrest anddetention which was June 13, 2012.

As a result, the plaintiff’s claim has no chance of success as the claim against Ontario was onlyissued on January 13, 2015, two years and seven months after her arrest and detention. [48] The plaintiff served notice of intention to commence an action against Ontario and Detective Martel on June 5, 2014 withinthe limitation period. I agree with Ontario that this demonstrates that the plaintiff was aware of the facts necessary to commence herclaim by June 5, 2014 at the latest. [49] The plaintiff relies on the decision of Baltrusaitis v.

Ontario (Attorney General), 2011 ONSC 532 at para. 49 which relied onthe reasoning in the decision of Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41 , [2007] 3 S.C.R.129. The Hill decision involved an an action for wrongful conviction and established the tort of negligent investigation by the police. [50] At para. 49 of Baltrusaitis Justice Whitaker stated as follows: Applying the Hill analysis here, even though the plaintiff knew of his own innocence at the moment of his arrest, that knowledge alonewould be insufficient to establish the wrongfulness of the arrest.

As in Hill, the wrongfulness of the arrest would only be established atthe moment of acquittal following the second trial. (Underlining added) [51] A police officer may have reasonable and probable grounds to believe that someone is guilty even though the person isultimately found not guilty. The wrongfulness of the arrest would only be established at the moment of acquittal.

However, in theBaltrusaitis case the two year time limit had expired after the date of his acquittal on the second trial, and as a result, the action wasdismissed because it was commenced after the limitations period expired. [52] The plaintiff also relies on the Court of Appeal’s decision in Chimienti v Windsor (City), 2011 ONCA 16 , 105 OR(3d) 72. In obiter, Rosenberg J. stated that it was illogical to ask a civil court to rule on the propriety of a criminal prosecution before thedecision in the criminal trial had been made.

At para. 72, Rosenberg J. stated as follows: “there is something of a logical inconsistency inasking a civil court to rule on the propriety of a criminal prosecution before the criminal court has had the opportunity to assess themerits of the underlying charge”. [53] Given the obiter, the statements of Justice Rosenberg in the Chimienti case and the reasoning in Hill stating that it makeslogical sense to delay the time to commence an action for damages for wrongful conviction, until after the decision in the criminal trialresolves the criminal charges in the accused’s favour.

Based on the Baltrusaitis decision, I find that it also makes logical sense to delaythe time to commence an action for damages for false arrest and false imprisonment until the criminal proceeding is resolved in favour ofthe plaintiff. Disposition on claim for false arrest and false imprisonment [54] Given the comments of the Ontario Court of Appeal in Chimienti and on the reasoning in Hill by the Supreme Court ofCanada, and the decision of Baltrusaitis, I find that it is not plain and obvious that the plaintiff has no chance of success on this issue.

Asa result, this claim will not be struck against Ontario on the basis of the expiry of the limitation period. 2(

b) Malicious prosecution and conversion [55] On a Rule 21.01(1)(

b) motion, the allegations set out in the Statement of Claim must be taken as true unless blatantlyridiculous or incapable of proof. Bald allegations are assumptions or speculations that are by their very nature incapable of proof by theadduction of evidence, and therefore are not to be taken as true: Holland v. Ontario, [2000] O.J. No. 566.

[ 56 ] In order to maintain an action for malicious prosecution, the claimant must prove that the defendant initiated the proceeding; that the proceeding was terminated in favour of the plaintiff; the absence of reasonable and probable grounds; and that there was malice or a primary purpose for the prosecution other than that of carrying the law into effect. [ 57 ] In this case the plaintiff has not pleaded any material facts to support the allegation that Detective Martel instituted the prosecution against her for an improper purpose or for a purpose other than carrying the law into effect. [ 58 ] In the decision of Aristocrat Restaurants LTD. (c.o.b.

Tony’s East) v. Ontario , [2003] O.J. NO. 5331 at para. 28 the court stated as follows; …The law is clear that it is no longer sufficient to make bald allegations of malice in a statement of claim.

When the process of the court is invoked and public allegations are made of intentional wrongdoing, it is important that the alleged wrongdoer be able to understand what is alleged against him or her. [ 59 ] In failing to plead any material facts regarding an improper purpose for the prosecution the plaintiff both failed to plead a necessary element of a recognized cause of action and failed to plead the necessary material facts to support an allegation of malice.

I agree with Ontario that the claim for malicious prosecution should be struck for both a failure to disclose a reasonable cause of action and for failing to plead the required material facts to support this cause of action. 2(

c) Claim for damages for conversion [ 60 ] In his the text titled The Law of Torts in Canada at page 17, Gerald Friedman stated that in order to establish a conversion, a plaintiff must establish the following: (

i) a wrongful act; (ii) involving a chattel; (iii) consisting of handing, disposing or destruction of the chattel; and (iv) with the intention or effect of denying or negating the title of another person to such chattel; [ 61 ] The plaintiff has failed to plead any material facts to support the allegation that Detective Martel committed any unlawful act. In fact, in her Statement of Claim, the plaintiff admits that she does not know if any such unlawful act occurred.

The plaintiff has also failed to plead any material facts to explain how the money was handled, disposed of or destroyed by Detective Martel or pleaded any material facts supporting her contention that Detective Martel intentionally deprived her of any property. [ 62 ] After Ms. Bernstein was taken to the hospital, the Public Guardian and Trustee was appointed to act on her behalf.

Absent the pleading of material facts to support an allegation that Detective Martel improperly influenced the Public Guardian and Trustee to somehow improperly appropriate monies of the plaintiff, her claim in this regard should be dismissed. Disposition [ 63 ] For the above reasons, the plaintiff’s claims for malicious prosecution and for conversion against Ontario and Detective Martel are struck for failing to plead any material facts to support such claims without leave to amend, and as such, it is plain and obvious that the claims have no chance of success and fails to disclose a reasonable cause of action.

Costs [ 64 ] The parties shall have 15 days to make submissions on costs, limited to 10 pages. Justice Robert Smith Released: January 10, 2017 CITATION : Diaz v. Tossa, 2017 ONSC 54

CITATION : Diaz v. Tossa, 2017 ONSC 54 COURT FILE NO.: 14-61006 DATE: 2017/01/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Sheridan Margaret Diaz Plaintiff – and – Gladys Tossa, Jane Doak, Lakeshore General Hospital, Mary Jane Randlett, Denise Paquette, Nicole Robert, Carefor Health and Community Services, Her Majesty the Queen in the Right of Ontario, and Detective Tracy Martel Defendants REASONS FOR JUDGMENT R. Smith J. Released: January 10, 2017