) ) Leo Scott Price Plaintiff – v. –, 2017 ONSC 6494

CITATION : Price v. Kelday, 2017 ONSC 6494 COURT FILE NO.: 878/13 DATE: 20171218 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Leo Scott Price Plaintiff – and – David I. Kelday, Lee Currah, John Dance, Tracey Fischer, Stephen A. Stokan, Derek Battin, London Police Services Board, and Vicki Lynn Depont Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Michael Robertson, for the plaintiff Dagmara Wozniak and Amanda Shaw, for the defendants David I. Kelday, Lee Currah, John Dance, Tracey Fischer, Stephen A. Stokan, Derek Battin, and London Police Services Board Ken J.

Birchall, for the defendant Vicki Lynn Depont ) ) HEARD: September 28, 29, October 2, 11, 13, 16, 17, 18, 19, and 20, 2017 garson j. TABLE OF CONTENTS INTRODUCTION .. 3 THE PLAINTIFF’S EVIDENCE . 5 Incident #1—Friday, May 20, 2011 . 8 Incident #2—April 22, 2012 . 11 MS. DEPONT’S EVIDENCE . 13 EVIDENCE OF OTHER WITNESSES FOR THE PLAINTIFF . 15 THE REALTORS’ EVIDENCE . 16 EVIDENCE OF OTHER WITNESSES FOR MS. DEPONT . 17 THE IMPACT OF THE INCIDENTS ON THE PLAINTIFF . 19 PRELIMINARY DETERMINATION: LIABILITY FOR CONSTABLES FISCHER AND BATTIN .. 19 CREDIBILITY .. 20

(1) NEGLIGENT INVESTIGATION AND BREACH OF DUTY .. 24

The Test 24 The Test Applied to the Police Defendants . 24 (

i) Were Proceedings Initiated by the Defendant? . 25 Constable Dance’s Evidence . 25 Detective Currah’s Evidence . 29 Detective Kelday and Constable Stokan . 31 (ii) Were Proceedings Terminated in Favour of the Plaintiff? . 31 (iii) Was There an Absence of Reasonable and Probable Cause? . 32 Detective Kelday’s Evidence . 33 The Arrest 36 Domestic Violence Policy . 39 Analysis of Reasonable and Probable Cause . 40 Constable Stokan’s Evidence . 52 Conclusion on Negligent Investigation for Detective Kelday and Constable Stokan . 60 The Test Applied to Ms. Depont 61

(2) MALICIOUS PROSECUTION .. 61 The Test 61 The Test Applied to the Police Defendants . 62 (i)-(iii) Were Proceedings Initiated by the Defendant and Terminated in Favour of the Plaintiff and Was There an Absence of Reasonable and Probable Cause? . 62 (iv) Was There Malice? . 62 The Test Applied to Ms. Depont 64 (

i) Were the Proceedings Initiated by the Defendant? . 64 The Test Applied to Other Defendants . 71

(3) FALSE ARREST (OR UNLAWFUL DETENTION) 71

(4) CHARTER BREACHES . 73 DAMAGES . 74 Claimed by the Plaintiff 74 Causation . 76 The Experts’ Evidence . 76 Dr. Paul Odagard . 76 Dr. Charles Nelson . 78 Discussion . 79 Specific Damages . 81 Costs for Legal Fees . 81 Rent Paid to his Mother 82 Mileage to See Dr. Odagard . 83 Future Mileage to See Dr. Odagard . 83 Loss of Future Income and James Riddolls’ Evidence . 84

General or Non-Pecuniary Damages . 88 Negligent Investigation . 88 False Arrest Damages . 90 Charter Damages . 91 LIABILITY OF VARIOUS DEFENDANTS . 93 Vicarious Liability . 93 CONCLUSION .. 93 COSTS . 94 INTRODUCTION [ 1 ] Leo Scott Price, the plaintiff, and Vicki Lynn Depont, one of the defendants, jointly owned a property at 89 Hunt Club Drive, London (“the property”), which they acquired in October 2006 and where they resided together (initially as a couple) until some point in either 2010 or 2011. [ 2 ] There is little dispute that their relationship deteriorated over the years and was effectively over by 2010 (or earlier). [ 3 ] Ms.

Depont complained to police in May 2011 that the plaintiff broke into her home on the morning of May 20, 2011 and took various personal documents belonging to her including a recent property assessment and various income tax returns. [ 4 ] A police investigation led to an arrest for break and enter and theft and to a subsequent charge of theft under $5,000. A later arrest the following year in April 2012 led to a charge of breach of recognizance after the plaintiff attended at the property.

Both charges were later withdrawn by the Crown. [ 5 ] These two arrests and criminal charges form the substance of the complaints levied by the plaintiff against the various defendants. The plaintiff brings an action for damages for, 1. negligent investigation; 2. malicious prosecution; 3. false arrest and unlawful detention; and 4. breach of his s. 7, 9, and 12 Charter rights. [ 6 ] The defendants include Ms. Depont, the various officers who dealt with the plaintiff from the London Police Service (LPS), and the London Police Services Board. THE PLAINTIFF’S EVIDENCE [ 7 ] The plaintiff and Ms.

Depont purchased the property in October 2006 and held the property as joint tenants with a mortgage in both of their names. After the plaintiff did some minor renovations to the property, Ms. Depont moved in with her son, Connor. [ 8 ] The plaintiff maintains that he continued to reside at the property until his arrest on May 21, 2011 while Ms. Depont insists that he moved out in March 2010 and was last at the house in January 2011.

The plaintiff acknowledges that he would sometimes stay at his mother’s house at 166 Emerson Avenue (“mother’s house”) or at a friend’s house depending on his work hours and the need to care for his aging parents or the racing pigeons he kept at his mother’s house. [ 9 ] Although the plaintiff and Ms. Depont had many discussions about one of them moving out of, or buying the other out of, the property, no agreements or court orders were in place in May 2011. [ 10 ] It appears that either or both the plaintiff or Ms.

Depont permitted various friends and relatives to live in the property for short periods of time between 2007 and 2011. [ 11 ] The plaintiff is and was employed at the material times as a driver for SLH Transport (SLH) where he has worked for the past 28 years. He also has a small side business where he does drywall work; although, this business has been dormant for the past several years. He has no criminal antecedents. [ 12 ] Although the plaintiff and Ms. Depont appear to have verbally agreed to split the mortgage payments 50/50, this did not consistently happen.

Each points the finger at the other for not paying his or her fair share. The plaintiff appears to have made the bulk of the mortgage payments between 2006 and 2010 and readily admits to stopping these payments by 2011.

[ 13 ] The plaintiff spent a lot of time at his mother’s home caring for his aging and often sick parents. His father, having suffered an earlier stroke, passed away in 2009. His mother passed away in 2014. [ 14 ] The plaintiff and Ms. Depont stopped sharing a bed in late 2008 when the plaintiff alleges Ms. Depont had an affair.

Thereafter, the plaintiff says he often slept on a sofa in the basement where he also kept his clothing. [ 15 ] When at the property, the plaintiff would often gain entry to the property through the left garage door closest to the walkway to access the garage, often by way of his remote door opener. There was also a keypad for the garage door on the outside wall of the garage.

The right garage door was not accessible by remote and was therefore locked most of the time. [ 16 ] The plaintiff referred to the presence of shoulder-height marks predominately on the left garage door frame likely caused by bikes and lawnmowers being moved in and out of the garage. He believes this pre-existing damage is what Constable Dance observed when he attended at the property on May 20, 2011.

The plaintiff estimates the height of these garage doors as between 8.5 and 9 feet and his own height as between 5 feet 8 inches and 5 feet 9 inches. [ 17 ] The plaintiff never owned a cell phone and had a landline in his own name at the property, which was supported by a voicemail system that the plaintiff had access to. However, he believes Ms. Depont would often change the access code to the voicemail system to prevent him from accessing messages. [ 18 ] The plaintiff also had difficulty accessing his ordinary mail.

After complaining to police in January 2011 about this, he changed his formal mailing address through work and with others to his mother’s house to ensure that he received all of his mail. [ 19 ] In 2009, Ms. Depont moved many of the plaintiff’s possessions, including his remaining clothing and personal items, into the basement of the property. [ 20 ] The plaintiff owned a number of pieces of furniture and a large number of tools (many related to his drywall business) that were also later moved into either the basement or the garage of the property by Ms. Depont.

Incident #1—Friday, May 20, 2011 [ 21 ] The plaintiff claims that during the week prior to his first arrest, he slept at the property on the sofa in the basement on the Monday and Tuesday of that week and attended at the house late Thursday evening or early Friday morning to pick up tools. [1] He indicates that access to the property on each of these occasions was by way of the remote garage opener for the left garage door.

At approximately 5:30 a.m. that morning, he had a brief conversation with a neighbour [2] and took out the blue recycle boxes and garbage from the property. [ 22 ] He next received a call from his mother on the same evening advising him that the police were looking for him. After three attempts to connect with the assigned officer, the plaintiff received a call on Saturday morning from Detective Kelday, who then attended along with Detective Currah at his mother’s house. [ 23 ] Detective Kelday advised the plaintiff that they were looking for some of Ms. Depont’s paperwork that was missing.

The plaintiff acknowledged that he indeed had some of her paperwork that was inside of his SLH work folder that he kept in the lower part of the basement with his other belongings. He further explained that these papers were removed on Tuesday of that week after he located them in the upstairs office in a four to five inch thick file that contained 95 percent of his documents. He only realized that he had Ms. Depont’s documents on the Wednesday evening when he had an opportunity to review the entirety of the paperwork.

His intention was to return these personal documents to her on that same day (Saturday). [ 24 ] The plaintiff described Detective Kelday as both aggressive and condescending in his tone referring to Ms. Depont as “Vicki” and the plaintiff as “Mr. Price” and as being “red in the face”. [ 25 ] The plaintiff then told Detective Kelday that he had a key that fits two of the three doors to the house and the code for the garage door opener. It is at that point that the plaintiff says he was arrested for break and enter and theft and cautioned by Detective Kelday.

After telling Detective Kelday that he had the “wrong guy” the plaintiff heard Detective Kelday state, “I know your kind”. [ 26 ] After being given a few minutes to feed his homing pigeons and try to calm down his agitated and upset mother, the plaintiff was transported by another officer (Constable Fischer) to the police station. [ 27 ] He was processed (searched, photographed, and finger-printed) and given an opportunity to speak to counsel.

He eventually spoke with a lawyer unfamiliar to him. [ 28 ] Though he was arrested for break and enter and theft, Detective Kelday later only charged the plaintiff with theft under $5000. [ 29 ] Sergeant Middleton, the cells sergeant on duty that day, presented a recognizance for him to sign. He refused to sign because it did not permit him to return to the property other than on one occasion in the presence of the police to retrieve his personal belongings (including tools, clothing, and pets).

As a result, the plaintiff remained in custody for roughly the next 15 hours until his release the following morning by a justice of the peace by way of a video appearance in court. [3] [ 30 ] During his time in custody, and prior to his release, he was interviewed by Detective Kelday and thereafter presented with the proposed terms of release by Sergeant Middleton. [ 31 ] Shortly after his release [4] , Ms. Depont commenced family court proceedings to deal with the disposition of the property.

The plaintiff claims that he later saw Detective Kelday at a family court proceeding where Detective Kelday told him that his motion would be “shot down” by the court and that he (Detective Kelday) was there to give evidence and provide moral support for Ms. Depont.

[ 32 ] The theft under $5000 charge was later withdrawn after a number of court appearances on March 20, 2013. Incident #2—April 22, 2012 [ 33 ] The family court proceeding generated an order of February 10, 2012, from Templeton J. which read in part at para. (f): …both parties have access to the property with their agents once a month on notice to ensure that [the property] is in listing condition – nothing shall be removed from the property by Mr.

Price or his agent. [ 34 ] The plaintiff claims that he visited the property in accordance with the above order in both February and March of 2012 with his agent and with notice to Ms. Depont by leaving a message on the landline. [ 35 ] On the day before the second incident, he phoned Ms. Depont and again left her a voicemail to give notice that he would attend the property the following day. He did attend, both with his agent and a painter, and all of them looked at and walked around the perimeter of the property to inspect and measure such that the painter could then provide an estimate.

The visit lasted approximately 30 minutes. [5] [ 36 ] Shortly after returning to his mother’s home that same evening, the plaintiff received a phone call from the police advising him that he was in breach of a court order and that a squad car would be coming to get him.

The plaintiff immediately drove to the police station and brought with him a copy of the order of Templeton J. as well as contact information for both his realtor and the painter. [ 37 ] After receiving and copying these documents, Constable Stokan immediately arrested the plaintiff for breach of recognizance and released him within a few hours. [ 38 ] The breach charge was later withdrawn by the Crown, after several court appearances by the plaintiff, on October 10, 2012. MS. DEPONT’S EVIDENCE [ 39 ] Ms.

Depont made clear that from the moment the parties took joint occupancy of the property things began to change for the worse in their relationship. [ 40 ] The parties spoke less and less and the plaintiff vacated the shared bedroom for the basement. The plaintiff would spend a lot of time away from the property, often at his mother’s house. Ms. Depont eventually arranged for his belongings to be moved downstairs or into the garage and would place his mail in a closet downstairs for him to retrieve (and he would often retrieve his mail in the middle of the night).

Eventually after January 2011, she had her uncle Dan, who was living at the property, change the lock to the front door and unplug the left garage door opener. She cannot be sure of the dates of either of these changes by her uncle. [ 41 ] Other than playing mind games, she did not perceive the plaintiff as a threat to her when she called the police on May 20, 2011. [ 42 ] When she called the police for the second incident (April 2012), she was also concerned at that time that the plaintiff was stalling (regarding family court proceedings) in dealing with the disposition of the property.

She initiated family court proceedings in the summer of 2011 to obtain a court order for the sale of the property. She sought exclusive possession of the property in the interim but was not successful. [ 43 ] She made arrangements to disconnect the landline at the property on March 31, 2011 and transferred that phone number to her existing cell phone.

She is insistent that there was no functioning landline at the property in May 2011. [ 44 ] She acknowledged the presence of the plaintiff at the property on a few occasions between March 2010 and January 2011, and when the plaintiff had threatened to move back into the property on December 1, 2010, she accepted that she couldn’t stop him from coming back as co-owner of the property. [ 45 ] She confirmed her intention in calling the police on May 20, 2011 was to get her stolen items back.

She did not know what the police would do. [ 46 ] She agreed that notwithstanding rumours of affairs within the first year of living at the property, financial concerns, relationship issues, and warnings from a marriage counsellor, she “hung-in” and attempted to sustain the relationship until 2010, because she was in love with the plaintiff and committed to the relationship.

The tipping point for her in March 2010 was confirmation from a friend of the plaintiff’s that he indeed had another girlfriend. [ 47 ] Although she was made aware of the plaintiff attending at the property on April 22, 2012 with someone her uncle thought was an appraiser, she testified that she had not received notice from the plaintiff or her realtor about such a visit. EVIDENCE OF OTHER WITNESSES FOR THE PLAINTIFF [ 48 ] The plaintiff called a series of brief witnesses. [6] I need not provide a detailed review of their evidence. What emerges from their evidence is the following: (

i) many of the plaintiff’s witnesses testified to leaving messages on the landline at the property for the plaintiff and not having those messages either acknowledged or returned by the plaintiff; (ii) some witnesses confirmed that prior to the May 20, 2011 incident, the plaintiff changed his mailing address from the property to

his mother’s house because he was concerned he wasn’t getting all of his mail; (iii) some witnesses believed that up until some point in 2011, the plaintiff was living (at least some of the time) at the property; and (iv) other witnesses confirmed a get-together planned by the plaintiff for the May long weekend in 2011 at the property (that never took place). THE REALTORS’ EVIDENCE [ 49 ] Doug Galbraith was engaged to represent the plaintiff in the sale of the property in the winter/spring of 2012. [ 50 ] He vaguely recalled between three to four attendances with the plaintiff at the property.

He acknowledged preparing a letter; although, he couldn’t recall writing it, which confirmed that he viewed the property inside and out in February 2012 and had visual exterior visits with the plaintiff in the months of March, April, and May of that year. [7] The letter was undated and unsigned. His recollection of providing notice of the visits is that he would let Ms. Depont’s realtor know and she in turn would notify Ms. Depont. He had no recall of dealing with any other professionals such as painters during these visits. [ 51 ] Nicole McKenzie was the realtor representing Ms. Depont.

She formally listed the property in November 2012. It was her understanding that as a result of a family court order given to her by Ms. Depont, the plaintiff had to make an appointment through his realtor who in turn would contact her and then she would contact Ms. Depont to attend at the property. Although initially confused about the dates, she accepted that as of the date of the order of Templeton J., she was responsible for arranging access to the property for the plaintiff in accordance with the order. EVIDENCE OF OTHER WITNESSES FOR MS. DEPONT [ 52 ] Ms. Depont also called her cousin and her uncle.

I need not provide a detailed

summary of their testimony. What emerges from their evidence is the following: (

i) her cousin [8] visited the property routinely a few times each week and rarely if ever, saw the plaintiff there, particularly after 2008. She was called to the property by Ms. Depont to take photos of the damage to the garage and only took pictures of what Ms. Depont told her to take; and (ii) Ms. Depont’s uncle, [9] who was a tenant at the property from October 2010 to December 2012, only saw the plaintiff at the property on two occasions, one of them being the second incident in 2012. He confirms unplugging the left garage door opener but was not sure exactly when in early 2011.

He also changed the locks to the front door and recalled doing so once the plaintiff was no longer allowed on the property. He had no recall of speaking to the plaintiff on the morning of May 20, 2011. [ 53 ] I will address the evidence of the police witnesses when I deal with each cause of action and the evidence of the medical experts and the plaintiff’s employer when I deal with damages. THE IMPACT OF THE INCIDENTS ON THE PLAINTIFF [ 54 ] The plaintiff described an “open-door” and positive relationship with the police prior to these incidents. All of that changed after the arrest.

He has neither time for nor trust in the police. His family and friends now see him in a different light. [ 55 ] He is a different person. He has sleep problems, concentration problems, suicidal thoughts, problems with alcohol, destructive thoughts (including blowing up the police station), lack of self-confidence, and a fear of border-crossing. He believes he is now socially withdrawn, is enraged at the sight of police, and is no longer playing sports.

Overall, he complains of a general feeling of isolation and despair. [ 56 ] After a few false starts, he found a psychotherapist who has seen him between 60 to 80 times and has helped him improve his situation. PRELIMINARY DETERMINATION: LIABILITY FOR CONSTABLES FISCHER AND BATTIN [ 57 ] The bulk of the plaintiff’s evidence against the police defendants focused on the actions of Detective Kelday, Detective Currah, Constable Dance, and Constable Stokan.

There was scant evidence relating to the actions of Constable Fischer (the transport officer for the first incident) and Constable Battin (the assistant officer in the second incident who took a brief telephone statement from one witness). [ 58 ] The plaintiff properly concedes that as against these two officers, the case is not a strong one. I agree. [ 59 ] Both Constable Fischer and Constable Battin were, at best, bit players in the two incidents and neither played a significant role in the decision to arrest and/or charge the plaintiff.

There is no evidence before me to conclude that their brief and limited involvement in these incidents breached the standard of care of a reasonable officer in the circumstances.

[ 60 ] Accordingly, all claims against both these officers must fail. CREDIBILITY [ 61 ] Much of the evidence given by the plaintiff is in sharp and stark contrast to that of many of the defendants. It is therefore necessary for me to make preliminary determinations regarding witness credibility in an effort to achieve the necessary findings of fact. [ 62 ] I was impressed with much of the evidence of the plaintiff. There can be little doubt that he has replayed these incidents in his head repeatedly and has a vivid recollection of what he believes took place.

Much of his evidence was presented in a clear and unvarnished manner. [ 63 ] However, there were some parts of his evidence that caused me concern. More specifically, his evidence with respect to his seniority at the workplace, his payments of rent to his mother, his use of a landline at the property shortly before the first incident, and his intention to return to cross-border runs at work are difficult to accept particularly when contrasted with other credible evidence. Nonetheless, for the most part, I accept much of his evidence particularly as it relates to: (

i) visits to the property on a routine basis and often late into the night during both 2010 and early 2011 in an effort to ensure he had as little communication as possible with Ms. Depont; (ii) telling Detective Kelday prior to his arrest that he possessed a key and a keypad code to the property and offering both to the officer along with returning the personal papers belonging to Ms.

Depont; (iii) Detective Kelday telling him that he was not an owner of the property and referring to the property as “Vicki’s house”; and (iv) telling Constable Stokan about the presence of both his realtor and a painter during his attendance at the property and providing the officer with contact information for both of these individuals and a copy of the order of Templeton J. prior to his arrest. [ 64 ] My impression and assessment of Ms. Depont is less favourable.

Although I accept that she endured much emotional trauma as a result of the gradual and continual breakdown of her relationship with the plaintiff, I find it almost inconceivable that she was unaware of a key that opened two of the three doors to the property that the plaintiff possessed and of the fact that the plaintiff was steadfast in his efforts to avoid any contact with her in the later years when he would attend at the property. She was confused about times, especially involving the changing of the locks on the front door and the unplugging of the left garage door opener.

She was less than accurate in her initial description to the police regarding a “break and enter” at the property, particularly in light of her clear and repeated acknowledgement of the plaintiff’s right to be at and attend inside the property before the May 2011 incident. [ 65 ] Her admission that the plaintiff often showed up in the middle of the night to retrieve his mail and other stuff and then quickly departed flies in the face of her evidence to police that he was at the property on one occasion since March 2010.

I also note her testimony that the plaintiff had advised her of his intention to move back in to the property in December 2010 but never followed through. [ 66 ] I am very concerned about some of her interactions with police. These include: (

i) describing the garage door as “mutilated” yet not taking any photographs of same and none of the officers who viewed the garage door noticing any such damage, let alone mutilation; and (ii) telling Constable Stokan that it was “her house” and that the plaintiff was on a recognizance for the offence of break and enter and theft. [ 67 ] It is apparent to me that she was extremely frustrated and angered with the plaintiff and the pace of the family court proceedings relating to exclusive possession or disposition of the property. [ 68 ] I also had some difficulty with the evidence of both realtors.

Although I accept that both genuinely attempted to recall events some six years prior, neither appeared to clearly remember timelines or visits and as such I find myself turning to the existence of written documents to assist me in assessing their evidence. [ 69 ] I now turn to the various causes of action.

(1) NEGLIGENT INVESTIGATION AND BREACH OF DUTY The Test [ 70 ] The tort of negligent investigation adopts the first three elements from the tort of malicious prosecution, without the need to establish malice. [10] Therefore, the plaintiff must prove the following: (

i) the proceedings must be initiated by the defendant;

(ii) the proceedings must be terminated in favour of the plaintiff; and (iii) there must be an absence of reasonable and probable cause. The Test Applied to the Police Defendants [ 71 ] I accept that liability for this tort is rare and requires clear evidence of conduct that falls below the objectively held standard of a reasonable officer.

The overarching question is what a reasonable person placed in the shoes of the police officer would have done in similar circumstances. [11] [ 72 ] I must be satisfied that police owed the plaintiff a duty of care and that they breached the necessary standard of care (that of a reasonable officer in like circumstances) in these circumstances. [ 73 ] Police owe a duty of care to persons they investigate or suspect of criminal behaviour. [12] Whether the standard of care was breached must then be assessed in the particular circumstances of each case. [ 74 ] I remain mindful of the need to recognize the wide latitude of discretion afforded to the police and their ability to make errors within that wide range that may not always be sufficient to breach the requisite standard of care. (

i) Were Proceedings Initiated by the Defendant? Constable Dance’s Evidence [ 75 ] I found Constable Dance to be a most impressive witness. He testified in a credible and straight-forward manner. [ 76 ] He was the first officer dispatched to the property on May 20, 2011. He observed what appeared to be pry-marks on the wooden frame around the left garage door approximately two inches thick and six inches from the top of the door. He made no observations as to whether those marks were fresh. When shown a photo taken by Ms. Depont’s cousin at the direction of Ms.

Depont of apparent damage to the frame of the same garage door, he could not recall this damage and indicated that the damage depicted in the photograph [13] was different from that recorded in his notes. He also couldn’t recall whether he tested the garage door. [ 77 ] After taking a statement from Ms. Depont, he became aware that: (

i) she was missing the original appraisal on the property, three copies of the real estate assessment, and some income tax returns; (ii) she and the plaintiff were co-owners of the property, both responsible for the mortgage and both participating in earlier discussions about buying out the other’s property interest; and (iii) the plaintiff stopped paying the mortgage at the end of December 2010 and that Ms. Depont changed the locks. [ 78 ] Constable Dance properly identified concerns regarding colour of right and believed he needed to get the other side of the story.

Although he reached out to the break and enter unit for assistance, he was advised to continue to handle the investigation. [ 79 ] He contacted a neighbour who confirmed the plaintiff’s presence at the property earlier that morning. This statement is particularly instructive because it: (

a) reveals the plaintiff greeting and saying hello to the neighbour in the early morning hours of May 20, 2011; (

b) confirms the plaintiff took the garbage out; and (

c) notes that the garage door was open (lending support to the plaintiff’s evidence that he entered the property via the garage door, which was operational.) [ 80 ] On that morning, the officer also spoke with the plaintiff’s mother and apparent girlfriend. [ 81 ] He sought advice from a Sergeant. By the time his shift ended, he continued to have concerns regarding colour of right.

Given that the parties had previously been involved in an intimate relationship, he flagged the file as a domestic file and in accordance with the existing policy, reassigned the investigation to the break and enter unit. [ 82 ] He followed up with Ms. Depont to update her on the reassignment of the investigation at which point she confirmed that she had no safety concerns. He further followed up the next day with Ms.

Depont to complete a Domestic Violence Supplementary Report where she again confirmed that she did not fear that the plaintiff would assault, seriously injure, or kill her. [ 83 ] There is very little to criticize about the actions of Constable Dance. He was dispatched to the incident. He had no prior dealings with either party. He recorded what he observed and what he was told. He complied with the May 2011 LPS Domestic Violence Policy that treated property-related offences as part of the Domestic Violence offences. [ 84 ] He properly held off in laying any charge or effecting an arrest of the plaintiff.

He reduced his concerns about colour of right to writing and sought out direction from a supervising officer.

[ 85 ] I can find no basis whatsoever to attach liability to his actions. His notes were detailed and, for the most part, accurate. As a street officer, he conducted as thorough an investigation as time would permit and properly passed along the matter. [ 86 ] Accordingly, his actions come nowhere close to that required for the tort of negligent investigation. He did not initiate criminal proceedings against the plaintiff. He is to be commended for his judgment, discretion, and compliance with LPS policies and procedures. [ 87 ] I will comment later on the use that was made by other officers of his investigation.

Accordingly, it is trite to conclude that this claim and all other claims against him must fail. Detective Currah’s Evidence [ 88 ] The plaintiff fairly and properly concedes that the case against Detective Currah is also weak. I agree. [ 89 ] Detective Currah’s evidence made clear that this was not his investigation, and that he was not a party to the decision of Detective Kelday to arrest the plaintiff. [ 90 ] He was present when the plaintiff produced a series of documents and a key to the property and confirmed with Ms. Depont that these were the documents she alleged were stolen.

He tested the key and confirmed that it opened two of the three doors to the property.

He also attempted to open the left garage door and was unable to do so using the code provided by the plaintiff. [ 91 ] Although Detective Kelday made the decision to arrest the plaintiff and to lay the charge, Detective Currah discussed these decisions with Detective Kelday and acknowledged he had no concerns with these decisions. [ 92 ] Detective Currah noted that he and Detective Kelday received a call from the plaintiff at 1:45 p.m. on May 21, 2011 that he was at his mother’s house and that Detective Kelday arrested him a short time later at 2:10 p.m. [ 93 ] His role in attending at the mother’s house was to act as a back-up to assist with the arrest. [ 94 ] He fairly acknowledged that the arrest of the plaintiff was an avenue to keep him away from the property and that the offence was seen as a “single incident” and not a continuing offence. [ 95 ] He described the plaintiff as argumentative and does not recall hearing Detective Kelday say to the plaintiff, “I know your kind”.

He also noted that during the plaintiff’s interview in cells where he acted as scribe, the plaintiff was “all over the map” as to where he actually lived. [ 96 ] Although I have concerns about some of the conclusions reached by Detective Currah regarding the grounds to believe a break and enter took place and his description of the plaintiff being “all over the map”, I nonetheless have great difficulty in attaching liability to his actions. Similar to Constable Dance, it was not his decision to arrest the plaintiff and to lay a criminal charge.

His conduct as a back-up officer was not unreasonable and certainly not so egregious as to clearly fall below the required standard of care. [ 97 ] Accordingly, this claim and all other claims must fail against him.

Detective Kelday and Constable Stokan [ 98 ] Turning next to the remaining police defendants, I am satisfied that Detective Kelday, in arresting the plaintiff for break and enter and theft, initiated the first criminal proceeding against the plaintiff and that Constable Stokan, in laying a charge of breach of recognizance against the plaintiff, initiated the second criminal proceeding. [ 99 ] I now turn to the second element required for the tort of negligent investigation. (ii) Were Proceedings Terminated in Favour of the Plaintiff? [ 100 ] I am satisfied that both proceedings, later withdrawn by the Crown, were terminated in favour of the plaintiff.

There was no quid pro quo for the withdrawal of the charges and I reject any argument advanced by the defendants to the contrary. [ 101 ] I now turn my mind to the third element required for the tort of negligent investigation. (iii) Was There an Absence of Reasonable and Probable Cause? [ 102 ] The standard of care required by police officers who arrest any person is informed by the presence or absence of reasonable and probable grounds (“RPG”) as set out in s. 495 of the Criminal Code . [ 103 ] The arresting officer must subjectively believe that RPG exist, and viewed objectively, a reasonable person standing in the shoes of that officer must also be satisfied that the necessary grounds exist to make an arrest. [14] [ 104 ] I am mindful of the following principles in assessing the existence of RPG: (

i) the statement of a complainant standing alone, which does not give rise to an obvious need for further investigation, may be sufficient to establish the necessary RPG; [15] (ii) the lawfulness of an arrest is not determined by the ultimate disposition of the charge; [16] (iii) police often lack the luxury of reflection and must sometimes act on less than exact or complete information. In determining

RPG, the officer must take into account all information available to him or her and is entitled to disregard information he or she believes is unreliable [17] ; and (iv) police need not weigh evidence to the same legal standard or exactitude as prosecutors or judges, and the determination of the standard of care of a police officer often requires expert evidence, unless matters are either non-technical or so egregious that the impugned conduct falls well below the standard of care. [18] [ 105 ] Simply put, not all errors in the exercise of discretion made by a police officer in the course of duty are actionable.

Detective Kelday’s Evidence [ 106 ] Detective Kelday testified that Constable Dance had determined that there was forced entry to the property. [19] However, the height of the pry-marks coupled with the witness statement of the neighbour should have at least caused Detective Kelday to want to view the garage door and determine for himself evidence of forced entry.

After all, this matter was now in the hands of the Acting Head of the Criminal Investigations Division (“CID”) and Detective Kelday was required to take into account all information available to him (and similarly disregard information he has good reason to believe is unreliable). [20] [ 107 ] He testified that he originally felt he had RPG to arrest for break and enter and theft prior to his attendance at the mother’s house and therefore attended at the mother’s house on May 21, 2011 with the intent to arrest the plaintiff. [ 108 ] Later in his evidence-in-chief, he clarified that he attended at the mother’s property with the intent to locate, but not necessarily arrest the plaintiff.

I specifically reject his attempts to restate his original and intended purpose for attending at the mother’s property and find as a fact that he attended the mother’s house intending to arrest the plaintiff and did so within minutes of his arrival.

In reaching this conclusion, I refer to Detective Currah’s evidence that a mere 25 minutes elapsed between a phone call from the plaintiff and his arrest at his mother’s house. [ 109 ] He described the plaintiff as “argumentative”, because the plaintiff said he owned the property and had a key to the property, both of which were true statements and conveyed to him before arrest.

I reject his evidence that these statements were made after arrest and accept the plaintiff’s position that this information was given to Detective Kelday prior to the arrest of the plaintiff. [ 110 ] He outlined the following pieces of information to substantiate his belief in RPG: (

i) the complainant’s statement that the plaintiff was not living at the property and had stopped paying the mortgage; (ii) Constable Dance’s notes on the pry-marks on the garage door; (iii) information from the plaintiff’s mother that he currently was residing at her property; (iv) his concern that the plaintiff’s return to the property would risk continuation of the offence; and (

v) the existence of a domestic violence policy which required that he proceed with a charge if reasonable grounds exist, which he believed was a lower standard than reasonable and probable grounds. [ 111 ] Notwithstanding an arrest for the indictable offence of break and enter and theft in a dwelling house, Constable Kelday ultimately decided to only lay a charge for the included dual-election offence of theft under $5,000 based on the following: (

i) the key provided by the plaintiff opened two of the three doors to the property; and (ii) advice received from a Crown attorney. [ 112 ] For reasons earlier stated and referred to hereafter, I have difficulty accepting much of Detective Kelday’s evidence. The Arrest [ 113 ] Although I am mindful of the need not to conflate the various torts before me, I will examine all of the actions of Detective Kelday since the absence or presence of RPG is critical to the success of all of the plaintiff’s claims. [ 114 ] Section 495(1) (

a) of the Criminal Code empowers a peace officer to arrest without warrant a person whom he believes on reasonable grounds has committed an indictable offence. Under section 348(1)(d), the offence of break and enter and theft in relation to a dwelling-house is a straight indictable offence. [ 115 ] Objectively viewed, I cannot find the necessary RPG for Detective Kelday to believe that the plaintiff had committed the offence of break and enter and theft on his own property. More specifically: (

i) Detective Kelday had the facts of Constable Dance’s investigation and should have been alert to the significant discrepancies between the damage alleged by Ms. Depont and the damage observed by Constable Dance and to the statement of the neighbour. There were also numerous inconsistencies in Ms.

Depont’s statement. (ii) Having found that he was given a key to the property before effecting an arrest, he should have taken the time to confirm whether the key worked, given his acknowledgement that the key was the determinative factor in his not proceeding further with laying a break and enter charge. (iii) He was aware of Constable Dance’s concerns regarding colour of right and knew that the plaintiff was on title and was a co- owner of the property and that the parties had engaged in discussions to buy-out each other. Although he places great weight on the fact

that the plaintiff was no longer paying towards the mortgage, this fact, in isolation, is of little value given the history of the plaintiff servicing the mortgage from inception to the end of 2010, coupled with the fact that Ms. Depont’s uncle was a rent-paying tenant at the property making such payments exclusively to her. (iv) His intention was to arrest the plaintiff upon arrival at the mother’s house, which is consistent with the brief period of time that elapsed between the phone call with the plaintiff and the arrest (approximately 25 minutes) and the fact that he brought Detective Currah along with him for back-up. (

v) He was aware that the complainant (Ms. Depont) had no concerns for her safety and there were no urgency or imminent safety concerns that needed to be addressed. There was no history of violence between the parties and no criminal antecedents for the plaintiff. The plaintiff was cooperative and polite with police from the outset and promptly returned all calls and provided accurate contact information. I am particularly troubled by his interview with the plaintiff in the cells after the arrest where he tells the plaintiff that Ms. Depont has some concerns about safety for herself.

This is simply not an accurate statement of what she told Constable Dance, what was recorded in the Domestic Violence Supplementary Report, or what she testified to in court. (vi) Detective Kelday knew where the plaintiff was living (at least part of the time), working, and had no reason to believe he would flee the jurisdiction or not continue to cooperate with police.

Domestic Violence Policy [ 116 ] A policy in a police manual may represent evidence of the reasonable standard of care required of an officer in the execution of his duties, provided that the policies themselves are reasonable. [21] Amongst the many requirements set out in the fourteen-page Domestic Violence policy in

Part 2,

Chapter C, General Investigation

section of the LPS manual [22] , are requirements for: (

a) a thorough investigation; (

b) a careful and comprehensive review of verbal submissions, including admissions made by the suspect prior to arrest as well as the cautioned statement obtained post arrest; (

c) review of a lengthy list of risk factors to consider in determining if it is in the interest of the public to detain or release the accused; (

d) attendance at a residence, when requested by either party, if there is a safety concern, to ensure peaceful entry and the taking of personal belongings; and (

e) when reasonable grounds exist, the sworn member shall be directed to lay the appropriate charge. Analysis of Reasonable and Probable Cause [ 117 ] Detective Kelday was unaware of the contents of this policy and failed to conduct a thorough investigation, obtain statements necessary statements, and properly consider the list of risk factors.

He lacked the requisite grounds to effect an arrest for the offence of break and enter and theft. [ 118 ] Detective Kelday made this case his “top priority” that morning and, as the “acting” head of CID, brought a certain level of experience, expertise, and knowledge to the investigation. [ 119 ] Although directed to lay charges where appropriate by the Domestic Violence policy, such directive is subject to the pre- condition that the officer believe on reasonable grounds that the alleged offence has been committed.

Detective Kelday’s evidence that he lacked discretion in these circumstances reveals a misunderstanding of the policy (which he didn’t review) and of the test for reasonable grounds. [ 120 ] I accept that the police need not take a statement from the plaintiff before forming or determining RPG. However, once furnished with information, they cannot turn a blind eye to or ignore relevant and credible information in assessing the existence of RPG and must take into account all information available to them at that time. The evidence available to Detective Kelday was far from clear evidence of the impugned conduct.

When I assess the nature of the power exercised by Detective Kelday and the context in which he exercised such power, I conclude his actions constituted a distinct failure to properly investigate the alleged offence before making an arrest. [ 121 ] In reaching this conclusion, I have instructed myself that Detective Kelday need not exhaust all routes of investigation, interview all potential witnesses, or even speak with the plaintiff to obtain his version of events before determining the existence of RPG. [23] [ 122 ] Detective Kelday testified that he took the statement of Ms.

Depont to be more valid than the contrary statement of the plaintiff. Why? Interestingly, he later testified once the plaintiff’s key was tested and shown to work, he didn’t see why he wouldn’t believe him. I have difficulty with his arbitrary and unsubstantiated decision to prefer her version of events given her embellished statement that the garage door was “mutilated”. [ 123 ] The exercise of police powers, including arrest and detention, are routine and daily occurrences before this court.

This is neither a technical nor complex area of police powers and does not require the intervention or assistance of expert evidence in identifying and assessing the requisite standard of care and whether it has been met in the circumstances. [24] [ 124 ] Detective Kelday was faced with a number of concerns and potentially conflicting information at the time of the plaintiff’s arrest including: (

i) evidence from a neighbour that the plaintiff was seen taking out garbage and that a garage door was open;

(ii) evidence that Ms. Depont’s uncle lived at the property at the time and failing to attempt to speak with him; (iii) an absence of any compelling need to either establish the identity of the plaintiff or preserve or secure evidence; (iv) the lack of any concerns for Ms. Depont’s safety coupled with the fact that the plaintiff was not a threat to her, to any potential witnesses, or to the property itself; and (

v) a clear acknowledgement by Detective Kelday during his interview with the plaintiff in the cells that the plaintiff needs to get a civil lawyer and one of the parties needs to get exclusive possession of the property and that the police “can’t do it for you”. [ 125 ] However, Detective Kelday, accepting that the laying of a charge was a route to effectively give Ms.

Depont exclusive possession, does exactly what he earlier told the plaintiff in the cells that he couldn’t do by arresting him, subsequently laying a theft charge, and requiring his further non-attendance at the property as a term of release. [ 126 ] The police defendants suggest that regardless of whether the decision of Ms. Depont in changing the locks was appropriate or not, this action does not permit the plaintiff, even as a joint owner of the property, to forcibly enter the home.

I reject this argument for the simple reason that I do not find in the evidence before me that RPG existed at the time to believe that there was a forcible entry and such conclusion is supported by the plaintiff’s possession of a workable key to two of the three external doors to the property. [ 127 ] The parties spent considerable time testifying about the garage door. Notwithstanding the evidence of Ms.

Depont’s uncle and an indication in an earlier appraisal that the garage door was inoperative, I accept the plaintiff’s evidence that he used the left garage door during the week prior to the May 2011 incident and that he was able to make the garage door operate at such time by use of a remote or a keypad. [ 128 ] In reviewing this event in hindsight, I must not unduly or improperly rely on the withdrawal of the charges by the Crown as many criminal charges end in withdrawal or acquittal.

Rather, I must focus on the realities of front-line policing in London and properly impose the standard of care on what was available to Detective Kelday at the time. [ 129 ] Although I am not prepared to accept the theory of the plaintiff that Detective Kelday was part of a larger sinister plan to somehow skew future family court proceedings in favour of Ms.

Depont regarding exclusive possession and ownership of the property, I do find that Detective Kelday objectively lacked RPG to believe that the plaintiff committed the indictable offence of break and enter and theft at the time of his arrest. [ 130 ] Once arrested, it became readily apparent that Detective Kelday’s ability to proceed with a charge of break and enter and theft was doomed. [ 131 ] Shortly after the arrest, Detective Kelday was able to confirm that the key was operational for two doors at the property.

He had already recovered most of the alleged stolen documents. [ 132 ] It is noteworthy that the decision to arrest under s. 495 of the Code for a straight indictable offence of break and enter and theft in a dwelling house created a procedural pathway that bypassed ss. 496 and 497 of the Code , which would have applied if the plaintiff had been arrested for the offence of theft under $5,000. [ 133 ] The plaintiff should not be denied the procedural safeguards and entitlements in ss. 496 and 497 of the Code , which entitle him to release from custody “as soon as practicable”, so long as he meets certain pre-conditions.

The decision by Detective Kelday, made in haste and in the absence of RPG, is almost immediately reversed in favour of a lesser and included charge that puts an obligation on the peace officer to now release the person arrested without a warrant. [ 134 ] In fact, at the conclusion of the interviews shortly before 6:00 p.m. on May 21, 2017, Detective Kelday tells the plaintiff that he is going to charge him at this point with theft under $5,000 and is going to release him with terms that he not associate with Ms. Depont or attend at the property.

I note that in his will say statement, Detective Kelday told the plaintiff at his mother’s house after the arrest that he wouldn’t be opposing his release from custody and just wanted conditions that he not associate with Ms. Depont and not attend at the property.

Detective Kelday specifically instructed the plaintiff that if he needed to attend at the property to retrieve his personal belongings he would have to arrange (ahead of time) for the police to go with him. [ 135 ] I accept that RPG existed for Detective Kelday to believe that the offence of theft under $5,000 had been committed by the plaintiff, because it was subjectively and objectively reasonable to think that the plaintiff took documents belonging to Ms. Depont without colour of right and with intent of depriving her of property.

This is a hybrid offence and as such, is considered an indictable offence for the purposes of affecting an arrest without a warrant under s. 495(1) (

a) of the Criminal Code . [25] [ 136 ] Once Detective Kelday determined that he would only be laying a charge of theft under $5,000, a s. 553 Criminal Code offence, he was then obligated to turn his mind to the requirements of s. 497 of the Criminal Code which require that he “shall” as soon as practicable, release the person from custody by way of an appearance notice or future summons. The exception to such release is provided in s. 497(1.1) when the officer believes it is necessary to detain the person in custody having regard to all of the circumstances including: (

i) establishing his identity; (ii) securing or preserving evidence; (iii) prevent the continuation or repetition of the offence or another offence; or (iv) ensure the safety and security of the complainant or alleged victim.

[ 137 ] None of these circumstances existed. The identity of the plaintiff was well-known. The evidence had already been recovered and secured. His continued detention and deprivation of the plaintiff’s liberty was neither necessary nor reasonable. It was certainly not in the public interest or necessary for the safety of the public, including Ms. Depont. [ 138 ] Detective Kelday testified repeatedly that he was concerned about the “continuation of the offence”. What offence? It was not an offence for the plaintiff to attend at his house that he owned in the absence of a condition to the contrary.

There was simply no evidence to suggest that the plaintiff was going to steal other documents or commit other offences. In fact, this was the application of backward logic by Detective Kelday. [ 139 ] In other words, when told by the plaintiff of his intention to be at the property later that day for a get-together, Detective Kelday then determined that by laying a charge and releasing him with conditions, he could now prevent the plaintiff from returning to the property.

He was doing exactly what he earlier said to the plaintiff in his videotaped interview at the cells what a civil or family court must do [26] and using the arrest and charge as a means to grant exclusive possession of the property to Ms. Depont. [ 140 ] Notwithstanding that he indicated to both Ms. Depont and the plaintiff that they should seek family court orders for exclusive possession of the property alongside his testimony that it was difficult for him to decide who to believe, he nonetheless randomly sided with Ms. Depont.

I was particularly struck by his observation that he wouldn’t want to be “another officer at the property”. In other words, to him, this was not a simple, straight forward, or obvious situation. [ 141 ] At its highest, the plaintiff intentionally took some personal papers of Ms. Depont. When confronted by the police, he immediately returned them. Although I am somewhat skeptical as to his reasons for not returning them earlier, I am not satisfied that such action was an indicator of the likelihood of the continuation of this offence or any other offence.

I do agree with Detective Kelday that RPG existed to believe that the offence of theft under $5,000 had occurred, because the plaintiff had taken the papers. Although I remain perplexed as to why he did not exercise his discretion not to lay such a charge on these facts, I accept that he felt compelled to do so by the Domestic Violence policy. [ 142 ] Detective Kelday was dealing with an individual with no criminal antecedents and a key and title to the property. [ 143 ] A reasonable person or reasonable officer, informed of all of the facts, would likely conclude: (

i) the plaintiff did not break into his own home to which he possessed an operable key; and (ii) the plaintiff, fraudulently and without colour of right, took the personal documents of the complainant Ms. Depont with intent to temporarily deprive her of this property. [27] [ 144 ] The plaintiff’s continued detention after his arrest and charge for theft under $5000 raises problems.

I am bewildered as to how a clear and unequivocal intention by Detective Kelday to release the plaintiff shortly after 6:00 p.m. veered off course because Sergeant Middleton found it “strange” that the plaintiff wanted to go to the property on one occasion to retrieve his personal belongings.

She declined to insert this provision in the recognizance even though Detective Kelday told the plaintiff he could do so and a justice of the peace the following morning did so. [ 145 ] I was not impressed with Sergeant Middleton’s evidence that she was “troubled about how badly he [the plaintiff] seemed to want to go back to the property” given that it was his property and he had many of his personal possessions there, including tools.

Sergeant Middleton went as far as to state that she “has never heard an accused during release ask to go back to the property”. [ 146 ] The plaintiff should not have been arrested for a break, enter and theft and should have been released as soon as practicable after processing for the offence of theft under $5,000. His continued detention overnight was both unnecessary and unlawful.

Nothing in the circumstances warranted a roughly 20 hour period in detention. [ 147 ] Accordingly, while I find that Detective Kelday may have subjectively believed he had sufficient RPG, there was an absence of RPG or reasonable and probable cause for Detective Kelday to objectively believe that the offence of break and enter and theft by the plaintiff had occurred on May 20, 2011. [ 148 ] I, therefore, conclude that the plaintiff has met his onus at this stage of the test for negligent investigation against Detective Kelday.

Despite the fact that I have found that Detective Kelday had reasonable and probable grounds to charge the plaintiff with theft under $5000, Detective Kelday did not meet the standard of care required of a reasonable police officer during an investigation, because he failed to properly investigate before making an arrest by not following up on inconsistencies in Ms. Depont’s statement, by not following up on the issue of colour of right and failing to try the keys to the property before the arrest.

Constable Stokan’s Evidence [ 149 ] Having already accepted the evidence from the plaintiff that he provided contact information for both Doug Galbraith and the painter to Constable Stokan prior to the charge being laid were with him at the property on April 22, 2011, I have difficulty accepting much of Constable Stokan’s evidence. [ 150 ] Constable Stokan received information from Ms. Depont that she wanted to lay a domestic breach charge. She told the officer that the plaintiff was seen earlier that day by a third party.

She told him that the plaintiff was charged last year with breaking into her house and was on a condition not to be within 200 metres of her house. The officer then spoke with the plaintiff who told him he, in fact, was at the property that day and that a family court order permitted him to be there. Constable Stokan was now dealing with conflicting stories. [ 151 ] He received a copy of the order of Templeton J. dated February 10, 2012 and reviewed it. [ 152 ] His police witness statement indicates his belief that since the property was not yet listed for sale, the plaintiff had no right to

enter the property. He also seemed to give evidence to this effect at his examination for discovery. However, he explained in his testimony that it did not matter if the house was listed or not and he based his decision to lay a charge on the absence of notice. [ 153 ] What is most troubling about Constable Stokan’s evidence is the fact that he had a telephone conversation with the plaintiff about the allegations made by Ms. Depont and has no notes regarding what, if anything, the plaintiff said to him about notice.

His recollection is that the plaintiff did not deny the allegations and that if he did deny them, any reply would have been very important and very noteworthy. This is in sharp contrast to what the plaintiff recalls, and I again accept the plaintiff’s evidence in this regard. [ 154 ] Having been given the name of the realtor for the plaintiff, Doug Galbraith, both by Ms.

Depont in her interview statement on Sunday, April 22, 2012 and by the plaintiff, Constable Stokan could not recall if he ever followed up with the realtor, but agreed he had no notations in his notebook and didn’t think he called him. [ 155 ] Constable Stokan further testified that he believed the family court order of Templeton J. was not in conflict with the terms of the recognizance. He felt that the absence of notice by the plaintiff to Ms.

Depont was sufficient to inform his RPG for the offence of breach of recognizance. [ 156 ] He agreed that the lack of notice was the “tipping point” that led to the charge. [ 157 ] In cross-examination, he agreed that Ms. Depont was inaccurate in her initial phone conversation with him when she told him: (

i) that the plaintiff was charged with break and enter into her home (when the actual charge was theft under $5,000); and (ii) that the property was “her house” (when the parties were in fact co-owners). [ 158 ] He accepted that his decision to arrest was made before the plaintiff arrived at the station with his documents and based his RPG on the following: (

i) his conversation with the plaintiff, for which he acknowledged he took no notes; (ii) his telephone conversation and interview with Ms.

Depont; (iii) the existing recognizance and family court order; and (iv) the lack of any denial by the plaintiff of the allegations put to him by Constable Stokan and the plaintiff’s decision not to provide any alibi or other evidence to support the position that he was not breaching the recognizance. [ 159 ] Although Constable Stokan appeared confused both in his witness statement and in earlier evidence at discoveries about the importance of the house being listed for sale, I accept that he based his decision to lay the charge on the absence of notice. [ 160 ] He maintains that he conducted a proper investigation and that there is no one he did not interview, despite his knowledge of and contact information for the realtor and the painter that the plaintiff says were both with him at the property at that time. [ 161 ] I find both the investigation and conclusion reached by Constable Stokan fall short of the requisite standard of a reasonable officer in like circumstances. [ 162 ] His determination that the criminal court order would trump the family court order is baffling.

The criminal court order permitted one visit in the presence of police to retrieve belongings while the family court order permitted monthly visits in the presence of the realtor and with notice to ensure the property was in listing condition. Further, the recognizance contemplated the future existence of a family court order in clause (

b) which prohibited the attendance of the plaintiff at the property “unless pursuant to a family court order made after the date of the judicial interim release order”. These orders were required to be read in tandem and it was important for the officer to clearly understand and interpret the contents of the order of Templeton J. of February 10, 2012. Simply put, he erred in his

interpretation of the order of Templeton J. [ 163 ] Although he was misled initially by Ms. Depont on two material points, [28] he could have and should have exercised independent investigation to establish the accuracy of these complaints.

For example, a review of the recognizance would have immediately revealed the nature of the outstanding charge (theft under $5000 and not break and enter and theft). [ 164 ] Given that this complaint was similar to an earlier complaint, he could have and should have reviewed the earlier complaint made less than a month before on March 31, 2012 and reviewed the earlier officer’s response to that complaint. [ 165 ] He posed the following questions to Ms. Depont in her interview at p. 2 of her statement: Q.

Did you hear anything in the courts about the Family Court taking precedence over the Criminal Code and his release papers not in effect? A. No. Q. Does the Family Court know he is on release? A. Yes. I showed them the recognizance. [ 166 ] These questions are perplexing. The issue is not whether one order trumps the other, but rather how to interpret the family court exception regarding the plaintiff’s presence at the property in light of the recognizance. Further, it makes little sense why he would seek input from. Ms.

Depont on this issue of whether a family court order takes precedence over a judicial interim release order.

[ 167 ] I also find that this line of questioning by Constable Stokan is consistent with and lends credence to the testimony of the plaintiff that Constable Stokan told him in the lobby of the police station after he presented the court order and contact documents for the painter and realtor that police will not comply with a family court order if a criminal order is in effect. [ 168 ] I reject Constable Stokan’s evidence that the plaintiff said nothing to him about this allegation and failed to provide anything to counter or challenge Ms. Depont’s allegation. More specifically, I accept that: (

i) the plaintiff attended at LPS with the express intention of presenting his side of the story and brought documentation to support his position; (ii) the plaintiff specifically denied agreeing with or accepting the allegations of Ms. Depont and discussed the family court order with Constable Stokan during the telephone conversation; and (iii) once arrested the officer should not construe silence by the plaintiff as an admission to the allegations made by Ms. Depont. [ 169 ] Constable Stokan should have interviewed Doug Galbraith. He should have done so for a number of reasons, including: (

i) to determine if he was present at the material time; (ii) to determine if he had provided notice to the other realtor of the visit; (iii) to determine if a third party was in attendance; and (iv) to determine if there had been earlier visits to the property in accordance with the family court order. [ 170 ] There was no sense of urgency to this investigation. [ 171 ] If he found the order of Templeton J. to be confusing, he should have reached out for advice from a senior officer or Crown Attorney to assist him in interpreting the order.

Although not expected or required to interpret the order of Templeton J. to the level of a trained lawyer or jurist, the officer is nonetheless required to act reasonably in giving effect to the order and to conduct an inquiry that the circumstances reasonably permit. Substantive deficiencies or material inconsistencies cannot be ignored and must be addressed. Simply put, a reasonable officer, in these circumstances, would have identified the obvious need for further investigation and information. An arrest at this point in time was neither reasonable nor necessary.

There was nothing thorough about this investigation and further information should have and could have been gathered. There were no concerns about Ms.

Depont’s safety, about the identity of the plaintiff, or about the preservation of evidence. [ 172 ] Like Detective Kelday, Constable Stokan, in order to effect a lawful arrest without a warrant and relying on s. 524(2) of the Criminal Code , was required to have reasonable grounds to believe the plaintiff had contravened his recognizance. [ 173 ] The determination of the existence of RPG in these circumstances is neither complex nor technical in nature and does not require the court to receive and rely upon expert evidence. [ 174 ] This is one of those rare circumstances where the actions of Constable Stokan are sufficient to fall below the required standard of care. [ 175 ] His investigation was insufficient, and although I accept that he subjectively believed he had the requisite grounds to make the arrest, viewed objectively, a reasonable person standing in the shoes of that officer would not have concluded that the necessary grounds to make an arrest existed. [ 176 ] Therefore, I find that the plaintiff has met his onus under this stage of the test as against Constable Stokan.

Conclusion on Negligent Investigation for Detective Kelday and Constable Stokan [ 177 ] I conclude that both Detective Kelday and Constable Stokan were negligent in their investigations and breached the duty of care they owed to the plaintiff. They both lacked the necessary RPG at the time of arrest to believe the plaintiff was guilty of either offence for which he was arrested for. They were both actively instrumental in the decision to arrest, detain, and charge the plaintiff.

The both failed to meet the standard of care, because a reasonable officer in their circumstances would not have arrested the plaintiff for break and enter or arrested and charged the plaintiff with breach of recognizance and would have completed a more thorough investigation. Accordingly, I find both officers liable for the tort of negligent investigation. The Test Applied to Ms. Depont [ 178 ] I was not provided with any authority, nor could I find any, for the proposition that a complainant can be held liable for the tort of negligent investigation. [ 179 ] Accordingly, this claim must fail against Ms. Depont.

(2) MALICIOUS PROSECUTION The Test

[ 180 ] There are four elements that must be proven for the tort of malicious prosecution, three of which, as noted above, are the same as those required for the tort of negligent investigation. The plaintiff must show the following: (

i) the proceedings must be initiated by the defendant; (ii) the proceedings must be terminated in favour of the plaintiff; (iii) there must be an absence of reasonable and probable cause; and, (iv) the plaintiff must establish the existence of malice or a primary purpose other than that of carrying the law into effect. [29] The Test Applied to the Police Defendants (i)-(iii) Were Proceedings Initiated by the Defendant and Terminated in Favour of the Plaintiff and Was There an Absence of Reasonable and Probable Cause? [ 181 ] I have already examined the first three elements under the earlier tort of negligent investigation.

I need not repeat that exercise. [30] Since I have found that the first three elements were met against both Detective Kelday and Constable Stokan, I will move on to assessing whether their conduct was malicious. (iv) Was There Malice? [ 182 ] Malice requires that the police acted for an improper purpose as demonstrated by the deliberate and improper use of their powers of office. [31] [ 183 ] Carelessness, recklessness or simple bad judgment will not suffice.

The plaintiff must prove that the police perverted or twisted the law to achieve a purpose beyond the legitimate discharge of their duties. [32] [ 184 ] Although I have found an absence of RPG by both Detective Kelday and Constable Stokan to arrest the plaintiff, I am unable to conclude that either acted maliciously or for an improper purpose. There is simply no evidence before me of malice or the deliberate and improper use of their powers. Both officers genuinely believed that they had the requisite grounds to arrest and lay charges. Neither had any prior interaction with the parties.

I cannot accept the plaintiff’s suggestion that the police somehow colluded with Ms. Depont for the nefarious purpose of giving her an advantage in the looming family court proceeding. Detective Kelday appeared at a family court appearance because he was subpoenaed by Ms. Depont. I cannot find that Detective Kelday was part of a conspiracy to tip the family proceeding in her favour.

Although the plaintiff testified that Detective Kelday told him “I know your kind” I accept Detective Kelday’s denial coupled with Detective Currah’s evidence that he did not hear such an utterance. [ 185 ] Accordingly, although satisfied that the plaintiff has established the first three elements for the tort of malicious prosecution as against both Detective Kelday and Constable Stokan, I conclude that the fourth element, or malice, has not been proven. This cause of action must fail as against these two remaining police defendants. The Test Applied to Ms. Depont (

i) Were the Proceedings Initiated by the Defendant? [ 186 ] Ordinarily, police officers are viewed by courts as the parties responsible for initiating criminal proceedings. [ 187 ] However, in rare and exceptional circumstances, a complainant will be treated as having initiated the proceeding, including when: (

i) the complainant desired and intended that the plaintiff be prosecuted; (ii) the facts were so peculiarly within the complainant’s knowledge that it was virtually impossible for the police or prosecutor to exercise independent discretion; and (iii) the complainant gave information she knew to be false or withheld information she knew to be true. [33] [ 188 ] Courts will also consider other circumstances in an effort to determine the defendant’s role in invoking the criminal justice process. Ultimately, I must assess whether Ms.

Depont wrongfully caused steps to take place sufficient in nature to determine that she initiated the criminal proceedings against the plaintiff. [34] [ 189 ] Although I was less than impressed with much of the evidence of Ms. Depont, I am unable to conclude that she “initiated” the first criminal proceeding in May 2011. [ 190 ] In reaching this conclusion, I rely on the following: (

i) she called the police about this incident because she had a question and made clear there was no urgency and no rush to the situation; (ii) she clearly and repeatedly told the police that the plaintiff wasn’t a threat to her; and (iii) she advised the police that the plaintiff was a co-owner of the property and expressed her genuine belief that the plaintiff did not

actively reside at the property in May 2011. [ 191 ] In my view, these steps are outside the parameters necessary to attract liability by a complainant for malicious prosecution. [ 192 ] This is not to say that I am not critical of many of her actions. More specifically, I found her description of damage to her garage door by using the word “mutilated” to be an embellishment and exaggeration of what she observed.

The absence of any photograph of the “mutilated” portion of the door, given her express direction to her cousin to photograph the damage and the lack of any corroboration of such damage by the police, are instructive to the true extent of the damage. [ 193 ] Although she clearly acknowledged and agreed that the plaintiff, as co-owner, could not break into the property, she nonetheless chose to tell the police, when she called them, that he “broke into her house”.

I also noted repeated references in her evidence to the property being “her house”, notwithstanding the fact that there are two names on title and many of the plaintiff’s belongings remained in the property at the time of the first incident. [ 194 ] I am also satisfied that she intentionally and repeatedly withheld voice messages and mail from the plaintiff and, knowing that he did not have a cell phone, often made it difficult for him to communicate with family and friends. [ 195 ] Although she testified that the plaintiff did not stalk her, she couldn’t remember if she used the word “stalk” when speaking to Detective Kelday.

Yet Detective Kelday indicated that Ms. Depont told him although she was not concerned for her safety, she knew that the plaintiff had “stalked” other girlfriends. [ 196 ] However, her behaviour, although unflattering and unreasonable, does not rise to the point of “rare and exceptional” circumstances required for liability on the part of a complainant for malicious prosecution.

Simply put, she never expressly told the police that she desired that the plaintiff be charged, the facts given to the police and/or prosecutors were mostly capable of further independent inquiry to permit them to confirm or deny the existence of such facts, and she, for the most part, gave the police accurate information and did not withhold pertinent information from them. [ 197 ] The second incident (April 2012) must be viewed from a different lens.

By this point, she had commenced formal proceedings in family court for an order for disposition of the property and exclusive possession in the interim and was frustrated by the pace of the efforts to either dispose of or buy-out the plaintiff of his interest in the property. [ 198 ] It is noteworthy that the residential appraisal report of Eric Jarvis of April 28, 2011 lists the use of the appraisal as “to estimate a potential selling price for litigation purposes”. [ 199 ] I am puzzled by her attendance at the plaintiff’s mother’s house in 2011 (after the recognizance was in effect) to return property to the plaintiff in the absence of either his knowledge or request for such property.

Her explanation for going to his mother’s house coupled with her clear animus towards the plaintiff at this time suggest that she continued to treat the property as her own and simply wanted to remove all of his belongings (or as many as she could cram into her vehicle) at a time when she knew he could not attend at the property or communicate with her. [ 200 ] At this point, I accept that she was both angry and frustrated with the plaintiff’s continued reluctance or resistance to agree with her on next steps. [ 201 ] In this context she is alerted by her uncle that the plaintiff had attended at the property with someone else who looked like an appraiser.

He didn’t enter the home but remained on the perimeter for no more than 30 minutes. An estimate filed by the plaintiff from University First Class Painters for exterior painting to the siding and frames of the property dated April 22, 2012 corroborates the plaintiff’s version of events and his testimony as to why he attended at the property on that day. [ 202 ] According to the evidence of Constable Stokan, Ms. Depont wanted to lay a domestic breach charge.

This is a much different stance from her earlier call to police in May 2011. [ 203 ] Her earlier March 2012 complaint to the police of a similar nature fell on deaf ears.

Her lack of inquiry with either her realtor or the plaintiff’s realtor as to whether either was aware of or present at the property with the plaintiff before calling police is most troubling. [ 204 ] As already noted, she misled Constable Stokan by telling him the plaintiff was on a recognizance for break and enter and that the house belonged to her. [ 205 ] When the above factors are considered along with her initial misstatements to Constable Stokan, I have little doubt that: (

i) Ms. Depont both desired and intended that the plaintiff be prosecuted for breach of recognizance or breach of a family court order; and (ii) she gave false information that she knew to be false to the police. [35] [ 206 ] However, despite my concerns with her behaviour I can

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