Jul 20, 2020

COURT OF APPEAL SUMMARIES (July 13 – 17, 2020)

M.W. v. Halton (Police Services Board), 2020 ONCA 463 (CanLII)

[Rouleau, van Rensburg and Roberts JJ.A.]

Counsel:

Davin Charney, for the appellant

Robin A.F. Squires and Natalie T. Salafia, for the respondents

Keywords: Torts, False Arrest, Reasonable and Probably Grounds for Arrest, False Imprisonment, Negligent Investigation, Malicious Breach of Public Duty, Malicious Prosecution, Misfeasance in Public Office, Charter Violations, Civil Procedure, Partial Summary Judgment, Evidence, Witnesses to Pending Motion, Adverse Inferences, Canadian Charter of Rights and Freedoms, ss. 7, 9 and 10(b), Rules of Civil Procedure, Rule 20.02(1), 39.03, R. v. Storrey, [1990] 1 S.C.R. 241, Hryniak v. Mauldin, 2014 SCC 7, R. v. Shepherd, 2009 SCC 35, Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.), leave to appeal refused, [1997] S.C.C.A. No. 571, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, Payne v. Mak, 2018 ONCA 622, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Facts:

The action arises out of two interactions between the appellant, M.W., and the respondents, Halton Regional Police Service (the “HRPS”) and Detective Constable A. The first interaction took place on February 18, 2015, when M.W. was questioned at the police station about an alleged assault against one of his sons “Co.” (no charges were laid). The second interaction took place on March 23, 2016, when M.W. was arrested and charged with assaulting his daughter “Ca.” (the charge was subsequently withdrawn by the Crown).

The respondents moved for summary judgment dismissing the action on the basis that there was no genuine issue requiring a trial as: (1) D.C. A. had reasonable and probable grounds to arrest and charge M.W. with assault; and (2) M.W. was not detained on February 18, 2015.

After considering the evidence on the motion and the arguments of counsel, the motion judge dismissed all of M.W.’s claims, except for the claim that his Charter rights had been violated in the context of what happened at the police station on February 18, 2015.

Issues:

1. Did the motion judge make a reversible error in concluding that there were reasonable and probable grounds for M.W.’s arrest on March 23, 2016?

2. Did the motion judge err in dismissing all of the tort claims?

3. Did the motion judge err in granting partial summary judgment?

Holding:

Appeal allowed in part.

Reasoning:

1. No. Objectively reasonable grounds to make an arrest exist when “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”. The evidentiary record on the summary judgment motion, which included the video recording of Ca.’s interview, the history of the prior interactions between the HRPS and M.W. in connection with complaints from Co.’s school, and the confirmed fact that Ca. had disclosed the assault to an HCAS worker, fully supported the motion judge’s conclusion that D.C. A had objective grounds for M.W.’s arrest.

The motion judge did not err in failing to draw an adverse inference from the respondents’ failure to produce affidavit evidence from the HCAS worker to whom Ca. disclosed the assault and the Crown counsel who negotiated the resolution of the charge against him. While Rule 20.02(1) permits a judge on a motion for summary judgment to draw an adverse inference for the failure to tender the evidence of a witness, in this case, the respondents placed before the court all the evidence they considered necessary on the motion for summary judgment. While the respondents bore the evidentiary burden of demonstrating that there was no genuine issue for trial, they were not obliged to put the evidence of every possible witness before the court. If M.W. had considered the evidence of these witnesses, who were not witnesses over whom the respondents had exclusive control, to be important in his response to the summary judgment motion, he could have required their attendance for examination under Rule 39.03.

2. Yes. The motion judge erred in dismissing the non-Charter claims in relation to the February 2015 incident without making findings with respect to those claims. M.W. did not concede in argument on the motion that only the Charter claims would survive in relation to the February 2015 incident if there were reasonable and probable grounds for the March 23, 2016 arrest, and the judge erred in stating otherwise. The tort claims for this incident could not be dismissed on the basis that D.C. A. had reasonable and probable grounds for M.W.’s arrest on March 23, 2016, therefore the motion judge’s order in this respect was set aside, and those claims were permitted to proceed.

3. No. This was an appropriate case for partial summary judgment. This is not a case where intertwined claims could lead to inconsistent results. There were two distinct issues before the motion judge: the first was whether D.C. A. had reasonable and probable grounds for M.W.’s arrest in March 2016, and the second was whether M.W. was unlawfully detained in February 2015. Although the events of February 2015 provided some background and context for what occurred in March 2016, the tort and Charter claims alleged in relation to the events of February 2015 involved separate issues that did not depend on a finding of reasonable and probable grounds for arrest. It was therefore appropriate that the claims related to the February 2015 incident be allowed to proceed independently. While it is correct to say that the evidence about M.W.’s treatment in February 2015 would have been relevant to M.W.’s claims based on the investigation and arrest that took place in March 2016 had these claims continued, the March 2016 claims were disposed of on the basis that there were reasonable and probable grounds for M.W.’s arrest. This finding meant that his claims in respect of that date could not succeed, and it was accordingly appropriate that this part of the litigation be determined by summary judgment.