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Ungovernable News: Professional regulatory bodies and malicious prosecution!

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 Ungovernable News: Professional regulatory bodies and malicious prosecution! 

Claims of malicious prosecution seem inevitable for professional regulatory bodies, despite the difficulties that such claims present for claimants. A claimant must not only defeat the case for misconduct during a discipline proceeding, but also show both an absence of reasonable and probable cause, and malice, on the part of the “prosecution”. Malice requires more than recklessness or negligence; it requires a willful and intentional effort on the part of the prosecution to abuse or distort its proper role. The New Brunswick Court of Appeal has suggested, however, that claims of malicious prosecution ought not apply to professional regulatory bodies at allEstabrooks v. New Brunswick Real Estate Association, 2014 NBCA 48.

After a real estate profession overturned a finding of professional misconduct on appeal to the court, the professional sued the regulatory body for malicious prosecution. A trial judge found the association liable, but the New Brunswick Court of Appeal overturned the finding. Apart from finding that the plaintiff had failed to allege malice on the part of any individuals – a necessary step for the court to find the association itself liable – Justice Larlee (Justice Robertson concurring) said that, “in my opinion, the discipline committees of self-regulating provincial professional associations cannot be sued by way of – and cannot be found liable for – the tort of malicious prosecution.”

The court examined the small number of Canadian cases where courts accepted the possibility of claims of malicious prosecution against professional regulatory bodies, as well as the English case ofGregory v. Portsmouth City Council, [2000] UKHL 3, [2000] 1 AC 419, where Lord Steyn concluded that the claim does not extend to disciplinary proceedings. Although the Privy Council later decided in 2013 that, under the law of the Cayman Islands, such claims should extend to civil proceedings, the New Brunswick Court of Appeal preferred the dissenting reasoning of Lord Sumption, who reasoned that such claims should not extend to civil proceedings. As Lord Sumption stated, “It is no answer to these concerns to say that the bar can be set so high that few will succeed. Malice is far more often alleged than proved. The vice of #secondary litigation is in the attempt. Litigation generates obsession and provokes resentment. It sharpens men’s natural conviction of their own rightness and their suspicion of other men’s motives. … Whatever principle may be formulated for allowing secondary litigation in some circumstances, for every case in which an injustice is successfully corrected in subsequent proceedings, there will be many more which fail only after prolonged, disruptive, wasteful and ultimately unsuccessful attempts.”

The Court of Appeal concluded that “an action for malicious prosecution cannot lie against a provincial self-regulating disciplinary body for the actions taken by members of its disciplinary committee in the course of their duties.” [58]

The professional sought leave to appeal from the Supreme Court of Canada on September 25, 2014, but as of this writing, the court has not decided about leave.

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 #Ungovernable Lesson of the Day: Tough call apparently but remember the test: 

McIntyre J., writing for the majority of the Supreme Court of Canada in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170 stated there are four elements necessary for a Successful malicious prosecution action. They are:

 

  1. The proceedings must have been initiated by the defendant;
  2. The proceedings must have terminated in favour of the plaintiff;
  3. The plaintiff must show that the proceedings were instituted without reasonable cause; and
  4. The defendant was actuated by malice.

 

 This case is completely at odds with Summerside from PEI: 

McQUAID J.A.:

 

[1]               At all times material to the issues in this appeal, David Griffin (“Griffin”) was the Deputy Director of Police Services for the City of Summerside (the “City”).  George Arsenault (“Arsenault”) was the City’s Director of Police Services and Griffin’s immediate supervisor. David Poirier (“Poirier”) and Andrew Grimes (“Grimes”) were police officers employed with the City’s Police Services Department.  Terry Murphy (“Murphy”) was the City’s Chief Administrative Officer.

 

[2]               The background facts are necessary for an appreciation of what gave rise to the commencement of the legal action by Griffin against the other parties.  In the reasons for his decision at trial, Cheverie J. set forth the background facts in paras. 6 to 21. See: Griffin v. City of Summerside et al. 2006 PESCTD 15 (CanLII).  The trial judge’s summary of the evidence in these paragraphs accurately and succinctly captures the

essential background facts. The trial judge stated as follows:

 

 

[6]           In February 1997, during the time when Griffin was Acting Director of Police Services, he received a call from Adam Kenny's father complaining about how his son had been treated when stopped for speeding on February 23rd. Griffin was informed that Grimes had pulled his service revolver and handcuffed Kenny at the time he stopped him for speeding. On February 26, 1997, Griffin and Poirier met with Adam Kenny and his father and took a statement. Adam Kenny alleged that not only did Grimes pull his service revolver when he stopped Kenny, Grimes also pointed it at him. Griffin began to investigate. He found that Grimes had not documented the fact he had pulled his service revolver and that he had not completed the required documentation expected of an officer when he draws his revolver while on duty. Griffin continued to investigate, and concluded Grimes ought to face a criminal charge for his actions.

 

[ 7]         Chief Arsenault returned to duty, was appraised of the Kenny incident and sought advice from Crown counsel as to the appropriateness of laying criminal charges against Grimes. The evidence indicates that the considered opinion of the two Crown prosecutors in this province, coupled with the opinions of the RCMP and Crown prosecutors outside this province, was that criminal charges were not warranted. Arsenault then directed Griffin to conduct an internal investigation under the Rules and Regulations for the Summerside Police Department, (‘Rules and Regulations’) with respect to Grimes' conduct.

 

[8]           Griffin remained of the view that Grimes should face criminal charges notwithstanding the opinions of Crown counsel and sic [ignored] the directive from Arsenault to do an internal investigation. The essence of Griffin's evidence in this regard is that as a police officer, he had the right to lay a charge against Grimes and the Crown had the right to stay or withdraw that charge. What ensued was a dispute between Arsenault and Griffin resulting in Arsenault giving Griffin a direct order to do the internal investigation into Grimes, which order was flatly refused by Griffin. On January 30, 1998, Griffin was suspended, with pay, for refusing Arsenault's order. Griffin responded by publicly stating Arsenault had given him an ‘unlawful order’ and, furthermore, that he was being ‘obstructed’ by Arsenault.

 

[9]           Griffin was charged under the Rules and Regulations, which charges were heard by retired Provincial Court Judge Bertrand Plamondon. On February 2, 1999, Plamondon issued his decision wherein he concluded that Griffin should not have been conducting any investigation in the Kenny matter because of bias. However, he found that Griffin did refuse to obey Arsenault's order without good and sufficient cause given by him. Plamondon entered a judicial stay of proceedings on that charge. With respect to the second charge, Plamondon found that Griffin ‘did accuse publicly and falsely Director Arsenault of obstructing him, of trying to set him up, and of giving him an unlawful order’. (See Plamondon decision, Exhibit J‑1, Vol. 18, pp. 21, 22, and 23.) I note Griffin was charged on January 30, 1998 and the decision was rendered February 2, 1999. Between these two dates, a lot is happening.

 

 

[10]         Griffin remained determined that Grimes should face criminal charges for his actions. While Grimes testified that it appeared to him Griffin was out to get him, Griffin denied any such intention. However, Griffin's research into Grimes' qualifications led him to believe Grimes did not possess the necessary minimum requirements for employment as a police officer with the Summerside Police Services when he was hired. Arsenault had been part of the hiring committee. In his testimony, Sgt. Sinclair Walker of the Summerside Police Services says he met Griffin a few days after the Kenny incident at which time there was a discussion of firearm use. Walker quoted Griffin as saying ‘I think I can get his (Grimes') job with this one.’

 

[11]         To put it mildly, the professional relationship between Griffin and Grimes was not good. During the summer of 1997, Grimes says his career took a nose dive. He testified his family life was suffering. He had been ordered to perform mundane details at work during the time his case was under investigation. His qualifications to be a police officer were being questioned, and so on. Grimes was actively seeking employment with other police forces. One such prospect was in Chatham, Ontario and Grimes knew that he needed a letter of reference from the City of Summerside.

 

[12]         During the summer of 1998, Grimes says he wanted to speak to Arsenault about the fact he was applying for jobs with other police forces. He was concerned about the internal charges which were still pending against him. He says Arsenault was away and he wanted to talk to someone in management. He says he couldn't talk to Griffin so he contacted Murphy. His evidence is what he wanted from Murphy was a ‘fair’ reference from the City, notwithstanding the ongoing investigation.

 

[13]         It was during this first meeting with Murphy in July of 1998 that Grimes first disclosed what he knew of an incident which allegedly occurred in July of 1997. This incident (the so‑called ‘fairground incident’) occurred on the grounds of the annual Summerside Lobster Carnival. Grimes says he ‘blurted out’ to Murphy the story he heard (he called it hearsay) of an incident involving Griffin and Cst. Deanna Holloway. It was alleged that Griffin introduced Holloway to the Mayor, and in doing so, he put his hand on her back and rubbed her back up and down, or in a circular motion, for a period of time. Holloway was embarrassed, but she did not pursue the matter in 1997 and, indeed, when confronted by Grimes about the incident the next morning, she basically told Grimes to stay out of it.

 

 

[14]         So, what Grimes was relating to Murphy in July, 1998 was something concerning Holloway, about which Holloway told him to keep quiet. Grimes felt he had breached this confidence when he mentioned the incident to Murphy, but maintained in his evidence that the purpose of going to see Murphy was not to tell this tale, but, rather, to seek employment assistance in other jurisdictions. In any event, the cat was out of the bag.

 

[15]         Murphy then advised the Mayor of the allegation whereupon the Mayor said the matter should be turned over to Arsenault. Murphy also sought the advice of the City solicitor, Ben Taylor. According to Murphy, it was Taylor who suggested another meeting be held involving both Arsenault and Grimes to confirm the allegations. In fact, Taylor testified he told Murphy this allegation could not be ignored. He further advised Murphy he should call Grimes to his office and either confirm the allegations Grimes was making, or was he ‘just shooting his mouth off.’

 

[16]         On the strength of this advice, Murphy, Arsenault, and Grimes met on August 3, 1998. While continuing to say that what he was repeating was ‘hearsay’, Grimes, indeed, did repeat what he had told Murphy earlier about the fairground incident. Later on, when the matter was formally investigated by Poirier, Grimes provided a written statement.

 

[17]         Arsenault then had several meetings with Holloway. While she refused to provide a written statement, she suggested to Arsenault he had enough information to conduct an investigation. Arsenault then approached Poirier of the Summerside Police Services and asked him if he could do the investigation. Poirier did not accept immediately, but did so within days, and on September 15, 1998 he was appointed Acting Deputy Director for the purpose of conducting this investigation. Arsenault also reported to City Council that Griffin was under investigation and told them to keep it quiet.

 

[18]         Poirier, although an experienced police officer, had never done an investigation into sexual harassment. He did some research; read some literature on the topic; spoke to representatives of the Prince Edward Island Human Rights Commission (the ‘Commission’) on the general subject matter; and then interviewed all of the police officers who had any involvement or knowledge of the incident at the fairground. He prepared a report and sought Griffin's response. Griffin chose to remain silent and never did give his version of the events until he testified under oath before ‘Independent Person’ Lynn Murray who heard and decided the charges against him. (Murray wound up hearing this matter as a result of a series of legal challenges which prompted changes to the Discipline Procedure under the Rules and Regulations. For a summary of how she ended up as an ‘independent person’ in the amended Discipline Procedure, see pp. 2, 3, and 4 of the Murray decision in Exhibit J‑1, vol. 22.

 

[19]         Poirier also discussed the file with Taylor, but it was Poirier who produced the charges. It is also noteworthy that in the course of his investigation and research, Poirier sought out the only other file in the department dealing with a sexual harassment investigation, and that was one which had been done by Griffin. It is Poirier's testimony that as a result of reviewing Griffin's file, and in discussions with Arsenault, that his investigation expanded from the fairground incident only to an investigation into sexual harassment generally within the Summerside Police Services. Further, his evidence is that while his investigation expanded into allegations of sexual harassment generally, it was only Griffin's name which continued to pop up. Griffin's earlier investigation had to do with a former employee of the Summerside Police Services by the name of Anthony Hippenstall (‘Hippenstall’). I shall deal with his involvement later.

 

[20]         Suffice to say, Poirier did his investigation; called on Griffin for a response to the allegations; received no response from Griffin; and proceeded to draft the charges. This took place in November, 1998 while the other charges against Griffin for disobeying Arsenault's order were still pending. In fact, Plamondon did not conduct his hearing until January, 1999 and gave his decision in February, 1999.

 

[21]         Murray conducted her hearing into the sexual harassment charges in August, 1999 and rendered her decision on November 30th, 1999. She dismissed all charges against Griffin. In May, 2000, Griffin issued his statement of claim for malicious prosecution.

 

[3]               In summary, Griffin received a complaint from a member of the public that Grimes had been dangerously overzealous in the enforcement the City’s speeding laws.  Griffin, who already had serious doubts about the qualifications of Grimes to carry out the duties of a police officer in the City, recommended to Arsenault that Grimes be charged under the provisions of the Criminal Code. Arsenault had been a member of the committee that approved the hiring of Grimes, and he did not view the situation giving rise to the complaint in the same way as Griffin. He requested instead that Griffin conduct an internal investigation into the conduct of Grimes pursuant to the provisions of the “Rules and Regulations of the Summerside Police Department” (the “regulations”).  When Griffin refused, Arsenault charged him for breach of the same regulations.

 

 

[4]               An independent panel found that Griffin had violated the regulations by refusing to obey the order of his superior.  However, the panel also found that because of the stance Griffin had initially taken with respect to the conduct of Grimes, Griffin would have carried a certain bias into the investigation.  Therefore, it was probably best he had not carried out the investigation. Accordingly, the panel stayed the charges against Griffin.

 

[5]               In the meantime, with a view to seeking employment elsewhere, Grimes went to City Hall seeking a recommendation in the event he should decide to seek employment elsewhere.  He met with Murphy. During the meeting Grimes related an incident of possible inappropriate conduct on the part of Griffin toward a female police officer approximately one year previous even though that officer had informed Grimes she did not want the incident to become public.  Murphy contacted the Mayor who advised him to inform Arsenault.

 

[6]               A series of events was unleashed beginning with Arsenault’s order to Poirier to commence an investigation which resulted in charges against Griffin for breach of the regulations. As events unfolded, the charges expanded beyond those arising from the incident related by Grimes to Murphy. The City’s councillors became involved, the media received information it should not have received, and the public was engaged.  The charges were dismissed by an independent panel. Griffin sued for malicious prosecution.

 

[7]               The action which Griffin commenced against Grimes was settled before trial.  The action against the remaining parties proceeded to trial, consuming 47 hearing days. The trial judge found that Arsenault was liable to Griffin for malicious prosecution and the City was vicariously liable for the actions of Arsenault. Griffin was awarded damages.  The actions against Murphy and Poirier were dismissed.  While the trial judge found that Poirier was not liable because Griffin failed to prove Poirier had acted with malice, the trial judge in delivering his reasons found that Poirier had acted in the absence of reasonable and probable cause.

 

[8]               Arsenault and the City have appealed from the order of the trial judge.  Poirier has also appealed from the trial judge’s finding that he did not have reasonable and probable cause to proceed with the charges against Griffin. 

 

[9]               With respect to the notice of appeal filed on behalf of Poirier, I note that an appeal is from the order of the trial judge and not his reasons.  See: Clory v. Canada (Attorney General) (1997), 1997 CanLII 4569 (PE SCAD), 149 Nfld. & P.E.I.R. 183 (P.E.I.S.C.A.D.) The trial judge’s order provided in para.2  that the action against Poirier was dismissed. It is not the role of this court to review the findings of the trial judge made in the course of delivering his reasons why he dismissed Griffin’s claim against Poirier, except, to the extent those findings may be related to the trial judge’s order that Arsenault, as the person directing Poirier, was liable to Griffin.  

 

[10]           Griffin has filed a cross-appeal; however, it appears to be with respect to costs only.  I will have more to say with respect to the cross-appeal later in these reasons.

 

 

DISPOSITION

 

[11]           I would dismiss the appeal.

 

ANALYSIS

 

[12]           It is now well settled that professional disciplinary bodies and individuals with the authority to initiate proceedings before such bodies do not have immunity from suits for malicious prosecution.  See: Stoffman v. Ontario Veterinary Association [(1990), 1990 CanLII 6925 (ON SC), 73 O.R. 737; [1990] O.J. No. 1151 (Ont. Div. Ct.)].  The charges that were initiated and continued against Griffin by Arsenault for breach of the regulations in relation to the conduct of its police officers are, in effect, charges relating to discipline.

 

[13]           The nature of the tort of malicious prosecution is to remedy a situation where circumstances demonstrate the law has been set in motion with a wrongful intent. An assessment of whether liability for the tort has been proven is dominated by two opposite interests: the right of the individual to be free from the harassment of unjustified litigation or enforcement procedures and the importance of allowing duly authorized individuals to enforce the law coupled with the importance of encouraging individual citizens to assist in the enforcement of the law. See: Onile v. Toronto (Metropolitan) Police Force (2001), 2001 CanLII 24091 (ON CA), 195 D.L.R. (4th) 59; [2001] O.J. No. 90 (Ont. C.A.) at paras. 39-41. Also see: The trial judge’s reasons at para.37.

 

[14]           Arsenault, as the Chief of the City’s Police Department, was responsible for making rules and issuing orders consistent with the provisions of the regulations as he “ . . .  deemed expedient for the proper administration and discipline of the Force.”  He had the power to determine violations of the regulations or other breaches of discipline. See: Paras. 7(f) & (m) of the Regulations.  Therefore, in assessing whether Arsenault is liable to Griffin for malicious prosecution because he initiated and continued the discipline charges, the court was asked to adjudicate upon a situation which pitted the public interest of Arsenault being able to carry out his duties as entrusted to him by the residents of the City, against the private interest of Griffin that he be free from actions and procedures under the regulations which might have been pursued for purposes other than the proper administration of the Police Department.

 

[15]           To appreciate the nature of the discipline proceedings initiated against Griffin, it is helpful to review the wording of the charges laid against him pursuant to the police regulations of Summerside.  As stated by the trial judge at para.169 of his reasons, they read as follows:

 

PURSUANT to the Discipline Procedure set out in the Rules and Regulations for the Summerside Police Department, Acting Deputy Director of Police Services David Poirier charges that between October 19, 1998 and October 23, 1998 at Summerside, Prince Edward Island, Deputy Director of Police Services David Griffin did commit an Offence against Discipline, namely Breach of Confidence contrary to s. 29(e)(i) and s. 29(e)(iii) of the said Rules and Regulations in that he did release to the public media, the names of employees of the Summerside Police Services who had filed sexual harassment complaints within the Summerside Police Services.

 

PURSUANT to the Discipline Procedure set out in the Rules and Regulations for the Summerside Police Department, Acting Deputy Director of Police Services David Poirier charges that Deputy Director of Police Services David Griffin did commit offences against discipline, namely (a) Discredited Conduct, contrary to s. 29(a) of the said Rules and Regulations, and (b) Oppressive Conduct contrary to s. 29(b)(ii) of the said Rules and Regulations, in that:

 

(a)           Between June 1, 1997 and December 31, 1997 at Summerside, Prince Edward Island, he did sexually harass Cst. Deanna Holloway and C/M Susan Naud by creating and maintaining a hostile work environment by tolerating and encouraging sexually demeaning statements made by Anthony Hippenstall.

 

(b)          On or about July 19, 1997 at Summerside, Prince Edward Island, he did sexually harass Cst. Deanna Holloway by unwanted touching while she was on duty and he was in an apparent intoxicated state.

 

[16]           The elements a plaintiff must prove to make out the tort of malicious prosecution are well settled.  They are: (i) the person against whom the action for malicious prosecution is brought (the defendant) must have been responsible for the initiation and continuation of the proceedings against the plaintiff; (ii) the outcome of proceedings must have been favourable to the plaintiff; (iii) the defendant in instituting the proceedings must have been found to have done so without reasonable and probable cause; and (iv) the defendant, in instituting and continuing the proceedings must have done so with malice.

 

[17]           There is agreement that: (i) the discipline proceedings were instituted and continued by Arsenault despite the fact the charges themselves are laid on the information of Poirier; (ii) the proceedings against Griffin were decided in favour of Griffin; and (iii) that Arsenault at all material times was acting in his capacity as the Director of the City’s Police Department thus making the City vicariously liable for the conduct of Arsenault, should he be found liable. 

 

[18]           The essential nature of the issues in this appeal revolve around: (1) the trial judge’s finding that Arsenault did not have reasonable and probable cause to proceed with the charges against Griffin; and (2) the trial judge’s finding that, in the initiation and continuation of the proceedings against Griffin, Arsenault acted with malice.

 

[19]           Arsenault argues the trial judge made errors of law, mixed fact and law and errors of law in finding that Arsenault did not have reasonable and probable cause to initiate and continue the charges for breach of the regulations against Griffin.  Arsenault also argues the trial judge made an error of law and/or a palpable and overriding error in assessment of the evidence to reach the conclusion that in proceeding with and continuing the charges through to a formal hearing, Arsenault acted with malice.

 

ABSENCE OF REASONABLE AND PROBABLE CAUSE

 

[20]           To commence proceedings, whether they be in the nature of criminal proceedings or disciplinary proceedings like those in this case, the accuser must have reasonable and probable cause to believe the person being accused is probably guilty or responsible.

 

[21]           In Nelles v. Ontario1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170 (SCC) at para.43 Lamer J. adopted the definition of “reasonable and probable cause” set forth by Hawkins J. in Hicks v. Faulkner (1878), 8 Q.B.D. 167 at p. 171.   He defined reasonable and probable cause in the context of an action in malicious prosecution as follows:

 

... an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

 

[22]           Lamer J. went on to state that there is both a subjective and objective element in the proof of the absence of reasonable and probable cause.  The accuser must actually believe in the guilt of the accused and that belief must be reasonable in the circumstances of the case. Furthermore, Lamer J. affirmed that the determination of whether the prosecution lacked reasonable and probable cause to pursue the charges is a question of law because historically it has been an issue for the judge and not the jury to decide.

 

 

[23]           In Wilson v. Toronto (Metropolitan) Police Service[2001] O.J. No. 2434 (Ont. Sup. Ct.) Dambrot J., in the context of addressing a motion to strike a pleading that alleged malicious prosecution, explained the history behind the common law rule which established that the absence of reasonable and probable cause is a legal question. While the comments of Dambrot J. refer to a statutory provision in the Ontario Judicature Act specifically conferring power on the jury to determine whether there was reasonable and probable cause for instituting the action, his additional comments on the history of the common law rule are helpful. At paras. 40-42 he stated:

 

[40]         Reserving the determination of reasonable and probable cause in a malicious prosecution action to the trial judge predates s. 66 of the Judicature Act. It arose at common law in England out of a concern that juries would too readily find an absence of reasonable and probable cause whenever it appeared that an innocent person had been prosecuted. The perceived need for s. 66 apparently arose because the Divisional Court, in Harris v. Bickerton (1911), 24 O.L.R. 41, held that while the judge was required to decide whether the facts amounted to reasonable and probable cause, it was for the jury to decide any dispute about what those facts were. Section 66 made clear that all questions of fact and law necessary for the determination of the issue were to be decided by the trial judge.

 

[41]         While reserving the determination of the existence of reasonable and probable cause to the judge may seem anomalous, support for it may be found in Fleming, The Law of Torts, 9th ed. (1998). Fleming explains, at p. 683, that:

 

[e]xperience over many centuries has taught the lesson that in this action juries must be kept on a tight rein, and as early as 1599 it was regarded as unsafe to send the general issue to the ‘lay gents’, who are too easily swayed by the feeling that, merely because an innocent man has been subjected to prosecution, he deserves recompense. Not that the jury is entirely excluded from participation, because they will have to decide all preliminary questions of fact on which the existence of reasonable cause depends. [This, of course, was not the case in Ontario as a result of s. 66 of the Judicature Act.] It is at this point that most of the difficulties in malicious prosecution cases arise, because of the very substantial danger that unless strictly controlled, the submission of questions to the jury becomes a loophole through which the issue of reasonable cause slips out of the hands of the judge to whom it has been confided as a guardian of vital public policies.

 

 

[42]         In Canada, a different view of the wisdom of allowing juries to determine this issue has developed. In August 1982, the Uniform Law Conference of Canada approved a draft Uniform Evidence Act. The draft was based on the Report of the Federal/Provincial Task Force on Uniform Rules of Evidence, 1982 (The Macaulay Report). In chapter 36 of the Report, at pp. 475‑6, the members of the Task Force commented:

 

In addition to preliminary facts being decided by the judge, the case law has assigned him the responsibility of determining some of the ultimate facts, i.e. facts in issue in the case. The clearest example of this is the fact of malicious prosecution in which the question of whether the prosecutor had reasonable and probable cause is to be determined by the judge as a question of fact. While there is no doubt that it is for the judge to determine this issue (see Lister v. Perryman, and Herniman v. Smith, there is strong dicta in Lister v. Perryman to the effect that the question should be left to the jury (as it is in Scotland). Lord Devlin in Trial by Jury says that in practice this has proved ‘to be one of the most unpalatable mixtures of law and fact’, and he too favours handing the whole matter over to the jury.

 

[24]           The purpose of the rule was to avoid the situation where juries, sympathetic to the plight of a person found innocent, would not properly assess, either subjectively or objectively, whether the facts known to the prosecutor at the time of the commencement of the prosecution amounted to reasonable and probable cause for charges to be initiated and continued against the accused person. The common law rule permitted the jury to assess the factual underpinnings of the issue and mandated the judge to draw the inference as to whether the prosecutor actually believed the accused was probably guilty and whether it was reasonable to believe the accused was probably guilty. See: Clerk and Lindsell (19th ed.) at pp. 981-982.

 

[25]           There is no question that the determination of the issue involves the assessment of the evidence and finding of facts. Usually this is the role of the jury and not the trial judge. The rule, therefore, creates somewhat of an anomaly. 

 

[26]           Before Nelles, the Supreme Court of Canada summarized the essence of this anomaly in Archibald v. McLaren (1892), 1892 CanLII 16 (SCC), 21 S.C.R. 588 where Strong J. stated at pp. 591-593.

 

The well known case of Lister v. Perryman, L.R. 4 H.L. 521, had, as I have always supposed, settled the law as regards this class of action, to be that the question of reasonable and probable cause was, although a question of fact, one to be determined by the court and not by the jury. That in such cases the respective functions of the trial judge and jury were these, that whilst the jury were to find all the facts from which the inference was to be drawn, yet that the inference itself, deducible from those facts, was one to be drawn, not by the jury, but by the judge.

 

This is certainly most clearly laid down in the case of Lister v. Perryman, L.R. 4 H.L. 521, and the apparent anomaly and exceptional character of the rule by which a question of fact was thus withdrawn from the jury, who, generally speaking, were judges of the facts, and left to be decided by the court, occasioned expressions of surprise from some of the law lords, who, having been trained in courts of equity, or in the Scottish tribunals, had not been practically familiar with such questions.  It has, however, been suggested in a little book written by Mr. Stephens, on the law of Malicious Prosecutions, that this rule of Lister v. Perryman, L.R. 4 H.L. 521, was displaced by the decision in the case of Abrath v. The North Eastern Railway Company11 Q.B. D. 79, 440; 11 App. Cas. 247.  Having repeatedly read this last mentioned case, and having also read Mr. Stephens's book, I am clearly of opinion that there is no warrant for this proposition.  The judge is entitled, no doubt, to the utmost assistance from the jury in finding the facts, and he is entitled for this purpose to put questions to them in any form which his ingenuity may suggest, but he, and not the jury, is to make the deduction, and if he shifts the burden of doing so upon them the case is not properly tried.

 

In the late case of Brown v. Hawkes[1891] 2 Q.B. 718, decided in June, 1891, and therefore, long since the judgment of Armour C.J. in the present action which is now under appeal was pronounced, Lord Esher M.R. thus states the law:

 

The question whether there is an absence of reasonable and probable cause is for the judge and not for the jury, and if the facts on which that depends are not in dispute there is nothing for him to ask the jury, and he should decide the matter himself.  If there are facts in dispute upon which it is necessary he should be informed in order to arrive at a conclusion on this point, these facts must be left specifically to the jury, and when they have been determined in that way the judge must decide as to the absence of reasonable and probable cause.

 

[27]           Ultimately, the issue is left to the trial judge who must assess whether the accuser had reasonable and probable cause to believe the accused was guilty of the offences which the accuser initiated and continued. This involves not only an assessment of the actual belief of the accuser, but as well, an objective assessment of whether in all the circumstances known to the accuser at the time of initiating the charges, was that belief one which a prudent and cautious person could hold.  The trial judge must carefully assess all the circumstances and determine whether the accuser got it right when he decided to pursue the charges against the accused. 

 

[28]           In Dix v. Canada (Attorney General) 2002 ABQB 580 (CanLII); [2002] A.J. No. 784 (Alta.Q.B.),  Ritter J. outlines the essence of the task before the trial judge when there is no jury.  At para.354 he stated:

 

Where the issue is reasonable and probable cause, the difficulty is that there is room for differences of opinion. That is true, in my view, even as regards the objective element. Reasonable people may differ. Consequently, the Court should be reticent to substitute its opinion for that of the defendants. But as the Court is required to assess on an objective basis whether reasonable and probable cause existed, and as this is a question of law, the Court must determine if the defendants were correct, under the test, in their determination of whether reasonable and probable cause existed. ...

 

[29]           The trial judge has the delicate duty of balancing the need for deference toward the decision of the prosecutor and the requirement of insuring, within the parameters of the test, that reasonable and probable cause existed.  While reasonable people may disagree, the rule is clear that the role of the trial judge is to decide if the accuser was correct when he or she concluded there was reasonable and probable cause to believe that, in all the circumstances known to the accuser, a prudent and cautious person would believe the accused was probably guilty of the charges initiated against him.  The trial judge is required to assess the accuser’s judgment on the legal elements of the violation for which the proceedings are initiated as well as the facts as they existed at the time.  The trial judge must take into account the nature of the charges, the evidence put forward to support the charges, and the law applied to the facts found by the trial judge in the context of the charges.

 

[30]           The resolution of this issue involves weighing evidence, making factual conclusions and drawing the inference as to whether the prosecution had an actual belief in the guilt of the accused and if so, drawing the further inference as to whether that belief was reasonable in the circumstances.  In short, the trial judge applies facts (the circumstances as he found them to exist at the time the proceedings were initiated) to a legal standard (reasonable probable cause in the context of a malicious prosecution action).

 

[31]           Absent the anomaly of the common law rule, the issue would be one of mixed fact and law – the application of facts found or inferred to a legal standard.   In the result, however, the role of the trial judge is to draw an inference from all the evidence and particularly the facts known to the prosecutor at the time. Because of the rule, the inference drawn is legal as opposed to factual.

 

[32]           Because the inference is a legal one, this court in reviewing the trial judge’s decision on the issue is entitled to do so on the least deferential standard of correctness.

 

 

[33]           In determining that Arsenault initiated and continued the charges against Griffin in the absence of reasonable and probable cause, the trial judge was correct. The trial judge understood the legal test.  He understood that it required him to assess whether Arsenault not only had an actual belief in the guilt of Griffin for the disciplinary charges laid against him, but that this belief be a reasonable one.

 

[34]           The trial judge asked himself two questions: (1) in view of all the information which Arsenault and Poirier had in their possession could Arsenault conclude Griffin was probably guilty of the charges; and (2) what evidence was before Arsenault and Poirier which would lead the ordinarily, prudent and cautious person to conclude Griffin was probably guilty?  The trial judge considered the evidence in the context of these questions which represent the proper framework for drawing the inference as to whether Arsenault had reasonable and probable cause to believe Griffin was guilty of the charges.  The trial judge considered the law applicable to the charges and found that Arsenault acted in the absence of reasonable and probable cause. The inference he drew was supported by the evidence as well as the trial judge’s application of the legal elements relevant to the charges. 

 

[35]           Arsenault, and Poirier who was conducting the investigation on the instructions of Arsenault, consulted with and received opinions from the City solicitor throughout the course of the investigation and before the charges were formally laid against Griffin. Their counsel argued before this court, as they did before the trial judge, this fact provides a complete defence to the allegation by Griffin that Arsenault initiated and continued the proceedings against Griffin in the absence of reasonable and probable cause.

 

[36]           The trial judge addressed this issue at para.235 of his reasons.  He found that Arsenault, in making the decision to initiate and proceed with the charges, could not set up as a defence the fact that he had received advice from the City solicitor the charges were warranted.  In reaching this conclusion, the trial judge relied upon a statement in Proulx v. Quebec (Attorney General)2001 SCC 66 (CanLII), [2001] 3 S.C.R. 9; 2001 SCC 66 at para.33 where the court stated that a prosecutor cannot simply rely upon consultations with colleagues and superiors as a defence because it is implicit the prosecutor had more knowledge of the case and the ultimate decision to lay the charge is that of the prosecutor.

 

[37]           At paras. 153-168 of his reasons the trial judge reviews the evidence of the City’s solicitor.  This review confirms the solicitor was closely involved with the decision to initiate the proceedings against Griffin before the charges were laid, when the charges were laid, and during the disciplinary hearing conducted by the independent panel. 

 

 

[38]           At para.162 of his reasons the trial judge reviewed the fact that the solicitor did research and gave specific advice as to whether the conduct of Griffin at the fair ground and around the office in his reaction to the remarks of a civilian employee amounted to sexual harassment.  The trial judge concludes that the solicitor’s advice was that the charges were “appropriate.”  The trial judge accepted that the solicitor gave such advice, and the trial judge went on to make the statement that it remained for him to decide if the advice given was correct because the trial judge was of the view that the correctness of the advice went to reasonable and probable cause.   He stated: “Whether those conclusions were correct goes to the very issue of reasonable and probable cause.”

 

[39]           The appellants argue that it is not the role of the trial judge to parse the opinion of the legal counsel consulted to determine if the opinion was correct in law.  With respect, I am unable to agree.  The trial judge was indicating that a further analysis was required by him to assess whether, considering  all the circumstances, including the fact that Arsenault proceeded with legal advice, was it reasonable for Arsenault to conclude in all the circumstances to believe that Griffin was guilty of the disciplinary charges. In determining whether or not the disciplinary charges were launched in the absence of reasonable and probable cause, the trial judge was deciding a question of law. Therefore, he was obligated to determine if the accuser, Arsenault, was correct in the sense that a prudent and cautious person informed of all the circumstances would believe Griffin to have been probably guilty. This task necessarily involved a review of the solicitor’s advice as well as the other circumstances.

 

[40]           The fact that Arsenault and Poirier consulted counsel was only one factor to be considered by the trial judge in determining whether Arsenault had reasonable and probable cause to believe that Griffin was probably guilty of the charges.

 

[41]           In Hofley v. Radio Refineries Ltd. 1937 CarswellMan 95[1937] 3 D.L.R. 63 (Man K.B.) at para.9 Adamson J. stated:

 

The prosecutor cannot shelter behind the advice of counsel unless there is complete and full disclosure of all the relevant facts and details, whether pointing to guilt or innocence: Olds v. Paris[1918] 2 W.W.R. 682, 25 B.C.R. 453Jewhurst v. United Cigar Stores Ltd. (1919), 46 ).L.R. 180.  Also see: Ibbotson v. Berkley[1918] B.C.J. No. 20[1918] 3 W.W.R. 1018Keith  v.  Alton Shoe Co. and Pomer [1930] O.J. No. 17038 O.W.N. 59Raymond v. Thomas 1920 CarswellNB 38; (1920), 1920 CanLII 388 (NB CA), 55 D.L.R. 394 (N.B.S.C. Appeal Div.).

 

 

[42]           In his analysis of the evidence the trial judge was particularly concerned with what he considered to be an important fact which had not been disclosed by Arsenault or Poirier to the City’s solicitor.  That was the fact that when Griffin was tasked by Arsenault to investigate a civilian employee of the police department for sexually explicit comments made to a female officer, Griffin recommended dismissal of that employee.  The trial judge considered this fact constituted evidence that  Griffin did not condone the conduct of the civilian employee, and it was particularly relevant to the charges against Griffin that he allowed similar conduct to take place under his watch. The trial judge reasoned that if this piece of information had been passed on to the City’s solicitor, his opinion may have been different.

 

[43]           Another piece of evidence referred to by the trial judge and not brought to the attention of the city solicitor was the fact that after the comments of the civilian member of the department came to light, Arsenault ordered Poirier to expand his investigation into the presence of sexual harassment throughout the entire police department. It appears, however, the investigation focused only on the conduct of Griffin and not the entire department.  Arsenault initiated the investigation under the broader guise of having the entire department investigated when in reality it was a further investigation focusing solely on Griffin.

 

[44]           The reasons of the trial judge disclose he engaged in an assessment of the evidence and found the facts necessary to set the table for the inference drawing process which he was mandated to undertake.  He considered the regulations in effect at the time, the nature of the charges from a legal perspective and the facts which would give rise to them. He drew the inference that Arsenault’s actual belief or honest belief in the probable guilt of Griffin was not reasonable in the circumstances as Arsenault knew them to be at the time he initiated the proceedings against Griffin.

 

[45]           In conclusion on this issue, I would not interfere with the trial judge’s finding that Arsenault acted without reasonable and probable cause in charging Griffin for breach of the regulations.

 

MALICE

 

[46]           The fourth element which must be proven by a plaintiff alleging malicious prosecution is proof of malice on the part of the defendant or proof that the defendant acted for an improper purpose in initiating and continuing the charges.  That is, a purpose other than the proper administration of justice.  Therefore, Griffin carried the burden of proving on the civil standard of proof that Arsenault, by initiating the charges under the regulations and continuing the proceedings on those charges, did so for a purpose other than the proper administration of the City’s police department.

 

[47]           In Nelles Lamer J. noted, relying on Fleming The Law of Torts, that malice is equivalent to improper purpose and it has a ‘wider meaning than spite, ill will, or a spirit of vengeance,...’ See: Nelles at para.45.

 

 

[48]            In Oniel v. Toronto (Metropolitan) Police Force (2001), 195 L.R. (4th) 59; 2001 CanLII 24091 (ON CA), [2001] O.J. No. 90 (Ont.C.A.) Borins J.A. at para.45 set forth the full passage from Fleming and I do so here as it is helpful:

 

‘Malice’ has proved a slippery word in the law of torts, and should long have been replaced, in this context just as in defamation, by ‘improper purpose.’  At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause.  ‘Malice’ has, therefore, a wider meaning than spite, ill‑will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage.  Indignation or anger aroused by the imagined crime is, of course, not sufficient because, far from being a wrong or devious motive, it is one on which the law relies to secure the prosecution of offenders.  Nor is it reprehensible that the prosecution was launched in order to pave the way to a civil action in conformity with the requirement that a felon must first be prosecuted.  On the other hand, the paramount purpose of securing the ends of justice is incompatible with lack of honest belief in the guilt of the accused, which is thus at once conclusive of the improper purpose of the proceedings and want of reasonable cause.  Other examples of an improper purpose are prosecutions instigated with a view of extorting money, closing the plaintiff's mouth in another legal proceeding or punishing him for having given evidence against the police on a previous occasion, blocking a meeting of shareholders, and recovering a debt or property in situations where recourse should properly be had to civil instead of criminal process.

 

                                                                    . . . . .

 

The burden of proving malice lies on the plaintiff, and may be discharged by showing either what the motive was and that it was improper, or that the circumstances were such that the prosecution can only be accounted for by imputing some wrong and indirect motive to the prosecutor.  Occasionally it has been somewhat loosely said that absence of reasonable cause is evidence of malice, but that malice is never evidence of want of reasonable cause.  Neither proposition is universally correct.  Proof of a particular fact may supply evidence on both counts, such as lack of honest belief in the guilt of the accused or evidence that the prosecution was set on foot in the complete absence of, or upon ludicrously and obviously insufficient, information. On the other hand, evidence that the prosecution was animated primarily by a desire to injure the plaintiff would not furnish even a prima facie case of absence of reasonable cause; and conversely evidence that the defendant had too hastily formed a belief in the guilt of the plaintiff on unreasonably insufficient grounds, does not ordinarily suffice to warrant an inference of malice.

 

 

[49]           Also in Oniel,  Borins J.A. cited and quoted further authorities clarifying how malice is proven and demonstrating how improper motive is evidence of malice.  At paras. 45 and 46 he stated as follows:

 

[45]         In Clerk & Lindsell on Torts, 18th ed., 2000 at 841‑842, Fleming's analysis of malice is echoed.  See, also Rainaldi, ed., Remedies in Tort, Vol. 1, 15‑30 to 15‑33, where it is stated at 15‑30:

 

Malice in fact must be proved by the plaintiff; this can be done in one of two ways:  (i) by showing what the motive was and that it was improper; or (ii) by showing that the circumstances were such that prosecution can only be accounted for by implying some wrong or indirect motive to the prosecutor, although it may be impossible to say what it was.  Where an inference of malice is drawn, it should be made from the conduct of the defendant at the time he instituted proceedings. [Emphasis added.]

 

[46]         In discussing improper motive as evidence of malice the authors of Clerk & Lindsell on Torts, 18th ed., 2000, state at p. 841:

 

Improper motives "Malice in this context has the special meaning common to other torts and covers not only spite or ill‑will but also improper motive."  The proper motive for a prosecution is, of course, a desire to secure the ends of justice.  If a claimant satisfies a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was, he proves his case on the point.  Mere absence of proper motive is generally evidenced by the absence of reasonable and probable cause.  The jury, however, are not bound to infer malice from unreasonableness; and in considering what is unreasonable they are not bound to take the ruling of the judge.

 

[50]           At para.59 Borins J.A., discussing what should have been included by the trial judge in a charge to the jury on the issue of malice, made the following statement:

 

 

The charge would have benefited from a general instruction that malice may be proved by direct evidence or that it may be inferred from circumstances such as evidence of lack of reasonable and probable cause, or the defendant's bad faith, or the absence of an honest and sincere belief by the defendants that the prosecution of the plaintiff, or its continuation, was justified by the existing facts and circumstances.  Specifically, as I have indicated, the jury should have been told about the inference of malice available from their finding of the absence of reasonable and probable cause for continuing the prosecution.  The jury also should have been told that malice could be inferred if they found that the respondents acted knowingly, or with reckless indifference, to evidence of the appellant's innocence. Without a definition of malice that included the possibility of inferring malice in this manner, it is possible that the jury might have been misled into thinking that they could find malice only by discovering, or pointing to, the improper motive of the respondents, even if they felt the respondents knew that the appellant was probably innocent, or were reckless as to this fact.  (Emphasis added)

 

[51]           Malice can be proven by showing that a specific motive was improper or by establishing that the circumstances of the prosecution and continuation of the proceedings could only be accounted for by implying some wrong or improper motive to the actions of the accuser.  In some cases this inference may be made from the want of reasonable and probable cause in bringing the proceedings.  In other cases it may be more appropriate to review all the circumstances, including the finding of a lack of reasonable and probable cause, and decide whether the only inference is that the action could have been accounted for by implying some wrong or improper motive to the defendant.

 

[52]           As Borins J.A. points out above, in some cases it might be appropriate to infer malice from the absence of reasonable and probable cause.  There is debate as to what is the appropriate case.  See: Miazga v. Kvello Estate 2007 SKCA 57 (CanLII); [2007] S.J. No. 247  - leave to appeal to the Supreme Court of Canada granted. See:  [2007] SCCA No. 506.

 

[53]           This is not an issue in the case at Bar because, after finding that Arsenault proceeded and continued the proceedings against Griffin in the absence of reasonable and probable cause, the trial judge did not infer malice from this finding alone.  He went on to review and analyze all the evidence, finding other facts from which he drew the inference that Arsenault acted for an improper purpose and thus acted with malice.

 

[54]           In the circumstances of this case, the core meaning of malice would be the use of the discipline procedures provided for in the regulations for an improper purpose;  the proper purpose of the discipline procedures being to sanction the conduct of a police officer who is in violation of the regulations.  Therefore, if the evidence establishes a direct motive other than proper use of the discipline procedures, or the evidence can support the inference that the use of the discipline procedures by Arsenault was for a purpose other than the necessary disciplining of Griffin, the latter will have proven that the former acted with malice.

 

 

[55]           The primary issue or question which Arsenault and the City have with the trial judge’s finding that Arsenault acted with malice is that the trial judge either diluted the test for proof of malice or improperly applied that test. The trial judge did state he was “lowering the bar” from the threshold of proof that was required in considering whether a Crown prosecutor acted with malice or was liable for malicious prosecution.  Arsenault and the City also argue the trial judge erred in holding that proof of recklessness, by itself, was sufficient to prove malice. 

 

[56]           In paras. 27 to 40 the trial judge discusses the standard of proof to be met by Griffin in establishing liability for malicious prosecution.  He notes that in Nelles the Court set a very high threshold.  He also noted the argument put forward by Griffin at trial and put forward to this court on appeal, urging the court to adopt a lower threshold than that adopted by the Court in Nelles and also in Proulx, because the prosecution against Griffin was not a criminal prosecution brought by the Attorney-General.  The trial judge concluded the answer did not lie in modifying the law as set forth by the Supreme Court of Canada in these two cases.  He held that the burden of proof – the civil standard on a balance of probabilities – is discharged by considering all the circumstances of the case.

 

[57]           At para.233 of his reasons, the trial judge reaffirmed his position that if Griffin were to succeed in his suit he had to prove malice on a balance of probabilities.  He stated:

 

However, as I have referred to several times earlier, what Griffin must show in order to succeed is malice in the form of a deliberate and improper use of office and he must prove this on the balance of probabilities.

 

[58]           The trial judge contrasted this case, a private disciplinary proceeding, with a failed criminal prosecution. He followed his discussion at that point with para.236 of his reasons where he stated:

 

[236]      While the Supreme Court of Canada has raised the bar in order to be successful in the case of malicious prosecution arising out of a criminal proceeding, I am not convinced that the bar is quite as high when the circumstances giving rise to the malicious prosecution stem from a private disciplinary hearing.

 

[59]           After reviewing some 43 facts which the trial judge found from the evidence, he was of the opinion that in cases of a private prosecution similar to a disciplinary proceeding, the burden on a plaintiff remains high but not quite as high as that when the action for malicious prosecution is founded on a failed criminal prosecution.  He reasoned from the decision in Proulx that in finding the level of facts necessary to establish proof of malice on a balance of probabilities, the court is to take into account all the circumstances, which would include the nature of the relationship which gave rise to the proceedings on which the action is grounded.  At para.240, the trial judge stated:

 

 

[240]      As I said earlier, the Supreme Court of Canada has set the bar high for a successful case of malicious prosecution arising out of a failed criminal case. I also stated my belief that the bar is not quite as high for a case arising out of a private disciplinary hearing. I say that because in Proulx the court clearly states at para. 37:

 

In the final analysis, it is the totality of all the circumstances that are to be considered in cases of this kind.

‘Cases of this kind’ I take to mean cases of malicious prosecution. I note the Supreme Court did not restrict its analysis to the evidence, but, rather, to the "circumstances" of the case. That makes sense because the Supreme Court contemplated there may be other fact situations arising out of circumstances other than a criminal proceeding which may amount to a malicious prosecution. Indeed, the court in Proulx went on to say in para. 44:

... Unless Nelles is to be read as staking out a remedy that is available only in theory and not in practice, the appellant was entitled to hold the prosecutor accountable in the civil action brought following the abusive prosecution.

 

The burden on a plaintiff may be high, but it is not impossible. Arsenault's actions, when viewed in totality, lead me to infer that he intentionally misused his office for an improper purpose. That improper purpose was allowing the charges against Griffin to go forward before Murray in the face of all the facts as I have found them. In doing so, he acted with malice. In my view, he was reckless in the manner in which he proceeded with the charges. He disregarded information which would have cautioned him not to proceed. For example, he knew the Sexual Harassment Policy Statement was not in force at the time of the allegations against Griffin, and even if it were, the Policy did not create an offence. He possessed information about Griffin's lack of toleration of Hippenstall which he kept to himself. He knew of Holloway's initial reluctance to go forward. He also knew Griffin's hearing before Plamondon was still pending. These are but examples. I referred to many more in para. 237.

 

[60]           At para.241 of his reasons, the trial judge concluded that the only inference he could draw from the conduct of Arsenault in initiating and continuing the charges against Griffin was that Arsenault acted for a purpose that was improper in relation to the use of his office.

 

[61]           At para.45 of Nelles, Lamer J. stated that in proving malice in an action against a Crown prosecutor, the plaintiff would have to prove:

 

 

...malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of ‘minister of justice.’  In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice. In fact, in some cases this would seem to amount to criminal conduct. (See for example breach of trust, s. 122, conspiracy re: false prosecution s. 465(1)(b), obstructing justice s. 139(2) and (3) of the Criminal Code, R.S.C., 1985, c. C‑46.) Emphasis Added

 

[62]           Therefore, according to Lamer J., to prove malice against a Crown attorney, a plaintiff would have to prove the Crown attorney, as an agent of the Attorney-General, perpetrated a fraud against the criminal justice system. This is a very high threshold, and one which is necessary to give effect to the public policy reasons upon which Lamer J. based his decision that Crown immunity from actions of malicious prosecution was no longer appropriate.

 

[63]           In a civil action like an action based on the tort of malicious prosecution, there is one standard of proof.  The plaintiff must prove all elements of the tort on a balance of probabilities.  The plaintiff must prove that it is more likely than not the facts necessary to prove each element of the tort did occur.

 

[64]           In F.H. v. McDougall2008 SCC 53 (CanLII), the Supreme Court of Canada recently confirmed there is only one standard of proof in civil cases. The Court has clearly rejected any notion there is a shifting standard of probability depending on the gravity of the allegations and the seriousness of the consequences.

 

[65]           At para. 40 Rothstein J., writing for the court, stated:

 

[40]         Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow.

 

[66]           As Rothstein J. is careful to point out, probabilities, improbabilities, seriousness of the allegations or consequences must be taken into account by the trial judge without deviating from the standard of proof.  The trial judge must always carefully scrutinize the evidence regardless of the seriousness of the case or the consequences.  There is no objective measure of the sufficiency of the evidence.  If the evidence is clear and cogent to a trial judge, a plaintiff will have discharged the burden of proof on a balance of probabilities.  There will be cases where events are probable and those where the event is highly improbable. It is for the trial judge to decide which is so.  Again, there is no rule of law which dictates a formula for degrees of probability.  There is one evidentiary rule of law regarding the burden of proof in civil cases and it is that a plaintiff must prove his or her case on a balance of probabilities.  See: F.H. v. McDougall at paras. 45 to 48.

 

[67]           The trial judge was unwavering in his stance that he was required to apply the civil standard of proof.  He stated on more than one occasion that Griffin had the burden of proving all the elements of the tort of malicious prosecution on a balance of probabilities.  The trial judge was cognizant of the law which directed that where the tort is alleged against a Crown attorney, the plaintiff must prove conduct tantamount to a fraud on the criminal justice system to prove malice. 

 

[68]           The trial judge considered the public policy reasons stated in Nelles requiring a high threshold when the action is founded on prosecutions initiated by Crown attorney, and he concluded in private prosecutions, where the same public policy reasons are not applicable, such a high threshold, that is, proof tantamount to fraud is not required. In stating that he was “lowering the bar” the trial judge was not deviating from the application of the proper standard of proof.  He was not misapplying the test for proof of malice.  He gave clear indications throughout his reasons he understood the test. The trial judge was simply stating that the broad public policy consequences of finding of liability in a private prosecution is not the same as those which flow from finding a Crown attorney liable for the tort. The trial judge was aware of the relative seriousness and consequences of the proceeding which gave rise to the action in the case at Bar as contrasted with a similar action commenced against an officer of the Crown, yet he did not waiver from imposing upon Griffin the burden of proving each element of the tort on a balance of probabilities.

 

[69]           I find considerable comfort in taking this position by the very thorough review of the evidence undertaken by the trial judge on all elements of the tort and in particular the element of malice.  His review is not simply a rote summary of the evidence but is a thoughtful analysis from which he found certain facts and formed the opinion or drew the inference that Arsenault acted for an improper purpose.

 

[70]           Another aspect of the test as stated by the trial judge which Arsenault takes issue with is that the trial judge based his finding of malice solely on his finding that Arsenault acted recklessly in the initiation and continuation of the charges against Griffin.  This argument is based on the trial judge’s statement in para. 240 of his reasons when he stated:

 

In my view, he was reckless in the manner in which he proceeded with the charges.  He disregarded information which would have cautioned him to proceed.

 

 

[71]           In Proulx, at para.35, the Supreme Court of Canada made it clear that if an action in malicious prosecution is to be successful, a plaintiff must prove more than recklessness or gross negligence. Nevertheless, and with respect, I am unable to agree with the position taken by Arsenault and the City.   The trial judge did not base his entire conclusion that Arsenault acted for an improper purpose solely on the finding that Arsenault was reckless.  He considered all the evidence and found many facts, other than recklessness, which in his view were indicators of malice.

 

[72]           As a factor, but not the sole factor, consideration by a trial judge as to whether an accuser was reckless or grossly negligent, is not entirely misplaced in considering whether the evidence supports drawing the inference the accuser acted with malice or for an improper purpose.  Recklessly disregarding advice that a further investigation would yield additional information in relation to the charges to be laid, can support an inference of malice, in the same manner that the continuation of a prosecution when evidence with respect to the reliability of the complainant’s evidence is “deliberately or recklessly ignored,” may also support an inference of malice. See: Oniel at paras. 49, 51 & 59.

 

[73]           The trial judge was concerned that further investigation into the nature of the complaints leveled against Griffin should have been pursued and Arsenault was reckless in not pursuing them. Also, the evidence of the complainants that they did not wish to proceed with the complaints was overlooked by Arsenault, and he proceeded in face of their initial protestations that they did not want the matter to become a public issue.  This is an indicator there were means available to insure the police department was not rife with words and gestures of sexual harassment, other than the prosecution of an officer for alleged violations of the regulations.  Arsenault also ordered the investigation by Poirier to encompass the entire police department and whether sexual harassment was a problem throughout the entire department.  For some reason, Poirier restricted this global investigation to the actions of Griffin, and Arsenault was careless, if not reckless, in insuring that the investigation adhered to its initial objectives. Finally, Arsenault did not provide the City solicitor with all the facts, and he withheld some that could have served to mitigate the charges against Griffin.  All of these facts demonstrate recklessness on the part of Arsenault and coupled with the other indicators of malice found by the trial judge, clearly support his drawing the inference that Arsenault acted for an improper purpose.

 

[74]           As noted above, proof of malice can come from proof of the actual improper motive of the accuser or, by establishing the circumstances were such that a prosecution can only be accounted for by imputing some wrong or improper motive to the accuser.  It must be the only inference the trial judge is of the opinion he or she can draw from the evidence.  In the case at Bar the trial judge drew that inference.  He stated at para.241 of his reasons that he could only account for the conduct of Arsenault by “implying an improper use of his office.”

 

 

[75]           This does not mean that the evidence as viewed by another trier of fact or indeed by an appellate judge supports only one inference.  However, it does mean that the trial judge had to be satisfied that the only inference he could draw from the facts was that the accuser acted for an improper purpose.  This court is not free to substitute its inference for that of the trial judge by reviewing the evidence and concluding there might be another inference which could be drawn from the evidence.

 

[76]           Housen v. Nikolaisen 2002 SCC 33 (CanLII); [2002] 2 S.C.R. 235 makes it very clear that a trial judge’s factual inferences are entitled to the utmost deference.  That is, absent palpable and overriding error an appellate court cannot interfere.  Unless the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, an appellate court is not to interfere.  While an appellate court has the jurisdiction to find that a factual inference made by the trial judge is clearly wrong, where there is evidence to support the inference made an appellate court would have difficulty interfering absent palpable and overriding error.  See: Housen at paras. 21 and 22.  Furthermore, Iacobucci and Major JJ. writing for the  majority in Housen stated, in part at paras. 22 and 23:

 

[22]         As stated above, trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion. Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence.

 

[23]         We reiterate that it is not the role of appellate courts to second‑guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference‑drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts. (Emphasis added)

 

 

[77]           In finding malice the trial judge was called upon to weigh the evidence and then undertake the inference drawing process of forming an opinion based on the facts he found.  The process of drawing an inference is the process of reaching a conclusion as a matter of opinion, that Arsenault in initiating and continuing the charges against Griffin, acted to achieve a purpose that was inconsistent with the proper use of his office as the director of the city’s police department. This is a factual conclusion which, if supported by the evidence, is beyond the reviewing jurisdiction of this court, absent a palpable error in the facts found or in the inference drawing process.

 

[78]           That an appellate court might form a different opinion or reach a different conclusion as the result of the inference drawing process is immaterial to a review of the trial judge’s decision.  It is only when there is a palpable and overriding error in the facts found or in the inference drawing process that the appellate court can interfere.  Here there was no such error.  Also, with respect to the inference drawing process itself, it matters not that the appellate court may have a different opinion as to the conclusion to be drawn from the facts found.  The opinion reached by the trial judge that the only conclusion or inference he could draw from the facts was that Arsenault had acted for an improper purpose must be palpably wrong before this court can interfere.  It was not, and I would not interfere.

 

[79]           In conclusion the appeal is dismissed.  All issues respecting costs on the appeal and at trial will be reserved until the cross-appeal is decided by the court.

 

CROSS-APPEAL

 

[80]           Griffin has filed a cross-appeal from the order of the trial judge respecting costs.  It is on various grounds which I will not address at the present time. At the conclusion of the hearing of the appeal, the court ordered, with the consent of all the parties, that the merits of the cross-appeal, as well as any preliminary issues affecting its status, would be addressed and adjudicated upon by the court after the decision was delivered on the appeal.

 

[81]           The parties should immediately contact the deputy registrar to arrange a mutually convenient date to argue the cross-appeal and to make submissions with respect to costs on the appeal, the cross-appeal and at trial.

 

 

                          _________________________________________

                                                                     Mr. Justice J.A. McQuaid

 

 

I AGREE:  ________________________________

      Madam Justice M.M. Murphy

 

 

 

JENKINS C.J.P.E.I. (Dissenting):

 

[82]           I have had the opportunity to read the reasons of my colleague McQuaid J.A.

 

[83]           I regret that I do not agree with his conclusions with respect to the two principal issues that are before the Court.  In my opinion, the appeal should be allowed.

 

1.         INTRODUCTION AND SUMMARY OF DECISION

 

1.1      Identification of errors

 

[84]           In my respectful opinion, the trial judge made three reversible errors:

 

  1.       He misinterpreted and misapplied the legal test for the determination of reasonable and probable cause; and the role of the trial judge in the objective evaluation of reasonableness.

 

  1.       He misinterpreted and misapplied the legal test for what constitutes malice; and based is conclusion on recklessness being a constituent element or the basis for malice;

 

  1.       In applying the legal test for proving malice by an inference, he either misapplied the test, which requires it be shown that the circumstances were such that the prosecution canonly be accounted for by implying some wrong or indirect notice to the prosecutor, or he reached a conclusion that was clearly wrong, unreasonable or unsupported by the evidence.

 

The first two errors are errors of law; the third could have resulted from either an error of law in the application of the legal rule or errors of fact in the analysis and conclusion.

 

[85]           In view of the requirements for the tort of malicious prosecution, that the plaintiff prove both the absence of reasonable and probable cause and that the prosecution was accentuated by malice, any one of the three mentioned errors standing alone is a basis upon which the appeal should be allowed.

 

1.2      Approach to review

 

 

[86]           In my review, I have adopted and worked from the trial judge’s statement of the background events and findings of fact.  I also adopt my colleague’s introduction and summary of the facts and circumstances of the case and his introduction of the law of malicious prosecution that appears at paragraphs 1-26 and 46-49 of his judgment.

 

[87]            To the facts as found by the trial judge, I have applied the common law principles of malicious prosecution, which are age-old and well-established (see Fleming: The Law of Torts 9th Edition, Ch.27, pp.673-686); for reasonable cause see also Hicks v. Faulkner (1878), 8 Q.B. 167, at 171; and for malice also Brown v. Hawkes[1891] 2 Q.B. 718 at 722 -723, as adopted and applied in Canadian jurisprudence throughout the twentieth century (Meyer v. General Exchange Insurance Corp. 1962 CanLII 51 (SCC), [1962] S.C.R. 193; Nelles v. Ont.1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170 (SCC)  at paras. 42-47; Proulx v. Quebec (Attorney General)2001 SCC 66 (CanLII), [2001] 3 S.C.R. 9 SCC.   In accordance with legal principles, I have kept in mind the overriding policy considerations upon which the tort of malicious prosecution was developed and applied in old English law and later on in modern Canadian jurisprudence.  I have followed and applied the common law directions for how to prove the absence of reasonable cause, what constitutes malice, and how to prove malice by inference.

 

[88]           The trial judgment contains extensive commentary as to how the law of malicious prosecution is to be applied to the totality of circumstances; and places particular emphasis on the fact that the plaintiff’s claim followed an internal police department discipline proceeding rather than a public criminal prosecution.

 

[89]           I attempted to favourably reconcile the trial judge’s commentary, distinctions, and conclusions with the universally accepted legal principles, but I could not.  Instead, I found the judgment is based on faulty premises regarding fundamental matters: (1) regarding reasonable and probable cause, the legal test for a trial judge’s evaluation of reasonable cause and application of the test; and (2) regarding malice, (a) what constitutes malice and (b) the requirement for proof of malice by an inference.  The analysis and conclusions in the judgment cannot be reconciled with proper interpretation and application of the law of malicious prosecution. 

 

1.3      Standard of review

 

[90]           The Supreme Court of Canada gave full direction on standard of review applicable to the various questions involved in this appeal in Housen v. Nikolaisen2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235.  I have followed that direction.  I have respected the presumption of fitness regarding the trial judgment in a civil case and that in appellate review, deference is applied accordingly.

 

 

[91]           On pure questions of law, the standard of review is correctness.  The standard of review of findings of fact and of inferences drawn from findings of fact is palpable and overriding error. Review of questions of mixed fact and law involves application of a legal standard to a set of facts is involved, and so the appropriate standard of review for such questions is sometimes difficult to determine. As a brief summary of the applicable criteria:

 

  1.       Where the error does not amount to an error of law, the deference standard applies.  Where the trier of fact has considered the evidence that the law requires he consider and still comes to the wrong conclusion, the review occurs on the deferential standard.

 

  1.       Where, however, the error rests on an incorrect statement of the legal standard, can be traced to an error in the characterization of the legal standard, to the application of an incorrect legal standard, to a failure to consider a required element of a legal test, or to a  similar error in principle, such error can be characterized an error in law, and be subject to review on the standard of correctness.

 

Appellate courts must be cautious in finding such an error to be an error in law, and where the legal principle is not readily extricable, the matter is subject to review on the standard of deference (Housen, paras.19-37).

 

[92]           The Supreme Court of Canada has given related directions, which are applicable here:

 

–          A trial judge’s inference of fact and findings of fact should be accorded a similar degree of deference.  Where a finding of fact is not based on a misapprehension of the evidence, the appellate review should be limited to instances where there is a manifest error: Geffen v. Goodman Estate1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353 (SCC).

 

–          It is wrong for an appellate court to set aside a trial judgment where the only point in issue is the interpretation of the evidence as a whole.  It is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence: Métivier v. Cadorette1975 CanLII 2 (SCC), [1977] 1 S.C.R. 371. 

 

–          The duty of the appellate court is not to retry the case or to intervene to substitute its interpretation of the evidence for that of the trial judge, unless there is an obvious error in the reasons or conclusions of the judgment under appeal: Dorval v. Bouvier1968 CanLII 3 (CSC), [1968] S.C.R. 288 at p.293.

 

 

–          An appellate court is only permitted to interfere with factual findings when ‘the trial judge has shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence:  H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25 (CanLII), at para.4 considered and approved in F.H. v. McDougall2008 SCC 53 (CanLII), [2008] S.C.J. No. 54 (SCC).  

 

2.         REASONABLE AND PROBABLE CAUSE

 

2.1       Law of reasonable and probable cause

 

[93]           According to Fleming (at p.680):

 

Reasonable cause

 

Malicious prosecution postulates two fault requirements: the proceedings complained of must have been instituted without reasonable and probable cause and for an improper purpose.  Both must be satisfied because the prosecution of persons reasonably and honestly suspected of crime is considered of greater social importance than disapproval of unworthy motives.

 

Reasonable and probable cause has been defined as ‘an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.’ (Hicks v. Faulkner (1878) 8 QBC 167 at p.171 (Hawkins J.)) This formula bears some resemblance to that of reasonable care in negligence, but differs from it in two important respects.  For not only, as we shall presently see, is this question entrusted to the judge instead of the jury, but it contains both an objective and subjective element.  It is not enough that a discreet and reasonable person would have believed in the guilt of the accused, unless the defendant himself honestly shared it.  There must be both actual and reasonable belief. (Haddrick v. Heslop (1848) 12 QB 267116 ER 869Commonwealth Life Assurance v. Brain (1935) 53 CLR 343.)

 

(i)         Essential elements for malicious prosecution

 

[94]           The element of reasonable and probable cause is usually considered first, before malice is considered (Fleming at p. 674).   That is because proof of both elements is required for a successful case of malicious prosecution.  Even malice does not matter if, despite malice and making due allowance for it, reasonable and probable cause is proven: DeGrouwe v. Wytinck[1952] 4 D.L.R.  326 (Man.C.A.).

 

 

[95]           Salmond & Heuston on the Law of Torts 21st Edition (Stewart & Maxwell 1996) at pp.394-396 treats want of reasonable and probable cause succinctly:  No action lies for the institution of legal proceedings, however malicious, unless they have been instituted without reasonable and probable cause (Williams v. Taylor (1829) 6 Bing. 183).  The burden of proving absence of reasonable and probable cause is on the plaintiff, who thus undertakes the notorious difficult task of proving a negative.  Reasonable and probable cause means a genuine belief, based on reasonable grounds, that the proceedings are justified.  The defendant is not required to believe that the accused is guilty: it is enough if he believes there is reasonable and probable cause for a prosecution.  He need only be satisfied that there is a proper cause to lay before the court.  The question is of whether the accuser’s belief was based on reasonable grounds is to be determined by the facts actually known to the defendant at the time when he laid the information and proceeded with the prosecution, not to the facts as they actually existed.  Facts unknown to the prosecutor do not prevent the facts which were known to him from constituting reasonable and probable cause.

 

(ii)        Conclusion of law for the judge

 

[96]           The question of the existence of reasonable and probable cause is for the judge, not the jury (after findings are made regarding facts in dispute).  Within this exercise the ultimate question involves a conclusion of law, and in the law of malicious prosecution this question is for the judge and not the jury to decide: Renton v. Gallagher (1910), 19 Man. R. 478 (C.A.)  at 485 and 488).  Although it involves a question of fact, it is to be treated the same way as if it were a question of law: Glinski v. McIver[1961] A.C. 726 H.L.  This accords with the policy reasons at play in malicious prosecution cases.  A defendant in a case of malicious prosecution is entitled to have the protection of the judge’s finding as advised in Brown v. Hawkes. Allowing the jury to decide the question was characterized as amounting to abdication of a judge’s function: Renton v. Gallagher, at 489.  The policy reason for this approach is explained by Viscount Simonds in Glinski v. McIver at (pp.741-742):

 

... For, as was forcibly pointed out, in such cases as these the liberty of the subject is involved on the one side, and on the other the risk that the citizen in the performance of his duty may be embarrassed if a jury too readily gives a verdict in favour of a plaintiff who has been prosecuted and acquitted.  For that reason it has throughout the centuries been the law that the question whether there was reasonable and probable cause for a prosecution has been left in the hands of the judge.  And still today it appears to be the unanimous opinion of those who have greater experience of such trials than I, that this need for the judge to hold the reins is as great as ever, ....

 

 

 

(iii)      Assessment of reasonable cause

 

[97]           Fleming (at p.681) states this guidance for the exercise involved in assessing reasonable cause:

 

However honest the defendant’s subjective belief in the guilt of the accused, it must be based on evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution.  Only limited guidance can be furnished on this score, since we lack precise and universal criteria by which to measure the degree of caution and prudence that a reasonable person should observe in the evaluation of infinitely variable incriminating data.  This much however is clear, that he should take reasonable steps to inform himself of the true state of the case instead of acting upon mere imagination and surmise, consider the matter in the light of such evidence alone as he reasonably believes to be sufficient to sustain a conviction, and, in all but the plainest cases, lay the facts fully and fairly before counsel of standing and receive his advice that a prosecution is justified.  He need not, however, go to the length of verifying seemingly reliable information or invariably ask the accused himself for an explanation, because this might lead to fabrication or disappearance of evidence.  Advice of counsel provides a valuable, but not always impenetrable, shield.  For one thing, in difficult and complex cases it might be prudent to seek more than one legal opinion; for another, all facts must have been fairly and squarely placed before him, including such information as that the police declined to prosecute or that other advisers counselled against proceeding with the matter.

 

It is sometimes suggested that a mistake of law can never be considered evidence of absence of reasonable cause, but this is too sweeping.  Undoubtedly, an action is not maintainable where the prosecution failed on account of some highly technical or doubtful legal point, but ultimately the question must always be whether the defendant had reasonable grounds for believing the plaintiff guilty, and this requires some consideration on the part of the accuser of the legal elements of the crime, including obvious defences open to the accused. ... [Emphasis added.]

 

2.2      Trial Judge’s consideration of the subjective test

 

 

[98]           The trial judge first dealt with the subjective element.  He found as a fact that Poirier and Arsenault had an honest belief in the guilt of the accused; that they  formed an actual belief in his guilt.  He found this to be  based on a full conviction of the existence of a state of circumstances which, assuming them to be true, led them to the conclusion that the person charged was probably guilty of the crime imputed.  He accepted the evidence of both Arsenault and Poirier that they conducted a full investigation, and that they believed that the charges against Griffin had  merit and would succeed such that Griffin would be found guilty of the charges.   He reviewed their evidence and the evidence of their legal advisor Taylor in detail, and he found that they provided a great deal of information.   The trial judge concluded that on the whole of the evidence, the subjective element of the test had been met.  

 

2.3      Trial judge’s consideration of the objective test

 

(i)         Identification of errors

 

[99]           In my view, the trial judge misinterpreted and misapplied the legal test in the following manner:

 

(1)        He did not have regard for the criteria by which to measure the degree of caution a reasonable person should observe, as stated in the excerpt from Fleming, and he did not have due regard for the steps the defendants took to inform themselves of the true state of the case or whether the prosecution was justified, also in accordance with the law as stated by Fleming.

 

(2)        He considered factors that are extraneous to the presence or absence of reasonable cause.

 

(3)        He exceeded the mandate of a trial judge, which is to question, in Fleming’s words “whether the defendants had reasonable grounds for believing the plaintiff guilty,” and instead he questioned and challenged whether the defendants’ advice and opinions on matters of law were correct, then substituted his own legal opinions, and on that basis made an assessment that the defendants did not have reasonable and probable cause to proceed with the charges.

 

(ii)        Standard of review

 

[100]      For each of these categories of error, the appellate review involves consideration of the trial judge’s characterization of a legal standard and application of a legal standard, namely the exercise and criteria for assessing reasonable cause.  It  is accordingly characterized as a review for an error of law.  In view of the source of the error, in considering the standard of review, no further evaluation or determination is necessary in this case regarding standard of review due the special direction that reasonable cause is a question assigned to the trial judge, even though the trial judge’s conclusion on the question involved drawing an inference from found facts.

 

 

(iii)      Source of the errors

 

[101]      The trial judge’s evaluation fails because it was not based on settled legal criteria, it was influenced by extraneous factors, and it became an evaluation different than the legally prescribed mandate.  Had the evaluation been according to the proper legal standard or test, the conclusion would have been that the defendants grounds for believing the plaintiff guilty were reasonable, and therefore the plaintiff had not proven absence of reasonable and probable cause.

 

[102]      I will explain how these errors occurred and how they affected the evaluation.

 

[103]      The trial judge made extensive findings about the bases upon which Poirier and Arsenault formed their belief.  These are the type of findings one would expect to see. I will relate these findings to the criteria stated in Fleming.  He found:

 

(a)        Regarding reasonable steps to inform themselves about the true state of the case:

 

–          they took very extensive steps to inform themselves of the true state of the case;

 

–          Arsenault directed Poirier to conduct investigations, and Poirier conducted full investigations; the investigations were not perfect, but he considered them thorough; and

 

–          when the decision was made to proceed with the prosecution, they had informed themselves as much as one reasonably could through an investigation, done in the usual course, of the true state of the case in all its elements and they were not acting on mere imagination and surmise.

 

(b)        Regarding the requirement to consider the matter in the light of the evidence alone:

 

–          they considered the matter in the light of such evidence alone as they believed to be sufficient to sustain a conviction. 

 

--         they had the evidence of Holloway and Naud as well as corroborating evidence, and there was no evidence to the contrary. 

 

 

–          there is no mention in the reasons for judgment of any evidence having been left out or considered that would have impugned the charges.

 

(c)        Regarding the advice to lay the facts fully and fairly before counsel:

 

–          they laid the facts fully and fairly before legal counsel of standing and received his advice that the prosecution was justified. 

 

–          they did a full investigation and presented the matter before their legal advisor Taylor, and then they accepted Taylor’s advice;

 

–          Taylor’s review was extensive (para.162), and included review of the evidence gathered by Poirier; holding discussions with Poirier and with the witnesses; reviewing Poirier’s report; and conducting his own research into sexual harassment. 

 

–          Taylor was an experienced lawyer. 

 

--         Taylor, Q.C. testified, and the trial judge found:

... that he did enough research to determine that Poirier was on the right track and then later on continued his research right up to the time of the hearing.  He agreed that the charges against Griffin were appropriate.  I accept Taylor’s evidence that he did conduct research as he testified and that he did form certain conclusions. ....

 

 

[104]      It is after making that last mentioned finding that the trial judge appears to have gone off track.  He did so by: (1) failing to have due regard for all of those facts regarding the degree of caution and prudence that a reasonable person should observe in the evaluation at issue; and (2) failing to contain his evaluation within the scope of the general criteria described by Fleming; and instead, extending beyond a trial judge’s mandate by challenging the defendants’ conclusions on legal matters and then substituting his own opinion as the basis for his determination that the defendants had proceeded in the absence of reasonable cause.

 

[105]      He embarked upon this new track when he continued (at para.62) regarding the advice of Taylor, Q.C.:

 

Whether those [solicitor Taylor’s] conclusions were correct goes to the very issue of reasonable and probable cause. [Emphasis added.]

 

 

[106]      That is not the law; and an evaluation performed on that basis is an error of law.  As Fleming advises, the assessment by the trial judge involves measuring the degree of caution and prudence that a reasonable person should observe in the evaluation of infinitely variable incriminating data.  The assessment involves consideration of whether the honest belief of the defendants is founded on reasonable grounds.  Within that assessment the trial judge is to assume the stated circumstances then present to be true, and ask whether that would reasonably lead the ordinary prudent and cautious person placed in the position of the defendants as the accuser to the conclusion that the plaintiff as the person charged was probably guilty.  The trial judge did not follow that direction.  Instead he went on as mentioned to make and substitute his own evaluation of the legal questions that were before the defendants.

 

[107]      On this appeal, this analysis of whether the trial judge made a reversible error does not turn on which of the trial judge or the defendants were right on the legal points that the trial judge put into issue.  That really doesn’t matter for this exercise.  The issue is that there were legal ingredients of the charges on which the defendants concluded, with the benefit of full and expert legal advice, that they were right, and therefore, they were on a sound footing in that regard.  Having developed a full work product by their proper investigation and then having put it before legal counsel and followed his advice, the defendants had followed the law and they were entitled to the protection of the law when faced later on with a civil case of malicious prosecution. 

 

(iv)      Mistake of law does not vitiate reasonable and probable cause

 

[108]      As Fleming advises, while it is too sweeping to say that a mistake of law can never be considered evidence of absence of reasonable and probable cause, an action is not maintainable where the prosecution failed on account of some highly technical or doubtful legal point, and ultimately the question must always be whether the defendant had reasonable grounds for believing the plaintiff guilty.  That statement applies to the circumstances of this case.

 

[109]      A case directly on point of the trial judge substituting his own opinion is Ibbotson v. Berkley, [1918] 3 W.W.W. 1018 (BCSC):

 

Where in an action for malicious prosecution the defendant sets up the defence that he consulted a solicitor before instituting the criminal proceedings the soundness of the solicitor’s advice is, generally speaking, not weighed and such defence is a complete answer to the allegation that the defendant had acted without reasonable or probable cause unless the question remains whether through the neglect of the defendant, and subsequently of his solicitor, to make proper inquiries such defence is vitiated.

 

 

[110]      This discussion does not suggest that a trial judge is precluded from considering the strength or reliability of evidence in advance of his ultimate determination.  Such review does take place, but in the context of assessing whether the belief was reasonable in the circumstances, assessing whether the evidence is clearly off base.  Proulx at (para.34) mentions that the judges in the Supreme Court of Canada conducted that exercise:

 

In our view, the charges brought against the appellant were based on fragments of tenuous, unreliable and likely inadmissible evidence.  They were accurately characterized [by courts below] as being grounded in mere suspicion and hypothesis.  As such it could not serve to prove the appellant’s guilt ....

 

That situation, though, questioned the reasonableness of the defendant’s grounds of belief.  The exercise performed there and its limited purpose is plainly distinguishable from the trial judge’s investigation in the present case, which as he stated, questioned whether the defendants’ legal opinions and position were correct, and then decided the issue based on his own legal opinion.

 

[111]      In its exercise, the Supreme Court of Canada employed the principle in Ibbotson, supra in R. v. Campbell[1991] 1 S.C.R. 565, at para.47.  Binnie J. distinguished between a police force that chose to operate outside the law, which would not be protected, and a police force that made an honest mistake on the basis of erroneous advice, which would be protected. 

 

[112]      In his text, Friedman characterizes it this way (at p.486):

 

Hence, the law has to distinguish between genuine cases of mistake, which do not give rise to liability to compensate the innocent, i.e. unconvicted accused, and situations in which an accused has been put to the expense, trouble and embarrassment of criminal proceedings in order to satisfy the spite or ill-feeling of the prosecutor.

 

[113]      Estrin v. Alta. Law Society (1995), 174 A.R. 379 (C.A.) was a law society discipline case following a court review of a discipline proceeding that had affirmed a finding of incompetence and reversed a finding of deceit.  The following passage (at para.9) can be applied to demonstrate how the trial judge fell into error in the present case:

 

 

Here, the existence of a justifiable case and of reasonable grounds was reviewed and confirmed by the responsible Bencher, by the Investigating Committee and by the Benchers.  While this court subsequently reversed the decision of the Benchers, the reversal does not impact on whether any allegation of an absence of belief on the part of McLeod that he had a justifiable case and absence of reasonable grounds for that belief can have any air of reality.

 

[114]      The defendants did what the legal authorities have always advised in order to validate their actual and honestly held belief as being reasonable.  They obtained pertinent advice and legal advice all along the way, they then put the work product of their investigation fully and fairly before a competent lawyer, and they then proceeded according to his advice. 

 

[115]      The authorities are replete with direction about the protection attained by putting an investigation before a legal advisor and then following legal advice:

 

–          If a defendant shows that he believed the plaintiff to be guilty and acted bona fide in laying the charge, he will be considered to have acted with reasonable and probable cause: Fridman, G.H.L.: The Law of Torts in Canada, 2nd Edition (Carswell 2002) p.853. 

 

–          As long as the defendant had a reasonable bona fide belief in the guilt of the plaintiff, he will not be liable for malicious prosecution: Fridman, at p.855 referring to Hettu v. Dixville Butter and Sign Cheese Association (1908), 1908 CanLII 81 (SCC), 40 S.C.R. 128. 

 

–          In Jewhurst v. United Cigar Stores Ltd.[1919] O.J. No. 29 (Ont.C.A.), if an accuser laid all the facts fully and fairly before the Crown attorney, and acted on his advice in laying the information, the accuser would have acted in good faith upon the advice he would have received and then it could not be said that he acted without reasonable and probable cause. 

 

–          In Renton v. Gallagher (at pp. 501-502), it was held that the good faith of the defendants was shown by their submission of the whole facts collected to their legal adviser and their acting throughout upon his advice.  That established the bona fides of the defendants and negated the idea of want of reasonable and proper care on their part to inform themselves of the facts; further, that if the defendants honestly believed that the information on which they acted was true, although the truth may have been otherwise, they were justified in acting upon it. 

 

–          In Glinski v. McIver (at p.745) Viscount Simonds stated:

 

 

It appears to me that, just as the prosecutor is justified in acting on information about facts given him by reliable witnesses, so he may accept advice upon the law given him by a competent lawyer.  That is the course that a reasonable man would take, and if so, the so-called objective test is satisfied. ...

 

–          It has always been considered to be the law that if a defendant has laid all the facts of the case fully and fairly before counsel and acted bona fide upon the opinion given, (however erroneous it may be) it will be evidence to prove probable cause: Martin v. Hutchinson[1891] O.J. No. 97(Ont.H.Ct.-Div.Ct.) at para.24, quoting with approval from Roscoe’s Nisi Prius Evidence 16th ed., vol.2, p.886.

 

(v)        Full disclosure of all relevant facts to legal advisor

 

[116]      There is an important qualification regarding legal advice.  A defendant must make full disclosure of all relevant facts to the legal advisor; he must put before counsel everything, including all circumstances and mitigation of the accused’s action. The trial judge can assess what disclosure of facts was made by the defendant.  In Jewhurst v. United Cigar Stores Ltd., supra (at para.37), a defendant was denied the legal advice defence because he had withheld from the Crown attorney material facts which, had they been disclosed, would have lead the Crown attorney to advise against the laying of an information.  Upon making full disclosure, a defendant can shelter himself behind the advice of his solicitor: DeGrouwe v. Wytinck, supra, at p.336. 

 

[117]      The trial judgment suggests such matters contributed to the trial judge’s assessment.  In his conclusion (at para.197), he elevated to a deciding factor his finding of fact that Arsenault knew Griffin did not condone the behaviour in issue but didn’t communicate that to either Poirier or Taylor. 

 

[118]      In my view, none of the trial judge’s findings of fact show any basis for the so-called legal advice defence to be vitiated in this case.  There is no evidentiary basis for an inference that the defendants failed to provide material facts or withheld information that would have influenced their legal adviser’s opinion.  In reviewing for vitiating factors, it is important: (1) to distinguish between information that is pertinent to the existence of reasonable cause and information that is not; (2) to consider information that affects the finding of whether the defendants’ honestly held belief was reasonably held in accordance with the accepted legal test; and (3) to consider in context the facts that stand as potential impediments to the legal advice component of the defence.  I will explain my assessment.

 

[119]      The trial judge affirmed Poirier’s conduct throughout the investigation.  He made no suggestion that Poirier withheld anything from legal counsel.

 

[120]      The trial judge commented extensively regarding Arsenault’s conduct.  I will deal with his comments regarding Arsenault that may have affected the trial judge’s decision-making process:

 

–          Regarding the “fairground incident:” the trial judge’s analysis is not directed at Arsenault at all; it is directed at Poirier (para.179).  He makes no suggestion that Arsenault withheld any information from Taylor.

 

--         Regarding the charge about the press release, the trial judge makes no suggestion that Arsenault withheld information from Taylor.

 

–          Regarding the work place incidents:

–          Most of the trial judge’s evaluation was regarding what Poirier as the investigator had before him, and was not about Arsenault;

 

–          The trial judge raised two issues about disclosure by Arsenault:

 

(i)         At para.189, he stated:

... It is also important to note that with respect to both of these incidents, Poirier did not interview Arsenault, nor did Arsenault volunteer any statement to Poirier. The fact is Arsenault did not believe that Griffin condoned Hippenstall’s behavior. At no time did Arsenault convey that thought to Poirier or to Taylor. Given that the essence of the charge is that Griffin tolerated and encouraged these statements by Hippenstall, one would have thought Arsenault would have made his thoughts known to Poirier at some point and especially when the charges were presented to him. 

 

As discussed more extensively later on in my assessment on malice (at para.183, at pp.61-62 of this judgment), Arsenault’s answer on cross-examination considered in full and in context shows that Arsenault had only a belief, and no knowledge of the facts, and that he relied on Poirier’s investigation for the facts.  Arsenault did not withhold facts or other information that would have influenced Taylor’s legal opinion on reasonable and probable cause.

 

 

Even if the evidence merited the conclusion made by the trial judge, (which I do not accept), then it would influence only the determination on malice, but not the determination on reasonable and probable cause, because it would not be the kind of evidence that would demonstrate the probable guilt or innocence of Griffin regarding the two incidents. 

 

(ii)        At para.190, he stated that Arsenault delayed from August 15th to the third week of September in delivering a Holloway memo to Poirier.  As is discussed elsewhere in my judgment,  there could be an explanation for that lapse of time.  What is important regarding the consideration of legal advice in assessing reasonableness is that the information was disclosed to the investigator and ultimately to the legal advisor during the investigation and there is no question of it being withheld. 

 

 

(vi)      Summary of the legal advice component

 

[121]      The trial judge did not give due account to the facts that full and complete legal advice was sought by the defendants, provided by Taylor, and followed by the defendants.  Then, he compounded the problem by going on to state that whether Taylor’s conclusions were correct goes to the very issue of reasonable and probable cause.  There is an essential distinction at law between evaluating the defendants’ acts of obtaining and following legal advice, and assessing the particulars of the content of that legal advice for correctness. The trial judge should not have assessed the defendants’ investigation work product without due regard for the fact of Taylor’s advice or the fact that legal advice was sought.  He should not have incorporated irrelevant considerations regarding the information given by the defendants to the solicitor.  He should not have made and substituted his legal conclusions, especially on debatable and technical questions of law.  In the end, he substituted his opinion on the law for theirs, and he decided the issue of reasonable cause based on his view of the law.  He should have asked whether they proceeded with the degree of caution and prudence that a reasonable person should have proceeded with. 

 

(vii)      The trial judge’s assessment of the charges

 

[122]      I will address the trial judge’s error in the context of each charge.  As mentioned, the trial judge should not have parsed the defendants’ legal opinions as he did and substituted his own for the purpose of his evaluation. While whether he or the defendants were correct regarding these issues does not materially affect the evaluation of reasonable cause, it is also notable that regarding the legal questions involved in the charges, all were highly debatable points, and on one of the three the trial judge’s opinion was not supported by the legal authority upon which he relied.

 

 

1.  The Fairground Incident

 

[123]      The trial judge found: (i) Poirier conducted a full investigation; (ii) he had allegations and evidence upon which to proceed; (iii) he had no response from Griffin; and (iv) he had done his legal research.  In his assessment, based on what Poirier had, the charge was weak and borderline at best.  A trial judge could probably make an assessment of that nature.  However, he went to exceed his mandate.  He found at paras.177-179, that notwithstanding Poirier’s legal research into sexual harassment, Poirier had failed to recognize a reference in a statement that appears in his research the requirement that “behaviour persists beyond your objections.”  The trial judge had previously found that Poirier and Taylor were aware of that information.  The trial judge found:  Griffin touched Holloway as she suggested; it was a single incident; Holloway felt “grossed out” and moved away from Griffin; there was no evidence that Griffin persisted in the activity; and the physical contact stopped.  The trial judge found on his assessment that while there were many legitimate indicators that an act of sexual harassment had taken place:

 

... Poirier missed the essential ingredient - Griffin must have persisted with his unwanted touching at the fairground.  Therefore, Poirier knew, or ought to have known that the prosecution of this offence would fail.  The basis premise for an offence was missing.  He did not have reasonable and probable cause to lay this charge.

 

[124]      That conclusion is the product of an assessment of the law.  It was a matter of law on which the prosecutor and legal counsel had addressed themselves.  At the time of the incident, the law of sexual harassment was in its early stages of development.  Whether persistence was required was then a debatable legal issue.  The important question is not who as between the defendants and their legal advisor and the trial judge was correct on the legal issue.  The question the trial judge should have asked, and confined himself, was whether the defendants had proceeded with the degree of caution and prudence that a reasonable person should observe in the circumstances.  According to the law of malicious prosecution, if they did so proceed, they were protected even if the trial judge was of the opinion that their legal advice was wrong. 

 

2.  Work Place Incidents  

 

 

[125]      The trial judge found:  (i) Poirier conducted a full investigation; (ii)  he had allegations and evidence upon which to proceed; (iii) he had no response from Griffin; and (iv) he had done his legal research.  He assessed the meaning of ‘a hostile or poison work environment,’ which a trial judge probably could do.  He was apparently quite influenced by his finding of fact that Arsenault did not believe that Griffin condoned Hippenstall’s behaviour.  He noted that it was Arsenault who hired Hippenstall and not Griffin (para.193).  The trial judge’s reasons suggest he was also influenced by a confluence of factors: the scenario in which there were only two incidents under consideration; that Naud did not believe that Griffin was creating a poisonous work environment but she was asserting that he was contributing to it in some way; that Holloway and Naud delayed reporting the incidents until August 1998; and that there were no incidents involving Griffin after this was brought to his attention. 

 

[126]      The trial judge carried out an in-depth legal analysis, and then based his decision on that.  He correctly stated that the law in relation to sexual harassment in the work place was in its early evolution, and that there was case law that supported the proposition that once an employee lets it be known to the perpetrator that he, or she objects to the continuation of the behaviour, then a complaint of sexual harassment will succeed in relation to behaviour that persists after the objection (highlighting by the trial judge).  He relied on Re Canada Post Corp. and CUPW (1987), 27 L.A.C. 3rd 27.  He found that Hippenstall’s comments to Holloway and about Naud would constitute examples of sexual harassment.  He then concluded that the charge was not based on reasonable and probable cause on the following basis:

 

... Even if Griffin laughed, as Holloway said he did, or did not reprimand Hippenstall, as may be inferred from Naud’s statement, there were no additional incidents in the presence of either Holloway or Naud. ... Poirier was left with these two incidents and nothing more. Even if one gives Poirier the benefit of the doubt, Arsenault was still the Chief of Police and still in charge. Arsenault knew Griffin did not condone such behavior, but didn’t communicate that to either Poirier or Taylor, who was advising Poirier. Given these facts as I find them, and the state of the law as it existed at the time, I conclude this charge was not based on reasonable and probable cause. [Emphasis added.]

 

 

[127]      The trial judge exceeded his mandate by substituting his own legal opinion for that of Taylor, Q.C. and the defendants.  But in this instance, the trial judge’s own opinion was itself incorrect, or at least without the support of the authority relied upon by the trial judge.  The Canada Post Corp. case is entirely distinguishable from the work place harassment incident in the present case, and could not serve as a precedent for the trial judge’s statement of the law.  In Canada Post, the complainant and the grievor were both employees who worked in a dockyard.  The grievor made crude comments.  The complainant was found to have been a willing participant in such activities with other male employees, such that the griever could argue that he would not have known that his comments would be unwelcome by her.  That was the basis for the requirement for a warning that was imposed by the arbitrator in Canada Post.  Griffin was not a fellow employee; he was management.  Canada Post does not contain any proposition to suggest the requirement for further incidents after a warning where the conduct of management is in question, and there is no question of condonation.   In the present case, the informants were female employees, new on the job.  The facts found by the trial judge advise that they didn’t know Hippenstall or invite or condone his comments, and Griffin was in the role of employer as the work place manager, not a fellow bantering employee. 

 

[128]      In any event, time was a factor.  That the conduct did not occur again after it was brought to Griffin’s attention and he recommended that Hippenstall be fired did not make the previous incidents go away.  The facts found show that the two female employees pointed the finger at Griffin, who they viewed as management, and that they wanted something done about the workplace environment. 

 

[129]      The trial judge seemed to have been influenced by an irrelevant considerations, namely Arsenault’s role with Hippenstall’s employment, and his conception of Arsenault’s knowledge or belief that Griffin did not condone such behaviour. 

 

[130]      The trial judge proceeded on a wrong premise and exceeded his mandate.  He did not give due consideration to the defendants’ due diligence; he exceeded his mandate by substituting his legal opinion for theirs.  Then, in  this instance he exacerbated the error by importing a requirement for further incidents.

 

3.  Press Release

 

[131]      The trial judge found: (i)  the investigation conducted by Poirier was different than the other investigations; and so was the situation; (ii) the Regulation required the ‘employer’ not disclose the identify of a complainant; and (iii) Poirier was correct in finding that Griffin authored and issued the press release.   For the trial judge, the pivotal question became whether Poirier was right in concluding that Griffin was “the employer” in the context of s.6 of the Sexual Harassment Policy Statement (para.201).  He inferred that Poirier had rightly concluded that the definition of ‘employer’ was broad enough to include Griffin regarding sexual harassment investigation, and it appeared to him that Poirier did not direct his mind to the question of who was the employer for purposes of s.6 of the Policy Statement. 

 

 

[132]      The trial judge gave a lot of attention to other extraneous considerations, including the authorship of a related news story, whether the so-called confidential information was already known in the community, and the facts and circumstances of surrounding new stories.  These matters seem irrelevant to the question of whether the defendants had reasonable and probable cause to prosecute the charge.  The subject of the investigation and charge was the alleged breach of a duty not to disclose the identity of a complainant that was confidential information within the police department.  Arsenault could only manage the police department; he had no control over the news media, street talk, and City Hall, but all of these were matters the trial judge expressed as being on his mind. 

 

[133]      Ultimately, the trial judge made his decision that the defendants did not have reasonable and probable cause because on his legal assessment that Griffin was not the employer under s.6 (at para.212): 

 

At the heart of this charge is the allegation that Griffin, as the employer, released the names of Holloway and Naud to the public media in violation of the prohibition contained in s. 6 of the Policy Statement. On a proper examination of all of the circumstances leading up to the press release, Poirier and Arsenault ought to have known that Griffin was not speaking as the “employer” when he issued his press release and, therefore, they did not have sufficient evidence to believe Griffin committed an offence against discipline ...

 

The trial judge’s interpretation could well be correct; but that is not the issue.  What is in issue is that in that assessment the trial judge substituted his interpretation on a highly technical, and apparently debatable, point of law.  He reached the conclusion that the defendants’ theory of the case, which was based on legal advice, was deficient.  In making that legal assessment and substituting it to find absence of reasonable cause, he made an error of law.

 

(viii)     Conclusion 

 

[134]      In his consideration of the charges for evaluation of reasonable cause, the trial judge should have avoided his critical legal analysis and assessment. He should have taken into account steps taken by the defendants.  He should have confined and performed his assessment as directed by the law.  Had he done so, he would have found the defendants proceeded by obtaining legal advice, that they followed the advice received, and that even if he disagreed with the advice, it was regarding matters that were technical and debatable.  He would have then concluded that the objective test for reasonable and probable cause was satisfied.

 

3.         MALICE

 

3.1      Law of malice

 

[135]      Malice is a tort; an intentional tort.  In the context of malicious prosecution it means “improper purpose” (Fleming, p.685). 

 

[136]      The tort of malice was developed by the common law in antiquity.  The case law reports date back to the end of the sixteenth century.  The present-day elements of malice and the requirements for proof of malice were well established in nineteenth century English jurisprudence, and have been consistently adopted and applied in Canadian law during the twentieth century and to the present day. 

 

[137]      The burden of proving malice lies on the plaintiff, and may be discharged by showing either what the motive was and that it was improper, or that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor (Brown v. Hawkes[1891] 2 Q.B. 718, at 722).  The question of malice falls to the jury, unlike that of reasonable cause which is retained by the judge. 

 

[138]      Malice involves a primary purpose other than carrying the law into effect.  It has a wider meaning than spite, ill-will, or a spirit of vengeance, and includes any other improper purpose (Fleming, at pp.685-686).  In an action for malicious prosecution, the malice which must be proved is not malice in law but malice in fact.  It is a long established principle that neither gross negligence nor recklessness per se constitutes malice.

 

... A suit for malicious prosecution must be based on more than recklessness or gross negligence.  Rather, it requires evidence that reveals a willful and intentional effort on the Crown’s port to abuse or distort its proper role within the criminal justice system. [Proulx, at paras.34-35, Dix at para.495]

 

The hasty formation of a belief in the guilt of a plaintiff based on unreasonably insufficient grounds does not ordinarily suffice to warrant an inference of malice (Fleming, at p.686).

 

[139]      Competing policy considerations form the elements of the cause of action for malicious prosecution.  Fleming states (at p.673):

 

  1.          Malicious prosecution

 

 

The tort of malicious prosecution is dominated by the problem of balancing two countervailing interests of high social importance: safeguarding the individual from being harassed by unjustifiable litigation and encouraging citizens to aid in law enforcement.  On one side, it needs no emphasis that the launching of scandalous charges is apt to expose the accused to serious injury, involving his honour and self-respect as well as his reputation and credit in the community.  Malicious prosecution, therefore, bears close resemblance to defamation, both being infringements of essentially the same complex of interests on the part of the plaintiff.  On the other side, however, is the competing interest of society in the efficient enforcement of the criminal law, which requires that private persons who co-operate in bringing would-be offenders to justice, no less than prosecutors, should be adequately protected against the prejudice which is likely to ensue from termination of the prosecution in favour of the accused.  Moreover, there exist other sanctions against misconducting informants.  So much weight has been attached to this consideration that the action for malicious prosecution is held on tighter rein than any other in the law of torts. ...  Thus, malicious prosecution has remained a distinct cause of action which in several particulars, notably in the allocation of the burden of proof and the functions between judge and jury, affords greater protection to private persons who initiate criminal proceedings than is accorded by conditional privileges to publish defamation.

 

[140]      The modern statements on the Canadian law of malicious prosecution contained in Nelles and Proulx adopt all of the long standing and developed jurisprudence and policy considerations.  They did not set the standards or change the law regarding the elements of malice or the requirements of proof of malice.  Nelles adopted basically the same commentary from an earlier version of Fleming, which in turn is based on the nineteenth century English jurisprudence.  In Nelles, Lamer J. endorsed this Fleming commentary regarding the built-in devices particular to the tort of malicious prosecution:

 

The disfavour with which the law has traditionally viewed the action for malicious prosecution is most clearly revealed by the hedging devices with which it has been surrounded in order to deter this kind of litigation and protect private citizens who discharge their public duty of prosecuting those reasonably suspected of crime.

 

Nelles did not involve remaking of the law of malicious prosecution.  Nelles considered Crown immunity – whether the Attorney General and Crown prosecutors should continue to be immune to an action for malicious prosecution -- and decided they were not. In Proulx, both decisions adopted the long standing jurisprudence, and adopted Nelles as the modern application of the old law. 

 

[141]      In Proulx, L’Heureux-Dubé J. stated (in her dissent at para.217) that the standard of deliberate and malicious use of one’s office is a high and clear one that calls for proof of subjective intent to act out of malice or with an improper purpose by perverting the power of the office, and that courts must avoid any interpretation that leaves any room for uncertainty in application of the standard.  Although her comments appear within a dissenting judgment, on reading the majority judgment it can be inferred that all the majority reasons also subscribe to that general direction. 

 

 

3.2      Trial judge’s consideration of the legal test for malice

 

(i)         Identification of error

 

[142]      The trial judgment is extensive and somewhat complex.  Upon my review, I have discerned how the trial judge went off track and that he made a reversible error in his characterization and application of the legal test for what constitutes malice.

 

[143]      Through a building block process, the trial judge developed a construct.  Upon that, he rationalized and justified a license permitting him to modify the legal test for malice.  Then he modified the test.  He employed the modified test to make his decision.  I will visit the steps upon which he constructed the incorrect legal standard that was the basis for his decision.

 

(ii)        Standard of review

 

[144]      Misinterpretation of the legal test for malice is an error of law, and is reviewable on the standard of correctness. 

 

(iii)      Trial Judge’s approach to malice

 

[145]      In his approach, the trial judge made numerous statements throughout the judgment about onus of proof, standard of proof, and requirements for proving malice.  He mused variously about the advisability of the plaintiff’s submissions for a softer approach, loosening the reins, modifying the common law position in Proulx “ever so slightly,” opening the door wider to allow greater access to malicious prosecution regarding discipline cases.  He answered his musings by stating (at para.40): “The answer is found in the Proulx case itself where the court says at para. 37:

 

In the final analysis, it is the totality of the circumstances that are to be considered in cases of this kind.

 

[146]      He concluded his approach by stating that at the end of the day, that is the foundation of Griffin’s argument.

 

(iv)      Historical development of the tort of malicious prosecution

 

 

[147]      The trial judge went on to consider whether discipline cases should be treated differently.  He discussed malicious prosecution cases by category.  He  found that by far the majority of cases originate in a criminal context, in the sense of conventional public criminal prosecutions.  That premise is inaccurate and may have misled the trial judge. 

 

[148]      The trial judge pondered whether in view of the policy considerations it should be easier for a plaintiff to maintain an action for malicious prosecution arising  out of a disciplinary proceeding as opposed to a failed criminal prosecution.  He observed that there clearly are distinctions.  This is where he mused whether the reins should be loosened somewhat in view of the policy considerations.  If the trial judge acted on these musings which he expressed extensively (which I will subsequently find he did), then he would have made an error in law.  A trial judge has no license to change the common law standard for what constitutes malice.

 

[149]      An accurate appreciation of the historical development of the tort of malicious prosecution may have avoided the trial judge proceeding on the wrong course.  The four-part test for malicious prosecution developed at common law during the nineteenth century. It was created to deal with actions against private individuals who brought actions against another without reasonable and probable cause, not to deal with actions against the Crown.  All the leading judgments of that time involved actions against private prosecutors and private complainants.  See:  Vancise J.A. in Miazga v. Kvello Estate 2007 SKCA 57 (CanLII), at paras.176-184. 

 

[150]      The misleading premise adopted by the trial judge assumes greater importance for his analysis of malice because he distinguished the present action from Nelles and the prosecution cases because it arose from a failed discipline proceeding rather than from a failed criminal prosecution. 

 

[151]      In many of the old cases there was a relationship between the parties and the surrounding circumstances from which one could infer an improper motive.  For example, in Jewhurst v. United Cigars Stores Limited 1919 CanLII 484 (ON CA), [1919] 49 D.L.R. 649 (Ont.Sup.Ct.), a prosecution was initiated to collect a debt.  In most of those cases, motive was inferred from the surrounding circumstances.  Courts were prepared to infer malice where there was no reasonable and probable cause in circumstances where the plaintiff and defendant had a relationship that would indicate an improper motive for the commencement of the action. 

 

[152]      In Nelles, the Supreme Court of Canada decided for policy reasons in favour of extending the tort of malicious prosecution to Crown counsel.  Nelles adopted the malicious prosecution principles from the old jurisprudence.  Nelles advises that those same policy reasons justify an extremely high threshold in terms of what constitutes malice to succeed in an action for malicious prosecution.  Proulx confirmed this direction.

 

 

(v)        The trial judge developed a different standard for finding malice

 

[153]      After analyzing the evidence, the trial judge revisited the evidence of malice and requirements for proof of malice.  He restated the directions in Nelles and  Proulx.  He referred to them as “guiding principles” (paras.214-218).  He dealt with Poirier and found that he did not act with malice, and then he addressed whether Arsenault acted with malice.  He proceeded along as expected: he recognized that the employer has an onus to investigate allegations of sexual harassment; observed that the case would turn on inferences about how the investigation was conducted, how far it went, whether it resulted in charges, and whether those charges went to a full hearing; took into consideration the submissions of the parties regarding the items and incidents in the relationship between Arsenault and Griffin that are inconsistent with or consistent with malice; and repeated that Griffin urged him to make the required inference “from the totality of the evidence.” 

 

[154]      At the next step, the trial judge committed an error of law.  First he interpreted, and then he applied, the legal principles regarding malice in a different manner than directed by the law. He created a different legal standard for malice in this case.  (For clarification, this is distinctly different than finding the required level or standard of proof, i.e. balance of probabilities.  That issue, regarding which the Supreme Court of Canada gave directions most recently in F.H. v. McDougall, supra, is not in issue in my analysis.) The error of law was created upon a platform of a number of – up to six – foundational pieces.  The error occurred within an exercise of mixed fact and law that involved the interpretation and identification of a legal standard to the facts of the case.  The origin of the error rests on an incorrect statement of legal standard, and is readily extricable from any question of fact.  I will address the foundational pieces. 

 

1.  Faulty historical perspective

 

[155]      As mentioned, he proceeded on a faulty premise about the development of the law, and as a result he made a policy distinction for malice between kinds of cases.  He said:

 

[234]      As already stated, the majority of cases of malicious prosecution arise from a failed criminal prosecution. Prosecutors in that context have a special role and are afforded special protection. I have referred to the policy underpinning for this proposition earlier in these reasons. In contrast, the case at bar arises out of a confidential, internal, disciplinary proceeding. ...

 

 

This faulty premise led down a wrong track.  I have set out the historical basis upon which the law of malicious prosecution arose.  In modern law there are cases of malicious prosecution following disciplinary cases, and in those cases there is no suggestion of a different test for what constitutes malice: See Stoffman v. Ontario Veterinary Association (1990), 460 O.A.C. 232 (Ont.C.A.)Estrin v. Law Society (Alberta) (1995), 174 A.R. 379 (Alta.C.A.).   As well, the trial judge’s premise ignores the defendants’ public responsibility in fulfilling a statutory obligation to pursue a discipline proceeding within a municipal police department.

 

2.  No account for legal advice having been obtained 

 

[156]      He had no regard for the fact that Arsenault proceeded throughout with the assistance of competent and full legal advice.  Indeed, he expressly excluded that as a consideration.  He found (at para.235) that while Arsenault had consulted with legal counsel and taken counsel’s advice as prosecutor, “Arsenault can take no comfort from Taylor’s apparent endorsement of the charges against Griffin.  Insofar as Arsenault raises this as a defense, that defense must fail.”  For this determination, the trial judge relied on Proulx (at para.33), which held that the prosecutor there could not rely on consultations that he had with colleagues and superiors.  The trial judge stated that he believed the proposition in Proulx was just as valid in the case at bar.

 

[157]      In my opinion, that statement is wrong in law; Proulx does not support the trial judge’s determination.  Proulx did not change the common law, which advises that proceeding with the advice of counsel is a factor to be taken into consideration in assessing malice: Bolster v. Cleland[1919] 1 W.W.R. 1020 (Alta.C.A.). The facts in Proulx are readily distinguishable from the fact scenario referred to in the common law principle.  The prosecutor in Proulxwas himself a trained lawyer who was prosecuting a case on which a previous prosecutor had closed the file.

 

3.  Misapprehending Nelles/lowering the bar

 

[158]      He stated that the bar was set by the Supreme Court of Canada in Nelles and Proulx, and the bar should be lower for cases arising out of discipline proceedings, including the present case:

 

[236]      While the Supreme Court of Canada has raised the bar in order to be successful in the case of malicious prosecution arising out of a criminal proceeding, I am not convinced that the bar is quite as high when the circumstances giving rise to the malicious prosecution stem from a private disciplinary hearing.

 

 

[159]      This is incorrect.  The Supreme Court of Canada did not raise the bar for determining what constitutes malice.  As mentioned, it adopted the nineteenth century jurisprudence that arose from private prosecutions involving relationships between the parties.  This faulty premise is an important misstatement.  There is no legal authority for a trial judge to lower the bar by category of case.  The threshold for what constitutes malice in a civil case is a common law standard.

 

4.  Making an inference without evidence

 

[160]      He developed an inference about Arsenault’s personal feelings and state of mind in the absence of evidence.  Then he used that inference in the development of his ultimate inference of malice.  He listed a series of 43 facts, as he found them from the evidence, and then posed the question of whether there emerged from all of this a deliberate and improper use of Arsenault’s office.  That was an expected course of analysis.  He formed a view about Arsenault’s subjective state.  He referred to Griffin’s conduct of defying Arsenault’s order, of publicly obstructing him, and of the retired Provincial Court judge having found that Griffin’s allegations against Arsenault to be without merit.  He then observed that Arsenault’s evidence was that these Griffin allegations didn’t bother him, and he cited no contradictory evidence (and I found none).  He then made an error with this assessment and conclusion:

 

[238]      .... It is difficult to believe Griffin’s allegations wouldn’t, in some way, bother even the mild mannered Arsenault. He says they didn’t but I find, consciously or unconsciously, they did have some effect on him.

 

[161]      An inference needs to be supported by evidence.  It is an error of law to make a finding of fact through an inference that is not based in evidence.  Speculation, and the judge’s own sense of a defendant’s feelings, is not foundation for an inference that a defendant had a subjective intent to pursue an improper purpose.

 

5.  Misinterpretation of the direction in Proulx

 

[162]      He misinterpreted the statement in Proulx about “the totality of all the circumstances.”  I mentioned at the outset of this analysis that the trial judge concluded in his approach that at the end of the day consideration of the totality of the circumstances was the foundation of Griffin’s argument.  Interpreted properly, the totality of the circumstances should be considered.  However, in my assessment and opinion, the trial judge misinterpreted the direction in Proulx and put it to an unintended use.  On that basis, he justified what he labeled lowering the bar for liability: 

 

[240]      As I said earlier, the Supreme Court of Canada has set the bar high for a successful case of malicious prosecution arising out of a failed criminal case. I also stated my belief that the bar is not quite as high for a case arising out of a private disciplinary hearing. I say that because in Proulx the court clearly states at para. 37:

 

 

In the final analysis, it is the totality of all the circumstances that are to be considered in cases of this kind.

 

‘Cases of this kind’ I take to mean cases of malicious prosecution. I note the Supreme Court did not restrict its analysis to the evidence, but, rather, to the ‘circumstances’ of the case. That makes sense because the Supreme Court contemplated there may be other fact situations arising out of circumstances other than a criminal proceeding which may amount to a malicious prosecution. ...

 

[163]      The trial judge justified lowering the bar by interpreting the “circumstances of the case” reference in Proulx as distinguishing between different kinds of cases and permitting consideration of matters other than evidence.  In my assessment, Proulx does not make such a distinction and does not grant such a license.  In my opinion, the reference in Proulx to  “cases of this kind” is to cases of malicious prosecution; the reference to “totality of all the circumstances” is to all events and relationships as between and surrounding the parties for which there is evidence that is relevant; and the reference to “circumstances” refers only to circumstances for which there is evidence.  Proulx  is not authority for a trial judge to make up a different legal standard for proving malicious prosecution because the civil action arose out of a particular kind of case of malicious prosecution, i.e. discipline under municipal police services regulations v. public prosecution.

 

6.  Faulty identification by an improper purpose

 

[164]      He identified as an improper purpose something that does not amount to an improper purpose.  He was entitled, of course, to make a finding upon viewing Arsenault’s actions in totality to make a finding of improper purpose.  He stated this assessment led him to infer that he intentionally misused his office for an improper purpose.  He identified the improper purpose:

 

[240]      ... That improper purpose was allowing the charges against Griffin to go forward before Murray in the face of all the facts as I have found them. In doing so, he acted with malice. In my view, he was reckless in the manner in which he proceeded with the charges. He disregarded information which would have cautioned him not to proceed. For example, ...  These are but examples. I referred to many more in para. 237.

 

[165]      This is an error of law.  The law has not changed.  As mentioned, recklessness does not constitute malice. Allowing charges to go forward in the face of negligence or recklessness does not identify an improper purpose to prove malice.

 

(vi)      Application of wrong legal test

 

[166]      The trial judge did not explain how he was proceeding differently.  It is clear though from the explanation in his approach and the steps that follow in his analysis that he adopted erroneous premises, and from there he assumed a license to change the law regarding the elements of malice and what is required to prove malice.  There is no license in law or reason in policy to change the requirements for proof because the action arose out of a discipline proceeding.  Finally, he exercised that assumed license and made an inference of malice based on evidence that proved to him the presence of what he considered to be the constituent elements, i.e. that Arsenault proceeded with the charges in a reckless manner, by disregarding information that would have cautioned him not to proceed.

 

[167]      The trial judge characterized the actions of Arsenault as reckless.  Beyond that finding of recklessness, he made no other finding of any direct evidence of improper purpose.  To refer to  circumstantial evidence that would point to improper purpose would require one to join in Griffin’s theory that the bar should be lowered for what constitutes malice.  As the trial judge observed, the respondent concluded that at the end of the day, that was the foundation of Griffin’s argument.

 

3.3      Proving malice by an inference

 

(i)         The law of proving malice by an inference

 

[168]       Malice in fact can be proved by the plaintiff in one of two ways:

(i)         by showing what the motive was and that it was improper; or,

(ii)        by showing that the circumstances were such that the prosecution can only be accounted for by implying some wrong or indirect motive to the prosecutor, though it may be impossible to say what it was.

 

Fleming, supra, at page 686: adopted by Klar, et al., Remedies In Tort, at 15-39.  The trial judge stated this at para. 218.

 

[169]      The trial judge carried out his analysis and then stated his conclusion:

 

[241]      Arsenault’s conduct at the time he instituted the proceedings can only be accounted for by implying an improper use of his office. His actions were more than negligence. They were reckless. Therefore, in all the circumstances of this case, I am satisfied Griffin has proven, on the balance of probabilities, the tort of malicious prosecution against Arsenault. [Emphasis added]

 

 

 

 

(ii)        Identification of error 

 

[170]      Upon my assessment, it is manifest in the result that the trial judge made an error in his application of the rule or in his assessment of the evidence.  This error could have arisen from one of two sources, or both.  Either after stating the rule, he read out the qualifying word “only” and proceeded to make “an” inference from available choices, or he made a conclusion that was clearly wrong, unreasonable, or unsupported by the evidence.  The plainly apparent error is compounded by his employment of recklessness as a constituent element of or indeed the basis for malice in this case.

 

(iii)      Standard of review

 

[171]      The exercise under review involved drawing an inference based on application of a legal standard.  This attracts the standard of deference unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or in the application of an incorrect legal standard, in which case the error may be an error of law subject to the standard of correctness.  If the error arose from the trial judge having read out the qualifying adjective “only” then his conclusion is reviewable on the standard of correctness.  Otherwise, if he applied the legal test in the inference drawing process, the ultimate conclusion is to be accorded deference. 

 

(iv)      Review of the inference drawing process

 

[172]      In his assessment that malice was the only reasonable inference available, the trial judge was not required to and did not identify any particular improper purpose.   One is then left to review the trial judge’s application of the test for proving malice by an inference by reference to the facts he drew from the evidence. This involves the judge’s interpretation of the evidence.  I am of the view that his conclusion that malice, which is the lynchpin for liability, was the only available inference, was unsupported by the evidence and was clearly wrong.  Upon my review of the judgment, I conclude that the conclusion that malice is the only inference contradicts, or at least does not take into account, findings of fact that the trial judge found to be significant.  

 

[173]      Upon taking into account all the facts as found by the trial judge, it is plain and obvious that the facts permit other reasonable conclusions.  Upon reviewing the reasons for judgment, it is apparent that all of the so-called indicators of malice which on the trial judge’s analysis could be attributed to Arsenault were manifestly capable of some other reasonable inference.  These are plainly available:

 

(1)        carrying out his duties as Chief of Police, as he saw them;

(2)        following legal advice that the reports and complaints must be followed up with an investigation and then should be followed up with charges;

(3)       rooting out sexual harassment in the workplace;

(4)        bad judgment, negligence, or recklessness;

(5)       lack of perspicacity in failing to appreciate all the difficulties that subsequently arose in the hearing regarding proof of the charges: (see L’Heureux-Dubé J. in Proulx at para.242).

 

That is a non-exhaustive list.  From all the findings of fact in the judgment, including the trial judge’s list of 43 facts, there is nothing that Arsenault did do or didn’t do, individually or in sum, that would command or permit a conclusion that malice was the only available inference.  In the circumstances of the case, other inferences could not reasonably be eliminated as available choices to account for the prosecution.

 

[174]      The qualification “only” goes to the root of consideration of circumstantial evidence. An analogy to proof of guilt by circumstantial evidence in criminal proceedings is useful.  In criminal proceedings, where a finding of guilt is to be made based on circumstantial evidence, the finder of fact is instructed that where the evidence is entirely or substantially circumstantial, the accused should only be found guilty where they are satisfied that the guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence.  That is the rationale for proving malice by an inference.  The direct way is by showing what the motive was and that it was improper.  Proof by circumstantial evidence requires a conclusion that some wrong or indirect motive is the only inference that can account for the impugned conduct.

 

[175]      Adhering to the direction in Housen for standard of review on findings of fact, I am hesitant to comment on the rest of the evidence, and  I do not make any findings in that regard.  That said, these few points are worthy of observation:

 

(1)        In all of Griffin’s evidence, there is only one assertion of “malicious“, referring to mean-spirited and out to get; and that occurred in a discussion initiated by the trial judge (p.288).  In any event, Griffin’s statement does not go beyond the bald assertion.  There is nothing else in Griffin’s direct examination asserting malice.  Indeed, Griffin’s testimony is that he thought that he had a good working relationship with Arsenault up until the time of the Grimes’ incident.  Griffin testified he had no evidence that Arsenault forced the complainants. 

 

(2)        In the inquiry into Griffin’s insubordination, the retired judge found nothing wrong with Arsenault’s behaviour.  

 

(3)        In her decision on the inquiry, Murray concluded there was no evidence that Arsenault forced the complainants.  Murray made a comprehensive decision regarding all three charges, and decided those matters on substantive grounds.  Nowhere did she suggest that Arsenault had proceeded without reasonable and probable cause or that there was any evidence of a wrongful purpose.

 

[176]      A number of findings in the trial judge’s assessment feed my conclusion.  I will mention them by category.

 

1.  Honest belief:

 

[177]      He found that Arsenault honestly believed: that Griffin was probably guilty of the charges; based on what they knew at the time the charges were laid; that they believed, after full investigation, that the charges had merit; and that they believed that the prosecution would succeed, and that Griffin would be found guilty of the alleged breaches of discipline.  For that assessment, he reviewed in detail the evidence of Arsenault, Poirier and Taylor, which comprised a great deal of information and documents covering days of testimony during which they were thoroughly cross-examined. The trial judge concluded: “Arsenault and Poirier did form the actual belief in the guilt of Griffin.”

 

[178]      That conclusion of honest belief does not necessarily negate a finding of malice.  It is possible to have good faith in reasonable and probable cause, and still be motivated by an improper purpose.  However, honest belief is a material factor to be taken into consideration in the inference making process regarding malice.  The circumstances in the present case are markedly different than the scenarios in cases where the appellate judges were harshly critical of the evidentiary basis upon which the respective prosecutors had proceeded.  For example, in Proulx (at para.34), the prosecutor’s grounds were characterized as mere suspicions and hypothesis.  

 

[179]      Proceeding based on an honest belief in the guilt of the accused, with the belief being supported by appropriate legal advice, would seem to raise some material level of expectation that the accuser may well be proceeding bona fide, and that failure to satisfy the objective test for reasonable cause could well be attributable to something other than malice.

 

2.  Failed Prosecution:

 

 

[180]      A failed prosecution found to have been pursued deficiently does not ipso facto suggest malice.  In Wiche v. Ontario [2001] O.J. No. 1850 (Ont.Sup.Ct.Jus.), a police officer killed an individual in the course of duty, there was an investigation, a charge of manslaughter was laid, and then Wiche was discharged after a preliminary hearing.  Wiche sued for malicious prosecution.  He  presented evidence that the Special Investigations Unit did not comply with its standard operating procedures, the defendants failed to disclose documents to him, and failed to call two key witnesses.  The trial judge found that there was reasonable and probable grounds for the information against Wiche; and that there was no evidence that the investigators were motivated by any improper purpose or that the investigation was negligently conducted.  Regarding the test for proving malice by an inference, Ground J. canvassed the authorities and concluded that they  indicate that an action for malicious prosecution may only succeed on the basis of inferring malice where the laying of charges can only be accounted for by imputing some wrong or improper motive or where the prosecution proceeded with reckless indifference to the truth or reliability of evidence or with reckless indifference to the guilt or innocence of the accused.  To all of that, he stated his view:

 

This is not our case.  Even if there were some oversights and deficiencies on the part of the SIU investigators in carrying out the investigation, it does not appear to me that it comes anywhere close to the imputation of a wrong or improper motive or to the reckless indifference required to be established to infer malice in an action for malicious prosecution.

 

A contextual consideration is mandated.  In the present case the findings of fact made by the trial judge do not show egregious conduct, as was found in the ProulxDix v. Canada (Attorney General) 2002 ABQB 580 (CanLII), 2002 ABQB 580 (Alta.Q.B.); Oneil v. Toronto (Metropolitan) Police Force2001 CanLII 24091 (ON CA), [2001] O.J. 90 (Ont.C.A.) line of cases, but conduct at worst akin to Whiche v. Ontario[2001] O.J. No. 1850 (Ont.Sup.Ct.Jus.)regarding which the judge found did not come anywhere close to a basis for imputing malice.

 

3.  Legal Advice

 

[181]      The evidence of solicitor Taylor, Q.C., was accepted by the trial judge.  Arsenault stated that he depended pretty much on Taylor to handle all the different parts of the investigation and the prosecution, and in accordance with long standing practice he relied upon his legal advice.  Asked whether it ever came to his attention, anything however minuscule, that Arsenault had some ulterior motive or ulterior purpose or was operating out of any spite or any previous insubordination matter, or otherwise out of spite or ill-will or malice; Taylor answered “No.” (Evidence of Taylor at p.1770.)  Having accepted Taylor’s evidence, there would seem to be some expectation that this informed and poignant statement about Arsenault’s subjective state would render available other explanations for the prosecution.

 

 

4.  The investigation:

 

[182]      Poirier conducted the investigation; not Arsenault.  Arsenault testified that at no time did he ever try to restrict, or enlarge or in anyway control where Poirier’s investigation would take him in terms of it being just with respect to the fairground incident or with respect to anything else that might arise to him in the context of his investigation. (Evidence of Arsenault at pp.1650-1651.)  Poirier recommended the charges proceed, and the trial judge found that Poirier had an honest belief that Griffin was probably guilty and that he had no malice.  In those circumstances, one can see the potential for other inferences to become reasonable.

 

5.  The trial judge’s listed facts

 

[183]      The trial judge listed facts at para 237; and he mentioned some of those again at para. 239.  I mention some additional comments regarding the facts as found by the trial judge, at paras. 237-40, to refer to related facts regarding which the trial judge was also informed which could be expected to have entered into the inference drawing process.  I will refer to them by the paragraph in which they appear in the judgment:

 

—       At para.238: Arsenault says the allegations by Griffin didn’t bother him, . . . .

 

—       At para.239:

-           Arsenault knew there had been a number of internal disciplinary investigations conducted in his department over the years.  He knew, or must have known, that none had gone to a full hearing:  Indeed, there had been previous hearings; also, Arsenault was under pressure from the Office of the Mayor and the Deputy Mayor; and he had advice from the City Solicitor that the matter at issue required action;

 

-          He knew Hippenstall was a problem in the Department, generally, and that the incidents referred to in the charges were isolated to Griffin but well known to others in the Department: Griffin was senior management; and he was named by Holloway and Naud;

 

 

-          Arsenault knew that at the end of the day all Holloway wanted from Griffin was an apology: it was not that simple -- Holloway wanted three things; and in any event, Arsenault had Taylor’s advice that the employer had a duty to act whether or not the complainant wished to continue; and Griffin was not discussing the case with Poirier or authorizing his lawyer any latitude in dealing with Taylor;

 

-          He also knew that Griffin didn’t condone Hippenstall any more or less than other members of the force, yet he didn’t pass that information on to Poirier or Taylor: that finding of fact when considered in context shows only Arsenault’s disappointment in Griffin, not a belief that he didn’t commit the alleged offences against discipline. The context for that statement was that during cross-examination, Arsenault was asked when he saw the charge, as drafted, whether it struck him as odd that Griffin was being charged with creating and maintaining a hostile work environment by tolerating and encouraging sexually demeaning statements made by Hippenstall.  Arsenault answered:

 

A:            Well, I was, I don’t know if I was, I was kind of disappointed that, you know, that this was on the charge as well, because, as I said, you know, I didn’t think that he could condone this kind of behaviour.   And–but however, I didn’t conduct the investigation, so I had no idea what led up to this.  (transcript of Arsenault’s evidence at page 1643).             

 

 

Nowhere in the evidence does Arsenault say or suggest that he had information to suggest that Griffin did not engage in such behaviour or that he, Arsenault, did not believe or support the conclusions of the investigation performed by Poirier and vetted by legal counsel Taylor.  What he says is that he did not conduct the investigation.

 

—       At para.240:

 

-          ... he knew the sexual harassment policy statement was not in force at the time of the allegations against Griffin, and even if they were, the policy did not create an offence: the Sexual Harassment Act was in force, and Arsenault knew that; and the trial judge previously found that upon the investigation and legal advice Arsenault and Poirier had an honest belief in Griffin’s guilt based on what they knew at the time the charges were laid;

 

 

-          He possessed information about Griffin’s lack of toleration of Hippenstall which he kept to himself: the timing of the investigations of Griffin and Hippenstall overlapped with Griffin’s recommendation that Hippenstall be fired in August 2008; and also this did not diminish the presence of reliable and then uncontradicted evidence that Griffin had participated with Hippenstall in the office incidents during the previous Autumn;

 

-          He also knew that Griffin’s hearing before Plamondon was still pending:  nothing much could be inferred from that, as was subsequently verified by the outcome of that hearing;

 

—       At para.237:

 

-          (fact no.6) Arsenault insists that Griffin do the internal investigation into Grimes: Griffin was the investigating officer; and he was the Deputy Chief of Police, so such direction would be expected to be in the ordinary course;

 

-           (fact no. 20) ... Arsenault informs City Council, in confidence, that Griffin is being investigated for “allegations” of sexual harassment, [when only one incident was being investigated:] the judgment (at para.65) found that, on September 13, the memo from Deputy Mayor MacDougall to Murphy that was passed along to Arsenault suggested serious “allegations” about complaints of sexual harassment in the Police Department; and Arsenault knew by September 14 that he was being directed to investigate those matters;

 

-          (fact No. 23) Arsenault had directed Griffin to do an investigation on August 21, 1998 at a time when Arsenault says he had, in effect, fired Hippenstall: the judgment does not suggest that Arsenault had fired Hippenstall when he directed Griffin to do the investigation; and by the time Arsenault had the Griffin Report, he had an allegation from a female staff member that Griffin was complacent with Hippenstall.  After that, it is understandable that Arsenault would not communicate with Griffin regarding Hippenstall, as such discussion could compromise the contemplated investigation into Griffin’s involvement of the subject-matter of the complaints.

 

-          (fact no.24) ...  Griffin makes a recommendation that Hippinstall be fired: Griffin’s recommendation made in August 1998 about Hippinstall did not vitiate the charges against him for his own conduct in 1997.

 

 

-           (fact No.29) Holloway’s memo was not in the Griffin file, ... [but] ... was produced by Arsenault to Poirier after he had examined the Griffin file: having received the allegation in writing, it is understandable, indeed expected, that the Chief of Police would pass it on to the investigator;

 

-           (fact No.30) That Arsenault did not inform Griffin about Holloway’s second memo: there would be no obligation or expectation that he would do so ;

 

-           (fact No. 39) On October 26, 1998,  Arsenault directs Poirier to investigate Griffin’s press release ...: there was a corresponding finding of fact that Arsenault was acting on directions from City Hall;

 

-           (fact No. 41) Notwithstanding the fact that members of Council are speaking out, Arsenault does not direct Poirier to expand his investigation into other possible breaches of confidentiality: members of Council are not employees of the Police Department, and there was no criminal investigation going on; and the trial judge found that Arsenault and Taylor discussed the matter, and it can be inferred from his finding that they thought it would be fruitless to pursue such an investigation;

 

-           (fact No. 43) on November 9, Poirier files both of his reports with Arsenault together with the charges against Griffin.  Griffin allows the charges to proceed to a hearing before Lynn Murray where they are dismissed: Poirier did the investigation, and there is no suggestion that Arsenault interfered with the investigation in any way, and Poirier recommended that the charges proceed.  Poirier’s recommendation was buttressed by legal advice of City Solicitor Taylor, who advised that he agreed with the conclusions (para. 162). 

 

 

(v)        Conclusion on review of inference drawing process

 

[184]      Whether or not the findings of fact made by the trial judge permit an inference of malice to me is questionable; but that is not the point at issue here.  The trial judge was applying a legal test which required a finding that malice was the only reasonable inference to account for the prosecution in the circumstances.  Upon considering the trial judge’s findings and assessments and considering them all in context, it is plain and obvious that implying an improper use of Arsenault’s office was not a necessary conclusion; in other words it was not the only reasonable inference to be drawn.  At the time he instituted the proceedings, the facts about Arsenault’s conduct, motivation, and relationships plainly permitted, indeed preferred, the finding of some reasonable inference.  Improper use of his office was plainly not the only reasonable inference that could have been drawn.  

 

 

[185]      The finding of malice made by the trial judge was developed on a fundamentally flawed foundation.  It cannot stand.  On the facts as found by the trial judge, assessed upon the accepted legal standard, the plaintiff has not proven that Arsenault was accentuated by malice. 

 

 

4.         CONCLUSION

 

[186]      For the foregoing reasons, I would allow the appeal, set aside the conclusions of the trial judge of malice against the defendant Arsenault, and of proceeding in the absence of reasonable and probable cause against the defendants Poirier and Arsenault, and substitute findings that neither malice nor absence of reasonable and probable cause is proven.  I would dismiss the plaintiff’s action, and reserve costs to be addressed by counsel.

 

 

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