Fridays With Rogers Partners

At our weekly meeting this morning, Athina Ionita discussed the Divisional Court’s decision in H.A. v. S.M., 2021 ONSC 3170. The case involves an appeal of a summary judgment motion. The Divisional Court held that the motion judge erred in not dismissing negligent investigation and malicious prosecution claims against the defendants.

Facts

The defendant, S.M., accused the plaintiff of sexually assaulting and threatening her. The plaintiff was charged by the Windsor Police Services with three sexual offences and one count of threatening death.

At the criminal proceeding, the plaintiff was acquitted on all charges. The defendant complainant gave evidence at trial. The trial judge was “troubled” by several aspects of the defendant’s evidence, which casted doubt on her credibility.

The plaintiff then brought claims against the Windsor Police Services Board, several officers and the complainant, alleging false arrest, false imprisonment, negligent investigation and malicious prosecution.

The Windsor Police Services Board and the police officers moved for summary judgment seeking a dismissal of all of the plaintiff’s claims. The motion judge dismissed the plaintiff’s claims in false arrest and false imprisonment. He refused to dismiss the claims in negligent investigation and malicious prosecution.

Issue

The issue on appeal was whether the motion judge erred in finding that there is a genuine issue requiring a trial regarding the claims in negligent investigation and malicious prosecution.

Applicable Law

The determination of the appropriate test for summary judgment is a question of law, reviewable on a correctness standard.

To advance a claim in negligent investigation,a plaintiff must establish:

• the proceeding was initiated by the defendant;
• the proceeding was terminated in favour of the plaintiff;
• the absence of reasonable and probable grounds to commence or continue the proceedings against the plaintiff; and
• the defendant did not meet the objective standard of a reasonable police officer in similar circumstances.

The test for malicious prosecution shares the first three prongs of the test for negligent investigation. In addition, the plaintiff must prove that the defendant’s conduct was motivated by malice or an improper purpose.

The existence of reasonable and probable grounds is fatal to claims in negligent investigation and malicious prosecution.  The onus is on the plaintiff to establish the absence of reasonable and probable grounds.

Where a witness’ evidence is essential to the existence of reasonable and probable grounds, establishing a breach of the standard of care in a negligent investigation claim requires the plaintiff to show that the police defendants had “overwhelming” evidence discrediting that witness.

Regardless of possible frailties in credibility or reliability, the uncorroborated testimony of a single witness may be a sufficient basis upon which to convict.

In cases that turn on the credibility of an allegedly unbelievable complainant, the complainant’s credibility is best determined after the complainant has testified and after an accused has also testified, if he or she chooses.  It is up to the court trying the charges to evaluate witnesses, and police officers are generally not required to weigh and assess the evidence.

Analysis

The motion judge failed to consider whether evidence would have vitiated the reasonable and probable grounds of the Windsor Police Service when the plaintiff was charged.

In the criminal trial, the trial judge’s reasons for judgment show that the complainant’s lack of truthfulness relating to collateral issues casted doubt on the complainant’s credibility when testifying about the sexual assaults. The trial judge essentially concluded that the complainant lied under oath on the collateral issues.

The trial judge’s doubt of the complainant’s credibility does not equate with “overwhelming evidence” sufficient to vitiate the reasonable and probable grounds that the police had in pursuing the plaintiff.

The Divisional Court concluded that the plaintiff failed to show that the police officers’ reasonable and probable grounds to investigate and prosecute the charges were vitiated by “overwhelming” evidence discrediting the complainant.

The Divisional Court set aside the motion judge’s order. Judgment was granted dismissing the plaintiff’s remaining claims in negligent investigation and malicious prosecution.