Municipality had subjective belief that bylaw had been breached

Torts – Malicious prosecution and false imprisonment – Practice and procedure

Defendant municipality passed bylaw requiring property owners to obtain permit before dumping fill on their property. Before bylaw came into force, plaintiffs entered into agreement for fill to be placed on property owned by plaintiffs. Municipality objected to continual fill without permit while plaintiff took position that bylaw did not apply to subject property, and continued to accept deliveries of fill on property without submitting application. Municipality commenced prosecution for breach of bylaw while plaintiffs commenced action to challenge enforceability of bylaw. Prosecution was permanently stayed on basis that the plaintiffs’ right to trial within reasonable period of time had been breached. Plaintiffs then amended their action to include claims for malicious prosecution and misfeasance and abuse of public office. Both parties brought motions for summary judgement and motion judge granted summary judgement dismissing those parts of plaintiffs’ action not dealt with by prior decisions. Plaintiffs appealed. Appeal dismissed. Motion judge correctly found that plaintiffs did not meet third part (no reasonable and probable cause to initiate and continue proceeding) of four-part test for malicious prosecution. There was evidence on which motion judge found that municipality had subjective belief that bylaw had been breached as plaintiffs had not obtained permit. Similarly, motion judge correctly articulated test for misfeasance and abuse of public office. Motion judge found that there was no evidence that bylaw was enacted for other than proper purpose, and no evidence to support finding municipality acted in bad faith. Motion judge did not err in not hearing summary judgment motions together. Decision to defer defendants’ motion and deal with only municipality’s motion was within her discretion.

Angus v. Port Hope (Municipality) (2019), 2019 CarswellOnt 20946, 2019 ONCA 1015, L.B. Roberts J.A., B. Zarnett J.A., and M. Jamal J.A. (Ont. C.A.); affirmed (2019), 2019 CarswellOnt 6848, 2019 ONSC 2596, Woodley J. (Ont. S.C.J.).

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