Ontario Court of Appeal upholds summary dismissal of malicious prosecution lawsuit

Underlying criminal prosecution involved claim that man fraudulently received social assistance

Ontario Court of Appeal upholds summary dismissal of malicious prosecution lawsuit

The Ontario Court of Appeal has found no errors in lower court’s decision to issue summary judgment dismissing an appellant’s action claiming damages for malicious prosecution.

The underlying criminal prosecution involved allegations that the appellant fraudulently received social assistance. In 1998, the Regional Municipality of Waterloo Police Services Board began an investigation involving the appellant, who allegedly told staff of the Regional Municipality of Waterloo Social Assistance Office that he had not received any benefits from the Workers’ Compensation Board even though he had been accepting work injury benefits since 1982.

In December 1998, the appellant was arrested on charges relating to the receipt of social assistance. He was also charged with uttering a forged document and fraud over $5,000 relating to the work injury benefits.

In 2016, after nearly 17 years in the criminal justice system, the appellant filed a civil action for negligent investigation and malicious prosecution against Ontario’s attorney general, based on his alleged vicarious liability for the tortious conduct of the Crown prosecutors involved, and against the Waterloo police service.

In the present case, the appellant claimed that Justice Paul Perell’s decision last January, which summarily dismissed his suit seeking damages for malicious prosecution, erred in numerous ways.

Summary judgment lacks errors

In Okafor v. Ontario (Attorney General), 2022 ONCA 770, the Ontario Court of Appeal dismissed the appeal.

First, the appellant argued that the motion judge erred when he said that he was not granting “partial summary judgment.” The judge was necessarily granting partial summary judgment, given the continuation of the claim against the police service after the claim against the attorney general was dismissed, the appellant explained.

The Court of Appeal ruled that the judge made no errors when he commented that this case did not involve “partial summary judgment.” The judge was simply explaining that he was dismissing the claim against the attorney general in its entirety so there was no partial summary judgment relating to that party.

Second, the appellant contended that the judge’s reasons were insufficient. The judge relied on the reasons convicting the appellant in 2007, even though the appellate court later overturned this conviction based on a procedural error, the appellant said. The judge had a duty to closely scrutinize the reasons on which he relied since they failed to address inadequacies in the evidence, the appellant added.

The appellate court held that the judge did not fall short in this area. The judge properly focused on the overwhelming evidence of reasonable grounds, which contradicted the appellant’s claim that Crown counsel acted without reasonable and probable grounds, the appellate court said.

Third, the appellant asserted that the judge erred when he failed to infer malice on the part of Crown counsel. The Court of Appeal disagreed, noting that the judge relied on Crown counsel’s unchallenged evidence that they were unaware about the facts allegedly constituting malice at the time that they undertook the prosecution.

Lastly, the appellate court rejected the appellant’s claim that the judge erred by treating prior judicial determinations as determinative of whether the appellant could prove that Crown counsel commenced or continued the prosecution without reasonable and probable cause.

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