Biladeau v. Ontario (Attorney General), (2014) 328 O.A.C. 180 (CA)

• Judge: Juriansz, LaForme and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 19, 2014
• Jurisdiction: Ontario
• Citations: (2014), 328 O.A.C. 180 (CA);2014 ONCA 848

Biladeau v. Ont. (A.G.) (2014), 328 O.A.C. 180 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.007

Bill Biladeau (appellant) v. Ministry of the Attorney General (respondent)

(C57830; 2014 ONCA 848)

Indexed As: Biladeau v. Ontario (Attorney General)

Ontario Court of Appeal

Juriansz, LaForme and Lauwers, JJ.A.

November 27, 2014.

Summary:

In 2007, Biladeau was convicted by a jury of sexual assault. He did not testify at his trial. On appeal, Biladeau argued that Crown counsel's closing address to the jury violated the prohibition in s. 4(6) of the Canada Evidence Act against commenting on the accused's failure to testify. The appeal was allowed and the conviction was overturned (see (2008), 244 O.A.C. 66). In 2011, Biladeau commenced an action against the Attorney General of Ontario. He claimed damages for malicious prosecution, breach of professional conduct, and alleged that the conduct of the prosecution had breached his Charter right to a fair trial. The Attorney General moved to strike Biladeau's claim for failing to disclose a reasonable cause of action. On the first hearing of the motion, the motion judge granted an adjournment to allow Biladeau to amend his statement of claim. On the second hearing of the motion, Biladeau's amended claim was struck out and his action was dismissed. Biladeau appealed.

The Ontario Court of Appeal allowed the appeal and ordered that Biladeau be given an opportunity to further amend his statement of claim in accordance with the court's reasons.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Ontario Court of Appeal stated "Although authority on awarding Charter damages is relatively recent, it seems clear that when it comes to malicious prosecution, there is a high degree of overlap between the elements of the tort and a corresponding claim for Charter damages. The precise extent of the overlap is unclear; however, malice appears to be an integral component of both actions. Accordingly, the facts alleged by the appellant in regard to the tort of malicious prosecution appear to be equally applicable to the appellant's corresponding claim for Charter damages" - See paragraph 41.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - Biladeau's sexual assault conviction was overturned on appeal because Crown counsel had violated the prohibition against commenting on an accused's failure to testify - Biladeau (self-represented) commenced an action against the Attorney General of Ontario - He claimed damages for malicious prosecution, and also damages under s. 24(1) of the Charter based on a breach of his right to a fair trial - A motion judge struck the entire statement of claim after finding that it failed to disclose a reasonable cause of action for malicious prosecution - The motion judge did not mention the Charter issue in his reasons for decision - The Ontario Court of Appeal allowed Biladeau's appeal respecting the Charter damages claim - The court stated that "[Biladeau's] pleadings ... allow the inference to be drawn that the experienced trial Crown's actions were wilful and intentional, and carried out for an improper purpose. ... Further, in the absence of any explanation in his endorsement, it is difficult to discern why the motion judge struck this part of the appellant's claim." - See paragraphs 38 to 44.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See second Civil Rights - Topic 8375 ].

Crown - Topic 4941

Actions against Attorney General - Malicious prosecution - General - [See second Practice - Topic 2230 ].

Practice - Topic 2203

Pleadings - Striking out pleadings - Setting aside order striking out pleadings - [See second Civil Rights - Topic 8375 and second Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - After his conviction for sexual assault was overturned, the plaintiff sued the Attorney General of Ontario for malicious prosecution - A motion judge struck the claim for failing to disclose a reasonable cause of action - The plaintiff appealed - The Ontario Court of Appeal stated "The question before the motion judge, therefore, was whether there was a sufficient factual foundation in the pleadings to indicate that the Crown proceeded to prosecute the appellant without reasonable or probable cause for success, and that the Crown acted with malice in doing so. A perfect pleading is not required." - See paragraph 22.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Biladeau's sexual assault conviction was overturned on appeal because Crown counsel had violated the prohibition against commenting on an accused's failure to testify - Biladeau (self-represented) commenced an action against the Attorney General of Ontario - He claimed damages for malicious prosecution - A motion judge struck the claim for failing to disclose a reasonable cause of action - The motion judge noted that Biladeau's claim "does not provide any material facts supporting the claim of malice; in fact, it does not even make mention of the Plaintiff's view that the prosecutor's actions in leading to the erroneous conviction were intentional" - The Ontario Court of Appeal allowed Biladeau's appeal - Had the motion judge read the claim generously and accommodated the drafting deficiences, he would have arrived at a different conclusion - The motion judge was required to determine whether it was plain and obvious that the pleaded facts failed to indicate that the Crown commenced or continued the prosecution with a purpose inconsistent with his role as a minister of justice - The motion judge did not consider whether the Crown had cause to continue the action - The record suggested that there were facts that Biladeau could have pleaded in support of this element - The pleadings allowed for an inference that Crown counsel might have been motivated by the improper purpose of getting a conviction at all costs, or that he might have been attempting to get a mistrial - See paragraphs 17 to 37.

Torts - Topic 6152

Abuse of legal procedure - Malicious prosecution - Elements of - [See second Practice - Topic 2230 ].

Torts - Topic 6167

Abuse of legal procedure - Malicious prosecution - Practice - [See both Practice - Topic 2230 ].

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 12].

Guergis v. Novak (2013), 308 O.A.C. 96; 2013 ONCA 449, refd to. [para. 15].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 17].

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 17].

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 19].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [para. 20].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 39].

Forrest v. Kirkland et al. (2012), 296 O.A.C. 244; 2012 ONSC 429 (Div. Ct.), refd to. [para. 41].

Henry v. British Columbia (Attorney General) et al. (2014), 349 B.C.A.C. 175; 596 W.A.C. 175; 370 D.L.R.(4th) 742, refd to. [para. 41].

Counsel:

Bill Biladeau, in person;

Nadia Laeeque, for the respondent.

This appeal was heard on September 19, 2014, before Juriansz, LaForme and Lauwers, JJ.A., of the Ontario Court of Appeal. LaForme, J.A., delivered the following judgment for the court on November 27, 2014.