Hawley et al. v. Bapoo et al., 2007 ONCA 503

• Judge: O'Connor, A.C.J.O., Armstrong and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 26, 2007
• Jurisdiction: Ontario
• Citations: 2007 ONCA 503;(2007), 227 O.A.C. 81 (CA)

Hawley v. Bapoo (2007), 227 O.A.C. 81 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JL.050

Autry Austin Ricky Hawley and William Gregor McNab (plaintiffs/defendants by counterclaim/appellants) v. Abdul-Karim Bapoo (defendant/plaintiff by counterclaim/respondent) and Her Majesty the Queen in Right of Ontario, the Attorney General for Ontario, Louis A. Richer, Mary-Anne Mars (née Mackett) (defendants/respondents)

(C44428; 2007 ONCA 503)

Indexed As: Hawley et al. v. Bapoo et al.

Ontario Court of Appeal

O'Connor, A.C.J.O., Armstrong and Blair, JJ.A.

July 11, 2007.

Summary:

Two police officers used unauthorized force in escorting Bapoo to a courthouse. Bapoo swore a private information charging the officers with public mischief and assault. Prosecution was not pursued. The police officers sued Bapoo, the Ontario Crown, the Attorney General and two individual Crown attorneys for malicious prosecution. Bapoo counterclaimed for assault and breach of his s. 7 Charter rights.

The Ontario Superior Court, in a decision reported [2005] O.T.C. 894, dismissed the police officers' claim for malicious prosecution. The court allowed Bapoo's counterclaim for breach of his Charter rights and awarded him damages. The police officers appealed.

The Ontario Court of Appeal dismissed the appeal in respect of the malicious prosecution claim but allowed it in respect of the Charter rights breach claim. The court ruled that failure to give the notice of a constitutional claim required by s. 109(1) of the Courts of Justice Act (Ont.) did not alter the way the Attorney General conducted the litigation (see paragraphs 11 to 13). The court affirmed the award of costs on a substantial indemnity scale in favour of Bapoo on the malicious prosecution claim even though it was not appropriate for the trial judge to affix the label "perjury" to the police officers' testimony (see paragraphs 14 to 18). The court reduced by 40% the costs awarded at trial to Bapoo on his breach of Charter rights claim.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The trial judge awarded Bapoo damages under s. 24(1) of the Canadian Charter of Rights and Freedoms for breach of Bapoo's s. 7 rights - The trial judge ruled that mala fides or wilfulness to breach the Charter were not essential prerequisites to awarding damages under s. 24(1) - The ruling was appealed - While the appeal was pending, the Ontario Court of Appeal released its decision in Mammoliti v. Niagara Regional Police Service et al., in which it held that liability for a constitutional tort under s. 7 required proof of wilfulness or mala fides - As a result, the Ontario Court of Appeal quashed the damage award in favour of Bapoo - See paragraphs 6 to 10.

Cases Noticed:

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 5].

Mammoliti v. Niagara Regional Police Service et al. (2007), 219 O.A.C. 340 (C.A.), consd. [para. 8].

Counsel:

Kenneth E. Jull, for the appellants;

Ian R. Smith and Brian G. Shiller, for the respondent, Abdul-Karim Bapoo;

Michael Fleishman and Amy Leamen, for the respondents, Her Majesty the Queen in Right of Ontario, the Attorney General for Ontario, Louis A. Richer and Mary-Anne Mars.

This appeal was heard on June 26, 2007, by O'Connor, A.C.J.O., Armstrong and Blair, JJ.A., of the Ontario Court of Appeal. The Court of Appeal released the following endorsement on July 11, 2007.