Kvello et al. v. Miazga et al., 2003 SKQB 559

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 30, 2003
• Jurisdiction: Saskatchewan
• Citations: 2003 SKQB 559;(2003), 244 Sask.R. 1 (QB)

Kvello v. Miazga (2003), 244 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. JA.036

The Estate of Dennis Kvello (by his personal representative, Diane Kvello), Diane Kvello, Sheldon Kvello, Sherry Kvello, Kari Klassen, Richard Klassen, Pamela Sharpe, The Estate of Marie Klassen (by her personal representative Peter Dale Klassen), John Klassen, Myrna Klassen, Peter Dale Klassen, Anita Janine Klassen (plaintiffs) v. Matthew Miazga, Sonja Hansen, The Estate of Richard Quinney (by his personal representative Murray Brown), Brian Dueck, Carol Bunko-Ruys (defendants)

Matthew Miazga and Sonja Hansen (plaintiffs by counterclaim) v. Richard Klassen (defendant by counterclaim)

(1994 Q.B.G. No. 271; 2003 SKQB 559)

Indexed As: Kvello et al. v. Miazga et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Baynton, J.

December 30, 2003.

Summary:

The plaintiffs were charged with sexual assault against various foster children. The charges were eventually stayed. The plaintiffs sued numerous defendants involved in the conduct of the prosecution for malicious prosecution, breach of their Charter rights, abuse of power, false imprisonment, negligence and conspiracy to injure. Two defendants (Miazga and Hansen) counterclaimed against one of the plaintiffs (Richard Klassen) for defamation. The issues of liability and quantum of damages were severed. At the conclusion of the plaintiffs' case, the defendants brought non-suit motions to dismiss the various causes of action.

The Saskatchewan Court of Queen's Bench, in a decision reported [2003] 242 Sask.R. 19, allowed the motion in part. The court allowed the motion respecting the defendant estate of Richard Quinney. The court also allowed the motion against all the defendants respecting the false imprisonment claim. The trial continued.

The Saskatchewan Court of Queen's Bench allowed the action for malicious prosecution against the defendants Miazga, Dueck and Bunko-Ruys. The action for malicious prosecution was dismissed against the defendant Hansen. The court dismissed the plaintiffs' action for breach of their Charter rights, abuse of power, negligence and conspiracy to injure as they were collateral causes of action and therefore subsumed within the malicious prosecution action. The court dismissed the defendants Miazga and Hansen's counterclaim.

Barristers and Solicitors - Topic 1802

The prosecutor - Role of - The plaintiffs were charged with sexual assault against various foster children - The charges were eventually stayed - The complaints were fabricated - The plaintiffs sued, inter alia, Crown prosecutors for malicious prosecution - The Saskatchewan Court of Queen's Bench stated that this case "is a prime example of why the law requires prosecutors to be more than the legal counsel for a parent, a child complainant, a foster parent and Social Services. Notwithstanding the views of some prosecutors, these individuals are not their clients. Nor does a prosecutor act on behalf of such individuals. A prosecutor is an officer of the court who represents the Crown. There is a very compelling rationale for requiring prosecutors to be principled, fair, open-minded and cognizant of the risk of ruining the lives of innocent people by taking unworthy cases to court. A prosecutor has a much greater opportunity to make credibility assessments of his or her witnesses than does the court." - See paragraph 398.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The plaintiffs were charged with sexual assault - Eventually the charges were stayed - The plaintiffs sued for malicious prosecution, breach of their Charter rights, abuse of power, negligence (including negligent investigation) and conspiracy to injure - The Saskatchewan Court of Queen's Bench allowed the action for malicious prosecution - However, the court dismissed the plaintiffs' action for breach of their Charter rights, abuse of power, negligence and conspiracy to injure as they were collateral causes of action and therefore subsumed within the malicious prosecution action - See paragraphs 322 to 331.

Evidence - Topic 510

Presentation of evidence - Rebuttal evidence - General principles - The Saskatchewan Court of Queen's Bench stated that the "dynamics of a civil case are quite different from those of a criminal case. The potential of prejudice to a defendant by the admission of rebuttal evidence in a civil case is often less than that to an accused in a criminal case. On the other hand, the potential for 'the interminable confusion that would be created by an unending alternation of successive fragments of each case' is greater in a civil case than a criminal case. It would appear that the courts are beginning to move away from the 'categories' approach to this issue and take a more principled or functional approach, much like what has been taking place in the law of evidence where decisions are driven by the circumstances of each particular case." - See paragraph 483.

Evidence - Topic 512

Presentation of evidence - Rebuttal evidence - To contradict witnesses - The plaintiffs were charged with sexual assault - The charges were eventually stayed - The plaintiffs sued, inter alia, the investigating police officer (Dueck) for malicious prosecution - At the close of the defendants' case, the plaintiffs applied for leave to call a rebuttal witness - A new witness, on her own accord, had contacted one of the plaintiffs' counsel (Borden) three days before the defendants' closed their case - The plaintiffs argued that the evidence was tendered to contradict Dueck's evidence, that the issue was material, was addressed as part of the plaintiffs' case and involved Dueck's credibility - The Saskatchewan Court of Queen's Bench allowed the application - The evidence was not known to the plaintiffs, nor could it have been known to them through proper diligence, when they closed their case - The evidence pertained to a substantive issue and would contradict a previous inconsistent statement made by Dueck - Any potential prejudice to Dueck could be addressed by giving him the opportunity, accompanied by an order for costs, to give surrebuttal evidence - See paragraphs 466 to 486.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation - [See Civil Rights - Topic 8375 ].

Police - Topic 5222

Actions against police - For malicious prosecution - What constitutes - [See first Torts - Topic 6161 ].

Police - Topic 5224

Actions against police - For malicious prosecution - Requirement of malice - [See Torts - Topic 6155 and second Torts - Topic 6156 ].

Torts - Topic 5701

Conspiracy - General - [See Civil Rights - Topic 8375 ].

Torts - Topic 6153

Abuse of legal procedure - Malicious prosecution - Prosecution or initiation of proceedings defined - The plaintiffs were charged with sexual assault against various foster children - The charges were eventually stayed - The complaints were fabricated - The plaintiffs sued, inter alia, a child care worker/therapist (Bunko-Ruys), the investigating police officer and Crown prosecutors for malicious prosecution - One element of malicious prosecution was initiation of proceedings - The Saskatchewan Court of Queen's Bench held that Bunko-Ruys was instrumental in initiating and maintaining the criminal proceedings against the plaintiffs - But for her involvement, the plaintiffs would never have been charged and, even if charges had been laid, the prosecutors would never have proceeded with the court hearings - See paragraphs 333 to 348.

Torts - Topic 6153

Abuse of legal procedure - Malicious prosecution - Prosecution or initiation of proceedings defined - The plaintiffs were charged with sexual assault against various foster children - The charges were eventually stayed - The complaints were fabricated - The plaintiffs sued, inter alia, a child care worker/therapist (Bunko-Ruys), the investigating police officer and two Crown prosecutors (Miazga and Hansen) for malicious prosecution - The Saskatchewan Court of Queen's Bench held that Miazga, Dueck and Bunko-Ruys had no reasonable and probable cause to initiate and continue the plaintiffs' prosecution - They acted in concert to pursue proceedings that would never have been pursued but for the involvement of each of them - However, Hansen did not maliciously prosecute the plaintiffs - She had little to do with Dueck and not much more to do with Bunko-Ruys - She was not involved in the case until after the initial charges were laid - Hansen took a subordinate role to Miazga - She had reasonable and probably grounds to prosecute the plaintiffs' on the charges involving the child complainant's under her responsibility (non Ross charges) - Hansen did not "prosecute" the plaintiffs in the strict legal sense respecting the Ross charges - They were prosecuted by Miazga - Hansen played a secondary role and left all decisions respecting the Ross charges to Miazga - She was more of an assistant than co-prosecutor - Therefore, from a functional perspective, she neither initiated or continued the proceedings respecting the Ross charges - See paragraphs 445 to 465.

Torts - Topic 6155

Abuse of legal procedure - Malicious prosecution - Malice - Inference of - The plaintiffs were charged with sexual assault - The charges were eventually stayed - The complaints were fabricated - The plaintiffs sued, inter alia, a child care worker/therapist (Bunko-Ruys), the investigating police officer (Dueck) and Crown prosecutors (Miazga and Hansen) for malicious prosecution - The Saskatchewan Court of Queen's Bench stated, inter alia, that there were many strong indications of malice that were inferred from the defendants' conduct - Dueck totally abrogated his duty to carry out a proper investigation - He conducted himself as if he had "tainted tunnel vision" - Miazga totally abrogated his duty as the primary prosecutor to make an objective and competent assessment of the case he was consulted about and which he aggressively prosecuted - Dueck and Miazga were selective in who they charged and prosecuted - Both prosecutors presented witnesses to the court who they knew were not credible - All the defendants lacked regret or remorse for what they had done - They lacked concern for whether the plaintiffs might be innocent - After the stays, Bunko-Ruys withheld the fact that one of the children had recanted - At times, Miazga was not fair or objective in his prosecution - He was overly aggressive and protective of the complainants and Crown experts - See paragraphs 382 to 420.

Torts - Topic 6156

Abuse of legal procedure - Malicious prosecution - Malice - What constitutes - The Saskatchewan Court of Queen's Bench stated that "The defendants contend that the plaintiffs must prove they acted dishonestly in order to establish this element [malice] of a malicious prosecution cause of action. I reject this contention if the defendants interpret the concept of dishonesty narrowly to exclude all improper or unlawful conduct except serious misconduct such as fabricating evidence or accepting a bribe. The case law I have cited, particularly the recent case law, does not equate the concept of malice with a narrow interpretation of dishonesty. A much broader interpretation is given to the concept of malice as an essential element of a malicious prosecution cause of action." - See paragraph 379.

Torts - Topic 6156

Abuse of legal procedure - Malicious prosecution - Malice - What constitutes - The plaintiffs were charged with sexual assault against various foster children - The charges were eventually stayed - The complaints were fabricated - The plaintiffs sued, inter alia, a child care worker/therapist (Bunko-Ruys), the investigating police officer and Crown prosecutors for malicious prosecution - The Saskatchewan Court of Queen's Bench stated that "Some of the cases I cited hold that in extraordinary circumstances, laying criminal charges and proceeding with the prosecution of them in the absence of reasonable and probable cause, can of itself constitute malice or at least constitute an indication of malice. Surely if a malicious prosecution case with extraordinary circumstances exists, it is the case before me. It is a high profile case that charged many individuals with serious criminal offences. It had the potential to visit disastrous consequences on those charged even if they were later found to be innocent. There was a glaring absence of any reasonable and probable cause to lay and prosecute the charges. If these factors do not constitute extraordinary circumstances, I cannot conceive of a set of circumstances that would do so. In my view, proceeding with charges in such an extraordinary case in the absence of reasonable and probable cause constitutes a strong presumption of malice. The same consequences flow from continuing on with the prosecution of such a case." - See paragraph 381.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - The plaintiffs were charged with sexual assault against various foster children - The charges were eventually stayed - The complaints were fabricated - The plaintiffs sued, inter alia, a child care worker/therapist (Bunko-Ruys), the investigating police officer (Dueck) and a Crown prosecutor (Miazga) for malicious prosecution - One element was reasonable and probable cause - The Saskatchewan Court of Queen's Bench held that none of these defendants believed many of the children's allegations - There were no reasonable grounds on which the defendants could base an honest belief in the probable guilt of the plaintiffs - The three defendants did not have reasonable and probable cause to initiate and continue the proceedings against the plaintiffs - The charges were brought solely on the allegations of three dysfunctional children who were known to be untruthful and who demonstrated that they were witnesses who lacked credibility - See paragraphs 356 to 378.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - [See second Torts - Topic 6153 ].

Torts - Topic 6163

Abuse of legal procedure - Malicious prosecution - Persons responsible - [See both Torts - Topic 6153 ].

Torts - Topic 6165

Abuse of legal procedure - Malicious prosecution - Favourable termination of proceeding - The plaintiffs were charged with sexual assault against various foster children - The charges were eventually stayed - A co-accused, Peter Klassen, who was not a plaintiff, pled guilty to four counts of sexual assualt - The plaintiffs sued, inter alia, a child care worker/therapist, the investigating police officer and Crown prosecutors for malicious prosecution - The defendants argued that the charges were stayed as part of a plea bargain in which Peter Klassen pled guilty - Therefore, the malicious prosecution action failed as the proceedings were not resolved in the plaintiffs' favour - The Saskatchewan Court of Queen's Bench rejected the argument - The plaintiffs were not a party to the plea bargain - The Crown stayed the charges because it was left with no case to pursue against the plaintiffs - See paragraphs 349 to 355.

Torts - Topic 6170

Abuse of legal procedure - Malicious prosecution - Defences - General - The plaintiffs were charged with sexual assault against various foster children - The charges were eventually stayed - The complaints were fabricated - The plaintiffs sued, inter alia, a child care worker/therapist, the investigating police officer and two Crown prosecutors for malicious prosecution - These defendants sought to rely on the Saskatoon Sexual Abuse of Children Protocol in their attempts to justify why they took a subjective rather than an objective view of the children's allegations - The Protocol gave a list of instructions to give directions and provide a consistent approach to those responsible for the reporting and investigation of child abuse - The Saskatchewan Court of Queen's Bench reviewed the Protocol and held that these defendants could not rely on the Protocol to exclude them from liability - They did not comply with the Protocol - Even if they had done so, it could not relieve them of their legal obligations - See paragraphs 212 to 238.

Torts - Topic 6170

Abuse of legal procedure - Malicious prosecution - Defences - General - The plaintiffs were charged with sexual assault against various foster children - The charges were eventually stayed - The complaints were fabricated - The plaintiffs sued, inter alia, a child care worker/therapist, the investigating police officer and two Crown prosecutors for malicious prosecution - These defendants pointed to four events involving the views of third parties which allegedly showed that they had no malice and had reasonable and probable cause to lay charges and to continue on with the prosecution - First, there was a finding of credibility respecting the children in another prosecution - Second, the preliminary inquiries judge made credibility comments - Third, the prosecutors sought and received instructions from their superiors - Fourth, a preliminary inquiry judge encouraged a prosecutor to proceed with the case - The Saskatchewan Court of Queen's Bench rejected the arguments - The court stated, inter alia, that a prosecutor could not "bootstrap" his or her position by relying on the decision of a third party - See paragraphs 421 to 444.

Torts - Topic 6251

Abuse of legal procedure - Abuse of process - General - [See Civil Rights - Topic 8375 ].

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. 299].

Hicks v. Faulkner (1878), 8 Q.B.D. 167, refd to. [para. 300].

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 304].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201; 2001 SCC 66, refd to. [para. 305].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 306].

Klein et al. v. Seiferling et al., [1999] 10 W.W.R. 554; 179 Sask.R. 161 (Q.B.), refd to. [para. 308].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 75 C.R.(3d) 1, refd to. [para. 308].

Dix v. Canada (Attorney General) et al., [2002] 1 W.W.R. 436; 315 A.R. 1; 2002 ABQB 580, refd to. [para. 308].

Oniel v. Metropolitan Toronto Police Force et al. (2001), 141 O.A.C. 201; 195 D.L.R.(4th) 59 (C.A.), leave to appeal refused (2001), 284 N.R. 397; 158 O.A.C. 199 (S.C.C.), refd to. [para. 314].

Gabadon v. Toronto Police Services Board et al., [2003] O.T.C. 485; 16 C.C.L.T.(3d) 225 (Sup. Ct.), refd to. [para. 315].

Lacombe et al. v. André et al. (2003), 11 C.R.(4th) 92 (Que. C.A.), refd to. [para. 315].

Romegialli v. Marceau (1963), 42 D.L.R.(2d) 481 (Ont. C.A.), refd to. [para. 317].

Berman v. Jenson (1989), 77 Sask.R. 161 (Q.B.), refd to. [para. 318].

Hinde v. Skibinski (1994), 21 C.C.L.T.(2d) 314 (Ont. Gen. Div.), refd to. [para. 319].

Samuel Manu-Tech Inc. v. Redipac Recycling Corp. et al. (1998), 66 O.T.C. 16 (Gen. Div.), refd to. [para. 319].

Fitzjohn v. Mackinder (1861), 9 C.B.N.S. 505 (Ex. Ct.), refd to. [para. 319].

Wood v. Kennedy (1998), 76 O.T.C. 321; 165 D.L.R.(4th) 542 (Gen. Div.), refd to. [para. 320].

Small v. Newfoundland and Labrador (Department of Human Resources and Employment) et al. (2003), 227 Nfld. & P.E.I.R. 1; 677 A.P.R. 1; 2003 NLSCTD 90, refd to. [para. 321].

Stillwater Forest Inc. et al. v. Clearwater Forest Products Limited Partnership et al., [2000] Sask.R. Uned. 127; 2000 SKQB 110, refd to. [para. 322].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 30 C.C.C.(2d) 424, refd to. [para. 432].

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61, refd to. [para. 472].

R. v. Fisher (L.) (2003), 238 Sask.R. 91; 305 W.A.C. 91; 2003 SKCA 90, refd to. [para. 474].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 476].

R. v. Biddle (E.R.), [1995] 1 S.C.R. 761; 178 N.R. 208; 79 O.A.C. 128, refd to. [para. 476].

R. v. Melnichuk (L.), [1997] 1 S.C.R. 602; 209 N.R. 321; 99 O.A.C. 218, refd to. [para. 476].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 477].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 478].

R. v. Proctor (1992), 75 Man.R.(2d) 217; 6 W.A.C. 217; 69 C.C.C.(3d) 436 (C.A.), refd to. [para. 479].

Allcock, Laight & Westwood Ltd. v. Patten et al., [1967] 1 O.R. 18 (C.A.), refd to. [para. 480].

Sood v. College of Physicians and Surgeons (Sask.), [1996] 2 W.W.R. 668; 139 Sask.R. 36 (Q.B.), refd to. [para. 480].

Authors and Works Noticed:

Clerk and Lindsell on Torts (18th Ed. 2000), para. 16-12 [para. 321].

Mewett, A.W., and Sankoff, P.J., Witnesses (current to Rel. 2003-1), vol. 1, para. 2.5(c)(i) [para. 481].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), para. 16.158 [para. 473].

Sopinka, John, and Lederman, Sydney N., The Law of Evidence in Civil Cases (1974), p. 517 [para. 482].

Counsel:

Robert L. Borden and Edward Holgate, for all the plaintiffs except Richard Klassen;

Richard Klassen on his own behalf;

Donald A. McKillop, Q.C., and Jerome A. Tholl, for the defendants except Brian Dueck;

David A. Gerrand and Stephen D. McLellan, for Brian Dueck.

This action was heard by Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who released the following decision on December 30, 2003.