Miguna v. Police Services Bd.,

• Jurisdiction: Ontario
• Judge: Rosenberg, Gillese and Blair, JJ.A.
• Neutral Citation: 2008 ONCA 799
• Citation: (2008), 243 O.A.C. 62 (CA),2008 ONCA 799,301 DLR (4th) 540,[2008] CarswellOnt 7120,[2008] OJ No 4784 (QL),171 ACWS (3d) 818,243 OAC 62,243 O.A.C. 62,(2008), 243 OAC 62 (CA),301 D.L.R. (4th) 540,[2008] O.J. No 4784 (QL)
• Date: 15 August 2008
• Court: Court of Appeal (Ontario)

Miguna v. Police Services Bd. (2008), 243 O.A.C. 62 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. DE.005

Miguna Miguna (plaintiff/appellant) v. Toronto Police Services Board, Toronto Police Chief Julian Fantino, Roger Shallow, Fred Braley, L. Murarotto, Allessandro "Alex" Pandolfi, Audrey Chen, Wendy Leaver, Hugo Couto and Pasquale Alberga (defendants/respondents)

(C46761; 2008 ONCA 799)

Indexed As: Miguna v. Toronto Police Services Board et al.

Ontario Court of Appeal

Rosenberg, Gillese and Blair, JJ.A.

November 28, 2008.

Summary:

Miguna commenced proceedings against the Crown, the police, the province of Ontario, the Attorney General for Ontario and Legal Aid Ontario, alleging a number of causes of action arising out of his arrest, trial and acquittal on charges of sexual assault. The defendants brought a motion to strike the claims. Paisley, J., granted the motion. Miguna appealed.

The Ontario Court of Appeal, in a decision reported at 205 O.A.C. 257, allowed the appeal. The court set aside the order of Paisley, J., except for the portion of the order which dismissed the action against the Attorney General for Ontario and Legal Aid Ontario. Miguna delivered a fresh statement of claim and, following a further demand for particulars by the defendants, an amended fresh statement of claim. In the new claim, Miguna limited his causes of action to malicious prosecution, Charter breaches, misfeasance and malfeasance in public office, negligent investigation, assault and battery, false arrest, false imprisonment, gross negligence or negligence, intentional infliction of emotional and physical distress, excessive use of force and loss of income. The defendants brought a motion to strike out the fresh amended statement of claim pursuant to rules 21.01 and 25.11.

The Ontario Superior Court, per Spence, J., in a decision reported at [2007] O.T.C. Uned. 218, struck most of the pleading. Miguna appealed.

The Ontario Court of Appeal allowed the appeal and, with some exceptions, permitted the action to proceed. Specifically, the order of Spence, J., was set aside and in its place an order was made; (a) dismissing the motion to strike out the fresh amended statement of claim and the claims against all defendants (except the Toronto Police Services Board); (b) striking out the claims against the Toronto Police Services Board, with the exception of the claim for vicarious liability on account of the claims against the individual defendants, Pandolfi, Chen, Murarotto, Couto, Alberga and Leaver; (c) striking out paras. 28 - 33 and 74 of the fresh amended statement of claim.

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - [See Practice - Topic 2230 and Torts - Topic 6155 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Miguna commenced proceedings against various prosecution and police defendants after his arrest, trial and acquittal on charges of sexual assault - After his pleading was struck out and the Court of Appeal allowed his appeal, Miguna delivered a fresh amended statement of claim, which limited his causes of action to malicious prosecution, Charter breaches, misfeasance and malfeasance in public office, negligent investigation, assault and battery, false arrest, false imprisonment, gross negligence or negligence, intentional infliction of emotional and physical distress, excessive use of force and loss of income - The defendants moved to strike out the fresh amended statement of claim pursuant to rules 21.01 and 25.11 - The motions judge struck most of the pleading - The Ontario Court of Appeal allowed Miguna's appeal - The court held that "the motion judge committed three errors in principle ... First, he struck out claims that this Court had already ruled the plaintiff was entitled to pursue. Secondly, and most significantly, he arrived at his decision by, in effect, trying the case - or, at least, dealing with the motion as if it were a motion for summary judgment - based on a meticulous analysis and weighing of the allegations in the pleading amongst themselves and compared with certain external evidence that he had. This is not the function of a judge when dealing with a pleadings motion such as this. Thirdly, he applied a test that was too narrow in relation to the central issue of malice" - See paragraph 16.

Torts - Topic 6155

Abuse of legal procedure - Malicious prosecution - Malice - Inference of - Miguna commenced proceedings against various prosecution and police defendants after his arrest, trial and acquittal on charges of sexual assault - In a fresh amended statement of claim, Miguna alleged malicious prosecution, Charter breaches, misfeasance and malfeasance in public office, negligent investigation, assault and battery, false arrest, false imprisonment, gross negligence or negligence, intentional infliction of emotional and physical distress, excessive use of force and loss of income - The defendants moved to strike out the fresh amended statement of claim pursuant to rules 21.01 and 25.11 - The motions judge struck most of the pleading - The Ontario Court of Appeal allowed Miguna's appeal - The court held that the motions judge applied a test that was too narrow in relation to the central issue of malice - The court stated that "First, his recognition of the high threshold that a plaintiff in such cases must meet led him to take an overly critical approach to the fresh amended statement of claim ... Pleadings are to be given a generous interpretation at this stage, even allowing for the careful scrutiny that a case of this nature calls for. Secondly, his formulation of the test to be applied on the crucial question of malice was too narrow ... In asking whether it was plain and obvious that a trier of fact could not conclude that malice was the only reasonable inference to be drawn from those facts, the motion judge failed to apply the law as he had articulated it. The principle is that, in the absence of direct evidence of malice, a court will not infer malice unless that is the only reasonable inference to be drawn from the facts ... Whether the evidence supporting the material facts pleaded in the claim is direct or circumstantial cannot be determined at this stage of the proceedings. Indeed, whether malice is the only reasonable inference that can be drawn from the facts pleaded is not something that is readily determined at the pleading stage ... The proper test to be applied is whether it is plain and obvious that the material facts as pleaded could not lead to a finding of malice" - See paragraphs 27 to 34.

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. 21].

Temilini v. Ontario Provincial Police Commissioner et al. (1990), 38 O.A.C. 270; 73 O.R.(2d) 664 (C.A.), refd to. [para. 21].

Prete v. Ontario et al. (1993), 68 O.A.C. 1; 16 O.R.(3d) 161 (C.A.), leave to appeal denied (1994), 175 N.R. 322; 17 O.R.(3d) xvii (S.C.C.), refd to. [para. 23, footnote 4].

Scott v. Ontario et al., [2002] O.T.C. 832 (Sup. Ct.), affd. [2003] O.A.C. Uned. 373 (C.A.), refd to. [para. 29].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201, refd to. [para. 29].

Oniel v. Metropolitan Toronto Police Force et al. (2001), 141 O.A.C. 201; 195 D.L.R.(4th) 59 (C.A.), refd to. [para. 59].

Folland v. Ontario et al. (2003), 170 O.A.C. 17; 64 O.R.(3d) 89 (C.A.), refd to. [para. 59].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 70].

Pringle v. London City Police Force et al., [1997] O.A.C. Uned. 246 (C.A.), refd to. [para. 83].

Odhavji Estate et al. v. Woodhouse et al. (2000), 142 O.A.C. 149; 52 O.R.(3d) 181 (C.A.), varied, [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 89].

Gilbert v. Gilkinson et al. (2005), 205 O.A.C. 188 (C.A.), dist. [para. 93].

Counsel:

Waikwa Wanyoike, agent for the appellant, Miguna Miguna;

Kathryn Kirkpatrick, for the respondents, Toronto Police Services Board, Toronto Police Chief Julian Fantino, L. Murarotto, Allessandro "Alex" Pandolfi, Audrey Chen, Wendy Leaver, Hugo Couto and Pasquale Alberga;

James Kendik and John Zarudny, for the respondents, Roger Shallow and Fred Braley.

This appeal was heard on August 15, 2008, before Rosenberg, Gillese and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Blair, J.A., and was released on November 28, 2008.