Pate v. Galway-Cavendish, (2013) 312 O.A.C. 244 (CA)

• Judge: Doherty, Cronk and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 29, 2013
• Jurisdiction: Ontario
• Citations: (2013), 312 O.A.C. 244 (CA);2013 ONCA 669

Pate v. Galway-Cavendish (2013), 312 O.A.C. 244 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. NO.007

The Estate of John Gordon Pate (respondent) v. The Corporation of the Township of Galway-Cavendish and Harvey (appellant)

(C56406; C54717; 2013 ONCA 669)

Indexed As: Pate v. Galway-Cavendish (Township) et al.

Ontario Court of Appeal

Doherty, Cronk and Lauwers, JJ.A.

November 5, 2013.

Summary:

The plaintiff was employed for over nine years by the defendant township as the Chief Building Official and later a Building Inspector. His employment was terminated without notice for the alleged theft of building permit fees. He was acquitted of related criminal charges. He sued the defendant for wrongful dismissal and malicious prosecution. At trial, the defendant conceded that the plaintiff was entitled to 12 months' notice.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. U26, allowed the wrongful dismissal claim but dismissed the malicious prosecution claim. The trial judge awarded the plaintiff a four month bump-up for Wallace damages, $75,000 for general and aggravated damages for intentional infliction of mental distress and social and economic damages, $7,500 for special damages, and $25,000 for punitive damages. The plaintiff appealed. He argued that the trial judge erred in failing to find the defendant liable for malicious prosecution and in assessing punitive damages at only $25,000.

The Ontario Court of Appeal, in a decision reported at 280 O.A.C. 230, allowed the appeal, set aside the trial judge's order dismissing the malicious prosecution claim and the award of punitive damages and ordered a new trial concerning these two issues. The defendant sought leave to appeal to the Supreme Court of Canada on the malicious prosecution issue.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 6620, awarded the plaintiff punitive damages of $550,000 on the wrongful dismissal claim.

The Supreme Court of Canada, in a decision reported at 434 N.R. 397, dismissed the motion for leave to appeal on the malicious prosecution issue.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 6740, found the defendant liable to the plaintiff for malicious prosecution. Pursuant to the agreement of counsel, the court awarded the plaintiff damages of $1 and costs of $20,000, inclusive of HST and disbursements, payable in the cause. The defendant appealed the quantum of the award of punitive damages and the finding of malicious prosecution.

The Ontario Court of Appeal dismissed the appeal from the trial judge's finding of malicious prosecution, but reduced the punitive damages award to $450,000. Lauwers, J.A., dissenting in part, would have dismissed the appeal in its entirety.

Damage Awards - Topic 2014

Exemplary or punitive damages - Wrongful dismissal - [See second Damages - Topic 1326 ].

Damages - Topic 1326

Exemplary or punitive damages - Wrongful dismissal - The Ontario Court of Appeal held that a trial judge applied the wrong test when awarding punitive damages for wrongful dismissal - The court stated that "... the trial judge's focus was on whether punitive damages would serve a rational purpose in this case . The necessary inquiry, however, was not whether punitive damages would serve a rational purpose in this case but, rather, what amount of punitive damages, taken together with the other compensation to which [the plaintiff] was already entitled, was rationally required to meet the objectives of retribution, deterrence and denunciation. The trial judge did not address this question. Instead, by focusing on the wrong issue, he misdirected himself on the fundamental inquiry he was obliged to undertake. It is important to emphasize that compensatory damages have a punitive element." - See paragraphs 210 to 212.

Damages - Topic 1326

Exemplary or punitive damages - Wrongful dismissal - The plaintiff was employed for over nine years by the defendant township as the Chief Building Official and later a Building Inspector - His employment was terminated without notice for the alleged theft of building permit fees - He was acquitted of related criminal charges - He sued the defendant for wrongful dismissal and malicious prosecution - At trial, the defendant conceded that the plaintiff was entitled to 12 months' notice - Damages, including punitive damages of $550,000 were assessed - In a separate trial, the malicious prosecution claim was allowed and, pursuant to the agreement of counsel, the court awarded the plaintiff damages of $1 and costs of $20,000, inclusive of HST and disbursements, payable in the cause - The Ontario Court of Appeal allowed the defendant's appeal from the punitive damages award - When the full circumstances of the case were considered, including the total compensation to which the plaintiff was already entitled under the trial judge's other damages awards, costs award and costs premium, and by the parties' agreement concerning wrongful dismissal damages, a $450,000 punitive damages award was sufficient to meet the need for additional punishment of the defendant - This amount amply denounced the defendant's conduct and achieved the additional objectives of retribution and deterrence - See paragraphs 183 to 239.

Torts - Topic 6153

Abuse of legal procedure - Malicious prosecution - Prosecution or initiation of proceedings defined - The plaintiff was employed for over nine years by the defendant township as the Chief Building Official and later a Building Inspector - His employment was terminated without notice for the alleged theft of building permit fees - He was acquitted of related criminal charges - He sued the defendant for wrongful dismissal and malicious prosecution - At trial, the defendant conceded that the plaintiff was entitled to 12 months' notice and damages were assessed - The trial judge allowed the malicious prosecution claim - On appeal, the defendant submitted, inter alia, that the trial judge erred in finding that the test for initiating malicious prosecution had been met - The defendant argued that the trial judge: (1) erred in holding that withholding exculpatory evidence was sufficient to meet the initiation test; (2) failed to give due weight to the inadequate nature of the police investigation; and (3) considered irrelevant factors in concluding that the defendant initiated the prosecution - The Ontario Court of Appeal dismissed the appeal - The court held, inter alia, that the element of initiation could be satisfied if the defendant knowingly withheld exculpatory information from the police that the police could not be expected to find in all the circumstances - See paragraphs 21 to 89 and 182.

Cases Noticed:

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Mirra et al. v. Toronto Dominion Bank et al., [2004] O.T.C. 365 (Sup. Ct.), dist. [para. 22].

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. 22].

McNeil v. Brewers Retail Inc. et al., [2008] O.A.C. Uned. 724; 2008 ONCA 405, consd. [paras. 27, 198].

Kefeli v. Centennial College of Applied Arts and Technology et al., [2002] O.A.C. Uned. 187; 23 C.P.C.(5th) 35 (C.A.), not folld. [para. 27].

Oniel v. Metropolitan Toronto Police Force et al. (2001), 141 O.A.C. 201; 195 D.L.R.(4th) 59 (C.A.), dist. [para. 44].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 82].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, appld. [paras. 99, 198].

Walker and Walker Brothers Quarries Ltd. v. CFTO Ltd. et al. (1987), 19 O.A.C. 10; 59 O.R.(2d) 104 (C.A.), refd to. [para. 113].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, appld. [paras. 116, 198].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [paras. 121, 188].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, appld. [paras. 121, 206, footnote 2].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 122].

CivicLife.com Inc. v. Canada (Attorney General) (2006), 215 O.A.C. 43 (C.A.), refd to. [paras. 128, 209].

Downham v. Lennox and Addington (County), [2005] O.T.C. 1025; 56 C.C.E.L.(3d) 112 (Sup. Ct.), refd to. [para. 136].

Bouma v. Flex-N-Gate Canada Co. (2004), 37 C.C.E.L.(3d) 301 (Ont. Sup. Ct.), refd to. [para. 136].

Mastrogiuseppe v. Bank of Nova Scotia, [2007] O.A.C. Uned. 411; 2007 ONCA 726, affing. in part [2005] O.T.C. 1132 (Sup. Ct.), refd to. [para. 136].

Francis v. Canadian Imperial Bank of Commerce (1994), 75 O.A.C. 216; 21 O.R.(3d) 75 (C.A.), refd to. [para. 136].

Ribeiro v. Canadian Imperial Bank of Commerce (1992), 13 O.R.(3d) 278 (C.A.), leave to appeal refused (1993), 157 N.R. 400; 65 O.A.C. 79 (S.C.C.), refd to. [para. 136].

Lounsbury v. Dakota Tipi First Nation (2011), 264 Man.R.(2d) 172; 2011 MBQB 96, refd to. [para. 137].

Elgert v. Home Hardware Stores Ltd. et al. (2011), 510 A.R. 1; 527 W.A.C. 1; 336 D.L.R.(4th) 313; 2011 ABCA 112, leave to appeal refused (2011), 430 N.R. 389; 533 A.R. 402; 557 W.A.C. 402 (S.C.C.), refd to. [para. 137].

Altman v. Steve's Music Store Inc., [2011] O.T.C. Uned. 1480; 89 C.C.E.L.(3d) 120; 2011 ONSC 1480, refd to. [para. 137].

Brito et al. v. Canac Kitchens, [2011] O.T.C. Uned. 1011; 87 C.C.E.L.(3d) 184; 2011 ONSC 1011, refd to. [para. 137].

Brito et al. v. Canac Kitchens (2012), 287 O.A.C. 293; 2012 ONCA 61, refd to. [para. 137].

MacDonald-Ross v. Connect North America Corp. et al. (2010), 364 N.B.R.(2d) 222; 937 A.P.R. 222; 2010 NBQB 250, refd to. [para. 137].

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Nishina v. Azuma Foods (Canada) Co., [2010] B.C.T.C. Uned. 502; 2010 BCSC 502, refd to. [para. 137].

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Fedele v. Windsor Teachers Credit Union Ltd., [2000] O.T.C. Uned. 729 (Sup. Ct.), affd. [2001] O.A.C. Uned. 209; 10 C.C.E.L.(3d) 254 (C.A.), refd to. [para. 139].

Lukowski v. Hatch Associates Ltd. (1996), 22 O.T.C. 1; 25 C.C.E.L.(2d) 17 (Gen. Div.), affd. (1998), 118 O.A.C. 147 (C.A.), refd to. [para. 139].

Kagal et al. v. Tessler et al. (2004), 190 O.A.C. 77 (C.A.), leave to appeal refused (2005), 341 N.R. 199; 207 O.A.C. 396 (S.C.C.), refd to. [para. 139].

McQueen v. Echelon General Insurance Co. (2011), 285 O.A.C. 64; 107 O.R.(3d) 780; 2011 ONCA 649, refd to. [para. 140].

Agribrands Purina Canada Inc. v. Kasamekas et al. (2011), 278 O.A.C. 363; 334 D.L.R.(4th) 714; 2011 ONCA 460, refd to. [para. 140].

Barber et al. v. Vrozos et al. (2010), 269 O.A.C. 108; 322 D.L.R.(4th) 577; 2010 ONCA 570, refd to. [para. 140].

Modern Niagara Group Inc. v. Armstrong Thomson Tubman Leasing Ltd. et al., [2009] O.A.C. Uned. 749; 2009 ONCA 877, refd to. [para. 140].

Panapers Inc. et al. v. 1260539 Ontario Ltd. et al. (2007), 219 O.A.C. 338; 2007 ONCA 3, refd to. [para. 140].

Barrick Gold Corp. v. Lopehandia et al. (2004), 187 O.A.C. 238; 71 O.R.(3d) 416 (C.A.), refd to. [para. 140].

Gu et al. v. Tai Foong International Ltd. et al. (2003), 168 O.A.C. 47 (C.A.), refd to. [para. 140].

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Ward et al. v. Manufacturers Life Insurance Co. (2007), 235 O.A.C. 325; 288 D.L.R.(4th) 733; 2007 ONCA 881, refd to. [para. 140].

Plester v. Wawanesa Mutual Insurance Co. (2006), 213 O.A.C. 241 (C.A.), additional reasons (2006), 215 O.A.C. 187 (C.A.), leave to appeal refused (2006), 363 N.R. 392; 228 O.A.C. 398 (S.C.C.), refd to. [para. 140].

Richard v. Time Inc. et al., [2012] 1 S.C.R. 265; 427 N.R. 203; 2012 SCC 8, refd to. [para. 143].

RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. et al., [2008] 3 S.C.R. 79; 380 N.R. 166; 260 B.C.A.C. 198; 439 W.A.C. 198; 2008 SCC 54, refd to. [para. 144].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 161].

Hughes v. Gemini Food Corp. (1997), 97 O.A.C. 147 (C.A.), affing. [1992] O.J. No. 2556 (C.J.), refd to. [para. 162].

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Leenen v. Canadian Broadcasting Corp. et al. (2001), 147 O.A.C. 317; 54 O.R.(3d) 612 (C.A.), refd to. [para. 163].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed.) (2011 Looseleaf Supp.), p. 2-248.2 [para. 161].

Counsel:

George Avraam and Mark Mendl, for the appellant;

Jeffrey D. Ayotte and David J.M. O'Neill, for the respondent.

This appeal was heard on April 29, 2013, by Doherty, Cronk and Lauwers, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following decision on November 5, 2013, which was comprised of the following opinions:

Lauwers, J.A., dissenting in part - see paragraphs 1 to 181;

Cronk, J.A. (Doherty, J.A., concurring) - see paragraphs 182 to 240.