



COURT OF APPEAL FOR ONTARIO

CITATION: Fitzpatrick v. Orwin, 2014 ONCA
    124

DATE: 20140214

DOCKET: C55718

Gillese, Rouleau and Tulloch JJ.A.

BETWEEN

David Fitzpatrick

Plaintiff (Appellant)

and

Shelley Orwin,
Bill Squires
and
Anne Squires

Defendants (
Respondents
)

J. Morton, for the appellant

H. Rosenberg, for the respondents

Heard: February 13, 2014

On appeal from the judgment of Justice David G. Stinson of
    the Superior Court of Justice, dated June 18, 2012, with reasons reported at
    2012 ONSC 3492.

ENDORSEMENT

[1]

The appellant unsuccessfully sued the respondents for nuisance,
    malicious prosecution and conspiracy.  The respondents succeeded on their
    counterclaim for intentional infliction of mental distress, trespass and
    wrongful registration of a certificate of pending litigation.

[2]

On appeal, the appellant contends that the trial judge erred in drawing
    an inference in the absence of any direct or sufficient evidence on a material
    matter in issue.

FACTS

[3]

The parties were neighbours whose relationship deteriorated following
    the death of the appellants mother.

[4]

On November 11, 2007, the respondents contacted police regarding a
    verbal altercation between the appellant and Mr. OCarroll, an individual hired
    by the respondents to build a fence on the boundary line of the parties
    properties. An audio recording of the incident captured the appellant
    threatening Mr. OCarroll and using profane language.

[5]

The following morning, the respondent Bill Squires went outside to his
    car.  To his horror, he discovered a large dead coyote on the hood of his
    pickup truck, with blood dripping out of its mouth.

[6]

The respondents video surveillance showed that during the evening of
    November 11, a figure approached the camera. Shortly afterward, the picture
    went dark. A subsequent inspection revealed that a cable had been detached from
    the camera.

[7]

On November 13, the appellant was arrested and charged with criminal
    harassment. He denied placing the coyote carcass on the respondents car. The
    appellant remained in custody until released on bail on November 20, 2007. The
    Crown eventually concluded that there was no reasonable prospect of conviction
    and withdrew the charge.

[8]

The respondents decided to sell their home and move elsewhere, at which
    point they discovered the appellants action against them for damages for
    nuisance, malicious prosecution and conspiracy. The appellant then obtained a
    certificate of pending litigation against the respondents home.

[9]

At trial, the appellant abandoned his claims for nuisance and
    conspiracy, proceeding only with the claim for malicious prosecution.

THE TRIAL DECISION

[10]

The
    trial judge did not find the appellant to be credible. He described the
    appellants account of the encounter with Mr. OCarroll as patently
    untruthful. Other than in relation to matters corroborated by the documentary
    record, the trial judge did not rely on his testimony.

[11]

The
    trial judge had concerns with some aspects of the respondents testimony.
    However, in relation to the material events, he found their testimony firm and
    specific and corroborated by other evidence. He concluded that the
    respondents testimony about the core events was both credible and reliable.

[12]

Wherever
    there was a conflict between the appellants and the respondents evidence as
    to what transpired on November 11 and 12, 2007, the trial judge expressly
    rejected the appellants testimony and accepted that of the respondents, Mr.
    OCarroll and the investigating police officer.

[13]

The
    trial judge made the following pertinent findings of fact:

·

The appellant acted in an increasingly hostile and abusive
    fashion toward the respondents after his mothers death.  His hostility was
    manifested in insults, abusive language and failure to respect the property
    line between their driveways.

·

On repeated occasions, the appellant shouted at the respondents
    using profane and abusive language;

·

The respondents attempted to assert their property rights by
    having a surveyor stake the property line, but the appellant removed the stakes
    and knowingly trespassed on the respondents property;

·

With respect to the altercation on November 11, the appellant
    engaged in an unprovoked and verbally abusive confrontation with Mr. OCarroll,
    during which he became enraged, shouted profanities and made threats;

·

When the respondents listened to the tape of the incident, they
    felt genuinely threatened by the appellant and their decision to contact the
    police that day was made in good faith, based on genuine and well-founded
    concerns about their personal safety;

·

The respondents believed that there were reasonable and probable
    grounds that the appellant had committed criminal harassment, and there were in
    fact reasonable and probable grounds to reach this conclusion.

[14]

Of
    most significance to this appeal is the further finding by the trial judge that
    the appellant, or someone acting on his behalf, disabled the respondents video
    camera and placed the coyote carcass on the hood of their truck.  In reaching
    this inference, the trial judge referred to, among other things: the ongoing,
    persistent, and increasing level of hostility the appellant had displayed to
    the respondents; the persistent dispute over the property line; the encounter
    between Mr. OCarroll and the appellant on November 11; and the respondents
    evidence that on the morning of November 12, 2007, when Mr. Squires emerged
    from his home at his usual departure time, the appellant had stationed himself
    in his own driveway so that he could observe Mr. Squires reaction when he
    discovered the dead coyote.

[15]

The
    trial judge dismissed the appellants claim for malicious prosecution. The
    respondents had not initiated the criminal proceeding. In any event, there were
    reasonable and probable grounds to believe that the appellant had committed
    criminal harassment and there was no malice on the respondents part.

[16]

The
    trial judge held that the respondents had made out their claims for intentional
    infliction of mental distress, trespass and wrongful registration of the
    certificate of pending litigation. He awarded them damages of $201,533.29,
    including pre-judgment interest and $20,000 in punitive damages.

ANALYSIS

[17]

This
    appeal is based on the appellants assertion that it was not open to the trial
    judge to draw the inference that he was responsible for the coyote carcass
    incident in the absence of any direct or sufficient evidence on that matter.

[18]

We
    do not accept this submission.

[19]

We
    begin by noting that the trial judge gave a carefully reasoned judgment based on
    the legally correct principles.  His findings of fact are careful, thorough and
    detailed.  His findings on credibility are similarly meticulous.

[20]

Against
    that backdrop, we reiterate the well-known principle that a trial judges
    factual findings are not to be overturned absent palpable and overriding error. 
    This standard applies to all factual findings, including the drawing of
    inferences from factual findings.

[21]

Here,
    the trial judges inferences flowed from a logical review of the evidence.  On
    the record, it was fully open to the trial judge to draw the inference that the
    appellant or someone acting on his behalf had placed the coyote carcass on the
    respondents car.

[22]

The
    inference drawn by the trial judge did not result from speculation.  Rather, it
    was based on his findings of fact and the factual circumstances of the case,
    including: the ongoing dispute between the parties; the incident that occurred
    on November 11, the day before the coyote carcass incident; the absence of any
    motive on the part of anyone else; and the direct evidence of the respondents
    that, on the morning of November 12, the appellant was waiting for Mr. Squires
    to leave his home and discover the coyote carcass.

[23]

In
    regard to the last finding, contrary to the appellants assertion, the trial
    judge did acknowledge that Mrs. Squires had not mentioned this when she gave
    her statement to the police.  However, as the trial judge explained at paras.
    78-81 of his reasons, they were shocked and upset about the events of November
    11-12, 2007, and any discrepancies arose from that.

[24]

We
    do not accept that the present case is similar to
1250264 Ontario Inc. v.
    Pet Valu Canada Inc.
, 2013 ONCA 279, 115 O.R. (3d) 653, the case relied on
    by the appellant.  In
Pet Valu
, this court found that the trial judge
    had drawn an inference for which there was no valid evidentiary basis.  On the
    contrary, in the present case, the inference that the trial judge drew was
    solidly grounded in the evidence.  In our view, based on the trial judges
    findings, that inference was virtually inescapable.

DISPOSITION

[25]

Accordingly,
    the appeal is dismissed with costs to the respondents fixed in the amount of
    $11,000, all inclusive.

E.E. Gillese
    J.A.

Paul Rouleau
    J.A.

M. Tulloch
    J.A.


