



COURT OF APPEAL FOR ONTARIO

CITATION: Farley v. Ottawa (Police Services Board), 2017 ONCA
    689

DATE: 20170906

DOCKET: C63292

Watt, Huscroft and Trotter JJ.A

BETWEEN

George Farley

Plaintiff (Appellant)

and

Ottawa Police Services Board

Defendant (Respondent)

Diane Condo, for the appellant

Stuart Zacharias, for the respondent

Heard and released orally: August 28, 2017

On appeal from the judgment of Justice Calum U.C. MacLeod
    of the Superior Court of Justice dated December 22, 2016.

REASONS FOR DECISION

[1]

George Farley appeals from a decision granting the Ottawa Police
    Services Board summary judgment and dismissing his action claiming damages for
    malicious prosecution, negligent investigation and constitutional infringement.

[2]

Farleys claims arise out of an investigation conducted by members of
    the Ottawa Police Service which resulted in the arrest of Farley and another, 
    Chenier, on charges of first degree murder, conspiracy to commit murder and
    possession of explosives with the intent to cause bodily harm or death.

[3]

At the conclusion of a joint preliminary inquiry, both Farley and
    Chenier, through their counsel, consented to their committal for trial.

[4]

A jury found Farley guilty as charged. He appealed. This court allowed
    the appeal on the basis of misdirection and misreception of hearsay evidence,
    and ordered a new trial.

[5]

On the new trial held several years later, two key prosecution witnesses
    were unavailable. The trial judge, sitting without a jury, characterized the
    Crowns evidentiary problems as simply overwhelming and acquitted Farley.

[6]

Farley started an action against the Ottawa Police Services Board
    alleging, as I have said, malicious prosecution, negligent investigation and
    breach of
Charter
rights by members of the Ottawa Police Service for
    whom the Ottawa Police Services Board is legally responsible.

[7]

On the motion for summary motion brought by the Ottawa Police Services
    Board, the motion judge found that:

i.

there was no evidence to support a claim of malicious prosecution;

ii.

there was no evidence to support a claim that the investigation fell
    below a standard of reasonable care and, thus, no evidence that it was
    negligent; and

iii.

there was no evidence to support a claim of
Charter
infringement.

In the result, the motion judge was satisfied that
    there was no genuine issue requiring a trial, granted the motion for summary
    judgment and dismissed the action.

[8]

In this court, the appellants essential complaint is that, in respect
    of several issues, the motion judge erred by weighing evidence and drawing
    inferences that were beyond his authority on the motion.

[9]

Critical to success of the plaintiffs causes of action as framed  malicious
    prosecution, negligent investigation and
Charter
infringement  as the
    motion judge pointed out, is the absence of reasonable and probable grounds to
    believe that the appellant committed the offences with which he was charged.

[10]

In this case, counsel for the appellant conceded committal for trial at
    the conclusion of the preliminary inquiry. This court ordered a new trial after
    convictions had been entered at a trial that was flawed by incorrect jury
    instructions and the admission of inadmissible hearsay evidence. The Crown
    continued the prosecution only to fail due to evidentiary difficulties.

[11]

In the absence of a fundamental flaw in the criminal proceedings, in
    this case in the committal for trial and the order for a new trial, rather than
    an entry of a verdict of acquittal, these antecedent judicial determinations
    may support a finding by a civil court that there existed reasonable and
    probable grounds for the criminal prosecution: see
Miazga v. Kvello Estate
,
    2009 SCC 51, at para. 97.

[12]

In our view, in these circumstances, that is a sufficient basis upon
    which to dispose of this appeal. In the absence of reasonable and probable
    grounds, the appellant could not succeed at trial. The motion for summary
    judgment was properly granted, and the action dismissed.

[13]

The appeal is dismissed with costs payable to the respondent in the
    amount of $5,000, inclusive of disbursements and all applicable taxes.

"David
    Watt J.A."

"Grant
    Huscroft J.A."

"G.T.
    Trotter J.A."


