



COURT OF APPEAL FOR ONTARIO

CITATION: Parsaei v. Toronto (Police Services Board), 2017
    ONCA 512

DATE: 20170619

DOCKET: C61940

Blair, MacFarland and Hourigan JJ.A.

BETWEEN

Rafat Parsaei

Plaintiff

(Appellant)

and

Toronto Police Services Board and Andrew MacPhail

Defendants

(Respondents)

James C. Morton, for the Appellant

Rebecca L. Bush and Kathryn Shani, for the Respondents

Heard: June 15, 2017

On appeal from the order of Justice E.M. Stewart of the Superior
    Court of Justice, dated March 24, 2016, with reasons reported at 2016 ONSC 1013.

By the Court:


[1]

Ms. Parsaei appeals from the summary judgement granted by Justice
    Stewart dismissing her action against the Toronto Police Services Board and
    Detective Constable Andrew MacPhail for wrongful arrest and negligent
    investigation of criminal charges of which she was ultimately acquitted.

Background

[2]

The appellant and two other women  Linda Pitney and Carole Tovell 
    were charged criminally in connection with (i) a series of threatening letters
    that were posted around, and mailed to residents who lived in, the area of
    Perth Avenue Public School in Toronto, (ii) a series of related hostile and harassing
    phone calls made to staff and the principal of the school and to members of the
    Toronto District School Board, and (iii) an harassing letter sent to a member
    of the Board.

[3]

All of this appears to have been prompted by the appellants complaints about
    the way in which her son was being treated by school staff and by an
    overreaction on the part of the three women regarding who won, or should have
    won, a spelling bee at the school (the student who was declared the winner, or
    the appellants son).  Ms. Pitney was apparently retained to act as the
    appellants family advocate in respect of these concerns.  It is not clear
    what the purpose of Ms. Tovells involvement was.

[4]

Detective Constable MacPhail was the member of the Toronto Police
    Services assigned to investigate the threats.  Following the investigation, all
    three women were charged with a number of related offences.  Ms. Pitney was
    charged with criminal harassment.  Ms. Tovell was charged with criminal
    harassment, threatening death, and intimidation.  The appellant was charged
    with threatening death and intimidation.

[5]

After several attempts to resolve the charges through out-of-court
    interventions, the matters came on for trial before Justice Cavion of the
    Ontario Court of Justice, in May 2010.  For reasons involving her health, the
    charges against Ms. Tovell were severed and were to be dealt with at a later
    date.
[1]
The trial of Ms. Pitney and the appellant proceeded.  Ms. Pitney was
    convicted, although not on all counts.  The appellant was acquitted but
    required to enter into a Peace Bond.

[6]

Thereafter, each of the appellant, Ms. Pitney and Ms. Tovell launched
    civil actions against the Toronto Police Services Board, Detective Constable
    MacPhail and others.
[2]
This led to the defendants motions for summary judgment that resulted in the
    judgment under appeal.
[3]

[7]

The motion judge held that she was able to grant summary judgment
    because there was no genuine issue for trial.  The absence of reasonable and
    probable grounds is an essential element of the torts of wrongful arrest and
    negligent investigation.  Based on the evidence before her, she was able to
    find that Det. Cst. MacPhail had reasonable and probable grounds to believe
    that the appellant had committed the offences with which she was charged.  Accordingly,
    the appellants claim could not succeed.

Discussion

[8]

The appellant argues that the motion judge erred (a) in finding there
    was no genuine issue for trial because the case was at an early stage and
    contested facts [had] not . been subjected to cross examination; and (b) in
    finding that the police had reasonable and probable grounds to lay the charges
    in the first place.

[9]

Neither of these submissions is persuasive in our view.

[10]

The first submission overlooks the direction provided by the Supreme
    Court of Canada in
Hryniak v. Mauldin
, [2014] S.C.J. No. 7 (S.C.C.),
    at paras. 49 and 66, that summary judgment is to be granted where the record
    enables to motion judge to reach a fair and just determination on the merits
    and to do so in a timely, more affordable and proportionate manner.  Mr. Morton
    did not pursue this submission in oral argument, but left us to consider the
    arguments pertaining to as set out in the appellants factum.

[11]

The motion judge was satisfied that she could reach a fair and just
    determination, given the extensive record she had before her and that record
    supports her decision.  On a motion for summary judgment each party is obliged
    to put its best case forward.  It is no answer for the appellant to say that
    contested facts had not been subject to cross-examination; she had ample time
    to cross-examine Det. Cst. MacPhail on his affidavit, but did not do so.

[12]

The appellants second submission is equally flawed.  There was ample
    evidence to support the motion judges finding that the police had reasonable
    and probable grounds to arrest the appellant and to lay the charges.  That
    evidence included (i) the exhaustive affidavit of Det. Cst. MacPhail setting
    out in detail the particulars of the investigation and the documentation
    obtained, together with a lengthy summary of the facts supporting his belief
    that reasonable and probable grounds existed; (ii) the transcripts of the
    preliminary hearing and the trial; (iii) the information that Det. Cst.
    MacPhail had consulted two Crown attorneys prior to laying the charges and had
    been advised that there was ample evidence to support his doing so; and (iv)
    the reasons of Justice Cavion following the trial.

[13]

Indeed, the findings of Justice Cavion alone, even in acquitting the
    appellant  while not binding  would support a determination that reasonable
    and probable grounds existing.  In concluding his analysis of the evidence, he
    said:

I am not for a moment saying the two women are innocent.  In
    Scotland they have three verdicts, guilty, not guilty and not proven.
To me
    this is a case of just not proven.  I am deeply suspicious but I am simply not convinced
    beyond a reasonable doubt
, so on these charges they are acquitted.
    [Emphasis added]

[14]

Mere suspicion is not enough to constitute reasonable and probable
    grounds, but Mr. Morton concedes that reasonable suspicion has been found to
    do so.  We read Justice Cavions analogy with the Scottish situation and his
    deeply suspicious comment as signalling that he was of the view that the
    basis for the Crowns case went well beyond mere suspicion, although it was
    insufficient to establish guilt beyond a reasonable doubt.

[15]

The motion judge summarized the evidence that in her view established
    why the police had reasonable and probable grounds to arrest and charge the
    appellant in the 13-point summary set out at para. 36 of her reasons.  They
    support he findings.  Particularly telling, in our view  as the nexus linking
    the appellant to the other circumstances  are the inculpatory documents seized
    at her residence and the fact that a copy of her sons school calendar,
    admittedly containing her handwritten check marks, was found among a pile of
    copies of one of the groups of threatening letters distributed around the
    school.

[16]

Demonstrating reasonable and probable grounds in support of an arrest
    and the laying of charges is not the same thing as the Crown having to prove
    the factual and mental elements of an offence necessary to establish guilt
    beyond a reasonable doubt.  The mistake in conflating the issues pertaining to
    criminal responsibility and those pertaining to the civil liability of police
    is well-summarized by the British Columbia Court of Appeal in
Richardson v.
    Vancouver (City)
, 2006 BCCA 36  a case involving an allegedly wrongful
    arrest on a charge of obstructing justice  at para. 20:

The plaintiff runs together his criminal liability with the
    officers civil liability (and the Citys vicarious liability) for the tort of
    wrongful arrest.  They each have a different set of legal rules and procedures;
    they must be treated separately to avoid the kind of confused thinking manifest
    in the plaintiffs argument.  Many lawful arrests may ultimately result in an
    acquittal.  If an acquittal were to create exposure to tort liability, the
    power of arrest would be radically curtailed.  There is no logical relationship
    between the criminal and civil determinations; they are each aimed a different
    questions: Did the accused obstruct? is not the same as Did the officer have
    reasonable and probable grounds to believe he did?

[17]

Those comments apply with equal validity in this case.

Disposition

[18]

The appeal is dismissed.  In arriving at this disposition we rely more
    fully on the reasons of the motion judge, with which we fully agree.

Released:

RAB                                                            R.A.
    Blair J.A.

JUN 19 2017                                     J.
    MacFarland J.A.


C.W.
    Hourigan J.A.





[1]
After the trials of the appellant and Ms. Pitney were concluded, the Crown
    withdrew the charges against Ms. Tovell.



[2]
The other defendants are no longer involved in the proceedings.



[3]
Justice Stewart granted summary judgment dismissing the Pitney and Tovell
    actions as well.  Those orders are separately under appeal to this Court.


