



COURT OF APPEAL FOR ONTARIO

CITATION:

Hinds v. Group 4
    Security, 2012 ONCA 207

DATE: 20120329

DOCKET: C54529

MacPherson, LaForme JJ.A. and Pattillo J. (
ad
    hoc
)

BETWEEN

Michael Hinds

Plaintiff (Appellant)

and

Group 4 Security, Group 4 Falck (Canada) Ltd., Ian
    Morison and Her Majesty the Queen in the Right of Ontario, Peel Regional
    Police, The Regional Municipality of Peel, The Regional Municipality of Peel
    Police Services Board and Rick Anthony

Defendants (Respondents

Benjamin Salsberg, for the appellant

John S. McNeil, for the respondent Ian Morison

Heard: March 23, 2012

On appeal from the judgment of Justice Beth A. Allen of
    the Superior Court of Justice, dated September 22, 2011.

ENDORSEMENT

[1]

This is an appeal from the decision of the motion judge dated September
    22, 2011 wherein she granted the respondents summary judgment motion and
    dismissed the appellants action against them.

Brief background

[2]

The appellant commenced an action against police and other
    parties because of his arrest on criminal charges that were later withdrawn. 
    The respondent, Ian Morison was a security guard at the condominium complex
    where the events giving rise to the charges against the appellant were
    originally alleged to have occurred.  Because of this, Morison and Group 4 were
    included in the appellants action on claims of negligence or malicious
    prosecution in Morisons identification of the appellant to the police, which
    was alleged to have led to the appellants arrest.

[3]

In her reasons for decision, the motion judge held that the
    respondents had satisfied their obligation to show that there was no genuine
    issue for a trial.  She found that the appellant, on the other hand, simply
    made allegations in his statement of claim for which he provided no factual
    support.

[4]

The motion judge also found that the arrest of the appellant was
    a decision of the police, which they made before they spoke to Morison.  She
    notes also that his incarceration and bail conditions were decided by the court
    and the decision to withdraw the charges was made by the prosecutor.  In her
    view, the appellant did not establish a causal connection between his alleged
    damages and Morison.

The issues

[5]

On appeal, the appellant submits that: (i) the motion judge erred
    in her application of the test for malicious prosecution; (ii) there is a
    genuine issue for trial as to whether the respondent deliberately or
    negligently gave the police false or slanted information; (iii) as a security
    guard, Morison owed a duty to the public at large to act honestly with integrity;
    and (iv) the motion judge did not apply the correct test for summary judgment.

[6]

We disagree with the appellants submissions and the appeal must
    be dismissed.

Standard of Review

[7]

Under Rule 20 the determination of whether there is a genuine
    issue requiring a trial is a legal determination and the standard of review is
    correctness.  This is also the case on a question of mixed fact and law where
    it is said that the motion judge applied an incorrect standard, failed to
    consider a required element of a legal test, or any similar error in
    principle.  And finally, if the motion judge correctly applied the legal test,
    any factual determinations made by the motion judge will be reviewed on the
    deferential standard of palpable and overriding error:
Combined Air Mechanical
    Services Inc v Flesch
,
2011 ONCA 764, at paras. 69-71.

Discussion

[8]

In this case, the motion for
    summary judgment was
essentially a question about whether the appellant
    pleaded the necessary basic facts to support his claims of negligence and
    malicious prosecution against the respondents.  The motion judge found, after a
    review of the pleadings as supplemented by affidavit evidence, that the
    pleadings did not.

[9]

The motion judge in her reasons correctly recited the elements
    necessary for a plaintiff to establish malicious prosecution and went on to
    apply that test to the case before her.  She held that the pleadings did not
    make out an allegation of malicious prosecution since the facts necessary to
    make such a claim were not pleaded.  We agree with that conclusion.

[10]

Further, the motion judge goes on to correctly note that while
    there is a civil claim in malicious prosecution, the law does not recognise a
    discrete action for malice.  In his claims of negligence or malicious
    prosecution the appellant had to show a causal link between the damage
    allegedly suffered and the respondents:
Resurfice Corp. v. Hanke
,
    [2007] 1 S.C.R. 333, paras. 21-23.  The motion judge held that the appellant
    had not established such causal connection.  This too was a correct result.

[11]

In our view, the motion judge set out the correct law related to
    the claims made by the appellant.  She thereafter properly exercised her powers
    under Rule 20 and applied the correct test for summary judgment.  She made a
    decision based on the evidence, or lack of evidence, that was before her.  We
    see no error with the motion judges approach.

[12]

On our reading of the appellants appeal, he appears to be
    essentially quarrelling with the motion judges analysis of the evidence.  This
    is not a proper basis upon which this court should interfere with the decision
    of the motion judge.  As this court has repeatedly reaffirmed  and as noted
    earlier - appellate intervention will only be warranted where the impugned
    finding of the motion judge amounts to
palpable and
    overriding error.
On this appeal the appellant has failed to
    demonstrate that the motion judge committed any such error.

[13]

Finally, we note that the decision in this case was released just
    prior to this courts decision in
Combined Air
, which deals with
    summary judgment motions.  After a review of the record, including the motion
    judges reasons, it is clear to us that she was in compliance with the
    principles established in
Combined Air
.

DISPOSITION

[14]

The appeal is dismissed.  Costs of the appeal are awarded to the
    respondents fixed in the amount of $2,500 inclusive of disbursements and H.S.T.

J.C.
    MacPherson J.A.

H.S.
    LaForme J.A.

L.A. Pattillo J. (
ad
    hoc
)


