



COURT OF APPEAL FOR ONTARIO

CITATION: Kolosov v. Lowes Companies Inc., 2016 ONCA 973

DATE: 20161229

DOCKET: C62000

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Mikhail Kolosov, Andrei Kolosov also known as
    Andrei Kolosau, and Alena Kolasava

Plaintiffs (Appellants)

and

Lowes
    Companies Inc., Lowes Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas
    Gerald Howard, Steven S. Boyle, Casey Findlay, Windsor Police Services Board,
    Gary Smith, Former Chief of Windsor Police Services, Detective Kevin McCann,
    Police Constable Steven Brnardic, Police Constable Jacqueline Khoury, Staff
    Sgt. Alan Brown,
Belleville Police Service Board
,
    Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo,
    Constable Jeff Ling,
Detective Constable Paul Josefik
and Her Majesty the Queen in Right of the Province of Ontario as Represented by
    the Attorney General of Ontario

Defendants (Respondents)

Raymond G. Colautti, for the appellants

Wilfrid Menninga and Melissa Seal, for Belleville Police
    Service Board

Kristen Dearlove, for Windsor Police Services Board

Thomas D. Galligan, for Lowes Companies Inc. and Lowes
    Companies Canada

Heard:  December 12, 2016

On appeal from the judgment of Justice Gregory J. Verbeem
    of the Superior Court of Justice, dated March 24, 2016.

ENDORSEMENT

[1]

The appellants summarize their grounds of appeal into four points.

i.

The motion judge erred in granting summary judgment dismissing the
    action against the Belleville Police respondents. They argue that the facts and
    evidence disclose that the police, in the very early stages of the
    investigation, determined unreasonably that a charge  possession of stolen
    property knowing the same had been obtained by the commission of an indictable
    offence  should be laid against the appellants. The argument is essentially
    that the police did not have reasonable and probable grounds of the knowledge
    element of the offence when they arrested them.

ii.

The motion judge erred in concluding that the claims for the intentional
    torts of false arrest and false imprisonment were statute-barred.

iii.

Granting summary judgment was inappropriate in this case, in which there
    were multiple defendants, involving interlocking investigations and credibility
    findings. Such issues should only be determined at a trial.

iv.

The appellants seek leave to appeal the motion judges costs
    disposition. They do so, in this court, on the same basis argued before the
    motion judge  that an award of costs against them impedes their access to
    justice as they are parties of modest means; their case should be considered as
    one in the nature of public interest litigation; and finally that, at the least,
    the payment of any costs award should be deferred until the conclusion of the
    litigation to permit consideration of a
Bullock
or
Sanderson
order.

[2]

It is unnecessary to recite the facts for the purpose of this
    endorsement. The motion judge has set them out in detail in paras. 42-74 of his
    reasons.

First Ground
 No
    Reasonable and Probable Grounds to Arrest

[3]

This ground is largely in relation to the factual determinations made by
    the motion judge and his assessment of the evidence before him.

[4]

In his careful and detailed reasons, the motion judge considered the
    voluminous materials that had been filed on the motion.

[5]

The key issue that separates the parties is whether there were
    reasonable and probable grounds for the Belleville police to arrest the
    appellants. There is no dispute about the law  the arresting officer must
    subjectively have reasonable and probable grounds on which to base an arrest.
    In addition, those grounds must also be justifiable from an objective point of
    view  but the police need not demonstrate anything more:
R. v. Storrey
,
    [1990] 1 S.C.R. 241, at pp. 250-251. No dispute is taken with the motion
    judges articulation of the law.

[6]

Detective Constable Josefik testified that he had reasonable and
    probable grounds and he was not cross-examined on his belief. The motion judge,
    as he was entitled to do, accepted his evidence. The issue then fell to be
    determined whether his belief was objectively reasonable  the motion judge
    concluded that it was. The evidence on which he relied in coming to that
    conclusion is reviewed by him in detail in paras. 137-161 of his reasons and fully
    supports his conclusion.

[7]

The real essence of the appellants complaint relates to the evidence 
    or from their perspective, lack of evidence  of the necessary
mens rea
for
    the offence charged  namely, the possession of property
knowing
it
    was obtained by an indictable offence.

[8]

The appellants admit they were in possession of fraudulently obtained
    goods  their explanation is that they were merely the dupes of the criminals
    who defrauded Lowes of merchandise, of significant value, by the use of stolen
    credit cards. They argue that the police never asked them for their explanation
    and laid the charge in the absence of that information.

[9]

In paras. 151-161 of his reasons, the motion judge specifically deals
    with the innocent explanation evidence and concludes:

[160] While DC Josefik fulfilled his duty to document and
    consider information about the plaintiffs explanation for their possession of
    the Lowes property, he was not obliged to unequivocally accept that
    explanation as true. Whether the explanation given by Mikhail and Andrei, if
    provided in evidence at trial, would be accepted as one which might reasonably
    be true, and if not, whether an inference of knowledge ought to be drawn on
    proof of recent possession, were issues for the trier of fact. DC Josefik was
    not required to determine those legal issues as part of his duty.

[161] As a result of the foregoing, I find that on the evidence
    available to him, DC Josefiks belief that there were sufficient grounds to
    charge the plaintiffs was reasonable and that he exercised his discretion as a
    police officer in a reasonable manner when charging Mikhail and Andrei with the
    offences set out in the information.

[10]

The appellants argument suggests that the police were obliged to accept
    their innocent explanation. That is simply not the law. As this court recently
    stated in
495793 Ontario Ltd. (Central Auto Parts) v. Barclay
,

2016
    ONCA 656, at paras. 50-52:

[50] The police are not required to establish a
prima facie
case for conviction before making an arrest. [Citations omitted.]



[51] The function of police is to investigate incidents which
    might be criminal, make a conscientious and informed decision as to whether
    charges should be laid and present the full facts to the prosecutor:
Wong
,
[1]
at para. 56. Although this requires, to some extent, the weighing of evidence
    in the course of investigation, police are not required to evaluate evidence to
    a legal standard or make legal judgments. That is the task of prosecutors,
    defence lawyers and judges:
Hill
,
[2]
at para. 50.

[52] Nor is a police officer required to exhaust all possible
    routes of investigation or inquiry, interview all potential witnesses prior to
    arrest, or to obtain the suspects version of events or otherwise establish
    there is no valid defence before being able to form reasonable and probable
    grounds:
Kellman v. Iverson
, 2012 ONSC 3244 (CanLII), 2012 O.J. No.
    2529, at para. 16;
Wong
, at para. 59.

Second Ground
 The Claims were Statute-Barred

[11]

The law in relation to the commencement of the limitation period for the
    intentional torts of false arrest and false imprisonment, and associated
Charter
breaches, is well settled. As Chiappetta J. noted in
Fournier-McGarry
    (Litigation Guardian of) v. Ontario
, 2013 ONSC 2581, at para. 16:

A claim for the common law torts of false arrest, false
    imprisonment and breach of
Charter
rights arising there-from
    crystallizes on the date of arrest (see,
Nicely v. Waterloo Regional Police
    Force
, [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14;
Fern v. Root
,
    [2007] O.J. No. 397 (Ont. C.A.), para. 102).

[12]

The appellants offer no authority for their submission that their causes
    of action did not arise, and the limitation period did not begin to run, until
    they had received full police disclosure. Not having commenced this action
    until after the two-year period from the time of arrest had expired, their
    claims in this respect are statute-barred.

Third Ground
 Summary
    Judgment was Inappropriate

[13]

The motion judge began his analysis with a consideration of the law as
    it relates to summary judgment motions and was guided by the judgment of the
    Supreme Court of Canada in
Hryniak v. Mauldin
, 2014 SCC 7; [2014] 1
    S.C.R. 87. He concluded, at para. 34 of his reasons, that summary judgment is
    a fair and just process to determine the issues related to the Belleville
    defendants liability. He further concluded that the issues relating to the
    liability of the Belleville respondents were discrete and severable from the
    issues involving the liability of the other respondents.

[14]

He was alive to the appellants argument to the effect that the
    liability of the Belleville respondents was inextricably bound up with that
    of the other respondents  and he rejected that argument. He concluded, on the
    evidence before him, that it was reasonable for the Belleville respondents to
    rely on the information given to them, by the Lowes respondents and the
    Windsor police, as credible and accurate, in accordance with the subjective
    evidence given by DC Josefik and PC Kanyo  which was neither challenged nor
    contradicted by other evidence before him. He concluded, accordingly, that it
    was unnecessary to determine the liability of the others before deciding that
    of the Belleville respondents. The motion judge then summarized at paras. 36-41
    why, on the evidentiary record before him, a fair and just determination of the
    liability of the Belleville respondents could be made without the necessity of
    a full trial.

[15]

His conclusion in this respect is entitled to deference in this court
    and, in the language of
Hryniak
,
    at para. 81, it
should not be overturned absent palpable and
    overriding error. In our view, there is no error in the motion judges
    conclusion, let alone a palpable and overriding one.

Fourth Ground
(if leave be
    granted)  Costs

[16]

The appellants seek leave to appeal the motion judges decision on
    costs. The law is well-settled that the disposition of costs is a matter of
    discretion and, absent an error in principle or a decision that is clearly
    wrong, this court will not intervene.  In seeking leave, the appellants advance
    the same arguments as were made before the motion judge: that they are persons
    of modest means and any significant costs disposition will preclude them from
    continuing the litigation against the remaining respondents; that they should
    be considered public interest litigants analogous to
pro bono
litigants advancing a pressing and important public interest, in holding
    police services and operations accountable for misconduct; and finally that any
    costs order should be stayed until the litigation is finally completed in order
    that the appellants (in the event they are successful) might seek a
Sanderson
or
Bullock
order.

[17]

The motion judge considered each of these arguments and rejected them.
    He concluded that the appellants were not
pro bono
litigants, they
    were represented pursuant to a contingency fee arrangement. They were not
    public interest litigants because they do not seek any broad public law remedy
     they seek damages in excess of $2 million in relation to causes of action,
    all of which are personal to them.

[18]

Before the motion judge, the appellants did not meet the onus they bear
    to establish impecuniosity. Nor were they able to demonstrate why their action
    could not proceed against the remaining respondents, in the event of an adverse
    costs award  in view of: the nature of the contingency fee arrangement with
    their lawyer; the undertaking given by the Windsor respondents to not rely on
    any non-payment of costs to prevent the prosecution of this action; and the
    apparent agreement of the Lowes respondents with that position, although no
    undertaking was specifically given.

[19]

Finally, in paras. 30-37 of his reasons on costs, the motion judge
    explains, in detail, why he would not stay his costs order and we agree with
    those reasons. And as the motion judge noted, in view of the position taken by
    the remaining defendants on the quantum of costs, there was nothing to
    circumvent the discretion of the court determining the liability issues
    related to the remaining defendants to make a
Bullock
order with respect
    to the costs ordered herein.

[20]

As to the quantum, the motion judges award of costs was significantly less
    than that sought by the Belleville respondents. The costs award of $47,801.47
    was a modest one, on a partial indemnity scale, inclusive of disbursements,
    which covered the costs of the action, as well as the motion for summary
    judgment.  That is apparent when one considers: the nature of the litigation;
    the voluminous record that was assembled for this motion; the motions to strike
    parts of the appellants supporting affidavits; the production of documents;
    the lengthy examinations for discovery; as well as the two days required for
    the hearing of this motion. We have not been pointed to any error in principle
    and the motion judges reasons are well-supported on the record before him. We
    would not grant leave to appeal.

Disposition

[21]

In the result, both the appeal and the motion for leave to appeal are
    dismissed.

[22]

Costs of the appeal to the Belleville respondents fixed in the sum of $17,500;
    to the Lowes respondents in the sum of $2,000. The Windsor police respondents do
    not seek costs. All costs awarded are inclusive of disbursements and HST.

E.E.
    Gillese J.A.

J.
    MacFarland J.A.

S.E.
    Pepall J.A.





[1]

Wong v. Toronto Police Services Board
,
    [2009] O.J. No. 5067 (S.C.).



[2]

Hill v. Hamilton-Wentworth (Regional
    Municipality) Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R. 129.


