



COURT OF APPEAL FOR ONTARIO

CITATION: Patinios v. Cammalleri, 2017 ONCA
    700

DATE: 20170911

DOCKET: C63242

Strathy C.J.O., van Rensburg and Trotter JJ.A.

BETWEEN

Alexander Patinios

Plaintiff
(Appellant)

and

Rosario Cammalleri

Defendant
(Respondent)

Michael Simaan, for the appellant

Rosario Cammalleri, acting in person

Heard: September 7, 2017

On appeal from the judgment of Justice Mario D. Faieta of
    the Superior Court of Justice, dated November 8, 2016, with reasons reported at
    2016 ONSC 6743.

REASONS FOR DECISION

[1]

The appellant appeals the dismissal of his action for
    malicious prosecution. After hearing the submissions of counsel for the
    appellant, we dismissed the appeal with reasons to follow. These are our
    reasons.

[2]

The appellant acknowledges that the trial judge applied the correct test
    for malicious prosecution, set out in
Miazga v. Kvello Estate
, 2009 SCC
    51, [2009] 3 S.C.R. 339. The plaintiff must prove that: (1) the prosecution was
    initiated by the defendant; (2) it was terminated in the plaintiff's favour; (3)
    there was an absence of reasonable and probable cause to commence the
    prosecution; and (4) the defendant's conduct in setting the criminal process in
    motion was fueled by malice.

[3]

The first element was not in dispute. The appellant says that the trial
    judge erred in finding that he had not established the other three elements. On
    the second element, he points out that the proceedings were stayed at the
    request of the Crown and claims that there was no evidence to support the trial
    judges conclusion that there was a negotiated resolution, making it necessary
    to examine whether there were any sanctions imposed as a result of the stay.

[4]

On the third and fourth elements, the appellant says that in view of the
    respondent's failure to attend at trial, and his own unchallenged evidence that
    the incidents leading to the charges did not occur, the trial judge should have
    found that the charges were groundless and motivated by malice.

[5]

While we acknowledge that the appellant's complaint regarding the second
    element may have some merit, we do not accept his submissions on the third and
    fourth elements. The onus was on the appellant to establish these elements. It
    was for the trial judge to determine whether they had been established. Indeed,
    s. 108(10) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, provides
    that it is for the trier of fact to determine whether there was reasonable and
    probable cause for instituting the prosecution.

[6]

Here, the trial judge found that the appellant had failed to discharge his
    evidentiary burden to establish these facts on the balance of probabilities.

[7]

In our view, his conclusions were supported by the evidence before him,
    including the proceedings in the criminal trial and the proceedings before the
    Justice of the Peace on the swearing of the information. The appellant has
    failed to demonstrate that the trial judges findings were unreasonable or the
    product of a palpable and overriding error in his assessment of the evidence.

[8]

We therefore dismiss the appeal. As the respondent did not file
    materials in response to the appeal, we make no order as to costs.

G.R. Strathy C.J.O.

K. van Rensburg J.A.

G.T.
    Trotter J.A.


