



COURT OF APPEAL FOR ONTARIO

CITATION: Karatopis v. Antoniou, 2014 ONCA
299

DATE: 20140417

DOCKET: C57060

Feldman, Rouleau and Hourigan JJ.A.

BETWEEN

Stefanos Karatopis

Plaintiff (Appellant)

and

Paul Antoniou, My Hanh Tran, Pitsa Panagiota Pett
Antoniou, and Alexandra Hewitt

Defendants (Respondents)



Carlin McGoogan, for the appellant

W. Bruce Drake, for the respondents

Heard and released orally: April 3, 2014

On appeal from the judgment of Justice Linda M. Walters of
the Superior Court of Justice, dated April 23, 2013.

ENDORSEMENT



[1]

The appellant appeals the decision of Justice Walters, dated April 23,
2013, dismissing his claim for malicious prosecution against My Hanh Tran and
Paul Antoniou.

[2]

The appellant submits that the trial judge erred in law in her
consideration of the claim for malicious prosecution and misapprehended the
evidence in this regard. We disagree.

[3]

The trial judge provided detailed reasons for dismissing the appellants
claim. It is evident from those reasons that the trial judge found much of the
testimony of the parties to be not credible and that she found that the
appellant had exaggerated the alleged inappropriate conduct engaged in by the
respondents.

[4]

The trial judge concluded, as she was entitled to do, that the lack of
credible evidence meant that the appellant had not met his onus of establishing
his claim for malicious prosecution on a balance of probabilities. We see no
basis to interfere with those factual conclusions.

[5]

The trial judge correctly identified the elements of a claim for
malicious prosecution. She found that the evidence did not establish that it
was the respondents, rather than the Crown that made the decision to prosecute.
At p. 13 of her reasons, she found:

In considering those three circumstances, I am satisfied that
with respect to the first circumstance, Im not satisfied that the defendants
desired or intended that the plaintiff be prosecuted. Instead, after being the
subject themselves of a number of unfound police attendances, complaints to the
fire department, complaints to the Humane Society and appeals to OMB, the
defendants just wanted the behaviour of the plaintiff to stop.

[6]

That finding is entitled to deference in this court. We do not accept
the submission that the trial judge misapprehended the evidence in reaching
this conclusion.

[7]

Accordingly, the appellant did not establish the first element of the
claim for malicious prosecution and the trial judge did not err in dismissing
the claim.  Given this conclusion, it is not necessary to consider the trial
judges findings on the other requisite elements of the tort.

[8]

The appeal is dismissed.

[9]

Costs fixed at $7500, inclusive of HST and disbursements.



K. Feldman
J.A.

Paul
Rouleau J.A.

C.W. Hourigan J.A.




