



COURT OF APPEAL FOR ONTARIO

CITATION: Curley v. Taafe, 2019 ONCA 368

DATE: 20190507

DOCKET: C65627

Lauwers, Pardu and Nordheimer JJ.A.

BETWEEN

Antoinette Curley

Plaintiff (Respondent)

and

Lesley Mary Taafe

Defendant (Appellant)

P. James Zibarras, for the appellant

Lubomir Poliacik, for the respondent

Heard: April 11, 2019

On appeal from the judgment of Justice Mark L. Edwards of
    the Superior Court of Justice, dated June 13, 2018, with reasons reported at
    2018 ONSC 3150, 47 C.C.E.L. (4th) 228.

Pardu J.A.:

[1]

The appellant, Ms. Taafe, appeals from a
    judgment awarding damages for breach of contract and for malicious prosecution
    in favour of the respondent, Ms. Curley.

[2]

The appellant alleges that the trial judge erred
    in three respects:

1.

By failing to recognize that in the absence of
    any evidence from police about the effect of the appellants complaint to them
    upon their investigation, he could not conclude that the appellant initiated a
    criminal prosecution of the respondent, in light of the other evidence that
    showed that the police did in fact conduct an independent investigation of
    their own.

2.

By applying the rule in
Browne v. Dunn
(1893),
    6 R. 67 (U.K. H.L.)

to discount evidence supporting the appellants
    position and undermining the respondents position. The appellant submits that
    the application of the rule to a letter written by the respondent, which had
    the potential to significantly impact the trial judges assessment of the
    parties credibility, was flawed given that the appellants trial counsel
    referred to the letter in her opening statement at trial and provided an
    opportunity for the respondent to explain the contents of the letter during
    cross-examination.

3.

By taking judicial notice of the effect of a
    criminal charge on a paralegals practice, and upon the respondents ability to
    mitigate her damages for breach of contract.

[3]

I would give effect to each of these arguments,
    allow the appeal, set aside the judgment below, and dismiss the action.

A.

Factual issues

[4]

The appellant is a lawyer. She had a referral
    contract with the respondent, who was working as a paralegal, albeit unlicensed
    by the Law Society. The respondent promised to refer clients exclusively to the
    appellant for real estate and family law matters. The respondent would do
    paralegal type work on the files. An associated confidentiality agreement
    between the parties specifically provided that confidential information
    contained within the files was the property of the appellant. Any work done on
    any file that contained confidential information, including without limitation
    notes, financial information, or any text from which confidential information
    could implicitly be understood, was deemed to be confidential information. The
    file contents were to remain the sole property of the appellant, and the
    agreement provided that confidential information (including any reproduction
    therefore) shall remain the sole property of TAAFE LAW and shall be returned to
    TAAFE LAW immediately upon request or immediately after the termination of the
    employees employment, for any reason.

[5]

Although the agreement was for a one year term,
    the relationship fell apart earlier for widely divergent reasons given by each
    of the parties. The appellant testified that she terminated the relationship on
    January 15, 2013 because of complaints from clients, and after determining that
    the respondent was not a qualified law clerk or paralegal. The appellant also
    pointed to a letter, dated January 15, 2013, which she says confirms an
    in-person discussion in which she terminated the respondent. The respondent
    testified that she did not receive the aforementioned letter. The respondent
    testified that she knew by February 19, 2013 that the appellant had terminated
    the arrangement but took the position that the appellant had breached the
    contract between them by unilaterally terminating it.

[6]

The appellant testified that she asked the
    respondent to return all of her client files to her home on January 15, 2013.
    She says the respondent did come to her home that day but did not leave the
    files.  The respondent testified that she went to the appellants home, on her
    own initiative, only to leave closed files there. According to her evidence,
    she did keep two files, the M file and the S, file in her possession. The
    appellant also claimed to have sent a letter to the respondent on February 12,
    2013, in which she alleged she would go to the police if she did not get her
    client files back. The respondent testified that she did not receive the
    February 12, 2013 letter.

[7]

There was divergent evidence about what, if any,
    communications passed between the parties after January 15, 2013. As has
    already been mentioned, the appellant claimed to have sent letters to the
    respondent on January 15, 2013 and February 12, 2013. The respondent maintained
    that she did not receive these letters.

[8]

The appellant testified that she was worried
    about retrieving her client files. She said she called the Law Society and that
    they advised her to contact the police. On February 27, 2013, the appellant
    wrote to the police to complain that the respondent had not returned her client
    files after the termination of their contractual arrangement. She related that the
    respondent had come to her home on January 15, 2013 but that no files were
    left. She related efforts to retrieve the files by email communications. She also
    related that the respondent denied taking the files and said she had left them
    on the table in her kitchen. The appellant said she reviewed security camera
    footage that showed the respondent entering her home carrying orange folders
    used for her client files, and leaving the home, still carrying those files. The
    appellant asserted ownership of the files, and said she did not know why the
    respondent would not return the files, despite numerous attempts to obtain
    their return.

[9]

On March 2, 2013, an officer went to the
    respondents home. The officer showed the respondent a list of seven files the
    appellant wanted. The respondent provided the officer with two files, the M
    and the S files. The officer showed the respondent the security camera images
    capturing her arrival and departure from the appellants home. The officer did
    not lay any charges at this time.

[10]

On April 30, 2013, the appellant forwarded to the
    police a letter sent to her by the respondent dated April 23, 2013. In that
    letter the respondent demands payment of an outstanding invoice, and describes
    at length, her side of the dispute with the appellant. Further, the respondent
    threatens the appellant with multiple courses of action she proposes to take. Notably,
    in the letter, she says the following:

Now Ms. Taafe, please do not take this as a
    threat but merely an outline of my intentions regarding this matter.

If I dont receive my payment in full as set
    out in my Invoice of March 2
nd
2013 including interest, by May 1,
    2013, I will proceed to package up any and all files/documents here in my
    office that relate to your clients and forward same detailing [
sic
] the
    matter at hand to the Law Society of Upper Canada.



Simply put, make
    the payment and I will consider all matters settle [
sic
] in full.
Please
    do not send anyone to pick-up any documents or files
unless they have
    certified funds payable to Trinity Legal Services in the full amount as set out
    in my invoice of March 2, 2013. [Emphasis added.]

[11]

Following this apparent admission that the
    respondent still had possession of files belonging to the appellant, police
    charged her with theft under $5000 and possession of stolen property under
    $5000. Those charges were ultimately withdrawn.

[12]

After these charges were laid, the appellant
    testified that she learned the respondent was altering her letterhead, and
    using it without her consent. On the other hand, the respondent testified that
    she had the appellants authorization to use her letterhead, so that the
    appellant would not be bothered by real estate clients about work to be handled
    by the respondent as a paralegal. The appellant expressed concern she might be
    liable to phantom clients of whom she was unaware. According to her evidence
    she contacted the Law Society and on their advice spoke to the police. Charges
    of fraud under $5000 and forgery were laid against the respondent, but these
    charges were also ultimately withdrawn by the Crown.

B.

Trial judges reasons

[13]

The trial judge was scathing in his assessment
    of the appellants credibility, and accepted the respondents evidence. He
    found that the appellant did not terminate her business relationship with the
    respondent on January 15, 2013, but continued working with her, and that the
    respondents possession of the client files and use of the letterhead in
    January and February 2013 was accordingly with the appellants consent:
Curley
    v. Taafe
, 2018 ONSC 3150, 47 C.C.E.L. (4th) 228, at
    paras. 68, 72.

[14]

The trial judge, at para. 67, cited the elements
    identified by Simmons J.A. in
Pate v. Galway-Cavendish
, 2011 ONCA 329, 342 D.L.R. (4th) 632, at paras. 51-53, leave to
    appeal refused, [2011] S.C.C.A. No. 293 [
Pate I
] relating to when a defendant in a malicious prosecution action can
    be said to have initiated a prosecution:

1. Did the defendant knowingly withhold
    exculpatory information from the police?

2. Did the conduct of the defendant undermine
    the independence of the police investigation?

3. Did the defendant communicate to police in
    a manner that misled the officers into not conducting an independent
    investigation?

4. Did the
    defendant undermine the independence of the decision making process to lay
    charges and prosecute?

[15]

The trial judge found that the appellant made
    misleading statements to police and withheld exculpatory evidence, specifically
    the video surveillance tape from which the still photos were extracted and
    turned over to the police:
Curley
, at para. 68.
    The misleading statements were the statements that the appellant ended the
    contractual relationship on January 15, 2013 and that the respondent was not
    authorized to use the appellants letterhead at the relevant time. Based on the
    evidence before him, the trial judge found these statements to be untrue.

[16]

Further, although no testimonial evidence was elicited
    from any police officer who swore the informations laying the charges, or from
    any investigating officer, the trial judge concluded that had police known of
    the true state of affairs, the first information would never have been laid:
Curley
, at para. 45. Pursuant to
Browne v. Dunn
,
he refused to give any
    weight to the respondents letter of April 23, 2013 in which she seemingly
    acknowledged possession of the appellants files at a time when she conceded
    the contractual relationship was over. The trial judge reasoned that because
    the appellants counsel did not cross-examine the respondent about the specific
    parts of her own letter in which she appeared to acknowledge possession of the
    appellants files, he was only left to speculate as to what the respondent
    meant in the relevant extracts from her letter:
Curley
, at para. 43. He awarded general damages of $50,000 and punitive
    damages of $25,000 on the malicious prosecution claim.

[17]

The trial judge also awarded $7,500 to the
    respondent for the appellants wrongful termination of their contract,
    reflecting the continued earnings the respondent would have accumulated from
    her relationship with the appellant for the rest of the contractual term. It so
    happened that the respondent started work for a credit union on January 21,
    2013. The record before this court suggests that the respondent had part-time
    earnings from that source in excess of her earnings as a paralegal pursuant to
    the contract. The trial judge noted, at para. 76, that the respondent also
    received an $85,000 settlement from the credit union as compensation for her termination
    from that position in June 2013.

[18]

There was no evidence of any attempts by the
    respondent to replace her earnings with the appellant by referring client files
    to other lawyers and doing the same kind of work. The trial judge rejected the
    argument that there was insufficient evidence of reasonable efforts to mitigate
    her damages by taking judicial notice of the effects of criminal charges, at
    para. 77:

The suggestion
    that the Plaintiff could mitigate her damages by referring other real estate
    transactions to other lawyers in Durham, has to be viewed in the context that
    the Plaintiff was also having to deal with the criminal charges laid in the
    first information. The court can take judicial notice of the fact that anyone
    having to deal with the criminal justice system for the first time, would find
    that experience a difficult one that might otherwise impact on ones ability to
    work. In my view, an appropriate award with respect to the Plaintiffs claim
    for breach of contract is an amount of $7,500.

C.

ANALYSIS

(1)

Malicious prosecution: Initiation of the
    prosecution

[19]

There are four necessary elements which a
    plaintiff must prove in an action for the intentional tort of malicious
    prosecution:

1.

The proceedings must have been initiated by the defendant

2.

The proceedings must have terminated in favour of the plaintiff

3.

The plaintiff must show that the proceedings were instituted without
    reasonable and probable cause and

4.

The defendant was actuated by malice.

See
Nelles v. Ontario
, [1989] 2 S.C.R. 170, at pp. 192-93.

[20]

The bar for a successful malicious prosecution
    action is deliberately set high, to avoid unduly chilling the willingness of
    individuals to seek recourse from the police. As Low J. observed in
Correia
    v. Canac Kitchens
(2007)
, 56 C.C.E.L. (3d) 209 (Ont. S.C.), at para. 75, revd on other
    grounds 2008 ONCA 506, 91 O.R. (3d) 353:

It is often
    observed that the bar is set very high in a claim of malicious prosecution and
    that a plaintiff has a very difficult burden to meet to make out the claim. It
    is in the public interest that this be the case because criminal prosecutions
    are brought not for the benefit of the prosecutor nor for the benefit of the
    complainant but rather for the common welfare of society. Second, because the
    standard of proof is very high in a criminal prosecution, there will be many
    prosecutions brought that do not succeed not because the charge is unfounded
    but because the standard of proof has not been met. That the threshold for
    success is high in an action of malicious prosecution therefore balances the
    public interest in bringing to justice persons who may have broken the law
    against the private interest of persons who have been wrongfully prosecuted
    without reasonable grounds and for oblique or improper motives.

[21]

As indicated in
Nelles
, the first element that a plaintiff in an action for malicious
    prosecution must establish is initiation of the proceedings by the defendant. Simmons
    J.A. elaborated on the nature of the conduct required to amount to initiation
    of a prosecution by a private citizen in
Kefeli v. Centennial
    College of Applied Arts and Technology
(2000),
    23 C.P.C. (5th) 35 (Ont. C.A., in Chambers),

at para. 24:

A claim for
    malicious prosecution requires that the defendant must have initiated the
    prosecution or set it in motion, and that, ordinarily, the court will view the
    police officer who laid the charge as being the person who set the prosecution
    in motion. However, he also submits, correctly, that the complainant may be
    treated as the prosecutor in exceptional circumstances, including the
    following:

·

the complainant desired and intended that the
    plaintiff be prosecuted;

·

the facts were so peculiarly within the complainants
    knowledge that it was virtually impossible for the professional prosecutor to
    exercise any independent discretion or judgment; and

·

the complainant procured the institution of
    proceedings by the professional prosecutor, either by furnishing information
    which he knew to be false, or by withholding information which he knew to be
    true, or both. [Citations omitted.] [Footnotes omitted.]

[22]

Here, there was no testimonial evidence adduced
    at trial from the officers who investigated the appellants complaint or who
    laid the charges as to the effect of the appellants complaints on their
    investigation.

[23]

Rather, the available evidence suggests that the
    police exercised independent discretion over their investigation. The first
    written complaint by the appellant, dated February 27, 2013, laid out the
    appellants position and made note of the respondents competing version of the
    events. Police visited the respondent on March 2, 2013, and after listening to
    what she had to say and collecting two files from her, elected not to lay
    charges. The police decided to lay charges only after reviewing the
    respondents letter of April 23, 2013, describing a litany of complaints she
    had against the appellant, and after speaking to her about the missing files. The
    police exercised their discretion, firstly not to lay charges, and later, after
    hearing both sides and drawing their own factual inferences, to lay the
    charges. This is not a case where it was impossible for the police to exercise
    any independent discretion or judgment. As is evidenced by the aforementioned
    sequence of investigatory events, they in fact exercised that very judgment.

[24]

The trial judges finding, that the only reason these proceedings
    were initiated by the police was as a result of the misleading information
    supplied by the appellant, cannot stand. As has been explored, the evidence
    regarding the sequence of investigatory events and the absence of any evidence
    from the police as to the effect of the appellants complaint on their
    investigation leads to the conclusion that the police exercised independent
    discretion and judgment over the investigation. The trial judge committed a
    palpable and overriding error in concluding that the appellant initiated the
    prosecution.

[25]

The decision of
Pate Estate v. Galway-Cavendish
    and Harvey (Township)
,
2013 ONCA 669, 117 O.R. (3d) 481 [
Pate II
], stands in contrast to the case at bar on this point. In
Pate
    II
, the complainant was a former police officer who went
    to great lengths to manage his contacts with police and to encourage them to
    lay charges while discouraging as unnecessary any additional investigation:
Pate
    II,
at para. 73. However in
Pate II
, the police trusted the complainant because he was a former police
    officer and testified that if they had the exculpatory information withheld by
    the complainant, they would not have charged the plaintiff: at paras. 37-42,
    51, 78-79. In upholding the trial judges conclusion that the Township was
    liable for malicious prosecution, this court reasoned that the element of initiation
    can be satisfied if the defendant knowingly withheld exculpatory information
    from the police that the police could not be expected to find in all the
    circumstances
[1]
:
Pate II
, at para. 51.

[26]

In the case at bar there was no police testimony
    to speak to the effect of the appellants complaints on their investigation;
    there was no police testimony to proffer a view on whether they would have
    still charged the respondent had the appellant disclosed the surveillance
    camera video footage. Furthermore, while the prosecution would not have been
    initiated but for the appellants complaint to the police, the evidence shows
    that the decision to initiate the prosecution was nonetheless within the
    discretion of, and exercised, by the police in this case:
Chaudhry
    v. Khan
, 2015 ONSC 1847, at para. 18. As such, the
    element of initiation has not been satisfied and the respondents malicious
    prosecution claim must fail. Given the trial judges error on the initiation
    element, it is not necessary to address the appellants arguments pertaining to
    the other elements of the malicious prosecution test.

(2)

The
Browne v. Dunn
error

[27]

The rule in
Browne v. Dunn
creates an obligation to give a witness, called by the opposite
    side, an opportunity to explain evidence which the cross-examiner intends to
    later use to impeach the testimony or credibility of the witness. This rule was
    expressly adopted in Canada in
Peters v. Perras
(1909), 42 S.C.R. 244.

[28]

Here, the respondents letter of April 23, 2013
    amounts to an admission that she retained files belonging to the appellant at a
    time when she knew their contractual relationship was over. This letter had the
    potential to significantly affect the trial judges assessment of the relative
    credibility of the parties, however the trial judge discounted the effect of
    that letter, in accordance with the rule in
Browne v. Dunn
, at para. 44:

As a matter of
    fairness and in accordance with the rule in
Browne v. Dunn
, the Plaintiff [respondent] should have been given an opportunity
    to respond to the suggestion now being made by Mr. Zibarras, that the aforesaid
    extract from Exhibit 23 [the letter dated April 23, 2013] confirms that the
    Plaintiff [respondent] wrongfully had withheld files belonging to the Defendant
    [appellant].

[29]

The appellants trial counsel referred to the
    respondents letter in her opening statement. Later during the trial, after the
    respondent re-read her own letter to refresh her memory, appellants counsel cross-examined
    her on the letter. The respondent admitted writing the letter and delivering it
    to the appellant. During cross-examination, the respondent did not explain her
    statements in the letter about packaging up any and all files/documents here
    in my office that relate to your clients and refusing to give them to the
    appellant unless the conditions stipulated by her were met. Further, the
    respondent also did not explain such statements during re-examination when her
    own counsel had the opportunity to deal with issues raised in
    cross-examination.

[30]

In the appellants direct examination, after the
    respondents case was complete, the appellant testified about receiving the
    letter and forwarding it to police. At that time the respondents trial counsel
    did not object to that evidence on the basis that the letter had not been put
    to the respondent in cross-examination. The respondents trial counsel raised
    the
Browne v. Dunn
issue for the first time in
    closing submissions.

[31]

Trial judges do have discretion as to the remedy
    to be afforded for a breach of the rule in
Browne v. Dunn
, if a breach has occurred
. The effect that a court should give to a breach of the rule
    depends on a number of factors and the circumstances of the case
: R
    v. Dexter
, 2013 ONCA 744, 313 O.A.C. 266, at para. 20;
R
    v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65;
R
    v. Werkman
, 2007 ABCA 130, 404 A.R. 378, at para. 9. In
Dexter
, this court delineated two permissive options to rectify a breach
    of the rule. First, the trial judge can take into account the breach of the
    rule when assessing a witnesss credibility and deciding the weight to attach
    to that witnesss evidence:
Dexter
, at para.
    21;
Werkman
, at para. 9;
R v. Paris
(2000), 138 O.A.C. 287 (Ont. C.A.), at para. 22, leave to appeal
    refused, [2001] S.C.C.A. No. 124. Second, the trial judge can also allow
    counsel to recall the witness whose evidence was impeached without notice:
Dexter
, at para.
21;
R v.
    McNeill
(2000), 48 O.R. (3d) 212 (Ont. C.A.), at
    paras.
47-49.

[32]

Although such discretion rests with trial
    judges, here the rule was not engaged, as occurred in
Yan v.
    Nadarajah
, 2017 ONCA 196, 82 R.P.R. (5
th
) 175,
    at paras. 15-16:

We agree with the
the motion judge that
    the appellants seem to have misunderstood the rule in
Browne v. Dunn
.
    The application of that rule is generally restricted to situations where a
    party cross-examining a witness called by the opposite side is planning on
    adducing contradictory evidence to impeach the witnesss credibility. The
    cross-examiner must put the contradictory evidence to the witness to allow
    the witness to provide an explanation for it:
R. v. Quansah
, 2015 ONCA
    237, 125 O.R. (3d) 81, at paras. 75-76, leave to appeal to S.C.C. refused,
    [2016] S.C.C.A. No. 203. The rule reflects fairness to the witness whose
    credibility is attacked and to the party whose witness is impeached. It
    prevents the ambush of a witness by not giving him an opportunity to state
    his position with respect to later evidence which contradicts him on an essential
    matter:
R. v. Verney
(1993), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 376,
    cited in
R. v. M.B.
, 2009 ONCA 524, 68 C.R. (6th) 55, at para. 73.

In the present case, there was no
    element of the kind of unfairness or surprise that the rule in
Browne v.
    Dunn
protects against. The contradictory evidence used to impeach the
    appellants came in the form of the appellants own affidavits. Moreover, at the
    beginning of the cross-examination the appellants were asked whether there was
    anything in their affidavits that was incorrect or needed to be changed. They
    declined to make any changes or corrections. In the circumstances, there was no
    violation of the rule in
Browne v. Dunn.
[Citations in original.]

[33]

There was no unfairness or surprise associated
    with the appellants reliance on the respondents own letter at trial. The
    respondent was cross-examined on the letter and offered no explanation as to
    the portions of the letter that were later used by the appellants trial
    counsel to cast doubt on her credibility. As such, the trial judge erred in
    relying on
Browne v. Dunn
to discount this
    evidence, which is highly relevant to credibility.

(3)

Judicial notice and mitigation of damages

[34]

The respondent had access to a stream of clients
    related to real estate transactions. After the termination of her contract with
    the appellant, the respondent had up to six other lawyers available to whom she
    could refer files. The trial judge took judicial notice of the effect the
    criminal charges had upon her ability to work as a paralegal at para. 77 of his
    reasons, as noted in para. 18 above.

[35]

Apart from the respondents own statements
    regarding her tarnished reputation, there was no evidence that the charges had
    any effect on her ability to work or refer files to other lawyers. At trial,
    the respondent failed to produce any witnesses to support her claim that she
    could not secure new paralegal business due to her damaged reputation. No one
    asked the trial judge to take judicial notice of any such effect, nor did the
    trial judge advise counsel that he was considering taking judicial notice.

[36]

R. v. Find
, 2001 SCC
    32, [2001] 1 S.C.R. 863, at para. 48
sets out
    limits for resorting to judicial notice:

Judicial notice dispenses with the
    need for proof of facts that are clearly uncontroversial or beyond reasonable
    dispute. Facts judicially noticed are not proved by evidence under oath. Nor
    are they tested by cross-examination. Therefore, the threshold for
    judicial notice is strict: a court may properly take judicial notice of facts
    that are either: (1) so notorious or generally accepted as not to be the
    subject of debate among reasonable persons; or (2) capable of immediate and
    accurate demonstration by resort to readily accessible sources of indisputable
    accuracy. [Citations omitted.]

[37]

The trial judge erred in relying on judicial
    notice to conclude that the respondent had reasonably mitigated her damages on
    the basis that anyone who has to deal with the criminal justice system for the
    first time would find their ability to work impacted.

[38]

It is a basic tenet of contract law that a
    victim of a breach cannot recover losses that could have been avoided by taking
    reasonable steps post-breach; this principle against avoidable loss applies in
    all contractual settings: John D. McCamus,
The Law of Contracts
, 2nd ed. (Toronto: Ont.: Irwin Law, 2012), at p. 926. The burden of
    establishing that the plaintiff failed to take reasonable steps to mitigate
    damages is on the defendant: McCamus, at p. 928;
Red Deer College v.
    Michaels
, [1976] 2 S.C.R. 324, at p. 331.

[39]

Here, the appellant has satisfied that burden
    and established that the respondent failed to mitigate her damages. This
    conclusion is based on the evidence that the respondent could have offered her
    referral and paralegal services to others lawyers she was in contact with, in
    combination with the lack of evidence of reasonable steps on the respondents
    part to mitigate her damages. The damage award cannot stand and must be set
    aside. This is quite apart from the difficulty of awarding damages for loss of
    paralegal income when the respondent was not licensed by the Law Society to
    provide legal services.

D.

CONCLUSION

[40]

I need not address other arguments of error
    advanced by the appellant as the foregoing is sufficient to dispose of the appeal.
    In the result, the appeal is allowed, the judgment of June 13, 2018 is set
    aside and the action is dismissed, with costs of the appeal to the appellant in
    the agreed sum of $15,000 inclusive of disbursements and taxes. The parties
    agree that in this event, the costs of the trial should be reversed in favour
    of the appellant. Accordingly, there will be a costs award in favour of the
    appellant for the trial in the sum of $75,000.00.

G. Pardu J.A.

I agree P. Lauwers
    J.A.

I agree I.V.B.
    Nordheimer J.A.

Released: May 7, 2019





[1]
Lauwers J.A. continued to analyze the other three factors that
    Simmons J.A. identified in
Pate I
relating to when a defendant in a
    malicious prosecution action can be said to have initiated a prosecution
    (whether the conduct of the defendant undermined the independence of the police
    investigation; whether the defendant communicated to police in a manner that
    misled the officers into not conducting an independent investigation and;
    whether the defendant undermined the independence of the decision making
    process to lay charges and prosecute).


