



COURT OF APPEAL FOR ONTARIO

CITATION: Hall v. Niagara (Police Services Board), 2022 ONCA 288

DATE: 20220412

DOCKET: C68415

Brown, Paciocco and Sossin JJ.A.

BETWEEN

John Hall

Plaintiff (Respondent/

Appellant by way of cross-appeal)

and

Regional Municipality of
    Niagara Police Services Board
,
Steven Magistrale
,
    David Biggar, Shawn Donovan and General Motors of Canada Company

Defendants (
Appellants
/

Respondents by way of cross-appeal
)

Eugene G. Mazzuca and Rafal Szymanski, for the appellants/respondents
    by way of cross-appeal

Peter I. Waldmann and Cizan Suliman, for the respondent/appellant
    by way of cross-appeal

Heard: March 16, 2022, by video conference

On appeal from the judgment of Justice Linda M. Walters,
    dated April 21, 2020, with reasons at 2020 ONSC 241, and on cross-appeal from
    the ruling on costs, dated August 14, 2020, with reasons at 2020 ONSC 4867.

REASONS FOR DECISION

[1]

The appellants Regional Municipality of Niagara Police Services Board
    (the Board) and Detective Steven Magistrale (Det. Magistrale) were found
    liable to the respondent, John Hall, for $686,216.92 in damages for false
    arrest, negligent investigation, and malicious prosecution. The action against two
    other named defendants was dismissed and the action against General Motors of
    Canada Company (GM) was settled out of court.

[2]

The civil suit arises out of a police investigation resulting in the
    arrest of Mr. Hall for attempted theft of a copper bar from the GM
    assembly plant in St. Catharines, Ontario, contrary to s. 463(d) of the
Criminal
    Code
, R.S.C. 1985, c. C-46. Mr. Hall was acquitted at trial.

[3]

The appellants allege the trial judge made a number of factual and legal
    errors in her judgment in the civil suit which warrant intervention by this
    court.

[4]

The respondent cross-appeals and challenges the trial judges
    calculation of costs in his favour.

[5]

For the following reasons, we dismiss both the appeal and the
    cross-appeal.

BACKGROUND FACTS

[6]

In the evening of December 21, 2009, the GM plant on Glendale Ave. in
    St. Catharines, Ontario, experienced an electrical outage caused by a
    flash explosion in an electrical cabinet. After ruling out other possible
    causes, the investigative team concluded that the outage was the result of an
    arc flash explosion which could have been caused by a person attempting to
    remove a copper bar from the electrical cabinet. This theory was consistent
    with earlier incidents of copper being stolen from the Glendale plant.

[7]

GM referred the matter to the police, and Det. Magistrale eventually
    became the lead detective in the police investigation. His investigation led to
    the arrest of Mr. Hall, who was a security guard with Securitas, a company
    which was contracted to provide security at the Glendale plant.

[8]

Mr. Hall was on duty at the time of the incident and had physical symptoms
    afterwards, which Det. Magistrale understood as consistent with Mr. Halls
    involvement in the incident.

[9]

Mr. Hall was terminated from his employment following the incident.

[10]

The
    criminal trial took place over eight days before Wilkie J. in July 2012. In his
    reasons, Wilkie J. stated that, while a close case, he was left with a
    sliver of doubt as to whether Mr. Hall was the person responsible for the
    attempted theft of the copper bar and thus found Mr. Hall not guilty.

[11]

Mr.
    Hall launched his civil action in July 2014.

[12]

The
    trial took place over 16 days in May and August 2019.

PROCEEDING BELOW

[13]

The
    trial judge found Det. Magistrale liable for malicious prosecution (and the Board,
    in turn, liable for the actions of its officer).

[14]

Applying
    the test as set out by McIntyre J. in
Nelles v. Ontario
, [1989] 2 S.C.R.
    170, at p. 204, the trial judge considered the four elements of malicious
    prosecution which must be established by the plaintiff:

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 cause; and

4.

The defendant was actuated by malice.

[15]

In
    this case, the first two elements were not contested. The trial judges
    analysis focused on the latter two elements.

[16]

The
    trial judge recognized that in the case of malicious prosecution involving a
    police investigation, a key question is whether the police officer responsible
    for the arrest had reasonable and probable grounds for the arrest. The trial
    judge also highlighted the subjective and objective aspects of reasonable and
    probable grounds.

[17]

The
    trial judge found that Det. Magistrale lacked objective reasonable and probable
    grounds given the incomplete and improper investigation against Mr. Hall and
    the challenges with the circumstantial evidence gathered in that investigation.

[18]

Further,
    the trial judge found that Det. Magistrale was not credible with respect to his
    assertion that he believed he had reasonable and probable grounds for the
    arrest. Therefore, she found that Det. Magistrale lacked subjective reasonable
    and probable grounds as well.

[19]

With
    respect to malice, the trial judge found that Det. Magistrale acted with an
    improper purpose in the prosecution of Mr. Hall. She found that after the Crown
    and the defence inaccurately answered a question posed by the criminal trial
    judge, Det. Magistrale did not meet his obligation of notifying the Crown of
    the correct answer, which would have assisted Mr. Hall in his defence. The
    trial judge also found that Det. Magistrale engaged in inappropriate conduct in
    high fiving a Crown witness, and that inaccuracies in his police notes and testimony
    went beyond carelessness and amounted to deliberate falsehoods.

[20]

In
    light of these findings, the trial judge concluded that Det. Magistrale, and by
    extension the Board, were liable to Mr. Hall for malicious prosecution.

[21]

The
    trial judge also found that the appellants were liable for negligent
    investigation and false arrest.

[22]

With
    respect to damages, the trial judge fixed the general damages at $50,000. She
    found that special damages of $178,484.55 were appropriate in light of Mr. Halls
    legal fees to defend himself on the criminal charges and to obtain disability
    benefits from his own insurer. The trial judge fixed Mr. Halls past loss of
    income at $395,777.

[23]

In
    light of her other findings, the trial judge did not address the
Charter
claim.

[24]

After
    comparing the bills of costs of the parties,
and
    applying the principles in r. 57.01 of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, the trial judge awarded
    costs against the appellants in the amount of $275,000, inclusive of fees and
    disbursements.

ANALYSIS

[25]

The
    appellants raise various grounds of appeal which may be organized into three
    main categories.

[26]

First,
    the appellants argue that the trial judge misapplied the law relating to
    reasonable and probable grounds in the context of malicious prosecution.

[27]

Second,
    the appellants argue that the trial judge misapplied the law relating to malice
    in the context of malicious prosecution.

[28]

Third,
    the appellants argue that the trial judge erred in her award of damages.

[29]

Finally,
    the respondent cross-appeals against the trial judges award of costs.

[30]

Each
    issue is addressed in turn.

(1)

The trial judge made
    no reversible error in finding that Det. Magistrale lacked reasonable and
    probable grounds for the arrest

[31]

In
    order to have reasonable and probable grounds to arrest, an arresting officer
    must subjectively believe they have reasonable and probable grounds on which to
    base the arrest, and those grounds must be justifiable from an objective point
    of view:
R. v. Storrey
, [1990] 1 S.C.R. 241, at pp. 250-51.

[32]

The
    question of whether there are reasonable and probable grounds to arrest rests
    on the trial judge's factual findings, which are entitled to deference on
    appeal. However, the trial judge's ultimate ruling that those facts were insufficient
    to constitute reasonable and probable grounds is reviewable on a correctness
    standard:
R. v. Shepherd
,
2009 SCC 35
, [2009] 2
    S.C.R. 527, at para.
20
.

[33]

As
    indicated, the trial judge found that Det. Magistrale lacked both subjective
    and objective reasonable and probable grounds for the arrest of Mr. Hall.

[34]

The
    trial judges conclusion that Det. Magistrale lacked subjective reasonable and
    probable grounds was based on her assessment of Det. Magistrales
    credibility. She stated, at para. 114, Magistrales assertions that he
    subjectively believed he had probable grounds to arrest are not credible. How
    else can one explain the discrepancies, exaggerations, inaccuracies, and an
    outright lie in Magistrales written reports and affidavits.

[35]

Her
    finding that Det. Magistrale lacked objective grounds was based on her
    conclusion that the circumstantial case against him was insufficient. This
    conclusion was buttressed by Det. Magistrales concession that prior to
    interviewing Mr. Hall he did not have reasonable and probable grounds to arrest
    him. After closely examining the interview the trial judge concluded that nothing
    occurred during the interview to furnish additional grounds. In contrast to
    Det. Magistrales submission that he had a strong circumstantial case against
    Mr. Hall, the trial judge found that there was a very weak circumstantial
    case. She added, at para. 67, I cannot even find that a crime was committed,
    let alone that all the evidence pointed to the commission of any offence by
    Hall.

[36]

In
    arguing that the trial judge erred in concluding that reasonable and probable grounds
    for the arrest of Mr. Hall was lacking, the appellants focus on the trial
    judges conclusion that the objective ground for arrest was insufficient.
    Specifically, they argue that the trial judge erred by focusing mistakenly on
    Det. Magistrales failure to exhaust all avenues of investigation,
    contrary to this courts decision in
Tremblay v. Ottawa (Police Services
    Board)
, 2018 ONCA 497, 48 C.C.L.T. (4th) 1. The appellants also argue
    that the trial judge erred by failing to consider the whole of the evidence
    available at the time of the appellants arrest and by failing to consider or to
    give due weight to the criminal proceeding as a whole, including the criminal
    trial judges decision to acquit Mr. Hall on a sliver of doubt and the
    prosecutors decision to proceed with the prosecution.

[37]

We
    need not decide whether any of these alleged errors occurred because the
    subjective and objective components of the reasonable and probable grounds test
    are conjunctive. Both the subjective and objective elements must be satisfied
    for reasonable and probable grounds to exist:
Nelles v. Ontario
, [1989]
    2 S.C.R. 170, at p.193. As explained, the trial judges decision that Det. Magistrale
    lacked the requisite subjective grounds is a credibility finding. This
    credibility finding is entitled to deference. Given this finding that Det. Magistrale
    lacked subjective reasonable and probable grounds for the arrest, we see no
    basis for disturbing the trial judges conclusion with respect to the third
    element of the test for malicious prosecution.

[38]

This
    ground of appeal is dismissed.

(2)

The trial judge made
    no error in finding that Det. Magistrale acted on the basis of malice

[39]

The
    appellants argue that the trial judge erred in concluding that Det. Magistrale
    acted for improper purposes sufficient to meet the test for malice as the
    fourth element of the test for malicious prosecution.

[40]

The
    trial judge based her conclusion on the following facts: (1) Det. Magistrale
    failed to intervene in the criminal trial to correct flawed evidence that was
    put to the judge; (2) Det. Magistrale and one of the GM witnesses for the
    prosecution were seen giving each other a high five outside the courtroom at
    the criminal trial; and (3) Det. Magistrale deliberately lied in his characterizing
    of the evidence of Mr. Gatti, a key witness at trial.

[41]

Turning
    to the first finding, the appellants argue that Det. Magistrale had no duty to
    intervene in the criminal trial on the issue of whether something one of
    witnesses, Dr. Zimakas, could not recall was in the record before him. It was
    in fact there, in a report by Det. Magistrale. Det. Magistrale knew that Dr.
    Zimakas had that information in front of him as he testified but did not advise
    Crown counsel, defence counsel or the court of this fact during the trial.

[42]

Det.
    Magistrale had included the correct information in a report dated February 8,
    2011, which was provided to defence counsel. According to the appellants, the
    police are under no duty to interrupt a trial to correct evidence, and Det. Magistrales
    failure to do so was not improper.

[43]

In
    making her finding, the trial judge relied on expert evidence regarding the
    duty of a police officer in these circumstances and drew an inference that Det. Magistrale
    remained silent in order to aid the prosecutions case. Such an inference was
    available on the record, and we see no error in the trial judges reliance on
    this inference.

[44]

With
    respect to the high five, the trial judge relied on evidence from defence
    counsel, whose veracity she had no reason to doubt. She not only drew an
    adverse inference from this concerning conduct, but from Det. Magistrales
    subsequent denial of it. These inferences were available on the record.

[45]

Finally,
    Det. Magistrales mistaken summary of Mr. Gattis evidence  that Mr. Gatti had
    seen Mr. Hall washing his face in the washroom after the incident  was
    described by the trial judge, at para. 145, as a deliberate attempt to tailor
    the evidence against Mr. Hall.

[46]

We
    see no error in this finding, nor in the trial judges conclusion in light of
    these findings that Det. Magistrales prosecution of Mr. Hall was motivated by
    an improper purpose sufficient to meet the threshold of malice with respect to
    liability for malicious prosecution.

[47]

This
    ground of appeal is dismissed.

(3)

The trial judge did
    not err in the award of damages

[48]

The
    parties spent little time on the issue of damages in their oral submissions. In
    the appellants written submissions, they argue the trial judge erred in
    awarding special damages. Specifically, the appellants contend that the trial
    judges award of special damages in the amount of $106,603 to Mr. Hall to
    compensate for the cost of his challenge to the denial of disability benefits was
    beyond any connection to actions of the appellants.

[49]

The
    appellants submit that the trial judge failed to distinguish between the costs
    of the prosecution of Mr. Hall and the costs of the disability benefits
    dispute. The disability benefits dispute, they submit, was too remote to
    constitute a basis for special damages in this action.

[50]

The
    trial judge found that expenses compensated by the special damages, both those related
    to the prosecution itself and those related to the disability benefits dispute,
    would not have been incurred but for the malicious prosecution. This finding is
    entitled to deference and we would not disturb it.

[51]

The
    appellants also take issue with the damages for lost income, as they argue Mr. Halls
    termination was not connected to his arrest and prosecution.

[52]

The
    trial judge found that there was no evidence for why Mr. Hall would be
    terminated by his employer, Securitas, but for the charge against him from this
    incident. We see no basis to interfere with this finding.

[53]

This
    ground of appeal is dismissed.

The cross-appeal and the trial judges award of costs

[54]

The
    respondent as appellant in the cross-appeal appeals against the award of costs
    on the basis of the trial judges comparative approach to the determination of costs.

[55]

The
    plaintiff had sought $611,393.36 in costs. The defendants had suggested that $182,322.56
    plus disbursements and a 15 percent gross-up would be a reasonable amount. The
    trial judge considered the bills of costs of each party and properly considered
    the criteria under r. 57.01 of the
Rules of Civil Procedure
.

[56]

According
    to the respondent as appellant in the cross-appeal, the trial judge should not
    have compared in-house counsel rates of the Board with the rates of Mr. Halls
    counsel.

[57]

We
    would not give effect to this argument.

[58]

The
    trial judge did not simply compare the costs sought by each party. She accepted
    that the plaintiff would be expected to claim higher costs than the defendants.
    Nonetheless, she found the hours claimed in Mr. Halls bill of costs to be
    excessive, especially in light of the fact that the issues in the trial were
    not complex.

[59]

The
    respondent as appellant in the cross-appeal also claims that the trial judge
    neglected to include the harmonized sales tax (HST) in her calculation of the
    costs award. The trial judge stated that the $275,000 in costs was inclusive
    of fees and disbursements. There is no basis to conclude that she did not
    intend HST to be counted within this inclusive language, especially as the
    other costs figures cited in her judgment as the amounts sought by each party
    also included HST along with other fees and disbursements.

[60]

The
    discretion afforded to trial judges in determining costs is broad. An appellate
    court will only interfere with a costs award where the judge making the award
    committed an error in principle or the costs award is clearly wrong:
Hamilton
    v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

[61]

We
    see no error in the approach taken or in the result reached by the trial judge
    in this award of costs.

DISPOSITION

[62]

For
    the reasons given above, both the appeal and the cross-appeal are dismissed.

[63]

The
    respondent is entitled to costs on the appeal.

[64]

The
    respondent submitted that he would be seeking $54,542.61, all-inclusive, in
    costs for the appeal.

[65]

We
    must also consider that the appellants, as respondents by way of cross-appeal,
    were successful on the cross-appeal. They submitted that they would be seeking
    approximately $4,350.50 on the cross-appeal.

[66]

Taking
    the success of the parties and their submissions with respect to costs in mind,
    we fix those costs in favour of Mr. Hall at $50,000, all-inclusive.

David Brown J.A.

David M. Paciocco J.A.

L. Sossin J.A.


